From the trial of
former presidents
Cacildo Marques - Sao Paulo
On August 20th,
2019, a 20-year-old hijacker, Willian Augusto da Silva, stopped a
38-passenger bus over the Rio-Niteroi Bridge and threatened to set it
ablaze. He carried a toy gun, lighter and gasoline. The action lasted
four hours, until a police sniper killed him.
Many law enforcement
experts said the police acted correctly, with no other way out. This
is true if we take into account that weapons in the hands of the
police are lethal, and there is still no concern in Brazil about
replacing lead ammunition with taser weapons, for example.
The state government has
deployed a feminine police major to make contact with the family of
the sacrificed young. The officer learned that the boy suffered from
depression and the family feared that he would commit suicide. After
his mother's insistence that he take care of himself and set aside
his obsession with suicide, he promised that he would not kill
himself, but would set up a situation that would solve the problem of
his life.
The police and the
government were therefore trapped by a young man with serious mental
problems. He forged a scheme that led the police to take his life,
and the police promptly responded to the demand.
President. In
2018, another Mr. Da Silva played a similar game, with the difference
that the result would not be death on either side, but only
conviction.
The object of several
criminal prosecutions for corruption, former President Luiz Inacio da
Silva (aka Lula) tried to throw his voters against the police and
justice when he was arrested, taking refuge in the Sao Bernardo do
Campo Metallurgists' Union, of which he was president before being
led to partisan politics by economist and representative Aloisio
Mercadante.
After nearly a day of
resisting among his supporters, and making fiery speeches against the
prosecution and the judge, he realized at night that the large crowd
he expected of voters around him was shrinking rather than
increasing. Police surrounded the area and expected only an order to
act, and arrest the convict who was striving to circumvent the court
order. He would willingly pay the price, but aides and politicians
close to him, who accompanied him throughout the day, assessed the
risk of a bloody outcome as high, and then persuaded him to
surrender.
It is not difficult to
find that for the simple man of very rudimentary instruction there
are few crimes that are understood as crimes: murder, rape, theft,
robbery, and lacerny. Of course, every adult man today knows that
will pay haigh price if he denies financial child support. But beyond
these faults, almost every legal wording that characterizes criminal
offenses makes little sense to the general public. Concussion,
malfeasance, perjury, peculate, administrative misconduct,
ideological falsehood, money laundering, prevarication, defamation,
embezzlement, and misrepresentation are all too abstract for the
average citizen. Those involved in white-collar crime seek popular
support anchored in this ignorance.
The report made so far
does not seem to show identity with the case of the youth of the
Rio-Niteroi Bridge. And if the case was just under this information,
it's not related, really. The problem is in the course of the court
proceedings.
Conviction. The
lower court judge sentenced him to nine and a half years of
detention. With the case raising to the FRC-4, Federal Regional Court
of Porto Alegre, this board increased the dosimetry, condemning it to
12 years and a month.
Taken to the city of
Curitiba, to serve his sentence in the imprisonment of the Federal
Police of the region, he saw in the following months new lawsuits
appear against him. Counting on what he had already condemned, he was
now liable for ten lawsuits around the country. Also during this
period the Superior Court of Justice, Brazil's third court, upheld
the conviction.
This condemnation
occurred for “concealment of ownership” of immovable property.
This was an apartment in a condominium in the coastal city of
Guaruja, which, according to the prosecution found, was given to him
by a construction company hoping to win government millionaire
contracts. While the other units in the building were being sold, the
one intended for him was still in the builder's name. He would enjoy
the property but not the formal property.
Several dozen
testimonials and many pieces of supporting documents made up the
process. It would be up to the defense to contradict the case and
seek to minimize as much as possible the accusation against the
defendant and, consequently, the extension of the sentence. It would
be like this if the former president had not set a trap, much like
the young of Rio de Janeiro.
Strategy. He was
in a financial position to hire undisputed and competent lawyers. But
these would not obey him. Without obeying him, they would dismantle
all the flaws in the process, because every legal piece has them. And
his sentence would almost certainly be less than four years in
prison. Under current rules in Brazil, he would not be arrested.
But he wanted none of
that. The strategy of his lawyers, which is not of them, but his own,
went through the following procedures: a) alleging total innocence in
the case, b) accusing the judge of bias and political persecution, c)
refusing to analyze the court's plea prosecution, arguing that all
the evidence was forged.
With the prosecution
file intact, the lower court judge played tennis with the net down,
while having on the other side an opponent who made a point of acting
with his hands tied. It cannot be ignored that in a white-collar
crime against the State, the judge weighs not two antagonistic sides
of civil society, but one side of the State, which he himself
represents, along with the prosecution, against another of society,
which in this case is the defendant.
For this reason, in the
previous corruption case, the case of the “Big Monthly”, 2006,
which dealt with allowances paid improperly to congressmen to vote on
matters of government interest, in which dozens of politicians and
businessmen were arrested, the then president, who in 2018 would be
arrested, passed unharmed. He represented the State. The complainant,
Representative Roberto Jefferson, knew that he should not involve him
in the problem, once this would have served as support to the others
involved. But all the great work of justice was left with a huge gap:
Where did the money come from?
