PUBLIC OPINION AND JUDICIAL SYSTEMS: THE EFFECTS MEDIA
AND THE PUBLIC HAVE ON BRAZILIAN JUDICIAL OUTCOMES
CONCERNING HOMICIDE CRIMES ON PUBLIC ROADS
Caio Victor Lopes Tito1
ABSTRACT:
The current state of technological development associated with the decreased cost to access
information has made public opinion become increasingly more active and important in
defining criminaljudicial policy and decisions. The issue is whether this influence beneficiates
the development of the legislative and judicial systems or if it is negatively inducing decisions
that are incoherent with the constitutions. The objective of this study is to analyze the cost and
benefits of public opinion on judicial policies and decisions through a case study of the
prosecution of homicides in traffic on public roads in the Brazilian judicial system. Recent
media coverage and public opinion manifestations have led Brazilian judges to create a doubt
between eventual intention of murder and manslaughter in homicide crimes in traffic on
public roads. Thus, the severity of these decisions and the compatibility with the Brazilian
criminal law will be verified through this case study.
KEY WORDS: Homicide in traffic accident, Brazilian judiciary, The media, Public opinion.
1.
INTRODUCTION
The Brazilian Criminal Procedural Law has publicity as one of its principles, which
means all trials must be public and free for society to access. Therefore, the means of
communication are facilitators of this publicity, promoting news coverage on major cases or,
at least, those with greater repercussion.
With the expansion of media power and easy access to information, caused by
technological progress, speech was instantly propagated to a countless number of people,
from any region of the planet. Thus, it is important to point out that with higher numbers of
news recipients, there is a proportional increase in the number of individual opinions and,
consequently, a stronger restlessness among the public opinion.
1
Lawyer graduated at Pontifial Catholic University of Goiás, Brazil, and specialized in civil procedure law at
Fundação Educacional de Goiás - Faclions.
It is noteworthy, therefore, that the media, which control and are conscious of its
content, are able to mobilize their audience, exerting influence on the mindset of a group.
Within these receptors are legal professionals, which include judges.
If, on one hand, the Constitution of the Federative Republic of Brazil guarantees full
freedom of speech and press, this same constitution also protects personality, individuality,
privacy, natural justice and full legal defense. Hence the central question of this paper arises:
is there, in Brazil, an influence of the media and public opinion in the traffic trials that involve
homicides2?
This paper begins, in the second topic, with the analysis of the vision and the behavior
of the media and of society when scrutinizing criminal conduct, emphasizing the innate
curiosity of individuals and media exploitation of criminal events.
Then, on the third topic, there is a brief study of the conduct expected of the judge,
which regard the obligation of neutrality and impartiality. From the study of some Brazilian
scholars, which will be seen below, one can conclude that there are legal elements
(objectives) ensuring the impartiality of the judge. Nevertheless, full neutrality is something
impossible to demand, since the judge is immersed in the same society as the media and the
people, and that pressure him/her for a verdict are.
Finally, on the forth topic, the correlation between media, public opinion, judicial and
legislative powers shall be attempted. In this part of the paper, an analysis of the historical
context of part of the Brazilian legislation and legal scenario shall be conducted, when public
opinion and media intrusions have had significant effects. This shall be done to observe if the
same behavior among trail outcomes can be detected in the current trials involving homicides
in traffic in Brasil.
2.
THE VIEW OF THE MEDIA AND SOCIETY ON CRIMINAL CONDUCT
The transit of automobiles is, since its inception, conflicted. The first cars had to fight
for a space with carriages, horses, bicycles and pedestrians. With the popularization of the
motorized vehicle and the constant modernization of transportation, humanity arrived at its
current stage. However, the conflict persists, now involving pedestrians, drivers, inspectors
and society as a whole.
2
The word homícidio in Brazil means any type of death caused by another person, be it manslaughter or murder,
with or without intention. Thus, in this paper, to use a word closer in translation to this Brazilian legal principle,
the word “homicide” will be used with this borader comprehension.
In Brazil, when referring to conflict, it is not mere figure of speech. The numbers
shown in two different researches conducted for Sangari Institute (WAISELFISZ, 2012) and
Brazilian Center of Latin American Studies (WAISELFISZ, 2013) are as alarming as those of
any conflict zone on the planet.
Table 1. Number of direct deaths in armed conflicts – 2004-2007
Armed
2004
2005
2006
2007
conflicts
Total
Death Annual
deaths
Average*
Iraq
9.803
15.788
26.910
23.756
76.266
64,9
Sudan
7.284
1.098
2.603
1.734
12.719
8,8
Afghanistan
917
1.000
4.000
6.500
12.417
9,9
Dem. Rep. of
3.500
3.750
746
1.351
9.347
4,1
Congo
Source: GENEVA DECLARATION SECRETARIAT in WAISELFISZ, 2012.
* per 100 thousand inhabitants
Table 1 shows the total number of direct deaths in armed conflicts in some countries
of the world during the period 2004-2007, according to the Global Burden of Armed Violence
2011 (GENEVA DECLARATION SECRETARIAT in WAISELFISZ, 2012). Afghanistan
and the Democratic Republic of Congo, regions known for their instabilities, had an average
annual rate of 9.9 and 4.1 deaths, respectively, in conflicts per 100 thousand inhabitants in the
period. According to Waiselfisz (2012), in 2010, Brazil reached a staggering 21.5 traffic
deaths per 100 thousand inhabitants. In the period of 2000-2010, the authors states that the
number of fatalities on public roads increased from 28,995 to 40,989 annually, representing
an increase of 41.4% in 11 years.
These numbers in Brazil are alarming and its society has realized this, especially
through the means of communication. Printed, spoken and televised daily news are relentless
in repeating the tragic, violent and emotional appeal of violence in traffic. On the quest for
high numbers in audience and, consequently, in sales, they explore and dramatize information
on the theme, which is appealing to the public.
Because of this culture of media exploitation and the lack of immediate response from
the public authorities, this new phenomenon has generated the creation of the media
jurisdiction. The individual, before being tried in the judicial proceedings, is now exposed and
judged by the people who only had access to the emotional appeals of the media. And if
public authorities decide differently than "expected" by the people at the end of the process,
the impression of impunity will be impressed among the public.
