Accusations against Figueiredo Basto reinforce selective plea bargaining, say lawyers.

Do Conjur - The accusation that lawyer Figueiredo Basto — responsible for several plea bargain agreements in Operation Lava Jato — received monthly payments to "protect" certain individuals reinforces the theory that there is a kind of selective plea bargaining in the country. This is the opinion of lawyers interviewed by ConJur.

"The accusation is very serious because it reveals a facet that we have been denouncing for some time now, which is the possibility of manipulation of the plea bargain. A selective manipulation that protects friends and certain people," says criminal lawyer Alberto Zacharias Toron.

However, he emphasizes that Figueiredo Basto cannot be condemned, since so far what has been seen is an accusation without supporting evidence. "We cannot condemn our colleague a priori without this being properly investigated. We must give him the benefit of the doubt and the burden of proof to whoever is accusing him," he added.

According to legal expert Lenio Streck, the Figueiredo Basto case demonstrates the risk of plea bargains as they are currently implemented in the country. "The case of the lawyer specializing in plea bargains—whatever that may mean—shows the risk of an uncontrolled mechanism: plea bargaining used as a means of proof, and not merely as something that indicates where the evidence is and how to find it. And, if what is reported in the news is true—look, if it is true—he may have fallen into the famous liar paradox, which can be adapted as follows: 'everyone in the room is a snitching agent; plea bargains don't need proof; plea bargains are valid regardless of proof; I was denounced; therefore, I am guilty.' Something like the institutionalization of the Baron Munchausen's aporia: drowning in the swamp with his horse, the Baron pulled himself up by his own hair. Except that's fiction. In harsh real life, sometimes the last one in a line of monkeys, crossing the river, one holding onto the tail of the other, can be eaten by the boa constrictor, as shown in the story by the great Simões Lopes Neto. There's always one left over."

Another lawyer interviewed by ConJur — who prefers not to be identified — says that "part of the legal profession has decided to dance to the tune and has embraced the idea that the lawyer has to solve the client's problem." "But to what extent should we be complicit in irresponsible denunciations, which now seem to be turning against the lawyer himself, because it seems there is no proof of anything, except the word of the informant? A good time for this 'denunciation-based' legal profession to rethink the role of the criminal lawyer in a State governed by the rule of law, constantly seduced by opportunistic denunciations."

Waiting

The Brazilian Bar Association of Paraná has stated that it will await receipt, through the competent authorities, of the documents relating to the accusation and any evidence that supports the complaint.

If the accusation is confirmed, a separate disciplinary procedure will be initiated within the Ethics and Discipline Tribunal of the OAB-PR (Brazilian Bar Association of Paraná). According to the entity, the reported facts are serious and need to be subject to the due process of law and the right to a full defense, avoiding summary and undue convictions.

The accusation is based on the plea bargain testimony of two money launderers who stated to the Federal Public Prosecutor's Office in Rio de Janeiro that the lawyer and a colleague, whose name was not disclosed, received US$50 monthly between 2006 and 2013 as a "protection fee" in a scheme run by money launderer Dario Messer. This information comes from the newspaper O Estado de S. Paulo.

In 2014, the Folha de S.Paulo newspaper published a story accusing money launderer Alberto Youssef, a client of Figueiredo Basto, of practicing so-called selective plea bargaining. At the time, the accusation was made by lawyer Haroldo Nater, who defends Leonardo Meirelles, who later also became a cooperating witness. Both in 2014 and now, Figueiredo Basto has denied the accusations.

Pioneer of plea bargains

Considered one of the country's leading experts on plea bargaining, Figueiredo Basto orchestrated some of the essential agreements for "Lava Jato," such as that of money launderer Alberto Youssef—in his view, the most important of the operation—and that of the owner of UTC Engenharia, Ricardo Pessoa.

According to what he said in an interview with ConJur, the plea bargain is inconsistent with the Code of Criminal Procedure, which is "very old and does not address modern mechanisms for obtaining evidence." The lawyer also stressed that the statements of informants are reliable, as they undergo judicial validation.

"There's a lot of philosophy surrounding the subject, but very few technical approaches. First, because it's a means of obtaining evidence, which obliges the Public Prosecutor's Office and the police to necessarily investigate and bring forth other evidence. For this evidence to be valid, it has to pass the test of cross-examination. It has to be subject to judicial review. There's no record of any defendant in 'Lava Jato' or other cases not having had the right to confront the cooperating witness."