Justice Dodged (Part I followed by Part II)

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Justice Dodged (Part I followed by Part II)

Post by admin » Mon Jun 20, 2005 3:12 pm

Boston Haitian Reporter
Justice Dodged
September 2004
By Brian Concannon

Before dawn on August 17, a jury in Port-au-Prince found notorious Haitian rights abusers Jackson Joanis and Jodel Chamblain not guilty of the 1993 murder of businessman Antoine Izmery. The jury probably made the right decision- the prosecutor and other judicial officials had made sure that they did not see or hear enough evidence to convict. The trial was a slap in the face to anyone who cares about the rule of law- Amnesty International called it “an insult to justice,” the Washington Post “sham justice,” the New York Times an “ugly example of a Haitian government that shields its political gangster allies from justice.”

The brazenness of the judicial authorities, who did not even pretend to take the trial seriously, is matched
only by the gunmen who murdered Antoine Izmery. Haiti's September 11 tragedy came in 1993, when Izmery, a prominent supporter of President Aristide, organized a mass at Port-au-Prince's Sacre Coeur church to commemorate the anniversary of the 1988 St. Jean Bosco Massacre (also on September 11). Soldiers and paramilitaries marched into the church packed with democracy supporters, Haitian and international journalists, the diplomatic corps in Haiti and UN/OAS Human Rights Observers. They dragged Izmery outside and shot him on the sidewalk.

Both Joanis and Chamblain were convicted, in absentia for Izmery's murder in 1995. Jackson Joanis had been a Captain in the Haitian Army, and head of the “Anti-Gang” police, the de facto period's most feared army unit. Joanis fled to Miami, but he was arrested and deported to Haiti in 2001, because of his record of political persecution. He has been formally charged in the 1994 assassination of Fr. Jean-Marie Vincent, and was identified as a major human rights
abuser in reports by Amnesty International, the United Nations, the Organization of American States and the U.S. Government.

Jodel Chamblain was the co-founder and chief of operations of FRAPH (Front Révolutionnaire pour l'Avancement et le Progrès Haitiens), Haiti's most notorious death squad. He was convicted in absentia for murder in the 2000 Raboteau Massacre trial. After the 1994 return of Haiti's constitutional government, Chamblain fled to the Dominican Republic, where he trained with other paramilitaries and former soldiers in exile. He returned to Haiti in February as a leader of the insurgency that attacked towns in Haiti's north, killing police officers, destroying prisons and terrorizing the civilian population.

Although Chamblain turned himself in to police in April, his colleagues in the insurgency control many areas of Haiti, and operate in every major city. Both the insurgency and the allied de facto authorities have engaged in widespread attacks against those perceived t
o support Haiti's constitutional government, including hundreds of killings, as well as illegal political arrests and detentions, and rapes, beatings and other torture. They have attacked the justice system as well- the judge who convicted Chamblain in the Raboteau case was beaten into the hospital by men claiming to be retaliating for Chamblain's Raboteau conviction. In April, Chamblain boasted to reporters that he was acting as a "judge" in Cap Haitian. In July, ANAMAH, the Haitian national judges' association, issued a press release deploring the increase in the politicization of justice and illegal arrests over the previous four months. Later that month, when a judge in Les Cayes ordered the release of political prisoner Jacques Mathelier, the authorities transferred the prisoner to Port-au-Prince, where he remains incarcerated.

When Chamblain turned himself in, Minister of Justice Bernard Gousse declared that Chamblain "had nothing to hide," and later speculated that he would pardon him if he
were convicted. A month earlier, Prime Minister Gerard Latortue praised Chamblain and his insurgency colleagues as "Freedom Fighters."

Chamblain and Joanis did have the right to a new trial under Haitian law, because they had been convicted in absentia. The law requires the case to be assigned to an "Investigating Magistrate" (Juge D'Instruction) who reviews the relevant evidence, interrogates the suspects and any potential witnesses, and issues a formal charging document called the ordonnance. The Prosecutor (Commissaire du Gouvernement) is then entrusted with preparing the case and presenting it to the jury, including contacting witnesses and ensuring their presence at trial, and presenting all documentary evidence.