The words of anthropologist Roberto Da Matta, quoted in an article in newspaper O
Estado de Sao Paulo (in SANT'ANNA, 2007, p. A14), are clear in describing this situation:
In Brazil, the offense is treated as a scandal, since it has to explode the subject, make
him go through the shame, expose him publicly, because he will not be arrested (...).
Any Brazilian knows that, in the scandal of the moment (whichever it is), the
punishment will depend less on the circumstances and more on the person. It is not
only a matter of indeterminacy, since there could be competition between the law
and the person. No! What exists is a certainty that the law varies according to the
person to whom it applies.3
It is not without reason that such names as José Luiz Datena, Batista Pereira4 and
similar are so praised in Brasil by the gerenal public, especially the lower social classes. They
present themselves as advocates of righteousness of lurid cases by exploring and exposing
them for hours on the television screen. Often the citizen resorts to them before seeking public
authorities to solve their problems.
It should be noted that this public behavior is related to all criminal conduct, not only
to traffic crimes. A clear and recent example of this process is evident in the famous case of
the murder of the child Isabella Oliveira Nardoni5. Before any expert survey or investigative
conclusion, Brazilian magazine Veja (2008, p 96-7) exposed the couple Nardoni as the prime
suspect, tracing their "delinquent profiles". The excerpt below, taken from the magazine, is an
example of the delinquent profile of the father, Alexandre Nardoni:
Alexandre Nardoni is considered a violent person. Of the fifteen witnesses heard so
far by the police, ten said they were aware that he physically assaulted his wife. In
the building where Nardoni and Anna Carolina resided before moving to the current
apartment, residents say the fights were so frequent and noisy that they had already
3
Translated, by the author of this paper, from the original in Portuguese: “No Brasil, a transgressão é tratada
como escândalo, pois tem que explodir o sujeito, fazê-lo passar pela vergonha, denunciá-lo publicamente, porque
ele não vai ser preso (...). Qualquer brasileiro sabe que, no escândalo do momento (qualquer que ele seja), a
punição vai depender menos das circunstâncias e muito mais da pessoa. Não é somente uma questão de
indeterminação, pois poderia haver competição entre a lei e a pessoa. Não! O que há é uma certeza de que a lei
varia de acordo com a pessoa à qual ela se aplica.”
4
These individuals are news anchors that explore sensational news, which are broadcast nationally and are
specializes in police news, sometimes even showing strong images.
5
The Isabella Nardoni case refers to the death of a Brazilian girl called Isabella de Oliveira Nardoni, at the age
of five. She was thrown from the sixth floor of a building, from her father’s apartment, in the district of Vila
Guilherme, in São Paulo, on the evening of March 29th , in 2008. The event generated great repercussion in
Brazil and Alexandre Nardoni and Anna Carolina Jatoba, respectively the father and stepmother of the child,
were convicted of triply qualified murder. The public opinion and the media played a strong role on the outcome
of the investigation and the trial, demanding nothing less than the conviction that was handed out in the end.
resulted in four warnings by the administration of the condominium.6 (VEJA, 2008,
p. 96-7)
As a consequence of unceasing approaches such as this, the couple went to jury trial
under violent public protests, and was practically, pardon the expression, "executed in the
public square", as in the days of barbarity.
Regarding traffic crimes, in 2012, an accident was reported involving a luxury car of
the Mercedes brand and a cyclist, resulting in the death of the latter. In a country with high
mortality rates, such as Brazil, this is almost a routine. However, the driver of the Mercedes
was Thor Batista, eldest son of one of Brazil's greatest businessmen, Eike Batista. Thus, the
need of intensive media coverage was established.
The accident occurred on March 17, 2012, generating news, as the one conveyed
below by Folha de São Paulo, a Brazilian newspaper with national circulation:
Son of Eike Batista runs over and kills cyclist in Rio
The eldest son of businessman Eike Batista with the former model Luma de
Oliveira, Thor, 20, struck and killed a cyclist yesterday night in Rio de Janeiro.
The accident occurred around 7 pm on Saturday, on Washington Luís highway,
heading to Rio, in the Xerém district, in Baixada Fluminense.
The victim, Wanderson Pereira dos Santos, 30, died instantly.
According to the Police, Thor was driving a silver Mercedes SLR McLaren, a
supersport, accompanied by a friend. The case was registered as manslaughter
(without intent to kill).
According to the cops of the 61st Civil Police precinct, which registered the
occurrence, Thor and his friend passed the breathalyzer test, which did not attest any
alcohol consumption.
According to police, Thor had been sick after finding Wanderson dead, but didn’t
omit to rescue him.
Thor’s car was seized in a courtyard of the Federal Highway Police, but Thor’s
lawyer managed to take the car under the guarantee that the veihcule’s condition
would not be modify.
Thor has to testify in the upcoming days. The press office of EBX, Eike Batista’s
Group, has confirmed the accident and have prepared a note about what happened.7
(FOLHA DE SÃO PAULO, 2012)
6
Translated, by the author of this paper, from the original in Portuguese: “Alexandre Nardoni é tido como uma
pessoa violenta. Das quinze testemunhas ouvidas até agora pela Polícia, dez afirmaram que tinham
conhecimento de que ele agredia fisicamente a mulher. No prédio em que Nardoni e Anna Carolina residiam
antes de se mudar para o atual apartamento, moradores contam que as brigas eram tão freqüentes e ruidosas que
já haviam resultado em quatro advertências por parte da administração do condomínio”.
7
This news article was translated by the author of this paper. The original text, in Portuguese, can be found in
annex 01.
Since the incident, Thor’s every move has been monitored and publicized, as if trying
to make him out as a “traffic violation maniac”.
You only had to access Brazilian
communication portals or printed daily newspapers to learn a new fact about his life. Table 2
below demonstrates this daily operation, emanating from several vehicles of information.
