A Summary of Lori Berenson's Trial
April 10- 26, 2001
Marie J. Manrique, a Human Rights activist, professional, and academic with years of experience in Latin America.
On April 10, 11, 17, 18, 19, 20, 24, 25, and 26, I attended the public hearings of US citizen Lori Berenson's civilian trial in the National Court of Terrorism, Delinquent Organizations, and Criminal Gangs. Although this specialized court was renamed and superficially reorganized after former President Fujimori fled Peru in November of last year, the same civilian court which tried accused 'terrorists' (armed and unarmed rebels) in questionable conditions for eight years of the Fujimori era still exists. The National Human Rights Coordinator, the largest coalition of Peruvian Human Rights organizations, in their 44-point Human Rights platform demands the eradication of these specialized courts. Despite the transitional government's laudable steps toward reestablishing democracy in Peru, multiple facets of the past remain and are still being used against Lori Berenson.
Lori was in the fourth week of her trial when I arrived. The three judges (Presiding Judge Marcos Ibazeta, Judge Elena Araujo, and Judge Carlos Manrique), the Fiscal The role of the Peruvian "fiscal" is most similar that of a prosecutor in the United States. (Carlos Navas), and the Procurador The role of the Peruvian "procurador" is most similar to that of a State Attorney in the United States. (Mario Cavagnaro), and the Defense Lawyer (José Sandoval) were just concluding the direct interrogation of the accused. In the following three weeks, they summoned a series of witnesses attempting to prove the accusations against her.
This summary is divided in the following sections:
I. The Anti-Terrorist Legislation and the Accusations Against Lori
II. The Court Officials Unequal Treatment of Witnesses
III. The Prosecutor's Star Witness: Pacífico Castrellón Santa María
IV. The Selective Importance of Witnesses'Prison Conditions
V. The Inconstant Use of the Court Cell
VI. The Witnesses related to the Acquisition of the La Molina House
VII. The Witnesses related to the San Borja Apartment and the Peruvian Congress
VIII. The Elimination of Incarcerated Witnesses Favorable to Lori
IX. The Experts'Uneven Terrain
X. The Campaign for National Human Rights Ombudsman
XI. The Attacks against the Defense Lawyer
XII. The Courtroom Environment
I. The anti-terrorist legislation and the accusations against Lori
On that day, 5 April 1992, I faced a dilemma: either Peru continued, pushed quickly ahead by terrorists and State apparatus passivity, to the abysm of anarchy and chaos or I took an active part to grant the State indispensable instruments to end this threat... The previous Judicial Branch was unable to apply justice to the criminal terrorists.... The proof is that in the ten years from 1981 to 1991 barely 575 people were condemned for the crime of terrorism. While during my Government in the eleven months between 1992 and 1993, the number of condemned for terrorism and treason against the Fatherland is 598. ...It was necessary to emit a severe anti-terrorist legislation...
-Former President Fujimori, Message to the Nation before the Congress, 28 July 1993.
The Procurador Cavagnaro has charged Lori with collaboration using the first decree issued after Fujimori's 5 April 1992 self-coup, Legal Decree 25475.
Exactly one month after his self-coup in which he dissolved the Congress, intervened in the Judicial branch, and installed an "Emergency Government for National Reconstruction," Fujimori issued the legislation with which Lori is being judged today.
Lori is accused of acts delimited in Article 4 of Legal Decree 25475, which define no less than a twenty-year sentence for acts of collaboration that favor criminal 'terrorist'activities or goals. She is accused of the following subpoints:
a) Supplying informative documents on people and patrimony, installations, public, private and any other buildings that specifically contribute or facilitate activities of terrorist elements or groups.
b) The transfer or utilization of any type of lodging for other means that are susceptible to being destined to hide people or serve as a deposit for arms, explosives, propaganda, foodstuffs, medicines, and other belongings related to terrorist groups and with their victims.
c) The organization of indoctrination classes or centers and instruction of terrorist groups that function under any cover.
d) Any form of economic action, aid or mediation done voluntarily with the finality of financing the activities of terrorist elements or groups.
Since its promulgation over nine years ago, the international Human Rights community has protested the blatant illegalities of the Anti-Terrorist legislation. As early as 1993, the Organization of American States (OAS) implored the Peruvian government to modify this notoriously imprecise legislation. The OAS 1993 Annual Report stated that this legislation "transgresses universally accepted principles of legality, due process, judicial guarantees and right to a defense."
In several decisions, the Inter-American Court has declared that the Peruvian Anti-Terrorist legislation violates legal guarantees established in the American Convention on Human Rights (i.e. Case of Carlos Molera Coca, 1999 Annual Report, Case #11,182 Report No. 49/00.) After the infamous May 1999 ruling in the case of four Chilean citizens that had their rights to due process violated under this legislation, Peru withdrew from the Court's jurisdiction in July 1999 (Cf. Case of Castillo Petruzzi and Others).
Despite the praiseworthy 'return'of Peru to the Inter-American system in December of last year, the interim government of President Valentín Paniagua has not rectified Peruvian laws to conform to the international agreements to which they are signatories.
II. The court officials' unequal treatment of witnesses
The witnesses will be asked... their relations with the accused, with the offended party and with any other person related to the case, and they will be invited to orderly express the occurrences that the instructive judge considers pertinent, aiming, by means of opportune questions and precise observations that the declaration be complete, that the contradictions are clarified and that the witness explains the affirmations or negations given.
