Tonee Mello’s death: presunto culpable

by Nancy Davies

We had no time to mourn Tonee because the same week, on Wednesday, my son-in-law Alan Freeburn was arrested on the street in Tlalixtac where he lives, and driven away with a black bag over his head. The Mexican legal system is Napoleonic, based on “guilty until proven innocent”; charges may be initiated either by a denunciation or by evidence. It’s not easy to learn what the charges might be because only a lawyer can read them, sitting in the office of the District Attorney. Information leaked to the press is almost totally incorrect; it’s function is to convince the public that something is being done by the Public Security office.

Alan’s arrest was triggered when he had Tonee’s stolen Jeep on Tuesday. When he was stopped with it, he gave it to the police along with the keys. No record of that exists because the police took the car. 1) the Jeep was for sale; it contained no papers connecting it to Tonee, and 2) Alan did not withstand the days of Oaxacan interrogations: he changed his story several times and finally signed some sort of “confession”. (Those self-incriminating statements are not evidence in court, even in Mexico)

Memorial Gathering for Tonee Mello | Remembering Tonee Mello | Mexico’s Criminal Justice System: A Guide for U.S. Citizens Arrested in Mexico

Kenny was arrested one week later for the crime of being an accomplice to the charges against Alan. Wives are almost always arrested.

The Public Security Ministry functions behind closed doors; it’s impossible for the public to obtain information. Police corruption is exposed daily: evidence is planted, the police steal, and it’s to Cue’s credit that a “cleaning” is taking place, but not fast enough. Selected news is leaked, no “reporter” can obtain it by his/her own efforts, and nobody can verify evidence if there is evidence, nor where that evidence came from. The defamation of innocent persons is surpassed only by the physical, moral, financial and emotional damage the family suffers. We hired a lawyer who has proceeded through the appropriate steps and I tried to use some influence, like hurling my body in front of a juggernaut in motion. Once a person is transferred from the detention house to Ixcotel prison, it might take two years for the process to go through the judicial hearings (no trials, no juries, no testimonies: it’s all done by a judge or panel of judges reading evidence and deciding the case.) Both Alan and Kenny received federal protective orders, to shield them from that possibility.

To mend the justice system, it will be necessary to retrain a horde of bureaucrats, police officials, investigators, prosecutors, defense lawyers; and for the ordinary citizen to stop submitting and refuse to cower.

Any murder of an American citizen in Mexico takes on “political” overtones because Uncle Sam looks over the shoulder of every government action, and when a death is involved, such as that of Brad Will in 2006, the demands for a culprit surge to tsunami levels. The Oaxaca government has faced in successive years Will’s death, the murder of Jiiri Jaakolla, the Finnish activist, the murder of real estate dealer Lane Gilbert, and now that of Tonee Mello, a man well-loved, with the gift of giving. The attorney general does not want to admit failure to find a culprit.

On Monday evening April 11 the disappearance of Tonee, along with his jeep, computer and motorcycle, became known. His house had been ransacked, a wall safe pulled loose, lots of blood spilled. False rumors were printed that a big party binge had occurred on Sunday night. Tonee was reported missing; nobody knew he was dead.

On Wednesday, April 13, Alan was assaulted by plain clothes police and wrestled to the ground in front of his rented home in the town of Tlalixtac. The neighbors ran out in his defense, shouting “Let him go, you bastards!” and wielding machetes, but Alan was shoved into an unmarked vehicle, losing a tooth in the process. He called his wife in a frantic cry: “I’m being kidnapped!” Kenny spent the better part of the night locating him, at the lock-up of the Attorney General at the Ciudad Justicia complex thirty miles beyond the capital city.

The USA’s system and the Mexican system resemble one another in the most basic way: if you’re poor, you’re screwed. The Oaxaca government offers a public defender and a translator. Both inadequate services were rejected by Kenny, during the week she was still free she hired an attorney.

On Thursday the body of Tonee was found, on his own property, hidden in a well. It is clear that there must have been several men involved.

