Opinion: Fachin’s Gambit – How a judge turned the Lava-Jato legal scene upside down

RIBEIRÃO PRETO – (Opinion) The most talked-about television show of the late pandemic is “The Queen’s Gambit”. Decades ago, William Faulkner published “Knight’s Gambit”.  This week’s news involves what we’ll call “Fachin’s Gambit”.

In chess, a gambit is an opening move in a game, often with a twist: it involves the sacrifice of a pawn or other lesser piece (e.g. a knight) in order to gain territorial advantage on the chessboard.

Gambits, however, are not limited to chess: lawyers and judges regularly joust for position in lawsuits.

On Monday, March 8^th, STF Justice Edson Fachin issued a shockingly unexpected decision that should ensure him a place in the pantheon of Lava-Jato corruption investigations.

Fachin’s decision seems simple enough, like an opening chess move: it vacated (extinguished) all criminal cases presided over by then-Judge Sergio Moro, in which former President Lula was a defendant.  Two of these cases had convicted Lula who, after unsuccessful appeals, became ineligible for public office.

The subtleties of Fachin’s Gambit can be seen in both the grounds for his decision, and the effect it will have on the Lava-Jato chessboard.

Fachin decided that the 13^th Federal District court in Curitiba, where Moro was the sitting judge, did not have jurisdiction over those cases, because they were not strictly limited to corruption involving Petrobras.

Put another way, the Lava-Jato crusaders, a/k/a the “República de Curitiba”, should have chosen another forum in which to prosecute Lula; Judge Moro was in the wrong place (Curitiba) at the wrong time.

Fachin’s decision, in yet another subtlety, ordered a transfer of the Lula case files to a federal district court in Brasília, where a new judge should examine them. Why Brasília?

The STF has two five-judge panels. The Second Panel, which has jurisdiction over Lava-Jato cases, has recently taken several decisions determining that non-Petrobras Lava-Jato cases should have been tried in Brasília, rather than in other forums.

Fachin had dissented from those decisions, arguing they should remain in the courts the prosecutors chose. In his March 8^th decision, however, Fachin abruptly abandons this position and, expressly bowing to the weight of precedent, applies the Second Panel’s decisions to the cases involving Lula.

The subtlety of Fachin’s Gambit in this is two-fold. First, knowing that any appeal of his individual decision will go to the Second Panel, he tells his colleagues they were right all along.

Second, and far more important, Fachin does not order the prosecution to begin all over again from scratch; rather, he remands the case to another lower court judge to review the existing file and determine if the evidence there justifies further proceedings.

By doing so, he attempts to remove the “República de Curitiba” from harm’s way. The recent “Vaza-Jato” leaks, made public by the STF, show that Judge Moro and the prosecutors worked together in preparing the Lula cases for trial – conduct that is clearly unprofessional and probably illegal.

Lula’s counsel have long argued that Judge Moro was biased, and that his decisions convicting Lula should be set aside, because all the evidence the prosecutors submitted while working in collusion with Judge Moro was tainted and therefore inadmissible.

There are other cases pending before the STF that seek a declaration of Judge Moro’s partiality and a reversal of Lula’s conviction on the merits, declaring him not guilty.

Fachin’s Gambit explicitly includes these cases in his decision, and dismisses them as moot – since Moro had no right to conduct and decide those cases, his conduct in judging them is legally irrelevant.

Fachin’s Gambit also indirectly affects another legal controversy now before the STF: whether to implement the late-2019 anti-crime statute provision creating the figure of a “juiz de garantias” in criminal cases.

The “judge of guarantees” oversees all pre-trial proceedings – motions, depositions, etc. – while guaranteeing the rights of defendants.  After the pre-trial phase, a different judge decides whether a trial is justified by the evidence; if so, the second judge presides over the trial.

Congress added the “juiz de garantias” procedures to the anti-crime bill as a direct rebuke to Judge Moro and the Lava-Jato prosecutors. STF Presiding Justice Luis Fux, long a supporter of Lava-Jato, stayed the implementation of the statute in early 2020, and has not scheduled a vote by the STF on the question, more than one year later.

Fachin’s Gambit has done precisely what the “juiz de garantias” statute proposes to do. Moro was merely the judge overseeing the pretrial phase, but could not hear and decide the case at trial.

To close, let us look at what Fachin’s Gambit has sacrificed, and what has it gained.

The sacrifice to Lava-Jato is obvious – Lula’s convictions, once their crowning achievement, have been set aside, and he is free to run for public office.

The gains to Lava-Jato are less obvious, but are just as important. Fachin’s Gambit has recognized the importance of the Lava-Jato investigations to Brazil, and has found a way for them to carry on, even if the República de Curitiba did commit the excesses disclosed by Vaza-Jato leaks.

It remains to be seen whether the Moro-haters on the STF Second Panel, principally Justice Gilmar Mendes, will be swayed by Fachin’s Gambit, or whether they have their own defence at the ready.