Tabel 2. Cronology of Headlines on News Websites about Thor Batista’s traffic accident
– 2012
Date
Headline
19/03
“Son of Eike has a history of speeding fines, TV news shows”1
20/03
“Thor Batista added 51 points to his driver’s license in a year
and a half”2
21/03
“Thor Baptist testifies about running over cyclist in Rio”3
23/03
“Son of Eike Batista hit elderly in May last year, says columnist
River”4
23/03
“Thor Batista attends Mass for the dead cyclist in accident”5
Tabel elaborated by the author of this paper, using as sources the following Brazilian news websites:
1
UOL NOTÍCIAS. Filho de Eike tem histórico de multas por excesso de velocidade, mostra telejornal. Available at: <
http://noticias.uol.com.br/cotidiano/ultimas-noticias/2012/03/19/filho-de-eike-tem-historico-de-multas-por-excesso-develocidade-mostra-telejornal.htm >. Accessed on: May 13, 2013.
2
FOLHA DE SÃO PAULO. Thor Batista somou 51 pontos na habilitação em 1 ano e meio. Available at: <
http://www1.folha.uol.com.br/cotidiano/1064333-thor-batista-somou-51-pontos-na-habilitacao-em-1-ano-e-meio.shtml
>.
Accessed on: May 13, 2013.
3
FOLHA DE SÃO PAULO. Thor Batista depõe sobre atropelamento de ciclista no Rio. Available at: <
http://www1.folha.uol.com.br/cotidiano/1064953-thor-batista-depoe-sobre-atropelamento-de-ciclista-no-rio.shtml >. Accessed
on: May 13, 2013
4
UOL NOTÍCIAS. Filho de Eike Batista atropelou idoso em maio do ano passado, diz colunista do Rio. Available at: <
http://noticias.uol.com.br/cotidiano/ultimas-noticias/2012/03/23/filho-de-eike-batista-atropelou-idoso-em-junho-do-anopassado-diz-colunista-do-rio.htm >. Accessed on: May 13, 2013. 5
CARAS Online. Thor Batista participa de missa de 7º dia pelo ciclista morto em acidente. Available at: <
http://caras.uol.com.br/noticia/thor-batista-missa-setimo-dia-ciclista-morto-acidente-transito-baixada-fluminense-eike-batistafilho#image0 >. Accessed on: May 13, 2013.
It is because of this form of media exploitation, which informs, but also appeals to the
receiver’s emotions, that a sense of insecurity is developed. Most often, this is inconsistent
with the reality of people’s lives or with the true facts. This feeling, if not execrating the
transgressor, generates a popular call for measures to restrain and punish more forcefully
those responsible for the violent acts, sometimes regardless of the reality and of thorough
investigation of the facts.
Relevant observations were made by Suellen Matiazzi Breciani and Roberto Martins
de Oliveira (2011):
The media and its political discourse build in the society a culture of constant fear in
order to reach larger audiences. And it is this mass communication that embraces the
idea of crime as a propellant topic in the news, transforming it into a spectacle,
involving society in a popular commotion, introducing assumptions on behalf of the
public.8
In contrast, the case of the young Rafael Baltresca9, who lost his mother and sister,
both having been run over by a car in September 2011, was not reported or publicized by the
means of communication. Nevertheless, this is a different example of the reaction to traffic
violence. Instead of massacring the criminal driver, the public appeal for this case was
stronger. A petition was created and sent to the Brazilian Senate, with more than 400,000
signatures (NÃO FOI ACIDENTE, 2014)10, leading to the development of a bill, originated
from a popular iniciative, which proposes changes in traffic law.
3.
JUDICIAL IMPARTIALITY AND NEUTRALITY
The current model of Brazilian society has started demanding quicker and more
dynamic responses. As a result, the response to the population wighs heavily on the Judiciary,
while the slow Legislative is not able to draw up a definitive and unanimous solution. But it
should be noted that the Judiciary is driven by deadlines and judicial understandings.
The Brazilian legal system presents an environment in which the judge and other
organs of the jurisdiction have to be impartial and neutral. However, it should be noted that
they are also human beings and, as such, are susceptible to subjective variables (personal and
society formation), as previously stated.
First of all, the judge is invested with the title because there is faith in his legal
knowledge11, in his clarified vision of society and in his academic and professional formation
to occupy that position. Once vested with the judicial function, it is expected that he is
conscious that the guarantee of the efectiveniess of the law is necessary, as well as to be able
8
Translated, by the author, from the original in Portuguese: “A mídia e seu discurso político constroem na
sociedade uma cultura de medo constante com o fim de alcançar a maior audiência. E é essa comunicação de
massa que adota a idéia do crime como um tema propulsor do noticiário, transformando tudo em espetáculo,
envolvendo a sociedade em uma comoção popular, introduzindo premissas em nome da opinião pública”.
9
Rafael Baltresca’s mother and sister were killed on September 17th 2011, victims of a hit and run by a speeding
car in Sao Paulo. Faced with this situation and the reality of Brazil, Rafael Baltresca and friends (Avair Gambel,
Manuel Fernandes, Rosmary Mariano, Maria Luiza Hausch and Nilton Gurman) created the movement Não Foi
Acidente (in English, It Was Not an Accident), with the goal of changing the Brazilian laws regarding traffic
laws, making them “stronger”.
10
NÃO FOI ACIDENTE. Available at: < http://naofoiacidente.org/blog/assine-a-peticao/>. Acessed on: Aug 10,
2014.
11
To become a judge in Brazil, you have to go through a rigorous Civil Service Exam (concurso public), which
is very competitive and in which your legal knowledge is thoroughly tested.
to separate the “wheat from the chaff” when analyzing extraofficial information that reach
him, either through individuals or through the means of communication.
Even with all these prerogatives, there are regulatory elements that serve as control of
the descion-making. The Constitution now in force in the country, in article 93, section IX,
demands that all decisions of the Judiciary be properly justified, under penalty of nullity. If
perceived within the grounds of the decision a justification that is discrepant from the
procedural reasonableness, a review of the case, requiring new expalanations or even the
nullity of the decision, may be request.
Pereira (2012) sums up an impartial judge as:
[…] the one who applies the rule of substantive law to the facts checked effectively,
without being swayed by other factors other than his own legal knowledge. To
maintain impartiality, it is sufficient that the magistrate limit himself to the objective
examination of the facts, which were proven in the proceeding by evidences. No
matter who brings them. It’s important that the jurisdictional provision does not
suffer influence from other elements. For a judge to uphold his impartiality, when
facing evidence by him determined, it is enough that the parties be allowed by him
to manifest themselves (contradictory).12
The aforementioned concept binds the judge’s impartiality to his legal expertise, to the
law. By analyzing the doctrinal studies, it is possible to notice that the criminal justice system
has the criminal law as its direct source. On the other hand, there are the indirect sources.
