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January|February 2004
The Queue Crew By Brian Montopoli
Shark Hunt By Dashka Slater
The Right to Dry By Dusty Horwitt
Peruvian Guilty By Jason Felch
Cases & Controversies
The Prudent Jurist By Stephen Gillers

Peruvian Guilty

The first of many trials for Vladimiro Montesinos.

By Jason Felch

LAST MARCH, VLADIMIRO LENIN MONTESINOS, Peru’s former chief of intelligence, was escorted into a small courtoom for sentencing. The trial that had just ended was only the first of dozens of public trials Montesinos was scheduled to face. The bomb-proof courtroom was inside a high-security prison in the outskirts of Lima. Snipers dotted the rocky hills surrounding the prison, scanning the route of the armored helicopter that transported the prisoner to and from his jail a few miles away.

In the courtroom, the 58-year-old Montesinos took a seat next to his codefendant and ex-lover, a buxom 34-year-old redhead named Jacqueline Beltran (“Jacquie” in the Peruvian press). During the previous month, prosecutors had laid out evidence that Montesinos, a key advisor to President Alberto Fujimori during the 1990s, had used his influence to secure the release of Jacquie’s brother, who had been imprisoned on drug charges. A three-judge panel entered the courtroom and sat beneath its only decorations, a Peruvian flag and a crucifix. The lead judge explained that, by law, the evidence against the now-convicted defendants had to be read to them before they could be sentenced.

Montesinos and Jacquie stood and, an hour and 37 minutes into the reading, he began to sway. An odd grimace crossed his face, his knees buckled, and Montesinos collapsed to the floor. The first to reach him was his attorney, who ran to his side with apparently genuine concern. Next to arrive were police guards, who picked up the defendant and sat him in a chair. As Jacquie looked on with a skeptical smirk, a doctor examined Montesinos and declared him unfit to continue. Over the prosecution’s objections, the judges agreed to postpone the sentencing for five days.

According to the doctor, Montesinos was suffering from hypertension. The prosecutors, however, suspected that the faint was a feint—another tactic of the defense, which, with two appeals to the Peruvian Supreme Court and a series of procedural holdups, had delayed the start of the trial for four months. Montesinos, a former defense attorney himself, had learned to manipulate Peru’s court system while representing drug dealers. In the view of the prosecutors, he no doubt knew of the rule that would require his trial to start over if sentencing were delayed much longer.

THE SERIES OF PROCEEDINGS AGAINST MONTESINOS, the most important case ever in Peru, has become as much a trial of the country’s legal system as it is of Montesinos. Peru is emerging from a decade of corruption unparalleled in its history. Successful convictions would be a turning point for the country, but the challenges of the case are at least as great as its promise. Fujimori and Montesinos built the “Fujisinos Mafia,” a network of corruption so formidable it allowed the duo to control virtually all of the country’s institutions. In the decade between Fujimori’s surprising election victory in 1990 and the downfall of Fujimori and Montesinos in a corruption scandal in 2000, they may have stolen as much as $1 billion from government coffers through an elaborate system of kickbacks, extortion, and outright theft.

The corruption was often a way to cover the tracks of more serious crimes. Prosecutors say that Montesinos created and commanded the Colina Group, a paramilitary death squad responsible for the murder of dozens of suspected leftists. He is charged with overseeing Peru’s drug trade and demanding kickbacks from Peru’s biggest drug traffickers (some of them his former clients) in exchange for protecting them from U.S.-sponsored antidrug operations.

For the past three years, a small team of special prosecutors has worked in a cramped bungalow behind the walls of the Ministry of Justice in Lima, preparing 102 separate criminal cases against 1,384 people. Seventy of the cases center on Montesinos, including el expediente madre—“the mother of all cases”—which focuses on various front companies and has a case file more than 30,000 pages long. To date, 104 people have been sentenced to prison as a result of the cases, including a former attorney general, three congressmen, and the heads of the army and marines. Six people have been extradited from foreign countries to be tried in the cases, and six more extraditions are pending, including that of Fujimori, who is in exile in Japan. More then $150 million of stolen funds had been frozen in foreign bank accounts and returned to Peru, though four times that much may still be hidden.

Peru’s antiquated legal system, whose procedural code was written in 1939, has proven sorely deficient in addressing a modern criminal network as extensive as Montesinos’s. “The penal codes are outdated,” said Abraham Siles, a law professor in Lima and a member of Justicia Viva, a panel of legal experts advising the government on how to try the case. “They don’t adapt well to today, especially not when it comes to a very complex criminal organization created by the state itself.” Police, prosecutors, and judges all must investigate each case, resulting in a time-consuming repetition of efforts. Defendants can accuse judges of being biased, leading to lengthy reviews by higher courts.

But Peru has developed some tools that are helping bring the mafia to justice. With assistance from the FBI in the United States, the government has adopted the “law of efficient and effective collaboration,” the country’s first plea-bargain law, which has allowed prosecutors to gather testimony against Montesinos from his former accomplices in exchange for leniency. But other attempts at reform have been rejected. The special prosecutor’s office proposed that its 80-some cases be organized into 14 groups of like charges that could be tried together. This would have allowed prosecutors to establish certain facts once and for all and to use that evidence against various accomplices of Montesinos within the same trial, rather than having to remake their case in many different proceedings. It would also have allowed them to focus their energies on the most serious charges. The defendants, not surprisingly, argued against the consolidation, and the attorney general eventually decided to abandon the strategy. Though some minor consolidation has happened since, many of the petty cases are being tried individually.

THE COUNTRY'S MEDIA HAVE COVERED THE MONTESINOS TRIAL as if it were a soap opera. Caretas, the most prestigious national news magazine, ran an exclusive titled “Jacquie’s Secret Diary.” A soft-focus cover photograph showed Jacquie with a finger to her lips, telling readers to keep the secrets of her affair with Montesinos between them. But it’s the justice system itself that is most responsible for trivializing the proceedings in the eyes of Peruvians. No matter how many charges Montesinos is found guilty of, he will serve time only for the one that carries the highest sentence. Because Peru has no life sentence and no death penalty, the maximum sentence he could face is 35 years, which would likely be reduced to 20 with good behavior.

A recent survey of 44 countries by Transparency International, a nongovernmental organization that studies corruption in the developing world, found that distrust of the court system was highest in Peru. Montesinos’s public trial, broadcast live on television daily, was intended to change that perception, but in an informal survey by the news organization Agencia Peru, 62 percent of the respondents said the trial could be described as a show, a circus.

After his aborted sentencing hearing, Montesinos was escorted from the courtroom by his guards and boarded the helicopter to be flown back to his cell. On the flight, one of his guards said later, Montesinos explained his fainting. After more than an hour standing with an empty stomach and a light head because of little sleep, Montesinos said, he was on the edge of slumber, half awake and half dreaming. He saw himself walking through a dark swamp, with deep pools of black on either side of him. He told the guard he had felt danger, but was confident he could get through it. And then he fell.

Five days later, he did receive a sentence: five years and four months in prison and a fine of $142,000. Because he had already been sentenced to nine years in a closed proceeding before the start of the public trials (for “usurpation of authority” during his government service), the five-year sentence will have no bearing on his ultimate prison term. However, he will spend the next couple of years in jail: The trials of the remaining 52 cases against him are expected to last until 2005.

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