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:
In corruption cases, what matters is whether the judge and the process were under the control of the defendant. If they were, then the defendant never faced true “jeopardy,” regardless of the formal process. Thus, when there was obvious and deliberate negligence in the judicial inquiry, or when the defendant or the defendant’s lawyer committed fraud on the tribunal, the decision to acquit should be nullified.
Although Professor Orce and I agree on this general principle, we have quite different perspectives on the application of this doctrine, evident in our separate essays in our joint volume. Professor Orce favors a narrower version of this doctrine. By contrast, I advocate a broader concept of “tainted acquittals” in which the absence of true jeopardy precludes the non bis in idem defense (a position influenced by the US Court of Appeals for the 7th Circuit’s decision in Aleman v. Judges of the Circuit Court). To be clear, I do not believe that an acquittal should be nullified simply because new evidence comes to light. Rather, the double jeopardy principle should give way only when the acquittal is tainted by perversions of justice, for example when corrupt defendants and their political allies arrange the process so that there is not a real inquiry, but rather a sham trial designed to obtain an acquittal that shields the defendant from further investigation.
What would be the practical implications if a country, such as my home country of Argentina, were to endorse my views on the proper limitations of the double jeopardy/cosa juzgada doctrine? Some have suggested that the implications would be both dramatic and desirable. Recently Hugo Alconada Mon, one of Argentina’s leading investigative journalists, argued that the doctrine of cosa juzgada fraudulenta could and should be used to retry President Cristina Kirchner, who was accused of illegal enrichment and was acquitted (along with her late husband Néstor, President from 2003 to 2007) by Judge Norberto Oyarbide in circumstances that the press and the political opposition called muddy and shady (see here, here, and here).
To be clear, I do not know whether the cosa juzgada fraudulenta doctrine should be used in the case of the Kirchners, and the above reference to Hugo Alconada Mon’s view should in no way be taken as an endorsement. I’m not at all familiar with the record of that specific case (and my institutional position would bar me from commenting on a specific case even if I had a view). But the larger point should nonetheless be clear: When the rule of double jeopardy/ne bis in ídem/cosa juzgada, intended as a barrier against state tyranny, is abused to protect a powerful (former) defendant from a genuine investigation, the rule is perverted. The moral force and purpose of the criminal system are damaged, and institutional self-indulgence prevails, when fraudulent acquittals stand. By nullifying them and reopening the cases, the judiciary communicates to society that there are legal remedies to these situations. Recognizing an exception to the rule for fraudulent or tainted acquittals—cosa juzgada fraudulenta—is therefore vital. Our commitment to law is at stake.
GAB | The Global Anticorruption Blog 
This is a very provocative, interesting post. I’m quite sympathetic to your general concern. But let me raise a few concerns/questions — ones I’m sure you’ve thought about, and probably address in your book, which I haven’t read — and give you a chance to explain further.
The first concern is that, while double jeopardy can indeed be used as a bar to legitimate prosecutions (when the first acquittal was tainted), there are legitimate concerns on the other side as well. In a very corrupt environment, we might be concerned about the use of prosecutions to harass political opponents, and even if a genuinely independent judge acquits a wrongfully targeted defendant (or does so under international pressure), the government might try to exploit any weakening of the double jeopardy bar to re-introduce charges. (I have in mind things like the Putin regime’s harassment of political opponents, including anticorruption activists, on trumped-up corruption charges.)
The second and related concern is that in some very corrupt environments, many (perhaps most?) trials may be tainted by some form of impropriety, which might make it too easy for the government (in some circumstances) to re-open a case. Even when the motive isn’t corrupt or political, there are important general interests that the double jeopardy bar serves — repose for defendants, an incentive for the prosecution to get things right, etc. — that could be undermined if it were too easy to retry cases that had resulted in acquittals.
I suppose that the answer to both questions is that one needs to be careful in setting the standard used to reopen a case. So maybe that’s really what I want to ask you about. Some questions there:
* What sorts of impropriety can sufficiently taint an acquittal that reopening the case is permissible? What if it’s not the defense bribing or coercing the judge — what if instead it’s, say, the defense getting a key witness to perjure himself?
* What’s the appropriate standard of proof that applies to the government’s showing that the acquittal was tainted? Clear and convincing evidence? Beyond a reasonable doubt?
* Does there need to be a prior conviction (or perhaps impeachment) of the people involved in the earlier case (say, the judge who allegedly took bribes, or the witness who committed perjury)? If so, isn’t that an awfully high bar to meet? If not, isn’t it problematic to allow revisiting an acquittal on the basis of allegations of serious wrongdoing that have not themselves been proven in court?
I’m sure there are many more questions one could ask, and I’m grateful for you for raising these challenging questions.
