One of many exceptionally brazen motions denied

What? The Martinelli Linares sons and Riccardo Francolini move to dismiss the charges on the grounds that the acceptance of a huge kickback from a major public works project does no harm to the government? Denied, said Judge Óscar Carrasquilla. No doubt there will be appeals.

The motion was brought in an attempt to dismiss a complaint by Security Minister Alexis Bethancourt after court records in other countries revealed that the Brazilian construction company Odebrecht paid hundreds of millions in kickbacks for billions of dollars in public works contracts and that a lot of these illicit payments were made to these three people. That may not have been the end of the money trail, as with much of the former President Ricardo Martinelli Berrocal’s public corruption the recipents of dirty money passed it on to the Cambio Democratico party’s 2014 election campaign, to pay for groceries, building materials, home appliances and cash to exchange for votes in the elder Martinelli’s bid to prolong his power in the Putin fashion by installing a puppet successor president.

Ricardo Martinelli Linares, the son of the former president, does not go directly to jail on that ruling. Nor does his younger brother, Luis Enrique Martinelli Linares. They are fugitives from justice, believed to be residing in the United States. Despite that status, they are allowed to take up the overworked courts’ time by bringing a motion in absentia. Panamanian courts are relatively rare in that they accept pleadings from or allow hearings to fugitives.

Another odd feature of Panamanian law is that there is no tolling statute. In most places if someone accused of a crime flees abroad, the time spent out of the accusing jurisdiction does not count toward the calculation of when an applicable statute of limitations has run. Nor do delays caused by defendants’ motions in criminal proceedings. In the USA the laws that stop the calendar on statutes of limitation are called tolling statutes. They exist in jurisdictions of both the Common Law and Civil Code families of legal systems. But not in Panama. In the US practice of law, it is also considered unethical for a lawyer to interpose a motion just for the purpose of delay. Here it is celebrated as something that smart lawyers do as part of a quite common game played for rich and politically connected criminals. They flee or hide to let the statute of limitations run. If caught and brought before a Panamanian court they continue the game with delays caused by ridiculous motions.

The younger Martinellis’ co-defendant in the matter at hand, Riccardo Francolini, has a bunch of pending charges and is in and out of prison as he is denied or granted bail on this or that. These days the norm is supposed to be that an unconvicted defendant gets bail. The poor generally can’t afford cash bail but folks in Francolini’s income bracket often can.

To one who is behind bars awaiting trial, release on some sort of bail is quite the serious matter. To one facing charges that can result in years in prison, a motion to dismiss the charges is also a big deal. But multiple lawyers coming into court, filing pleadings and taking up time and space on the docket to argue that a graft scheme in which the government overpays for a public work and part of the excess gets skimmed off to a politically connected person gives the government no grounds to complain? That’s brazen.

In Panama lawyers and clients never get penalized for frivolous motions. Ricardo Martinelli Linares may be the ex-president’s son and Riccardo Francolini may be the ex-president’s business partner, but in the grand scheme of things – in the reported more than 1,000 public corruption cases now pending – they are second or third tier players, with relatively small squadrons of lawyers deployed. But consider how outrageous this motion to dismiss charges was, and multiply it a thousand times to begin to get an idea of the operation that is being run against the Panamanian courts and the nation that they are supposed to serve.

Oh, the crime in question? Odebrecht pleaded guilty to it more than one year ago and was fined $220 million, payable over 12 years. They retain their eligibility to bid for public works contracts in Panama.

The ex-president’s trial on the first of many sets of charges

Martinelli Sr.? His illegal eavesdropping case is the one most prominently before the public eye. Pretrial proceedings are about done, although the ex-president’s teams of lawyers have other ideas. Magistrate Jerónimo Mejía is pondering the proofs proffered at pretrial hearings and a plethora of motions to exclude this or that witness or bit of evidence, some of which if granted would effectively end the case. He will decide if the case goes forward to trial and which evidence gets in.

