28. The First Court indicated that Mr. Gorigoitia did not act in accordance with the caution that the use of firearms merits, according to the Police Force Manual. It also argued that “to assert the existence of willful misconduct in legal terms, there must be a use of facts, circumstances, and phenomena symbolizing them (…).”8 In that regard, it took into account a psychological examination conducted by the Forensic Medical Corps, which indicated that he has trouble adjusting to outside requirements and limits, as well as achieving a rational management of situations, and views inter-relationships as competitive, aggressive, untrustworthy, and without self-restraint. It was also pointed out that “applying this personality to the incident that we are targeting (…) his performance is a true reflection of his personality.”9 D. Cassation appeal 29. On September 29, 1997, Mr. Gorigoitia’s defense filed a cassation appeal requesting quashing of the judgment of conviction. In this appeal, the following was stated: (…) The willful misconduct is a fact and as such it must be proven as any other fact; never, in the facts stated in the present judgment of the Court, has it been possible to demonstrate the existence of this element that is an integral part of culpability, because it is not enough to merely state these facts or the circumstances surrounding what happened the night of August 31, 1996. (…) Every legal statement must be proven on the basis of its immediate antecedent and (…) the evidence must be furnished (sic) with facts that lead “reasonably to the legal consequence” and not their statement. Therefore, it is of no use to say: according to the facts it is proven that the accused committed a crime of gross negligence (…). The court attributes the motive to the personality of the accused. (…) Willful misconduct is a psychic fact that belongs to the innermost thoughts of the perpetrator and must respond to what he had the intention of doing and not fit the attitude of the other members of the Police Force (…). The sentencing Court [indicated] that Gorigoitia “participated in a frenzied pursuit.”10 30. The defense also alleged that it involved an arbitrary judgment because “with the same arguments raised to convict Oscar Raul Gorigoitia for the crime of manslaughter (…) Master Sergeant Hugo Felix Sarmiento is excluded from all suspicion,” although he also fired shots at the motor vehicle of Mr. Gómez.11 Thus, the defense indicated the following: If the incident was illegal for the person I am defending, should it not be illegal for those who fired at the motor vehicle under the same circumstances? And if the action of Master Corporal Sarmiento is justified, why is not also justified for Gorigoitia?12 31. Finally, he stated that the judgment failed to provide a due motive and that gross negligence cannot be established for the following reason: [A]t all times, the person I am defending is charged with acting reprehensibly and breaching all the rules of the Police Force Manual, whether by intervening in the procedure or by choosing to stop a car which most did not know why it was being chased, but it is not an 8 Judicial Branch of Mendoza, Case File No. 16.073 “F. C/GORIGOITIA OSCAR RAUL P/MANSLAUGHTER” and its joinder, Agreement Room of the First Criminal Court, September 12, 1997, page 85, Attachment to the initial petition. 9 Judicial Branch of Mendoza, Case File No. 16.073 “F. C/GORIGOITIA OSCAR RAUL P/MANSLAUGHTER” and its joinder, Agreement Room of the First Criminal Court, September 12, 1997, page 85, Attachment to the initial petition. 10 Criminal cassation appeal, filed before the First Criminal Court of Mendoza, September 29, 1997, pages 17 and 18, Attachment to the initial petition. 11 Criminal cassation appeal, filed before the First Criminal Court of Mendoza, September 29, 1997, page 18, Attachment to the initial petition. 12 Criminal cassation appeal, filed before the First Criminal Court of Mendoza, September 29, 1997, page 19, Attachment to the initial petition. 6