A task force sponsored by the ABA Section of Litigation held a trial skills training program for 32 Haitian lawyers from August 26 through 28. Paying their own travel costs, nine lawyers and a federal judge headed to Port-au-Prince, Haiti, eager to teach advocacy skills and international legal principles to their counterparts in Haiti in hopes that the training would in some small way help to strengthen the Haitian justice system.

Says Hilarie Bass, 2010–11 chair of the Section of Litigation, who led the task force, “The Haitian lawyers, in describing their experiences and challenges, had as much to teach us as we had to teach them. Their strength and courage, their willingness to seek justice with little reward, their persistence in the face of adversity, and their willingness to continue under extremely difficult conditions for little pay—all served to inspire us and to make us think.”

Even the trip from the airport through the streets of Port-au-Prince—the capital of this Caribbean neighbor less than 700 miles from Miami—was instructive and certainly affecting for the American lawyers. A year and a half after the earthquake the city remains strewn with rubble and clogged with the tent cities that still house half a million Haitians whose homes were destroyed. Among the attendees, the faculty would later hear, were many who had lost family members in the earthquake. One Haitian lawyer reported that his house had collapsed and that he and his family had built a shack beside it and were still living there.

Need for Reform
The Haitian lawyers expressed tremendous gratitude and appreciation at the interest and concern of their American counterparts and the opportunity to meet and share information with colleagues from all over Haiti. They described the challenge of defending the accused in a system where, despite a 1987 constitution enshrining protections such as speedy trials and the right to an attorney, in practice prisoners are routinely detained for periods from months to years (there is no bail system) before their cases are heard. Many never see a lawyer, and those who do have no right to private encounters and must meet with their attorneys in tiny, squalid cells crowded with other inmates.

The three-day training offered a unique opportunity for lawyers to exchange information, with sessions on advocacy, American and Canadian standards and procedure, international law, and the procedures of the international criminal courts. The Haitian lawyers, working within a judicial system based upon codes that have not been amended since they were written in the 1830s, must cope with such anachronisms as fines on the books measured in piastres —a denomination with nil value—and the inability to make use of biological evidence (sperm in a rape case, for example). Images and recordings, too, are not allowed as evidence in the Haitian court.

Hearing of the American Fifth Amendment, the Haitian lawyers reported that in Haiti, the accused criminal is always the key witness for himself. Criminal defendants are interrogated by an investigating magistrate during which interrogation their lawyers must remain silent, being permitted requests only after the interrogation. The defendant’s testimony becomes a primary document, along with the magistrate’s report, at trial. The notion of the defendant’s right to remain silent without recourse, a pillar of the justice system in the United States, is unknown in Haiti.

Although witnesses can play an important role in Haitian trials, attendees said, their security is not assured. “There have been cases where a witness has been killed after testifying,” an attendee related. “There is no protection for witnesses, and this is a serious problem in Haiti. On the defense side, when the person is called to testify, it’s even more serious. The person almost never appears, so we have to continue the trial without the witnesses.”

Debate and Perplexity
While there was general agreement among the Haitians about the need for reform of the system—especially of its extended preventive detentions, its prison conditions, and its antiquated codes—a debate erupted over the extent of the Haitian judiciary’s independence, with some asserting that there was independence because the law stipulates that no executive can change a judicial decision, and others saying that because the executive has command of the judiciary, judges’ decisions are constrained.

“If judges feel they are well seated,” said an attendee, “they can make independent decisions.” He added that political winds can always unseat a judge and that personal security of life, family, and assets are at risk. Only the Supreme Court judges are protected from executive fiat. There are three-year terms in Port-au-Prince, he added, but a judge might still be banished to a remote outpost, and when this happens, the judge often quits, the end of a career.

Haiti has abolished the death penalty and is party to the American Convention on Human Rights, which stipulates that countries that have abolished the death penalty may not reinstate it. Attendees expressed perplexity, not so much over the fact that in the United States capital punishment is still practiced even as the world moves closer to its universal abolition, but rather over the fact that some states retain the death penalty while others had abolished it. Federalism, faculty member Jerome Roth responded, is a big subject, perhaps for another day.

Further Effort Required
The Haitian lawyers ended the last day’s session by eliciting promises that the attorneys would visit again. In the closing session, during which the American lawyers asked them how the American legal community could help the Haitian legal community, the Haitian lawyers asked for ABA pressure to try to bring about reform of Haiti’s pretrial detention system, and to push the government to build new, more humane prisons, which could provide a measure of privacy and dignity for the prisoners and detainees, and a place where the lawyers would be able to have private conversation with clients.

Although many of the Haitian lawyers reported that they taught school in the afternoons in addition to working as lawyers in the morning, to support the cost of the transportation to court and clothing to wear there, after which nothing much was left, none requested pressure to raise the salaries of lawyers.

Steps Toward Organizing the Bar
Faculty member Markenzy Lapointe, who had been born in Haiti but whose family emigrated to the United States, said he recalled his early childhood as he witnessed the “positive spirit, the survival spirit” of his countrymen. Markenzy encouraged attendees to keep in touch with one another, to organize, and to push for reforms.

One attendee responded, “I can assure you that I will be leaving here with a lot, especially with this motivation that was infused into us by one of the speakers . . . to organize ourselves as lawyers. We all agree that the way that the Haitian legal system functions is not good. It’s not enough to just take note of the fact; we must become involved. We must work to improve the system. When I get back to my jurisdiction I will speak of what I learned to other lawyers so that we can act and affect change on our system.”

Faculty: Bernard Amyot, Hilarie Bass, Terree Bowers, Cathy Carr, Kendall Coffey, Genevieve Cox, Hon. Bernice Donald, Markenzy Lapointe, Peter Michelson, Jerome Roth, and Anthony Upshaw.

Staff: Monica Buckley, Sharyne Tu.

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Section Task Force Travels to Haiti to Train Lawyers

Section Task Force Travels to Haiti to Train Lawyers

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