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Opinion by Michael Royster

RIO DE JANEIRO, BRAZIL – Last week, by 3-2 decisions, the 2nd Panel of the STF granted habeas corpus petitions and released from prison three prominent defendants in Lava Jato cases; all of them were closely connected to former President Lula.

Michael Royster, aka The Curmudgeon.
Michael Royster, aka The Curmudgeon.

The principal dissenter in this decision was Justice Fachin, who had originally denied the habeas corpus petitions.

Shortly thereafter, Fachin denied an identical habeas corpus petition from another prominent accused — Antonio Palocci — who had been Lula’s chief of staff.

But, rather than refer his decision up to the Panel where he’d been overruled, he sent it to the full court with eleven Justices.

The reason for this referral is that the 1st Panel has routinely denied habeas corpus petitions in similar cases, and Presiding Justice Carmen Lúcia Rocha, who does not sit on either panel, is thought to be unsympathetic to requests for habeas corpus. Clearly, Justice Fachin believes that his denial of release to Palocci will be upheld by the full STF.

The reaction in the media to the 3-2 decisions was mostly furious — two of the Justices who voted to release (Toffoli and Lewandowski) are well-known supporters of President Lula, who appointed them. Both of them, in fact, voted not to convict all the defendants in the mensalão scandal.

The third Justice, Gilmar Mendes, has been seen hobnobbing with the political bosses supporting the Temer administration, most of whom appear on the list of criminals sent by Chief Prosecutor to the STF.

Suspicious? Surely. But there is another side to this, which the mainstream media resist publicizing.

All of those released, and Palocci, have been imprisoned “temporarily” for many months, in a couple of cases more than a year. Brazilian penal law, like that of most countries, discourages holding those who are charged indefinitely, based on the presumption of innocence.

The reason given by Judge Moro for holding them is that they may still be complicit in the illegal activities, or helping to cover up evidence of wrongdoing. The real reason is that Judge Moro hopes to force those held in custody to engage in plea bargaining, in order to reduce their sentences, and help convict Lula.

The problem with this procedure is that, in law, indefinite detention is not only punishment, but also a form of coercion. There are disputes in all legal systems about how much coercion is possible, when all people must be presumed innocent.

Here in Brazil, as in the U.S., Supreme Court Justices also differ about how much detention is allowable; many believe that house arrest, with restrictions on communications and movement, is enough of a deterrent to prevent ongoing crime. Others disagree.

The Lava Jato investigations have relied on plea bargaining to base their cases against prominent politicians. Indeed, it is hard to prove criminal conspiracies without plea bargaining. But as Gilmar Mendes has pointed out, it happened in the Mensalão cases, where defendants were convicted.

Put another way, there are serious legal scholars in Brazil, who believe that holding people in jail indefinitely, until they rat out their partners in crime, violates the presumption of innocence of those detained. There are others who disagree.

The Curmudgeon expects a very close STF vote on the question, probably 6-5, eventually upholding Justice Fachin’s denial of habeas corpus to Antonio Palocci. If the vote goes the other way, Lava Jato will indeed be in trouble.

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