Now Alan was denounced for a series of crimes including bribery of a police official, theft, murder, narcotrafficking and selling child pornography from the back of a stolen car. His lawyer and the American consul were able to ascertain the charges, not the accused. After an intensive week of questioning, Alan was transferred to what is called a Casa de Arraigo, a detention house for holding prisoners while the search for evidence continues. He was immediately tested for gun-powder and blood, which yielded no positives. Meanwhile media leaks and Oaxaca gossip accused him of every crime imaginable; he was portrayed as an alcoholic and heroin addict.

When an alleged criminal is held, the system of visitation privileges is limited to his immediate family, who may go any day they choose to visit, to the Judicial Administrative complex (Ciudad Judicial) to obtain a pass after their own identification is proved. The pass is a one-day affair, and Ciudad Judicial, depending on traffic, is a forty-five minute trip beyond Oaxaca center. Then the visitor must take the pass to the Casa, located in Xoxocotlán, about half an hour from the center of the city. The visitor can bring food, soap, toilet paper, (none of these provided) and small sums of money to permit the prisoners to ask the guards to purchase extras. When a person is poor, or cannot afford to lose a day’s pay, the design of the system presents a brutal hurdle.

On Thursday April 21, Kenny was seized at the Ciudad Judicial complex where she had gone to get a pass to visit Alan, who had been moved from the holding cell in the justice building to the Casa de Arraigo. Kenny had a judge’s protection called an amparo, but unknown to her or to her lawyers, the attorney general had escalated charges. Ten federal police with heavy weapons were photographed lined up in her front yard: proof they were doing their jobs. She herself was subjected to a full body search. Items were taken from the house, and then she was taken to the same holding house where Alan was held. The reunion took place at a distance: men and women are not allowed to communicate at the Casa de Arraigo, although 22 people shared one common bathroom at that time. The couple by now were beside themselves, unable to guess what crimes they might have committed, and exhausted from the Oaxaca conditions to which they were not accustomed. Alan had lost about twenty pounds.

But how lucky they were, in the sense that a mother and money were available. Americans in Oaxaca may live in modest circumstances by USA standards, but by Oaxaca standards we are relatively well off. We are not, as Governor Cue and Lopez Obrador call them, “those who have less”, we are those who have more. The lawyer’s team was now called into double duty. His failure to protect Kenny was not his fault; the government switched playing fields. Perhaps he should have foreseen that it would.

My first reaction to the arrests of my family was horror, because I know the Oaxaca system, in which an uncounted percentage of innocent people remain in prison. The consular agent assured me that Kenny and Alan were “lucky”, that is, the Casa de Arraigo was not a penitentiary like Ixcotel, with guard towers and bars.

On April 27 a friendly government secretary, newly appointed by Gabino Cue, answered my alarmed email. VR and I have been acquainted for several years since the 2006 social movement. Both of us knew Oaxaca’s history, and recognized the pattern at work in finding a culprit. VR came to our home, and I assured him that Kenny and Alan are not vagabonds or criminals, they have a house in Massachusetts, two bank accounts, income. No motive to steal and/or murder exists. The denunciations resembled a Kafka novel, and indeed were kept in a two-inch thick spiral bound volume, which our lawyer could access only inside the judicial building: he couldn’t copy the pages or take them away. VR arranged a meeting for me with the newly appointed Attorney General (Procurador), Manuel de Jesus López López.

A meeting of more than two hours occurred on the night of Monday, May 2. Ciudad Judicial’s complex was not dark, many buildings remained lit up. “Muy trabajador” the guard told me, very hard working. Secretaries and guards were courteous and assisted me up and down the stairs where the elevators didn’t work. Oaxacans are overwhelmingly good people, once again I was devastated thinking of those who have less, the poor with no influence and no money. Finally I was ushered in to an office to meet with López López and Artemio Alvarado, the sub-secretary in charge of Prior Investigations of the Prosecutor’s Office. For the first hour Alvarado played out a kind of stage script:

ND: What does it serve to keep these people imprisoned after the federal judge has ruled there is no evidence?

AA: What judge? What court?

ND: the federal 8th circuit court

AA: Child pornography was found on Alan’s computer.

Me: piffle

AA: Do you know that Alan is a heroin user?

Me: piffle

AA: A gun was found in Alan’s house.

