“El Ponchis” and the Defense of “Duress”

I read in the news recently the story of “El Ponchis”, the 14-year-old boy in Mexico accused of committing four beheadings on behalf of a Mexican drug cartel.   The real name of “El Ponchis” is apparently Edgar Jimenez.  According to a story in the Spokesman-Review, the Jimenez explained: “I participated in four executions, but I did it drugged and under threat that if I didn’t, they would kill me”. In the law, such a claim is called the “duress” defense.  In Washington State,  “under duress” means that a person acted under compulsion by a threat or use of force that creates a reasonable fear in his mind that if he were to refuse that he would face immediate death or grave injury. Additionally, it must be shown that the defendant would not have committed the offense if it weren’t for the threats.  However, under Washington law, and in most other jurisdictions, duress is not a defense to murder.  It is not likely that duress is a defense to murder in Mexico either.

The other problem with a duress defense is that it is typically not available when a person “recklessly” puts themselves in a position where it is likely that they would be compelled to commit a criminal act.  For example, if a person joins a street gang in the U.S. it is certainly foreseeable that that gang might require (under threat of violence) that the person commit criminal acts. It is unclear whether “El Ponchis” joined any criminal enterprise voluntarily.

As a criminal defense lawyer, I don’t see the duress defense raised too often.  Once I defended a young Mexican national allegedly found on the site of a massive outdoor marijuana grow operation in a remote section of the national forest.  It was pretty clear that he was a victim of human trafficking and was being held on the grow site under duress.  The prosecutor agreed and the defendant plead guilty to a misdemeanor and received credit for time served.

In the case of “El Ponchis” it appears that he would have certain legal advantages in Mexico that he would not have in Washington or the rest of the U.S. The newspaper story reported that the Mexican judge announced that the maximum punishment the teen would receive would be three years.  In the U.S., Edgar Jimenez could easily be tried as an adult and serve a life sentence.  For example, one time in Moses Lake, Washington, a 14-year-old named Barry Loukaitis shot three people to death at Frontier Middle School in 1996.  Loukaitis was tried as an adult and was sentenced to life in prison without possibility of parole.  I was working a prosecutor in Seattle at the time.

What do you think?  If Edgar Jiminez is convicted, we he really get only three years? What will the Mexican government do with him after he serves his time, and he is still only 17?

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Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking: www.grahamdefense.com
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