Monday, March 1, 2010
Proyecto ACCESO is a unique education program for Latin American legal professionals and citizens. We speak to the director of the program about the motivation behind it, and about the legal changes that are happening in countries throughout Latin America.
MAUREEN CAVANAUGH (Host): Whether the knowledge is from real life or movies, the basic setup of an American courtroom is something we all know very well. The prosecutor makes the state's case, the defense argues for accused, the judge maintains order and the defendant is presumed innocent. As familiar as this setup is to us, it's a new idea for many nations in Latin America. The attorneys and educators of the organization Proyecto ACCESO are trying to bring the best of U.S. trial advocacy to the attorneys of Latin America. The group, based at the California Western School of Law here in San Diego, is celebrating its 10th anniversary this year. Here to tell us more about this unique legal education project is my guest James Cooper. He is Assistant Dean for Mission Development at California Western School of Law and Director of Proyecto ACCESO. And, Mr. Cooper, welcome.
JAMES COOPER (Director, Proyecto ACCESO, California Western School of Law): Thanks so much for having me.
CAVANAUGH: Now I want to start off, if I may, by asking you a question about Chile because I know that you’ve very familiar with that country and, you know, that terrible 8.8 earthquake they had there, how prepared was Chile for an earthquake?
COOPER: You know, compared to any other Latin American country, any other country in the region including the Caribbean, very well prepared. They’ve got very strong institutions, a long history of democracy notwithstanding the 17 year Pinochet dictatorship. They’ve got a volunteer fire department. What I’m seeing a lot on – This is actually a German transplantation because the German influence in Chile’s been very, very strong since the 1880s, the initial immigration there. And what I’m seeing on television, people don’t understand that the people are very prepared because a lot of the community is involved in the volunteering for fire and EMT and that sort of thing. There are professionals as well, but they’ve got very, very strong institutions and if any country in Latin America can withstand something like this, it would be Chile, as devastating as it is.
CAVANAUGH: Our hearts went out to the people in Chile. We, of course, know what it’s like to have earthquakes here. Thank heavens we don’t know what an 8.8 feels like but I’m just wondering since the government is now asking for assistance, what kind of assistance do you think they’re going to be needing?
COOPER: I think it’s the initial stuff, it’s the first responder – I don’t think they’ve got a full handle on what’s happened in Concepción, which was near the epicenter, which was right off the coast near Concepción, a place called Maule. But the other thing is, they’ve had an experience with this in 1960. I lived in Chile in nineteen – in 2004 of the few times I’ve lived in Chile, and we experienced a 6.2 earthquake when I was there. And it was super scary but the buildings are built to code. It’s like California. There’s incredible amounts of restrictions in building bureaucracy and bureaucracy involved in the construction of both public and private spaces. So it’s not like Haiti and that’s why – And the other reason is you haven’t seen the kind of death and destruction as you saw in Haiti is because of where the earthquake happened compared to where the urban centers are.
CAVANAUGH: I want to thank you for that, and I want to direct our conversation now to the reason you’re here. I want – First of all, you are Director of Proyecto ACCESO and I want to ask you, what is this program? Tell the audience a little bit about it.
COOPER: Certainly. ACCESO is an acronym…
COOPER: …in Spanish for ‘Abogados Creativos Colaborando para Encontrar Soluciones Optimas,’ which means creative lawyers collaborating to find optimal solutions. We started just over ten years ago when my colleague Janeen Kerper who was a professor with me at Cal Western, she passed on in 2003, but the two of us with a Chilean colleague Angel Valencia, who was director of the law school in Temuco in Chile and a New York Supreme Court judge, Laura Safer Espinoza, we had gone down to Chile, each of us separately, some of us with the United States State Department and others on the United States agency – Information Agency which had been folded subsequently into the State Department, and performed some oral trial training programs. So what’s happened is, Latin America has moved from the inquisitorial to the adversarial system, that is to say from closed, written opaque trials where there is no burden of proof, where it’s done as a truth-telling exercise, very much a Catholic institution that’s left over from the Spanish Inquisition and to a more, some would say, enlightened or modern system where there’s a right to hear the evidence that you’re – that is being used, to hear the case against you, to confront your accuser. There are victim rights. There are just a number of other rights, including a burden of proof. And in doing so, they’ve had to create two new institutions, the Public Defender’s office and the Attorney General’s office. So it’s really been a – and train a whole set of judges in how not to ask questions but to listen.