Pending before the entire court are several interlocutory motions appealing Mejía’s rulings so far, perhaps the most important to the former president his several denied motions to be released on bail. Ricardo Martinelli Berrocal fled to the United States, issuing taunting Twitter messages for many months until his arrest began extradition proceedings. At a very late state of appealing US rulings to send him back to Panama for trial Martinelli threw the towel into that ring, and seems to think that because he did not for a second time appeal his extradition up to the US Supreme Court that means that Panamanian courts owe him release on bail. Mejía’s position is that one who has already fled is a flight risk and does not get bail. The man may have many fans – some his appointees – in this country’s judiciary, but acceptance of the bail plea would cripple what authority the courts have and perhaps lead to a clean sweep of all high court magistrates in some future constitutional revision process. The court’s fan base among the general public is far less significant than Martinelli’s fan base in the courts. So in El Renacer Penitentiary the former president waits, fighting battles over prison rules with his jailers, who might just transfer him from the country club of Panama’s slammers to something far more hellish.

If Mejía binds Martinelli Sr. over for trial, a panel of nine magistrates or alternate magistrates will be assembled to hear the case. (Unless, of course, the entire court prior to that grants one of the pending constitutional motions or interlocutory appeals and dismisses the case.) Mejía will not be on that panel.

Nor will Mejía’s colleague José Ayú Prado, one of the people whose phone calls and emails Martinelli is alleged to have illegally intercepted, and most probably whose cell phones or laptops were remotely switched on and turned into room bugs. Did Ayú Prado talk with his colleagues over the phone, or exchange emails with them? He probably did. Although this case deals with direct surveillance of 150 specifically named individuals, their communications with others being intercepted means that thousands of people were caught in this one net. One of them is this reporter, and then there were probably other nets out there too. The 150-member enemies list was accidentally left in a laptop at the National Security Council and forms the basis on which this case was started. Ayú Prado would have a specific conflict of interest in hearing the matter. Most probably all of his colleagues would as well, but Panamanian judges are great ones for legal fictions that keep them from recusing themselves when they should.

There are many public corruption cases pending, under investigation, on trial or on appeal – so many that both journalists and the general public have long since reached the point of fatigue. Against the former president at least a dozen other separate sets of charges have been lodged. There are a variety of actors and motives at work to create this weariness. Mostly that’s the intended effect, one that makes Panamanians hate lawyers all the more.

If the courts and public can stay awake long enough for this trial to come to its conclusion, the proscutor in this matter, magistrate Harry Díaz, has asked for a 21-year prison sentence for the former president.

Systemic dysfunction

Panama operates under a constitution in which there is little local autonomy and a weak legislature, but in exchange for that powerlessness money gets spread around for politicians to distribute among the constituents or pocket, or to put the entire extended family on the payroll. By and large the political parties want to keep it that way, and by and large the Electoral Tribunal is an instrument to carry out those wishes on which the party bosses can agree.

Against that systemic inertia we have the aftermath of an administration that took all of the old abuses to new extremes, a divided legislature that can mainly only agree on an expansion and division of political spoils and a public that despite its weariness is likely to throw most incumbents out when next they get the chance in May. And then there is a compromised justice system in which nobody believes, fighting for its institutional existence or at least doing so in the eyes of some of its leading lights.

The constitution as a religion is gringo weirdness that Panama does not have. Much of the reason for that is the different presumptions and operation of two different families of legal systems. The Anglo-American Common Law based largely on history and precedent and the Civil Code that Panama has traces back through the Napoleonic Code to Roman Law and is far more interested in procedure and the parsing of words in statutes.

Were someone to get into “originalism” in Panama, our constitution has no particular author who brags about it or who is held up as some sort of hero. It derives from a draft submitted to those representantes elected in 1968 willing and able to participate in a convention put on by the military dictatorship. Omar Torrijos was restarting negotiations with the United States to unify Panama by eliminating the Canal Zone enclave and eventually removing the American military bases and putting the canal under Panamanian administration. For that he needed at least the fig leaf of civilian government. Not that he was ready to actually cede control. The representantes, and new legislators to come, got their 30 pieces of silver in the form of discretionary funds.

However, notwithstanding appointed presidents ultimate executive power rested with the military command and the ultimate law was not the courts but the G2 intelligence agency / secret police, then headed by a man to whom Torrijos referred as “my gangster,” one Manuel Antonio Noriega. Not even the Democratic Revolutionary Party that Torrijos founded makes a fetish about the original intent of those who drafted and promulgated the present constitution. Nito Cortizo, the PRD’s candidate for the 2019 election, although he is vague about it, says that a new constitution is a top priority if he becomes president.

