Latin Justice

Abstract

QUITO, Ecuador—The prosecutor stands to deliver her opening statement in the case. She wears a tight, electric-blue dress that comes to mid-thigh. Standing on her matching stiletto heels, she turns toward the three-judge panel at the front of the room and lays out her case against the defendant. The defendant, she begins, had cut down an ancient and valuable tree, thereby committing a crime against the property owner and the state. Her opening statment is short, mostly read from the page in front of her. The judges, two middle-aged men and a young woman in her early 30 s, listen intently from their seats behind a folding table. They face the audience, crammed into two narrow rows at the back of the room, and are flanked to the left by the prosecution team and to the right by the defendant and his lawyer, all seated at creaky folding tables. The defendant—a dark-skinned, middle-aged man in a short-sleeve button-down blue shirt—sits listlessly, his arms folded across his chest. His lawyer takes occasional notes during the opening statement, but mostly looks down at the thin binder before him. Everyone in the room—audience, judges, and lawyers—sits in folding chairs. Next to the judges is the clerk of the court at a computer. Besides that, the room is barren.It wouldn’t be much of a room if not for the spectacular view out of the dirty glass windows that take up the entire length of the left-side wall. From each, rise the sloping peaks and craggy, green ridges of the Andean mountain range that surround Quito, the capital city of Ecuador. The trial in this tiny sixth-floor courtroom on a foggy Friday morning is part of a grand experiment. Ecuador has taken a step toward an adversarial system of criminal justice. The heart of this experiment—public, oral trials—is coming to life here in this small, non-descript space.Until the 1990 s, almost all Latin American countries had strict inquisitorial systems. So all decision-making was centralized in the judge, who was, in theory, a neutral party tasked with discovering the truth in a criminal case and rendering a verdict and sentence. The process was closed to the public and based entirely on a written dossier compiled by a public prosecutor and handed off to the judge for decision. The problems with this system in a region with a history of corruption as rich as Latin America are obvious and became even more so as many Latin American countries struggled under the weight of soaring drug-related arrests in the 1990 s. The solution posed by some both in and out of the region was a move toward an American-style adversarial system, where a defense attorney and a prosecutor duke it out in a public forum before a judge or jury until the parties reach, through this healthy back-and-forth, the truth. Or the truth as decided by the judge or jury, who watch the process and then mete out justice. The “oral” adversarial system (or accusatorial system, as it also often called), the argument went, would shine a light into the shrouded and corrupt criminal justice structures in place in Latin America.And so a slow wave began away from the inquisitorial investigation model and toward an accusatorial template. It began in fits ands starts. Ecuador adopted a constitutional amendment in 2000 that required all provinces in the country to adopt an adversarial prototype. But judges had little understanding of what it meant to have an “oral” system and, searching for a solution, began reading the record and their verdicts aloud into tape recorders in their offices. This was technically “oral,” but certainly not adversarial.As the groundwork began to take shape, a litany of issues remained unresolved. How, for instance, do you develop rules of evidence when none have ever existed? How about burdens of proof at the pre-trial, trial, and appellate levels? And how can you develop rules and precedents when no one in the country is trained to act in the roles typically required in an adversarial system—a vigorous defense bar; a neutral, but zealous public prosecutors’ office; and a judge whose job is not to be a main stage performer, but rather a ring-master of the circus before him?These were the sorts of questions that faced at least 15 Latin American nations as they transitioned to a new criminal justice regime. This conversion has occurred at some level in Argentina, Bolivia, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico (in some states), Nicaragua, Paraguay, Peru, and Venezuela. And what’s unusual about this dedication of effort and resources to criminal justice is that Latin Americans have never been particularly passionate about the topic.Historically, crime has been dealt with officially by the most local municipality and, unofficially, by the community. In places like Peru and Brazil, for instance, which have experienced a significant upsurge in street crime, the electorate has consistently rejected political candidates who run on a “tough on crime” platform. When Alberto Fujimori of Peru used the same tactics against common street criminals that had proved so successful against the Shining Path guerrilla group, voter response was negative. Latin America has just never been very into “Law & Order.”In many Latin American countries, the assumption has been that fairness in the arena of criminal justice is a pipe dream, particularly for the poor and underclass. Ximena Ortiz Crespo, a former Congresswoman and current professor of Ecuadorian history at the International University of Ecuador, explains that in places like Ecuador, “law is not present in people’s lives,” and when it does poke its head out, people run the other way. You’d rather pay a police officer to make the case “go away” than pay a lawyer down the road to defend you in a court you don’t trust or believe in. In Ecuador, she explains, there is a saying that goes la justicia es solamente para los de poncho, or justice tends to fall only on those who wear ponchos—the indigenous who inhabit the lowest rungs of the social and economic ladder. Criminal justice has long been an after-thought.And yet, many Latin American countries have shown surprising dedication to improving and making more robust their criminal justice systems. In Ecuador, this has meant a series of changes, including instituting public, oral trials and opening the first ever