25413: Brianhaiti: (comment) Fwd: Justice Dodged, Part II: Boston Haitian Reporter

[Bob Corbett <corbetre@webster.edu>]

From: Brianhaiti@aol.com


Justice Dodged, Part II
Brian Concannon Jr.
Boston Haitian Reporter
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 Gonaïves 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 the 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 1928 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 50 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 the 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 Gonaïves 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 concerned 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 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, which represented the victims of the Raboteau
Massacre.


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