Hernandez's Guilty Verdict

If there’s a sure-fire crowd-pleaser in this year’s San Francisco International Film Festival, it’s Roberto Hernandez and Geoffrey Smith’s Presumed Guilty. A riveting expos‚ of Mexico’s grievously broken criminal justice system, the documentary tracks the efforts of Hernandez and his wife, co-producer Layda Negrete, to intercede in the murder conviction of Jos‚ Antonio Zuniga. One of countless young men routinely framed and impriosned every year, Tono had the courage (and outside help) to fight back. Hernandez earned his law degree in his native Mexico and his master’s degree in law from McGill University in Montreal, and is now working toward his PhD at U.C. Berkeley’s Goldman School of Public Policy. Hernandez conducted this interview via phone while he was driving, an impressive yet modest feat compared to bringing Presumed Guilty to the screen.

SF360: Prior to Presumed Guilty, you made a short film about the Mexican penal system, The Tunnel. Do you consider yourself an activist?

Roberto Hernandez: I can understand why I’m being seen that way. I see myself as an academic. What I was doing, and the reason I started shooting in this case, was to collect data, because in Mexico there’s almost no data about the criminal justice system. Until very recently there were no surveys. The earliest one is from 2001. You know what the rights are, but you don’t know if they’ve been observed.

SF360: I have a hunch you were not welcome with your camera, given the corruption and complacency that you ended up documenting.

Hernandez: No, I was not. But these situations are not monolithic. At the head of the institutions, those who run the prisons or the courts, there are many persons who I believe want to change things. And frankly, I always received understanding from people at those levels. Prison authorities hate the courts, because they realize they have all these innocent detainees. Once I found out about Tono’s case, the first thing I filmed were the [alibi] witnesses in the marketplace where Tono worked. We edited a five-minute video and then we went to the heads of these organizations. They all had empathy for us and wanted to help, but didn’t know how to help. They did give me access to Tono in prison. And this was all before I found that Tono’s lawyer had forged his license to practice law. Nobody knew that there would be a retrial and that I would want to film the retrial.

SF360: What was it like shooting in the prison?

Hernandez: I remember prison guards coming after me and telling me to delete what I recorded because they didn’t want their faces shown. The common fear is that they will be identified as criminals. They ask money from the detainees in order to give them privileges or save them from tasks or beatings.

SF360: Tono’s retrial comprises the heart of the doc. What’s remarkable is that the presence of the camera didn’t seem to reduce the judge and the prosecutor’s arrogance one iota.

Hernandez: I would expect that observing something changes what one is observing. In some sense, it did. For example, the judge knows it’s unacceptable not to be present at the trial. So he wore his robe and showed up. We have a survey that says 93 percent of judges don’t show up at trail hearings. So it did change his behavior. In a way, what I’m capturing is what they think is acceptable behavior. In the everyday courtroom, employees are listening to the radio, the judge is reading the newspaper or polishing his shoes. There’s a wide range of behavior that would be unacceptable in any public office in the U.S. or in the democratic world. If you asked Tono, he would say that they dressed up for him. It’s far less chaotic [in the film] than in its ordinary way of life.

SF360: I suppose that during the trial itself, the participants also forgot about the cameras.

Hernandez: We recorded nonstop for five to seven hours, for the entire hearing, and there were six hearings in this case. We had five cameras in the courtroom in different positions. After a little while of recording, people do what they do. You can’t act. People are a little bit nervous at the beginning, but after a while it doesn’t affect what people do or say in any major way.

SF360: How did your initial goal of collecting data evolve into Presumed Guilty?

Hernandez: We started this project not thinking of making a film. Slowly the idea of making a film got in our heads. Partly it was easier to obtain funds to do a film than it was to obtain funds to do any scientific study in Mexico. So it made sense to edit it as a film. Beca Ambulante, a foundation started by actors Gael Garcia Bernal and Diego Luna, gave us a $40,000 postproduction grant. Beca put me to work with a very good editor, Felipe Gomez. Felipe was the first one to demonstrate to me that we could make a film out of it, because the judge had managed to ruin it by repeating everything that anybody said. My cameramen could not follow anyone in the courtroom. It took a year working together to pull it in into something that made sense. I always kept looking at its defects. We showed this cut at IDFA. To my surprise, it was in the top 10 for the audience award. That convinced me and my wife, co-producer Layda Negrete, to continue.

How did Geoffrey Smith, the Australian director of The English Surgeon (SFIFF 2008), get involved?

Hernandez: I went back to re-cutting the film after Amsterdam and I failed miserably. I don’t think a director should cut his own film. Especially when it’s a complicated film and I have no experience. The producer showed Geoffrey a rough cut. The idea originally was he might give us some advice. He said he’d come down for a week. I immediately took a flight to Mexico and we started working on it and, of course, we didn’t finish the film in one week. It took us the entire summer to recut it. Then we submitted it to the Toronto International Film Festival. If it were not for Geoffrey, this film would have been ignored majorly.

Was it his idea to include you and Layda as characters?

Hernandez: The first one to suggest we needed to put ourselves in the film was Felipe Gomez. But I contained him; I was always afraid of putting myself there. It’s about Tono, not about me. It’s his story. I felt, ethically, it was bizarre. And it hadn’t been filmed that way. With Geoffrey, I felt more comfortable letting that happen. He was co-directing the film [by] then. It was his choice to put us in the story and he felt that was editorially correct, and I felt safe in taking that step. The way he developed us as characters was mostly his idea, but he did it using footage we already had.

SF360: What are the plans for getting the film shown in Mexico?

Hernandez: The film was in the Festival Internacional de Cine de Morelia, one of the largest in Latin America and the second largest in Mexico. It won the Best Documentary Award and, as part of the prize, the festival organized a public outdoor screening. I didn’t expect anybody to come, as Mexico’s national soccer team was playing a key match for World Cup qualifying. Two thousand people showed up. The Wall Street Journal wrote a full two-page review. We’re still trying for a theatrical release. Unlike in the U.S., there’s no market for documentary films and no structured market for Mexican films. It will be broadcast July 27 on PBS, but nothing is set for Mexico.