Here the culture of law is about forms, procedures, magic words and bribery. Get into the coup by which Panama was separated from Colombia and there was ample bribery in that as well, if Panamanians want to look to history for founding principles. But the world has changed and little annoyances have been escalated to extremes, such that much of the story of the Varela administration is a tale of promises unkept for lack of money that owes largely to the bribery and embezzlement industries of post-invasion Pamama. Although there are many other reasons for it as well, Varela’s turn toward China as an economic partner has to do with lack of many other options in the wake of a particularly egregious looting of Panama’s public assets.

(Let us, however, not pretend that since the 1976 Buckley v Valeo US Supreme Court decision and those that followed upon it, including the Citizens United case, that bribery is not constitutionally embedded into the US system.)

What to do when Panama is destitute and pompous families have stashed the loot here, there and everywhere but largely abroad? It becomes a national security issue, a matter for G2. Except that, since the 1989 US invasion, it’s not called that anymore. Under the post-invasion reorganization they arrested many of the thugs, fired many people, transferred most of the remaining staff to other police units and renamed it the National Security Council. These are the successive civilian presidents’ gangsters, or if we are to be polite about it, intelligence agents. They operate under the auspices of the Ministry of the Presidency.

When he came into office, Varela brought a small team of lawyers and investigators into the National Security Council, led by attorney Rogelio Saltarín. Their task was to investigate the crimes of the Martinelli administration, including some committed through the National Security Council. In a series of reports in La Estrella it is alleged that many of the more than 1,000 criminal cases brought by the Public Ministry or referred by the prosecutors of that administration to the Supreme Court or to the Credentials Committee of the National Assembly came from Saltarín’s group.

(The Public Ministry prosecutors and ordinary courts have jurisdiction over civilians and former public officials now holding no office, but the legislature has jurisdiction over presidents, vice presidents, government ministers and magistrates, while the high court has jurisdiction over legislators. So did the financial data at the core of the impeachment case against then magistrate Alejandro Moncada Luna originally come from the investigative efforts of Saltarín’s team? If so, is there a journalist or news medium craven enough to raise the hue and cry over the fate of that guy, now out of prison and practicing law again, who once upon a time was Noriega’s man for shutting down the opposition press?)

In any case the legions of Martinelli lawyers – those who defend the former president and members of his family, those who defend former public officials of the Martinelli administration and those attorneys who worked in the Martinelli administration – are crying foul over the “road maps” that Saltarín reportedly gave to Attorney General Kenia Porcell.

Troubling questions

Because the G2 and National Security Council were and are secret police, there is no authoritative and comprehensive institutional history available to the general public or to lawyers. We don’t know how usual or unusual it might be for them to go to local banks for information about people or accounts. We don’t know if they can and do go to foreign intelligence agencies that monitor electronic banking transactions for information pertaining to Panamanian suspects. Certainly the “summary proof rule,” that no criminal investigation may be started against a person, without a complaint that has complete and competent proof that a crime was committed and that the person named committed it, would not apply to security council investigations. Does NSC involvement in criminal investigations violate the citizenry’s well founded expectation of impunity? Or is it a matter of ordinary citizens never having such an expectation, that NSC involvement in the Martinelli cases ruins the plans of only a relatively small caste of people?

Other specific concerns are raised:

– Did Saltarín just look at the crimes of Martinelistas, but neither those of prior administrations nor of Panameñistas for the slightly more than two years when Varela was Martinelli’s junior partner in government?

– Is there an implicit ban on National Security Council involvement in criminal investigations, born out of constitutional separations of powers that are suppose to prevent presidents from interfering in prosecution decisions? Do various parts of criminal procedure statutes give exclusive dibs to such investigations to the Public Ministry or the courts?

– Did the National Security Council conduct illegal searches of private records without benefit of a court order in the Saltarín investigation?

– Was Saltarín dishonest? Did he plant bogus proofs in order to frame Martinelli et al? Even were he scrupulously ethical about this, would a National Security Council that gets into politically charged criminal investigations sooner or later lead to such abuses?

