High drama as Attorney General Gómez resists her removal

Corrupt ex-prosecutor's complaint sets off complex political battle that may end in a constitutional crisis

Gómez fights for her job
by Eric Jackson

Does Panama have criminal defamation laws that prevent journalists from reporting many important truths? Perhaps in the media where corporate lawyers make editorial decisions based on the possibility of incurring litigation costs. Perhaps among the wimps of the journalistic profession, and the upright reporters who have to work under editors or publishers of this ilk.

But let us report the bottom-line truth at the outset here: Arquimedes Sáez is a throwaway punk, a disgrace to the legal profession, a miserable excuse for a human being, a hoodlum who betrayed the public whom he was hired to serve as a prosecutor, a man who deserves to be in a prison cell for a long time. That he's the pivot around which a struggle for control of the legal system turns screams nasty things about Panamanian justice.

In 2005, Mr. Sáez used his job as a prosecutor in La Chorrera to run an extortion scheme on the Zambrano family. He demanded $2000 from Miguel Zambrano, under threat that if such payment didn't happen, Zambrano's daughter, then incarcerated in the Chorrera jail, would be sent to the women's prison in Tocumen, where it would be difficult and expensive for the family to visit and deliver meals. Zambrano complained to Sáez's boss, Attorney General (Procuradora General) Ana Matilde Gómez and authorized her to tap his phone. Another member of the Zambrano family gave the same authorization.

Gómez authorized the interception of Zambranos' phone calls and sure enough, Sáez called to press his corrupt demands and arrange for the payoffs. Payment was made and surreptitiously recorded. As soon as the money changed hands the police moved in and arrested Sáez.

But in 2004, the successive legislatures of the Moscoso and Torrijos administrations had made some changes to the constitution. Before the change went into effect, a statute gave the Attorney General the exclusive power to authorize wiretaps. The constitutional change did not repeal that law, but it required judicial authorization for a wiretap. Unaddressed was the question of whether people like the Zambranos could waive their rights to be free of warrantless wiretaps in order to resist criminals coming into their lives over their phone lines.

In 2007 the Supreme Court, in a decision written by the notoriously pro-corruption magistrate Winston Spadafora, ruled 7-2 that the wiretaps on the Zambranos' phones were improper because they were done without a judge's signature. Sáez walked, although the case against him still grinds on --- here in Panama we have no "fruit of the poisoned tree" exclusionary rule. Not only did Sáez walk, he filed a criminal complaint against Gómez for exceeding her authority and invading his privacy.

Last year the Supreme Court lifted Gómez's immunity from prosecution in this matter. After the recusal of Administrative Prosecutor Oscar Ceville, it was left to his deputy, Nelson Rojas, to prosecute the case. On January 5 Rojas ordered Gómez to testify at an indagatoria, or sworn deposition for use in the trial dossier, and petitioned the Supreme Court for an order barring her from leaving the country and removing her from office while the case is pending.

The political context

The attorney general's office is semi-independent. The post, which carries with it broad powers over the Public Ministry to which prosecutors, medical examiners and other key figures in the legal system belong, is filled by presidential appointment for a 10-year term. Since the mid-90s the Public Ministry's turf has increasingly been encroached upon by other parts of the government. Milestones in this process include the election of Ernesto Pérez Balladares in 1994, who, having campaigned against "judicial terrorism," appointed Christian Democrat José Antonio Sossa as attorney general with a tacit mandate to look the other way on most public corruption matters. The de facto license to steal and collect bribes carried over through Mireya Moscoso's term in office.

During the Pérez Balladares administration the son of a friend of Sossa's was arrested on a cocaine charge by the Judicial Technical Police (PTJ), then part of the Public Ministry but under a chief appointed by the Supreme Court. Sossa ordered the young man released forthwith but the PTJ chief at the time, one Alejandro Moncada Luna, balked. Sossa dashed down to the PTJ headquarters in Ancon, where there was a confrontation between his bodyguards and Moncadas, in the course of which guns were drawn.

