Guest Post: The Double Jeopardy Bar Should Not Apply When Acquittals Are Tainted By Corruption

Federico Morgenstern (fedemorg@gmail.com), Prosecretario in the Federal Criminal Chamber of Appeals in Buenos Aires, Argentina, contributes the following guest post:

All around the world, a culture of impunity impedes the effective criminal prosecution of corruption cases, particularly of senior government officials and their close associates. Due to the interference of power political actors, judges and prosecutors often do not pursue these cases promptly or properly. Although there has been some attention – including on this blog – to concerns about prosecutors dropping or shelving cases, there is a closely related problem that is even more difficult, and that has received much less attention: fraudulently obtained acquittals, or contaminated absolutions.

Unfortunately, corruption cases in which powerful politicians are acquitted without a real and thorough investigation by independent prosecutors and judges are very common. And these corrupt acquittals are even more pernicious than prosecutorial decisions to shelve an investigation because the double jeopardy rule (also known as cosa juzgada or ne bis in idem) forbids the government to try the same defendant again on the same (or similar) charges following an acquittal. Thus, even following a change of government—which might lead prosecutors and judges to “strategically defect” against the corrupt old regime, or might simply produce a new set of the prosecutors and judges who are more willing to go after corrupt former officials—a prior acquittal would shield those corrupt actors from having to answer for their crimes.

Somewhat surprisingly, both the legal academy and the anticorruption community have largely ignored the double jeopardy doctrine’s implications for anticorruption efforts. But, as Guillermo Orce and I argue in our recent book, Cosa Juzgada Fraudulenta. Dos Ensayos Sobre la Llamada Cosa Juzgada Irrita (Abeledo-Perrot), there are compelling arguments for limiting the scope of the double jeopardy principle, in particular by allowing—under certain circumstances—the reopening of “contaminated” acquittals (cosa juzgada fraudulenta or cosa juzgada irrita): cases in which an acquittal is tainted by fraud, political interference, or clear disregard for the evidence. The core of the argument is as follows: Continue reading

Why Firms Contracting With Developing Nations Should be Required to Disclose Evidence of Corruption

An earlier post urged developing states to require firms doing business with them to have procedures in place to prevent their employees and agents from bribing government officers, making false claims, or committing other corrupt or fraudulent acts during the execution of a government contract.  Mandating that government contractors institute anticorruption compliance programs is an American innovation that works reasonably well there and is spreading to other nations.  Here I advocate a second American effort to curb corruption in government contracting that has not worked well in the United States but can in developing states.

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UN, Heal Thyself: The UN’s Embarrassing Failure to Protect Whistleblowers

The United Nations has positioned itself as one of the leading global voices against corruption, principally through the UN Convention Against Corruption (UNCAC). Among the many vital topics covered by UNCAC is the protection of whistleblowers. UNCAC Article 33 provides:

Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.

Though this provision is framed in non-mandatory terms, the UN and associated advocacy bodies clearly treat whistleblower protection as critical, both for countries and for the private businesses that the UN has pushed to join the UN Global Compact.

But what about the United Nations itself? Secretary General Ban-Ki Moon has declared that the UN has “developed a strict system of internal controls” and that the UN will “continue to remain vigilant and work hard to set an example.” And the UN’s Ethics Office promises to “protect[] staff from being punished for reporting misconduct or for cooperating with an official audit or investigation.” Providing protection to staff, the Ethics Office explains, “strengthens accountability and maintains the integrity of [the UN's] operations and programmes.”

Sounds good.  But the actual UN practice is much more troubling–indeed, it should be downright embarrassing.  This was driven home most clearly in a decision that the United Nations Appeals Tribunal handed down this past September concerning the whistleblower James Wasserstrom, but the issue goes beyond any one individual case to the entire UN system–or lack thereof–for protecting internal whistleblowers from retaliation. I’m frankly surprised that this issue hasn’t gotten more press in the anticorruption community. Continue reading

