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July|August 2002
Return of the Deadbeat By Amy Benfer
Grave Offense By Emily Bazelon
Milken's Revenge? By Roger Parloff
Language Matters By Michael Erard
Santiago's Aftershocks By David Bosco

Santiago's Aftershocks

David Bosco on the uncertain fate of judicial reform in Chile, a decade after the return of democracy.

By David Bosco

In January, at a book fair in the resort town of Viña del Mar, the journalist Alejandra Matus celebrated her return to Chile after two years in exile. In 1999, Matus published The Black Book of Chilean Justice, a piercing exposé of influence-peddling and corruption in Chile's judiciary. The day after the book's publication, the Chilean Supreme Court judge Servando Jordán demanded that it be confiscated, citing a law that prohibited defamation of top government officials. As the police moved to impound thousands of copies, Matus, who was in danger of imprisonment, fled the country.

For Chile's center-left governing coalition, Judge Jordán's behavior was an embarrassment. It called to mind the authoritarian tactics employed by the Chilean government before its transition from military rule to democracy in 1990. President Ricardo Lagos promptly urged the Congress to repeal the provisions of the law that Jordán had cited in his complaint. While the Congress set about amending the law, Matus received international press awards and political asylum in the United States. Two years later, the legislative changes were finally in place, Jordán's complaint had expired, and Matus returned.

In her talk at Viña del Mar, Matus stressed the importance of liberalizing the judiciary. "You have the duty," she told her enthusiastic audience, "to decide what kind of justice you want, what kind of judges you want." This was not just exhortation. The two years that Matus spent abroad were critical ones for the Chilean judiciary. In October 2000, after more than seven years of political deliberation and negotiation, the Congress finally approved a landmark proposal to convert Chile's inquisitorial criminal system into an adversarial, trial-based system. At the same time, a relatively unknown judge named Juan Guzmán Tapia became a national celebrity by indicting the former dictator Augusto Pinochet.

A dozen years after Chile's political system returned to democracy, the country's courts and judges have been forced to open themselves to the public. The judiciary is on the verge of a major liberalization. But the success of reform is not assured. Though the promise of a more open judiciary was greeted with cheers by Matus's progressive-minded audience, the reaction of Chile's judges—and, more troublingly, its citizenry—has been less certain.

The darkest stain on the Chilean judiciary is its history of complicity in the executions, abductions, and torture conducted by General Pinochet's regime. In September 1973, in the days and weeks after Pinochet's military coup ousted Salvador Allende's leftist government, the junta closed the Congress and outlawed opposition political parties—yet pledged to respect the judiciary's autonomy. The country's senior judges, in turn, gave their blessing to the coup. A day after Chilean Air Force jets strafed the presidential palace and Allende committed suicide, the president of the Supreme Court expressed "delight" with the military's promise to respect the courts.

Relations between the judiciary and the earlier Allende government had not been warm. Like much of the population, many judges feared the social turmoil that attended Allende's tenure and hoped that the military could bring stability. The military regime thus felt no need to pack the courts with sympathizers, and most cases continued to make their way through the judicial system as usual. (Some judges with leftist leanings were fired or forced into early retirement, and political cases were handled by the regime's military tribunals.) Mauricio Duce, a law professor at Diego Portales University, characterizes the arrangement between the regime and the judges as a simple quid pro quo: "We'll let you work in peace, and you let us work in peace."

By the time the dictatorship ended, the judiciary was morally compromised and organizationally stagnant. After the transition to democracy in 1990, Chile's Commission on Truth and Reconciliation issued a report in which it criticized the recent conduct of the judiciary on several counts: its unwillingness to exercise jurisdiction over the regime's military tribunals; its dutiful application of the country's amnesty law, which was promulgated by the regime to protect its own members from future prosecution; and its consistent rejection of legal motions filed by the families of victims. Most of Chile's top judges insist that the judiciary did all that it reasonably could.

Many areas of the government were modernized on the watch of the regime's ambitious technocrats, but the judiciary remained antiquated, rigidly hierarchical, and highly resentful of criticism. Chile's magistrates were distinguished by what Carlos Peña, dean of the law school at Diego Portales University, has described as their "marked distrust toward the political class and civil society." At the top of the pyramid sat a Supreme Court with tight control over the careers of those below them, and few lower-court judges dared to step out of line.

Ever since the official approval of judicial reform in October 2000, Chile's judges have been readying themselves for the demands of a new and far more public criminal justice system. Like most of Latin America, Chile inherited an inquisitorial legal system from Spain. In this tradition, a single judge both investigates and decides a case without benefit of an adversarial trial. A typical criminal judge in Chile sits at an elevated desk surrounded by a cadre of actuarios—clerks who lack formal legal training. Witnesses, defendants, and victims provide testimony, but generally without the benefit of legal representation. The testimony is collected in private reports that form the basis of the judge's decision.

Long before Pinochet took power, the criminal system was marked by secrecy, delays, limited protection for defendants, and a fearsome workload for judges. Because the details of evidence and testimony were often hidden from public view, scrutiny of judicial decisions and reasoning was limited. In the Santiago suburb of San Miguel, where reforms have not yet been implemented, one judge described the system to me this way: "I have the responsibility to initiate the investigation, direct the investigation, accuse a person, and decide the sentence. If I accuse a person, it's because I have already decided that he has likely committed the crime." Last year, even the president of the Supreme Court conceded that the "inquisitorial, secretive, and non-adversarial system... does not comply with the basic principles which guarantee due process."

