Week 12: A System Under Pressure
By Al Macina
The large screen amplified the dead manís one-eyed stare onto those in the courtroom. As the prosecution had witnesses verify it and other gruesome photographs in a homicide trial, the sound of horns and drums filtered in and interrupted the somber mood of the audience that included relatives of the victim. High school students has recently returned from summer break to the campus next to the courthouse; naturally I assumed band practice was in session. Instead, the beat was a call of support for the 18 mainly Mapuche indigenous defendants facing terrorism charges.
From the fourth floor window I could see the rally on the courthouse steps that included horns, drums and banners demanding freedom for Mapuche "political prisoners" of the state. Besides the 18 facing impending trial for terrorist threats and crimes, doubtless the signs also referred to several Mapuche chiefs that began serving long sentences as of December of 2003, also for terrorism.
This day began the trial preparation hearing in the case, the last step before trial. In the hearing, a magistrate judge serves to review and limit the evidence to later be seen by the three-judge panel at trial. I knew that tensions would be high at the trial of these 18 accused of operating a domestic terrorism organization, but I had not expected the uproar to begin at this stage. In response, the courthouse put many extra police on staff to maintain order as the present crowd that tried to fit into the small hearing room numbered over 50, not including the media crews.
The prosecution initially charged the group in December of 2003. Fifteen months and 5000 pages of investigatory documents later, four of the defendants remain in jail for cautionary measures, and the prosecutor sought to call 140 witnesses. However, because of weak proof, the defense questioned the merit of such a tremendous effort. Surely some Mapuche defendants have committed crimes during the centuries of conflict with the current occupiers of their ancestral homeland. But the prosecutor relied on facts such as the group having a website for their indigenous association on which to base terrorism charges that can add 5 and 10 years to the sentence for a base crime.
In this vein, the Chilean system permits those harmed by crime to involve themselves in the process against the accused. As I dug further into this issue, I discovered that these parties in this case, known as querellantes, can have a strong influence in the case. That the querellantes in this case happen to be politicians and wealthy landowners in the region raises suspicion as to the motivation behind the harsh charges. Certainly the defendants offer politics as the reason behind the case, but the defense attorneys concurred. Thus I expected the trial to test Chileís new criminal procedure system. Little did I know that the trial preparation stage would as well.
The first day the judge had to suspend the hearing when one of the 5 defense attorneys excused himself from the case. When the hearing resumed, the judge accepted the prosecutionís motion to present 44 unidentified witnesses testify in the case. In protest, the group of defendants, considering themselves "already convicted" by the future testimony of secret witnesses, renounced their defense attorneys. Once they agreed to be represented by their current public defenders, the defense sought to remove the judge as during the investigation last year she had approved the warrant that permitted the prosecution to clandestinely record 19 tapes of telephone conversations between a defense attorney and some of the defendants. The judge refused to recuse herself, and thus petition went forward to the court of appeal, where the judges denied the motion.
Finally, the defense sought to nullify the proceedings to that point so as to start anew. The judge refused this petition as well based on lack of compliance with filing formalities. In response, the defense sought an additional stay as two defendants, the sons of the Chiefs that were convicted of terrorism last year, were not present because they remained fugitives. In the end, the judge recused herself, and, pending any appeal, the case will be removed to another jurisdiction to be heard before another magistrate.
Interestingly enough, the new forum for the case will be a jurisdiction where the new criminal procedure has yet to be implemented. The new judge will take the case using the inquisitorial process, in which he or she will act in the dual role of investigator/prosecutor as well as final judge of guilt or innocence. The huge investigation must begin anew, pushing a final outcome far into the future. As my internship in Chile finished up, I felt I was witness to the success of the new system whereby the accused has rights equal to that of the state.