Salomon Chang
9.24.07
 Today we began the much anticipated Advocacy Workshop. The workshop was run by three Defenders – Miguel, Nicholas, and Octavio - who represented a handful of the most experienced attorneys at the Defensoria. However, that statement is somewhat misleading given that the Defensoria in Santiago has only been around for two years. In any case, we spent the first part of the day hearing lectures about defense theories, opening statements, and direct examination.
I have to be honest. I was a bit surprised when I saw the type of material that was being taught. I was originally under the impression that this would be similar to a MCLE continuing education type class that we have back in the States. In other words, I thought the workshop would go over more advanced trial techniques. You can imagine how surprised I was when one of the first PowerPoint slides said something to the effect of, “Try to attack the credibility of the witness.” After that, I realized that this was going to be a very, very basic introductory type workshop on trial skills. In fact, the materials looked almost like the same lectures I received during a brief workshop on trial techniques back in my first year of law school.
Despite the introductory type nature of the presentation, the information being articulated was essentially the same types of things we would learn in the States. However, even though it appeared the Defenders here were being taught the same trial techniques that we learn in the States, I have not yet seen these techniques used in any of the hearings and trials that I have observed thus far. Perhaps it’s because the attorneys are still relatively new at trial advocacy and have not yet had an opportunity to try these techniques out in a real hearing/trial. On the other hand, maybe the techniques just seem too foreign and the Defenders would rather try their own thing. Either way, I hope that the process of trial evolution will create better advocates on behalf of our clients. Sometimes I forget that their adversarial system has only been around since 2000 while the States have essentially had an adversarial system throughout our entire history.
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9.25.07
We learned today that the attorneys participating in this week’s Advocacy Workshop are actually newly hired attorneys. Although, this is somewhat misleading considering that they have already been handling cases for the Defensoria for the past month. That fact was particularly troubling to hear. These new attorneys are already representing real clients in Court and, yet, they have absolutely no trial training. Because the adversarial system is so new, Chilean law schools simply do not offer trial skills classes. Thus, this introductory Advocacy Workshop is the very first time that any of these new attorneys have received any formal training. It seems to me that this workshop should have been held prior to the new attorneys handling cases. Either way, its interesting to see and hear these new attorneys experience the same struggles that law students back in the States face the first time they try and perform an opening or a closing. I suppose advocacy struggles are universal.
9.26.07
At yesterday’s workshop, we were asked to present a direct and cross examination the way that they are done in the States. We worked on it all last night and were excited to show the new Defenders how we would attack (or present) a witness back in America. Miguel let all the new Defenders present their practice directs and crosses first before he wanted us to present our version. It was really interesting to see the stark contrast in methodology and style between the Chilean techniques and the American techniques.
In Chile, there is no walking around the Courtroom by either counsel. In other words, they ask questions while seated, the address the judges while seated, they essentially do everything while seated. It was interesting to see the looks on some of the Defenders faces when Victor stood up to give his direct examination. It was even more interesting to see their reactions when Tiffany began walking around the stage while presenting her cross examination.
Immediately following our presentation, Miguel, Octavio, and Nicholas were gushing over how much they enjoyed it. They said that they were amazed that mere law students were so advanced in their knowledge of trial advocacy. In fact, I think Octavio said we used techniques that they were just now learning. Here’s an example:
Tiffany: You began drinking at 1:30 a.m.?
Witness: Yes.
Tiffany: And your drink that night was Tequila, right?
Witness: Yes.
Tiffany: At 2:30 a.m. you were still drinking Tequila?
W: Yes.
Tiffany: At 3:30 a.m. you were still drinking Tequila?
W: Yes.
Tiffany: At 4:30 a.m. you were still drinking Tequila?
W: Yes.
Tiffany: And another hour later at 5:30 you were still drinking Tequila weren’t you?
W: Yes.
In contrast, the new attorneys would simply ask, “You were drinking Tequila for four hours that night right?” Whenever we broke up the basic point of the question – the witness drank a lot that night – into multiple simple questions, our “image goal” was much clearer. The Defenders loved this tactic and talked about it for quite awhile afterwards. It was a great feeling to think that, at least for today, we made a difference.