-Article 138, Peruvian Criminal Procedures Code
The interrogation of all witnesses, according to this same code, obeys the same format. The Court President, the two other judges, the Fiscal, the Procurador and the Defense Lawyer, in this order, question each witness. Although the code does not specify what manner court officials should maintain during this procedure, professional standards include a respectful form and a logical line of questioning.
However many of the witnesses did not benefit from such professional treatment. The three judges, the Fiscal and the Procurador did not treat everyone uniformly in the question and answer session which allowed them to present their version of the interactions and activities with the accused. Witnesses that did not offer the information expected (i.e. not directly implicating Lori Berenson in criminal actions) were often verbally bullied, repeatedly forced to answer the same questions, or simply judicially reprimanded for their actions and statements.
During the time period that I observed, nine witnesses and six experts participated in the hearings.
III. The prosecutor's star witness: Pacifico Castrellon Santa Maria
...Sincere duly proved confessions can be considered to lower the confessor's punishment beneath the legal minimum.
-Article 136, Peruvian Criminal Procedures Code
Pacífico Castrellón Santa Maria was the first witness summoned. The Prosecutor's star witness is a Panamanian citizen who Lori met in Panama and with whom subsequently traveled to Peru. As a result of his January 2001 appeal of the Military Court's thirty- year sentence issued in January 1996, Castrellón recently has been granted a retrial in a civilian court. Although in this part I refer only to the preferential treatment afforded to Castrellón, his current status clearly contributed to his recent remarks in court. (N.B. Sections IV, V, and VIII: The Selective Importance of Witnesses'Prison Conditions, The Inconstant Use of the Court Cell, and The Elimination of Incarcerated Witnesses Favorable to Lori, respectively, contain more complete discussions of Castrellón's participation as a witness.)
For three sessions (April 10, 11 and 17, 2001), Castrellón answered questions regarding his interpretations of the events previous to his detention on the same day as Lori on 30 November 1995.
At various points during Castrellón's participation, Judge Ibazeta expressed certain sympathy with him. On 10 April 2001, as Judge Ibazeta solicited details about Castrellón's life before arriving in Peru in 1994, he stated, "We understand one another" thus initiating a noticeably changed tone to the interrogation that Lori Berenson endured for the three weeks previous.
At another point, Judge Ibazeta appeared to lead this witness. When Castrellón responded to Judge Ibazeta's questions on his Peruvian salary on 11 April 2001, Judge Ibazeta appeared to fill in Castrellón's story for him. He stated (rough translation) **For the clarity of the reader, I use quotation marks when making exact quotes. In the other cases where I cannot be completely sure of the exact wording, I do not use quotation marks but instead indicate (rough translation). : Of course [you had costs], you had the vehicle, the gasoline for the vehicle, the maintenance for the vehicle. Did Rincon [an accused and sentenced MRTA leader who also lived in the La Molina house] pay all this? At another point in the day, Judge Ibazeta told him (rough translation): You were trapped. You were forced. You appeared trapped. You presented yourself as husband and wife [one of the accusations against Lori Berenson].
During the court's interrogation of Castrellón, Judge Ibazeta made inappropriate statements which implied that he had already concluded that Lori Berenson had known that armed rebels lived on the fourth floor of the La Molina house. He stated (rough translation): Eighteen to nineteen people cannot go unnoticed by anyone. No one. They could not get by without being noticed. Is this correct?
At different points, Judge Ibazeta questioned Castrellón about what Lori thought. Referring to the inhabitants who stayed on the fourth floor, he asked: "That did not grab your attention?" using the Spanish plural 'your.'
Previous to Castrellón's interrogation, on 10 April 2001 Judge Ibazeta yelled at Lori for her use of "human shield.' Lori used this term to describe retrospectively the Police taking her to the La Molina house when they were clearly armed for a battle (Cf. Mark Mitchell, "Report on Trial of Lori Berenson- April 3-10"). However when Castrellón narrated a similar story of how the armed policemen also used him as a "shield" at the La Molina house, Judge Ibazeta let the matter pass.
Not only did Castrellón's story corroborate Lori Berenson's interpretation that the police aimed to use her as a shield, Judge Ibazeta's later unknowingly confirmed the danger that the she was subject to on the night of 30 November 1995. He told Castrellón that the Police must have changed their plans for entering the house with him since they were unsure how many people were in the house. It is important to remember, several hours after Castrellón was taken past the La Molina house and then escorted to the National Directorate Against Terrorism (DINCOTE), the Peruvian police knowingly directed Lori Berenson to this same house where she spent the night facedown on the floor of a police vehicle during the armed incursion.
Oddly Castrellón's use of the word "shield" was not included in the official court transcript read at the following session. When the Defense Lawyer Sandoval solicited its inclusion, the Procurador, Cavagnaro, argued that Castrellón had never used this word. Judge Ibazeta was forced to admit that Castrellón did indeed use the same word that Lori Berenson had previously employed.
In the following session (17 April 2001) Judge Araujo reinitiated the topic of the shield. Castrellón, responding to the details of his detention, explained that the conversation among the police present at the La Molina house indicated that something important was planned. When he was asked again, however, Castrellón denied being used as a shield. One can only hypothesize as to what motivated this quick change.
IV. The selective importance of witnesses' prison conditions
The incarcerated and sentenced have the right to occupy adequate establishments.
