What is not in the headlines with this same noise are the outcomes of this drama. Investigations poorly conducted and full of failures solidify convictions and give rise to more impunity. Exterminate them became the specialization of the criminalist and professor of Law of FGV in São Paulo, Celso Sanchez Vilardi.
At least four mega-operations of the Federal Police collapsed when conflicting with lawyer. Castelo de Areia Operation, most recent and also the most controversial of the last years is the best example. Due to a series of failures from the police, the Public Prosecution Office and the Judiciary, serious accusations of financial crimes and misuse of public funds against executives of the contractor Camargo Corrêa failed. In April, the Superior Court of Justice vacated the authorized wiretapping based on anonymous report not entered to the case records by the police. And all fell apart.
Midas Operation, which assessed frauds in INSS, corruption and money laundering; Cana Brava Operation, related to millionaire embezzlement involving sugar mills in Araçatuba (SP); and Kaspar II Operation, which investigated money laundering and illegal transfer of funds abroad involving contractors and Swiss banks, such as UBS, Credit Suisse, Clariden and AIG had the same fate.
Vilardi integrates the front line of the new generation of Brazilian criminalists – a group of young people around the forty-years old, but that have faced some of the most important cases of the country. It is not a coincidence that he is one of the preferred partners of the lawyer and former minister of Justice, Márcio Thomaz Bastos, in the litigious cases most succeeded of the Republic.
Vilardi´s background is extensive. See the list of the most remarkable clients below:
Delúbio Soares, former treasurer of PT and one of the defendants of the case that assesses Mensalão scheme;
Eike Batista, owner of MMX investigated by irregularities in the bidding for construction of the railroad of Amapá, in Toque de Midas Operation;
Luiz Murat Filho, the first to be convicted by the practice of insider trading, the use of insider information to act in the capital market;
Robson Marinho, former deputy and member of the Accounting Court of the State of São Paulo, investigated for benefiting the French company Alston, winner of the bidding process for the supply of trains to the subway of the state;
Rafael Palladino, former director of bank Panamericano appointed as one of the responsible for financial irregularities that lead to a shortfall in the institution.
Maria Glória Bairão dos Santos, wife of the former judge Nicolau dos Santos Neto, investigated concerning a protection scheme to former judge convicted for corruption, peculation and swindling;
Celso Pitta, former mayor of São Paulo investigated by CPI of Banestado, deceased in 2009.
The journalists Lilian Matsuura, Mariana Ghirello e Maurício Cardoso participated in the interview.
See the interview:
ConJur — You became famous for breaking down at least four great operations of the Federal Police against your clients. How was it like working with the cases? Celso Vilardi — We have an important outcome regarding these operations. Castelo de Areia Operation was the last one. Before, we vacated an operation called Midas, which is not Toque de Midas, that also involves my clients. This one was not judged yet, but I am going to vacate too.
ConJur — What Midas operation was about? Celso Vilardi — It deflagrated in Mato Grosso to investigate frauds against the Social-Security, involving many businessmen and agents of INSS. It began with a wiretapping of an agent.
ConJur — In all operations that you could vacate, was wiretapping the Achilles´ heel? Celso Vilardi — As well as in Castelo de Areia, Midas was vacated because of a wiretapping. Cana Brava Operation, involving sugar cane producers in Araçatuba, was also vacated due to the use of wiretapping. In a context different from these three, Kaspar II operation [which investigated money laundering and illegal transfer of funds abroad involving banks such as UBS, Credit Suisse, Clariden and AIG and contractors] was not nullified. We were able to dismiss the charges pressed against our client, because it did not meet the legal requirements, which was accepted in the Superior Court of Justice. In the other three ones, by vacating the wiretapping, practically deflating the entire operation. It produces effects not only to my client, but also to third-parties.
ConJur — What was the vulnerability of Prosecution Office´s charge in Kaspar II case? Celso Vilardi — I defended a representative of a bank, accused of several crimes. The case that supported it was a poor fact, there was two talks recorded, in which he was saying something without any meaning, but plaintiff said that, based on this talk, he committed money laundering and illegal transfer of funds abroad. Our defense was that the charge was not described sufficiently to give rise to an adversary proceeding. Then the STJ vacated the charge.