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9.28.07
I’ve been troubled these last couple of days with a statement that one of the new Defenders said during the Advocacy Workshop. She had just given a practice opening statement and was being critiqued by Nicholas. Nicholas informed her that she needed to ask for the Court to find her client not guilty at the end of her speech. Her reply caused a half-hour long discussion on the nature of being a defense attorney. In short, she refused to say, “Find my client not guilty,” because she did not believe he had a strong case. She clarified this by stating that she was fighting for justice. So in other words, she had already decided in her mind that her client was guilty and did not want to fight for him.
That notion was absolutely appalling. I am not even an actual Defender here in Santiago and I don’t want her working for the Defensoria. No matter how much everyone tried to explain to her that her job as an attorney was to fight for the rights of her client, she simply did not get it. She could not understand that she wasn’t the judge. She is not here to judge her client, but to speak for her client. When she failed to speak for her client, she failed to do her job.
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9.29.07
 Today we got the pleasure of speaking with Judge Mauricio. It was great to be able to hear what an actual Chilean trial judge thought of their new system. Despite the fact that Judge Mauricio is probably one of the most liberal judges in all of Chile, it was refreshing to hear a judge discuss all the same frustrations that my fellow interns and I have been expressing.
One thing that Judge Mauricio said that stood out to me was that judges are a reflection of the society in which they live. We were discussing why it was so difficult for some judges to actually do their job – to evaluate the evidence presented and to determine whether the evidence presented was sufficient to convict an individual. Judge Mauricio told us that the current judges are, for the most part, incapable of forgetting their previous role as the investigator under their old legal system. In other words, the current judges do not understand that they are simply there to examine the evidence that is presented to them. Because the current judges were brought up in a society in which they actually were the investigators, that old paradigm is still reflected in their work.
Therein lies the problem. In 2000, when the adversarial system was first created, every single judge should have been removed from the bench. It was naïve to assume these judges could be raised and trained in non-adverserial system only to shift everything they’ve ever done or believed in to a completely new system. It all goes back to the saying, “You can’t teach an old dog new tricks.” The previous judges should have been given the option to become a prosecutor or a defender. A completely new generation of judges should have been trained so that they could understand without prior bias the nature of their positions. Now that we’re seven years into this new system, we can only hope that a new generation of judges – a generation with a true understanding of Judgeship – will replace the first.
10.16.07
Today has been pretty uneventful. We spent pretty much the entire day working on our evidence project and recovering from our trip to San Pedro de Atacama. The desert is an interesting place. Before we went, everyone told us how beautiful it was. However, I had my doubts considering the fact that it was a desert. I usually associate beauty in the naturalistic sense with life and colors. It was hard to conceptualize a desert being “beautiful” in the normal sense of the word. Even when we arrived at Calama, less than an hour away from San Pedro, I still had my doubts. It was definitely an interesting sight to behold. At first glance, however, it did not take my breath away.
However, once we arrived at our first tour – the Valle de la Luna – I realized what everyone meant when they said San Pedro was beautiful. It felt like is I was in a whole other world – literally. If I was in a coma and someone put my body in Valle de la Luna or Valle de la Muerte, whenever I awoke, I would have thought aliens abducted me and left me in the middle of their planet. You feel absolutely insignificant as you peer at the gorgeous landscape that has taken millions and millions of years to carve. It was definitely an inspiring trip and I would highly recommend a visit to San Pedro de Atacama.
10.17.07
 I went to my very first international, World Cup qualifying, soccer game today. Actually, I should say, I went to my first fútbol game today. It was an awesome experience. Growing up in Texas, where football is king, I thought I knew rowdy, fanatical, and borderline insane fandom. However, when I compare American football to international fútbol, I realize that international fútbol is on a whole other level. The fans were extremely intense. It was an incredible natural high to feel the stadium shake beneath my feet, to see a sea of red performing the best “wave” I have ever seen, and to hear the collective voices of sixty-five thousand Chilenos all chanting in unison.