-Article 139.21, Political Constitution of Peru
Perhaps the most egregious example of the preferential treatment afforded to some witnesses involved Judge Ibazeta's seemingly coincidental and innocuous question about Castrellón's prison experiences. Castrellón explained that during the first six months of his imprisonment, he lived in a pavilion with other persons accused and convicted of MRTA membership. During this time, he stated, he had no problems. After this, now five years ago, he was moved to a minimum-security unit where there are no accused and sentenced MRTA members. However, he narrated, that the week before his appearance at Lori Berenson's trial, an unidentified incarcerated man approached him, told him 'to let go of Lori,'and threatened him with death if he did not. While all lawful persons deplore this sort of action, a few questions remain for this observer.
Why did Judge Ibazeta 'innocently' ask this particular question of Castrellón? Lori Berenson was never invited to narrate her prison conditions over these past five and a half years. No one solicited her opinion of the three years she spent locked in her cell twenty-three and a half hours a day in the UN Human Right Commission's condemned Yanamayo prison located over twelve thousand feet above sea level. No one asked about the months of solitary confinement in the 'more humane' Socabaya prison.
And perhaps more troublesome about Judge Ibazeta's inquiry, clearly requested for the court record as well as the numerous media present, is that this information was only solicited of selected currently incarcerated witnesses. Miguel Rincon was not asked about the living conditions in his cell six feet below ground in the Callao Naval Base. No one asked Nancy Gilvonio, detained at the same moment as Lori, about the mistreatment she has received during her three years in Yanamayo prison or her two violent 'transfers' in which officials did not notify her or let her take anything more than the clothing on her back. Apparently court officials were reluctant to inquire about her yearlong solitary confinement in a male prison, in direct violation of all international Human Right standards for incarcerated persons, that recently ended last October.
Quite obviously Judge Ibazeta and the other court officials were not concerned about the inhumane conditions in which Peruvian political prisoners survive, but rather quite interested in having the threat against the prosecution's star witness make the front page and be included in the court record.
V. The inconsistent use of the court cell
In all trials the accused will appear without ligatures nor imprisoning objects, only accompanied by the necessary police members to avoid an escape.
- Article 212, Peruvian Criminal Procedures Code
Unlike Lori Berenson's first court appearance behind bars on 20 March 2001, violating the presumption of innocence as well as conveniently facilitating pictures of the 'tamed beast' as one Peruvian magazine referred to her be flashed around the world in this setting, Castrellón was momentarily behind bars. Before his official participation in court, Judge Ibazeta summoned Castrellón into the jailed portion of the courtroom so he could apologize for the delay on 5 April 2001.
In January of this year, four months after Lori Berenson was granted a civilian trial, Castrellón solicited a judicial revision of his case. Not only did a Peruvian newspaper article on 29 March 2001 report the Military Fiscal's rejection to revise Castrellón's thirty-year sentence for membership in the MRTA; a military court judge offered a detailed explanation. He argued that the imposed sentence was fair and emitted at the end of a trial with conditions of a normal process. Notwithstanding the serious falsehood in the latter statement, he further indicated that there are serious charges against Castrellón that should be considered treason and not simple collaboration. The Supreme Military Justice Council would decide.
On 6 April 2001, coincidentally one day after Castrellón's brief appearance behind bars in court, the Supreme Council of Military Justice annulled his military court sentence and transferred his case to a civilian court. In his following appearance in court, on Tuesday, 10 April 2001, he was outside the court cell.
Yet when Miguel Rincon and Nancy Gilvonio, both accused and sentenced for leadership in the MRTA, appeared in court on 19 and 24 April 2001, respectively, they were both behind bars.
In spite of Defense Lawyer Sandoval's protest, Rincon responded to the Court's questions from behind bars. When Gilvonio appeared two court sessions later, she too appeared behind bars. When Sandoval again solicited that the witness be allowed outside the court cell, Judge Ibazeta declined. This time Judge Ibazeta argued that Castrellón was currently without sentence while Rincon and Gilvonio had sentences against them.
There are several obvious weaknesses in this argument. Lori Berenson, currently without sentence, not only was presented behind bars on the first day of the public hearing but court officials then argued that this was in keeping with Peruvian law. Furthermore, the Court presided by Judge Ibazeta never received official documentation that clarified Castrellón's change in penal status, as Sandoval rightly sustained. One must question the coincidence of the sudden military reversal on changing Castrellón's status immediately before he was to participate in Lori Berenson's public hearing.
Additionally, were this public hearing to have taken place in the Chorrillos maximum-security unit where Lori is currently imprisoned none of the witnesses would have appeared behind bars since the Chorrillos courtroom does not have a cell. Instead it seems that the witnesses who testified in Lori's favor during the investigative phase, Rincon and Gilvonio among them, were presented behind bars so as to subtly aid in discounting their version of events that indicate Lori Berenson is not guilty of the charges against her.
VI. The witnesses related to the acquisition of the La Molina house
Although the longest intervention of any one witness was Castrellón's conflicted and contradictory testimony, the testimonies of the two real estate agents and the landlord of the La Molina house generally coincided with Lori Berenson's.
The owner of the real estate agency that Castrellón used to rent the La Molina house, Roberto Sánchez, was the second witness to participate in the hearing. On 18 April 2001, he answered questions about the financial and logistical dealings with Castrellón in the acquisition of the La Molina house. When the court asked the reason Castrellón and the accused gave for renting the house, Sánchez explained (rough translation): I did not speak with Miss Berenson. He was an architect and devoted himself to painting. He did not mention what Miss Berenson did.