Public Defender’s Office.One Wednesday afternoon, the doors of the Office of the Public Defender at the bustling corner of Robles and 6 de Diciembre are wide open, with a steady flow of people washing through the empty space. Inside, cubicles are filled with young lawyers, fresh out of law school, typing away at computers or chatting with a revolving crowd of concerned family members, inquiring about the lawyer’s incarcerated “users” (in Ecuador represented defendants are called usarios, or “users” of the system). The fledgling lawyers, who grew up watching syndicated episodes of “Law & Order” and “CSI” on Ecuadorian television, never knew a model of criminal justice before the adversarial system. This lack of institutional memory is one of their greatest assets. As Ernesto Pazmiño, Chief Public Defender for Ecuador, explains, the criminal justice system is going through a “total cultural change” that will require the justice sector to reimagine itself. It’s a sentiment on the lips of many in the field—that this shift from an inquisitorial to an adversarial model requires not merely a change in infrastructure or procedure, but a fundamental reshaping of Ecuadorian legal culture. It is the public defenders who are best poised to make this change.One such public defender, Demetrio Santander, understands the procedure from arrest to sentence to appeal in the current Ecuadorian criminal justice system. Some parts are working well and are fully adversarial in nature, while others are still developing. At 26-years-old, Demetrio is typical of many public defenders in the office—young, dedicated, and bright (he’ll be leaving the office in less than a month to pursue a masters at Oxford through a scholarship program run by the Ecuadorian government). He knows how the system works and, more importantly, how it’s supposed to work.Many times, the public defenders—required to represent all indigent defendants in the system and even non-indigent defendants who fail to hire their own attorneys—are those most familiar with the adversarial system. They’ve learned cross-examination from veteran criminal attorneys from the United States and other countries who come to provide training through the American Bar Association’s Rule of Law Initiative and other programs. They know when to object to the introduction of evidence and how to formulate a case theory. One afternoon, a group of supervisors who head up units assigned to each phase of the new system gather in an office. They are young, energetic, and largely female. In considering why they became public defenders, they talk about their passion for justice, their desire to protect the most vulnerable members of society, and their love of a good fight. They are the face of the new criminal justice system.The great benefit of this transition is what many Ecuadorian lawyers, judges, and politicians refer to as publicidad, essentially the opening up of the process to the public. During the Friday morning trial of the accused tree-killer, anyone could walk into the non-descript building that serves as the courthouse, past the guard chatting quietly on his cell phone, hike up the six flights of stairs (the lone elevator is busted), and slip into the seats set up for the audience. The age-old issue of corruption is far from gone. Indeed many lawyers suggest it’s very much alive, but the opening of the forum has forced all parties to account, in some measure, for their actions. Prosecutors must charge people publicly. Judges no longer review evidence or announce decisions in the privacy of chambers. Defendants have advocates who are required by the constitution to represent their interests. In fact, the constitution adopted in 2008 is unprecedented in the guarantees promised by the state to the accused. The commitment to due process in the law is clear. At least that’s the theory.The picture on the ground, though, is not nearly as rosy. In contrast to the robustness of the public defender’s office, the reputation of the judges and prosecutors, who populate the new system, is somewhat less stellar. While public defenders simply never existed before 2007, judges and prosecutors—largely holdovers from the ancient regime—have had to adjust to new roles that shifted the nature of their power in the system. At this point, there are still no juries in Ecuador and trials are presided over by a three-judge panel.Prosecutors, who never had a meaningful relationship with the police, except to accept the police paper work and put it neatly into the dossier they prepared for the judge, now have full investigatory responsibilities that involve their cooperation and integration with the police force. Neither side has responded well to this forced friendship. And, judges, once the center of the party, are now left to twiddle their thumbs until prosecutors come to the table with the results of their investigations and their own formulation of the charges.Judges also haven’t escaped the taint of corruption that lingers from the days of the inquisitorial system. Although President Rafael Correa overhauled the justice system when he entered office in 2006, booting a number of judges and installing a host of new judges and administrators, the result was as much an end to old corruption as it was an assurance that the judiciary and the executive would stay closely connected going forward. Indeed, one of the first cases to come through this new network on the civil side, that has won worldwide attention, is the topsy-turvy, never-ending litigation between the Chevron corporation and a group of Indians from the Amazon region of Ecuador. Chevron, which tried for a decade to get the case moved from the United States to Ecuador under forums non conveniens grounds, is now slinging mud at the Ecuadorian justice system in foreign and domestic courts around the world, claiming the system is corrupt to its core. These protestations, though, come on the heels of a $19 billion award against Chevron.Indeed the power and presence of Correa is of huge importance to the future of the transition. The constitution that inaugurated an adversarial criminal justice system was adopted before Correa came to power, during a time when Ecuador saw eight presidents in nine years. Bumper stickers from the last election in Ecuador read, Ya tenemos Presidente, or “Already we have a