This morning we had the pleasure of speaking with Judge Avilla. He is the third judge we have met with and, just like the two prior, Judge Avilla sees a number of problems with the penal system and the judiciary. While he also discussed the problem of media influence, he spent the majority of the meeting discussing the inherent ideological problems of the Chilean people.

Judge Avilla believes that Chileans do not truly understand the concepts of liberty, freedom, and personal rights. They do not understand that they have rights that the government must oblige. He believes that because Chileans lived without these freedoms and liberties for so long, they either do not want to be empowered or they do not know how to use their empowerment. In other words, they are so use to people ordering and controlling their lives that they do not know how to think on their own.

Being an American, it was foreign to me to think about someone being unable to conceptualize notions of liberty. Americans grow up on these notions. In fact, in many ways, we are brainwashed into believing them. For example, we learn the pledge of allegiance in kindergarten and recite it everyday before class. For nine years of schooling we repeat the same phrase over and over again: “ . . .one nation . . . with liberty and justice for all.” Ask any elementary school student if it would be fair or right for the government to punish poor people differently than rich people. Indubitably, their response would be, “No.”

As a result, because we have essentially been raised on these notions, it is easy for Americans to become frustrated at the Chilean Penal system. However, it is important to remember that America signed its Declaration of Independence in 1776 – over two hundred and thirty years ago. It is naïve to expect a country, after being subjected to a military dictatorship, to wash away all of its fears and to protest its government for not protecting what it never really had before.

Today we got the pleasure of speaking with Judge Mauricio. It was great to be able to hear what an actual Chilean trial judge thought of their new system. Despite the fact that Judge Mauricio is probably one of the most liberal judges in all of Chile, it was refreshing to hear a judge discuss all the same frustrations that my fellow interns and I have been expressing.

One thing that Judge Mauricio said that stood out to me was that judges are a reflection of the society in which they live. We were discussing why it was so difficult for some judges to actually do their job – to evaluate the evidence presented and to determine whether the evidence presented was sufficient to convict an individual. Judge Mauricio told us that the current judges are, for the most part, incapable of forgetting their previous role as the investigator under their old legal system. In other words, the current judges do not understand that they are simply there to examine the evidence that is presented to them. Because the current judges were brought up in a society in which they actually were the investigators, that old paradigm is still reflected in their work.

Therein lies the problem. In 2000, when the adversarial system was first created, every single judge should have been removed from the bench. It was naïve to assume these judges could be raised and trained in non-adverserial system only to shift everything they’ve ever done or believed in to a completely new system. It all goes back to the saying, “You can’t teach an old dog new tricks.” The previous judges should have been given the option to become a prosecutor or a defender. A completely new generation of judges should have been trained so that they could understand without prior bias the nature of their positions. Now that we’re seven years into this new system, we can only hope that a new generation of judges – a generation with a true understanding of Judgeship – will replace the first.

So we just finished our first week of work here at the Defensoria Penal Publica and everything has been great so far. Its been really fun learning about a completely new legal system and seeing the problems that it faces. I haven’t really been able to get a consistent internet connection so my blog entries have been a bit backed up. But not to worry, here are my blog entries for the week:

9.10.07

Today was the start of my internship and needless to say, it was one crazy day. We took the metro to work, which is probably one of the most uncomfortable ways to travel for an Asian living in Chile. It’s amazing, really. I feel like a movie star without all the glamour. Literally everywhere I go, everyone within 50 yards stares at me and follows me with their eyes until I can’t be seen… seriously.

I’m not talking about a passing glance. No. Alissa, Tiffany, and I get stared out as if we were the very first Asian, Dominican, and tall blonde they’d ever seen. People will whisper to each other to look at the Chino and the blonde. Then the word will spread and the next thing you know, the entire train is staring at us (I’m really not exaggerating). We’ve been here for about 5 days now and we’re still not quite use to it.