These include customs, general rules, respect for general law principles, analogy (in bonam
partem) and jurisprudence.
It was previously stated here that a Judge needs to offer a neutral and impartial trial.
Up to now, tools that assist the creation of a fair trial have been shown. The bias, due to the
above-mentioned parameters, can be objectively prevented, perceived and remedied. What
should be observed is neutrality.
Neutrality is difficult, if not impossible, to be achieved. Fact is that this is the only
element that prevents the creation of computerized judgment machines. Each situation is
unique and requires the judges’s subjectivity to interpret and apply the law on it. The judge
observes facts according to his experiences and not just the letters of the law, a situation
observed by Alves (2000, p. 30):
12
Translated, by the author of this paper, from the original in Portuguese: “[j]uiz imparcial é aquele que aplica a
norma de direito material a fatos efetivamente verificados, sem que se deixe influenciar por outros fatores que
não seus conhecimentos jurídicos. Para manter sua imparcialidade, basta que o magistrado se limite ao exame
objetivo dos fatos, cuja produção nos autos se faz mediante as provas. Não importa quem as traga. Importa, sim,
que o provimento jurisdicional não sofra influência de outros elementos. Para que o juiz mantenha a
imparcialidade, diante de uma prova por ele determinada, é suficiente que permita às partes sobre ela se
manifestar (contraditório)”.
[b]ehind the words tinkle ideas and these are absorbed by the applicator according to
his knowledge of the world, of man, according to his ideologies; after all, the judge
is a political agent, as a holder of part of the judicial function.13
Tavora and Alencar (2009, p. 46) complement this logic:
[i]ndeed, the ideal of a neutral judge is to be approximately conceived. It is worth
saying the recommended impaciality of the legal system implies the posture of a
magistrate who honestly fulfills and complies with the Constitution, proffering
sufficiently motivated decisions. This does not mean that the judge refrains from his
values to exercise his obligations.14
This aspect – neutrality – is not a positivated norm, but something emanating from the
principles of law. Neutrality, in this concept, is directly linked to the principle of equality. The
judge will be neutral as long as he treats the unequal to the extent of their inequalities. To
demand more than this level of neutrality is to demand a myth, the existence of a utopian
judge.
The myth of neutrality is based on: the possibility of a judge devoid of unconscious
will; the prevalence, in the process, of the interests of the parties and not the general
interest of the jusdicial administration; the judge that has nothing to do with the
result of the instruction.15 (DIDIER, 2005, p. 75)
Oliveira (2000, p. 283) comments the neutrality of Judge:
[i]n fact, Judge's neutrality does not exist. It is a myth that only serves to strengthen
conservatism, to maintain the status quo. No human being is immune to ideological,
political or cultural influences of the environment where he is inserted. At all times,
our behavior reflects a position regarding ideas which sometimes we welcome and
sometimes we refute. Anyway, everybody gives subjective value to things around
themself. And the judges wouldn't be different, since they are human beings too. It
would be unwise and unlikely to demand from magistrate a posture above good and
evil. What the Constitution prohibits, it should be noted, is the direct participation in
social movements, such as partisan political activism, that jeopardize the judge's
impartiality.
Andrade (in CERQUEIRA, FRAGALE, 2007, p. 292) defines human subjectivity as
"each individual’s particular issues, unilateral in forming his judgment, not directly
concerning consciousness, but fundamental in determining his thoughts and actions". Thus, it
can be said that, according to the psychoanalytic view, the individual, in most cases, is
13
Translated, by the author of this paper, from the original in Portuguese: “[a]trás da palavra tilintam as idéias e
estas são absorvidas pelo aplicador segundo seu conhecimento de mundo, do homem, segundo suas ideologias;
afinal, o juiz está investido como agente político, enquanto titular do exercício de parcela da função
jurisdicional”.
14
Translated, by the author of this paper, from the original in Portuguese: “[d]everas, o ideal de juiz neutro é de
ser concebido aproximativamente. Vale dizer, a imparcialidade preconizada pelo ordenamento jurídico implica
na postura de um magistrado que cumpra a Constituição, de maneira honesta, prolatando decisões
suficientemente motivadas. Isso não induz que o juiz se abstraia de seus valores para que exerça seu mister”.
15
Translated, by the author of this paper, from the original in Portuguese: “mito da neutralidade funda-se: na
possibilidade de o juiz desprovido de vontade inconsciente; predominar no processo o interesse das partes e não
o interesse geral de administração da justiça; que o juiz nada tem a ver com o resultado da instrução”.
unaware of his subjectivity and unconscious issues. Something of such significant dimension
can not be neglected.
Zimerman (in ZIMERMAN, COLTRO, 2002, p.618) exemplifies how the
unconscious can act during a trial.
I should judge a man accused of assaulting his wife in a fight. My inner attitude
toward this specific situation may be alternating: I might stay neutral (not the same
as indifference); I might sympathize, according to my internal conflicts, with both,
aggressor or aggressed, simultaneously and alternately. If, for example, this fight is
resonating in my subconscious record of fights that my parents had, or my own
fights, it is more likely that I unconsciously take the side, for example, of the victim,
as if I were her, I felt her pain and outrage.16
In the example above, it should be noted that the judge takes no position consciously.
The repulsion to violence against women comes from his personal experience and he is not
able to realize it. This situation extends to his entire existence and there are no objective
means to prevent such strong influence on his decisions, only self control, which is as
subjective as the unconscious.
As discussed so far, there are effective tools for ensuring impartiality, but the
perennial neutrality of the judge is seen as a myth. But is the current legal context of Brazil
according to all of the theory presented above? Have the media, and its ease in creating and
enhancing the social outcry, allowed neutrality or even a fair trial?
4.
