25852: Dailey (reply) re #25288: Professor Boswell , the People's Weekly World and Yvon Neptune (fwd)

[Bob Corbett <corbetre@webster.edu>]

From: Peter Dailey <phdailey@msn.com>



Haiti is in the midst of a human rights crisis that by now is many decades old. 
For a comprehensive and reliable account of the present situation listers can 
consult the Amnesty International or NCHR websites. No one who does so will 
question the gravity of the situation, or dispute that of the hundreds of 
violations alleged, few are more trivial than the deprivation of various 
procedural safeguards that Professor Boswell and the People's Weekly World 
assert Yvon Neptune has suffered.

There is nothing trivial about the safeguards themselves. The requirement that 
a person detained be brought before a magistrate within 48 hours is one attempt 
to safeguard against the tendency in past for people to "disappear" on being 
taken into police custody. The common law doctrine of habeas corpus addresses 
some of the same concerns- if the prisoner has been mistreated this may become 
evident when he is produced and a supposedly neutral judicial officer will be 
able to dismiss charges based on allegations that do not stand up to the light 
of day.

Is Professor Boswell aware of any authority for the notion that failure to 
bring a person before a magistrate within 48 hours will result in automatic 
dismissal? I'm not, and were it otherwise it would mean the immediate release 
of the majority of the prison population, regardless of the offense charged. In 
Neptune's case there would be even less justication for releasing him, since 
unlike most other detainees it is hard to credibly maintain that he has been 
prejudiced. He has known from the beginning the nature of the allegations that 
made against him, which have been given extensive coverage in the press, as has 
his physical condition and the circumstances of his confinement.

Neptune's defenders, the Kurzban-Concannon camp in particular, have repeatedly 
asserted that Neptune's hunger strike was intended to compel the government to 
give him the opportunity of clearing himself of all charges. However, Neptune 
himself has demanded something very different. He wants all charges dropped and 
some kind of formal exoneration. He is not interested in bail and refused what 
in effect was an offer of exile in the Dominican Republic- a decision he may 
have come to rue. And most of all, he is not interested in any sort of trial, 
for excellent reasons, regardless of the auspices under which it is carried 
out. If anyone is at all confused about this, I would refer them to Neptune's 
Statement from Jail, as translated by Guy Antoine and others. He has resisted 
all attempts to take him before a tribunal, the latest instance occuring when 
he sank his teeth into the arm of a policewoman. (A photo of the wound that 
resulted is on the Haiti Democracy Project website.) Neptune has lied about 
being tortured, lied about attempts to kill him while in jail, and after 100 
days is lying about being on a hunger strike, although I'm not sure how one 
describe his present course of conduct.

The fact that one is a liar or is seeking to manipulate the system fortunately 
does not mean that one forfeits one's constitutional rights. The principal 
argument that Boswell and others advance is that charges should be dropped 
because Neptune has been held for over a year without being formally "charged." 
I don't know a lot about Haitian law, but I suspect that Professor Boswell 
knows even less. The procedural safeguards that Boswell complains Neptune was 
deprived of were not generally available during the Aristide years. I suspect 
that the most benign interpretation that could be made of Aristide's celebrated 
"Zero Tolerance" policy was that police did not have to secure a warrant or go 
before a judge when dealing with criminals and bandits. And even when persons 
arrested did see a magistrate, these judicial officers were almost always 
pliant enough to find the evidence sufficient, no matter how feeble or 
ludicrous the charges.  Coup plotting was the general catchall. This justified 
the jailing of Rosamond Jean, leader of the defrauded depositors in the Coop 
scandal, Carline Simon, and a long list of others. In the immediate aftermath 
of the May, 2000 elections this was used to justify the rounding up of 38 
opposition politicians, some of whom were jailed for over three months.

No one would seriously maintain that the standard of justice during the 
Aristide years provides a sanction for the egregious violations occurring 
today. However, the Raboteau prosecution has been held out as a landmark in the 
fight against impunity and vindication of human rights in Haiti, and a paradigm 
of how these prosecutions should be conducted. There is an article on Brian 
Concannon's webpage by a Harvard Law School student that provides a useful 
account for those unfamiliar with this episode. The Raboteau massacre- in which 
it was eventually determined that eight people had been killed- took place in 
April, 1994, and the defendants spent years in jail before the juge 
d'instruction finally issued an ordonnace- a determination that there were 
sufficient grounds to prosecute- in 1999. Here is what the article says: 
"Arrestees were languishing in jail waiting for a trial that might never 
happen. Concannon, a human rights lawyer, knew that prolonged pretrial 
detention could violate the human rights of defendants, especially when jail 
conditions were harsh. But when Concannon weighed the prolonged detention of 
arrestees against the possibility of not going to trial because suspects had 
never been arrested, Concannon decided that not going to trial was a worse 
evil." Of course at the time Brian was prosecuting human rights violators 
rather than defending them.

There are a number of reasons why the Latortue government would have been 
well-advised not to have launched this prosecution in the first place. It has 
greatly complicated relations with the international community which for 
political reasons, as in 1994, would like to see what amounts to a general 
amnesty. (Of course, the U.S. is quite content to have drug dealing, corruption 
etc. cases in various stages of preparation hanging over Aristide's head.) 
Haiti was right to reject this pressure in 1994 and is right to reject it now.) 
The Latortue government's attempts to explain the case against Neptune and the 
operation of Haitian criminal procedure have displayed the same disastrous 
incompetence evident in so many other areas. More to the point, the present 
government has shown little sign that it is willing to apply the law in an 
evenhanded manner, to prosecute violations by government supporters, or agents 
of the government, or to carry out ongoing investigations in the murder of Jean 
Dominique and others during the Lavalas years. It is easy to understand why so 
many persons regard the Neptune prosecution as politically motivated, 
vindictive, and an example of victor's justice. However, the one argument 
against prosecution that it is impossible for anyone to maintain in good faith 
who is even moderately well informed is that there is insufficient 
incriminating evidence against Neptune to justify the current judicial 
investigation.

Peter Dailey