What made it even more intense was the opponent: Peru. Chile and Peru have a very intense rivalry. Some of the chants were very obscene and I could not tell if it was just the spirit of competition or true hatred that compelled the Chilenos to chant the things they were chanting. When I think about the cheers and chants that we had at the University of Texas, I cannot recall a single one of them that even came close to the level of obscenity and hate filled speech that the Chilean chants had. There is a unique difference between chanting for “Defense” and chanting for all Peruvians to have their mothers die.
My fellow interns, particularly the girls, were absolutely appalled at the things that were being said. However, I tried to rationalize it by telling them that it is just the spirit of competition and that the Chileans did not seriously mean what they are chanting. However, as I listened to what the Chileans were saying to one another – outside of the chanting – I started to doubt whether these chants were really just silly cheers. “It is all in good fun,” I would tell myself. But, I am not so sure anymore. At what point is a game not a game anymore? At what point do we take these things too far? It seemed like there was true hatred for Peruvians. I suppose sports cannot unite people when there is underlying hatred between two factions. I hope American football never gets like that.
10.18.07
If Chile’s new adversarial system is going to evolve, it is going to take gross roots reform. It is imperative that law schools begin expanding their curriculum to include classes on adversarial advocacy. As of now, Chilean law schools are severely lacking in that area of legal education. In fact, there are no advocacy classes whatsoever – not in Santiago at least. Even if the Defensoría offers a workshop every month, until a systematic shift in legal education occurs, I fear the current approach of “hire now, educate later” will be of little use. What good is reforming the penal system if the educative structure of the new system remains rooted in the old?
More than advocacy training alone, Chilean law schools must begin developing the next generation of legal minds to think bigger than statute recitation. They must teach them to think critically; to ask questions; to interpret the law in a logical and systematic manner; and, most importantly, to think critically behind the meaning of each law. I spoke to a Public Defender today and he told me that law professors prefer students to answer questions, not to ask them. This was troubling because, to me, the law is all about asking questions. The law is bigger than knowing what Article 328 of the Penal Process Code states. The same defense attorney told me that the “bar exam” is completely oral. Instead of reading a fact pattern and applying the law to it, they are asked to recite specific statutes. If the student does not recite the statute correctly, he or she is deducted points. This idea that the law is merely about memorizing a plethora of words and sentences is superfluous to me. What good is memorizing every Chilean statute if you cannot apply it to a particular situation? This country needs grass roots reform.
10.19.07
This morning we had the pleasure of speaking with Judge Avilla. He is the third judge we have met with and, just like the two prior, Judge Avilla sees a number of problems with the penal system and the judiciary. While he also discussed the problem of media influence, he spent the majority of the meeting discussing the inherent ideological problems of the Chilean people.
Judge Avilla believes that Chileans do not truly understand the concepts of liberty, freedom, and personal rights. They do not understand that they have rights that the government must oblige. He believes that because Chileans lived without these freedoms and liberties for so long, they either do not want to be empowered or they do not know how to use their empowerment. In other words, they are so use to people ordering and controlling their lives that they do not know how to think on their own.
Being an American, it was foreign to me to think about someone being unable to conceptualize notions of liberty. Americans grow up on these notions. In fact, in many ways, we are brainwashed into believing them. For example, we learn the pledge of allegiance in kindergarten and recite it everyday before class. For nine years of schooling we repeat the same phrase over and over again: “ . . .one nation . . . with liberty and justice for all.” Ask any elementary school student if it would be fair or right for the government to punish poor people differently than rich people. Indubitably, their response would be, “No.”
As a result, because we have essentially been raised on these notions, it is easy for Americans to become frustrated at the Chilean Penal system. However, it is important to remember that America signed its Declaration of Independence in 1776 – over two hundred and thirty years ago. It is naïve to expect a country, after being subjected to a military dictatorship, to wash away all of its fears and to protest its government for not protecting what it never really had before.
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