In the lame duck period between the Pérez Balladares and Moscoso administrations, Moncada petitioned the Supreme Court to lift Sossa's immunity and try him on abuse of authority charges, while Sossa petitioned the high court for leave to fire Moncada. The court held that the attorney general has the power to fire the PTJ chief, and this was done. The matter of Sossa's alleged abuses was not taken up.

In the Torrijos administration, after the apparent inside job murder by poisoning of Franklin Brewster, the head of the PTJ's Sensitive Investigations Unit, the PTJ was by statute abolished and most of its functions and personnel transferred from the Public Ministry to the National Police, a division of the Ministry of Government and Justice.

(The Brewster case remains unsolved. The crime and subsequent sabotage of laboratory proofs and infiltration of a bogus FBI agent into the case suggest a high degree of drug cartel infiltration into not only the PTJ but also the US Embassy's legal assistance mission here.)

Putting the PTJ into the presidentially controlled National Police gave presidents an effective veto power over investigations of corruption in their administrations. Sometimes outside pressures can be brought to bear, as in when the US Drug Enforcement Administration caught Torrijos's National Maritime Service chief, Ricky Traad, in a series of drug-related crimes. But even then things were finagled so that the charges against Traad, who became conspicuously and inexplicably wealthy in public office, were reduced to the misappropriation of a shipload of scrap metal.

When Sossa's term ended, Martín Torrijos appointed Ana Matilde Gómez as attorney general. The first thing she tried to do was to clean house of Sossa's people. Some of the resignations she asked for were forthcoming but others weren't, and ultimately the Supreme Court ruled that prosecutors were civil servants who couldn't be fired without cause. Then, prosecutors and a medical examiner were caught in the destruction of evidence and other obstructions of justice in the death of a 19-year-old prostitute who fell or was thrown to her death from an upper floor of the Plaza Paitilla Inn in the course of a sex and drugs orgy involving several men from prominent families. The courts ended up nullifying most of Gómez's disciplinary actions in this case as well.

Among the run-ins that Gómez had with subordinates was the requested resignation in 2005 of one Nilka González de Sáenz, who had headed the Public Ministry's penitentiary affairs department.

Gómez made certain moves to curb public corruption, but gave many appearances of being intimidated against proceeding in the face of an apparent "non-aggression pact" between the Moscoso and Torrijos administration. All of the cases against the flagrant peculations of the Mireya years seemed to disappear into a black hole.

Emblematic were the charges that Richard Fifer, when governor of Cocle province during the Moscoso administration, pocketed a check from the Spanish government intended for the Arias Madrid Brothers Museum in Penonome and put phantom employees on the governor's payroll. Fifer went underground --- which did not stop him from meeting with Torrijos administration ministers --- and raised money on Canadian stock exchanges. He paid the low six-figure sum that he allegedly stole and, although that's manifestly no defense to an embezzlement charge, nothing more was heard about the case, in part due to a gag order by Gómez.

Then came the scandal that sank the PRD's fortunes in last year's elections. Colombian racketeer David Murcia Guzmán unquestionably:

provided in-kind campaign donations to the campaign of PRD mayoral candidate Roberto Velásquez;
was provided with protection by SPI presidential guards;
had luxury cars imported duty-free thanks to an illegal arrangement with PRD Central American Parliament deputies; and
was assisted in getting through customs and immigration at Tocumen Airport by the protocol chief of the PRD-controlled legislature.

However, the biggest allegation here (Murcia had other major political entanglements in his native Colombia) was that some $3 million apiece was provided to the Bobby Velásquez and Balbina Herrera campaigns by the Colombian, who having been convicted in Bogota for financial crimes is now in the United States facing drug money laundering charges (and, by the way, being effectively silenced). In addition to Murcia's jailhouse declaration that this was so --- as in giving the mayoral candidate a suitcase stuffed with $2 million in cash --- there were retracted denials from the Velásquez camp about the candidate ever having met Murcia, and the word of Fernando Aguilar, one of the SPI guards, that Bobby Velásquez went to a meeting with Murcia empty-handed and came out carrying a suitcase to lend credence to the bribery story.

