A report on the trial of Lori Berenson

March 20 & 22
By Anna Marie Gallagher,
Professor of Law, Georgetown University

I am writing to share my concerns regarding the Berenson trial of Lori Berenson which is currently taking place in Lurigancho Prison in Lima, Peru. I traveled to Lima, Peru the week of March 19, 2001 in my capacity as a private human rights attorney to observe the trial of Lori Berenson, a Northamerican woman who was arrested by the Peruvian authorities in December 1995, who was charged with treason and who has been imprisoned since that time. In January 1996, a secret military tribunal, composed of hooded judges, convicted her of treason. During these proceedings, Ms. Berenson was given no opportunity to examine and receive copies of the evidence presented against her or to cross- examine the witnesses against her. Her due process rights under international laws were not respected; she was quickly convicted and given a life sentence.

Pursuant to a petition filed by her challenging the conviction, the Supreme Council of Military Justice nullified her military conviction and life sentence on August 28, 2000. Her conviction was nullified on the basis of the insufficiency of evidence. Ms. Berenson remained in jail pending a determination by the Peruvian government whether to conduct a retrial in the Terrorism Courts. In February 2001, Superior Court Prosecutor Walter Julian Vivas concluded that Ms. Berenson was not a leader of the MRTA but discounted the conclusions of the Investigatory Prosecutor Maria Peralta who found no evidence that Lori was either a member or militant. He charged her with collaboration and requested that the minimum 20 year sentence be imposed.

Ms. Berenson and her attorneys received the formal charges and information regarding what evidence would be presented against her only days before the commencement of trial on March 20, 2001. She is charged with terrorism, defined as collaboration and illicit terrorist association.

Her trial commenced on March 20, 2001 at the Lurigancho Prison in Lima, Peru. The prison built to hold 1,500 male inmates currently houses close to 7,000. There are special facilities in the prison itself where trials are conducted. Ms. Berenson's trial was held in one such courtroom. During her first day at trial, she was kept in a cell behind bars guarded by four soldiers. She made a statement objecting to being held behind bars, saying that it violated both international and national legal standards upholding the presumption of innocence. After much protest by the Berenson family and reports in the press, she was permitted to give her testimony on the second day of trial, standing outside of the cell.

After speaking with her attorneys, with Ms. Berenson herself at the Chorrillos Women's Prison where she is currently incarcerated and viewing the proceedings personally during the first week of trial, I would note the following concerns:

Double Jeopardy: Ms. Berenson is being tried on the same 'facts' as those already used and found to be insufficient to sustain a conviction in the military court. Redefining the crime (from treason to collaboration) does not cure this defect.

Presumption of Innocence: The power of the Peruvian press which was controlled for many years by the Fujimori administration -- in this case cannot be overemphasized. All of the reports in the press during the last several months speak of Lori as an MRTA Terrorist. During a TV appearance the first week of the trial Ms. Berenson's mother, Rhoda, was asked how she felt about the trial of her terrorist daughter. Ms. Berenson was held behind bars guarded by four uniformed soldiers inside the cell during the first day of trial. National and international press carried photos of this image. During his presidency, in an effort to silence his opponents. Fujimori manipulated the legitimate fears of the populace resulting from experiences of violent terrorist activities during the 1980's and early 1990's to falsely accuse and spread a campaign of misinformation throughout Peru. Anyone labeled as a 'terrorist' or 'collaborator' is presumed guilty. The presumption of innocence does not exist in Ms. Berenson's case or in any case where the charge is related to terrorism. Because she has been 'painted' with this label by the past and current regime, she is presumed guilty and there is little if any likelihood of a fair trial.

Composition of Court: Marcos Ibazeta Marino, President of the Superior Court for terrorism cases, has made public statements in the past, criticizing attempts by Ms. Berenson and others to seek recourse before the Inter American Commission of Human Rights (IACHR) of the Organization of American States (OAS) for a reduction or elimination of the life sentences by the secret military tribunals, calling their petitions irrational. Judge Ibazeta is currently under consideration for the position of Ombudsman in the Peruvian government and must receive at least half of the Congressional members' votes to win confirmation. Given his prior statements against Ms. Berenson and the possibility of his selection as Ombudsman dependent upon a strong Congressional vote it is unlikely that Judge Ibazeta will act in a neutral and fair manner during the decision making process in the trial.