Under the new system, responsibility for investigating crimes passes to a public prosecutor's office, and the work of lower-court judges divides into two streams. A judge called a juez de garantia oversees the investigation, mediates disputes on evidence, and decides questions of bail or preventive detention. The trial judge, for his part, focuses entirely on deciding cases. The reform greatly strengthens the presumption of innocence and has led to the creation of a professional public defender service. Hoping to cushion the transition, the government has implemented the reform gradually, beginning in the regions outside metropolitan Santiago. The reform is scheduled to arrive in the capital in 2004.

While the old system struggles on in the heavily populated areas around Santiago, in five outlying regions, such as the northern city of La Serena, the reform measures are in full force. Awaiting the completion of a new courthouse, the trial judges in La Serena recently moved from their old, colonial-style building on the Plaza de Armas to new rented quarters. When I arrived for an interview with Judge Jaime Meza, he led me through one of the brand-new courtrooms. He paused briefly to admire the trial chamber before taking me into a small office used for deliberations. Meza described the old judicial system as "Kafkaesque" and radiated relief as he chatted about the pleasures of the new reform system. "Finally," he said, "we are free to be judges."

The next morning, I saw the courtroom in action, as a three-judge panel heard a drug trafficking case. (Even after the reform, there are no juries.) The young, inexperienced prosecutor tried too hard and the public defender put on a lifeless case that included only one, obviously partial witness—a relative of the accused. In keeping with their new, less inquisitorial mandate, the judges asked few questions. It was not an inspiring performance.

In Santiago, the legal community is watching the reform in cities like La Serena with a mix of envy and trepidation. Buried in case files, one Santiago judge spoke covetously of the freedom that the reform judges have to focus on one case at a time, leaving the investigative work to prosecutors. Still, there is a pervasive unease about how the reform system will function when it is implemented in the areas around Santiago and Valparaiso that have considerably higher rates of serious crime. The trial I observed in La Serena hinted at the inexperience of the new actors. Judges fear that ill-prepared prosecutors, in particular, will cause a breakdown in the system. The same Santiago judge told me that it will be painful for judges to watch prosecutors stumble, particularly because public ire at resulting acquittals will likely singe the judiciary. "Santiago will be the trial by fire," says Paulina Sanchez, a young magistrate in the capital.

Haunting the reform is also the specter of a public and political backlash against the new rights it grants to defendants. The experience of Judge Tomás Grey, for instance, does not bode well. As a juez de garantía in La Serena, Grey was assigned to oversee the investigation of one of Chile's more notorious recent crimes. On the night of October 17, someone in La Serena attacked two nuns, one of whom later died from her injuries. The police picked up two suspects who were immediately placed in preventive detention. In December, Grey permitted one of the defendants to move back home under house arrest, as provided for in the new code. The decision unleashed a wave of criticism in the small community, and even the local archbishop took a swipe at the judge. Within a week, the Court of Appeals in La Serena had overruled him.

Grey told me that the powerful public reaction to his decision is evidence that the presumption of innocence remains an alien concept in Chile. "It is a cultural problem," he explains. "Historically an accused person here was always guilty." Like Grey, judges in Santiago will soon find themselves implementing a code that is solicitous of defendants in a society ill-prepared for that change. In the two regions where the reform first went into force, surveys registered a spike in the fear of crime. The reform has simultaneously diminished the responsibilities of judges and heightened public scrutiny of their performance. Once shielded by the impenetrability of the system, they now feel exposed.

Despite these concerns, there is reason to hope that a new generation of Chilean judges may be equipped to handle the increased public pressure. Their older colleagues entered the judiciary with no formal training and often because of political or social connections. Most learned on the job from the veteran actuarios, or clerks. But in 1996, a judicial academy opened its doors in Santiago, and aspirants to the bench now must pass through its competitive selection process and an extended training program. According to the law professor Mauricio Duce, the academy's training has already improved the quality of reasoning in lower-court decisions.

In addition, the academy seems to be fostering a sense of independence and openness long absent in the judiciary. A recent study on judicial independence in Chile noted that academy graduates "feel more independent because they realize that their selection is due to their own merits, in a competitive examination, and not to friendships or sponsorships." Speaking of the judicial academy and the more liberal criminal code, the University of Chile law professor Jose Zalaquett said that "this generation of legal scholars has succeeded in doing what generations before them failed to do."

If the reform process is to take hold, judges will have to withstand pressure not only from the public but from their senior colleagues as well. The recent study on judicial independence in Chile identified "an almost unstoppable capacity of senior judges to mold the conduct of their juniors." Though the Supreme Court has now endorsed the reform process, most of its members were reluctant converts at best. As the treatment of Matus's book suggests, the tendencies of Chile's top judges can still be distinctly illiberal. (Even as Matus returned from exile, the Supreme Court briefly jailed a businessman who had criticized the judiciary on a television program.) And in late March, the court handed down a procedural decision that allows judges to access case information before a trial begins—a ruling that reform advocates worry could undermine the new adversarial system. Among the lower-court judges that I spoke with, fear of the high court's wrath was palpable and most requested anonymity before consenting to an interview. Even in the face of new public scrutiny, the judiciary's internal autocracy has yet to yield.

The story of Judge Juan Guzmán Tapia, who indicted Pinochet in 2000, is a cautionary one. The son of a prizewinning poet, Guzmán entered the judiciary during the turbulent Allende presidency. By most accounts, Guzmán was a respected and relatively conservative judge. In 1997, he and several colleagues voted to permit the censorship of the film The Last Temptation of Christ, a ruling that earned Chile international criticism. At that time, Guzmán's position on the Santiago Court of Appeals gave him a chance of finishing his career on the high court.