When Roberto Sánchez did not have the answers that Judge Ibazeta requested, he summoned Sánchez's brother Pedro who also worked in the real estate agency. Although the Judge is not legally prohibited from summoning witnesses, it is quite unusual and in this case appears more indicative of his desire to find someone who would corroborate his already established hypothesis regarding Lori Berenson.
When Pedro Sánchez arrived the following day, he described a third person that rode in the van with the accused and Castrellón to see the house. Lori has maintained that this other woman was most likely someone who showed properties. When Pedro Sánchez explained that this woman never entered the house, Judge Ibazeta's conjecture that this unidentified woman dictated the needed dimensions for a guerrilla training base was destroyed.
Nonetheless, he solicited that Berenson and Pedro Sánchez have a face-to-face confrontation on the conflicting points. Contrary to his brother's opinion, Pedro Sánchez maintained that Berenson had told him she was a journalist in November 1994. However, Berenson asserted that she could not have said this since she did think of writing articles until months after her arrival in Peru. The accused convincingly argued that this did not mean that Pedro Sánchez was lying, rather that the constant press attention given to her case during the past five and a half years could have produced the recollection that she had mentioned this six and a half years ago. Additionally, Berenson took the opportunity to pronounce that the many in Peru still believe that she had raised her fist in her forced January 1996 press conference due to the influence of the 'fourth power'' the press.
The landlord of the La Molina house, Carlos Huilca appeared in court on 18 April 2001. Contrary to the best efforts of Procurador Cavagnaro and Judge Ibazeta who had grilled the accused and Castrellón, respectively, about a 'fairly large'water tank built for the La Molina house, Huilca explained that he installed the water tank since this neighborhood experienced water shortages and his brother who is an engineer suggested the measurements.
Despite the conflicts with the accused's statements regarding the third floor bedrooms, Huilca's testimony generally reaffirmed Lori Berenson's version of the story. He confirmed that Castrellón was a painter and at one point learned from him that his paintings sold for thousands of dollars. Huilca noted that when he drove past the house, the third floor bedrooms always had the curtains closed. When the DINCOTE turned his house over to him two weeks after the 30 November 1995 incursion, various materials were strewn inside. He stated that the third floor windows, including Lori's bedroom, were covered with plywood. However when asked to clarify how he knew this, he responded, 'the police explained it to me.'
While the court officials were generally polite to these professional men, at one point it appeared as if Judge Ibazeta believed that Huilca should have remembered more than he did. During the second real estate agent's participation on the 19 April 2001, the Judge solicited that Huilca return to Court. However he desisted after another witness corroborated that Huilca could not possibly have seen the vehicle that Castrellón and Berenson used when they visited the house. After these three witnesses did not offer any evidence of possible criminal actions committed by Lori Berenson, the interrogations progressively became more hostile.
VII. The witnesses related to the San Borja apartment and the Peruvian Congress
Although only one of the doormen from Lori Berenson's San Borja apartment was requested as a witness, Judge Ibazeta once again summoned another-- the night doorman. Beyond the two men separately expressing that Lori Berenson was a normal tenant, one of these, Nelson Rojas, also was an official witness and signatory to the police search and report after the accused's 30 November 1995 detention.
Rojas explained that the Police arrived at the San Borja apartment building with the accused in November 1995 around mid-day. (N.B. It is known that the official police search of the San Borja house took place four days after her arrest on 3 December 1995.) According to the police list of seized items, there were two army green uniforms in the apartment. Rojas stated that these were found on a chair as they walked in the door. When asked if they were in a plastic bag, he responded that they initially seemed like two folded shirts on the chair. Until they were spread out on the floor for the police pictures, he continued, he recognized that there were two uniform pants and two uniform shirts.
The uniforms found are highly suspicious. Were Lori Berenson a member of a clandestine armed group, it seems highly unlikely that she would leave two uniforms in plain view in the apartment. Furthermore, Rojas admitted that he went to lunch for an hour while the Police searched the apartment.
In the following session on the 19 April 2001, the night doorman Epiphanio Morales appeared in court. He answered questions regarding Lori Berenson's habits and visitors. Although he stated that she had no visitors during his shift, Judge Araujo asked Morales to examine the pictures in the file to see if he recognized anyone. Apparently not to her liking, Judge Araujo chastised Morales for not looking closely enough at the pictures. She reprimanded (rough translation): You shake your head without even looking at the photo. Displeased, she solicited that the court record state that the witness looked quickly at the photos.
Apparently satisfied with the Judges'usurpation of the prosecutor's role, the Fiscal and Procurador did not question this witness.
Congressional functionary Luis Díaz appeared in court on 20 April 2001. Díaz remarked that he had worked in Congress for over fifteen years. Since 1993 until the present, he explained, as a press aide. He affirmed that he met Lori Berenson in the second floor press gallery during a Thursday plenary session in Congress. When it became clear that Díaz would not assert that Lori conducted unlawful or even suspicious acts while in Congress, the judges, Fiscal and Procurador attempted to ridicule and confuse him.
Despite the fact that all witnesses are placed under oath, court officials reminded him at least three times that he was under oath as if to imply that he was not telling the truth.
Díaz recounted that his professional relationship with Lori Berenson involved distributing the Congressional agenda and answering technical questions about Congressional sessions. At one point, Díaz invited her to a Congressional soccer tournament that ended in a typical Peruvian chicken party. Upon mentioning this, Judge Ibazeta interrogated him on what they discussed in the cab ride to the event, if he played soccer that day, and if Lori Berenson ate anything. Judge Araujo continued in this vein aggressively firing questions (rough translation): Did you invite your colleagues as well? Did Congresspeople play? It is known that at that time there was a parliamentarian team and in this period they were mentioned in the newspaper.
