January 2001

Dear Friends,

I had an ethically challenging experience recently. At the human rights center where I work (Gaspar Garcia Center for Human Rights) we misinterpreted a court notice and at the last minute determined that a hearing we thought was canceled was about to take place. Since I had the most experience with the case (but am not a licensed lawyer in Brazil), I had to brief the only lawyer available to handle the hearing, and I had only a few minutes to do it. Unfortunately, Fabiana is the youngest and newest lawyer at the Center. (She was brave to agree to do the hearing on such short notice!)

We entered the courtroom (much more modest than the equivalent structures in the U.S.) with only one client, because the others hadn’t arrived. I took one of the four seats available for the public. These courtrooms are really just rooms, with the judge seated slightly higher than the one table reserved for the lawyers and a client or two at their sides. These civil courtrooms do not provide for juries, which are available only for serious criminal trials. The only other person present is usually the judge’s assistant, a sort of court reporter.

The judge watched me closely as I sat in one of the four vacant chairs. He asked Fabiana who I was, and was informed that I was an American lawyer. The judge commented that since I wasn’t a Brazilian lawyer, I could not participate in the hearing, something that my position in the public’s chairs indicated I was not preparing to do. Then the judge launched into a tirade about his dislike of our Center and type of client, accusing the client group of being "invaders" of private property.

The reality is very complex. The constitution actually rewards property-less people with a deed to the occupied property when they successfully occupy private property for more than five years. In this case "success" means avoiding or winning lawsuits to evict them. The intention behind the constitutional provision is to penalize owners who abandon useful property and, of course, to ameliorate the desperate housing situation of millions of Brazilians.

An additional complexity is that about half of our nine client families really had been tenants. The other half were occupiers. I can’t be certain, but it appears that no one had collected rent for several years—years of abandonment. The tenants had almost no proof of their status, because as is the virtually universal and illegal custom, the sublessor failed to provide rent receipts. So while our legal argument was strong, the absence of solid proof weakened our clients’ case.

Brazil has an interesting legal tradition that encourages the settlement of lawsuits. At the beginning of many hearings, the judge will exert real pressure to have the two sides reach an agreement. In many instances this is quite positive, because the two sides can compromise and leave the court feeling in greater control of the outcome and more satisfied with it. An agreement also means there is no possibility for an appeal (saving time and money—some of it public). Judges whose cases have a low rate of appeals win promotions more quickly (here judges are exalted civil servants—not elected).

This judge thought he had reason to dislike my Center’s defense of occupiers. A year ago, we defended another, very large occupation. It was different from the current one with nine families; it had several hundred people and occupied a former bank building. Its motive was not to gain permanent housing for the occupants in the bank building, but to pressure the state government to provide some of the housing that it had been promising for years. There was a tense confrontation, with some police violence (and a small amount of violence on the part of the occupiers) and the use of tear gas (despite the well-known presence of many very small children of the occupying families). The occupants appealed to local politicians for help in negotiating an exit and alternative housing. There were tense negotiations
by cell phones between state and federal congresspeople on the spot and the governor in his offices in the city. I was present to witness and try to be useful. I was asked to run the 4-5 blocks to the courthouse to ask the judge to grant an hour or two to allow the negotiations in progress to proceed. I ran, and after a long wait, was able to put the request to the judge—the same one that Fabiana was attempting to deal with a year later. My request was formally—and frigidly—denied. A promotor público (sort of an attorney
general) made the same request half an hour later, and got the same response. Finally, a sympathetic congressperson made the same
request, and it was granted. Who knows why? Hours later, the hundreds of people were finally granted a large piece of public land with access to public utilities and easy access to the center of the city—a great victory that endures to this day.

But a year later (last month), the same judge remembered the earlier occupation and apparently my tiny role in it. After his tirade, he proposed that our clients agree to leave their housing in a week. Fabiana countered with our privately agreed-on six months. The judge repeated a week, and Fabiana said three months. I had thought six months reasonable, three, maybe—a week, no way! After all, the courts would be closed for a month, until January 22, and there could be no evictions before then. All this time, the owners sat without
saying anything. The judge was arguing their case for them! When it seemed very likely that Fabiana would cave in, I moved a seat to the right and shook my head vehemently. Only Fabiana and the judge could have seen me, because of the arrangement of the chairs. The judge immediately ordered me out of the courtroom. Saying that I thought the hearing was public (it is, but the judge exercises unquestionable control), I left.

Much to my surprise, in the hall just outside the courtroom were all the rest of our clients. They had arrived minutes after we did, and the court official wouldn’t allow them in to hear or participate in their own lawsuit. (This way of separating of clients—especially poor ones—from their lawyers and the proceedings—is favored by many judges, who find it easier to pressure lawyers and less necessary to explain themselves.) Many lawyers like it too. It’s quick and efficient and each can blame the other later to the clients. Our Center believes that clients should be involved to the maximum extent possible in their lawsuits. It’s more just, more democratic, and more conducive to active citizenship for a poor population that has been systematically excluded from participation in public life.

I asked the court official why the clients weren’t in the courtroom. She said that the judge had said they could enter later, and added that they weren’t insisting on entering. In Brazil, one doesn’t insist on disobeying a judge. Even I don’t! But I did reply that I expected her to be our witness when we denounced the judge for excluding the clients in an official proceeding. She blanched, said to wait a minute, and the next thing I knew, all but one mother with small children had entered the courtroom. The end of the hearing was reached without an
agreement, and we expect to appeal the adverse sentence of the judge—once he gives it. It’s already more than a month after the
December 18 hearing and most of the clients are still in place, despite the threat of imminent eviction. (They have no means to move elsewhere.) The appeal has a fair chance of allowing them another six months or so.

The ethical challenge I wrote of in the beginning is this: I really wasn’t aware that my change of seat and shake of the head were impermissible. But thinking about it, I believe I would do it all over again, this time knowing the consequences, to obtain the same results, that is, to avoid an unjust, forced agreement that prevents an appeal. Recently I read a review of a book by a Presbyterian minister/professor and lawyer that spoke of "being appropriately disobedient." The book’s on order. Obviously I need to know more!

Linnis Cook

The 2001 Mission Yearbook for Prayer & Study, p. 258