The origin of the money
would only be ascertained in the 2018 process, when the chief of
State was already out of office.
While he was serving the
first year of his sentence, a second conviction was provided, in a
similar process, concerning the enjoyment of a site in the city of
Atibaia. As for the apartment that earned the first sentence, the
court has already seized it from the construction company and has
auctioned it off. The owner of the construction company is avowed
defendant and has already obtained his freedom, having ratified his
award-winning treaty by the courts after spending almost a year in
prison.
If the prosecutors had
forged sufficient evidence to impute him 800 years in prison, that
would have been valid, because the "strategy" was to
completely deny the relevance of the process.
This type of attitude is
unprecedented in the history of case law, so that the Code of
Criminal Procedure does not yet have a mechanism to circumvent the
situation. The sentence is issued after the judge becomes aware of
the prosecution's case and the defense's allegations. If the defense,
following the defendant's guidance, refuses to analyze the case and
prefers to attack the judge's fairness and boast that the whole
process is a scam, the sentence could be compared to a tidal wave
that has not faced any barrier to destroy beach populations.
Certainly, it never
crossed the former president's mind that dismissing the process and
accusing the judge is, for practical purposes, what matters, to a
confession of guilt. And confession compounded by enormous arrogance.
Decades of coexistence
with various leftist leaders have not turned the former president
into a leftist. But he has learned and incorporated notorious lessons
from the infantism leftism, and he applied in this case one of the
main ones, which is the behavior of rejecting negotiations with "the
other side", always maintaining the "all or nothing"
perspective.
Leaks. Almost a
year after the sentence began, there were leaks of talks between the
judge and prosecutors about the progress of the case. The prisoner
and his close supporters built the assurance that these conversations
served as a demonstration that the evidence collected against him was
false, which should lead to the overturning of the sentence and a
proper reparation. Moreover, according to the prisoner's own
statement, he should leave prison and be replaced there by the chief
prosecutor and the lower court judge who convicted him. This judge
did give some reason to the defendant's arguments that his judgment
was political when he accepted to be a minister of a party-line
government contrary to that of the convict. The reason, however, that
this minister, who vowed not to pursue a political career, to climb
the federal government was the same as years before had the former
president to the top of his civilian life: Both were famous, one
judging big names involved. in corruption, another leading strikes
against large industrial corporations.
Other former presidents
of popular election systems, such as in South Korea, were arrested
and even committed suicide over allegations of corruption. But the
only one in the world to swear eternal innocence was Mr. Luiz Inacio
da Silva.
In order to corroborate
the omniscience situation that affected him, after completing the
necessary period for the progression of the sentence, in which he
would have to move to the semi-open regime, the prosecution advanced
and demanded the execution of the procedure to justice. He, with the
help of lawyers, drafted a handwritten letter stating that he did not
accept the "bargain", implying that he believes the
prosecutors are trapped and on the verge of facing the reversal of
history, having to acknowledge that all evidence has been "forged",
to deceive the public, the regional court, and the higher court.
Faced with the old Roman
principle of “dura lex, sed lex”, the demand for a sentence that
acquitted the defendant, who considered himself a political prisoner,
was not met, but, even so, nothing prevents another Brazilian leader
from using in the future the same kind of confrontation against the
courts. In Brazil, where citizens who commit crimes often deny
everything - with the exception of former Rio governor Sergio Cabral
Filho, - perfecting the art of dissimulation as a way of life, the
way to prevent the repetition of this episode is to add to the
Criminal Procedure Code a provision that obliges the court system to
appoint dative attorney whenever the defendant's defense refuses to
review the items of the case, alleging total innocence of the client.
The judge considers not only this allegation of absolute honesty, but
also the contradictory one presented by the dative lawyer. Even if he
is also a state official, he is performing a necessary task that the
defendant's defense has refused to fulfill. And justice will no
longer be the victim of popular players who treat the institution
with gusto.
As a state-paid
official, although working in the opposite direction, this
judge-appointed professional has a role similar to that of the
“devil's advocate” in the canonization processes at the Vatican.
In short, there are
three major novelties in cases that prosecute acts of corruption.
1) "Suspect".
The object of the trial is a defendant who, in theory, acted against
the State, which is the employer of the judge. He will have the task
of working exemptly while belonging to one side. It is easy for the
defendant's defense to form the interpretation that he works with
suspicion.
2) Stubborn. If
the defendant was once chief of State, he has great difficulty, as it
happened to Iraqi Saddam Russein, though not to South Korea's Park
Geun-hye, in accepting that the seat he now sits on is the villain's.
3) Balance.
Chances are that the defendant, having been someone powerful, would
not recognize the validity of the state court case against him -
Saddam Hussein shouted that his antagonist was the US government -
imposing that understanding on the defense. In such a case, it should
be up to the judge of the case, as a procedural novelty, to fill the
gap by appointing a dative lawyer, so that he can draw up his
challenge piece based on the case file.