ConJur — Contrary to what legislation provides, has wiretapping been the first and main evidence in the investigations? Celso Vilardi — Not always. Tapping in Cana Brava operation were based on Federal Revenue´s information. It was an operation almost with exclusivity to investigate tax default, which is completely unfounded and unreasonable. It could never have been an operation in a case like this one. In Midas the error was formal. The requested wiretapping was of 30 days, extended for more 30, which was authorized by the judge. But the law says that the maximum term is 15 days, renewable for another 15. Castelo de Areia, as already public, was vacated due to an anonymous charge. Actually, it did not happen what press published, that hotline finished. This is a nonsense. The thesis is that the chief cannot describe that received an anonymous charge, but not file it to the case records. He did not say how he received such charge, if by telephone, by letter. It is not registered to the case records. And based on it, the confidentiality of all subscribers´ data was breached. Telephone operators provide Federal Police with a password to access all subscribers. Police says that has used it only with the investigated, but the fact is that password provided access to all. This anonymous charge gave rise to telephone tapping of dozens of people. What we uphold is not that the anonymous charge is not for investigation, as part of the media said, but that, it cannot immediately go to breach of confidentiality, constitutionally protected, only based on an anonymous charge. It is needed to perform an investigation to check the plausibility of such anonymous charge and, therefrom, request for exceptional breach of confidentiality.
ConJur — What is the danger of this type of method? Celso Vilardi — If a request for breach of confidentiality takes place only based on an anonymous charge, if I don´t like you, I can make an anonymous charge and the chief will breach your telephone and bank confidentiality. This is not reasonable. I understand that population protests against impunity, but this is not the center of the constitutional issue. State has to conduct an investigation according to the law. If it carries out an investigation according to the law and assesses facts, people should be effectively punished. The guarantees that Constitution has reached since 1988 cannot be referred to as mere formalities. If we belittle this, as many people upholds when suggesting the flexibilization of procedures to assess the main content, we will have a State truly dictatorial. We will open the doors, so that police carries out any type of investigation against anyone, based on negligible elements. There is a Federal Police, a Civil Police, a Federal Public Prosecution Office and a State Public Prosecution Office which purpose is to make a thorough investigation, according to the law.
ConJur — Is a long investigation vacated by an irregularity frustrating, taking into account the public spending with the criminal prosecution? Celso Vilardi — Of course it is. This is what gives rise to impunity. But there are many mistakes to reach this point. Firstly, the lack of legality in investigations. If it was prevented, population would not be frustrated, because there would not be invalid evidences. Besides, there is a practice in the disclose of such data at the beginning of the verification. It ends up reaching the society at the first minute of the game, prior having a conversation on the legality of all that has been done. The outcome is the raising of expectations. If investigations did not leak confidential documents illegally, this problem would not exist. Leakages occur in almost all operations. But when the case starts being judged, it may have an illegal evidence, a history that is not true, an evidence demonstrating that such accusation was completely false.
ConJur — Is public outcry for punishment legal? Celso Vilardi — I had a professor of Criminal Procedure, Ermínio Marcos Porto, who used to say that everybody has an aunt that, when sees the case of a crime in television, says: “this man must go to jail, only in this country it does not happen. There must be a concise conviction. Lawyer for what?”. But when your son hit someone with the car on the street, he/she goes to the lawyer´s office and requests for expert evidence. “Where is the proof that traffic light was read and he was at a high speed?” When you are involved in a criminal suit, you want to exercise your constitutional rights and provided by the Code of Criminal Procedure.
Everybody needs rights. Individual rights are ours, of lawyer´s, of prosecutor officer´s, of judge´s, of physician´s, of any citizen´s. The logic of disregarding individual rights under the pretext that this upsets population is not good to anyone, neither to authorities not to population.
ConJur — Dos the pressure increases when the case is leaked to press? Celso Vilardi — As a rule, cases in press is more difficult. In addition to the suit, it is needed to also face charges made by newspapers. You have to answer, stay tuned to what is going on.
ConJur — Does the press also adopt the role of “aunt watching TV”? Celso Vilardi — Press is almost the aunt. What does provide more news: “so-and-so was under arrested” or “so-and-so was released”? In the case of Castelo de Areia operation, for example, which national repercussion was due to many reasons, the disclosure of the annulment was huge even due to it meant. But most of the times, when operation is deflagrated, it appears in the main headline of the newspaper. Then, when STJ deems investigation as illegal, it only appears a short note that nobody sees. And accused are stigmatized for the rest of their lives.