CAVANAUGH: And that’s fascinating. How long – how far along this process are nations in South America and Latin America towards a more adversarial kind of a justice system?
COOPER: Most countries have actually started the process. In fact, Chile was the last start and the first to finish, which goes to your first question about whether Chile’s prepared for these sorts of natural disasters. Chile’s got the highest GDP per capita in Latin America. It’s got the highest quality of life and other living standards indicia. They also see the rule of law as a national sport. I mean, it’s a serious, full contact sport. That probably goes back to the 17-year Pinochet dictatorship when nobody did anything wrong because you were afraid to get out onto the streets, which is surprising why you’re seeing some looting now in places like Concepción, which as a result of the earthquake but that’s more a function of need than it is as a social safety valve mechanism or whatever, a response to rule of law. That’s just out of strict necessity because they’re just not getting the supplies in there that they need right now. But going back to your original question, most Latin American countries have engaged in this. Mexico started a few years ago, mostly from each of the states rather than as a federal initiative. Now each country in Latin America is different, obviously. Some of them are Unitarian or centralist states, like Chile, and others are federal states. Like the United States is a federal state…
COOPER: …Argentina, Mexico are federal states, so it’s more complicated. There are more levels of bureaucracy. The reason Chile’s been successful is, firstly, it’s a Unitarian state, everything is run through Santiago. The other reason it was successful is that it did it, the reform, piece by piece. They went region by region or, that is to say, state by state. The states in Chile are called regions and there are 13 of them plus the central – the metropolitan area of Santiago, which is – was the last place they went, which is where 60% of all the trials in criminal matters are heard. So they were able to tinker with the process along the way. So every country has engaged in it. Some did it region by region, others did it as kind of a metachange, that is to say they waved a magic wand, Maureen, and then one day they said you’re inquisitorial and the next day you’re adversarial. And there wasn’t the kind of training or human capacity development that was necessary to make oral trials work because you’re really – I mean, it’s a paradigm shift. You’re talking about hundreds and hundreds of years of the Spanish Inquisition. Now, you know, hey, welcome to LA law or Boston law, you know, and…
CAVANAUGH: It’s amazing to think about. Since we started in Chile, let’s stay in Chile. And so what does ACCESO do when you go down there, the educators and the lawyers that are part of this organization? Do you sit down with a bunch of lawyers and show them how you argue?
COOPER: Sure. Well, not necessarily argue but you show them all the different stages of…
COOPER: …a trial. Well, part of the process is legislation building, so we help develop legislation to…
COOPER: …implement oral trials. Others might – or evidence or DNA evidence or test new court procedures. You know, we train prosecutors on computer forensics and all sorts of other judicial innovations but part of it also is the workshops where we do the one-on-one or, in large groups, the kind of training for judges on how to hear evidence, how to run an oral trial because they have no experience…
COOPER: …at this to how to do a cross examination. How to do, you know, a direct examination, how to build the theory of a case, a closing statement, all the different steps of a trial, a moot court or mock trial at the end, those sorts of things. But then we also do consensus building or public education and that is to say we use popular culture to train and educate the population at large as to why this was important because, you know, these things cost a lot of money. It’s not all IMF, International Monetary Fund, money or World Bank or Inter-American Development Bank money. Chile, in fact, used half a billion dollars of its own treasury to do this, which is the other reason it was a success. Well, it wasn’t seen as an American kind of judicial imperialistic adventure, it was because Chile really wanted to do this process and do it well as it returned to democracy.
CAVANAUGH: I’m speaking with James Cooper. He is Assistant Dean for Mission Development at California Western School of Law and Director of Proyecto ACCESO. It is that organization going down and teaching a U.S. style of legal system to the countries of Latin America and South America. I wonder, when you go down, let’s say, to Chile and you teach lawyers there about the American style of cross examination and legal argument and opening statement and the whole thing, do you have to know – do you have to learn about Chilean law in order to translate this in a way so that these lawyers are going to get it?