The stares are not isolated to the metro alone or the young. Even the highly educated are curious. We get stared at everywhere. For example, we toured the courthouse and sat in on a few hearings today and even the attorneys couldn’t help but watch us walk around. In the courtroom, it felt like every eye not belonging to a judge, a district attorney, or a defense attorney was staring at us. It’s inescapable.

The constant stares do remind us of just how diverse America is. Even in back-wood, East Texas towns I can walk around and never get a second glance. It’s understandable I suppose. After all, how often do Asian people visit Chile? Throw in a Mexican American and a Pakistani American and we become the walking United Nations.

Other than the uncomfortable staring, my first day was quite interesting. Things were a little unorganized at first, but we did get a chance to observe a number of hearings. The language barrier is definitely a problem, but with the help of my compadres I got enough to understand the basics of what was going on.

In the afternoon we had our first big meeting with Alejandro and Miguel. We discussed the expectations of the Defensoria and what we hoped to gain from our internship experience. It was clear after the meeting that the Public Defenders really are hoping to learn just as much from us as we are from them.

On the train ride home we all discussed ways that we might be able to help the Defensoria. We’d like to start our own project if we have time. We had so many ideas that we’ll have to figure out where to start. For example, we thought it would be a good idea to send out a questionnaire to each defender, asking him or her what they believed the biggest shortcomings are in their criminal system. Not only will it give insight into the personal thoughts of the Defenders, but it may also reveal ways that we might be able to help with the process. We feel like we have a chance to do something special here and hope we can take advantage of this opportunity while it’s here.

9.11.07:

There’s a major street here in Santiago named, “11 de Septiembre.” No, it has nothing to do with what happened in New York 6 years ago.

Actually, on September 11, 1973, a military coupe overthrew the then President of Chile, Salvador Allende Gossens. Allende reportedly committed suicide and a new military dictatorship was created, led by General Augusto Pinochet.

The aftermath of that day can still be felt each year on 9/11. In fact, each year hundreds of individuals will take the streets in remembrance of what happened. Inevitably, riots tend to break out. As a result, almost everyone in the city will go home early to avoid any possible conflict. It seemed like every Defender we talked to today warned us not to be out too late. By 4:00 p.m. the Defensoria seemed like a ghost town.

When the five of us got to the Metro on our way home, we got to see just how serious these riots might be. I couldn’t tell if there were more security guards or civilians in the Metro. Obviously this peaked my interested and I wanted really badly to go out and see exactly what these so called riots are like. Due to the whole political stability thing in the States, I’ve never really seen a full-blown riot (Wish I could have been in Washington during the WTO fiasco a few years ago). Unfortunately, I don’t exactly blend in here and from what I understand the riots are somewhat anti-American. I decided to play it safe and just stay in for the night. Oh well, maybe something will be on the news tomorrow.

In terms of work, today was very interesting. Tiffany and I were assigned to a major drug case in which 2 individuals, not represented by Defensoria but still connected to our clients, paid $30,000 to have the district attorney assassinated. It’s like something out of a movie. We were asked to look over all the evidence in the case and to determine how we would attack the evidentiary issues from an American perspective. What’s really amazing is there is no evidence code in the Chilean system and yet, ironically enough, the most significant hearing during the criminal process is the evidentiary hearing. It seems strange that the most important hearing takes place without any formal codes or guidelines to follow. The issue of admissibility is solely up to the judge after hearing analytical arguments by both the District Attorney and the Defender. The evidentiary hearing for our case will be on Thursday so Tiffany and I will spend all day tomorrow working on the evidentiary issues. I’m excited.

9.13.07:

Today Tiffany and I observed what we would call Arraignment hearings in the states. Essentially it is the first time that an accused is brought before a Judge and a guilty plea is either entered or the accused decides to continue on with the criminal process.

However, the Chilean arraignment hearing is very different from an arraignment hearing in the States. For one, they take much longer and are much more in depth. The facts, at least according to the State, are actually read aloud to the Judge. I was surprised that they did this since in the States an arraignment will usually take less than a minute. Further, in the States, all defendants will plead not guilty regardless of the circumstances or the truth of the allegations. In other words, there simply isn’t enough information available to the defense attorney at the time of arraignment to decide the strength of his or her client’s case. Consequently, a defense attorney in the States won’t be able to tell if a plea deal is a good deal for the defendant at the time of arraignment.

