Opposition Brief — Vivas v. Puerto Rico Office of the Special Prosecutor

Supreme Court, U.S. |

No. 91-373 | , © THE CLERK |

FILLED

{9

= OCT 8 1991

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

ANGEL FIGUEROA VIVAS,

Petitioner,

v.

PUERTO RICO,

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

October 8, 1991

ALEJANDRO SALGADO RIVERA

Indepented Special Prosecutor

Commonwealth of Puerto Rico

Baldorioty 703

Hato Rey, Puerto Rico 00918

Marcos A. RAMIREZ LAVANDERO

(Counsel of Record)

RAMIREZ & RAMIREZ

269 Ponce de Leén Avenue

Second Floor

Hato Rey, Puerto Rico 00917

Tel. (809) 758-5660

Attorney for Respondent

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

Whether this Honorable Court has jurisdiction to

review the Judgement of the Supreme Court of Puerto

Rico issued in this case when:

1. The alleged federal questions raised by petitioner

were not properly or timely presented in the pro-

ceedings before the Supreme Court of Puerto Rico

and were not addressed by that Court in its Opinion

and Judgment.

2. The questions presented by petitioner are not

substantial federal questions that warrant the exercise

of this Court Certiorari jurisdiction.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED .........c:cssscscssecsssssosesnsecesee

TABLE OF CONTENTS ...c..cccccccecccscscsccsscsscessecsesseees

TABLE OF AUTHORITIES ..........ccccssccssescssscsrssesceee

STATEMENT OF THE CASE .....c.ccccccscssssescecssenseeeee

NBII os oineceeseeccesnesestecnteneeeneenee

1. This Court has no Jurisdiction to Review

the Judgment of the Supreme Court of

Puerto Rico by way of Certiorari for the

Following Reasons: ........cccscccsseeeeeeeeseeerees

a. The alleged federal questions raised by

petitioner were not properly or timely

presented before the Supreme Court of

Puerto Rico and were not addressed by

Came COME cencacecerenconvansnessnssemebreenneniokers

b. The questions presented in the Petition

do not raise a substantial question ....

CONCLUSION ..ccccccsccscccccccssesccccccssocssccnsesccesesonssenseees

14

ill

TABLE OF AUTHORITIES

CASES:

Bowe v. Scott, 283 U.S. 658, 664-65 (1914) .....0.....

Brady v. Maryland, 373 U.S. 88, 91 (1968) ..........

Cardinale v. Louisiana, 394 U.S. 437, 439

(1969) .......... etre ttnacctmcnerievsiersivenseses

Colegio de Abogados de Puerto Rico v. Barny, 109

D.P.R. S45, 847-48 (1980) ............csscccccsrscesssseee

Colén Berrios v. Herndndez Agosto, 716 F.2d 85 (1st

aoc ceenclinctnveseseveceee

Dobbert v. Florida, 482 U.S. 282, 294 (1977) .......

Ellis v. Dixon, 349 U.S. 458, 460-62 (1955) ..........

Exxon Corp. v. Eagerton, 462 U.S. 176, 181 n.3

ES Ee

Fuller v. Oregon, 417 U.S. 40, 50 n.11 (1974) ......

Hernddez Agosto v. Carlos Romero Barcelé, 748 F.2d

Ce scl cmecridieesenesuesuceeeecess

Illinois v. Begates, 462 U.S. 213, 218-20 (1983) ....

In Re Abella, 67 D.P.R. 229, 238 (1947) .........000..

In Re San Juan Star, 662 F.2d. 108 (1st Cir.

Nee sshvnnenenenreovenaee

In Re Torres, 30 D.P.R. 267, 268 (1922) ..............

Pena Clos v. Cartagena, 114 D.P.R. 576 (1983) ....

People v. Gonzdlez Malavé, 116 D.P.R. 578

eo . . esunenanacencepeecers

People v. Pérez Casillas, 117 D.P.R. 380 (1986) ...

