In the mensalão case, defense lawyers discuss whether their arguments will influence Supreme Court justices

Mensalão lawyers are divided on the question of whether or not justices on the Supreme Court (“STF”) will be swayed by their arguments. On Wednesday, August 8, the subject was debated by a number of the defense lawyers in light of media reports that the eleven justices have already prepared their votes.

The lawyer for deputy João Paulo Cunha, Alberto Zacharias Toron, says he believes oral arguments (“sustantações orais”) by defense lawyer will have an effect on the decision. “My impression is that although the justices (“ministros”) may have already organized their votes, that does not mean they have completed them. I think they are affected by what lawyers contribute. Each one of them will be careful to write opinions in light of the evidence in the case files (“prova dos autos”) so as to ensure that their vote is in accordance with the facts of the case,” said Toron.

However, Marcio Thomaz Bastos, a former minister of Justice, who is defending the former director at the Banco Rural, Jose Roberto Salgado, says the STF justices must take into consideration more than defense arguments. “In order to condemn, proof of guilt must be contained in the evidence and facts as they appear in the case files after the judicial investigation is completed (“instrução judicial”).” According to Bastos,  “Everything must be duly evaluated to ensure that a decision is based on solid proof presented at the end of the judicial investigation rather than proof at the beginning of the investigation. Everything depends on an analysis by each minister. This is covered by Article 155 of the Penal Code.”

Asked if the decsion will affect Cunha’s campaign, Toron emphatically said yes. “If he is not guilty the effect will be highly positive. If he is condemned, and I hope this does not happen, the reality will be different.”

João Paulo Cunha is the only mensalão defendant running for office in this year’s midterm October elections (he is a candidate for mayor of Osasco, a city in the metropolitan reigon of São Paulo). When the case became public in 2005, Cunha was the president of the Chamber of Deputies. He faced a vote on expulsion (“cassação”) in the Chamber of Deputies but escaped. He was reelected federal deputy in 2006 and 2010.