A trial like we may never see again, what they left unsaid and looking ahead
by Eric Jackson
If you keep driving that way the mean old judge is going to take your license away.
admonition, long ago, by a law student working his way through law school in a day care center
wherein the nexes of judicial temperament were impressed on the minds of kids riding hot wheels
So did Judge Yorlenis Fruto pass the test? Was she mean? Was she old?
Actually, it was fun watching her expressions at the December 23 municipal court trial of Okke Ornstein, accused of years ago defaming a man now deceased. It was also interesting to this reporter, as it may have been one of the last, or even the very last, trials for alleged violations of Panama’s criminal defamation laws held under the old inquisitorial system of criminal procedure. These days the newer accusatory system applies, but this charge dates back to when the old system was in effect. That meant no oral testimony, no cross-examinations, nobody asking “Hey — where’s the alleged victim and complaining witness?” No shocking courtroom confessions either.
On this day a file, about three inches thick, was passed around among judge, prosecutor and defense counsel, with arguments based on papers therein.
“The file” was by no means the only one in the little courtroom. There were hundreds of thick paper files stacked up along the walls, making it an unpleasant and indecorous place to work and also a terrible fire hazard.
So did the judge laugh, or did she smile? Actually she did, but not in the courtroom. After it was all over she met someone outside the courthouse and she did smile and did laugh. I was not so intrusive as to try to figure out why or who.
First up in the trial, however, was the defense motion to dismiss the case because it had been filed in 2007 and it was only now getting to trial. As in, dismissed under the statute of limitations. For this the judge modified her courtroom poker face into an ever so slight scowl. She blamed Ornstein’s own disregard for developments in his case for court dates scheduled, for which he was never personally served of any notice, and not held because he was unavailable. Motion denied.
Then, the argument about the case at hand, between young prosecutor Pamela González and veteran defense counsel Manuel Succari. Gone was the hint of a scowl. The judge resumed her poker face. González emphasized that the complaint was about Ornstein calling one Clyde Jenkins a pedophile. Succari noticed that the complaint was not translated into Spanish, nor was it signed or otherwise verified.
Panama’s criminal defamation law is actually two laws, calumnia and injuria. The former is like libel or slander in the Common Law systems, and is about false and defamatory statements. Truth is a defense to calumnia. The latter is about injury to a reputation. Truth is not a defense to injuria. Succari went after the injuria charge. Where was the claim of a job or contract lost? Where was the testimony about any harm whatsoever?
The judge, when it was her turn, droned on in a monotone, noting that the police couldn’t verify that the pedophilia allegation had actually been published, that the complaint was not in any proper form to be admitted into evidence, that there were no proofs of injury. Ornstein was thus absolved. Her expression did not change.
Judge Fruto is not old, except maybe to a toddler on a hot wheel. Had she been more of a meanie she could have ignored all laws and proofs and come up with a conviction and a severe sentence. Precedent hardly means anything in Panamanian law, but there are lots of examples of judgments contrary to law and evidence. But a mean old judge she turned out not to be on this day. Perhaps as she continues in the job and gets wrinkled and jaded and bitter, she will meet the two nexes of judicial temperament.
Not at all mentioned in this proceeding was the identity of the real complainant. Back in 2008 one Donald K. Winner, in a screed where he also threatened to set people up on drug charges, admitted what it was: “I filed a criminal complaint against Okke Ornstein when he published his slanderous article calling Clyde Jenkins a pedophile.” That Winner had no standing to do this and tried to file a complaint in English without verification meant that years down the pike a morning was wasted for several people.
Does somebody want to allege a fraud upon the court? In the scheme of things there were worse ones from that quarter. For example, being the shill in a pump and dump gold mining stock swindle, in which former President Martinelli was, according to witnesses, making money on insider trades. Martinelli avoided legal consequences when that came out because one of Mr. Winner’s “inside sources” in the legal system — one Alejandro Moncada Luna — was by then the presiding magistrate of the Supreme Court and ruled that insider trading is not a crime in Panama if the shares are not traded on Panama’s little Bolsa de Valores stock and bond market. About the time that Moncada Luna was placed under house arrest for corruption — nowadays he lives in El Renacer Penitentiary, where Ornstein was held, but is kept away from the mainline prisoners because he has gone somewhat crazy in confinement — Winner fled Panama. He now sells cars in upstate New York.
(Did the Hillary Clinton campaign just learn about the “alt-right” and its outlandish claims, attempts to muzzle the press, fake news and abuses of legal processes over this past year? It’s really old in the gringo community here.)
This reporter was a participant in efforts to defend Ornstein. If someone in the corporate mainstream wants to complain about compromised objectivity, she or he may do so. The blackout of this case by most of those media hardly qualifies as impartiality. Meanwhile, the accuser in the case that ended up with Okke Ornstein being thrown in jail for six weeks before learning the day before the trial reported here that he would be on President Varela’s sentence commutation list, one Monte Freisner, had a mouthpiece named Ken Rijock — a guy with a money laundering conviction on his record — spewing fake news derogatory to Ornstein. You might have read about fraud convictions, child molesting or other fiction. Ornstein was jailed for criminal defamation, for writing stuff about Friesner that governments in four countries have written about him. (See, e.g., what the Ontario Securities Commission in his native Canada said about him on pages 20 and 21.) The September 23 trial came after the president announced that the sentence that Ornstein was serving would be commuted. A conviction might have kept him in jail anyway.
The fight remains in Europe to get Ornstein’s Bananama Republic website unfrozen, and the journalist is headed back to Holland shortly. We may see that publication again, but even before it was shut down by a Dutch court order based on a Panamanian court ruling, Ornstein was paying little attention to updating it. Lately he has been reporting on Middle Eastern wars that spill over into European refugee crises, for media that pay like Al Jazeera.
Ornstein just got a sentence commutation rather than a full pardon, so possibilities remain for appeals up to the Inter-American Human Rights Court. It’s a matter of time and resources, but perhaps a chance to get a ruling that not only was the law abused, but that any criminal defamation law is a violation of fundamental freedoms and cannot stand. Because the conviction remains on the record, Panama could make an immigration case of it — but that’s doubtful because Ornstein has a daughter who is a minor and a Panamanian citizen living here. Plus there are other Friesner and Winner complaints seemingly lost in the system. We shall see.
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