COOPER: Absolutely. It’s not just a judicial imperialistic endeavor. First off, I’m Canadian. I’m a barrister in Canada…
COOPER: …so we’re not just teaching American style, we’re teaching sort of the common law, if you will, or adversarial system techniques that work in Australia, that work in Singapore, they work in England, they work in the United States and in Canada and all sorts of other places where we have this tradition. Most of the world is moving in this direction, even the World Trade Organization is moving to – has an adversarial system and, you know, that’s a world body that – under the Dispute Settlement Understanding at the World Trade Organization from 1995. My point being, everybody’s moving toward…
COOPER: …you know, all the kids are doing it.
COOPER: But, yeah, we have to be very culturally relevant. And in addition to that, the notion of oral trials also plays into indigenous practices because the notion of orality or storytelling is very much an indigenous practice and too often the indigenous peoples of Latin America are left behind in reform processes and what we try to do is integrate their leaders and their lawyers, as many as there are, to join us in this effort and to develop the kind of oral traditions that haven’t existed in the Spanish colonial legacy.
CAVANAUGH: That’s fascinating. So, in other words, in the past then, what you’ve had in this inquisitorial system is a lot of written argument, a lot of written pled – pleadings…
COOPER: Pleadings, yeah.
CAVANAUGH: …and so forth and the lawyers basically don’t get to speak a lot.
COOPER: No, they – What happens is, the judge, who’s the investigating magistrate and also the sentencer, so the judge actually takes the role of the prosecutor and the judge in the old system…
COOPER: …here she does both, mostly he, but he or she often will appoint a court functionary who will take the evidence and go and literally take depositions without the judge being there and without the other party being there so it’s all done ex parte. And there’s a real danger to this because, you know, these low level functionaries can be easily bribed and for ten bucks you can sort of get that last piece of evidence thrown out. It’s sewn together into the court document and then the judge, at the end of the day, she might see – You know, she has to read through all these – She’s not there for all the – the various depositions and evidence gathering process and so there’s a lot more room for bribery, for corruption. It’s very opaque, it’s not participatory. It’s certainly efficient if you’re up for a guilty plea. I mean, yeah, it’s – but the most efficient system in terms of obtaining a guilty plea and often confession is how things are resolved. So that can either be done through the fact that you don’t have the right to a defense lawyer or you don’t have the set of human or civil rights that we hold dear to ourselves here in North America but also through torture or intimidation so, you know, confession. And that goes back to that whole notion of this is a leftover vestige from the canonistic laws, from the papal and cyclicals that go back to the Spanish Inquisition.
CAVANAUGH: And strangely enough, bringing in this adversarial way of dealing with trials is, in a sense, going back to the traditions of the native people.
COOPER: Absolutely. And it’s a real aha moment when you’re doing the trainings in Latin America and sort of you bring in indigenous people to talk about the fact, you know, this is not new to them. They’ve got their own systems, what are called uso sicos tombres (sp) in places or a tas movision (sp) or sometimes called la leka munataria (sp) in places like Bolivia. And you’re starting to see that more respect is being given to these traditions and it’s also international law under the International Labor Organization’s Convention 169. There are – there is an obligation by states who have signed onto this treaty that they will start to integrate more of these communitarian or indigenous traditional practices into their systems of dispute resolution.
CAVANAUGH: Now ACCESO was given another task by the U.S. Department of Justice to take on the issue of intellectual property piracy in Latin America. I believe that was last year. That’s the focus of a film that will be shown at the 10th anniversary event for ACCESO on Wednesday night. What can you tell us about that program?
COOPER: A couple of years ago we started doing work in intellectual property piracy. We realized that – Well, first off, you know, aside from the fruits and vegetables that people from other countries pick for us here the States, this state’s economy is very much based on intellectual property rights whether it’s Silicon Valley software, biotech, telecom, Hollywood, the music industry or what’s left of it, these are all reliant upon intellectual property rights in other countries being protected, and they’re not. And it’s very much – people see it as a victimless crime or it’s a Robin Hood phenomenon. We’ve been trying to fight against that. The song that you led the segment with was actually a song in Guaraní, which is a language spoken in Paraguay but also less so in Argentina and Brazil and in Bolivia but we commissioned a bunch of singer/songwriters to write songs against piracy in their own native languages as part of this paying homage to indigenous peoples. We also had people like Taboo from the Black Eyed Peas, Andy Summers from the Police, Paolo Ricardo from a rock band called RPM, La Bow (sp), Tijuana, a bunch of bands out of Brazil but also Bolivian rock stars to all – and ska and hip-hop artists to all participate in this film. We were commissioned by the Department of Justice to build a set of training materials to educate Latin American officials about why they should consider piracy a crime and not just as a simple kind of Robin Hood thing. And the film kind of emerged out of this. We took – we pieced all our training materials, which were nonlinear and done as a multi-media piece together into a film that’s 107 minutes and it’s playing on Wednesday night at 5:30 at the Museum of Photographic Arts.