In this case, no investigating magistrate questioned either Joanis or Chamblain, nor did anyone look for additional evidence. Officials simply re-filed the ordonnance from the first trial nine years ago. They did not add any additional evidence to the case file, not even the
section on the Izmery killing from Haiti's Truth and Justice Commission report. People and organizations known to possess relevant information were not contacted for the investigation.

The Prosecutor made almost no effort to obtain witness testimony. Many witnesses known to have information were not contacted at all. Notices were sent to only eight people, at least one of whom had passed away, and these were sent on August 13, the last weekday before trial. Only one of the witnesses appeared, and he had not been at the church the day of the assassination, and had no evidence to give the court.

The trial was not announced until three business days before the start date. This secrecy violated the law's notice requirements, and provided the defendants with a cause for appeal had they been found guilty. The illegally short notice also limited monitoring by national and international human rights groups.

The Izmery trial began on a Monday afternoon continued into the night and ended jus
t before dawn. The prosecutor presented no witnesses and no documents. He was obviously unfamiliar with the file, and made no attempt to present a convincing argument to the jury. Many observers and journalists left the trial in the early evening, afraid of downtown Port-au-Prince after dark. The jury stayed up all night until they issued their verdict.

Last month's sham trial was the first step in clearing Chamblain and Joanis. Both remain in prison awaiting trials on their other charges. Chamblain's lawyer predicted a new trial on his in absentia Raboteau conviction within a month. Joanis' trial for the killing of Fr. Jean-Marie Vincent has not been announced.

Haiti's interim officials will continue their program to whitewash the criminal records of Chamblain and Joanis as long as they can get away with it. There was no international outcry when the Minister of Justice announced that he might pardon Chamblain, or that Chamblain had nothing to hide. Few outside of the CARICOM countr
ies protested the Prime Minister's “Freedom Fighters” speech (the OAS Ambassador stood by Latortue on the podium).

There was a wide condemnation of the Izmery trial, which may signal that the interim government has gone too far. Even the U.S. State Department was “deeply concerned” over the acquittal, and “deeply regret[s] the haste with which their cases were brought to retrial.” But on July 17, the State Department announced that the illegal imprisonment of Prime Minister Yvon Neptune “is a source of some concern which we've raised with the government of Haiti.” Three days later the U.S. pledged $230 million to the Haitian government, six weeks later Neptune has still not seen the judge who issued his arrest warrant. U.S. “concern” over the Izmery case did not delay a $9 million grant to the Haitian government last week.

Chamblain's retrial in the Raboteau Massacre case will provide a test of the international community's commitment to justice in Haiti. Judicial officials may disguise t
heir lack of effort better next time, but the international community should not accept the results unless the trial meets the standards of fairness and technical competence set by the previous Raboteau trial. This includes a thorough preparation by the investigating magistrate, an aggressive prosecution by the prosecutor and security conditions that allow victims and witnesses to testify without fear of reprisals.

If Chamblain's Raboteau retrial does not meet these standards, the international community must respond decisively, and with actions rather than just words. Right now, the donor community should put Haitian officials on notice that they are watching, and that they consider Chamblain's trial a test of the Latortue government's commitment to building upon a foundation of justice. If a trial is set without adequate pre-trial preparation, or without establishing a climate of security for witnesses and victims, donors and human rights groups should declare the proceedings unacceptable, and ins
ist they be postponed until there is adequate preparation. If the authorities hold an inadequate trial anyway, all international assistance to the government should be stopped immediately.

Thousands of Haitians and many foreigners struggled and sacrificed for justice in Haiti from Izmery's assassination in 1993 up through last month. Their collective effort did not create a perfect system, but it did show the possibilities of justice in trials such as the Carrefour Feuilles and Raboteau prosecutions. Last month's Izmery trial started turning back the clock, away from this progress to a time when guns meant more than laws, and trials were theater pieces that confirmed a result pre-ordained by the powerful. The clock will continue to go backwards, until we stop it.