People v. Pérez Casillas and Moreno Morales, June

a i ccteticnrectscencreuiesncervesnesacoceecess

Romero Barcelé v. Herndndez Agosto, 115 D.P.R.

cri o innduwestssupedmseceeseeseusoeeds

Soto v. Srio. de Justicia, 112 D.P.R. 477 (1982) ..

4

2,3

12

11

8

8

2

8

4

2

4

iv

Table of Authorities Continued

Street v. New York, 394 U.S. 576, 582 (1969)

Withrow v. Larkin, 421 U.S. 35, 56 (1975) ....

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

No. 91-393

ANGEL FIGUEROA VIVAS,

Petitioner,

v.

PUE RTO RICO,

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

STATEMENT OF THE CASE

The petition for Certiorari docketed herein stems

from the assassination by Puerto Rican police on July

25th, 1978 of two young advocates of independence

for Puerto Rico. The events occurred on a remote

mountain in rural Puerto Rico, Cerro Maravilla, where

the deceased were led by an undercover agent of the

Puerto Rico Police, presumably to commit acts of ter-

rorism, although, they were woefully ill-equipped for

the task.!

! These young men had in their possession a pair of gloves,

two handguns, a sky mask, a package of solid charcoal starter

and a box of matches.

Minutes after the assassinations at a parade for the

official celebration of Commonwealth Day, the gov-

ernor of Puerto Rico at that time, Carlos Romero

Barcelé, promptly labeled the policemen present at

Cerro Maravilla ‘‘heroes’’. Later, after controversies

arose in the press over the official version of the

police, two investigations where conducted by the

Puerto Rico Department of Justice which absolved the

policemen from responsibility and held that they had

acted in self defense. Two investigations by United

States Department of Justice reached the same re-

sults.

Unconvinced by the results of these probes and

alarmed by their unprofessionalism and by the egre-

gious contradictions in the testimonies of ocular wit-

nesses, the Puerto Rico Senate decided to launch its

own investigation of the matter.? The Judiciary Com-

mittee of the Senate promptly hired an experienced

investigator, who for more than two years labored

quietly but tenaciously, interviewing witnesses, gath-

ering evidence and reviewing the reports of the four

previous local and federal proves. Thereafter, the re-

sults of his investigation were presented to the Com-

mittee, via televised hearings. For a_ judicial

2 See e.g. In Re San Juan Star, 662 F.2d. 108 (1st Cir. 1981);

Colén Berrios v. Herndndez Agosto, 716 F.2d 85 (1st Cir. 1983);

Hernandez Agostc v. Carlos Romero Barcelé;, 748 F.2d 1 (1st

Cir. 1984). The opinions of the Supreme Court of Puerto Rico

related to the so-called Cerro Maravilla case, apart from the

judgment herein presented for review include the following: Soto

v. Srio. de Justicia, 112 D.P.R. 477 (1982); Peria Clos v. Car-

tagena, 114 D.P.R. 576 (1983); Romero Barcelé; v. Herndndez

Agosto, 115 D.P.R. 368 (1984); People v. Pérez Casillas, 117 DPR

380 (1986); People v. Gonzdlez Malavé, 116 D.P.R. 578 (1985);

People v. Pérez Casillas and Moreno Morales, June 29, 1990.

oo

recognition of the impact of these hearings on the

Puerto Rico public opinion, see Coldén Berrios v. Her-

nadndez Agosto, 716 F.2d 85, 86 (1st Cir. 1983).

The Senate investigation completely destroyed the

conclusions of the four official probes. Relying on the

testimony of ocular witnesses whom the previous local

and federal investigators had slighted or disbelieved,

of expert witnesses and of three policemen who par-

ticipated in the Cerro Maravilla stake-out and testified

under immunity, the Senate proved to all who wanted

to see and hear that the policemen in Cerro Maravilla

had apprehended the young men, beat them up and

executed them by firing squad while the victims knelt,

handcuffed. The investigation, moreover, showed con-

clusively that there had been a cover-up at the local

level and raised the distinct possibility of cooperation

by federal personnel in the cover-up.