ConJur — This thirst for punishments does also affect the Judiciary? Celso Vilardi — What happened in Brazil was that the Federal Police, prior Lula´s government, prior the minister Márcio Thomaz Bastos, did not have any preparation, had poor conditions of work. But in the last eight years, especially in the first four, it was reorganized and re-equipped. Nowadays it has much more skilled people, once salaries have increased and, therefore, selection became stricter. In addition to more instruments, there is the cooperation among several countries due to the money laundering laws. The police started to work much more. But it caused enthusiasm on the part of prosecutors of the Republic and judges that look and say: “what a wonderful work, see what police did”. No one was used to this in Brazil. But judge cannot be amazed, he must be in judging position, must say no.
ConJur — Can enchantment influence the Public Prosecution Office? Celso Vilardi — Yes, it can. The Public Prosecution Office (MP) is a party, can accuse and then demand conviction. But judge cannot get into the swing of these things, he should be unrelated to all this. He can consider investigation excellent, but he must “no” when needed to do it so. But most of the time, and I am not generalizing, what I feel is that quite often judges say “yes” very easily. And it has already given rise to nullities. And this is the reason for which so many operations are vacated in the courts, because they did not undergo through a strict control. I, as a lawyer, am not the cause of impunity. I show nullity to the court, but I was not the one who failed.
ConJur — What are the main mistakes committed by the Public Prosecution Office and by the police? Celso Vilardi — Especially the trivialization of wiretapping, a form of investigation centered and almost based exclusively on tapping. It is exactly the opposite of which law establishes, that tapping should be the last resource of investigation.
ConJur — In an article entitled A verdade sobre a Castelo de Areia (The truth about Castelo de Areia), the prosecutor Janice Ascari states that on several occasions superior courts accepted the anonymous charge as compatible with the State Ruled by Law, and that it is not true that the telephone tapping in the operation has been required and granted only based on an anonymous charge. Is she correct? Celso Vilardi — No, the Superior Court of Justice has already said that it is not right. The courts already stated, so many times, that anonymous charges can serve as source of an investigation when it is followed by another evidence. The question is to know if there is or not an investigation between the anonymous charge and the exceptional measure. In the case of Castelo de Areia, there is not, because the Superior Court of Justice says that there is not. If you take ten decisions of the Superior Court of Justice concerning the subject, you will find a very close proximity, but the factual matters are different. A great media show was provided to this issue, but the precedents of the Federal Superior Court and of the Superior Court of Justice is exactly in accordance with this decision. I drafted many memorials to demonstrate that the Federal Supreme Court and the Superior Court of Justice completely agreed with our thesis. Besides, it was not the only thesis that lead to the cancellation of the operation. The other reason was the court order rendered illegal by the Superior Court of Justice, because it was generic, without grounds, reaching an indefinite number of people. But this is not interesting to say, because when the heading says: “Superior Court of Justice vacates due to anonymous charge”, people ask: “what about hotline?” But it was just one of the five theses raised.
ConJur — What are the others? Celso Vilardi — The justification of the decisions regarding tapping, related to the breach of data confidentiality; the issue of the term of 15 days for breaching of confidentiality discussed by the Superior Court of Justice; and the illegality of having 12 months of successive tapping, with several extensions, which is considered illegal.
ConJur — In the CPI of Pirataria, you were able to cancel an investigation through the so-called unspecified interlocutory relief. What is the illegality of this form of hearing the deposition of a witness? Celso Vilardi — This is a modern creation, completely out of the Code of Criminal Procedure. CPP comprises only the police investigation and the provisional measure. This was a great issue of these investigations, because they started with an unspecified interlocutory relief, and this procedure is not located in the system, and the persons involved are unknown. But the Supreme already said, by precedent, that lawyer has the right to verify the evidences already produced by investigation, prior concealed by these means. Unspecified interlocutory relief is completely illegal. This procedure is confused with a provisional measure. Many times, “unspecified interlocutory relief” is the name used in order to not record in the system a confidential provisional measure of telephone tapping or search and seizure, for example.