Judge Manrique persevered with this hostile interrogation. He asked Díaz if his favorite team played earlier in the afternoon, why did he invite her for 3:30 or 4:00 p.m. Díaz had previously explained that his favorite team lost in this eliminatory tournament.
Although the witness declared that Lori Berenson had only stayed for thirty minutes at this sporting event, Judge Ibazeta interrupted and began a new line of questions. He asked, 'Were you interested in the tournament or Lori Berenson''As if a concerted effort to unnerve the witness, not to mention the blatant sexism involved in these questions, the Fiscal Navas continued (rough translation): In a chicken party, one eats, there is alcohol, music... Díaz reiterated that he was not trying to woo Lori Berenson and that this was a professional relationship like those he had with other journalists in Congress.
Since no one appeared to want to let Díaz go without attempting to confuse and publicly humiliate him, the Procurador Cavagnaro continued. His second question to Díaz (rough translation): Are you usually nervous under pressure? Later when Díaz could not remember the date of the soccer championship and chicken party, Cavagnaro demanded (rough translation): You cannot remember or you do not want to remember?
The questions proceeded to the level of absurdity. After Díaz explained for the second time that the accused stayed thirty minutes at the event and had left in a cab from downtown Lima, the Procurador asked (rough translation): Why did she get in a cab? You left her alone in a place that is not very safe.
Although the judges, Fiscal and Procurador were the most aggressive during Díaz's questioning, there was clearly different treatment for those who maintained an attitude contrary to Lori Berenson versus those who declared in her favor. Additionally, the factors of social class clearly marked the interrogation of these witnesses.
VIII. The elimination of the incarcerated witnesses favorable to Lori
The declarations of the witnesses, those considered necessary or solicited by the Fiscal, Defender, or civil party, that do not attend the hearing and upon whose presence the Court does not insist, should be read and subject to debate.
-Article 253, Peruvian Criminal Procedures Code
Only two of the currently incarcerated witnesses (Castrellón and Miguel Rincon) who cooperated in the investigative phase fully participated in the public hearing. After the judges finished questioning Castrellón on 17 April 2001, the Fiscal Navas asked that the rest of the witnesses sentenced in the Military Court be cancelled. He argued (rough translation): Those who were sentenced in the Military Court... have changed what they said in the instructive phase and they do not have major importance as first thought like Pacífico Castrellón. We cease in summoning Lucinda Rojas, Nancy Gilvonio, Jaime Ramirez, Lucy López, JoséMego... This solicitude nearly cleared the way for only one incarcerated person's testimony to be heard, that of Castrellón who publicly disagreed with Lori Berenson.
Due to the Defense Lawyer's protest, Nancy Gilvonio, the woman detained with Lori, ultimately was not included in the list of discarded witnesses. Sandoval argued that since she would complement the accused's testimony, her participation was necessary. No court officials read the declarations from the witnesses who had participated in the instructive phase in the hearing at this time.
Although Miguel Rincon was summoned as a defense witness, when the court secretary announced his presence on Thursday, 19 April 2001, many in the courtroom were surprised. Since all the other witnesses up to that point were announced with anticipation, Rincon's sudden concurrence came without warning. However, this Thursday appearance of the 'Number two of the MRTA,' as Judge Ibazeta referred to him, was carefully planned. (N.B. The timing of Rincon's court participation will be discussed in Section X: The Campaign for National Human Rights Ombudsman.) As previously discussed, Rincon appeared behind bars during the interrogation.
On the first occasion possible, Rincon pronounced that he had never had the opportunity to consult privately with his lawyer, Francisco Díaz. In the Callao Naval Base 'prison,' he explained, a Marine Commander had always been present during his meetings via speaker phone with his lawyer. He solicited a consultation with his counsel. Judge Ibazeta granted ten minutes for this conference.
When the hearing resumed, Rincon was shown a police report on the items seized in the La Molina house. Denying that he had ever signed this official report, Rincon explained that the police escorted him to the La Molina house days after the armed incursion. He could not have signed something so detailed when the house had been unoccupied for days. He additionally replied that he did not know the author of the forty-page typed socio-economic document included in the judicial file.
Lori knew Rincon as a Peruvian engineer by a different name, Tizoc Ruiz, when he sublet part of the La Molina house in January 1995. Rincon not only confirmed the accused's version of events, but also contributed new elements. When he commenced his interpretation of the events before his detention and included a commentary related to Castrellón, Judge Ibazeta insisted that he focus on the facts related to the accused. He reprimanded (rough translation): We do not want value judgements. We want the facts about the house, your relation with Mrs. Berenson, communal life in the house, your personal relations, the house activities, and the violence.
Rincon, permitted to continue, narrated that Lori Berenson had a room on the third floor and did not enter the fourth floor where accused MRTA members lived. Attempting to implicate the accused in the house's clandestine activities, Judge Ibazeta asked why the third floor windows never appeared lit, as the landlord Huilca had previously claimed. Rincon responded (rough translation): It is absurd that there was never the appearance of light. It would be absurd to have this sort of cover.
Unsatisfied, Judge Ibazeta continued (rough translation): Is it absurd that Mrs. Berenson never saw light on the fourth floor? Unlike the fourth floor that was obstructed, Rincon explained, the third floor had no structural changes and had normal curtains that even allowed those inside to pull them back and see the police before the incursion on 30 November 1995.