Then, in January 1998, Chile's Communist party, together with family members of some of the regime's victims, filed charges of torture and genocide against Pinochet. Despite Pinochet's immunity as a senator, Guzmán agreed to investigate. His decision came as a surprise, but few in Chile thought the case would lead anywhere. As the Chilean military analyst Raul Sohr said at the time, such cases "make a lot of noise; they are a nuisance, a bother, but [military] officers are calm because they don't think they'll come to anything."

In October 1998, agents of Scotland Yard beat Guzmán to the punch. They arrested Pinochet in London at the request of the Spanish government. The Spanish judge Baltasar Garzon, together with human rights lawyers and political opponents of Pinochet, had made an
end run around the Chilean legal system. Unnerved by the detention's possible domestic political impact, the Chilean government announced that if Pinochet were to face justice anywhere, it should be at home. Senior officials pointed to Guzmán's nascent inquiry as evidence that the country could judge its own.

In March 2000, when the British government finally decided to ship Pinochet home because of his poor health, it became apparent just how serious Guzmán's investigation was. Shortly after the general's return, Guzmán requested the removal of Pinochet's senatorial immunity, and the Supreme Court approved the request by a 14-6 vote. Guzmán indicted Pinochet in December 2000, and the former dictator was later placed under house arrest.

The Santiago Court of Appeals ultimately followed the British lead in finding Pinochet too ill to be convicted, but that did not diminish the impact of Guzmán's investigation. During the drawn-out legal drama, Guzmán became one of Chile´s most recognized figures. Photos of the judge in action appeared regularly in Chilean newspapers. A documentary on the Pinochet case opened with footage of Guzmán accompanying bereaved families as investigators uncovered the remains of relatives who fell victim to the regime. The judge's work earned him the admiration of victims' families and Chile's political left. One family member told a Chilean magazine that "with the work of Judge Guzmán, we believe in justice again."

But Guzmán's fame has not been well received by his superiors. The Supreme Court has chastised him twice and, in a particularly painful slap, on his annual evaluation scored him too low for promotion. The court faulted Guzmán for receiving a prize in Spain while the Pinochet case was pending and for publicly supporting a court official who was being investigated. Both acts, according to the court, were inappropriate for a sitting judge. Even some sympathetic to Guzmán admit that he stumbled at times during the investigation and that he may have found the spotlight a bit too comfortable. But in the Supreme Court, his missteps found an exceptionally sensitive audience.

When I met with Guzmán in his first-floor office at the Court of Appeals, he greeted me politely, even shyly. But Chile's most famous judge was clearly in a sparring mood. He said that the Pinochet case had effectively ended his career in the judiciary. Casting his eyes upward (the Supreme Court chambers are one floor above his office), he commented that "I did have ambitions to go upstairs, but I am realistic. There is jealousy and they don't like protaganismo"—a concept that translates roughly to seeking the limelight. Most observers I spoke with agreed that the rebuke from the court to Guzmán was the result of its displeasure with the intense publicity he brought to the case—and to the judiciary.

Still, Guzmán expressed few regrets about not being able to join the judiciary's most elite club. For him, the national and international attention to his work has been recognition enough. The members of the Supreme Court, he said with a slight smile, "would prefer my club." As we finished the interview, Guzmán asked me when this article would be published. When I told him, he murmured that he would keep his job at least until then. It was not clear if he was joking.

Guzmán's fame allows him to respond brashly in the face of the court's displeasure. But most judges in Chile cannot take that risk. They are susceptible to pressure from a Supreme Court that has no love for change. Unless Chile's top judges acquire a taste for reform, their influence may hinder its success.
In January, at a book fair in the resort town of Viña del Mar, the journalist Alejandra Matus celebrated her return to Chile after two years in exile. In 1999, Matus published The Black Book of Chilean Justice, a piercing exposé of influence-peddling and corruption in Chile's judiciary. The day after the book's publication, the Chilean Supreme Court judge Servando Jordán demanded that it be confiscated, citing a law that prohibited defamation of top government officials. As the police moved to impound thousands of copies, Matus, who was in danger of imprisonment, fled the country.

For Chile's center-left governing coalition, Judge Jordán's behavior was an embarrassment. It called to mind the authoritarian tactics employed by the Chilean government before its transition from military rule to democracy in 1990. President Ricardo Lagos promptly urged the Congress to repeal the provisions of the law that Jordán had cited in his complaint. While the Congress set about amending the law, Matus received international press awards and political asylum in the United States. Two years later, the legislative changes were finally in place, Jordán's complaint had expired, and Matus returned.

In her talk at Viña del Mar, Matus stressed the importance of liberalizing the judiciary. "You have the duty," she told her enthusiastic audience, "to decide what kind of justice you want, what kind of judges you want." This was not just exhortation. The two years that Matus spent abroad were critical ones for the Chilean judiciary. In October 2000, after more than seven years of political deliberation and negotiation, the Congress finally approved a landmark proposal to convert Chile's inquisitorial criminal system into an adversarial, trial-based system. At the same time, a relatively unknown judge named Juan Guzmán Tapia became a national celebrity by indicting the former dictator Augusto Pinochet.