In contrast, today we noticed that the majority of the accused pled guilty during their arraignment and took a plea deal. This isn’t really surprising, however, because there isn’t much investigation on the part of defense attorneys under the Chilean system. Thus, if a good deal is offered the accused will take it.

One thing that really upset Tiffany and I was the overt prejudice against the poor. Here’s an example: In the first arraignment a very poor individual was arrested for stealing meat and cheese, worth about $20 (about 10,000 Chilean Pesos). His wife and daughter sat behind us and it was very obvious that their family was having economic hardships. The judge told the accused that he would have to pay a large fine for his crime, even though it was obvious that he had absolutely no money (hence the stealing food for his family). Unfortunately, because the family won’t be able to pay the fine, the accused will inevitably end up serving time in jail. At this point, Tiffany and I felt bad for the accused but didn’t really think prejudice had anything to do with the plea deal. However, that all changed after we observed the second arraignment.

During the second arraignment, a college engineering student attending the University of Chile was accused of stealing Tequila and candy from the exact same store as the first individual. The total value of the goods stolen was about twice as much as the first individual. Tiffany and I expected a similar plea deal as the first individual. Well, that didn’t happen. This college student, who probably stole tequila and candy to throw a party, got off with a slap on the wrist – one-year probation. No fine. No jail time. Nothing. All he has to do is check in with some government office once every few weeks.

Granted, an argument can be made that justice was nevertheless served. After all, both individuals broke the law, admitted their guilt, and faced their punishment. However, there is a fundamental difference between the relationship of the crime and the punishment that each of the accused received. There is no clearer indication that prejudice played a role in these hearings than when a clearly impoverished individual received a harsher punishment for a lesser crime.

The slogan of the Defensoria is “Sin defensa no hay justica” (without representation, there is no justice). Today, the State’s prejudice against the poor tainted the arraignment hearings and even with representation, there was no justice.

So Alissa and I are sitting at the Panama City airport, waiting for our connecting flight to Santiago. It’s been an interesting trip so far to say the least. I figure I’d take this time (now that I have free wi-fi) to post some blog entries I’ve been keeping.

9.4.07:

It’s 4:54 p.m. and I’m riding the Surfliner to Los Angeles. Once there, I’ll meet Alissa at
LAX and we’ll be on our way to SANTIAGO!!! (Actually we’ll be on our way to Panama City, Panama then Santiago).

Either way, this has been one crazy week. My apartment lease ended last Friday and I’ve been homeless ever since. I’ve been feeling pretty useless with all the bumming around I’ve been doing this week. It’ll be nice to finally settle down in my own apartment (by my own apartment I mean Alissa, Tiffany, and mine) even if it is in another country. I’m not quite sure where our apartment is, however, I know it’s in downtown Santiago (Providencia, specifically). I’ll take some pictures and put up some photos whenever we get settled in.

Despite the numerous doubts and concerns I had about participating in this program, one thing is certain. I’ll most likely never have another opportunity to live in Chile again. So if not now, when?

9.5.07:

Well, things haven’t gone quite as planned for Alissa and I. In fact, you could say our plan completely died. We were originally going to fly out of LAX at 2:00 a.m. Wednesday morning, catch a connecting flight in Panama City, Panama, and arrive in Santiago at around 7:00 p.m. Needless to say, that didn’t happen.

Our troubles began when Copa Airlines discovered that the plane we were supposed to fly on from LAX to Panama City was broken. As a result, Alissa and I had to stay at a Motel 6 while we awaited our rescheduled flight the next morning. Now, it was already 1:30 a.m. when Alissa and I found out this annoying news. By the time we got shuttled to the hotel, it was close to 3:00 a.m. Once we arrived, we had to wait even longer to try and get a room. Now, try and imagine an entire plane worth of passengers checking into a hotel at three in the morning . . . people were not happy. By the time Alissa and I finally got our room, we were so pooped, it didn’t take long for us to zonk out.