MEDIA, PUBLIC OUTCRY AND THE JUDICIARY
Court proceedings are public, freely accessible to all, except in those cases where the
law demands secrecy. This publicity, which emanats from the republican regime, aims at
allowing the jurisdiction to inspect, which includes not only the public authorities, but also
inspections by the population. This principle is described in the procedural rules in several
international treaties to which Brazil is a signatory. However, above all, it is a constitutional
guarantee:
Art. 93. Complementary Law, initiative of the Supreme Court, disposes on the
Statute for Judges, on the following bases:
16
Translated, by the author of this paper, from the original in Portuguese: “[d]evo julgar um homem acusado de
ter agredido a sua esposa, em uma briga de casal. A minha atitude interna diante dessa situação específica pode
ser alternante: tanto posso me manter neutro (não é o mesmo que indiferente), como posso me identificar,
conforme os meus conflitos internos, tanto com o agressor, quanto com o agredido, ou simultânea e
alternadamente com ambos. Se, por exemplo, a briga deste casal estiver ressoando em meu inconsciente o
registro das brigas que meus pais tiveram, ou minhas próprias brigas, o mais provável é que eu,
inconscientemente, tomarei um partido, o da vítima por exemplo e, como se fosse ela, sentirei a sua dor e
indignação”.
IX - all judgments of the Judiciary shall be public, and all decisions must have
grouds, under penalty of nullity, and the law may limit the presence, in certain acts,
to the parties themselves and their lawyers, or only to these in cases in which the
preservation of the right to privacy of the person concerned with confidentiality will
not harm the public interest for information.17 (EMENDA CONSTITUCIONAL No.
45, 2004) (no emphasis in the original)
The public jurisdiction is important not only as a matter of justice and righteousness
guarantee. The social factor that surrounds it has far-reaching consequences. Society, when
inserted in the trial of the offender, quenches the thirst for revenge remnant of barbarism
while placing itself in the position of the offender, thus realizing the disadvantages of the
offense. As Machiavelli (2002, p. 216) once said, "[m]en in general, judge more by using the
eyes than their hands, because they all have the ability to see but few are those who know
how to feel"18.
Obvious consequence of all that is public is that some subjects arouse more interest
than others in the population. Criminal cases are more frequently targeted by popular curiosity
and, over time, the media realized that this is a promising niche. The infinite curiosity of
human beings and also the multitude of issues to be explored – only in an ideal world the
human being will stop committing crimes – make this an area that efficiently captures readers
and audiences.
Unlike state power, the media has no commitment to impartiality. The more
conservative members of the press claim that the journalist’s commitment to ethics and moral
will preserve impartiality of the news. Fact is that vehicles of information are private
companies and, as such, primarily aim at profit, without which they would not be able to
guarantee their existence.
Miguel (2007, p. 403) adds:
[u]nlike what it tries to make known, it [the media] does not convey just "facts", but
also judgments, values, interpretations. For a democratic society, it is harmful that
the ability to disseminate information is concentrated in such few hands. The
problem is more serious, because of the naive relationship most people establish
with the media. Their mechanisms of production and delivery, the assumptions
17
Translated, by the author of this paper, from the original in Portuguese: “[a]rt. 93. Lei complementar, de
iniciativa do Supremo Tribunal Federal, disporá sobre o Estatuto da Magistratura, observados os seguintes
princípios:
IX - todos os julgamentos dos órgãos do Poder Judiciário serão públicos, e fundamentadas todas as decisões, sob
pena de nulidade, podendo a lei limitar a presença, em determinados atos, às próprias partes e a seus advogados,
ou somente a estes, em casos nos quais a preservação do direito à intimidade do interessado no sigilo não
prejudique o interesse público à informação.
18
Translated, by the author of this paper, from the original in Portuguese: “os homens em geral julgam mais
utilizando os olhos do que as mãos, porque todos eles têm capacidade de ver mas poucos são os que sabem
sentir”.
surrounding their messages, the impact on our day-to-day, all this is often
unknown.19
This paper, at this point, examines the performance of the media, but in no way
implies limiting freedom of the press, conquered at a great cost in Brazil. The observations
made so far aim to show that criminal procedings, to achieve success, must balance public
opinion, freedom of publication and due process of the law.
4.1. THE MEDIA AND THE CONSTRUCTION OF PUBLIC OPINION
The velocity of information and the phenomenon of reality shows have caused justice
to be engulfed by the media. Currently, what is seen is the individual being investigated by
the state while members of the media, in their position of informants to the society, seek, at all
costs, to conduct a parallel investigation to obtain first hand information, ahead of its
competitors. In the quest for instant information, much goes unnoticed and a lot reaches
society without proper explanation or provenance. It is noteworthy that tortuous or incomplete
information may have inertia or social chaos as a result.
A classic example of this situation was a Halloween prank done by Orson Welles on
October 30, 1938, in the United States. The renowned filmmaker released on his radio show
small dummy notes about an alien invasion that was supposedly happening. Amid the musical
program were published realistic statements, flashes of military and the announcer’s warning
of the Martian invasion. Before the end of the program, which lasted an hour, the population
was already abuzz on city streets, armed to fight the invasion. The consequences of all this
were hundreds of perforated water tanks, which in hysteria seemed like alien spaceships, and
roads crowded with fleeing humans.
Mutatis mutandis, the same phenomenon can be observed in Brazil in relation to the
population and the Judiciary. This is partly due to how information reaches them, either by
deficient information or the intentional construction of a perspective. A false sense of
impunity is created, disproportionate to the actual facts. A given situation in the media, which
could be used to clarify and show how jurisdiction works, can end up mistakenly, or
intentionally, presenting how justice in this country is flawed. This, in many situations, shifts
19
Translated, by the author of this paper, from the original in Portuguese: “[a]o contrário do que trata de fazer
parecer, ela não transmite apenas ‘fatos’, mas também julgamentos, valores, interpretações. Para uma sociedade
democrática, é danoso que esteja concentrada em tão poucas mãos a capacidade de disseminar informações. O
problema é maior ainda em razão da relação ingênua que a maior parte das pessoas estabelece com a mídia. Seus
mecanismos de produção e veiculação, os pressupostos que cercam suas mensagens, o impacto em nosso dia-adia − tudo isso é frequentemente desconhecido”.
the focus of society that, instead of seeing the need for social change, applies its strengths to
request new laws.
Van Dijk (2006) demonstrates how media in various times can use the speech to
strengthen an ideology implicitly.