A dozen years after Chile's political system returned to democracy, the country's courts and judges have been forced to open themselves to the public. The judiciary is on the verge of a major liberalization. But the success of reform is not assured. Though the promise of a more open judiciary was greeted with cheers by Matus's progressive-minded audience, the reaction of Chile's judges—and, more troublingly, its citizenry—has been less certain.

The darkest stain on the Chilean judiciary is its history of complicity in the executions, abductions, and torture conducted by General Pinochet's regime. In September 1973, in the days and weeks after Pinochet's military coup ousted Salvador Allende's leftist government, the junta closed the Congress and outlawed opposition political parties—yet pledged to respect the judiciary's autonomy. The country's senior judges, in turn, gave their blessing to the coup. A day after Chilean Air Force jets strafed the presidential palace and Allende committed suicide, the president of the Supreme Court expressed "delight" with the military's promise to respect the courts.

Relations between the judiciary and the earlier Allende government had not been warm. Like much of the population, many judges feared the social turmoil that attended Allende's tenure and hoped that the military could bring stability. The military regime thus felt no need to pack the courts with sympathizers, and most cases continued to make their way through the judicial system as usual. (Some judges with leftist leanings were fired or forced into early retirement, and political cases were handled by the regime's military tribunals.) Mauricio Duce, a law professor at Diego Portales University, characterizes the arrangement between the regime and the judges as a simple quid pro quo: "We'll let you work in peace, and you let us work in peace."

By the time the dictatorship ended, the judiciary was morally compromised and organizationally stagnant. After the transition to democracy in 1990, Chile's Commission on Truth and Reconciliation issued a report in which it criticized the recent conduct of the judiciary on several counts: its unwillingness to exercise jurisdiction over the regime's military tribunals; its dutiful application of the country's amnesty law, which was promulgated by the regime to protect its own members from future prosecution; and its consistent rejection of legal motions filed by the families of victims. Most of Chile's top judges insist that the judiciary did all that it reasonably could.

Many areas of the government were modernized on the watch of the regime's ambitious technocrats, but the judiciary remained antiquated, rigidly hierarchical, and highly resentful of criticism. Chile's magistrates were distinguished by what Carlos Peña, dean of the law school at Diego Portales University, has described as their "marked distrust toward the political class and civil society." At the top of the pyramid sat a Supreme Court with tight control over the careers of those below them, and few lower-court judges dared to step out of line.

Ever since the official approval of judicial reform in October 2000, Chile's judges have been readying themselves for the demands of a new and far more public criminal justice system. Like most of Latin America, Chile inherited an inquisitorial legal system from Spain. In this tradition, a single judge both investigates and decides a case without benefit of an adversarial trial. A typical criminal judge in Chile sits at an elevated desk surrounded by a cadre of actuarios—clerks who lack formal legal training. Witnesses, defendants, and victims provide testimony, but generally without the benefit of legal representation. The testimony is collected in private reports that form the basis of the judge's decision.

Long before Pinochet took power, the criminal system was marked by secrecy, delays, limited protection for defendants, and a fearsome workload for judges. Because the details of evidence and testimony were often hidden from public view, scrutiny of judicial decisions and reasoning was limited. In the Santiago suburb of San Miguel, where reforms have not yet been implemented, one judge described the system to me this way: "I have the responsibility to initiate the investigation, direct the investigation, accuse a person, and decide the sentence. If I accuse a person, it's because I have already decided that he has likely committed the crime." Last year, even the president of the Supreme Court conceded that the "inquisitorial, secretive, and non-adversarial system... does not comply with the basic principles which guarantee due process."

Under the new system, responsibility for investigating crimes passes to a public prosecutor's office, and the work of lower-court judges divides into two streams. A judge called a juez de garantia oversees the investigation, mediates disputes on evidence, and decides questions of bail or preventive detention. The trial judge, for his part, focuses entirely on deciding cases. The reform greatly strengthens the presumption of innocence and has led to the creation of a professional public defender service. Hoping to cushion the transition, the government has implemented the reform gradually, beginning in the regions outside metropolitan Santiago. The reform is scheduled to arrive in the capital in 2004.

While the old system struggles on in the heavily populated areas around Santiago, in five outlying regions, such as the northern city of La Serena, the reform measures are in full force. Awaiting the completion of a new courthouse, the trial judges in La Serena recently moved from their old, colonial-style building on the Plaza de Armas to new rented quarters. When I arrived for an interview with Judge Jaime Meza, he led me through one of the brand-new courtrooms. He paused briefly to admire the trial chamber before taking me into a small office used for deliberations. Meza described the old judicial system as "Kafkaesque" and radiated relief as he chatted about the pleasures of the new reform system. "Finally," he said, "we are free to be judges."

The next morning, I saw the courtroom in action, as a three-judge panel heard a drug trafficking case. (Even after the reform, there are no juries.) The young, inexperienced prosecutor tried too hard and the public defender put on a lifeless case that included only one, obviously partial witness—a relative of the accused. In keeping with their new, less inquisitorial mandate, the judges asked few questions. It was not an inspiring performance.

In Santiago, the legal community is watching the reform in cities like La Serena with a mix of envy and trepidation. Buried in case files, one Santiago judge spoke covetously of the freedom that the reform judges have to focus on one case at a time, leaving the investigative work to prosecutors. Still, there is a pervasive unease about how the reform system will function when it is implemented in the areas around Santiago and Valparaiso that have considerably higher rates of serious crime. The trial I observed in La Serena hinted at the inexperience of the new actors. Judges fear that ill-prepared prosecutors, in particular, will cause a breakdown in the system. The same Santiago judge told me that it will be painful for judges to watch prosecutors stumble, particularly because public ire at resulting acquittals will likely singe the judiciary. "Santiago will be the trial by fire," says Paulina Sanchez, a young magistrate in the capital.

