Kakay: Janot's betrayal discredits plea bargains.

Do PCO blog - Accustomed to major battles and defending controversial figures like former minister Zélia Cardoso de Mello, criminal lawyer Antônio Carlos de Almeida Castro, known as Kakay (pictured), is not easily intimidated. He has taken on the defense of the most hated man in the country today, businessman Joesley Batista. His mission is to free him from prison and try to expose what he considers excesses committed by the Attorney General of the Republic, Rodrigo Janot, who, according to him, was disloyal and acted like a demigod. He warns that he doesn't have any bombshell tapes. The recording with former minister José Eduardo Cardozo was delivered to a federal prosecutor.

How is the defense working to correct the trajectory of businessman Joesley Batista?

Our first course of action is to seek his release. We have a habeas corpus petition. Joesley has two arrest warrants, one issued by the judge of the 6th Court for insider trading, a crime that, if the person is convicted, they will not be imprisoned at the end. There is no sense in having a premature arrest. Furthermore, proof that there is no crime is that the lawyers offered, when the investigation began, that he add an annex to his plea bargain. At the time he had immunity, and if he had added the annex, the investigation would have ended. They didn't want to because if they did, they would have to lie, because there is no crime. Their conviction was so strong that they chose not to finish the investigation. The arrest was a result of this moment of spectacularization of the criminal process, a punitive moment. There has been no change from the beginning of the investigation until now, so it really is an unnecessary arrest. We filed a habeas corpus petition on Friday with the Superior Court of Justice, and it was assigned to Minister Sebastião Ovídio. We are hoping to obtain the preliminary injunction. This injunction would free Wesley, but Joesley would remain imprisoned by the Supreme Federal Court. Simultaneously, we are working to demonstrate to Minister Fachin the unnecessary nature of the imprisonment.

Did you think the arrest was unnecessary? 

In our view, there was no breach of the informants' word. This is an extremely unique case. I have argued that Dr. Janot, at the end of his term, facing fierce criticism for granting immunity to the JBS informants, decided, before leaving office, to lift that immunity and created a political legal fact. The JBS informants had until October 30th to deliver other documents, other attachments. The other day he delivered the tape that is the subject of controversy, a tape he voluntarily handed over, containing a four-hour drunken conversation, which was given to the police chief. A vulgar conversation, but without any crime or concealment. If the prosecutor believed there was something to be clarified, obviously, out of loyalty—he is representing the State, he must act in good faith. It's not just the informant who must act in good faith. He alleged that the informant acted in bad faith by omitting information. If he felt there was any omission, he should have called the informant to explain the facts. That's how it works. I don't work with plea bargains, I didn't follow the plea bargain, I'm defending freedom and later I will defend the rights that came from the approval of the plea bargain, but not the plea bargain itself.

Do you think he should have been heard sooner?

In all other plea bargains, when there was a doubt, the prosecutors would call the informant to clarify the doubt. If it was a reasonably serious doubt, they would issue a recall, which is when you ask for the correction to be made and the benefit is removed. Normally, this increases the amount of money to be returned. In Joesley's case, we understood that there shouldn't even have been a recall, because we understood that there was no irregularity. His relationship with Miller, strictly speaking, is as it stands. The next day, some emails between Miller and the firm they were hiring were released, and this was presented as if JBS knew about the negotiation. Well, these were internal emails from a lawyer being hired and a compliance firm from around the world. Obviously, they weren't addressing JBS, and there was no way for them to know. What's strange is that, as soon as the prosecutor raised this doubt—and in reality, for me there's no doubt whatsoever, it was a political move—he was massacred by opinion leaders, by the mainstream media—the Estado de São Paulo newspaper alone published seven or eight scathing editorials against him—and what did he do? He went through much of his term as if he were a hero. Operation Lava Jato was in full swing, he was denouncing senators, the former president of the Republic, the president of the Republic. He had become a national hero in his own eyes, and suddenly his weaknesses began to appear from the moment he said he would shoot as many arrows as he could, which already demonstrates a certain imbalance, since that's not the way a Prosecutor General of the Republic should speak, who has the very serious burden of being able to file charges against someone. The plea bargain was considered the most effective, but he couldn't withstand the criticism.

And what about the other tapes?

To give you an idea, the day before the arrest warrant was issued, Joesley testified before a prosecutor who asked about another tape, the one about which there is great expectation, the one that supposedly contains something about former minister José Eduardo Cardozo. Nothing criminal, just conversations about things people are curious about. He said, "I didn't hand over these tapes because, from a technical standpoint, they wouldn't be of any importance." The prosecutor, in my view, rightly said that it's up to the prosecution to determine if they are important or not. Then he said, "I will hand over the tapes immediately." There are no tapes abroad. At one point, for security reasons, he left the tape outside of Brazil. As soon as he realized it wasn't a positive thing, all the tapes are with him. In the previous day's testimony with the prosecutor, when he handed over the tape, he was surprised at that moment by the arrest warrant issued against him. This is very serious. It's a strong act of disloyalty on the part of the State.

Has public opinion influenced the actions of the Public Prosecutor's Office, judges, and the Federal Police?

