Report on trial of Lori Berenson
April 3 -10
By Mark Mitchell, National Lawyers Guild, Los Angeles Chapter
I attended five days (April 3, 4, 5, 9, 10, 2001) ofthe civil trial of Lori Berenson (Lori) before the Terrorism Court in Lima, Peru as a legal observer on behalf of the National Lawyers Guild. Lori was arrested on November 30, 1995 by the Peruvian Anti-Terrorism Police (DINCOTE) and was charged with treason and with being a leader of the Tupac Amaru Revolutionary Movement (MRTA). She was convicted by a secret military tribunal in a proceeding in which she was afforded no right to privately consult with her defense attorney and in which she was not allowed to examine the evidence and witnesses against her. She was quickly sentenced to life in prison.
After almost five years in harsh Peruvian prisons, Peru's Supreme Council of Military Justice overturned Lori's conviction and sentence on the grounds that there was not sufficient evidence that she had been a leader of the MRTA. Subsequently Lori was accused of the lesser charge of collaboration which carries a sentence of 20 years in prison and a new civil trial was set.
The civil trial in Peru's Terrorism Courts began on March 20, 2001. The trial is televised live every day throughout Peru. The proceeding is presided over by Chief Judge Marcos Ibazeta, along with Judge Eliana Elder Araujo and Judge Carlos Augusto Manrique. Ibazeta is one of the finalists for the prestigious position of Ombudsman of the Peruvian government. Perhaps because of this he has used the platform of Lori's televised trial to grandstand on camera and to berate and inappropriately accuse Lori. Judge Araujo is reported to be a close personal friend of Ibazeta and has spent her career as a judge in Labor Courts; she has only recently begun serving in terrorism trials such as Lori's. Judge Manrique is a Fujimori/Montesinos "PROVISIONAL" appointee to the bench. There is also a Superior Court prosecutor, Carlos Navas and a Federal Prosectuor, MarioCavagnaro. Cavagnaro ALSO served as federal prosecutor in Lori's sham military trial.
Legal observer Anna Marie Gallagher attended the first week of the trial. Her report on her observations of March 20 and march 22 examines the serious due process violations and violations of international law committed by the Peruvian government in the current proceeding. Although those due process and other violations continued during the five days of proceedings which I attended, I will focus here on other matters of concern that were apparent in the court's questioning of Lori: 1) Admission and Examination of Irrelevant Yet Extremely Prejudicial Evidence and 2) Judicial Bias and Prosecutorial Misconduct.
During the five days of trial which I attended Lori was questioned at length by Ibazeta and more briefly by the other two judges, then by Federal Prosecutor Cavagnaro and finally by her defense attorney. On the last day of trial I attended Ibazeta began his questioning of the only witness hostile to Lori, Pacifico Castrillon. What quickly came to light is that the Peruvian authorities have little or no concrete evidence of Lori's collaboration with the MRTA. She admits that she knew several individuals by assumed names who later turned out to be MRTA militants. Of course that is not a crime. In fact Prosecutor Maria Peralta in the investigatory phase of this trial concluded that there was no evidence that Lori was a member of the MRTA; unfortunately her determination was disregarded. Even the main prosecution witness Castrellon denies that Lori was ever consciously involved with the MRTA or any of its activities. Perhaps because of this lack of direct evidence, the judges have done their best to create the appearance of guilt through extremely adversarial questioning of Lori and through their repeated insistence that she just confess to the charges against her. The judges over and over set forth in open court conclusions of fact that Lori is guilty, thus destroying any appearance of impartiality. Also, the judges continually presented into evidence and questioned Lori about documents which were allegedly seized after her arrest. Although many of them were extremely prejudicial to Lori's right to a presumption of innocence under Peruvian and international law, virtually none of these documents were relevant to a determination of Lori's guilt. They were instead used to imply an association between Lori and an alleged MRTA plot to take over the Peruvian Congress, and to create a link between Lori and the revolutionary ideology contained in some of the documents.