Haunting the reform is also the specter of a public and political backlash against the new rights it grants to defendants. The experience of Judge Tomás Grey, for instance, does not bode well. As a juez de garantía in La Serena, Grey was assigned to oversee the investigation of one of Chile's more notorious recent crimes. On the night of October 17, someone in La Serena attacked two nuns, one of whom later died from her injuries. The police picked up two suspects who were immediately placed in preventive detention. In December, Grey permitted one of the defendants to move back home under house arrest, as provided for in the new code. The decision unleashed a wave of criticism in the small community, and even the local archbishop took a swipe at the judge. Within a week, the Court of Appeals in La Serena had overruled him.

Grey told me that the powerful public reaction to his decision is evidence that the presumption of innocence remains an alien concept in Chile. "It is a cultural problem," he explains. "Historically an accused person here was always guilty." Like Grey, judges in Santiago will soon find themselves implementing a code that is solicitous of defendants in a society ill-prepared for that change. In the two regions where the reform first went into force, surveys registered a spike in the fear of crime. The reform has simultaneously diminished the responsibilities of judges and heightened public scrutiny of their performance. Once shielded by the impenetrability of the system, they now feel exposed.

Despite these concerns, there is reason to hope that a new generation of Chilean judges may be equipped to handle the increased public pressure. Their older colleagues entered the judiciary with no formal training and often because of political or social connections. Most learned on the job from the veteran actuarios, or clerks. But in 1996, a judicial academy opened its doors in Santiago, and aspirants to the bench now must pass through its competitive selection process and an extended training program. According to the law professor Mauricio Duce, the academy's training has already improved the quality of reasoning in lower-court decisions.

In addition, the academy seems to be fostering a sense of independence and openness long absent in the judiciary. A recent study on judicial independence in Chile noted that academy graduates "feel more independent because they realize that their selection is due to their own merits, in a competitive examination, and not to friendships or sponsorships." Speaking of the judicial academy and the more liberal criminal code, the University of Chile law professor Jose Zalaquett said that "this generation of legal scholars has succeeded in doing what generations before them failed to do."

If the reform process is to take hold, judges will have to withstand pressure not only from the public but from their senior colleagues as well. The recent study on judicial independence in Chile identified "an almost unstoppable capacity of senior judges to mold the conduct of their juniors." Though the Supreme Court has now endorsed the reform process, most of its members were reluctant converts at best. As the treatment of Matus's book suggests, the tendencies of Chile's top judges can still be distinctly illiberal. (Even as Matus returned from exile, the Supreme Court briefly jailed a businessman who had criticized the judiciary on a television program.) And in late March, the court handed down a procedural decision that allows judges to access case information before a trial begins—a ruling that reform advocates worry could undermine the new adversarial system. Among the lower-court judges that I spoke with, fear of the high court's wrath was palpable and most requested anonymity before consenting to an interview. Even in the face of new public scrutiny, the judiciary's internal autocracy has yet to yield.

The story of Judge Juan Guzmán Tapia, who indicted Pinochet in 2000, is a cautionary one. The son of a prizewinning poet, Guzmán entered the judiciary during the turbulent Allende presidency. By most accounts, Guzmán was a respected and relatively conservative judge. In 1997, he and several colleagues voted to permit the censorship of the film The Last Temptation of Christ, a ruling that earned Chile international criticism. At that time, Guzmán's position on the Santiago Court of Appeals gave him a chance of finishing his career on the high court.

Then, in January 1998, Chile's Communist party, together with family members of some of the regime's victims, filed charges of torture and genocide against Pinochet. Despite Pinochet's immunity as a senator, Guzmán agreed to investigate. His decision came as a surprise, but few in Chile thought the case would lead anywhere. As the Chilean military analyst Raul Sohr said at the time, such cases "make a lot of noise; they are a nuisance, a bother, but [military] officers are calm because they don't think they'll come to anything."

In October 1998, agents of Scotland Yard beat Guzmán to the punch. They arrested Pinochet in London at the request of the Spanish government. The Spanish judge Baltasar Garzon, together with human rights lawyers and political opponents of Pinochet, had made an
end run around the Chilean legal system. Unnerved by the detention's possible domestic political impact, the Chilean government announced that if Pinochet were to face justice anywhere, it should be at home. Senior officials pointed to Guzmán's nascent inquiry as evidence that the country could judge its own.

In March 2000, when the British government finally decided to ship Pinochet home because of his poor health, it became apparent just how serious Guzmán's investigation was. Shortly after the general's return, Guzmán requested the removal of Pinochet's senatorial immunity, and the Supreme Court approved the request by a 14-6 vote. Guzmán indicted Pinochet in December 2000, and the former dictator was later placed under house arrest.

The Santiago Court of Appeals ultimately followed the British lead in finding Pinochet too ill to be convicted, but that did not diminish the impact of Guzmán's investigation. During the drawn-out legal drama, Guzmán became one of Chile´s most recognized figures. Photos of the judge in action appeared regularly in Chilean newspapers. A documentary on the Pinochet case opened with footage of Guzmán accompanying bereaved families as investigators uncovered the remains of relatives who fell victim to the regime. The judge's work earned him the admiration of victims' families and Chile's political left. One family member told a Chilean magazine that "with the work of Judge Guzmán, we believe in justice again."

