Before President Michel Martelly took office in May 2011, Haiti’s top prosecutor had recommended that former strongman Jean-Claude Duvalier face trial for the abuses associated with his 15-year rule. But when the judge released an order last week, it recommended that Duvalier be indicted for only financial crimes. The former “president for life” could receive no more than five years if convicted instead of life in prison on more serious crimes.
On top of that, the sloppily written order in Haiti’s biggest court case ever was filled with factual errors, including naming a co-defendant who’s been dead for more than 40 years and another co-defendant, the Duvalier family’s decorator, who died in 2003. The judge stopped accepting evidence after five months of investigation, and the case was handed off at different times to five government prosecutors responsible for shepherding the investigation.
The judge’s findings and newly disclosed details about how the investigation was conducted have bolstered suspicions among lawyers, plaintiffs and international partners that the Martelly administration, staffed with some officials from the old regime, swayed the outcome of the case.
“I don’t know if there was a direct order but it’s obvious that the government didn’t want to make the case move forward,” said Michele Montas, a plaintiff and former journalist who was jailed and expelled from Haiti along with her radio commentator husband under the Duvalier regime. “There’s a clear signal that when the executive changed, the climate in the Duvalier case changed.”
Reed Brody, counsel of the U.S.-based group Human Rights Watch, said Martelly had made clear how he felt about Duvalier’s fate.
“The judge was well aware which way the political winds were blowing,” Brody said. “When President Martelly repeatedly suggested a pardon or amnesty of Duvalier and the state prosecutor sought the dismissal of all charges, it was not hard to figure out what the government wanted.”
The investigative magistrate at the center of the criticism, Carves Jean, told reporters in his courtroom office Thursday that he stands by his decision.
“People are making noise for their own political reasons,” the 47-year-old University of Haiti graduate said, declining to elaborate. “There was no political decision. It was my decision. I’m an independent judge.”
He said no new evidence was collected after June 2011 because none was submitted.
However, Haitian attorney Mario Joseph, of the International Bureau of Lawyers, said the judge disregarded the testimony of eight victims who wanted to file claims alleging torture and false imprisonment.
Martelly’s deputy chief of staff, Salim Succar, wrote in an email that the Martelly administration has “NEVER” contacted or tried to contact the judge, or influenced or attempted to influence the judge’s decision.
Succar also wrote that the administration has “appealed” the judge’s decision, without providing details. And he said it has asked the World Bank and U.S. government for technical assistance to develop an “outreach program” on judges who handle human rights cases.
Over the past year, however, Martelly has given mixed signals. He’s said he’d welcome Duvalier as an adviser. He also said he was open to pardoning the former dictator, only to backtrack.
Defense attorney Reynold Georges called the allegations of interference a “lie,” and said critics made such claims to influence the government.
Georges also argues that a 10-year statute of limitations on the alleged crimes has expired, the exact reasoning the judge used in his decision.
Groups such as Human Rights Watch, however, argue that the statute of limitations cannot be invoked to stop the investigation. They say the Inter-American Court of Human Rights in Costa Rica, whose judgments Haiti is legally bound to obey, has held that cases involving gross human rights abuses have no statute of limitations.
Both sides say they plan to appeal the judge’s decision.
The investigation began three days after Duvalier mysteriously returned to Haiti on Jan. 16, 2011, following 25 years of exile in France with his French wife. There was widespread speculation then that he had financed his exile with the $300 million of public money he was accused of looting from Haiti.
Then-prosecutor Harycidas Auguste, under President Rene Preval, sought to prosecute Duvalier for crimes against humanity and financial corruption. That initial case drew heavily on a 1987 corruption case filed by the Haitian government months after the fall of Duvalier.
Auguste cited an attack on Nov. 28, 1980, at Radio Haiti Inter in which Montas and a dozen others were arrested and some were “severely tortured.” Human Rights Watch documented that more than 100 journalists and activists were arrested at the radio station.
It’s estimated Duvalier and his notorious father, Francois “Papa Doc,” ordered the deaths of some 20,000 to 30,000 civilians during their 29-year rule, according to Human Rights Watch.
“The Haitian state had a moral and political responsibility to shed light on these crimes and do something on behalf of the victims,” Auguste recalled this week at his law firm as the power turned off and on.
Yet the judiciary in Haiti has long been regarded as corrupt and inefficient, and few cases ever see a trial. Before Duvalier arrived, Haiti’s courts had never handled cases involving crimes against humanity.
International legal experts were eager to help. Preval accepted an offer from the U.N. High Commissioner for Human Rights for technical assistance, and others groups followed.
In private meetings, they stressed to Auguste and his colleagues that there were legal grounds to prosecute Duvalier on crimes that included murder, torture and false imprisonment, Auguste said.
A Duvalier trial would mark a departure from the impunity that has long undermined Haiti’s judicial system, Human Rights Watch said.
But in the end, the yearlong investigation turned out to be as absurd as it was tragic, the case a near casualty of the very institution that it sought to strengthen.
In a country where petty criminals languish in jail for years, Duvalier has flaunted his freedom since his return.
He was put under house arrest but was seen touring the high-end hotels and restaurants above the capital, lounging on beaches and even sitting in the front row of a memorial with former U.S. President Bill Clinton on the two-year anniversary of the earthquake. The event was held at a mass grave where bodies from the Duvalier regime were once dumped.
Prosecutors responsible for laying out the case against Duvalier couldn’t stay on the job long enough, stalling the investigation. In Haiti, state prosecutors introduces charge but it is an investigative judge who collects evidence and decides if the charges warrant a trial.
Auguste, the first prosecutor, was fired after he failed to seek medical attention for a suspect he was interviewing who had been tortured by police officers, according to a U.N. report on alleged police killings. Auguste, now in private practice, said he tried to call a doctor but couldn’t reach one before the victim died at the hospital. He said he was put on an indefinite leave and a court cleared him of wrongdoing.
The second prosecutor, Sonel Jean-Francois, was removed for abusing his authority.
The third, Felix Leger, was fired after only two months for his role in ordering the overnight detention of a legislator openly critical of Martelly. Reached by cellphone while in Baltimore, Leger declined to answer questions, saying that “the ordinance the judge gave out was not up to me. It was up to the judge.”
His successor, Lionel Constant Bourgoin, didn’t last much longer – only 26 days because he refused to arrest members of an electoral council who had nearly cost Martelly his presidential victory.
The end product of the flawed process was the controversial indictment.
Sent by Jean to the fifth chief prosecutor, the order is filled with typographical and factual errors. It erroneously lists the defendant’s age as 59 even though the record notes he was born on July 3, 1951, putting his age at 60. Duvalier’s mother, Simone Ovide, is listed as a co-defendant although she died in 1971. Another co-defendant, the family decorator, Jean Sambour, is also dead.
“I think the judge was too lazy to check if the people listed in the indictment were alive,” Montas said by telephone from New York. “It was very sloppy work.”
The other defendants include Duvalier’s ex-wife, Michele Bennett, personal assistant Auguste Douyon and Jean-Robert Estime, who now runs a five-year, $126 million agricultural project called WINNER that’s financed by the U.S. Agency for International Development.
Estime, the son of former Haitian President Dumarsais Estime and Duvalier’s foreign affairs minister, declined to comment on his role in the case when reached by phone Friday morning.
The judge said that Duvalier was the lone defendant in the current case and that a court had cleared Estime of the charges. And then, he declined to answer more questions.
“I’m totally finished,” Jean said as he escorted a reporter out of the office. “I’m not saying anything else.”