ConJur — You defended directors of Sadia from accusations that lead to the first conviction for insider trading in Brazil. How was it like working in the case? Celso Vilardi — It was very challenging, because it was the first case of privileged information. Everything was new within the Criminal Justice. It is hard because there are no precedents. The defense is based only on administrative proceedings. The case is now being addressed to the Federal Regional Court.
ConJur — How is to act in cases of financial crimes, such as money laundering, in which legislation is vague and the collection of evidences is so hard? Celso Vilardi — Although there are many cases of money laundering, Justice is still taking knowledge on the issue. In Brazil, investigations related to the subject are completely wrong. The crime needs to be investigated very thorough, with money tracking. Here, the preceding crime is investigated and, automatically, money laundering is deduced. People think that the person that practices corruption crime and hides money is practicing laundering, because in the Criminal Acts Against the Financial System is written “concealing”. But concealing for laundering is not hiding the money originated from the crime, but hiding with the purpose of re-entering in the system with legal appearance. The purpose of such concealing the to serve as an intermediate form between the practice of the crime and dissimulation. Brazil is investigating money laundering as it was a direct and mandatory consequence of previous crimes.
ConJur — How do you evaluate the project of law that makes all crimes of the system possible to be classified as criminal records? Celso Vilardi — It is bad. In theory, it can even be reasonable. In practice, Brazil failed in the fight against money laundering. The failure of the law is official, and the Superior Court of Justice formed a commission to study the reasons thereof. It is not even possible to determine money laundering of few preceding crimes in the list. If we increase it, the tendency is that no one can be punished.
ConJur — Can the direct conduct of the investigation between the Public Prosecution Office and the police reduce bureaucracies of investigations? Celso Vilardi — This is a huge mistake. It is illegal, because it is not provided in the Code of Procedure. It causes several problems. I had a case in which I needed to file a motion to the judge, but the investigation was not assigned. If the case has not been assigned yet, judge cannot decide. The system says it is not possible to file motion, unless it is a provisional measure, which was not the case. It happened in Santa Catarina, and also in São Paulo. We had to file the motion to the chief. This is an absurd, ridiculous.
ConJur — What is your opinion on the creation of the position of judge of guarantees provided in the project of the new Code of Criminal Procedure? Celso Vilardi —It is a good idea, in theory, by in practice, I see much difficulty to be implemented.
ConJur — Is the Department of Police and Judiciary Police Investigations [DIPO], in São Paulo, an example that worked? Celso Vilardi — Yes, it is, but it was established in São Paulo, where there is reasonable number of judges. It should be thought how it would be in the countryside, in a single judicial district, in other states, where there are difficulties regarding human resources. Judge of guarantees refers to a judge that knows all issued related to the investigations, measures implemented during the investigation. Only then a different judge will judge the case. If there is a lack of judges to judge the main cause, how it will be with the judge of guarantees?
ConJur — What is your opinion on the PEC of Resources, proposed by the president of the Supreme, minister Cezar Peluso, to assign the final and unappealable decision of the decisions to the second instance? Celso Vilardi — I am radically opposed. Even the presented justification is completely unreasonable for the criminal area, that the most part of the resources is procrastinating. The great part comes from public companies in civil discussions. If there is a problem in the civil area that causes such procrastinating, then it should be resolved with measures such as fines for malicious prosecution. The Supreme, with the en banc court, decided that the final and unappeable decision in criminal issue, analyzed according to the principle of presumption of innocence takes place when all resources are depleted. This is a Supreme´s decision: that the principle of presumption of innocence establishes that, until the last judgment, the presumption of innocence prevails. The problem is not the appeal, is the number of judges. At the Superior Court of Justice, we have two panels that judge criminal issue, it is composed of ten ministers for the size of our country. The Superior Court of Justice was established to have twice the current number of ministers. The offices were opened taking into account double of the quantity. In the United States, there are state courts higher than the courts of appeal, that judge even constitutional issues. Here in Brazil we have the Superior Court of Justice and the Supreme. The appeal is already special or extraordinary, which indicates that they are not natural appeals, but depend on the compliance with the legal requirements.