But Guzmán's fame has not been well received by his superiors. The Supreme Court has chastised him twice and, in a particularly painful slap, on his annual evaluation scored him too low for promotion. The court faulted Guzmán for receiving a prize in Spain while the Pinochet case was pending and for publicly supporting a court official who was being investigated. Both acts, according to the court, were inappropriate for a sitting judge. Even some sympathetic to Guzmán admit that he stumbled at times during the investigation and that he may have found the spotlight a bit too comfortable. But in the Supreme Court, his missteps found an exceptionally sensitive audience.

When I met with Guzmán in his first-floor office at the Court of Appeals, he greeted me politely, even shyly. But Chile's most famous judge was clearly in a sparring mood. He said that the Pinochet case had effectively ended his career in the judiciary. Casting his eyes upward (the Supreme Court chambers are one floor above his office), he commented that "I did have ambitions to go upstairs, but I am realistic. There is jealousy and they don't like protaganismo"—a concept that translates roughly to seeking the limelight. Most observers I spoke with agreed that the rebuke from the court to Guzmán was the result of its displeasure with the intense publicity he brought to the case—and to the judiciary.

Still, Guzmán expressed few regrets about not being able to join the judiciary's most elite club. For him, the national and international attention to his work has been recognition enough. The members of the Supreme Court, he said with a slight smile, "would prefer my club." As we finished the interview, Guzmán asked me when this article would be published. When I told him, he murmured that he would keep his job at least until then. It was not clear if he was joking.

Guzmán's fame allows him to respond brashly in the face of the court's displeasure. But most judges in Chile cannot take that risk. They are susceptible to pressure from a Supreme Court that has no love for change. Unless Chile's top judges acquire a taste for reform, their influence may hinder its success.
In January, at a book fair in the resort town of Viña del Mar, the journalist Alejandra Matus celebrated her return to Chile after two years in exile. In 1999, Matus published The Black Book of Chilean Justice, a piercing exposé of influence-peddling and corruption in Chile's judiciary. The day after the book's publication, the Chilean Supreme Court judge Servando Jordán demanded that it be confiscated, citing a law that prohibited defamation of top government officials. As the police moved to impound thousands of copies, Matus, who was in danger of imprisonment, fled the country.

For Chile's center-left governing coalition, Judge Jordán's behavior was an embarrassment. It called to mind the authoritarian tactics employed by the Chilean government before its transition from military rule to democracy in 1990. President Ricardo Lagos promptly urged the Congress to repeal the provisions of the law that Jordán had cited in his complaint. While the Congress set about amending the law, Matus received international press awards and political asylum in the United States. Two years later, the legislative changes were finally in place, Jordán's complaint had expired, and Matus returned.

In her talk at Viña del Mar, Matus stressed the importance of liberalizing the judiciary. "You have the duty," she told her enthusiastic audience, "to decide what kind of justice you want, what kind of judges you want." This was not just exhortation. The two years that Matus spent abroad were critical ones for the Chilean judiciary. In October 2000, after more than seven years of political deliberation and negotiation, the Congress finally approved a landmark proposal to convert Chile's inquisitorial criminal system into an adversarial, trial-based system. At the same time, a relatively unknown judge named Juan Guzmán Tapia became a national celebrity by indicting the former dictator Augusto Pinochet.

A dozen years after Chile's political system returned to democracy, the country's courts and judges have been forced to open themselves to the public. The judiciary is on the verge of a major liberalization. But the success of reform is not assured. Though the promise of a more open judiciary was greeted with cheers by Matus's progressive-minded audience, the reaction of Chile's judges—and, more troublingly, its citizenry—has been less certain.

The darkest stain on the Chilean judiciary is its history of complicity in the executions, abductions, and torture conducted by General Pinochet's regime. In September 1973, in the days and weeks after Pinochet's military coup ousted Salvador Allende's leftist government, the junta closed the Congress and outlawed opposition political parties—yet pledged to respect the judiciary's autonomy. The country's senior judges, in turn, gave their blessing to the coup. A day after Chilean Air Force jets strafed the presidential palace and Allende committed suicide, the president of the Supreme Court expressed "delight" with the military's promise to respect the courts.

Relations between the judiciary and the earlier Allende government had not been warm. Like much of the population, many judges feared the social turmoil that attended Allende's tenure and hoped that the military could bring stability. The military regime thus felt no need to pack the courts with sympathizers, and most cases continued to make their way through the judicial system as usual. (Some judges with leftist leanings were fired or forced into early retirement, and political cases were handled by the regime's military tribunals.) Mauricio Duce, a law professor at Diego Portales University, characterizes the arrangement between the regime and the judges as a simple quid pro quo: "We'll let you work in peace, and you let us work in peace."

By the time the dictatorship ended, the judiciary was morally compromised and organizationally stagnant. After the transition to democracy in 1990, Chile's Commission on Truth and Reconciliation issued a report in which it criticized the recent conduct of the judiciary on several counts: its unwillingness to exercise jurisdiction over the regime's military tribunals; its dutiful application of the country's amnesty law, which was promulgated by the regime to protect its own members from future prosecution; and its consistent rejection of legal motions filed by the families of victims. Most of Chile's top judges insist that the judiciary did all that it reasonably could.