The meaning or ‘contera’ of discourse is controlled by subjective interpretations of
language users of the situation or events the discourse is about, that is by their
mental models. People understand a discourse if they are able to construct a model
for it. Thus, news on the war in Iraq is typically produced and understood on the
basis of the subjective models of writers and readers about this war. As is the case
for context models, also these ‘event models’ may be ideologically biased, again on
the basis of underlying, socially shared attitudes and ideologies. Ideologically biased
event models typically giye rise to ideological discourses, in which events or actors
are described more or less negatively or positively, depending on the ideological
bias of the mental model. This is especially the case for all discourses about specific
events and actions, such as news reports, editorials, opinion articles and eyeryday
stories about personal experience. (VAN DIJK, 2006, p.121)
As an example of this situation, take the case of former football player Edmundo, who
was involved in a traffic accident in 1995 and has recently completed the judicial procedure.
The athlete had just left a nightclub when, en route to his home, he lost control of his car and
ran over a group of people, killing three and wounding five others.
Before his trial was completed, the Brazilian Record Communication Network
reported, through the internet and the television, that "former player Edmundo was granted
temporary freedom". To the layman, the headline sounds like a huge injustice. And of these
lay interpretations buzzwords such as "in Brazil only poor people go to jail" or "laws in Brazil
are too soft" are born.
The problem is that the news does not explain that the player was not really given
temporary freedom, he had a right assisted. The layman could understand wrongly – as he
probably does – that Edmundo’s freedom had been the final result of a trial, an aqquital, not
that it is a right to respond to the procedure in freedom until the sentence is handed down.
All these interpretations generate a false or hyperbolic idea of impunity. The worst
thing is that it creates the idea that rich people do not go to jail because the law benefits them,
disguising a disability that is social and not legal. Any citizen in the same situation as
Edmundo would have temporary freedom guaranteed. The problem is that less than 1% of the
population (SANDRINI, 2012), the "rich", has access to a competent defense to plead this
right. It is a social problem. The Constitution guarantees the right to the assistance of a
lawyer, a public defender provided by the state, which is a serious deficiency of its
framework. Few members of the Federation have established an organized public defender’s
office. Hence the popular appeal, who does not even know this right, directs requests for new
laws rather than invoke the correct application of a right already guaranteed in the
Constitution.
In 1995, news and media were not as fast and dynamic as today. Back to the present
day, we have the already mentioned Thor Batista. The same procedure was used, but this time
with a more rapid and voracious media. Thor had his freedom granted. This information was
propagated by the media, but it was not mentioned that this only happened because the
remand did not present its requirements in this case. It was not informed that the standard
procedure is the freedom of the individual and the remand is a tool to guarantee the process
and not the punishment itself.
Corroborating with this, past news involving other traffic violations (which are
administrative and, therefore, not crimes) committed by Thor became public immediately (see
Table 2). However, it was not said that these past violations have already been investigated by
the competent authority and the punishments have been properly applied. Once more, the
series of information was responsible for the sense of impunity, when, in fact, all illegal
conducts were tried or are in being tired, as required by law. For the population, the wrong
impression remained: a criminal magnate is terrorizing the streets of the country and the state
idly watches everything.
Surrounded by this turbulent climate of media and social pressure is the judge. Despite
putting himself in the spectators place, analyzing the facts and the judgement from an
outsiders perspective, he still interacts with society and, in this situation, making a mistake
becomes something easy. Sometimes the outcome is not a mistake, but, for fear of being
publicly excoriated, a judge can make a "less fair" decision.
Professor Sergio Habib (2003, p.15) observed:
What we have lately are some judges, or even some courts, wary of the negative
repercussions of their decisions […]. They do not want the media sensationalizing
their decisions, exposing them to public execration, either because they have granted
a writ of habeas corpus on behalf of a particular defendant, whose procedural
situation thus recommended, either because they failed to condemn another, found
guilty by the media, but innocent in court.20
In the mentioned case of Isabella Alves Nardoni, the judge, when calculating the
penalty imposed on the convicted, commited a mistake and determined it greater than the
20
Translated, by the author of this paper, from the original in Portuguese: “O que temos, ultimamente, são
alguns magistrados, ou mesmo alguns tribunais, receosos com a repercussão negativa de suas decisões [...]. Não
se queira, pois, fazer terror com as suas decisões, expondo-o à execração pública, seja porque concedeu uma
ordem de habeas corpus em favor de determinado réu, cuja situação processual assim recomendava, seja porque
deixou de condenar um outro, considerado culpado pela mídia, mas inocente dentro dos autos”.
applicable punishment permitted. On an appeal granted to the defendents, the 4th Criminal
Law Chamber of the Court of Justice of São Paulo revised the decision, applying a more
correct punishment. The judge must remember that he's dealing with the freedom of a human
being and not the caging of a monster, like was treated by the news.
When involving cases to be tried, the relationship of the judge with the media is very
delicate. Any statement outside the bounds of procedural information may result in the
suspicion of the judge. And often, as discussed earlier, the incessant harassment of the press,
popular pressure and the (un)conscious desire for exposure, ends up violating the magistrate's
impartiality. The attitude of the judge also influences how the accused will be treated by the
state and society, be it with dignity or not.
The law already tries to limit the relationship between the judge and the media through
rules such as Law No. 35 of March 14, 1979, which states:
Art. 36 - It is prohibited to the magistrate:
III - to express, through any means of communication, an opinion about a pending
trial, his or others, or depreciative judgment about orders, votes or rulings of courts,
except in the trial records and techinical books or when teaching.
But the promiscuous relationship of the judge with the press is less concerning than
the popular pressure led by the media on the Judiciary. In Brazil, as shown so far, the media is
masqueraded as public opinion, which is a dangerous and threatening situation for Brazilian
courts.
4.2. LEGAL CHANGES AND MEDIA POPULAR PRESSURE
The historical analysis of Brazil shows that, when it is interesting for some groups
backing the media, incessant media bombings are iniciated to favor their intrests. This
movement easily blends in with the collective unconscious, giving the impression that the
initiavice came from the society. It is not difficult to perform this maneuver in a country
where the number of households with at least one television is larger than residences with
refrigerator (IBGE, 2013).