Due Process issues: There are many issues relating to the charges, the evidence to be presented and the procedures during the trial itself, which raise serious due process concerns. Specifically, I would emphasize the following:

• Preparation of a Defense: Ms. Berenson and her attorney, Dr. Jose Sandoval, received a copy of the formal charges and information relating to the evidence to be presented against her on March 16, 2001, just four days before the commencement of proceedings. Although Ms. Berenson, her attorney and her family had heard rumors during the preceding months of what the charges would be and what evidence the government was considering to introduce, they did not receive definitive notice of such until March 16, 2001. The accused should not be forced to rely upon rumors and innuendos in order to prepare a defense. Under Peruvian law, the defense attorney is not permitted copies of the court file. He or she must go to court, review the file in person and take notes. Dr. Sandoval was not permitted to obtain copies of the documents in the court file which contains over 2,000 pages of documents. State prosecutors in the case, however, have copies of the entire court file at their disposal.
• Type of Evidence: The government has introduced and is relying on the following evidence to support the charges against Ms. Berenson:

  • Newspaper articles: The government has introduced an article from the New York Village Voice to prove her terrorist inclinations. Such 'evidence' is double hearsay and, therefore, should be considered inadmissible and unreliable. If presented in a US court, it would be rejected.
  • Tainted Witness Statements: The great majority of evidence with the government lists in its indictment and proposes to use as evidence against Ms. Berenson are the 1995 statements of alleged MRTA members, taken outside the presence of attorneys, at times under threat and torture, by hooded military judges and prosecutors. Under international legal standards, such evidence would be rejected as unreliable and inadmissible because it was obtained through coercion, threats and torture.
  • Chorrillos Prison Report: State Prosecutor Mario Cavagnaro Basile called officials at the Chorrillos Prison where Ms. Berenson is currently incarcerated shortly before trial and requested that they prepare a report concerning her conduct in prison. It should be noted that the prison comes under the same government agency in which high level State Prosecutor Cavagnaro works. As per Cavagnaro's request, the officials prepared a report stating that Ms. Berenson incited the women in the prison to disobey regulations, that she participated in illegal chants and protests with the alleged MRTA female inmates and that she herself violated prison regulations. It is interesting to note that the next day's press reported that Ms. Berenson had incited riots and made plans for escape from the facility. Her attorney, Dr. Sandoval, and Ms. Berenson herself objected to this report. She denied the allegations and both argued that she had never received any notice of supposed 'infractions' and, therefore, had no opportunity to defend herself. Judge Ibazeta - in permitting its admission held that evidence of her later contact and conduct with the alleged MRTA female members in prison is relevant to prove the charge of Illicit Terrorist Association. Such 'character' evidence and evidence of conduct after the alleged commission of the crime for which she is charged would not be permitted or admitted in a US court of law.

US Government Monitoring of the Trial: It is important and helpful to have the presence of Embassy personnel during the trial proceedings. However, given the complicated nature of civil code proceedings and the serious due process concerns raised by the international community, an attorney or someone with significant legal experience with domestic and international human rights law should be assigned to monitor the trial.

As an attorney with over fourteen years practice experience before national courts and international tribunals, I feel great empathy for Ms. Berenson's attorney. After watching the initial days of the trial, I walked away with the feeling that no matter what Dr. Sandoval and his client do to contest the government's charges, it does not matter. The case has been decided. It would take a miracle for both the proceedings and result in this case to be fair and just.

The only just outcome in this case would be for the Peruvian government to dismiss the proceedings against Lori and release her. The same should be done in the cases of many of the others who were arrested and tried by the secret military tribunals.

Sincerely,
Anna Marie Gallagher