Many areas of the government were modernized on the watch of the regime's ambitious technocrats, but the judiciary remained antiquated, rigidly hierarchical, and highly resentful of criticism. Chile's magistrates were distinguished by what Carlos Peña, dean of the law school at Diego Portales University, has described as their "marked distrust toward the political class and civil society." At the top of the pyramid sat a Supreme Court with tight control over the careers of those below them, and few lower-court judges dared to step out of line.

Ever since the official approval of judicial reform in October 2000, Chile's judges have been readying themselves for the demands of a new and far more public criminal justice system. Like most of Latin America, Chile inherited an inquisitorial legal system from Spain. In this tradition, a single judge both investigates and decides a case without benefit of an adversarial trial. A typical criminal judge in Chile sits at an elevated desk surrounded by a cadre of actuarios—clerks who lack formal legal training. Witnesses, defendants, and victims provide testimony, but generally without the benefit of legal representation. The testimony is collected in private reports that form the basis of the judge's decision.

Long before Pinochet took power, the criminal system was marked by secrecy, delays, limited protection for defendants, and a fearsome workload for judges. Because the details of evidence and testimony were often hidden from public view, scrutiny of judicial decisions and reasoning was limited. In the Santiago suburb of San Miguel, where reforms have not yet been implemented, one judge described the system to me this way: "I have the responsibility to initiate the investigation, direct the investigation, accuse a person, and decide the sentence. If I accuse a person, it's because I have already decided that he has likely committed the crime." Last year, even the president of the Supreme Court conceded that the "inquisitorial, secretive, and non-adversarial system... does not comply with the basic principles which guarantee due process."

Under the new system, responsibility for investigating crimes passes to a public prosecutor's office, and the work of lower-court judges divides into two streams. A judge called a juez de garantia oversees the investigation, mediates disputes on evidence, and decides questions of bail or preventive detention. The trial judge, for his part, focuses entirely on deciding cases. The reform greatly strengthens the presumption of innocence and has led to the creation of a professional public defender service. Hoping to cushion the transition, the government has implemented the reform gradually, beginning in the regions outside metropolitan Santiago. The reform is scheduled to arrive in the capital in 2004.

While the old system struggles on in the heavily populated areas around Santiago, in five outlying regions, such as the northern city of La Serena, the reform measures are in full force. Awaiting the completion of a new courthouse, the trial judges in La Serena recently moved from their old, colonial-style building on the Plaza de Armas to new rented quarters. When I arrived for an interview with Judge Jaime Meza, he led me through one of the brand-new courtrooms. He paused briefly to admire the trial chamber before taking me into a small office used for deliberations. Meza described the old judicial system as "Kafkaesque" and radiated relief as he chatted about the pleasures of the new reform system. "Finally," he said, "we are free to be judges."

The next morning, I saw the courtroom in action, as a three-judge panel heard a drug trafficking case. (Even after the reform, there are no juries.) The young, inexperienced prosecutor tried too hard and the public defender put on a lifeless case that included only one, obviously partial witness—a relative of the accused. In keeping with their new, less inquisitorial mandate, the judges asked few questions. It was not an inspiring performance.

In Santiago, the legal community is watching the reform in cities like La Serena with a mix of envy and trepidation. Buried in case files, one Santiago judge spoke covetously of the freedom that the reform judges have to focus on one case at a time, leaving the investigative work to prosecutors. Still, there is a pervasive unease about how the reform system will function when it is implemented in the areas around Santiago and Valparaiso that have considerably higher rates of serious crime. The trial I observed in La Serena hinted at the inexperience of the new actors. Judges fear that ill-prepared prosecutors, in particular, will cause a breakdown in the system. The same Santiago judge told me that it will be painful for judges to watch prosecutors stumble, particularly because public ire at resulting acquittals will likely singe the judiciary. "Santiago will be the trial by fire," says Paulina Sanchez, a young magistrate in the capital.

Haunting the reform is also the specter of a public and political backlash against the new rights it grants to defendants. The experience of Judge Tomás Grey, for instance, does not bode well. As a juez de garantía in La Serena, Grey was assigned to oversee the investigation of one of Chile's more notorious recent crimes. On the night of October 17, someone in La Serena attacked two nuns, one of whom later died from her injuries. The police picked up two suspects who were immediately placed in preventive detention. In December, Grey permitted one of the defendants to move back home under house arrest, as provided for in the new code. The decision unleashed a wave of criticism in the small community, and even the local archbishop took a swipe at the judge. Within a week, the Court of Appeals in La Serena had overruled him.

Grey told me that the powerful public reaction to his decision is evidence that the presumption of innocence remains an alien concept in Chile. "It is a cultural problem," he explains. "Historically an accused person here was always guilty." Like Grey, judges in Santiago will soon find themselves implementing a code that is solicitous of defendants in a society ill-prepared for that change. In the two regions where the reform first went into force, surveys registered a spike in the fear of crime. The reform has simultaneously diminished the responsibilities of judges and heightened public scrutiny of their performance. Once shielded by the impenetrability of the system, they now feel exposed.

Despite these concerns, there is reason to hope that a new generation of Chilean judges may be equipped to handle the increased public pressure. Their older colleagues entered the judiciary with no formal training and often because of political or social connections. Most learned on the job from the veteran actuarios, or clerks. But in 1996, a judicial academy opened its doors in Santiago, and aspirants to the bench now must pass through its competitive selection process and an extended training program. According to the law professor Mauricio Duce, the academy's training has already improved the quality of reasoning in lower-court decisions.