ConJur — The argument is that the superior courts serve as courts for review. Celso Vilardi — It is true, but regarding the special and extraordinary appeals. When it says that Brazil has four instances, it is because of Habeas Corpus. But it is unthinkable to touch in the institute. It is possible to file for a writ of Habeas Corpus with the courts of Justice, with the Federal Regional Court, with the Superior Court of Justice and with the Supreme, indeed, there are three possibilities of reviewing. But this is provided in the Constitution.
ConJur — There are members in the Judiciary that criticize the abuse of the use of Habeas Corpus. Celso Vilardi — Habeas Corpus fundamentally serves to ensure the freedom of movement. But in the criminal procedure, what is involved it is exactly the freedom of movement, because it handles with imprisonment. In the majority of the cases, it is possible to file for a writ of Habeas Corpus, not only to release someone, which would strictly serve to ensure the freedom of movement, but also to vacate an evidence. If a person is judged based on an illegal evidence, its right of freedom of movement is restricted by virtue of a nullity. The court precedent of the Supreme, the Superior Court of Justice, the courts of Justice and the Federal Regional Court is practically pacific in this sense. Currently there is a positioning in the Supreme that Habeas Corpus is applicable to, including, question the breach of bank confidentiality, which the most correct measure would be the Writ of Mandamus.
ConJur — With the increase of the number of filings of Habeas Corpus, the ministers of the Superior Court of Justice have not able to handle with the quantity of urgent cases. Does it not impair the own petitioners? Celso Vilardi — The quantity of filings of Habeas Corpus increases, and it is true that it is bad used very often. This is a systemic problem caused by suffered Law schools that graduate professionals without qualification. In the BAR Exam, which is stringent, persistent people succeeds, which does not ensure professional´s qualification. I remember a moment in which I made an oral statement in the Superior Court of Justice, and I saw a colleague that spoke before me. He said to ministers: “I am sure that, in this case, Habeas Corpus would not be applicable, because the subject needs an analysis of evidences, but my client´s situation requires it”. He recognized himself that the measure was not applicable. When he finished, the judge-rapporteur did not have option: “I am denying, because, as the own lawyer said, Habeas Corpus is not applicable in this case”.
ConJur — Does the final and appealable decision in the second instance provide the possibility of mistakes become irreversible? Celso Vilardi — A survey performed by the School of Law of FGV concerning crimes against the national financial system shows that from 18% to 20% of the filings of Habeas Corpus taken to the Federal Regional Courts, of criminal issue, are granted, which means, one out of five. Those granted by the Superior Court of Justice are approximately 25%, that is, one out of four is granted. The Supreme does not make part of this survey, but if we imagine that the Supreme grants Habeas Corpus to a proportion from 20% to 25%, we conclude the importance of the superior courts for the system. If the Superior Court of Justice grants Habeas Corpus in 25% of the cases, it saves one out of four persons to suffer an unfair trial. That is what we are talking about. I bet that the Supreme has a level very similar to the Superior Court of Justice´s, that is, in addition to the cases already vacated in the Federal Regional Court and in the Superior Court of Justice, the Supreme vacates more 20%.
ConJur — There is a concept upheld by some judges that the criminal judge, beyond the obligation of being impartial, should search for the truth, which authorizes him to collect evidences. Is this involvement with investigation healthy, from the constitutional point of view? Celso Vilardi — In the criminal procedure, judge can hear a witness, for example, as witness of the judgment, without any of the parties having called it as witness. But it does not mean that judge, at the moment of investigation, can run over of the constitutional or procedural issues to enable an investigation. He can hear a witness, can produce an evidence, request expert for clarification to resolve his doubts in the judgment, but it does not mean that judge can investigate. Supreme has already told that.
ConJur — Is judge entitled to combat corruption? Celso Vilardi — Judge is not up to take this stand. He must judge. The judge that judges according to the Criminal Procedure, that follows the rules, makes justice putting in the jail the individual who has to go to jail. The image of judge researcher, investigator, that fights does not exist. Who fights against the crime is the police and the Public Prosecution Office. Judge does not combat anything. Judges that intend to be fighter against crimes give rise to higher nullities in the cases, because they adopt the party posture.
ConJur — In the cases of big operations, a court order may define the future of all defendants. How each of them has its defender, do lawyers usually meet to combine strategies? Celso Vilardi — No. I am friend of many criminalists, what makes me talk to them when there are two or three in the case. But this is not routine. Occasionally, a common path may be established, but not always there is a consensus. Many times, you say you intend to file a Habeas Corpus, and the other says it is not possible. Each one has its form to analyze the case, even because the fact related to its client is not the same assigned to the other.
