Today’s guest post is from Eduardo Carvalho, a Brazilian prosecutor from the State of Rio de Janeiro.

There has been a great deal of commentary in the Brazilian and global anticorruption community – including on this blog (see here, here, and here) – on a recent decision by Supreme Court Justice Dias Toffoli concerning important evidence on which Brazilian prosecutors relied in securing numerous convictions in the so-called Lava Jato (Car Wash) Operation. The evidence in question—principally files stored on computer disks—was obtained from the Odebrecht company as part of settlement agreements with Brazilian, Swiss, and US authorities. Justice Toffoli, expanding on a previous ruling by Justice Lewandowski, found that this evidence was obtained in violation of Brazilian laws on international cooperation and evidence handling, and therefore could not be used in court. As a result, an enormous number of Car Wash convictions are likely to be nullified. From an anticorruption perspective, this is a disaster, undoing years of hard work and allowing scores, perhaps hundreds, of corrupt politicians to go free.

But according to Adonis Brozoza’s post last week on this blog, the responsibility for this lies with the prosecutors, not the Justices. Mr. Brozoza argues that the prosecutors, in their zeal to secure corruption convictions, ignored relevant laws and procedures on international cooperation and evidence handling. This sloppiness, he maintains, so compromised the reliability of this crucial evidence that the Justices were obligated, under the relevant Brazilian laws, to rule this evidence inadmissible.

Respectfully, this assertion is both legally questionable and factually incorrect. While I do not impugn the good faith of either the Justices or Mr.Brozoza, careful attention to the relevant laws, and to what the relevant authorities actually did, demonstrates that Justice Toffoli’s ruling ought to be overturned by the full Court.

First, Mr. Brozoza’s post asserts that “Brazilian Car Wash prosecutors had engaged in unauthorized negotiations and information exchanges with U.S. and Swiss authorities, bypassing the formal channels and failing to keep the appropriate records for those interactions.” The characterization of these interactions as “unauthorized” is legally dubious. There is nothing inherently illegal in the informal exchange of information among law enforcement agencies in different countries. To the contrary, Resolution 5/3 adopted by the Conference of the States Parties to the United Nations Convention Against Corruption specifically encourages States “to use and promote informal channels of communication, in particular prior to making requests for mutual legal assistance.” But this seems mostly beside the point, as Mr. Brozoza’s post, in the same vein as Justice Toffoli’s decision, does not explain why the alleged failure to follow formal protocols for international cooperation through certain channels had any adverse impact on the reliability of the evidence or the integrity of the subsequent judicial proceedings. As Mr. Brozoza correctly acknowledges, under Brazilian law, procedural irregularities do not necessarily require nullification of evidence, if the evidence is trustworthy.

The more important assertion in Mr. Brozoza’s post is his claim that “the integrity of key Odebrecht evidence had been compromised.” Echoing Justices Lewandowski and Toffoli, Mr. Brazoza states that “hard drives containing Odebrecht files were inappropriately transported from one city to another in supermarket plastic bags, rather than under seal, and those drives were accessed by Brazilian authorities before any data mirroring or protective measures were implemented.” Continuing on this theme, Mr. Brazoza claims that Justice Lewandowski “noted serious breaches of the chain of custody, and concluded that Car Wash prosecutors did not maintain any type of documentary record regarding the method of collection and preservation of the evidence, who had contact with it, when such contacts occurred, and what exactly happened to the hard drives once in possession of Brazilian authorities.” Mr. Brazoza also alleges that the prosecutors “failed to present the Supreme Court with evidence that the material on Odebrecht’s hard drives was in fact accurate and reliable”.

These statements are, with all due respect, a glaring misrepresentation of the facts of the case. Here is what actually happened:

• The main source of evidence in Odebrecht’s plea agreement were computer systems that ran on a server in Switzerland. Despite Odebrecht’s attempts to delete these files, Swiss authorities managed to seize and preserve the data, on the grounds of a formal request for international legal assistance submitted by Brazilian prosecutors in May 2016.
• As part of its obligations under its plea agreement, in March and August 2017 Odebrecht voluntarily delivered copies of these computer systems to federal prosecutors in Brazil, who accessed them for investigation purposes.
• To overcome any possible concerns as to whether these copies would be deemed acceptable as evidence in criminal courts, the Brazilian prosecutors continued proceeding with the formal protocols for international legal assistance from Switzerland, and, in response to this request, Swiss authorities handed over another copy of the Odebrecht server data in September 2017, whose chain of custody has been certified by the Federal Police’s forensic examinations (see here and here).
• In other words, Brazilian authorities obtained more than one copy of the Odebrecht server data, in parallel proceedings. First, as part of its plea agreement with Brazilian, Swiss, and US prosecutors, Odebrecht turned over copies of the data directly to Brazilian prosecutors, who used this data in their investigations. Second, in a parallel proceeding that went through the formal channels, Swiss authorities provided Brazilian prosecutors with a certified, authenticated copy of the server data.

The main problem with the rulings of Justice Lewandowski and Justice Toffoli, which Mr. Brozoza’s post inherits, is that they conflate these two separate, parallel tracks. Even if it were true that the hard drives that Odebrecht voluntarily turned over to the Brazilian prosecutors had not always been kept strictly under seal–despite the Federal Police’s forensic examination clearly stating that the integrity of the data had been preserved–this should have been legally irrelevant, because the Swiss authorities, pursuant to a Brazilian formal request for international legal assistance, provided another copy of the data, which had been fully authenticated, for use in criminal prosecutions. So, regardless of the Brazilian prosecutors’ supposedly “careless” handling of the computer systems voluntarily handed over by Odebrecht as part of the plea agreement, the risk of actual evidence tampering is nonexistent, because all the data that prosecutors used in these cases can be corroborated with the server data preserved and handed over by Swiss authorities.

The National Association of Federal Prosecutors has laid this all out clearly in its brief urging the full Supreme Court to overturn Justice Toffoli’s decision (see especially pages 25-33). Alas, it seems highly unlikely that the Court will overturn this ruling, now that public and judicial opinion has turned against the Car Wash Operation. I fear that the real lesson to be learned from the Odebrecht debacle is not, as Mr. Brozoza concludes, that prosecutors should be more careful handling evidence. Rather, the real “cautionary tale” to be told here concerns how attempts to a bring accountability to a corrupt elite may be undone by legal and factual revisionism, once the political tides have shifted.