As a result, the federal government launched a third

investigation which culminated in criminal indictments

against ten policemen who were active participants

in the Cerro Maravilla operation. These policemen

were convicted of perjury in depositions taken in fed-

eral proceedings and most are at present serving jail

sentences. Also, as part of the Senate of Puerto Rico

report on its investigation, the President of the Sen-

ate filed on May 13, 1984 in the Supreme Court of

Puerto Rico a Complaint against petitioner and other

prosecutors for unethical conduct incurred while par-

ticipating in the Puerto Rico Department of Justice

investigations of the murders at Cerro Maravilla.

Thus, the disbarment proceedings which culminated

in the permanent separation of the petitioner from

the practice of the profession of law was initiated.*

3A long time ago, the Supreme Court of Puerto Rico claimed

a

On June 5, 1984, the Supreme Court designated a

panel of special examiners for the evaluation, for-

mulation and sustainment of formal charges for im-

proper professional conduct which would appear to be

pertinent in this case. The panel was to submit to

the Supreme Court a report upon which the Supreme

Court would determine whether probable cause ex-

isted for the initiation of formal disciplinary proceed-

ings against petitioner and other prosecutors.

Appendix D to the Petition, page 163.

On January 18, 1985, the Legislature of Puerto

Rico approved Law Number 1 to create the Office of

Special Independent Prosecutor to investigate and

criminally prosecute the persons who could have com-

mitted crimes in connection to the incident of Cerro

Maravilla ‘“‘and to carry out all pertinent civil admin-

istrative and professional ethics actions’’, related to

Cerro Maravilla. The Statement of Motives of Law

Number 1 states that the Special Independent Pros-

ecutor shall examine ‘“‘the actions of the highest rank-

ing officials within the governments criminal

investigation hierarchy” due to the “serious irregu-

larities uncovered by the Senate in the previous crim-

inal investigations.”’ Appendix E of the Petition, page

166-167; Section 6 of the Law granted the Special

Independent Prosecutor exclusive jurisdiction to in-

vestigate and prosecute those criminal,civil, adminis-

trative ‘‘and professional ethics actions -be deems

appropriate’, including those that had already begun.

its inherent power to discipline the members of the judicial

profession and it has now become an establish element of Puerto

Rican Law. See, In Re Torres, 30 D.P.R. 267, 268 (1922); In

Re Abella, 67 D.P.R. 229, 238 (1947); Colegio de Abogados de

Puerto Rico v. Barny, 109 D.P.R. 845, 847-48 (1980).

Appendix to the Petition, page 182. On March 14,

1985 the Supreme Court, pursuant to the terms of

Law 1 and “to prevent undue duplicity or. conflicts

in the investigation or ulterior process in this matter’’

ordered the Special Independent Prosecutor to as-

sume ali the responsibilities regarding the disciplinary

action against petitioner and the other prosecutors.

Appendix to the Petition, page 187.

Thereafter, on October 7, 1986 the Supreme Court

dismissed the complaint against one of the prosecu-

tors and ordered the Special Independent Prosecutor

to proceed to file disciplinary charges against

petitioner and others. Appendix to the Petition, page

199.The charges were filed and answered by petitioner

and others. On December 15, 1986 the Supreme Court

of Puerto Rico appointed superior Court Judge Abner

Limardo as Special Commissioner to hear and receive

the evidence that the parties may offer regarding

petitioner’s and the other prosecutors professional

conduct. The Special Commissioner held hearings for

24 days (see Appendix to the Petition, page 7 n.4),

in which petitioner in particular did not present any

witnesses. See Appendix to the Petition, page 141

n.9. The Special Commissioner submitted his report

to the Supreme Court on May 21, 1987 and after the

transcription of the evidentiary hearings and the sub-

mission of objections and comments to the report by

petitioner and other prosecutors and finally the elim-

inate parties conclusions and arguments, the matter

was considered submitted for the consideration of the

Supreme Court of Puerto Rico. See Appendix to the

Petition, pages 8-10.

