What If the 'Pre-Plea Bargain' Doesn't Turn Into a Real Plea Bargain?

07/11/2016 - 14h03

It's been two years and four months since the Lava-Jato (Car Wash) operation first got under way and started shaking the political system.

In Folha, a page opener and a headline at the foot of the front page called attention to the beginning of the operation in the March 18, 2014 edition. "Defendant in monthly payoffs scheme is arrested in Federal Police operation against money laundering".

Since then, according to the Federal Justice Department, there have been 166 arrests and 56 plea-bargain agreements, and the accusations of crimes involving a total of R$ 6.4 billion (US$ 1.9 billion) in the payment of bribes.

Lava Jato is the largest corruption and money-laundering investigation ever undertaken in Brazil. In lower level courts, there have already been 106 convictions, with a total of 1,150 years in prison sentences handed out.

At the Supreme Court, where cases are heard for defendants who have a right to a privileged forum, there are 134 ongoing- and 59 preliminary-investigations.

With Lava Jato, plea bargaining has become common, which has generated plenty of harsh criticism. One group of public defenders has declared that "arrests have been used to get plea-bargain agreements like in an inquisition".

Recently, newspapers have been full of details regarding what are being called 'pre-plea bargains'. The reporting has changed from "the plea bargainer said that" to "the plea bargainer is going to say that" based upon leaks regarding plea-bargain negotiations underway.

The informant has to provide new information to investigators in order to negotiate successfully a reduction in charges and sentence. Investigators define minimum testimony necessary to transform a sentence from, for example, hard prison time to home confinement.

The reporting about plea-bargain negotiations is clearly in the public interest, but there is serious risk of manipulation by one side or the other. It is journalistically difficult to defend non-publication. It is impossible for journalists not to follow, investigate and report the content of what is being negotiated for a plea bargain agreement to take place.

The problem comes with how the information should be dealt with, especially, how it should be detailed and published. Newspapers need to take care to avoid oversimplifications and pre-condemnations.

It is essential for them to carry out their own independent investigations and to base reporting on cases involving material proof. It is important to be consistent in reporting, so that readers don't get hung up on accusations and declarations of the "he-said-she-said" type.

The two most anticipated plea-bargain arrangements under negotiation since the beginning of the investigation have been ongoing for months: that of Marcelo Odebrecht, heir to the Odebrecht Group, and that of Léo Pinheiro, from the OAS Group.

According to newspapers and magazines, during this process Odebrecht has said that he discussed campaign financing directly with president Dilma Rousseff, that his construction company renovated the Atibaia country home property used by former president Lula, and that Governor (at the time) Sérgio Cabral (PMDB) collected bribes on public works projects like the metro and renovation of Maracanã. And he has promised to provide further details about providing financing for various political parties.

Pinheiro has fingered Lula (OAS paying for renovations at the Atibaia country home property and the triplex apartment in Guarujá), Dilma (paying debts to the Pepper advertising agency) and PSDB Senator Aécio Neves (paying bribes to aides of 3% of the value of contracts), in addition to promising to provide a list of politicians who have received money under-the-table.

It is impossible to deny the explosive potential, which amplifies the need for the press to take care in dealing with and reporting information and in the capacity to establish its own independent lines of investigation.

Among those with knowledge of Lavo Jato's meanderings, there are some who see it as likely that investigators will come to a plea-bargain agreement with only one of the construction companies. One will benefit from collaborating, while the other will suffer for the entirety of the crimes committed.

Injustices will be committed. Will criminals get away or the innocent be smeared with no recourse? How will the press handle this then?

A critical evaluation regards who has something to gain from leaks and what should be the role of newspapers in relation to these. Those involved in Lava Jato consider it very difficult to control this kind of information.

What seems evident is that the release of leaks regarding the content of pre-plea-bargain negotiations is part of a game which has no clear rules. It involves informants, lawyers and prosecutors. Reporting needs to make clear to the reader the interests at play in the negotiations under way.

Journalists work in the middle of this turbulence, as transmission lines to public opinion of this internal tension.

Translated by LLOYD HARDER

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