I found Presumed Guilty, which airs tonight on POV (10 PM, check local listings), very compelling. It’s the kind of doc that left me with several burning questions — so I decided to follow up with the lawyers-turned-filmmakers directly. Roberto Hernández graciously responded.


Doc Soup Man: Since the Thin Blue Line, as far as I know, this is the only other documentary that has literally helped free someone who was wrongly jailed. Are there others that you know about? Did you find any inspiration in Errol Morris’ film?

Roberto HernandezRoberto Hernández: Yes, we did find inspiration in Errol Morris‘ films. When I realized I was making a documentary I read Michael Rabiger’s “Directing the Documentary” which contains a list of not-to-miss American documentaries and Thin Blue Line is among them, as well as other films that depict wrongful incarcerations, such as Murder on a Sunday Morning.

Presumed Guilty gives a uniquely intimate portrait of Toño. We get inside his head to know why he believes he was arrested. It is peculiar that Toño thinks he was imprisoned because when he had been faced with difficult personal challenges, he had wished to God to be dead or imprisoned. The film is not shy in presenting that. We know what he aspires to become in life and how he escapes from his ordeal through his imagination. We know what he is afraid of, what he longs for. And the role of the documentary in his release becomes so explicit.

The story is centered on Toño, told from his point of view. It is almost as if the viewers were in Toño’s shoes. To me the most influential film in my creative process in this respect was Dancer in the Dark. In our film, Toño expresses his point of view through his dance and songs, urban rap which defies perfect translation but is particularly expressive.

I am very interested in the moment you realized that video taping the case could help break it. Can you describe how this came about? Was it an act of desperation?

Yes, we were desperate when we decided to show the film to the appellate court. We felt that Rafael Heredia and Salvador Herrera, the two lawyers who defended the case, could not have done a better job of poking holes in the prosecution’s case, however vague their case was. Their accusation of Toño did not clarify any theory of Toño’s actual role in the crime. Dozens of witnesses posited that Toño could not have been the murderer and yet the judge re-convicted Toño on retrial.

When we got our hands on the copy of the official record of the trial hearings, I compared certain passages of the record with our videotape of the trial and immediately noticed striking differences. None of the liveliest moments of the trial were captured in the court’s official record. And of course none of the most telling expressions were there either. This was ultimately important “evidence” when our films were considered in the appellate court.

How did you win access to the prison and to the "trial"? To put it bluntly, did you have to bribe people?

The story of how we gain access to film Toño’s story is a complicated one and it is partly told on the film itself. Importantly, we first gained access to Toño’s trust and made decisions as a team, deciding together what options he had and what to pursue. Our first access to the prison was quite limited and for a long time we were only allowed to be in the visiting area where lawyers confer with their clients. Gradually we gained a wider access to the prison, but it was not until the original lawyer who represented Toño was discovered to have forged his license that we could really get a chance to see justice at work through re-trial. In all cases with prison and court authorities we were able to use moral arguments to grant us access to film. We never bribed anybody.

It’s a very dramatic moment when the police detective blurts out that he’s concerned for his own safety. Do you know how he’s currently doing?

Ortega Saavedra was promoted, and he is still working for the police as far as we know. Recently, detectives under his command submitted a complaint to the Mexico City Human Rights commission citing repeated insults and “death threats” from him. This was published by Reforma newspaper on October 16, 2009 by Arturo Sierra.

What has happened to Tono since the end of shooting the film?

The last time we met with Toño, our daughters broke a piñata together

Toño has come with us to some screenings of the film. The most memorable was in Morelia, Mexico, last year. At the public plaza next to the cathedral hundreds of people gathered to watch his story and at the end, many approached Toño and said, “I’m sorry.” It’s as if people thought their own beliefs had incarcerated Toño.

Did you make this film with the intent of it being shown in Mexico primarily? If so, what’s the reception been like? What impact has it had?

Thus far, the film has only been shown in Mexico at film festivals, though we are working hard on a theatrical and broadcast distribution. We feel strongly that the film must be seen those who can most effect change. Most Mexicans do not know what goes on in their prisons. Educating citizens through our film, we believe they can move to insist on change. We have seen this happen with our previous short film, “El Túnel.” Viewers can support our effort to bring this story to Mexicans at www.presumedguiltythemovie.com.

What impact do you hope the film will have by being shown in the U.S.? Are you hoping the U.S. can pressure the Mexican government to reform its judicial system?

The film’s impact on U.S. audiences has been immediate and powerful. It could lead to a better understanding between the US and Mexico, for example on foreign policy. Focus needs to shift from narcotics enforcement and US collaboration with Mexico’s federal government, to focus on institution building and cooperation at the state level. Federal crimes such a drug crimes, represent only 5% of the country’s criminal caseload. The remainder is state cases. With the current state of the Mexican police force and lack of policy around investigations, far more people are negatively affected at the state level, as 95% of the crime is handled by local police forces who are ill-equipped and with no incentive to do real investigation.

Catch Presumed Guilty on PBS tonight, July 27, at 10 PM (check local listings).

Published by

Tom Roston
Tom Roston is a guest columnist for POV's documentary blog. He is a former Premiere magazine senior editor, who graduated from Brown University and started his career in journalism at The Nation and then Vanity Fair. Tom's freelance work has appeared in The New York Times, The Guardian, The Los Angeles Times, The Hollywood Reporter and other publications. He has written several Kindle Singles, including the bestselling Kindle Singles Interview: Ken Burns. Tom's current list of favorite documentaries are: 1. Koyanisqaatsi by Godfrey Reggio; 2. Hoop Dreams by Steve James; 3.Stories We Tell by Sarah Polley; 4.Crumb by Terry Zwigoff; 5. Montage of Heck by Brett Morgen