Higher courts have their center – 02/08/2023 – Conrado Hübner Mendes

All defendants are equal, but some defendants are more equal than others. In the “Revolution of the Animals”, the pigs declare themselves “more equal than others” to mark their distinction in the community. In the brutal Brazilian life, the powerful can count on the Judiciary to make themselves more equal like the pigs in George Orwell’s fable.

Daniel Dantas, Jacob Barata, Edmar Cid Ferreira, Salvatore Cacciola, politicians from all over the spectrum and other emeritus members of the confraternity of habeas corpus a jet in the STF showed the way. While miserable people who have stolen ramen noodles and shampoo, the “gato” to have light in the shack or the possession of grams of marijuana wait months in the habeas corpus queue, others have access to the HC express. The VIP queue is not even a queue. It usually takes hours, depending on the minister.

The unequal distribution of the right of defense is a sociological law that is all the more infallible the more unequal and institutionally precarious society is. Where the rule of law manages only to manage advantages and injustices, according to the ability to pay for legal services, courts become auction houses for rights.

In the past, it was thought that the problem was that poor people didn’t have a lawyer. Later, when free legal aid programs expanded, it was said that the difference in treatment lay in the poor quality of legal service.

The Public Defender’s Office, despite the overload and the infrastructure deficit, starts to provide a service of excellence. Why does undisguised inequality continue? Among other reasons, because advocates do not participate in the lobbying advocacy circle. Its clients, inhabitants of the social outskirts, are still trying to survive hunger, police violence and prejudice.

In the midst of depravity, which constitutes and contaminates part of the legal and judicial field, especially in superior courts, not only the ritual of impartiality is eroded. There will never be an equitable right of defense there. More than that: rarely will there be a properly legal defense. This type of “defense” depends less on the lawyer’s brilliance and more on the willingness to violate legal and judicial ethics.

Without exactly practicing law, but lobbying, the lawyer finds a creative nullity and wins the case. The judge, on the other hand, wins material or symbolic prizes. Traveling to Lisbon by jet for Roland Garros and Monaco GP. Or more modest treats, wines here, stays there, paid lectures on banks there. Together they get busy.

When judges allow themselves to be courted by promoter lawyers, whose art is more in the tradition of Amaury Jr. and João Doria than that of José Carlos Dias and Sobral Pinto, more in pampering than in legal argumentation, when the meeting takes place more closely than in public, less in the halls of Justice and more in the gardens of Lago Sul , the rule of law becomes burlesque theatre.

The code changes: instead of discussing the interpretation of laws, facts and evidence, the judge calculates what he gains from it. Discreet, non-festive lawyers or public defenders stand little chance in this farce. A form of corruption of judicial and legal practice.

The magistocratic center team, numerous in the top courts, participates in events with politicians and businessmen, in parties at the houses of lawyers with whom they deal in daily life. They also articulate with the parliamentary center to employ children in various positions, such as the CNJ. Or to influence the appointments of ministers themselves. We know who they are and where they come from.

There’s a lot to do against it. First, to observe whether the public mobilization of certain lawyers for the abstract cause of the Rule of Law is not, in practice, limited to the less republican interest in unusual procedural nullity and trickery that frees its client. Second, to help combat, rather than fuel, the ethical degradation normalized in the courts. Third, monitor how and with whom ministers allocate their scarce resources of time and attention.

The President of the Republic can face the corrupt tradition if he appoints jurists who never agreed with it. Lula will betray his commitment if he appoints a minister who promotes inequality in the distribution of justice, instead of choosing those who try to reverse it.

The magistocratic center and the physiological advocacy parasitize superior courts and corrupt them. The rule of law is on the waiting list. Along with poor prisoners (usually black) in the HC queue.

In the joint effort for equality, the equality of the right of defense should fit.

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