Brian Concannon Jr. directs the Institute for Justice and Democracy in Haiti ( www.ijdh.org ). He lived in Haiti from 1995 to 2004, working for the Bureau des Avocats Internationaux, a group of lawyers established
by Haiti's constitutional governments to help human rights victims pursue their cases in Haitian courts.

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Post by admin » Mon Jun 20, 2005 3:15 pm

Boston Haitian Reporter
Justice Dodged, Part II
Brian Concannon Jr.

June 2005

On April 21, 2005 the Cour de Cassation, Haiti's highest court, threw out the convictions of sixteen people found guilty by a jury in the Raboteau massacre case, Haiti's most celebrated trial ever. The decision of the Cour de Cassation is a remarkable document because it not only reverses a famous, and closely watched trial, but it also invalidates an entire article of the 1987 Constitution, on the basis of a technicality that the defendants had never objected to, in a document that several courts, including the Cour de Cassation itself, had already approved, and in a case that the Court had sat on for over four years.

Twenty-two defendants were tried by a jury in the Raboteau case over six weeks, from September 29 to November 9, 2000. The original determination
that the case should have been sent to a jury was made by a trial court judge in 1999, and was confirmed by both the Court of Appeals of Gonaives and the Cour de Cassation itself in 2000. That determination was never contested by the defendants' lawyers at trial or in any of their three appeals.

The Raboteau trial was the most observed trial in Haitian history. Haitian human rights groups, the UN Civilian Mission in Haiti and journalists observed every day of trial. Most of it was broadcast over national television and radio. The defendants were all represented, by a total of ten lawyers. The defense lawyers adopted a highly aggressive strategy, making numerous challenges throughout the trial. They challenged the selection of jurors, the evidence, the plaintiffs, the jury instructions and the hours of trial. The lawyers did not, however, take exception to the decision to send the case to the jury, and the issue was never mentioned by any of the national or international observers.

On
November 8, 2000, the jury convicted sixteen of the defendants. The United Nations called the trial "a landmark in the fight against impunity." Human rights groups in Haiti and throughout the world called it a great victory for justice, because it was fair to defendants and victims alike. The Haitian justice system rightfully took pride in having accomplished one of the most important human rights trials in the Americas over the last twenty years.

Those convicted in the trial appealed it immediately, although not because they objected to a jury- they did not mention it. The victims' lawyer responded to the appeal, and the matter was placed in the Cour de Cassation's hands in early 2001. Everyone expected the Court to decide the appeal quickly, within three months at the most, because the appeal concerned people who were in jail. By the middle of 2001, when there had been no decision, the victims and their lawyer became worried, and urged the Court to act promptly. The Court did not decide th
e case in all of 2001, nor all of 2002, or 2003. The victims became afraid that the Court was keeping the case open until there was a change of government that would allow an illegal dismissal. So they petitioned the Court, they held press conferences, they pressured the Minister of Justice, they even protested outside of the Palace of Justice. But nothing happened.

By March 1, 2004, when the head of the Cour de Cassation was installed as the interim President, none of the sixteen people convicted at the Raboteau jury trial were in prison. Most had escaped, some had either served their time or died in prison. Despite their absence, and despite Haiti's turmoil, the Cour de Cassation now found time to review the case.

The Cour de Cassation claimed that the case should not have been tried by a jury because a 1928 law requires a trial without jury for all cases of délits connexes (multiple but related crimes). The judge who decided the case should go to a jury back in 1999 knew about the 1
928 law, but said that it conflicted with Article 50 of the 1987 Constitution that requires a jury trial for all crimes de sang (literally "blood felonies," in Haitian practice murder, parricide, infanticide and poisoning). In Haiti, as in the U.S., if the Constitution conflicts with an ordinary law, the Constitution takes precedence.

The Court of Appeals, and the Cour de Cassation both examined the document containing this decision in 1999 and 2000. Both approved the document, neither mentioned that the jury issue was even a problem.