– Former president Martinelli’s case deals with violations of the privacy of nominally 150 people, but actually thousands, by the National Security Council. Is it reasonable for a spy agency with such powers to do this for one president, without any concern about the same agency’s powers being turned against the person who ordered that in the following administration?

– Was it a National Security Council decision to deny to people not on Martinelli’s 150-member enemies list that their rights had also been violated by the council’s operatives in the previous administration? Was this a political or financial decision of the Varela administration, or of the council, or of Attorney General Porcell, to limit the lawsuits and private prosecutions?

The astroturf sprouts for Ricky Martinelli

The hue and cry was raised. Varela said that he hired Saltarín’s law firm and others to look into public corruption cases, but denied that they prepared the Public Ministry’s files in any cases. It might just be a semantic argument, but it could have legal consequences.

At the time that Varela brought in Saltarín, all those who might investigate crimes during the Martinelli administration – the attorney general, the comptroller general and the electoral prosecutor – were Martinelli appointees. None were making any serious investigations of the many allegations. Formally the attorney general and comptroller general are the legislature’s appointments to make, but Martinelli made a power grab and had a bought-off National Assembly majority to rubber stamp the appointments that he personally made. We still have Martinelli’s flagrantly partisan electoral prosecutor with us.

Most lawyers know that proofs tend to disappear, witnesses’ memories tend to fade and generally a case becomes harder to make with the passage of time. Plus, the statutes of limitations, which Martinelli and his allies in the legislature at the time shortened for themselves, go ticking away. So from a Varela perspective it was a matter of confronting the Martinelli legal slowdown in its early phases.

From just about all observers’ perspective, hiring Saltarín and the rest of that team to do what they did was unusual, perhaps unprecedented. (Get into the post-invasion Endara administration and there are arguable precedents, but then there was the US government taking and sealing the Panamanian government archives, doling out just a few for prosecutions of interest to Uncle Sam while protecting a lot of Noriega’s upscale collaborators. Precedents there were, perhaps, but not exactly on point.) So the catch-word “irregularities” has been deployed.

The former president also, through his media, has spun the tale of how while in Miami exile an attorney at Saltarín’s firm offered to quash the cases percolating in the Supreme Court for a million bucks. That would actually fit in with some long-standing practices in that institution, but this is not the ordinary defendant. Plus, it rests entirely on the word of one man, Ricardo Martinelli Berrocal, and only was raised after La Estrella’s reports of Saltarín’s role. The attorney in question has made no public statement about the allegation.

With the hooks of “irregularity,” Martinelli’s allegation, interpretations and extrapolations of the Code of Penal Procedure and speculation about where practices like the hiring of Saltarín might lead, the Martinelistas have gone on yet another political and legal offensive. It was all a partisan set-up, they say that the Saltarín contract proves.

A lot of lawyers have made a lot of money defending the Martinelli gang, and that of course divides the legal profession. But what the Colegio de Abogados is calling for is not the dismissal of charges against Ricardo Martinelli Berrocal but an investigation into Saltarín’s role.

Most civil society anti-corruption activists have taken a “wait and see” attitude about Saltarín and virtually none have taken the position that Martinelli ought to walk. Thus the hue and cry, often by pseudonmous social media trolls, against the anti-corruption Alianza Ciudadana Pro Justicia and its president, attorney and human rights activist Magaly Castillo. The Alianza, which brings together law reform, feminist, environmentalist, labor and community groups, is accused of being allied with Varela. Formally it’s not, although the leaders of many of the groups ended up voting for the current president in 2014 because they considered it imperative to beat Martinelli’s stand-in and considered the other perhaps viable alternative, the PRD’s Juan Carlos Navarro, to be unacceptable in light of their dealings with him as mayor of Panama City and because he was running on a “tough guy” platform of trying 12-year-old juvenile delinquents as adults. The Alianza has never made endorsements, nor have most of its component groups, and they have been critical of Varela on many issues throughout his presidency.

But you never know when judges or politicians might respond to screaming grass roots demands from the astroturf section.

http://www.thepanamanews.com/2018/10/panamanian-justice-1000-cases-and-an-astroturf-roar-of-protest/