President.” The slogan is tremendously popular, and it’s not hard to understand the power of a message that basically says—if it ain’t broke, don’t fix it.Correa has ruled over Ecuador for seven years during a time of relative stability and rising income equality. He has lowered child labor rates, improved medical care across the board, and focused on educational reform. But he has also been accused of wielding tremendous political influence over every aspect of Ecuadorian life, most recently in a series of high profile cases he has launched against the press in Ecuador. Like the presidents of Venezuela and Bolivia, he’s also committed to lessening, not strengthening, U.S. influence in his country. This is a president who has hosted the mother of Julian Assange personally for a sit-down talk, but not the current United States ambassador.What this means for the transition to an adversarial system in Ecuador remains to be seen. USAID, as well as the U.S. Department of Justice, were early funders and supporters of the transition to an accusatorial model in Ecuador, providing both training and for the has began to out of the country as it that the two nations are not on the same page on a range of including the of that through Ecuador. The lack of U.S. does not put the entire at Ecuador is far in the transition to back But it does that the commitment to training and building infrastructure in the justice sector will have to come from the Ecuadorian going so of the justice or to be a number one for the Indeed, while is in for the building of new and the of the building case to a new legal not to many many of the old problems that the new system was to is of the of for many who are and a lack of in for those of no one so an arrest on a crime to Public defenders to their by a of other making it for side to about the case. remains been only from the of in the 1990 s, which to but little in the system to The sentence for the of of is still years in One public many people in are longer for than for Although a new criminal is its toward the lack of in means that the man trial on that foggy Friday morning for down a could get a month in for one and up to years if there were others is all this in working toward a new system is a adversarial system is a good The adversarial system in the is in the United and that system is by from arrest to and of even President Correa understands all of His was in the for a of into the United States and to and a years in an American behind was a young who would tremendous his and would one be president of their years for but those years away in a American for a common have improved his of remains the adversarial system has to and is often as a country that has in a adversarial commitment to the transition process has been through the dedication of meaningful to the justice sector and by working closely with the United The is a more and just system of criminal justice, but part of this commitment has also been the of From to 2007, was in Colombia, there were of defendants a as to who were a is the greatest of the adversarial system in the United It behind closed doors and with little or no record of what has occurred between the prosecutor and the defendant and his on a wide it some of the most inquisitorial of the former system—a process of the countries that have adopted it as the for criminal the presence of an adversarial system is no of or justice. The come from understanding and the fundamental behind the accusatorial model that a country like Ecuador to a more and less corrupt criminal justice to this is to jury are one of the of an adversarial system. for jury was at the of early in Latin America against an adversarial As a on adversarial in Latin has the early was a time of over how to criminal procedure in the Latin American nations with the of toward an adversarial system or a system of both the accusatorial and inquisitorial though, Latin American they and the jury as well as oral and public their were not for lack of juries a of this have had a passion for it has often come in the of street the eight presidents in almost as many that has put the on that of with of or civil or not that’s the it that jury is the of this desire for from the street to the to the process of justice. and a in their and this is of so much as a jury system. In a country where people have long that justice on those in indigenous men and as well as of all on juries is a to and with the system. It’s of that juries are an to and take a at the jury room in the of American And in Ecuador and in Latin they are certainly to even more so than the other in the system, they and don’t have to to anyone about the they But are not to up on the some of in from and a new of Ecuador is prepared than ever before to with jury don’t much if cases don’t get to One of the greatest to the adversarial process in the United States is that, by most than of cases end up at While trials means more it also means that almost no one in the system is the right to a trial by his or her about in Ecuador are very but at this there be trials and of oral trials are the heart of the system, and they the country. One to this is to make that prosecutors and public defenders are and which Ecuador to be good between two is what a trial to make trials is to the on the system This can be by the instituting of to people in while their cases are in don’t they The more defendants get the to in their the of a more they will to But and must also be for the system to if works as it from arrest through trial, if remains and are the of the system has and the presence of trials will be by the presence of filled with people in for the many questions around this most with a in the process is at the of the of Ecuador to the state prosecutor transition to a system of case The office is in the former U.S. a with the of a The building is by that and like across the the lawyers back and between and a in the he’s new to the office, there is on no on his no not even a But he the same passion for his work as was at the office of his the public As to Ecuador will transition fully and to an adversarial system at some point, he his head His away his in the and city of in the of Ecuador. He that he has no that Ecuador will have a successful and fully adversarial system. we are here like building a he are building it for