The best evidence, however, would be hotel security video recordings that would have caught Bobby leaving with a suitcase had this happened. And by her own account, shortly before his arrest, Ana Matilde Gómez was at the hotel where Murcia was staying, on the same floor, and saw that he had the services of presidential bodyguards.

So might one think that a prudent attorney general would gather all possible evidence and leads when there are indications of an alleged racketeer's political connections? Wouldn't one have expected prosecutors to have secured copies of those videos? It wasn't done, and allegedly it was the hotel's policy to erase videos after 30 days, so all there is to prove Murcia's bribery allegation are the Colombian's unsworn declaration against his penal interest and the word of Fernando Aguilar, who would testify to a circumstance tending to corroborate that.

This past September prosecutor José Ayú Prado went into court and, because Murcia was not talking to him, said he was left with no evidence and asked a judge to drop the bribery investigation against Velásquez.

Meanwhile, however, other investigations against Murcia and his associates here went forward, one of which pointed at accountant and Murcia associate Ernesto Chong Coronado. Chong was charged with money laundering, placed under house arrest and ordered not to leave the country. The prosecutor in the case? The anti-drug prosecutor at the time, one José Abel Almengor.

So what did Chong do? He stepped on a plane at Tocumen Airport and went to Miami for a couple of days, then returned to be arrested and held until he posted what was at the time the largest bail ever imposed on an alleged lawbreaker awaiting trial in Panama. Immigration officials at the airport said that they had never received notice that Chong wasn't supposed to leave the country, and Gómez began an investigation to determine whether this was due to Almengor's negligence or intentional omission. Almengor resigned his job.

And now...

Rojas's petition to remove Gómez was assigned to one of the two new Supreme Court magistrates, one José Abel Almengor. And if Almengor can't handle the case due to a conflict of interest? His alternate is one Wilfredo Sáenz, the husband of Nilka González de Sáenz, whom Gómez forced out of her former Public Ministry post.

Almengor told television reporters that he would recuse himself from the case, but then the Supreme Court issued a statement that there would be no recusal. Gómez made a motion to require his recusal, which ought to take some time before the Supreme Court to decide.

In the end, whichever magistrate or alternate gets the Rojas petition, the nine-member Supreme Court will decide its fate. At the moment there are five magistrates appointed either by Ricardo Martinelli or Mireya Moscoso, the latter whose party is allied with Martinelli; while four others were appointed by the PRD's Martín Torrijos.

The PRD has been complaining that Martinelli has been pressuring Gómez to prosecute members of their party for corruption. Martinelli has made public statements calling on her to prosecute public corruption, and there have been some prosecutions, two of which have resulted in former Torrijos adminstration education ministers being jailed on charges of corruption in public school repair contracts.

If Gómez is removed, however, Martinelli gets to appoint someone to finish out the nearly five years left in her term.

Right across the political spectrum, from the Chamber of Commerce on the right to FRENADESO on the left, there has been an outcry against Gómez's prosecution. Whether or not she exceeded her authority by ordering the wiretaps on the Zambranos' phones, the bulk of publicly expressed opinion is that Arquimedes Sáez is unworthy and Gómez's removal at his behest would be a landmark victory for the cause of public corruption with impunity.

The protests have in many cases been accompanied by calls for the convening of a constituent assembly to draft a new constitution. Martinelli wants certain constitutional changes and may not be averse to such a proposition. But whether under the restrictive rules imposed by the Moscoso-Torrijos constitutional deal or another method put to the voters in a referendum, the process of replacing the constitution that Panama has inherited from the dictatorship would put all governmental institutions into play. For all political factions it would be a crisis in the Chinese sense of the word, a combination of danger and opportunity.

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