ConJur — Informer of DEM´s Mensalão case, Durval Barbosa, has made the revelations in parts, which increases media performance. What use is that to investigations? Celso Vilardi — Plea bargain needs to be regulated. Currently it is practically a headline provided by law, but there is no regulation that stating how it should be made or in which moment is should be filed to the case records. That the plea bargain is a feasible instrument, I have no doubt. It can help in the verification of crimes, and be used by specific accused in his favor, which is legal. If this is moral or not is another issue, but he can do it. Although it is part of the procedural mean, plea bargain should be shaped. What cannot happen is to be hidden, and defense becomes aware of its existence in the end of the case. It should be object of challenge by the defense of the individual that was charged, who is entitled to produce evidences for his benefit. Because if the informer will have a benefit, such benefit should be related to the fact he has told the truth. I already had a case in which I verified the plea bargain only in the sentence. It has never appeared before. ConJur — Revelations little at a time, such as those of DEM´s Mensalão, are not for more political convenience than the investigations?
Celso Vilardi — Despite of existing a law to sanction this type of revelation, because it is leakage of confidential data, this is a problem that experience shows that no one can control. In all operations, there were revelations like these ones, and in all of them, we can see that there is a method. It is revealed as appropriate to reach a specific objective. This is not good, because the accusation is based on such fact, which may not be true. The reputation of individuals further acquited is compromised, and their image cannot be recovered.
ConJur — Besides politician, does the concept that rich people is always guilty become evident? Celso Vilardi — Once I was called for an operation in an apartment in Higienópolis. I was informed at 06:00 a.m. and I must have arrived there at 07:00 a.m. The Federal Police was standing in the door, that mess. I entered in the building, greeted everyone, I said that I was the lawyer of the investigated. Then a boy opened the door of the building for me and called the elevator. I entered in, pushed the button of the floor and noticed that he didn´t push none. Then he said: “are you a lawyer?” I answered yes. He continued: “this guy has many cars. I always thought there was something wrong with him”. It means, the 13 or 14-years old boy did not want to know why the individual was being accused anymore. To him, it was obvious that the individual was guilty, because to have so many cars, he must do something wrong. This is society´s view.
ConJur — As to the fact of being rich helps to have a good defense? Celso Vilardi — The precedents of the Superior Court of Justice regarding the telephone tapping, for example, involve many unknowns, poor people. I read the precedents. There is one related to the case of a small drug dealer, another that refers to an individual that sold drugs in a hot dog stand. But when a case with media repercussion ends with acquittal, everybody relates the decision to the fact that the accused has money. The tapping history is not for decisions only for rich people, but also to poor. Of course, they involve a good lawyer, who raised the thesis. It is easier to be saved in a heart operation with a better physician. It is easier to succeed in a dental implant with a good dentist. It is easier to find out a problem in the brain if who performs and analyses tomography is good. People dies at SUS line, but it hardly happens in Albert Einstein Hospital. Justice is not different from the health area. People dies at SUS line, and there is innocent people arrested. Defense is expense. It is needed to go to Brasilia to uphold a Habeas Corpus filing, assign memorials, make copies of opinions. Obviously that many people do not reach the Supreme due to the fact of not having conditions to do it so. However, with the electronic Habeas Corpus, which is not working completely, there will be a democratization.
ConJur — Where does the interest in Criminal Law come from? Celso Vilardi — Before starting the course, I head in Jovem Pan Radio the criminalist Evandro Lins e Silva performing the Trial of Doca Street case [convicted for the girlfriend´s murder Ângela Diniz, in 1981]. I had in my mind that when I grew up, I wanted to be like Evandro Lins. There was a special charm in the Trial, because there were no slaughters, such a trivialization of the life. In cases of violent emotion, cheating etc. It is much harder to perform a Trial nowadays, because jurors see free violence every day.