Your are raising a very Interesting topic. Actually, tainted corruption could forestall lots of the efforts of fighting corruption however, I share professor Mathew’s concern about how tainted corruption could be misused in other words I guess we need to ensure that evils to be removed are not greater than those that accompany “tainted acquittal” proposal.
In number of civil law countries, including mine, there is a process for setting aside a res judicata judgment on grounds of fraud, reliance on forged documents or contradiction with another court decision . However this guarantee is accessible by the defendant, thus it applies only to conviction judgment. The other difficulty stems form the procedures of setting aside a judgment which has to be made through two step investigation, the first assess the existence of prima facie evidence of fraud or forgery then in the second phase there is a fully-fledged judicial investigation carried by the prosecution before submitting the matter to the court of cassation. In practice it is extremely limited and the threshold are usually high to attain, because it cannot be proven except if the judges or the prosecutor was impeached for a reason relevant to the case at hand or there is a final judgment proving the forgery of one of the documents that court relied upon in rendering its decision.
Sham trials are deeply rooted problem and there is no panacea for it. A long-term plan for institutional judicial reform is helpful, though it takes several years to achieve. Alternatively, I believe that private actions could be a good solution. In countries like France civil parties as well as civil association can join criminal trials. This party can monitor the proceedings and challenge the judgment this provides an extra check on the judicial and prosecutorial discretion. It may not guarantee bringing sham trials to end but at least it will make it more difficult to orchestrate.
Professor Stephenson, thank you for your comments and questions. I want to stress that i’m writing in a context of impunity, not of strong and selective persecutions like in Russia. There are plenty of serious allegations regarding the existence of illegal pressures towards judges and prosecutors by political actors and businessmen. Also, I want to point out that there are very few precedents in the matter, and very scarce doctrine. This is a mostly unexplored territory, and the development and setting of a standard is inevitably casuistic and specific.
Double jeopardy is a necessary guarantee for defendants, but admitting exceptions will not necessarily cause its erosion. In the book I argument extensively against logical fallacies that reject the cosa juzgada fraudulenta, and one of them is the slippery slope fallacy. Opening the window for the retrial of fraudulent acquittals does not entail the destruction of this central right of defendants.
Of course, not any impropriety will justify the nullification of an acquittal. The coercion or bribery of a judge is an obvious case, but I also argument that not investigating basic aspects of the accusation must provoke the application of the doctrine of cosa juzgada fraudulenta. For example, if you investigate and acquitt someone for an illegal enrichment and you do not check the evolution of the defendant’s patrimony or you do not ask for documentation, you have a strong case in favor of a contaminated absolution.
I think that requiring a prior conviction is an almost impossible bar to meet, especially in corruption cases where briberys are so difficult to prove. My general argument is that the absence of the risk traditionally associated with a criminal accusation justifies a retrial, and that coercion or bribery are not the only possible situations: a judge might acquit someone and a prosecutor may not appeal because their motivation could be advancing their careers, or saving their political hero who was charged with corruption.
Thanks for the very interesting post and discussion. I’m wondering whether you could clarify a couple additional points.
First, you note that you’re focused on the issue of impunity. But wouldn’t it be the case that governments who are willing to politicize courts to let their own off the hook, would *also* be the sort of government to press politically motivated charges against their opponents? If so, then providing exceptions to double jeopardy could very well lead to politically motivated retrials.
If politically motivated retrials are a concern, then wouldn’t corruption allegations–which are fairly easily to raise and, as you note, difficult to resolve–be precisely the sort of manipulable allegations that would be of greatest concern?
I’m curious about what mechanisms you think would best address these issues. For example, should a change in government (at the national or local level) be considered evidence one way or the other? (E.g. evidence of possible prior political manipulation, or possible evidence that the current government is politically pursuing former officials). What sort of standard of review would the later court use to determine whether the first trial included sufficient fact-finding?
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I echo the compliments noted above. The original post is fascinating, and I have very much enjoyed following this discussion. I would like to add a thought to Professor Stephenson’s original response. Perhaps these are also noted in your book, but I would be interested in continuing this post’s discussion.
First, I support your use of a new and innovative way to combat corruption. I agree that double jeopardy may be a procedural hindrance to investigation and conviction of corruption, but I wonder if creating an “exception” to double jeopardy would remove this obstacle. Double jeopardy prevents retrying a case when a defendant was put in “jeopardy” for the same or similar crime once before. If an acquittal was the result of fraud or corruption, was the defendant actually put in jeopardy during the first prosecution? It seems that double jeopardy, as it is commonly understood, already contemplates the possibility of retrial for defendants who were not actually in danger of conviction (or “jeopardy”). Wrongful acquittal, whether it is due to corruption or procedural mistake, does not necessarily implicate the double jeopardy bar. Is your proposal one that would expand on the definition of “jeopardy” as it is currently understood—elaborating on circumstances when a defendant is actually in danger of conviction? Or are you seeking to create an actual “exception” that would remove the need to consider double jeopardy if certain marks of corruption are present?
