A procedural defect: Begoña Gómez's last 'bullet' to avoid trial before the Jury Court

Last July, Begoña Gómez changed her defense, entrusting it to the expert in Jury Trials, Jaime Campaner, after verifying that Judge Peinado's obsessive instruction was incorrigibly oriented towards this type of procedure. The choice of a procedural lawyer, and not a criminal lawyer, makes it clear that Gómez's defense strategy is not so much about dismantling the accusation with exculpatory evidence but about achieving the nullity of the entire procedure based on procedural defects. However, so far none of these attempts have been effective. Judge Peinado has been backed, except for some scoldings, by the Provincial Court of Madrid, which has allowed him to continue his excesses until the eve of his forced retirement.

Gómez's defense has pointed to numerous irregularities in this final phase of the investigation, but the key seems to be found in the indictment of the ultra platform 'Hazte Oír'. This document can only be described, and being very generous, as a real legal mess. Errors pile up on its pages: mentions of testimonies in the investigation phase that cannot come to the knowledge of the Jury, distorted extracts from UCO reports, orders that resolve procedural issues as material arguments. In short, a salad of procedural absurdities that, however, Judge Peinado accepted as valid before issuing the order to open oral proceedings, thus ending the investigation.

At this point, Begoña Gómez's current strategy focuses on avoiding the holding of an oral trial before the Jury Court. This would entail a series of sessions that, as required by the Constitution and the Criminal Procedure Law (LECrim), would be held publicly, and would end up filling hours and hours of live broadcasts of the wife of the President of the Government before a Court, with the political and personal cost that this would entail.

Already aware that the opening of the oral trial is inevitable, the last opportunity to stop the procedure, even before the formation of the Jury, lies in the preliminary questions. This involves raising with the judging body, that is, another judge who would no longer be Peinado, the concurrence of circumstances that prevent the continuation of the process. In the case of the Organic Law of the Jury Court (LOTJ), everything indicates that it would rely on art. 36, which recognizes as one of these causes the lack of inclusion of justiciable facts in the indictment.

These questions, raised at the beginning of the first session, are generally resolved orally and immediately, unless the Presiding Judge considers that the question is complex enough to require a brief period of reflection, which seems appropriate in this case since he would have to examine the indictment in detail to verify if the alleged defect exists. A different matter is that laziness is stronger and he opts for an elastic interpretation of the LECrim, merely repeating the answer that Peinado already gave in this matter at the end of his investigation. The latter would be shameful although, sadly, it would surprise no one.