I heard a minister, Luís Roberto Barroso, say that he agreed with the reviewing judge Ricardo Lewandowski, but that he would vote with Joaquim Barbosa because he had just arrived at the Supreme Court. He didn't feel he had the right to question the first phase of the trial, when he wasn't yet part of the court.
"If I had been on the Supreme Court from the beginning," Barroso explained, "I would most likely have leaned towards his [Lewandowski's] argument. I would have changed the situation not only for this defendant, but for many others." The minister further stated: "I made a difficult choice when I began participating in this trial. It was that I would better serve Justice and the country if I arrived to avoid overturning a trial that had consumed more than 50 sessions of this plenary. If the court were willing to reopen the debate, I would participate."
Barroso is a minister with a recognized legal background. He has demonstrated that he is capable of firm convictions, to the point of being one of the lawyers for Cesare Battisti's right to remain in the country, in a case that sparked a highly heated controversy with international repercussions.
For that very reason, his intervention in the trial caused astonishment. How can a Supreme Court Justice think he made a "difficult choice?"
What did you choose between?
Commenting on the case, Professor Jânio de Freitas states in today's Folha de São Paulo that if Barroso concluded there was indeed an error in the judgment, he should fight to have the work redone. Jânio explains, in a paragraph worth reading in its entirety:
"It was to improve the judgments that he received the coveted position. His additional argument was no better: 'we would have to reopen the process. And to let a sentence, whether of conviction or acquittal, prevail despite seeming wrong to him, as long as the process is not reopened, is that really proper for a magistrate?'"
To recap. When he was questioned in the Senate, which was responsible for his nomination, Barroso said that he considered the Mensalão trial "an outlier for the Supreme Court."
I wanted to say that the sentences had been too harsh and that the court had not acted in accordance with tradition, as a court that does not relinquish the rights and guarantees of the individual against the State.
At the first opportunity, in a trial that will influence lower courts and have terrible consequences for citizens who may have been victims of injustice, Barroso claims that he would not "reverse a trial that consumed more than 50 sessions of this plenary."
The vote disappointed lawyers and legal scholars who, trusting in the viewpoints that Barroso publicly defended throughout his life as a highly respected jurist, imagined that a minister with his leadership and independence would be able to face a notoriously difficult debate. The minority voices on the Supreme Court are labeled "mensaleiras" (those involved in the Mensalão corruption scandal), harassed in the streets, and subject to constant surveillance by the media.
If the minister had voted with Lewandowski, as he admitted would be his likely inclination, the minority would have obtained 4 votes, not 3, which would have given the trial a new perspective. Even if defeated, the defendants would have had the opportunity to file new appeals. The Supreme Court would have sent a different political signal compared to 2012.
With all due respect, I find it worrying. Barroso didn't say he disagreed with the ministers who wanted to change the situation of certain defendants, an opinion that would be valid like any other.
Barroso suggested that he did not feel comfortable making such a gesture, as if his status as a newcomer were an obstacle to the fullness of his performance. In short, he admitted that he would not vote according to his conscience as a jurist.
Perhaps I'm playing the role of an idealist, inspired by the sheer freshness of a group of teenagers from São Paulo who visited the Supreme Court yesterday afternoon, with their curiosity, no fear of asking questions, and the pure desire to live in a world that distinguishes right from wrong.
But I think – perhaps in my naiveté – that a minister has a duty to vote according to his own thinking, however exotic it may seem, however uncomfortable it may cause his colleagues.
If Joaquim Barbosa did what he did last week and didn't even feel obligated to apologize to Ricardo Lewandowski upon resuming work, limiting himself to stating that he has a "rather peculiar view of the presidency of the Supreme Court," I think it's good to remember that we are in a harsh and rugged reality, where it's urgent to know where one stands and where one wants to go. Nobody is in the Supreme Court for a stroll.
Lawyers present in court explained to me that Barroso's position has more supporting arguments than an ignorant person like myself could perceive. It is very possible and very probable. But it was the minister who did the opposite of what he said he thought.
To be clear: nobody was planning, yesterday, to remake The Man Who Shot Liberty Valance in the Praça dos Três Poderes (Three Powers Square).
We don't need heroes. We need judges.
And since we're at the Supreme Court, we need sovereign judges.
I was surprised when Dean Celso de Mello said, to justify a vote in agreement with Joaquim Barbosa, that the Supreme Court was obliged to deliberate exclusively on what had been denounced by the public prosecutor's office and that, for that reason, allegations and evidence that had been dismissed by Attorney General Roberto Gurgel could not be accepted.
I found it strange because, months ago, openly exceeding its own powers, the Supreme Court popularized the mistaken view that "the Constitution is what the Supreme Court says it is."
He went so far as to vote against Article 55 of the 1988 Constitution, which clearly stipulates that only Congress has the power to decide on the loss of mandate for senators and representatives.