Perhaps Rincon's most surprising declaration related to Lori Berenson was his narration of Castrellón's history. He claimed that Castrellón's statements since his detention in 1995 not only contradicted his principles and rejected his MRTA past, which Rincon admitted was within Castrellón's rights, but he did not have the 'right to involve people that do not have anything to do with the organization.' And that in his official declarations, Castrellón (rough translation): deliberately added things that could help him more with the police and the National Intelligence Service (SIN).
Although Article 132 of the Peruvian Criminal Code explicitly defines: 'The employment of promises, threats and other means of coercion, even if they are simply moral is strictly prohibited, 'Rincon declared that since Castrellón's detention in 1995, he had tried to save himself by inculpating others. (For further evidence of this, see April 2001 public statements by González Sandoval 'The Jackal,' former head of DINCOTE.)
After everyone had questioned Rincon, Judge Ibazeta again interrogated him. He asked the witness how he knew that Castrellón worked with the intelligence services to which Rincon replied (rough translation): I talked with him. I told him that if he did not want to assume responsibility, 'You do not implicate other people. ' He told me that they had offered him a five to ten year sentence. And days after that, when he got a twenty year sentence, he broke down. He was in bad shape. He said they had told him, 'They are going to give you ten years.' I told him, 'That is not real. There is no more Repentance Law.'There was not a trial, just some questions. Castrellón could not even stand up because they gave him 25 years. Later, there was the Benefit Law for the Reduction of Punishments. Oddly none of this portion of Rincon's testimony appears in the official court record.
Like Rincon, Nancy Gilvonio's 24 April 2001 court appearance was not previously announced. For factors previously explained, Gilvonio appeared in the court cell. Judge Ibazeta initiated by asking if she participated in the instructive phase of this trial. Gilvonio responded (rough translation): I refused because I was in Castro Castro, a men's prison, for one year. And now I am going to do the same. I have the right to a defense and I require the presence of my lawyer Javier Guzman. I thought these were different proceedings and the conditions were different from the dictatorship.
When Judge Ibazeta further inquired about Gilvonio's reasons for not participating, she clarified: 'I will only accept to declare in this trial with my lawyer and in different conditions. I do not think that these are adequate conditions because we are in a different moment from that in which those of us who were in the entire period of the dictatorship had to live.' Nancy Gilvonio's legitimate refusal to cooperate signified that only two of the multiple incarcerated witnesses' testimonies were included in the hearing. Since all of the fourth floor residents previously had testified that they did not see Lori Berenson until after they were detained, this was particularly lamentable.
IX. The expertss uneven terrain
There will be two experts. The instructive judge should name experts, where they exist that are found serving the State. Lacking professionals, recognized, honorable and competent persons in the topic will be named.
-Article 161, Peruvian Criminal Procedures Code
On 26 April 2001, six handwriting experts appeared in court to ascertain the nature of Lori's handwriting. As the Criminal Procedures Code defines, State functionaries are granted immediate expert status. In this case, two separate two-person teams for the State asserted the accused is author of every written piece of evidence included in the judicial file. Initially the Fiscal and Procurador relied on one team of handwriting experts from the Peruvian National Police (PNP). However when the Defense contracted a team of two independent experts, the prosecution solicited a second PNP-affiliated team.
The six experts debated whether Lori Berenson drew the innocuous Congressional seating plan, edited a socio-economic document, and had taken the notes in several notebooks. However, it often appeared that the accused was charged with responsibility for writing every handwritten document found in the La Molina house and her apartment, as well as documents that none of the incarcerated witnesses recognized as related to the La Molina location. The latter, of course, casts doubts on the verity of these documents.
For several hours, the court listened to multiple lectures on the similarities between Lori Berenson's handwriting and many of the samples. The technical aspects, however, tended to obfuscate the fact that the main document discussed was a typed forty-page text with scant handwritten editorial changes.
Predictably the two PNP teams asserted that Lori Berenson was the author of every document analyzed. The independent team declared that it was technically impossible to determine if the accused's handwriting was on the forty-page document. They maintained that editing marks and short phrases in the confined space of a margin are not conclusive. One of the civilian specialists further mentioned the inequality of access to the documents among the experts. The police experts, he declared, have complete access to the original documents at all times in addition to a fuller range of technical equipment. Although he expressed that it was logical that the Police would have this capability, he acknowledged the teams'unequal terrain.
X. The campaign for National Human Rights Ombudsman
A judge can also be challenged... always when an established motive exists that can doubt his impartiality.
-Article 31, Peruvian Criminal Procedures Code
Although the presiding Judge of this specialized court had known of his candidacy for National Human Rights Ombudsman months before Lori Berenson's case officially entered his court on 20 March 2001, Marcos Ibazeta knowingly decided to start the trial. According to the Article 161 of the Political Constitution of Peru, The National Human Rights Ombudsman position must be elected by two-thirds of the Congress. This highly coveted five-year position is one that few lawyers would reject. However, a more virtuous jurist might remove himself from anything that appears a conflict of interest. Judge Ibazeta did not.
Instead Judge Ibazeta has taken advantage of the national press at the trial, including the constant television cameras, in particular the one station that broadcasts all of the hearings. At several points in the hearing, it was clear that his comments and questions were not aimed to clarify points related to Lori Berenson and instead to conduct his campaign for Ombudsman.
