Convicted of Corruption on Flimsy Evidence

By Mark Weisbrot 

Source: The Nation 

“Former Brazil President Lula faces sixth trial for corruption,” ran the headline from Reuters last week. For almost all consumers of the international media, that was all they needed to know. Combined with the reporting on his sentencing to more than nine years in prison on July 12, few would have any doubts as to his guilt.

Lula da Silva, one of the most popular presidents in Brazilian history, left office with an 80 percent approval rating. He had also been the strong front-runner for next year’s presidential election. Clearly his opponents—which include most of the major media in Brazil—would like to take him out of the game.

Is that what these prosecutions are all about? It’s worth looking at the evidence in the case for which Lula has been sentenced, especially since it is possible the prosecuting judge has led with the strongest of the six cases that have been arrayed against him.

Lula is accused of accepting a bribe, in the form of an apartment, from the Brazilian construction company OAS. The firm bought a building where Lula had been making payments on a cheap apartment (about $67,000) to the previous owner. According the court, OAS remodeled a much bigger apartment, worth about $843,000 when it was finished, and offered it to Lula for the price of his original apartment.

The first thing that smells funny is that almost all of the evidence against Lula is from the testimony of one confessed, convicted criminal, José Adelmário Pinheiro Filho. He is a former executive of OAS, which was a key actor in Brazil’s infamous Lava Jato (Car Wash) scandal. The scandal involved massive corruption at the state-owned oil company, in which bribes were paid by construction companies to receive contracts at inflated prices.

Pinheiro got more than 80 percent of his 16-year prison sentence eliminated in exchange for his testimony against Lula.

Of course there have been many trials in the United States and other countries in which, for example, a mafia or drug kingpin is convicted with the help of testimony from someone further down the food chain who cops a plea. But in such cases we normally expect to see some serious corroborating evidence that the defendant committed the crime as alleged by the criminal witness—perhaps documents, eyewitnesses, or physical evidence. In the case against Lula, one searches in vain in the 238-page sentencing document for such evidence (more on this below).

Moreover, under Brazil’s legal system, the presiding judge in this case, Sergio Moro, is also the prosecutor. Not only that, but he has been able to keep people in jail until they sing. The International Bar Association notes that “senior executives, more accustomed to private jets and five-star hotels, were held four to a spartan cell, 12 metres squared with an open squat toilet,” and notes that the CEO of a major construction company and his deputy signed collaboration agreements “after 105 days in police custody, and just five days after judges turned down another habeas corpus request.”

Pinheiro himself spent five months in pretrial detention. Brazil’s largest newspaper, Folha de S. Paulo, reported in June 2016 that Pinheiro’s negotiations for his plea bargain were blocked when he insisted that Lula did not have any role in the remodeling of the apartment, and according to the report, he told the same version of the story as Lula.

About the judge: Moro has been caught several times with his fingers on the scales of justice in the case of Lula. Last year he had to apologize to the Supreme Court for leaking to the media wiretapped conversations between Lula and his attorney, between Lula and Dilma, and between Lula’s wife and their children. He also created a huge media spectacle out of Lula’s detention for questioning—an unnecessary detention, since Lula had always volunteered to answer questions. More than 200 police were sent to his home, with advance leaks to the media, to create a televised drama of a former president looking like a criminal on all the major networks.

Back to the evidence: The documentary evidence consists of internal communications from OAS indicating that some people within the company thought the triplex apartment was being remodeled for Lula. Assuming these communications are genuine (we have no way of knowing), at most this indicates that OAS may have intended to give Lula a gift of a remodeled apartment at a price that was vastly lower than its market value.

But there is no evidence that Lula, or his wife, accepted the alleged gift, or made any effort to do so. On the contrary, there is very strong evidence that they did not. They never bought the apartment, and there are no documents indicating that they even intended or tried to buy it. And they never even stayed in the apartment, clearly contradicting the theory of the “crime,” which is that OAS “gave” the apartment to Lula but disguised its ownership.

It’s worth noting that the “money laundering” charge that formed part of the worldwide headlines, “Lula convicted of corruption and money laundering,” is just a corollary of the same accusation: Money is “laundered” by accepting an apartment instead of cash. (Congrats to Moro and friends for savvy media skills, once again; the headlines give the impression of large-scale and multiple criminal acts.)

Since the triplex apartment was not finished until 2014, some three years after Lula left office, Judge Moro had to reach a bit more to convict Lula of a crime. As in the United States, it is not a crime for a former public official in Brazil to receive gifts from corporations—look at Hillary Clinton’s millions of dollars from Wall Street. So the judge had to find that the “gift” of the apartment that Lula never stayed in was a delayed bribe associated with the Lava Jato scandal while Lula was president more than four years earlier. The only “evidence” for this connection comes from the testimony of—yes, the plea-bargaining Pinheiro.

When Brazil’s ostentatiously corrupt elite staged a parliamentary coup to get rid of elected President Dilma Rousseff last year, it was a deadly blow to the country’s democracy. The government’s own federal prosecutor concluded that the offense for which Dilma was impeached and ousted was not a crime. Indeed, it was something that past presidents and governors had done.

The Workers’ Party in power had been an affront to Brazil’s traditional elite, some of whom looked back fondly to the dictatorship of just three decades ago. Imagine the gall of the masses, electing a former metalworker, followed by a former guerrilla resistance fighter against the dictatorship, both of whom had endured political imprisonment for standing up for democracy and the interests of Brazil’s poor and working-class majority.

These people want to make sure that something like this, which is not supposed to happen under their brand of “democracy,” never happens again. They have severely undermined the rule of law and the separation of powers with the impeachment and removal of Dilma, and they are now coming after Lula. They are making a mockery of judicial independence. But they will never succeed in rolling the country back to the 20th century, before the economic and social advances of the PT era were achieved.

Mark Weisbrot is co-director of the Center for Economic and Policy Research in Washington, DC, and president of Just Foreign Policy. His latest book is Failed: What the “Experts” Got Wrong About the Global Economy (2015, Oxford University Press).

https://www.thenation.com/article/brazils-most-popular-leader-has-been-convicted-of-corruption-on-flimsy-evidence/