Federico Morgenstern (firstname.lastname@example.org), 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.