CAVANAUGH: Now when we think of intellectual property theft, I think a lot of us immediately think of China but apparently a lot of it goes on in Latin America. What kind of a problem is it in Latin and South America?
COOPER: Oh, we’re talking about a huge problem. There are Chinese and Taiwanese influences obviously there, Lebanese as well. Often organized crime is behind this and sometimes some of the same supply routes dovetailing with what one of your guests was talking about earlier with respect to human trafficking, often whether it’s drugs, arms, people, often the same supply chain is used, and the same kinds of organizations are used. But in the case of intellectual property pirated goods and counterfeiting, we’re talking about billions of dollars annually. We’re talking about, you know, the World Health Organization estimates, I think, $57 billion last year was spent. How they measure these things is really difficult. The MPAA, the Motion Picture Association of America, estimates over $4 billion was lost to fake DVD sales. The RAAA (sic), the Recording Industry of – Association of America and its international wing, the IFPI, the International Federation of Phonographic Industries, estimates $3 to $4 billion annually is lost. And that doesn’t just affect Madonna and Bill Gates, which is the traditional argument, you know. Oh, we’re just ripping off Madonna and Bill Gates, nobody cares. You know, they’re rich enough. It actually kills indigenous cultures’ music, art. All the culture makers in places like Paraguay and Bolivia, they can’t get a record deal. They can’t make a living. And artists are starving to death because their rights aren’t being protected. And it kills the indigenous music industry, so you’re talking about the cultural patrimony of countries. So what we’ve tried to do is say this isn’t about American or increasingly Brazilian musicians losing their ability to make a living, it’s also about the other non-powerhouse states in Latin America that have a potential – that this whole problem, whether it’s fake brake parts, fake – you know, health and beauty aids. I was in a market in Sao Paolo, I couldn’t believe, we found fake Gillette razors.
CAVANAUGH: I know. I was going to point that out. This is not just DVDs and CDs. A wide range of intellectual property theft, I mean, a wide range of things come under the guise of intellectual property theft.
COOPER: Indeed, it’s everything from fake brake parts to fake Rolls Royce engines on international jets. The last thing you want is your BMW to have fake brake parts. I mean, it’s bad enough with some of the car problems and acceleration and some other car makers. But fake perfume, fake beverages, alcohol, I mean, Coca-Cola, you’d be amazed at what gets pirated.
CAVANAUGH: It is amazing. So the idea, the reason that this is intellectual property theft for, let’s say, a fake brake part is that someone tries to figure out how that brake part is made, makes it themselves and then puts a label on it?
COOPER: Yes, but figures out not how it’s made but what it looks like. It might…
COOPER: …be made of sawdust. It was the case of these BMW brake parts that came from Lebanon that were sold in Brazil. You know, you just have to get on the web and just put – punch in, you know, Brazil and fake brake parts. And, by the way, Attorney General Eric Holder was in Brazil last week talking to Brazilian leaders where we’ve done a lot of our work, and talking about the fact this isn’t just an American problem, this is a Brazilian problem. The Brazilian music industry is a tenth of what it was 10 years ago in terms of gross sales. So a lot of musicians and artists can’t make a living. And it used to be when I was a kid that artists would go on tour to support an album. They’d lose money on a tour. Now they have to go on tour to actually make a living because they’re not making any money from the sales of their work. So this is a pretty serious issue because we’re talking about research and development for new cancer drugs. And in the case of drugs, you know, there are cases in Tijuana of fake Lipitor being sold. So it’s not a question of even that it’s going to hurt you, it’s that it’s not helping you.
COOPER: So that’s your best case scenario, that it’s not going to help you. The active ingredient’s not there to actually fight off what you’re trying to fight off. So you’re slowly dying instead of dealing with the medicine – having the medicine that you need. But the worst case scenario is there was a case of Viagra with cement being used to make it look like real Viagra. I mean, it’s – it is staggering the lengths to which people will go, and I’m not saying out of Tijuana the stuff’s being made. It’s being made in India and China and so forth, but it’s being sold and being sold to unsuspecting customers including a lot of U.S. citizens are going over the border to get lower priced medicines because they think they’re getting a deal.