There are two important facts that prove these assertions. First, there is the elaboration
of the Law on Heinous Crimes. In 1988, the kidnapping of renewed Brazilian entrepreneurs
started spreading, extorting large sums of money from the affluent. However, these
entrepreneurs represented less than 0.5% of the national population and their misfortune was
still able to inicted strong public outcry. How could such a tiny portion of the population have
raised such commotion among the public?
The reality is that this minority was responsible for nearly 20% of the country's GDP.
A national campaign began in communication networks for the creation of a list of crimes
considered heinous and which deserved special treatment. Needless to say the extortion by
kidnapping was on the list. Simultaneously, the news throughout the country paraded all sorts
of crimes. The incessant and massive media coverage gained characteristics of an uprising.
Consequently, on July 25, 1990, the Law 8.072, also known as Law on Heinous Crimes, was
approved.
It is important to point out that this did not actually originate the law 8.072, as the
current Constitution21 had already provided for the creation of a list of heinous crimes. What
must be seen here is how definitive the strength of popular appeal was for its creation. That
same constitution provides for the creation of taxing on large fortunes since 1988, but, as
there has never been a political or popular movement in its favor, it has not yet been
established. Therefore, the "popular pressure" had a decisive role in creating the list of
heinous crimes.
A little over two decades have passed and the Heinious Crime Law has undergone
severe criticism have, which were done in a casuistry and hasty manner. As said by Faria
(1990, p. 27), "[this] law undoubtedly came as a requirement of an insecure society that was
alarmed by the growth of its crime rates”22. Veiga (2012) also comments on the issue:
[...] a law which harbored the popular outcry in a way that conflicts with the
criminal principles and, in certain ways, with the Federal Constitution, which
reveals a huge contradiction between the law and the legal system where it is
applied.23
After the creation of this law, there was the case of Daniella Perez. Everyday the
country witnessed murder crimes without the population manifesting any dissatisfaction
regarding the judicial behavior. The national media, however, did not envisage the crime
consummated on December 28, 1992. On that day, the actress Daniella Perez was brutally
murdered by actor Guilherme de Padua, her love interest in the soap opera they both were
doing. Besides the popularity of those involved, the actress was the daughter of Gloria Perez,
author of the soap opera and an influential person in Globo Communications, Brazilian largest
21
Brazilian’s current constitution was promulgated on October 5, 1988.
Translated, by the author of this paper, from the original in Portuguese: “[...] lei surgiu, sem dúvida, como
exigência da sociedade insegura e alarmada com o crescimento dos índices de criminalidade”.
23
Translated, by the author of this paper, from the original in Portuguese: “[…] uma lei que acolheu os clamores
populares mas, de uma forma que colide frontalmente com os princípios penais e, sob certos pontos aspectos,
com a Constituição Federal, o que revela um enorme contra-senso da mesma com o ordenamento jurídico a ela
pertinente”.
22
communications company. A massive campaign was developed, leading the Legislative to
add qualified murder to the list of heinous crimes.
4.3. DEATHS IN TRAFFIC
In Brazil, traffic accidents that result in death have had a specific legislation, different
from other homicides, ever since the establishment of the Brazilian Traffic Code in 1997. This
legislation arose from the demand for stricter punishment, seeking to decrease the high rates
of fatal traffic accidents that were recorded at the time.
Since then, such killings should be treated according to the summary proceeding. In
this rite, the accused is tried by a single judge, who will form his own conviction based on the
evidence produced during the investigation and determine the punishment in accordance with
what is established in the Brazilian Traffic Code.
Therefore, whenever a traffic accident results in death, such as a vehicle accidentally
hitting someone or car crashes – deaths which the accused had no intention to kill –, the
magistrare will judge the degree of fault of the causative agent, but never presuming malice in
his actions.
It happens that the legislator, at the time when this particular traffic law was created,
was already being pressured for more severe punishmentand, and that is why a different legal
treatment for was created.
When this specific law was being developed, the Judiciary started a concomitante
movement in response to the same popular and media pressure. However, the Judiciary did
not adopt the same position as the Legislative on the issue, giving way to a serious
contradiction. Thus, a line of jurisprudence that recognized the existence of dolus in some
traffic homicides was created. According to this new interpretation, if a person who drives a
vehicle in a dangerous manner – speeding, inebriated or practice illegal racing – causes a fatal
accident, he intends to kill. The intent in this case is presumed. Once recognized the intent to
kill, the ordinary criminal law is applied and the rite adopted for the trial is the Court of Jury,
because that is specific for intentional crimes against life.
The Court Jury, by itself, already has spectacle characteristics. Moreover, the traffic
crimes have elements that attract the media, as they can occor in socially reprehensible
situations such as high speed, intake of alcohol or reckless driving. All these elements
combined create the perfect backdrop for the exploitation by the media, which traditionally
prefer condemnatory approach instead of absolution.
Crimes of this order, which courts had viewed as unintentional homicide even before
the Traffic Code was created, gained prominence because they were also being practiced and
victimized by public figures. Furthermore, as reported in previous paragraphs, under popular
pressure of the media, courts began to presume the intent to kill of individuals who practiced
the same crimes once seen as unintentional. This new aspect brought the most severe and
immediate response, which everyone expected and wanted, with the additional bonus of
promoting the Court of Jury spectacule. As stated by Greco (2009, p.207):
The movement of the media, demanding stricter punishments, made judges and
prosecutors begin to see traffic offense committed in these circumstances, i.e., when
there was a combination of excessive speed with the drunkenness of the driver who
ran over someone, as eventual dolus. This was all because the phrase in the second
part of section I of article 8 of the Criminal Code, which says it is willful conduct
when the agent takes on the risk of producing the result.24
As soon as the judges gave origin and confirmed this understanding, they also
generated a new form of delaying the criminal prosecution. Since this understanding has
existed for more than a decade, it is worth mentioning that it is not pacific, the convicts in the
new jurisprudence profile have extensive case law on unintentional homicide to support their
appeal, and the same goes for the opposite situations. Consequently, today in Brazil there are
two different treatments for the same crime, which is unacceptable.