Me: piffle

Pointless. I complained to Alvarado and Lopez on behalf of the poor that I have already spent a few thousand pesos just in taxi rides, to say nothing of the cost of the lawyer. Well, López replied, in your case we’ll make an exception and give you a permanent pass, so you can go directly to the Casa without making the extra leg of the trip to Ciudad Judicial.

From Lopez’ office we moved to another, where all of a sudden three other men appeared. I was waiting for my pass and they were tossing out questions. Their knowledge base was small for a month of investigations. They informed me that at this date there were four suspects in the Casa de Arraigo, and two of them were Kenny and Alan. The other two had denounced Alan right after he had identified them in connection with selling Tonee’s Jeep.

Soon the personnel at the Casa de Arraigo knew the family relationship of us three. I was not permitted to speak during this special arrangement with Alan, only with my daughter. I brought orange juice, and fruit, toothpaste, a nightgown and clean blouses, books to read. A month in prison is a long time. By legal terms there was now only about ten days to go for Alan, and López had agreed that when Alan’s time was up, Kenny would also be released. New amparos were obtained by the lawyer from the Eighth Federal Circuit Court: the prosecutors could no longer interrogate the prisoners; the court declared no evidence existed to support any charges.

On the night of May 16 I received a phone call from Kenny saying she and Alan had been released. At 8:00 P.M. guard told them they could take their belongings and leave, with no further explanation. So they did.

Now I am in the process of safeguarding their release with media waves. Although men have been arrested, we don’t yet know who killed Tonee. We may never.


  1. Arraigo and the risks of torture

    Another major fear that human rights defenders have expressed, within the context of the judicial reform and the “criminalization of social protest”, deals with arraigo, a legal concept, which appears in the federal law and is intended to be used in the fight against organized crime.

    Arraigo is a special measure which exists in many penal codes in Latin America. It is described as a democratic instrument which can be used during a special criminal investigation, especially in cases where there is a risk that the person being investigated could escape. The process consists of a judicial order for “arraigo domiciliar” (a type of pre-charge house arrest) while the investigation is completed. The person must remain under constant vigilance without the possibility of leaving while the investigation is being finished. Before the reform, the maximum amount of time for arraigo was 40 days, however with the reform it has been extended to 80 days (in other countries pre-charge detention has a maximum of 2 to 7 days).

    In Mexico, arraigo has a special feature: Generally they do not use house arrest but instead “arraigo houses” are used. These are administered by the Office of the Attorney General of the Republic (PGR). These locations could be public buildings like hotels, or clandestine buildings. Although legally the person who is detained under arraigo is in the hands of the judge, the person remains physically in the “care” of the Public Prosecutor (Ministerio Publico). Obviously this gives the majority of the power over the suspect to the Public Prosecutor and judicial police.

    The most worrisome part of the issue of arraigo is that instead of using it as a tool to continue the investigation, it has been used to put pressure on the person being investigated and to force them to make a confession. Many of the cases of arraigo which have been denounced by human rights centers are related to “arraigo houses” where torture has been used, and there are major concerns that it could be used more frequently against protesters and social movements.

  2. Entontré este articulo por casualidad
    No entiendo excatamente del caso, pero loq ue es claro es que parece que necesitan mucha asesoria legal, almenos acompañamiento.
    Hay cosas que se afirman aqui que son mentira, es verdad que el sistema judicial de mexico es complicado, pero es raro que detienen a las esposas, si eso sucede, eso porque seguramente hay elementos fuertes que prueblan la complicidad. No hay evidencias que prueben la relación entre una cuetion pilitica con los asesinatos de extranjeros, me parece que los intreresados en politizarlo son ustedes. La ley en México es dura, pero es la ley, y asesinan a un mexicano o estado unidense, deven pagar por el crimen. No hay razon para estan conpacivos contra los gringos, ellos tratan con el pies a los mexicano.

    Tienen que conseguir un buen abogado que les garantice la salida de sus familiares, pero aunque fuera el mejor abigado de Oaxaca, hasta el mas desonesto sabra en el fondo que puede estar defendiendo a un asesino, pero su trabajo es liberarle de culpas.

    Suerte amigos, y no olviden que para tener a salvo sus derechos hay que pensar bien las cosas antes de hacerlas. Privar de la vida a una persona es la cosa mas cobarde que hay.


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