On February 21, 1991 the Supreme Court of Puerto

Rico issued its opinion and order regarding the dis-

aii aia tlle

ciplinary proceedings against petitioner and the other

prosecutors.‘ After an exhaustive analysis of the Spe-

cial Commissioner’s report, pertinent documents and

transcripts of evidence, the Supreme Court concluded

that petitioner Figueroa Vivas had incurred in grave

unethical conduct. In particular, the Supreme Court

concluded that Figueroa Vivas had coerced a witness

and ‘‘exercised over him undue pressure’ for him to

alter his statement and later destroyed part of the

initial sworn statement that the witness had given.

The Supreme Court also concluded that together with

another prosecutor, Colton Fontan, petitioner Figu-

eroa Vivas offered the witness a job and later without

prior notice went to the witness house and ‘‘threat-

ened him with formally charging him with several

crimes if he did not alter his statement’’. Appendix

to the Petition, page 148. The Supreme Court con-

cluded:

We do not harbor any doubts that the

respondents Colton Fontan and Figueroa Vi-

vas incurred, individually and concertedly, in

a conduct tending to orient the investigation

towards the theory of self-defense of the Po-

lice. In this task, they were successful for a

limited time. To reach it they improperly in-

*The Supreme Court states that the resolution of this disci-

plinary proceedings required the ‘‘patient reading and evaluation

of a transcript of evidence in excess of three thousand (3,000)

pages and the conscientious and careful analysis of documentary

evidence consisting of two hundred and thirty three (233) ex-

hibits corresponding to numerous sworn statements, photo-

graphs, notes, newspaper clippings, video cassettes, etc.’’ The

Supreme Court explained that this “monumental task’’ was sim-

plified by the excellent report of the Special Commissioner. See

Appendix to the Petition, page 10-11.

tervened with several witnesses and managed

to change their testimony. Their conduct was

an affront against basic ethical principles. Not

only do they deserve our repulsion and cen-

sure, but the imposition of the severest dis-

ciplinary sanctions.

The Supreme Court decreed the permanent sepa-

ration of petitioner Figueroa Vivas from the practice

of the profession of law in the Commonwealth of

Puerto Rico.

These are the facts which gave rise to the instant

petition. Petitioner Figueroa Vivas, in the official per-

formance of his duties as Director of the Special In-

vestigations Bureau of the Department of Justice

during the first investigation of Cerro Maravilla con-

ducted by the Puerto Rico Department of Justice, was

an integral part of a concerted effort to cover up the

truth of what had really occurred in that remote

mountaintop. Indeed, even at this late stage in his

Petition before this Honorable Court and after the

facts of Cerro Maravilla had been proven beyond a

reasonable doubt in many different forums, petitioner

still talks about a new “version” of what happened

at Cerro Maravilla. Even the Supreme Court of Puerto

Rico was surprised by the allegations of law of Fi-

gueroa Vivas because it gave the impression that he

still questions ‘‘the credibility of certain witnesses

which contributed to bringing the truth of what hap-

pened to the surface’. Appendix to the Petition, page

130. In short, petitioner, an attorney, was an integral

part of a conspiracy by the government of the Com-

monwealth of Puerto Rico in 1978 to cover up two

vicious murders committed by the police at Cerro

Maravilla.

ARGUMENT

1. This Court has no Jurisdiction to Review the Judg-

ment of the Supreme Court of Puerto Rico by way

of Certiorari for the Following Reasons:

a. The alleged federal questions raised by petitioner were

not properly or timely presented before the Supreme

Court of Puerto Rico and were not addressed by that

court.

In order for this court to have jurisdiction over the

federal questions raised in the Petition for Certiorari

the question must have been properly and timely pre-

sented in the State Court proceedings. Cardinale v.