Everyone involved was precipitate. The media which inicited a misguided ideological
framework; the people who did not expect the new legislation would come into effect; and the
Judiciary that, in its eagerness to show results, created this anomaly. Part of the problem could
have been avoided if the judge had made a systemic analysis of each case and not a punctual
one. As Dworkin (1978, p. 115-116) said in his metaphor of Judge Hercules:
Hercules must suppose that it is understood in his community, though perhaps not
explicitly recognized, that judicial decisions must be taken to be justified by
arguments of principle rather than arguments of policy.
[…] But if the gravitational force of precedent rests on the idea that fairness requires
the consistent enforcement of rights, then Hercules must discover principles that fit,
not only the particular precedent to which some litigant directs his attention, but all
other judicial decisions within his general jurisdiction and, indeed, statutes as well,
so far as these must be seen to be generated by principles rather than policy. He does
not satisfy his duty to show that his decision ins consistent with established
principles, and therefore fair, if the principles he cites as established are themselves
inconsistent with other decisions that his court also proposes to uphold.
24
Translated, by the author of this paper, from the original in Portuguese: “O movimento da mídia, exigindo
punições mais rígidas, fez com que juízes e promotores passassem a enxergar o delito de trânsito cometido
nessas circunstancias, ou seja, quando houvesse a conjugação da velocidade excessiva com a embriagues do
motorista atropelador, como de dolo eventual, tudo por causa da frase contida na segunda parte do inciso I do art.
8 do Código Penal, que diz ser dolosa a conduta quando o agente assume o risco de produzir o resultado”.
As a result, there is in Brazil today a legal uncertainty regarding the trial of murder
arising from traffic accidents. The same individual may be convicted, by a single judge, of a
sentence of 2 to 4 years in prison, if judged according to Brazilian Traffic Code, or receive a
sentence of 6 to 20 years, if judged according to ordinary criminal law, which presumes the
intention to kill in his actions.
5.
CONCLUSIONS
This paper began with the analysis of how society, media and people interact and deal
with criminal behavior. During the observation of data and elements of society, it was
possible to note how the population, the media and the state have mutual influence on their
behavior. In this context, the media stands out over the others and has a very significant
power to influence the others. Therefore, many situations that appear to emanate from the
population are actually partly incited by the media, instigated in the collective unconscious
and subsequently started resembling social outcry.
The ability of the media, through the conscious control of its content, to shape the
perception of reality in the direction of certain interests ultimately generates situations not
always positive to society and the judicial power of the state. As noted in topic four of this
paper, the history of Brazil exposes several events when the behavior of the media had a
definitive role on inefficient or misguided legal changes.
In the case of homicide in traffic, the apparently spontaneous movement, emanating
from the population, has been in favor of stricter punishments to the protagonists of traffic
crimes. Faced with this, Legislative and Judiciary had different and simultaneous approaches.
The Legislative, due to the bureaucratic process of creating a law, took to develop a
specific legislation dealing with murder arising from traffic accident. This legal text was
developed obeying the constitutional principles and is an applicable norm that corresponds to
the population’s yearning.
However, the Brazilian Judiciary, in its rush to correspond to the population’s
demand, did not wait for the legal initiative, which is the responsibility of the Legislative, take
shape and effectiveness. A parallel juridicial understanding was developed at the same time as
the Legislative one, which presumes the intent to kill of the driver who commits a homicide
while driving a vehicle inebriated, speeding or dangerously, reckless.
At first, the creation of a specific legislation should have interrupted the application of
the innovative jurisprudence. However, by observing the media, it is possible to perceive the
channeling of its contents in defense of the widespread application of the presumption of
malice in homicides resulting from traffic accidents.
Both solutions have resulted in more severe punishment to the authors of homicides
resulting from traffic accidents, in accordance to society’s wished. However, the
jurisprudential initiative, supported by the media, besides being disproportionately stiffer,
promotes the spectacle of jury trial, which for the media is much more interesting.
It so happens that the jurisprudential initiative damages principles and theories in
which the Brazilian penal system is based on. Applying the new understanding of intent
homicide in traffic accidents, theories of will and assent, already established in the country,
are abandoned, adopting the theory of representation, which is incompatible with the
Brazilian norms. Furthermor, these theories apply to the entire criminal legal system, not only
to traffic homicide trials. What is critical in this situation is that only specific changes are
being observed, not systematic ones.
Therefore, it can be concluded that there is a symbiotic relationship between the media
and society, but the first has the stronger tools: publicity and press freedom. It has the power
to directly influence public opinion, arising unforeseen consequences of this relationship
within the Judiciary. So far, in regard to the Brazilian Judiciary, the negative consequences
have been noted, generating disorders that can be overcome only in the long-term. As for
homicide in traffic accidents, a repetition of behaviors observed in other legal controversies,
such as the heinous crimes of 1990 and 1993, was noticed. It can be concluded that, once
again, the state is risking giving the wrong answer due to a simply uninformed imposition of
the population and the media.
6.
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ANNEX 01 – ORIGINAL NEWS ARTICLE (PORTUGUESE)
Filho de Eike Batista atropela e mata ciclista no Rio
O filho mais velho do empresário Eike Batista com a ex-modelo Luma de Oliveira, Thor, 20,
atropelou e matou um ciclista na noite de ontem, no Rio de Janeiro.
O acidente ocorreu por volta das 19h de sábado, na pista sentido Rio da rodovia Washington Luís,
altura do bairro de Xerém, na Baixada Fluminense.
A vítima, o ajudante de caminhoneiro Wanderson Pereira dos Santos, 30, morreu na hora.
Segundo a polícia, Thor estava ao volante de um superesportivo Mercedes SLR McLaren prata
acompanhado de um amigo. O caso foi registrado como homicídio culposo (sem intenção de
matar).
De acordo com políciais do 61ª Delegacia de Polícia Civil, que registraram a ocorrência, Thor e
seu amigo passaram pelo teste do bafômetro, que não atestou consumo de álcool em nenhum dos
jovens.
Segundo policiais, Thor teria passado mal após a constatação da morte de Wanderson, mas não
omitiu o socorro.
O carro de Thor chegou a ser recolhido para um pátio da Polícia Rodoviária Federal, mas o
advogado do jovem conseguiu levar o carro sob a garantia de não modificar o estado do veículo.
Thor deve prestar depoimento nos próximos dias. A assessoria de imprensa do Grupo EBX, de
Eike Batista, confirma o acidente e prepara uma nota sobre o ocorrido.