Admission and examination of irrelevant yet extremely prejudicial evidence
Lori escorted her friend Pacifico Castrellon when he rented a large house upon their arrival in Lima in 1994. However, she moved out of that house and into a smaller apartment in AUGUST of 1995 more than three months prior to her arrest. Days after Lori's arrest on November 30, 1995, the contents of both her apartment and of the house were seized by the notoriously corrupt and lawless Peruvian anti-terrorism police DINCOTE. DINCOTE alleged that the house contained a voluminous number of documents such as press clippings and MRTA policy papers; similarly the apartment was alleged to contain some documents such as press clipping and Lori's personal papers and notes. All of these items were seized, catalogued and stored by DINCOTE. Lori and her defense attorney suspect that many of the items turned over by DINCOTE to the Terrorism Court have been altered and others have been entirely fabricated. Similarly it is possible that items seized which may point to Lori's innocence may have been ignored or destroyed.
Lori and her defense attorney only received word of the charges only four days before the commencement of the current proceeding. Despite this, Lori's defense attorney was only allowed to review in a government office the thousands of documents allegedly seized and to take notes regarding them. He was not allowed to make photocopies or to have a set of these documents before him at the trial or to prepare for the trial. Nevertheless, perhaps because of the lack of direct evidence against her, each of the judges used the documents as a basis for questioning Lori at length about the content of the documents from the house where she no longer lived, and about her opinion about the political content of some of them. Almost all of the documents Lori was questioned about were press clippings or alleged MRTA policy papers. Repeatedly Lori stated that she had never seen most of the documents sprung on her at the trial. She also denied that some handwritten notes on some of the MRTA documents was her own. She surmised much to the chagrin of the judges that many of the documents presented as evidence may have been planted or altered by DINCOTE to incriminate her. Nevertheless, the judges continued haranguing her for days about the documents, almost all of which appeared to be completely irrelevant to her guilt or innocence.
When Lori's defense attorney objected to some of the documents used as a basis for the judges' questioning of Lori, Ibazeta refused to rule on the defense objections. Instead all decisions on admissibility of evidence were deferred until the end of the trial. This of course is extremely prejudicial to Lori especially in the court of Peruvian public opinion since she is being so publicly associated with documents and ideology related to the unpopular MRTA guerrilla movement. Of course the irrelevance of the documents and of much of the questioning of Lori is an issue never raised in the Peruvian press coverage of the trial.
A prison warden's report alleging misconduct in 2001 by Lori in jail was presented into evidence as proof of her affiliation with the MRTA, and thus guilt of the charge of terrorist collaboration. The warden, Colonel Eduardo Cordoba Mosquera, had only held his post for fifteen days, and was not even posted to the prison when the misconduct was alleged to have occurred. The report stated that Lori had participated in MRTA chants in prison, refused to cook and refused to return to her cell on various days in February and March 2001. Significantly Lori was never apprised by prison officials of these allegations in order to respond and defend herself as required by Peruvian law. Nor was she ever disciplined for these alleged incidents in the prison. Her defense attorney objected to the report being used because of the procedural gaffe violating Lori's rights and because the report was extremely prejudicial and in any case did not go to Lori's guilt for activities in 1994 and 1995. To this objection Prosecutor Carlos Navas tellingly replied that in Peru: 'Prisoners have no rights.' (April 3, 2001) Judge Ibazeta again deferred ruling on the document's admissibility and extensive questioning about the allegations of prison misconduct was allowed to proceed.
Lori had testified that during her stay in Peru she had not become aware of any violent activities attributed to the MRTA. To discredit Lori the prosecution moved into evidence press reports of all alleged illegal acts attributed to the Sendero Luminoso and MRTA guerilla movements during the period in which Lori was in Peru prior to her arrest. Of course virtually all of the reports concern Sendero Luminoso, the much larger and more violent of the groups. Clearly such press reports do nothing to further a determination of Lori's guilt. Inclusion of the articles about the Sendero Luminoso was especially prejudicial and inappropriate since Lori is not even accused of any association with that group.