It is important to note that in late March, the media suddenly returned to an old topic: 'terrorism'and the 'terrorists.' Not only did more newspaper articles, television shows, and public statements by former Fujimorists assert that the transitional government was weak against the 'terrorist outbreak,' the notorious maximum-security prison Yanamayo became another worrisome issue. (For a selection of these, Cf. La República, 'Mandatario descarta rebrote terrorista,' 9 April 2001; El Comercio, 'Hombres y mujeres compartían cárcel de Yanamayo,' 11 April 2001; Expreso, 'Desentierran material subversivo en Huánco,' 18 April 2001; El Correo, 'Senderistas desmienten atentado a base militar,' 18 April 2001.) Judge Ibazeta has clearly played on this and presented himself as the strong man against the 'terrorists.'
When he questioned Lori Berenson on 10 April 2001, he lectured her on the people caught in the crossfire of the 30 November 2001 incursion at the La Molina house. He pontificated (rough translation): You have discredited the Peruvian system. You have condemned the police many times. ... But you do not say anything about the hostages. And there were children.
Following the two-month Congressional recess for the national elections, the first plenary session in Congress was scheduled for Thursday night, 19 April 2001. With the vote for the new Ombudsman on the agenda, Judge Ibazeta spoke that morning on a radio show. Taking sides in the current debate as to whether the current Congress is legitimate because it is a product of last year's questionable elections, he asserted that the Congress should vote that night. Forty-five minutes before that day's hearing was scheduled to begin, Judge Ibazeta proudly exclaimed (rough translation except where quoted): This is the first time that a trial is broadcast on television and open to the public. 'The population is acting like a jury.' But we do not feel pressured by that. 'People can have their opinions' and we will have ours. It thus appeared acceptable to the Court's presiding judge that the trial is a media event.
Not coincidentally, that day Rincon appeared without previous notice. During the interrogation of Rincon, Judge Ibazeta asked about a famous kidnapping that happened years before Lori Berenson arrived in Peru. Yet perhaps more noteworthy was his lack of response to Rincon's denunciation of an extrajudicial execution of a combatant who had surrendered during the 30 November 1995 battle. Judge Ibazeta simply responded (rough translations): Take your denunciations to the corresponding channels. Judge Ibazeta would make the news that day.
Since there was not a plenary in Congress, the following Thursday would be his second chance at election. On Thursday, 26 April 2001, the handwriting experts were summoned to court. Coincidentally on this same day, the national news magazine Caretas included private court documents related to the handwriting in question and the accused's handwriting sample that Judge Ibazeta had solicited weeks earlier in the hearing. (This is discussed further in Section XII: The Courtroom Environment.) Although that day's events in court might have seemed dull to most, Judge Ibazeta initiated the reading out loud of the texts in question, included a extraordinary list of firearms supposedly written by Lori Berenson.
During the three-week period that I observed the public hearing, there were multiple examples of Judge Ibazeta's grandstanding.
XI. The attacks against the defense lawyer
In spite of the polemic nature of this hearing, minimal professional conduct demands that the difference among the opposing parties focus on procedural issues and the like. However, the prosecution team of Fiscal Navas and Procurador Cavagnaro several times personally attacked the Defense Lawyer Sandoval. Despite his best efforts to denounce this unprofessional conduct, oftentimes the judges did not admonish the prosecution for these attacks.
The unprofessional tone of the attacks became noticeable after Castrellón finished his testimony. On 18 April 2001, the Procurador Cavagnaro referred to the 1995 police reports. When Sandoval pronounced his disadvantageous position, not having copies of these, the Procurador argued (rough translation): Since the descriptive phase, he always says the same thing to make up for the deficiencies in the defense. We cannot cower to the civil party. It is important to remember that Cavagnaro was also the prosecutor in the Military Court case in 1995.
The following session, on 19 April 2001, the Fiscal Navas accused Sandoval of spending too much time on unimportant revisions to the official court transcript. He additionally argued that Sandoval (rough translation), aims to change the witnesses'responses. According to Article 159 of the Criminal Process Code, the witness has to be present when the official court transcript is read. While the latter is true, no witness had ever been present when his or her testimony was read as part of the official transcript. Apparently this only became a point of dispute when revisions unfavorable to the prosecution were solicited.
Challenging a particular revision that Sandoval noted the day earlier, the Fiscal Navas offered, and had accepted, two newspaper articles as evidence that Castrellón used the term 'commercial gallery' and not 'gallery' as the location he met the accused. Navas asserted (rough translation): Where did the journalists get this? From what they hear here. Not only does it appear that Navas had never noted any discrepancies between the press and the court's actual activities, he introduced hearsay as evidence to the court. Furthermore, his statements indicated his unawareness that every session of the hearing has been videotaped.
As a result of this attack on Sandoval's handling of the revisions, Judge Ibazeta formally permitted Lori Berenson to take notes while the official transcript is read. Beginning on 20 April 2001, four full weeks after her first appearance in court, Lori Berenson was given the use of a pen and paper.
When the fiscal questioned the Defense's handwriting experts, Fiscal Navas argued that if this team was unable to state if Lori Berenson's handwriting was on the forty- page socio-economic document it was the fault of the Defense Lawyer. As previously mentioned, this civilian team of experts stated this after a scientific analysis of the available elements. Fiscal Navas, however, appeared to argue that they would have come to the same conclusion as the other two expert teams were Sandoval better prepared. Not only did the prosecution challenge Sandoval's competency; Fiscal Navas conveniently argued that all the experts would have agreed were the conditions other.