I think so. We live in a time of spectacularization of criminal law. People are tired of so much corruption. I've worked in criminal law for 35 years and I was surprised. I never imagined, and nobody could imagine, the degree of capillarity and institutionalization of corruption. When you see a scene with R$ 55 million inside boxes in an apartment, these are things that shock people in a poor and underserved country like Brazil. Lava Jato is a very important operation; it made great strides in the fight against corruption in the country. I am not a critic of Lava Jato, I am critical of the excesses, as a citizen and as a lawyer. For two and a half years I have been traveling around Brazil giving two to three lectures a month, to be able to point out the excesses. Part of the Public Prosecutor's Office divided the country, especially the task force in Curitiba, and part of the Judiciary. This is very bad. It's a punitive country. I often say that I don't allow any judge, police chief, or public prosecutor to claim they fight corruption more than I do, more than you, more than the people of Minas Gerais. We all want to fight corruption. They don't own the truth. They can't divide the country in a simplistic, childish way, portraying those who criticize the fight against corruption, as it's currently conducted, as being in favor of corruption. That's childish Manichaeism. I often say that idiots have lost their modesty, paraphrasing Nelson Rodrigues. What matters is how to fight corruption. I want the same fight they say they want, but with individual guarantees respected, with due process, without this sensationalism. They want to fight corruption at any cost, with arrests based on plea bargains, with excessive exposure of those being investigated, like those interviews they give presenting the charges—that's immoral, it's illegal, it violates the dignity of the person being investigated. The investigated person doesn't lose their right to dignity. The Federal Public Prosecutor's Office calls the national press and for two hours exposes the person to ridicule, with an accusation that hasn't even been accepted yet. This is all calculated. The main interest of that circus is, first, promotion; then they'll give paid lectures all over Brazil. Second, vanity. Vanity is a serious problem in this environment, and then, to prejudge and turn the accused against society, putting pressure on the Judiciary. This is a form of judicial pressure, and what we are experiencing in Brazil today is extremely serious.

Does Raquel Dodge's appointment as Attorney General of the Republic change anything?

I hope things change. Dr. Janot is a great figure. Personally, I like him, I admire him, although he's an Atlético Mineiro fan, which is a serious flaw. Janot at the beginning of his term didn't act this way. This excess of power, this excess of media exposure is what made him feel like a demigod. That's the reality. The prosecutors of Lava Jato, of the Curitiba task force, began to feel like demigods because of the excessive media exposure, which is oppressive for some and flattering for them, making them believe they are demigods, and with that, they started to make mistakes. Janot erred at the end of his term. Janot is a pity, even sad, melancholic. They ended the institution of plea bargaining. I think Dr. Raquel will arrive seeing the extreme wear and tear that the prosecutor's office is experiencing. Janot went from hero to tyrant. In the presentation of that tape he used to suspend the benefits of the JBS whistleblowers, the serious thing about that tape is only one thing: the way Janot presented it, saying in a frivolous manner that it contained criminal things against Supreme Court justices. It brought the country to a standstill. Supreme Court Justice Marco Aurélio publicly stated that he had cast suspicion on the entire Supreme Court. How so? Just listen to the tape to see that there is nothing against the Supreme Court justices. It's irresponsibility, an abuse of power. Even virtue must be restrained, as Machiavelli would say. You can't think that, because you are virtuous, you can do anything. No power can do everything. What we hope is that Dr. Raquel will be like Janot at the beginning of his term, without letting sensationalism and abuse of power go to his head. The Public Prosecutor's Office, in my view, used the powers of the Judiciary, as in this current indictment, when it requested the rescission of the plea bargain, but this request must be ratified. He should have waited for the Supreme Court, Minister Fachin, or the full court to approve it before presenting it. Since he was leaving, in a disloyal and irresponsible manner, he goes and presents a complaint while the plea bargain is still valid. He is usurping the power of the Judiciary. He is overriding the power of the Judiciary. This is called abuse of power.

Does the fact that Joesley is such a hated person in the country make it more difficult to defend him?

Make no mistake. Whenever you're defending the number one enemy, the courts tend to be much more rigorous, because judges are human, the Judiciary is made up of people who also suffer in some way from the power of the media. I understand that this is where the Judiciary needs to be courageous. I think a judge cannot be cowardly, just as a lawyer cannot be cowardly. The fact that it's a criminal trial means it has to be rigorously focused on the evidence. Minister Marco Aurélio says, the criminal process cannot have a name on the cover. The facts are what must matter. I think that his arrest, especially in the 6th Court, was clearly a media-driven arrest. Even the Supreme Federal Court, which is a more mature power, more resistant to pressure, suffered this somewhat exaggerated act by Dr. Janot at the end of his term and ended up yielding to him by making the arrest. I'm used to dealing with cases like Zélia's, who was the most hated person in Brazil, and I acquitted her in both cases she was involved in, as well as several other people. This case is exceptionally high-profile because it involves not only the biggest Brazilian businessman, but also the President of the Republic, which adds extra work. What I want to say is, I don't work with plea bargains, I'm not defending Joesley and JBS's plea bargain. I'm defending their freedom first and foremost, and this epic mess that Janot made in trying to remove their benefits only corroborates what I've always defended. The Public Prosecutor's Office has vulgarized the plea bargain system, trivialized it, and, in my opinion, its misuse has hampered the institution of plea bargaining. We have to rethink the plea bargain system. I'm not very concerned about public opinion, although I respect it and am careful about it. But I'm not going to stop taking a case because I'll be seen negatively. Any lawyer who does that should give up the legal profession.