Perhaps because of the very low probative value of the press reports on Sendero Luminoso's guerilla activity, the next day, in a further attempt to discredit Lori's denial of knowledge about unlawful MRTA activities, the prosecution presented into evidence DINCOTE records of over 80 acts attributed to the MRTA while Lori was living in Peru. The most notorious of these acts, as pointed out by the prosecutor, included painting graffiti on a television station building and threatening phone calls to businessmen, plus a kidnapping not in Peru but in neighboring Bolivia. When Lori's defense attorney objected to the admission of the alleged records since none of the acts except for the Bolivian kidnapping were reported in the press, again Ibazeta deferred his ruling.
In Peru as in most civil law countries, criminal defendants are tried by judges not by a jury of their peers. The role of the prosecutors and defense lawyers are relatively limited. The judges do almost all of the questioning of witnesses themselves and they have wide latitude in questioning witnesses. However, as in the United States, it is inappropriate for a trier of fact, in this case the three judge panel, to reach conclusions of fact before the completion of a trial. Neither is it appropriate for a judge to declare conclusions of fact in the guise of questioning a witness. Also, in Peru, each judge of the panel is to act independently and to reach his or her own conclusions at the completion of a trial without the influence of the other judges. Unfortunately for Lori it was clear that in her case all three judges had prematurely and inappropriately concluded her guilt. Their predisposition colors the entire proceeding and prevents even the appearance that Lori is receiving a fair trial.
Following are a few illustrations the judicial bias against Lori which pervades the trial:
Judge Marcos Ibazeta
Judge Ibazeta pressed Lori over several days of questioning about why declarations she had signed after her arrest at DINCOTE implicate her as an MRTA militant. Lori testified that she was under extreme psychological pressure, her co-arrestees had been tortured or threatened with torture and that she had not been allowed effective legal counsel. As an example of the physical danger and psychological stress imposed upon her by the Peruvian authorities Lori explained that on the day she was arrested by DINCOTE her arrest was never officially registered as required by law; this omission is common when authorities plan to disappear a person and leave no official record of her detention. Instead of registering the arrest as required by law, DINCOTE took Lori to the large house that she had rented in 1994 but moved out of more than three months prior to the arrest. DINCOTE forced Lori to the front of the house and surrounded her with over a dozen policemen armed with machine guns and told her to open the door. Lori refused and a shootout subsequently began which lasted throughout the night. The entire night as the gun battle between the police and the MRTA continued Lori was held face down on the floor of a police van parked in front of the house. In characterizing this experience Lori stated that she felt DINCOTE had used her as a 'human shield.' Ibazeta became very agitated at Lori's use of this term and began a very adversarial line of questioning. In perhaps the most outrageous incident of judicial misconduct which I witnessed at the trial, Ibazeta argued in declarative statements, not through questioning, that Lori must have been an MRTA militant in order to have known that the gun battle would follow the police entry into the house. Otherwise according to Ibazeta, Lori would have had no reason to feel she was being used as a shield. He said that he knows through watching American movies that it is common in the U.S. for the police to ask a resident of a house to open the door if they believe a crime is ongoing inside. As Lori tried to explain that the term 'human shield' is one she uses now to describe the incident, and that she did not know at the time that the house had MRTA combatants inside, the courtroom erupted into laughter. Ibazeta did not call the court into order. Because Ibazeta had alerted the press that hostile witness Castrellon would begin his testimony that day, the courtroom was packed with Peruvian media. A cynic might argue that Ibazeta had actually staged this highly inappropriate yet dramatic exchange in order to maximize his press exposure prior to the upcoming congressional election for ombudsman. Tellingly, when prosecution-friendly Castrellon finally testified, he also said he was used by DINCOTE as a 'human shield' yet Ibazeta did not disagree with the appropriateness of his characterization of the experience, even though he also said he did not know that the house had MRTA combatants inside.
Lori testified that she was not aware that her housemate had allowed a group of people to live on the fourth floor of the house they shared because she never saw any strange activity and was traveling outside of Lima for much of the time in question. At this Ibazeta loudly proclaimed her testimony to be completely unbelievable. After further hostile questioning Ibazeta concluded Lori had come to Peru to be the 'sun' around which the MRTA revolved. As Ibazeta may have intended, this outrageous and inappropriate conclusion of Lori's guilt appeared in the Peruvian press' headlines the following day.