Controlling Corruption in Afghan Aid as the U.S. Withdraws

Foreign aid has flooded into Afghanistan over the past decade and a half, including over $104 billion in US aid dollars alone; indeed foreign aid currently comprises 60% of Afghanistan’s budget expenditures. But despite—or perhaps because of—these immense expenditures, corruption still plagues the Afghan government and economy (Afghanistan ranks 175/177 on Transparency International’s Corruption Perception Index)–and this greatly concerns the Afghan people. Since 2008, the American effort to address corruption in Afghanistan has been overseen by the Special Inspector General for Afghanistan Reconstruction (SIGAR). SIGAR, currently headed by attorney John Sopko, conducts audits and investigations, and issues recommendations and reports to reduce fraud, waste, and inefficiency. SIGAR’s unique approach—centralized, independent oversight over all agencies involved in Afghan reconstruction—has yielded tangible benefits, including saving almost half a billion dollars through a single audit. Reform efforts by the United States and the international community have improved Afghan legal structures, including by crafting comprehensive anticorruption laws and strategies, though serious problems remain.

Yet maintaining accountability and oversight over foreign aid will be even more challenging as U.S. troops leave. In SIGAR’s most recent quarterly report, Sopko points out that “[l]arge areas of the country . . . will soon be off limits to U.S. personnel due to base closures and troop withdrawals.” Nonetheless, the U.S. will continue providing external financial assistance as Afghanistan even as America’s footprint shrinks, and the United States will continue to foot the bill for much of Afghanistan’s public sector even as the US withdraws all but 9,800 troops by December 2014. What can American policymakers to do address the problem of corruption in development aid to Afghanistan during and after the withdrawal?

At first blush, perhaps not much. The US has struggled to stem misallocation of American funds previously, and its levers will weaken as its presence diminishes. Nevertheless, the US will retain significant influence in the near future, and there are a number of concrete steps the US can and should take to limit the extent of corruption in US development aid to Afghanistan, and to support anticorruption efforts in Afghanistan more generally: Continue reading

“The Whole World Can Commit Corrupt Acts” : Petrobras and the Brazilian Election

“There are corrupt people everywhere,” said Brazilian President Dilma Rousseff. “In my opinion, the whole world can commit corrupt acts.” Brazil’s presidential election is neck and neck, the closest in a generation. As both candidates accuse each other of corruption, two questions come to mind: First, is corruption influencing the outcome of this race? Second, should it? Continue reading

Anticorruption Bibliography – October 2014 Update

An updated version of my anticorruption bibliography is available from my faculty webpage.  A direct link to the pdf is here.  As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

U.S. Department of Justice/Civil Society — 1; Kleptocrats — 0

October 10, 2014, deserves mention in any future history of the anticorruption movement, for it was on this date that a ruling kleptocratic family (colloquially known as thugs in power) conceded the obvious: that the money to fund a kleptocratic lifestyle — in this case a mansion in Malibu, a Ferrari 599 GTO, and Michael Jackson memorabilia – did not come from the family’s hard work on behalf of the citizens they rule.  Rather, it came the easy way: from the wholesale theft of the nation’s patrimony.

This startling, if obvious, concession came in the settlement of a civil suit filed by the U.S. Department of Justice, with the support and encouragement of civil society, against an unlikely group of defendants.  In the order listed in the complaint, they are: 1) One White Crystal Covered Bad Tour Glove and Other Michael Jackson Memorabilia, 2) One Gulfstream G-V Jet Airplane Displaying Tail Number VPCES, 3) Real Property Located on Sweetwater Mesa Road In Malibu California, 4) One 2007 Bentley Azure, 5) One 2008 Bugatti Veyron, 6) One 2008 Lamborghini Murcielago, 7) One 2008 Rolls Royce Drophead Coupe, 8) One 2009 Rolls Royce Drophead Coupe, 9) 2009 Rolls Royce Phantom Coupe, and 10) the Ferrari 599 GTO.

Although defendants stood mute before the court, their owner, Teodoro Nguema Obiang Mangue, Second Vice President of Equatorial Guinea and (surprise?) son of the country’s president, was anything but.  Through the mouths of expensive American legal talent he complained loudly and bitterly that the ten named defendants were innocent.  But in settling the case, he agreed in effect that three – the mansion, the Ferrari, and some of the Michael Jackson memorabilia, were indeed guilty.  Guilty? Of what? Continue reading