Literally a few hours after we went to bed, we got our wake up call for our re-scheduled flight. We had a quick breakfast downstairs and boarded the shuttle back to LAX. When we arrived at the terminal, there was only one worker from our airline there and she had to check in the entire plane by herself (eventually, they brought out ONE other employee… but that didn’t really speed things up much). It took so long to get checked in that our new flight, which was scheduled to leave at around 11 a.m., was delayed another hour. Alissa and I remained patient and reminded ourselves that we’d be enjoying the Andes with Victor, Sarah, Michelle, and Tiffany in just a few days.

We finally got on the plane at around noon and were excited that our trip was finally about to begin… or so we thought. As it turns out, the airline forgot to load food for the passengers and we ended up waiting on the plane at the terminal for another hour and a half, making it 1:30 p.m. when we finally took off.

The flight itself wasn’t bad. Unfortunately, because it took so long to check in and to actually take off, we missed our connecting flight from Panama City to Santiago. So again, we were forced to stay overnight and catch another flight to Santiago the next day. The airline shuttled us into the city, where we stayed at the Hotel Soloy. I’m not sure which Hotel was shadier, the motel 6 or the Hotel Soloy. Anyway, at least we had beds to sleep in.

So here we are in Panama City, in a shady hotel, in a bad part of town, and watching the Simpsons in Espanol. It’s been one crazy trip and we’re only half way done. We’ll see how we fair tomorrow. I’ll keep you all posted.

Well, the summer semester is coming to an end and, as one would expect, it’s almost finals time. Ugh. It’s amazing how much faster each semester seems to be passing me by. I feel like I was just studying for my con law 2 final last week. Next thing I know, I’ll be done with finals and getting ready for my internship abroad in Santiago, Chile!

That’s right, I’m interning abroad in Santiago at the Defensoria Penal Publica de Chile (The Public Defenders of Chile). I’m very excited at the opportunity to experience a completely different legal system. Not only is it different, but it’s essentially brand new. From everything that I’ve read and everything that individuals have told me, Chile has entered a progressive time in their criminal justice system. Torn down are the despotic walls of the Pinochet dicatorship and raised anew are the hopes of real equality and justice under new (although., not really new anymore) President Michelle Bachelet.

Hopefully I’ll have an opportunity to observe a system that truly wants produce just results. Stay tuned.

Next Friday is a big day. I get to help Alex with a parole hearing for one of my innocence project clients. The individual has been incarcerated for the past 17 years and has a real opportunity to get paroled either here in the U.S. or back home with some of his family in Mexico. While we don’t usually handle parole cases here at the innocence project, this individual’s case was unique.

At trial, there were real questions regarding his level of involvement in the crime. In fact, last year, the parole board ordered the D/A to conduct an investigation to find out exactly what actions my client actually took (versus what his co-defendants did). As it turns out, according to the investigation, my client wasn’t as involved as originally thought. Ironically enough, the real perpetrator of the crime, the actual shooter, has already served his sentence and is a free man. It’s sad to think that my client, who has literally been a model inmate according to prison file, is still serving time when the actual perpetrator of the crime has already been released. I really hope Alex and I can convince the board to release our guy on parole. He has served his time.

On Monday, April 23, 2007, Jerry Miller became the 200th person exonerated through DNA evidence in the United States. The 100th exoneration occurred just five years earlier in January 2002, 13 years after the very first DNA exoneration. These 200 exonerees have spent a combined total of 2,475 years in prison, averaging 12 years in prison each. These numbers show a disturbing trend: More wrongfully convicted individuals are being found now than at any other time in our nation’s history. It is frightening to consider how many individuals remain wrongfully incarcerated with no hope of freedom. It is undeniable that the innocent can free fall through the gaping cracks of our criminal justice system. Unfortunately, the safety-net designed to catch their fall is not always present.