It's clear that you're not obligated to submit to the Attorney General of the Republic, right?
In a court that approved the quota system, defined indigenous reserves, and made so many decisions favorable to so-called minority rights, this claim is far too strange, far too formal.
But it's ironic to note that, when the goal was to revoke mandates, it was acceptable to trample on an article of the Constitution.
When a conviction is not to be reviewed, it is argued that Roberto Gurgel has the final say on ongoing cases.
This aspect is particularly important here. Subjected to a single-stage trial, without the right to a second review of their sentences, those convicted in the Mensalão scandal were placed, against all jurisprudence – including that of the Minas Gerais Mensalão and the Brasília DEM Mensalão – in a privileged forum that proved to be a trap for their rights.
By decision of the prosecution, some defendants were investigated in secret and will be tried separately by the common courts – if that ever happens. Documents that could assist the defense were not offered to their lawyers during the process. Published in this space in May 2012, the investigation by Federal Police investigator Luiz Flavio Zampronha makes it clear that not the slightest evidence of the scheme that Roberto Jefferson defined as the mensalão was found. He also concluded that the loans from Banco Rural, pointed out as fraud, involved effective negotiations between the PT (Workers' Party) and the institution.
Directors of Banco do Brasil with even greater responsibility than Henrique Pizzolatto in allocating resources that, according to the prosecution, are at the origin of the mensalão scandal, find themselves in this truly privileged situation. Businessmen who were heard in the process and who admitted to having significant financial participation in the scheme of Delúbio Soares and Marcos Valério, in contracts exceeding everything that was said to have come from Banco do Brasil, did not sit in the defendant's chair.
The trial takes place in a political environment, fueled by successive displays of force, and that is how every word, every "but," every "maybe," every "possible," is explained.
The situation was well painted by reporters Felipe Recondo and Debora Bergamasco, days before the resumption of the trial. Speaking of the conviction approved in an atmosphere of national redemption at the end of 2012 and the reflection stimulated by the appeals and motions, the two wrote in the Estado de S. Paulo newspaper:
“There are ministers who are showing 'regret for their votes' because they admit that some of the flaws pointed out by the defense lawyers make sense. The problem (...) is that these same ministers see no room for a reversal at this point. The dilemma for those who think they were too harsh in their sentences is finding a middle ground between revising part of their vote without risking public backlash.”
This is the point.
And here we arrive at yesterday's debate. At issue was the fate of Bishop Rodrigues, former congressman for the PL party. He was convicted because he solicited money to be part of the PT's base of support. It was also considered that, in exchange for money, he voted with the government on two important reforms in 2003, and so on. In making the accusation that put the bishop in the dock, the Attorney General said it was possible to prove that he had negotiated support, organized the voting of the caucus, and even received an initial payment of R$ 250.000. It could also be proven that he had received a second payment of R$ 150.000, paid in 2003. In its final arguments against Rodrigues, the Public Prosecutor's Office changed the accusation. It claimed that it did not possess most of the evidence previously announced. It said it could only prove the receipt of the last payment of R$ 150.000. This is not a minor detail. Convicted based on previous evidence, Rodrigues would fall under the old corruption law, which provides for lower penalties than the current law. If he were convicted solely for the R$ 150.000, he would be convicted under the new law, which doubled the minimum sentence and also increased other penalties.
Aligned with Gurgel, Joaquim Barbosa defended the harsher sentence, agreeing with the Attorney General's allegations. Lewandowski, who had initially voted with the prosecution, changed his mind and explained why. He stated that the records showed what not everyone had noticed: the Public Prosecutor's Office manipulated evidence, hiding what was inconvenient and showing what was in their interest. Lewandowski also recalled that the situation could be compared to that of a citizen who bribes a traffic officer when caught in a DUI checkpoint. Even if the bribe payment was divided into two installments, it is still a single crime.
In a well-considered intervention, Marco Aurélio Melo reminded the audience that the accusation against Bishop Rodrigues formed a coherent whole, encompassing everything from the campaign agreement with the PL – the party of Vice-President José Alencar – to two votes in Congress and the cash payment. To underscore the absurdity of ignoring the other evidence and condemning the former congressman for the payment of the last installment, Marco Aurélio posed the question that begs to be asked: “If there had been no last payment, would there have been no corruption?”
No one was questioning the acquittal of former congressman Rodrigues. The intention was not to say he was not guilty. What was intended was a just sentence, in accordance with the records and the laws in force at the time the events occurred.
The resumption of proceedings was accompanied by talk that the trial is dragging on too long. I think time is a criterion of politics, which has its electoral calendars, and also of TV, where soap operas last between three or four months, depending on the ratings. Considering that 37 defendants were on trial, and that many of them were sentenced to very harsh penalties, which are not applied in Brazil even in cases of torture, kidnapping followed by death, parricide or infanticide, we have less than 2 sessions per person. It's even too little from the point of view of preserving individual rights, let's be honest.