ConJur — How was the beginning in advocacy? Celso Vilardi — I started working as a lawyer when I was 23 years-old, by myself. I even had a firm, but I was the only one to act in the criminal area. Then I left this firm and established my own. I hired a lawyer, an intern, then two lawyers. I always was the oldest, now I am 43 years-old. Then the responsibility of making decisions was always mine. In Criminal Law you cannot imagine this. The only who knows it is the oncologist, because criminal law is cousin of first degree of oncology. In one you handle with people´s freedom, and the other with life. Anxieties are the same. Criminalist´s client ask: “will I be arrested?”, and the oncologist´s wants to know if is going to die. Sometimes physician says: “yes, you are going to die”, as well as sometimes I have to say: “yes, you will be arrested. We are going to do the best defense as possible, but the chance of you are going to jail is high”.
ConJur — Have you always been working in the criminal area? Celso Vilardi — My internships were always in the criminal area. My first experience was lawyer in jury trial. I did not have anything to do, I did not have clients, then I performed Trial to the State, from five to seven per month. I spent two or three years like this. Two classmates of the university worked in the law firm Mattos Filho, and they started to appoint my name to the panel, which is essentially corporate. It was when I got in touch to the public to which they appointed me. Then I moved away from Trial to serve clients of corporate area. Nowadays I am very distant from Trial. I even have some cases, but few. I have cases in which I act as assistant to the prosecution even more than defender. ConJur — What was the first big case? Celso Vilardi — The first I won was Bank Pontual, in the Superior Court of Justice too. Then my career has been growing. I am graduated for 20 years. In 2007 a God appeared in my life, Márcio Thomaz Bastos. Arnaldo Malheiros [also criminalist] was the one who brought me into contact with Márcio. And he started to indicate me for some cases, and also those we worked together. It was important in all aspects, not only for working in big cases. In the most of them, he was the one who indicated me.
ConJur — How is to tell a client that he is going to be arrested? Celso Vilardi — You have to tell. I lost many clients because I tell the truth. My father used to say that it is better you spent two minutes with yellow face than stay for two weeks with red face. Client should understand that he can have a lesser penalty, and this is one of the reasons of having a good lawyer. It is to have a fair penalty. There is no magic in the criminal law. There is a case, there is a code, an evidence, analysis and reading of document by document, and a solution that depends on the evidence. Sometimes witness says: “I lied sir, I told it was him, but it was not”. And the case that was dismissed, it is not anymore”. It may appear a new element in the case or, in a difficult case, find out a nullity.
ConJur — Is prestige proportional to money? Celso Vilardi — Prestige comes from seriousness. You may not even be a famous lawyer, but if you do a serious work, a correct statement, judge recognizes, prosecutor recognizes, court recognizes. A person that writes poorly, with Portuguese mistakes, with an absurd interpretation of the legal text, that reverses facts, that conceals, that changes, is marked. And it is clear that the more renowned you are, there will be greater clients and a best reward in cash, as in any other job.
ConJur – What does it mean to a lawyer win or lose? Celso Vilardi — I´ll tell you a history. New lawyer, I was to defend a man accused of raping and murdering a girl. He was arrested, but there were no evidences against him. On the judgment day, when I went to a conversation, he said: “sir, here is the thing: I am the thief of the district, I assume what I do. I am a rapist and thief. Did you read my record? All cases registered there, I am guilty. But this one I am not. You know: I am the thief of the district, they placed on my shoulders. It is unfair.” I thought: “this man is honest”. There was no evidence against him. I made the defense, shout, cried. But the result of the Trial was 7×0. He was adjudged guilty. There were no evidences, but he was being convicted for his past: rapist, thief, murdered. I told him: “John Doe, you were adjudged guilty: 7×0. You saw that I did my best, but your history affected”. I came back to en banc court with a defeated face, sad. It was a tremendous injustice with my client, he would be in jail for something he did not do. He realized my sadness and before I leave, he patted on my back. “Sir, be cool. I did kill the girl.” And left. I did not sleep that night. I wondered: “what if I acquit this guy? He said he did not kill the girl”. On the next day, I meet the prosecutor, who I knew from the time I was an intern of the Public Prosecution Office, and we had a chat. I told him what had happened. “I am devastated”, I told. He answered: “you are stupid. You are not the judge. Imagine you if you could acquit someone? Who acquits is the juror. Lawyer is to defend. You did a good defense, you have to continue with your work”. It helped me so much. Because I kept wondering: “What if I acquit him?” Lawyer does not acquit anyone. Lawyer defends.