Ibazeta repeatedly attempted to discredit Lori and other witnesses who corroborate her testimony by emphasizing unimportant differences in their testimony so as to later discount the entirety of their testimony as unreliable and pave the way for a verdict of guilt. On several occasions Ibazeta asked Lori to explain why several witnesses who corroborate her version of events differ from her testimony on minor points. Lori's defense attorney objected to Ibazeta's request that Lori speculate about why other witnesses testified in a certain way. Nevertheless Ibazeta continued with his inappropriate questioning. For example, witness Miguel Rincon in a written declaration said he personally introduced Lori to Nancy Gilvonio. Lori says that Rincon set up a meeting but did not physically introduce the two women. When questioned about this minor inconsistency, Lori suggested that Ibazeta ask Rincon about it. She also pointed out that six years had passed since the events at issue and that Rincon had been held in solitary confinement for much of this time. Ibazeta responded, with the other judges nodding approval, that if Rincon was lying about introducing the two women, he must be lying about everything and so the totality of his testimony should perhaps be disregarded. Lori's defense fears that Ibazeta may be laying the justification, however weak, to disregard the testimony of witnesses which support a finding of Lori's innocence.
Judge Eliana Araujo
After a long series of questions to Lori about her childhood and family life, Judge Araujo surprised everyone by stating out of the blue that 'we' consider Lori to have been the financier of the MRTA. This proclamation came at the end of the day's proceedings and provided juicy headlines for Peru's sensationalist press which has consistently demonstrated a strong bias against Lori.
The next day the same judge bizarrely concluded that because Lori's mother had taught her to cook as a child she was probably the cook for MRTA combatants. Also, the judge questioned Lori about her natural hair color and surmised that Lori had dyed her hair a darker brown in the days prior to her arrest in order to have greater access to the Peruvian Congress as she plotted that takeover of that institution. This outrageous assumption is of course belied by the fact that Peruvian women have all shades of brown hair and by any account Lori is easily identified by her appearance and speech as a foreigner.
Judge Carlos Manrique
After an extremely hostile line of questions to Lori regarding seemingly irrelevant documents which in any case she denies ever having seen, Fujimori/Montesinos appointee Judge Manrique declared that while Lori may not have been a leader of the MRTA, she was a militant, thus concluding she is guilty of the charge against her without having heard from any of the other witnesses in the proceeding.
Prosecutor Mario Cavagnaro
After Lori's arrest in 1995, her supposedly private meeting with her defense attorney were videotaped by DINCOTE. Retired General Gonzalez Sandoval, who was in charge of Lori's interrogation at DINCOTE, stated this in a press interview during Lori's current trial. He further elaborated that Prosecutor Cavagnaro, the federal prosecutor at Lori's military trial and in the current civil trial, knew of and approved the videotaping. Despite being required by Peruvian law to denounce the existence of the illegal videotapes, Cavagnaro never did. Upon learning this Lori filed a criminal complaint against both the retired general and Cavagnaro for obstruction of justice and illegal violation of the right to privacy among other things. Despite the pending criminal complaint concerning Cavagnaro's outrageous conduct, he remains the federal prosecutor assigned to Lori's trial.
What became clear after attending Lori's trial is thatthe Peruvian government has not been successful at providing even the appearance of a fair trial under Peruvian and international law. While a not guilty verdict is a possibility given the paucity of evidence of Lori's guilt, the entire proceeding and all of the officials involved appear geared toward a predetermined outcome of guilt. Despite this, the U.S. Embassy only sends a note taker to attend the trial. As Gallagher pointed out in her report, more qualified staff with legal training should be assigned to the case to monitor the repeated violations of Lori's rights under Peruvian and international law. It may be that only through international pressure, especially from the U.S. government, that Lori might one day receive fair treatment at the hands of the Peruvian government.