In addition, the academy seems to be fostering a sense of independence and openness long absent in the judiciary. A recent study on judicial independence in Chile noted that academy graduates "feel more independent because they realize that their selection is due to their own merits, in a competitive examination, and not to friendships or sponsorships." Speaking of the judicial academy and the more liberal criminal code, the University of Chile law professor Jose Zalaquett said that "this generation of legal scholars has succeeded in doing what generations before them failed to do."

If the reform process is to take hold, judges will have to withstand pressure not only from the public but from their senior colleagues as well. The recent study on judicial independence in Chile identified "an almost unstoppable capacity of senior judges to mold the conduct of their juniors." Though the Supreme Court has now endorsed the reform process, most of its members were reluctant converts at best. As the treatment of Matus's book suggests, the tendencies of Chile's top judges can still be distinctly illiberal. (Even as Matus returned from exile, the Supreme Court briefly jailed a businessman who had criticized the judiciary on a television program.) And in late March, the court handed down a procedural decision that allows judges to access case information before a trial begins—a ruling that reform advocates worry could undermine the new adversarial system. Among the lower-court judges that I spoke with, fear of the high court's wrath was palpable and most requested anonymity before consenting to an interview. Even in the face of new public scrutiny, the judiciary's internal autocracy has yet to yield.

The story of Judge Juan Guzmán Tapia, who indicted Pinochet in 2000, is a cautionary one. The son of a prizewinning poet, Guzmán entered the judiciary during the turbulent Allende presidency. By most accounts, Guzmán was a respected and relatively conservative judge. In 1997, he and several colleagues voted to permit the censorship of the film The Last Temptation of Christ, a ruling that earned Chile international criticism. At that time, Guzmán's position on the Santiago Court of Appeals gave him a chance of finishing his career on the high court.

Then, in January 1998, Chile's Communist party, together with family members of some of the regime's victims, filed charges of torture and genocide against Pinochet. Despite Pinochet's immunity as a senator, Guzmán agreed to investigate. His decision came as a surprise, but few in Chile thought the case would lead anywhere. As the Chilean military analyst Raul Sohr said at the time, such cases "make a lot of noise; they are a nuisance, a bother, but [military] officers are calm because they don't think they'll come to anything."

In October 1998, agents of Scotland Yard beat Guzmán to the punch. They arrested Pinochet in London at the request of the Spanish government. The Spanish judge Baltasar Garzon, together with human rights lawyers and political opponents of Pinochet, had made an
end run around the Chilean legal system. Unnerved by the detention's possible domestic political impact, the Chilean government announced that if Pinochet were to face justice anywhere, it should be at home. Senior officials pointed to Guzmán's nascent inquiry as evidence that the country could judge its own.

In March 2000, when the British government finally decided to ship Pinochet home because of his poor health, it became apparent just how serious Guzmán's investigation was. Shortly after the general's return, Guzmán requested the removal of Pinochet's senatorial immunity, and the Supreme Court approved the request by a 14-6 vote. Guzmán indicted Pinochet in December 2000, and the former dictator was later placed under house arrest.

The Santiago Court of Appeals ultimately followed the British lead in finding Pinochet too ill to be convicted, but that did not diminish the impact of Guzmán's investigation. During the drawn-out legal drama, Guzmán became one of Chile´s most recognized figures. Photos of the judge in action appeared regularly in Chilean newspapers. A documentary on the Pinochet case opened with footage of Guzmán accompanying bereaved families as investigators uncovered the remains of relatives who fell victim to the regime. The judge's work earned him the admiration of victims' families and Chile's political left. One family member told a Chilean magazine that "with the work of Judge Guzmán, we believe in justice again."

But Guzmán's fame has not been well received by his superiors. The Supreme Court has chastised him twice and, in a particularly painful slap, on his annual evaluation scored him too low for promotion. The court faulted Guzmán for receiving a prize in Spain while the Pinochet case was pending and for publicly supporting a court official who was being investigated. Both acts, according to the court, were inappropriate for a sitting judge. Even some sympathetic to Guzmán admit that he stumbled at times during the investigation and that he may have found the spotlight a bit too comfortable. But in the Supreme Court, his missteps found an exceptionally sensitive audience.

When I met with Guzmán in his first-floor office at the Court of Appeals, he greeted me politely, even shyly. But Chile's most famous judge was clearly in a sparring mood. He said that the Pinochet case had effectively ended his career in the judiciary. Casting his eyes upward (the Supreme Court chambers are one floor above his office), he commented that "I did have ambitions to go upstairs, but I am realistic. There is jealousy and they don't like protaganismo"—a concept that translates roughly to seeking the limelight. Most observers I spoke with agreed that the rebuke from the court to Guzmán was the result of its displeasure with the intense publicity he brought to the case—and to the judiciary.

Still, Guzmán expressed few regrets about not being able to join the judiciary's most elite club. For him, the national and international attention to his work has been recognition enough. The members of the Supreme Court, he said with a slight smile, "would prefer my club." As we finished the interview, Guzmán asked me when this article would be published. When I told him, he murmured that he would keep his job at least until then. It was not clear if he was joking.

Guzmán's fame allows him to respond brashly in the face of the court's displeasure. But most judges in Chile cannot take that risk. They are susceptible to pressure from a Supreme Court that has no love for change. Unless Chile's top judges acquire a taste for reform, their influence may hinder its success.


David Bosco is a Fulbright Scholar in Chile. Between 1996 and 1998 he wrote from Bosnia for The American Prospect, The Weekly Standard, The International Herald Tribune, and other publications.

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