Tag Archives: Justice Lewandowski

Guest Post: The Brazilian Supreme Court’s Erroneous Nullification of the Car Wash Evidence

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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. Continue reading →

The Perils of Taking Shortcuts: How Brazilian Prosecutors Alleged Carelessness with Evidence May Undo Years of Hard Work 

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Brazil’s so-called Lava Jato (Car Wash) Operation, launched in 2014, exposed one of the largest corruption schemes ever. The investigation resulted in over 361 convictions (for corruption, money-laundering, procurement fraud, and other crimes); among those convicted were numerous prominent members of the Brazilian business and political elite, including the current President, Luiz Inacio Lula da Silva (known as Lula). In building its cases against these defendants, Brazilian federal prosecutors made extensive use of “leniency agreements,” offering some companies lighter penalties in exchange for evidence against other parties. One of the most important of these leniency agreements was the one Brazilian prosecutors, working in conjunction with U.S. and Swiss prosecutors, reached with the Odebrecht company, a major Brazilian infrastructure conglomerate at the center of the corruption scheme.

But over the last few years, the Car Wash operation has started to unravel, with several of its most important achievements reversed. In 2019 a Brazilian hacker publicized text messages allegedly exchanged between Sergio Moro, the presiding judge in many of the Car Wash cases (including Lula’s), and the Car Wash prosecutors, prompting allegations of bias. The specialized Car Wash prosecutorial task force was disbanded in February 2021, and the Brazilian Supreme Court annulled Lula’s conviction on procedural grounds in April 2021, paving the way for his re-election to a third presidential term in October 2022. The most recent setback to the Car Wash Operation, already discussed and debated on this blog (see here, here, and here), is a decision by the Supreme Court Justice Dias Toffoli this past September. In that decision, Justice Toffoli declared that, due to procedural errors, none of the evidence acquired in the leniency agreement with Odebrecht could be used in any judicial proceeding. This ruling puts numerous Car Wash convictions at risk: Defense attorneys may now seek to annul convictions in cases in which their clients were convicted primarily on the Odebrecht evidence.

Many in the anticorruption community, in Brazil and abroad, have denounced Justice Toffoli’s ruling, and have suggested that it may have been improperly influenced by political or personal considerations. But as a technical legal matter, Justice Toffoli’s decision was probably correct. While it is understandably frustrating to see so much hard work wiped away and the prospect of convicted corrupt actors going free, the responsibility here appears to lie more with the Car Wash prosecutors than with the Supreme Court. Indeed, the recent developments in the Car Wash saga should serve as a cautionary tale for investigators and prosecutors. In their understandable zeal to catch and convict bad actors, law enforcement authorities must be careful to scrupulously and rigorously observe all legal requirements. Continue reading →