There really was not much for them to say as, in this unique landmark case of original jurisdiction that went to trial beginning on August 2, a majority of Supreme Court justices have ruled against the defense time and time again.
By the end of the thirtieth session on Monday, October 1, almost all the arguments used by the defendant’s lawyers lay in tatters.
By large majorities, the justices decisively refuted defense contentions one by one: that no public money was involved; that the money was off-the-books, but legal; that the money was to pay for campaign debts; that the river of money that flowed from banks through advertising firms to political parties did not involve bank fraud or corruption; that there was no money laundering; that politicians did not accept bribes (passive corruption) to vote with the government.
The Supreme Court’s scorched-earth rulings that have found almost all the defendants guilty of almost all the accusations have surprised the nation, puzzled defense lawyers and got some of the defendants squirming.
Yesterday, federal deputy Valdemar Costa Neto (PR party from São Paulo), who has been found guilty of passive corruption, conspiracy and money laundering in Penal Case 470, declared that he intends to appeal the rulings against him by the Brazilian Supreme Court at the Inter-American Court of Human Rights at the Organization of American States.
Costa Neto admits to committing a lesser breach of the law, an electoral crime with a statute of limitations that has long expired (using off-the-books money to pay campaign debts), but denies charges of corruption, money laundering or conspiracy. He says he has no intention of resigning from Congress and accuses the prosecution in the mensalão case of denying him due process (“direito de defesa cerceado”).
“I am not innocent. But I never made a living through money laundering, corruption or conspiracy. I have been condemned for the wrong crime and I will prove it when I am assured the right to appeal.”
For generations, Brazilian politicians have found safe haven in legislative bodies where they could serve or take a leave of absence to accept a position as a political appointee in the public service.
The system shielded them from prosecution in two ways. When a politician was threatened by the law he just returned to the legislature where his peers had to give the judiciary permission to prosecute (something that rarely happened).
When it did happen, the second line of defense was the right to special venue (“foro privilegiado”); that is, all political appointees and elected officials in Brazil can only be tried before the Supreme Court.
In the past, these cases simply never made it to the docket. However, recently, the Supreme Court has begun to try a few cases against politicians. So far, the number of them actually convicted can be counted on one hand and nobody has actually gone to jail.
As if all this was not sufficient, members of legislatures have yet another escape hatch. In 2005, right after the mensalão scandal became public, faced with expulsion from the Chamber of Deputies, Costa Neto resigned.
By resigning politicians avoid soiling their record and can run for office again in the next election; which is exactly what Costa Neto did: he was reelected in 2006 and 2010 (a member of the Chamber of Deputies who is expelled becomes ineligible to run for elective office for a fixed period of time).
Costa Neto and other politicians, who have long used the system to their advantage, have now discovered, much to their despair, that when a penal case does make it to the Supreme Court, which is perhaps the most surprising thing about the mensalão case and the reason it seems to mark a turning point in Brazilian jurisprudence, it can be a real game changer.
The fact is that at the highest court in the land another historical escape hatch in the culture of impunity frequently used to further game the system disappears: the endless appeals and legal maneuvering so characteristic of the law’s delay in Brazil. The irony is that Costa Neto et al now find themselves stuck in a dead end street: there is no way to appeal a decision by the Supreme Court.
But nobody is going to stop trying. “I will appeal my case to the highest court on the planet in order to guarantee my inalienable right to a defense that includes two distinct opportunities of judgment,” declared the deputy. Costa Neto went on to claim that the mensalão case is taking place without allowing the accused due process (“direito à ampla defesa”).
“It is not surprising that the trial has shown grave flaws due to innocent personal forgetfulness or supposedly serious mistakes by aides… For those reasons I will demand a reexamination of the penal ruling in order to guarantee due process,” declared Costa Neto as he explained why he will file an appeal at the OAS Court of Human Rights. “This is my inalienable right,” he declared.
As for maintaining his seat in the Chamber of Deputies, after being found guilty, Costa Neto said he would file a suit contesting the Supreme Court decision. “I remain a member of the Chamber of Deputies. I will seek an injunction at the Supreme Court. And I do intend to file an appeal at the OAS Human Rights Court.”