Throughout the hearing, it seemed as if there were five prosecutors and one defender. The judges, as previously mentioned, often usurped or paved the way for the prosecution. The incessant and uncorrected attacks against the Defense Lawyer Sandoval only further demonstrated the unequal conditions in this trial.
XII. The courtroom environment
It is the authority of the President of the Correctional Court to conserve order in the court, dictate and execute the necessary measures.
-Article 217, Peruvian Criminal Procedures Code
While random comments, back of the room conversations, and people moving around are ordinary in most public settings, the courtroom where Lori Berenson's hearing takes place is a bit more active than most.
The court proceedings take place on a stage-like area approximately one-foot above the public seating. Following the established model in Peru, the three Judges face the accused. The Defense lawyer, on her right, faces the public while the prosecution team, on her left, sits with their backs to the public.
However, there are a few important details about this particular courtroom. There is a built-in stage, level with the area where the court proceedings occur, for the national and international press. Additional cameras are positioned in other parts of the room ready for the best angle no matter what occurs. The press area is separated from the Fiscal and Procurador's table by a waist-high glass barrier. The distance between these two is less than three feet and not even six inches from the location where the Procurador's assistant sits behind these two. Oddly, the prosecution is closer to the press than Lori Berenson is to her legal counsel. Several plain clothed security agents stand in strategic positions throughout the courtroom, including in the press area.
On several days, the public showed their animosity towards the accused by laughing at her statements, hissing when they disagreed, and at times shouting their opinions. On 10 April 2001, several in the audience laughed when she explained how the police that took her to the La Molina house on 30 November 1995 were impolite and aggressive. At one moment when she was speaking during her face-to-face confrontation with Castrellón, someone loudly stated, 'She lies.' Reminiscent of her forced press conference over five years ago, someone shouted, 'Treason against the Fatherland for Lori Berenson' as Rincon was leaving the courtroom on 19 April 2001.
After a few of these incidents, I made an effort to observe who was in the courtroom. One day, I saw a seated uniformed police agent hissing from his chair in the last row. A crowd of uniformed police agents often milled around the back of the courtroom. Additionally, the attendance of different small groups of random civilians, not journalists, fluctuated daily.
Two representatives of the Judicial Branch who briefly wore their identification tags one morning, arrived each day and sat in the second row. Although presumably there as professionals, they would often express judgments among themselves about the accused. Coincidentally the day after one of the newspapers published that there was a supposed MRTA attempt to 'rescue' Lori Berenson, on 26 April 2001 one of them told me that if Lori were her daughter she would grab her from the stage. When I informed her that Lori Berenson's parents are only interested in justice, she told me that I did not understand since I am not a mother.
On the same day that the previously mentioned photos from the judicial file appeared in Caretas, 26 April 2001, Mark Berenson noticed something strange happening between the press section and the Procurador's assistant. While the court officials'were focused on the handwriting experts who filled the room, the Procurador's assistant was showing parts of the judicial file to the press and letting the photographers take pictures. When I arrived, I saw her showing a photocopy of an identification card with Lori's picture on it and then parts of the forty-page socio-economic document. When I asked her what right she had to do this, she glared at me.
As Mark Berenson approached her, she closed the file so he could not see what she had been showing the national and international press, including photographers who took pictures. From my seat across the room, I made a hand gesture to signify that I would be watching her. Not less than five minutes later, a national journalist stood on a portable stool and with his zoom lens took yet another picture of the file that she was holding up for him.
When I stepped outside to find the head of security to complain, a journalist told me that it was a public trial, obviously ignoring the fact that the judicial file is not. Later as if an assurance to me, a US journalist remarked that the Procurador's assistant was not showing him anything related to the handwriting that was being discussed.
After the head of security appeared and I complained, the security agent who stood there when this occurred told me that the journalists were just looking over her shoulder. He continued to assert that when he stood near the Defense Lawyer he, too, sometimes could see the file. I responded that the Defense Lawyer was not showing him the file and that he was not a journalist. The head of security encouraged (rough translation): Tell your lawyer to do something about this. This suggestion indicated that he was unaware that Dr. Sandoval not only was not my lawyer, but also sat on the other side of the room with a blocked view due to the numerous handwriting experts present that day.
Over a half-hour later when the Defense Lawyer Sandoval finally had the chance to speak, he solicited that the judges prevent the press from taking pictures of the file. Judge Ibazeta replied (rough translation): Sometimes it is difficult to prevent the journalists from looking over the Procurador's shoulder. The disorder in the court would continue.
CONCLUSIONS Commenting on the government's plans for the four Chilean citizens sentenced by a Military Court in 1993, Judge Ibazeta was quoted in a Peruvian newspaper on 5 April 2001. He asserted: 'The Judicial Branch can intervene after the Military Court has annulled the questioned sentence and returned to 'folders' zero, as occurred with Lori Berenson, because if not we would be speaking of double judgment which the law does not permit.' Nonetheless, in the public hearing in the civilian court which he presides, 'evidence' from DINCOTE in December 1995 and the Military Trial in January 1996 has been used, as is continually used, against Lori Berenson. She is also currently charged with the same acts as those employed against her in that illegal trial over five years ago. Perhaps the only hope for Lori Berenson in this new show trial is Article 139.11 of the Peruvian Constitution that states, 'In the case of doubt or conflict of criminal laws, the law should be applied in favor of the defendant.' Yet after observing this trial, I have my doubts that Peruvian law will be respected.