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25852: Dailey (reply) re #25288: Professor Boswell , the People's Weekly World and Yvon Neptune (fwd)





From: Peter Dailey <phdailey@msn.com>



Haiti is in the midst of a human rights crisis that by now is many decades old. For a comprehensive and reliable account of the present situation listers can consult the Amnesty International or NCHR websites. No one who does so will question the gravity of the situation, or dispute that of the hundreds of violations alleged, few are more trivial than the deprivation of various procedural safeguards that Professor Boswell and the People's Weekly World assert Yvon Neptune has suffered.

There is nothing trivial about the safeguards themselves. The requirement that a person detained be brought before a magistrate within 48 hours is one attempt to safeguard against the tendency in past for people to "disappear" on being taken into police custody. The common law doctrine of habeas corpus addresses some of the same concerns- if the prisoner has been mistreated this may become evident when he is produced and a supposedly neutral judicial officer will be able to dismiss charges based on allegations that do not stand up to the light of day.

Is Professor Boswell aware of any authority for the notion that failure to bring a person before a magistrate within 48 hours will result in automatic dismissal? I'm not, and were it otherwise it would mean the immediate release of the majority of the prison population, regardless of the offense charged. In Neptune's case there would be even less justication for releasing him, since unlike most other detainees it is hard to credibly maintain that he has been prejudiced. He has known from the beginning the nature of the allegations that made against him, which have been given extensive coverage in the press, as has his physical condition and the circumstances of his confinement.

Neptune's defenders, the Kurzban-Concannon camp in particular, have repeatedly asserted that Neptune's hunger strike was intended to compel the government to give him the opportunity of clearing himself of all charges. However, Neptune himself has demanded something very different. He wants all charges dropped and some kind of formal exoneration. He is not interested in bail and refused what in effect was an offer of exile in the Dominican Republic- a decision he may have come to rue. And most of all, he is not interested in any sort of trial, for excellent reasons, regardless of the auspices under which it is carried out. If anyone is at all confused about this, I would refer them to Neptune's Statement from Jail, as translated by Guy Antoine and others. He has resisted all attempts to take him before a tribunal, the latest instance occuring when he sank his teeth into the arm of a policewoman. (A photo of the wound that resulted is on the Haiti Democracy Project website.) Neptune has lied about being tortured, lied about attempts to kill him while in jail, and after 100 days is lying about being on a hunger strike, although I'm not sure how one describe his present course of conduct.

The fact that one is a liar or is seeking to manipulate the system fortunately does not mean that one forfeits one's constitutional rights. The principal argument that Boswell and others advance is that charges should be dropped because Neptune has been held for over a year without being formally "charged." I don't know a lot about Haitian law, but I suspect that Professor Boswell knows even less. The procedural safeguards that Boswell complains Neptune was deprived of were not generally available during the Aristide years. I suspect that the most benign interpretation that could be made of Aristide's celebrated "Zero Tolerance" policy was that police did not have to secure a warrant or go before a judge when dealing with criminals and bandits. And even when persons arrested did see a magistrate, these judicial officers were almost always pliant enough to find the evidence sufficient, no matter how feeble or ludicrous the charges. Coup plotting was the general catchall. This justified the jailing of Rosamond Jean, leader of the defrauded depositors in the Coop scandal, Carline Simon, and a long list of others. In the immediate aftermath of the May, 2000 elections this was used to justify the rounding up of 38 opposition politicians, some of whom were jailed for over three months.

No one would seriously maintain that the standard of justice during the Aristide years provides a sanction for the egregious violations occurring today. However, the Raboteau prosecution has been held out as a landmark in the fight against impunity and vindication of human rights in Haiti, and a paradigm of how these prosecutions should be conducted. There is an article on Brian Concannon's webpage by a Harvard Law School student that provides a useful account for those unfamiliar with this episode. The Raboteau massacre- in which it was eventually determined that eight people had been killed- took place in April, 1994, and the defendants spent years in jail before the juge d'instruction finally issued an ordonnace- a determination that there were sufficient grounds to prosecute- in 1999. Here is what the article says: "Arrestees were languishing in jail waiting for a trial that might never happen. Concannon, a human rights lawyer, knew that prolonged pretrial detention could violate the human rights of defendants, especially when jail conditions were harsh. But when Concannon weighed the prolonged detention of arrestees against the possibility of not going to trial because suspects had never been arrested, Concannon decided that not going to trial was a worse evil." Of course at the time Brian was prosecuting human rights violators rather than defending them.

There are a number of reasons why the Latortue government would have been well-advised not to have launched this prosecution in the first place. It has greatly complicated relations with the international community which for political reasons, as in 1994, would like to see what amounts to a general amnesty. (Of course, the U.S. is quite content to have drug dealing, corruption etc. cases in various stages of preparation hanging over Aristide's head.) Haiti was right to reject this pressure in 1994 and is right to reject it now.) The Latortue government's attempts to explain the case against Neptune and the operation of Haitian criminal procedure have displayed the same disastrous incompetence evident in so many other areas. More to the point, the present government has shown little sign that it is willing to apply the law in an evenhanded manner, to prosecute violations by government supporters, or agents of the government, or to carry out ongoing investigations in the murder of Jean Dominique and others during the Lavalas years. It is easy to understand why so many persons regard the Neptune prosecution as politically motivated, vindictive, and an example of victor's justice. However, the one argument against prosecution that it is impossible for anyone to maintain in good faith who is even moderately well informed is that there is insufficient incriminating evidence against Neptune to justify the current judicial investigation.

Peter Dailey