CAVANAUGH: Did you feel that this IP piracy task that you were given by the Justice Department dovetailed in some way with the whole idea of teaching this adversarial style of justice in different countries in South America?
COOPER: It’s all really to me about rule of law. And when you, you know, the broken window theory, when you see people on the street selling intellectual property, counterfeit goods, pirated goods, fake Louis Vuitton purses or Coach purses or – and so forth or sunglass – Ray-Ban sunglasses or fashion items or Gillette razors, and there’s a less likely – you know, there’s a sense of, hey, they’re not paying attention to rules, I don’t have to pay attention to rules. And that small ‘c’ corruption kind of filters its way all the way through society and that’s not the kind of, you know, regional trading partners that we need. We’re trying to build a region with the western hemisphere that – with a series of trade agreements that is based on the rule of law so that contracts are enforced, so that shareholder rights, intellectual property rights, are protected, so that human rights and labor rights and environmental rights, more importantly, are protected. You know, everybody wins with the rule of law. So intellectual property is just one of many areas and it’s one of the most blatant areas but it’s also pretty important. I, myself, in the mid-nineties, I worked for Marie Claire magazine in between law jobs. I went to – ended up being a fashion photographer and worked for Marie Claire and which was a Reed Elsevier company, a Dutch-Anglo conglomerate, and there were 22 different Marie Claires and I would get contracted by one to do some work and then the others would buy the rights to the piece. Well, Il Corriere della Sera, a Milanese-based newspaper out of Italy, a daily, a really good paper, had the audacity to print my photographs without credit and without paying me and we actually – because I went to law school in Italy, we actually sued them in Italy. They didn’t know who they were messing with. We sued them in Italy and we settled for four million lira, which I think at the time was like $8.00. It was about $4000 Canadian, $3000 U.S., and after my agent got her piece, I think I was left with $2000 but the point is had they bought the rights, it would have cost them $500. So I think you really also – For me, this is a very personal journey because it’s very important not just for California’s intellectual property rights regime and for the stuff that’s going on here economically but because research and development of new drugs, cancer fighting drugs, and new innovations all around the world have to be protected, and we have to let indigenous people, too, be part of this, whether it’s their – the tree bark for the Caipo Indians in Brazil in the rain forest and, you know, pharmaceutical companies coming in and, you know, poaching their interests, we really have to be concerned about how to protect all the different groups so that they can participate meaningfully and sustainably in the global economy.
CAVANAUGH: We only have about a minute left. I just wanted to ask you really briefly in closing, this is your tenth anniversary of the Proyecto ACCESO. I wonder, do you see that there’s going to be a need for ACCESO ten years from now since the South American countries are coming across – coming up to where we are so quickly?
COOPER: Well, you know, it’s an ongoing struggle in the sense of some countries are a little slower to adapt to a new generation of legal professionals and legal change activists but California Western, our faculty, our students and our members of our board of trustees and the local community bench and bar have all participated over the last ten years in conducting programs and we’re just really, really lucky that we’ve been able to do this. I hope one day we don’t have to do this anymore but my sense is with what’s going on in Mexico and Bolivia and some other places, that we’re going to have some work going forward in the future. But, you know, it’s, again, it’s not judicial imperialism. We get contracted by other – and contacted by other governments to do this work, whether it’s the German government, the Bolivian government or the Chilean government so we’re – you know, we’re ready to help and we’re just really blessed to be able to do it here at the northern end of Latin America, San Diego.
CAVANAUGH: That’s a very nice way to put it. Proyecto ACCESO will be celebrating its tenth anniversary this Wednesday night, 5:30 at the Museum of Photographic Arts in Balboa Park. At the event, they’ll be screening parts of the new film “Intellectual Property Piracy: The Challenges for Latin America.” And for more information, you can go to our website, KPBS.org/thesedays. James Cooper, thanks so much for speaking with us today. I appreciate it.
COOPER: Thank you, Maureen.
CAVANAUGH: And if you do want to go online and post a comment, KPBS.org/thesedays. Thanks for listening. Join us again tomorrow on KPBS.