Second, if you are proposing an exception, your proposal seems to fundamentally change the nature and focus of double jeopardy. The double jeopardy principle is primarily a protection for defendants. The procedural protection against being “twice put in jeopardy” should be equally available to any defendant—whether they are innocent or guilty. Your proposal seems to shift double jeopardy to a principle that protects defendants “only if they did not benefit from some sort of judicially assisted corruption.” The harms and confusion of this shift were noted by Professor Stephenson above. Are there other ways to obtain the anti-corruption benefits you seek within the double jeopardy framework that currently exists?
Thank you for such an interesting discussion!
This is indeed a fascinating post and a very ambitious idea, thank you very much for that. I would also like to throw in a couple of questions and remarks, just to hear more of your thoughts on the issue.
Your notion of ‘fraudulently obtained acquittals’ appears to presuppose a trial tainted with irregularities brought about by intentional wrongdoing, e.g. ‘fraud, political interference, or clear disregard for the evidence’. I would imagine that most of such acts, be it corruption on the part of a judge or obstruction of justice by a high-ranked politician, constitute criminal offences in their own right in many countries. Would the cause of justice not be served better if these were investigated and prosecuted, as opposed to ‘reversing’ acquittals procured through such fraud or corruption? Furthermore, would those prosecutions not be sufficient?
In fact, I assume that in order to tackle the problem of ‘fraudulent acquittals’, one would anyway first need to investigate and prove the fraud (or corruption, or interference, etc) – not an easy task in and of itself, one might guess. Moreover, arguably it is precisely ‘fraud’ – some kind of intentional manipulation of the justice system with a view to produce an acquittal – that is particularly offensive, rather than a mere fact that someone got away with a crime (e.g. because the courts mistakenly interpreted the law in good faith). Once the fraud is duly prosecuted and punished, in order to maintain some balance between investigating past wrongdoing and preserving legal certainty and finality of judgments, would it not be preferable to allow the acquittal to stand? Also, probably in many cases the accused himself would actually have been involved in the fraud perpetrated, which would open up opportunities for legitimately prosecuting him without encroaching upon the non bis in idem principle.
Thank you all for your comments and suggestions. Sorry for the delay. The recent release of the book has kept me busy. I’ll tell you why: last week the government launched a comprehensive criminal procedure reform project, and in the article 5 it explicitly rejects this doctrine, forbidding the reopening of closed cases against absolved former defendants. This position, as I argue in the book, contradicts the authoritative precedents of the Interamerican Court of Human Rights, that in the cases “Escher” and “Gutiérrez “admitted the cosa juzgada fraudulenta against tainted acquittals because of a lack of real investigations and due process. Right now the subject is being discussed, majorly in the press because the political system finds this doctrine dangerous because double jeopardy provides a safe haven for corruption from different political parties. For those of you who understand Spanish, here’s a link to a short interview I gave yesterday about the issue: http://www.hipercritico.com/la-cornisa/la-cornisa-radio/6091-sobre-reforma-de-codigo-procesal-penal-y-una-posible-consecuencias-charla-con-especialista.html
There are very legitimate concerns regarding the application of this doctrine, but again, I want to point out that it’s useful for very limited cases and that we should not worry about the destruction of the double jeopardy rule. I strongly suggest the reading of this paper by Schauer about slippery slopes arguments: http://www.jstor.org/discover/10.2307/1341127?uid=3737512&uid=2&uid=4&sid=21105079955703
Surely, a context of low judicial independence is a factor, but I want to insist: this is inevitably specific and casuistic. That being said, an example of a possible standard of review is that if certain basic and elemental steps in investigations of certain crimes are not done, that’s a powerful presumption in favor of this exception to double jeopardy.
My proposal is not a change in the focus of double jeopardy. In that sense, as I explain in length in the book, I agree with HLA Hart against Dworkin when he explains that exceptions do no destroy rules.
I don’t argument that my proposal will end impunity, but it will undoubtedly do justice in some specific cases irregularly closed, and it will bring incentives to judges and prosecutors to do their job better. I understood the objections, but I consonance with the spirit of the clean hands defense, I think that if you did not play by the rules when you were accused, you should be able to shield yourself from a real process by using the double jeopardy guarantee.
In fact, double jeopardy in the US doesn’t apply when massive corruption happens. For example when judges are bribed, a person can be brought back to trial under the argument that the person was not put in jeopardy in the original trial because of the bribe.