Louisiana, 394 U.S. 487, 439 (1969); Illinois v. Be-

gates, 462 U.S. 218, 218-20 (1983). A perjunctory ex-

amination of the opinion and judgment of the Supreme

Court of Puerto Rico, which the petition asks this

Court to review, reveals that the Court failed to pass

expressly upon any federal question. The Court’s de-

cisions on the issues of law presented by petitioner

and the other prosecutors was based exclusively on

Puerto Rican law and cases. This court has held sev-

eral times that when ‘‘the highest state court has

failed to pass upon a federal question it will be as-

sumed that the omission was due to lack of the proper

presentation in the state courts, unless the aggrieved

party in this court can affirmatively show the con-

trary’. Exxon Corp. v. Eagerton, 462 U.S. 176, 181

n.3 (1983); Fuller v. Oreyon, 417 U.S. 40, 50 n.11

(1974); Street v. New York, 394 U.S. 576, 582 (1969).

This presumption is the reason for the requirement

of Rule 21.1(h) that the petitioner seeking review of

a State Court decision must specify in the Statement

of the Case “the stage in the proceedings, both in

the court of first instance and in the appellate court,

at which the federal questions sought to be reviewed

were raised; the method or manner of raising them

and the way in which they were passed upon by the

court; ...’’. Petitioner has failed to comply with Rule

21.1(h). With one exception, petitioner does not iden-

tify the stage and method in which the questions pre-

sented to this court were raised in the proceedings

below and the way in which they were passed upon

by the Supreme Court of Puerto Rico.

Indeed, the one exception to this failure by the

petitioner is misleading and fails to comply with the

requirement of proper and timely presentation. This

exception refers to the question presented in the

petition regarding the fact that the law clerk of one

of the judges of the Supreme Court of Puerto Rico

was the daughter of the attorney from the Special

Independent Prosecutor’s office that handled these

disciplinary proceedings. The petition states that on

March 21, 1991 “counselor Felipe Benicio Sdnchez on

behalf of Pedro Colton Fontdnez, one of the prose-

cutors charged with disciplinary action”’ filed a motion

before the Supreme Court of Puerto. Rico requesting

the reconsideration of the judgment on the ground

stated above. This fails for the obvious reason that

the alleged “federal question’’ was presented to the

Supreme Court of Puerto Rico, not by petitioner, but

by one of the other prosecutors charged with uneth-

ical conduct.

Apart from petitioners failure to comply with the

requirements of Rule 21.1(h) the fact is that, with one

exception, none of the other federal questions pre-

sented for review were even arguably properly or

timely presented in the proceedings below. The al-

leged political motivation of the proceedings below,

10

question whether two judges of the Supreme Court

should have disqualified themselves because they had

been campaign directors for a gubernatorial candi-

date, and the question of whether the decision of the

Supreme Court of both probable cause and judgment

on the merits is a violation of petitioners due process,

were never presented in the proceedings below.

The only question presented in the petition that

could have been arguably presented in the proceed-

ings below is whether the procedural change in the

proceedings provoked by the approval of the law cre-

ating the office of the Special Independent Prosecutor

constitutes a violation of petitioners due process rights

under the Constitution of the United States. The fact

is, however, that this question was also not properly

and timely presented to the Supreme Court of Puerto

Rico. In a motion titled ‘‘Motion Concerning Consti-

tutional Questions’, filed in the Supreme Court of

Puerto Rico on July 23, 1987 petitioner states that

‘in the application of the referred law (the law cre-

ating the Office of the Special Independent Prose-

cutor) the due process of law of the respondent has

been breached (guaranteed by the Constitutions of the

Commonwealth of Puerto Rico and the United States

of America)”. Appendix to the Petition, page 254.

Further, the motion states that the same law ‘“‘con-

stitutes an ex-post-facto law and violates the Consti-

tution of the United States of America and of the

Commonwealth of Puerto Rico’. Again, in the same

motion, petitioner states that in the application of the

same law, the Special Prosecutor, “‘violated the due

process of law of the here in respondent guaranteed

by the Constitution of Puerto Rico and that of the

11

United States of America’. Appendix to the Petition,

page 255.