Over the past several weeks, the California Innocence Project has been anxiously awaiting the trial court’s decision in another habeas petition that we filed on behalf of Dolores Macias. Macias was convicted in 1994 of drowning her niece. The state relied almost entirely on the testimony of Macias’ children, who testified against their mother. However, after years of psychological torment, all three of her children have come forward, revealing that they lied during their testimony in 1994. The lies were nothing more than fruits of manipulation by their grandmother. Even the victim’s own mother testified that Macias is innocent. Consequently, both the victim’s mother and Macias children wanted nothing more than to see Macias free again.

Unfortunately, last Monday, Judge Stephen A. Marcus effectively obliterated those hopes when he denied the petition. In his opinion, Judge Marcus articulated concerns that the California Innocence Project may have coerced Macias’ children into recanting their former testimony. As an example, Judge Marcus argued that it was improper for students in the Innocence Project to give envelopes with prepaid postage to Macias’ children.

Now, I’m only a third year law student, but…really??? REALLY?!? REEEEAAAALLLL??? Prepaid postage envelopes constitute coercion? Give me a break. Judge Marcus’ opinion is not only baseless, but it flies in the face of highly probative and substantial exculpatory evidence. I think, at times, our courts are so concerned with comity and finality of trial court decisions that they lose sight of the bigger picture. The victim’s own mother believes in Macias’ innocence. Macias’ children believe in their mother’s innocence. Nearly everyone believes in Dolores Macias’ innocence. Unfortunately, the only people left that don’t believe in Macias are the D/A’s office and Judge Marcus.

I can already feel my wide-eyed exuberance and idealism dying as the reality of our criminal justice system begins to set in.

So we’re coming down to the last few weeks of the semester and I’m really starting to feel the pressure. With my trial team competing at nationals next week, it’s hard to find time to do all the other things I need to do to pass my classes. I feel hopelessly behind and the window of opportunity to catch up is quickly closing.

4 weeks until my first final. Oh boy….

So our two trial teams had a great weekend in Vegas. In fact, both teams went undefeated in our first three preliminary rounds. Not only that, we had the top scores for the entire competition. As a result, we were seeded the #1 and #2 team going into elimination rounds.

Both teams went on to the final round of four and my trial team actually won the entire competition. As a result, we qualified for nationals, which will be held in New Orleans at the end of the month. We’ll get to compete with the top 16 teams in the entire country!!!

I think this wins shows that our recent success is not simply a random occurrence. The fact that we’ve been consistently winning competitions the past several years indicates that the system is producing winners. We’ve won three different regional tournaments, qualifying all three teams for nationals in their respective competition.

While Vegas was a lot of fun, I can’t wait to get to New Orleans and competing with the best of the best.

So my mock trial team flies out to Vegas tomorrow night! We’ve been practicing so much that I think we’re all ready for the competition (well, maybe we’re just ready to be in Vegas). Either way, it’s time to put our game faces on. I feel like there’s a lot of pressure on our team because all the other mock trial/appellate teams have done so well.

We sent two teams to the TYLA mock trial competition in Utah two weeks ago and both advanced to semi-finals. One of those teams actually advanced to finals and won, qualifying them for nationals. That is phenomenal when you consider the level of talent at these competitions.

In addition to the TYLA teams, last week our Jessup Appellate team qualified for nationals as well. They are on their way to D.C. to compete with all the international students now. Again, really amazing considering the competition.

Now it’s our turn. We’re sending two teams to Vegas tomorrow and one of us needs to advance. I’m confident that both of our teams have the talent to get the job done.

We’re not the only teams competing this weekend. Coach Brooks is sending his appellate team out east to Washington D.C. to compete in the Howard Civil Rights Appellate Competition. His team has been working really hard and I’m sure they’re ready for competition.

Wow, I can’t believe I’m about to compete in my first mock trial competition. It feels like just last month I was getting ready for my appellate competition with Coach Brooks. Time really flies when you’re getting ready for competition.

Well anyway, here’s to Ingrid, Meghan, Dave, Lorenda, Rosie, Jessica, and Kristen. Hope we kick some… well… you know…