After the trial, and a four and one-half year wait, the Cour de Cassation found that the Constitution did not apply, because it "did not include a definition of crimes de sang [or] explain what it meant by crimes de sang." The Court did not try to claim that the massacre was not a crime de sang under Haitian law or practice, only that Article 50 does not define the term.

The Court does not explain why the failure to define crimes de sang makes Article 5
0 inapplicable, even though the decision appears to void an entire article of the Constitution. The Court does not try to explain what could be a crime de sang if this case of multiple killings and aggravated assaults is not.

The lack of a definition of crime de sang is not unusual. Haiti's Constitution, like the most constitutions, including the U.S. Constitution, does not define such terms, leaving it to the courts and the legislature to work out the details. The Constitution does not define "freedom of association", "private property" or many other terms that can be subject to interpretation, but the Court has not determined that these rights do not exist.

If the Cour de Cassation wanted guidance on the meaning of crime de sang, it could have looked to the very 1928 law that required a judge trial for complex cases. That law required a jury for a set of serious crimes- murder, parricide, infanticide and poisoning. These four crimes are treated together in the Penal Code, all carry t
he same penalty, and are in fact referred to in Haitian legal usage as crime de sang. The trial court judge, using Haitian practice, determined that the voluntary homicides charged in the Raboteau Massacre case were crimes de sang, and in its 2000 reviews of the ordonnance, the Cour de Cassation never questioned this finding.

Those wondering why the Cour de Cassation made such a curious decision on a case in which everyone who could benefit was already free need only to look at who celebrated the decision. Immediately after the decision became public, the lawyer of Louis Jodel Chamblain, the co-founder of the FRAPH death squad that terrorized Haiti in 1993 and 1994, and a leader of the insurgency that attacked from the Dominican Republic in 2004, announced that his client would be free soon. In fact, a judge in Gonaives has already written the liberation order, although it has not been implemented.

The problem with Chamblain benefiting from Cour de Cassation's decision is that it never conce
rned him. Chamblain was not tried in the original Raboteau jury trial, he was convicted later in an in absentia trial of the same case with no jury. The Court's decision, by its own terms, applies only to the jury trial for the Raboteau massacre, not to the in absentia trial. The in absentia trial is not even mentioned in the April 21 decision.

The Raboteau decision is not the first time Chamblain has benefited from a curious legal decision. Last August, the interim government held a retrial in the 1993 killing of Antoine Izmery, Chamblain's other criminal conviction. The prosecution did not present a single witness or any new evidence, and the jury found Chamblain not guilty. Amnesty International called last August's trial "an insult to justice," the Washington Post "sham justice," the New York Times an "ugly example of a Haitian government that shields its political gangster allies from justice." Even the U.S. State Department was "deeply concerned" over the acquittal, and "deeply regret[
s] the haste with which their cases were brought to retrial."

In a September 2004 column about Chamblain's acquittal in the Izmery trial, titled "Justice Dodged," I anticipated that an attack on the Raboteau case was next. I was wrong about how it would be done, I predicted there would be a re-trial, not a dismissal by the Cour de Cassation. I called the retrial "a test of the international community's commitment to justice in Haiti," and said that if it does not meet the same high standards of the original Raboteau trial, "the international community must respond decisively, and with actions rather than just words."

The international community has not responded, even with words, to this latest landmark in the systematic dismantling of Haiti's justice system, the elimination of the progress for which so many struggled during nine years of democracy. The conclusion from last September's column, is now even more true: the "Izmery trial started turning back the clock, away from this progr
ess to a time when guns meant more than laws, and trials were theater pieces that confirmed a result pre-ordained by the powerful. The clock will continue to go backwards, until we stop it."

Brian Concannon Jr. directs the Institute for Justice and Democracy in Haiti (www.ijdh.org). He lived in Haiti from 1995 to 2004, working for the Bureau des Avocats Internationaux, which represented the victims of the Raboteau Massacre.

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