The proper presentation of a federal question in a

State Court proceeding requires a reference to the

particular clause of the Federal Constitution or stat-

ute relied upon as well as sufficient allegations re-

garding the rights claimed thereunder. The Supreme

Court has held insufficient a mere reference to the

“Constitution of the United States” or ‘‘due process

of law’’. Bowe v. Scott, 283 U.S. 658, 664-65 (1914);

Brady v. Maryland, 373 U.S. 83, 91 (1963) (separate

opinion of Mr. Justice White). In Ellis v. Dixon, 349

U.S. 458, 460-62 (1955) this Court held that the claim

that a particular organization had been the subject of

unequal protection of the laws in violation of the

Fourteenth Amendment was insufficiently presented

in the proceedings below in the absence of an alle-

gation that similar groups had been given more fa-

vorable treatment. It is obvious that petitioner general

references in the proceedings below to ‘‘due process

of law’ and “the Constitution of the United States

of America’’ or to the fact that the law creating the

office of the Special Independent Prosecutor consti-

tutes ‘‘an ex-post-facto law’’, are not sufficient for the

proper presentation of a federal question in the pro-

ceedings below. There is no reference to any partic-

ular clause of the Federal Constitution, no explanation

of why petitioners due process right have been vio-

lated and no indication of how a procedural change

perjudiced petitioner in the proceedings below.

b. The questions presented in the Petition do not raise a

substantial question.

The questions presented for review in the Petition

do not present a substantial federal question. Indeed,

12

in our view, only two questions, merit any discussion

whatsoever. The questions of alleged political moti-

vation and the alleged need for judges of the Supreme

Court to disqualify themselves from the proceedings

below are totally frivolous.

The two remaining issues are easily disposed of.

First, defendants alleges that the approval of Law

Number 1 creating the Office of Special Independent

Prosecutor changed the ongoing disciplinary proceed-

ings below and constituted an ex post facto application

of the law in violation of his due process rights. He

failed however, to indicate in what way was he prej-

udice by the change. When procedural changes have

been challenged as invalid under the ex post facto

constitutional ban this Court has compared the old

and new “statutory procedures in toto to determine

that the new may be fairly characterized as more

onerous’. Dobbert v. Florida, 432 U.S. 282,294 (1977).

Law Number 1 changed nothing. As the Supreme

Court of Puerto Rico stated in the opinion below, the

statute ‘‘simply transferred the office of the Solicitor

General to that of SIP [Office of the Special Inde-

pendent Prosecutor] the investigative task and of

processing the presentation and the processing of the

complaint’. Appendix to the Petition, page 142.

Second, the argument that his due process rights

are violated because the Supreme Court of Puerto

Rico determined probable cause against petitioner and

then passed judgment on the charges of unethical

conduct is equally untenable. The contention that the

combination in the same body of the function of de-

termining probable cause and deciding on the merits,

without more, is violative of due process has been

clearly rejected by this Court. In Withrow v. Larkin,

13

421 U.S. 35, 56 (1975) the Court held that judges

who issue arrest warrants or preside at preliminary

hearings for determination of probable cause were not

barred from presiding over the criminal trial on the

merits.

Finally, petitioner’s attempt to portrait himself as

victim was eloquently answered by the Supreme Court

of Puerto Rico in the following words:

In so ruling, we are conscious that this

type of process generates anguish and uneas-

iness. The action of itself, as well as the tran-

spiration of time—it is easy to suppose—must

have emotionally hurt the desired tranquility

which we all desire. However lamentable that

this reality may be, same is the consequence

of the minimum rigor in a system of justice

oriented towards the search for the truth and

the imperative of fixing responsibilities.

Certainly, ultimately, this scene is more

painful for him who does not fulfill his duties

as a public officer. All this state of mind is

unavoidable; a logical consequence of the il-

legal and unethical conduct of any person,

whether it be a private citizen or an attorney

or public official.

14

CONCLUSION

For the reasons stated, the Petition for Certiorari

should be denied.

RESPECTFULLY SUBMITTED.

At San Juan, Puerto Rico, on October 8, 1991.

RAMIREZ & RAMIREZ

269 Ponce de Leén Ave.

2nd. Floor

Hato Rey, Puerto Rico 00917

Tel. (809) 758-5660

Marcos A. RAMIREZ LAVANDERO