Reinventing the Rules
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Interview with Professor and Rule of Law Practitioner: James M. Cooper
This week, I had a chance to interview Professor James M. Cooper from the California Western School of Law. Among his many accomplishments, Mr. Cooper is the Assistant Dean for Mission Development at the Center for Creative Problem Solving, Director of the International Legal Studies Program, Director of Proyecto ACCESO and Director of the Chile Summer Program. In addition to training judges and prosecutors and working with indigenous justice systems, Mr. Cooper has also enabled law students to work on justice reform in Chile. Through Proyecto ACCESO, students are able to intern at places such as the Attorney General’s Office, the Foreign Ministry, and the Public Defender’s Office. As both an academic and a rule of law practitioner, Mr. Cooper provided a unique and refreshing outlook on the rule of law sector. Check out the interview below!
It’s been one year since you launched the first Latin American Innocence Project. Can you talk a little about why this was needed?
We started the innocence project based on the California Innocence Project which is headquartered at our law school, California Western School of Law. We have founded a number of projects. One in Tijuana (Mexico), one in Buenos Aires (Argentina), and one with the public defender’s office of Chile.
The Latin American Innocence Project is needed because despite the legal reforms that are taking place in much of Latin America, there are thousands of people languishing in prisons in Latin America, who are wrongfully convicted. With the reform of criminal procedure going forward, the innocence project work is about looking backwards at the miscarriages of justice that occurs through false confessions, bad evidence, or police and judicial corruption.
What were some of the challenges you faced when implementing these programs?
Convincing the people that the current judicial system can actually handle the redress of those miscarriages that happened in the past. And getting the right partners. We have a different model in each case. In Tijuana (Mexico) it’s done through the Universidad Autonoma of Baja California. It’s done through a state law school. In Chile, it’s being done through an institution that’s geared toward the legal defense, the public defender’s office. In Buenos Aires, it’s being run by an ex-congressman and a movie director. They used a film in the Supreme Court of Argentina to free someone a week before our inaugural Latin American Innocence Network conference. It was a brilliant film called El Rati and it’s about the miscarriage of justice.
The challenges are finding the right partner and then trying to find a model which will work in a way that we can also achieve our ends. We want to make sure students get trained in this so there’s a whole new generation of activists, where people can effectuate public policy using the courts.
What were some of the lessons learned or best practices that you would recommend from your work starting the Latin American Innocence Project?
Know the local legal culture, local custom, and indigenous practices. Know how they differ between urban and rural contexts. Also know the legal institutions that are the stakeholders. In some places, you might think it’s the judiciary, when in fact it may be the police or clerks of the courts that control it. There are different levels where people have an impact. Which police force are you going to work with, the preventative police or the investigative police? How do you deal with the police when they’re a branch of the military? Having that kind of institutional sensitivity is critical. Understanding how institutions work and how people fit within that is critical. These are long-term things. You can’t do this in a 2 or 3 year cycle.
What is the best way of understanding the local legal culture when you’re trying to implement rule of law projects?
You need a golden angel showering lots of money or over the long-term, you have to work on a shoestring budget. We’ve been really lucky; our golden angel is our law school. We’re a non-profit and I’m really blessed that I have an institution that supports with in-kind contributions. You need an institution that believes in it, where you can get lots of faculty members, students, and administrators to be part of the solution.
It’s a journey too. It’s not going to matter what you’re doing right now. Eight years from now, it might. All the things you’re planning will happen, but it won’t be in the order in which you think it will happen. You have to be a non-linear thinker in terms of time and place and that’s why it’s important to understand it’s long term.
You’ve also talked about using traditional or indigenous problem solving methods and re-employing it in the reform of the justice system in Latin America. Can you talk about what some of these traditional methods are and how you’ve been re-implementing them? What were some of the challenges? Can you talk about an example where you successfully adapted the US system into Latin America?
Bolivia is going through a legal pluralistic exercise, where they actually have a whole separate system running. And it’s been running informally. Now they’re recognizing it statutorily and it’s very complicated because it’s very unclear what the source of the law is. I get seldom accused of being very Western about it, but I like some concreteness in the rules and I’d like an outside party to be able to make sure the rules are followed on appeal. Some of that doesn’t exist in these legally pluralistic scenarios (in traditional justice) and it devolves into lynching, mob violence, setting people on fire, etc.
The thing about moving legal systems is often times you’re switching between vertical systems. When you’re moving from the inquisitorial to the adversarial system, you’re moving to something akin to our own system, where there’s transparency, participation, a record, oral trials, and the ability to confront your accuser. These are basic principles that don’t exist in all places. With the indigenous people, they use horizontal systems.
With one Vice Ministry, we introduced ideas to them that were being used in Window Rock, Arizona by the Navajo. It’s a system that tries to break bad behavior; it’s more of a problem-solving mechanism that looks at both the future and past. But when you’re trying someone in court, it’s a story about one particular case, one particular set of facts and it doesn’t try to break the cycle of violence. It tries to punish the person who did it. What the indigenous system, in principal, should be doing is more community-based healing to make sure the problem doesn’t happen again.
We helped empower the Mapuche unit in the Ninth Region in Chile. We trained a group of public defenders in 2000-2001 that still exist today and they speak the local language. They were trained as lawyers but were also given training that was specific to the cultural needs of the indigenous people. That was unheard of in Chile, which hasn’t always been indigenous friendly. For them to do this with their public defenders was a huge thing.
We’ve also had students work with Peruvians in Chile to help them with their cases because there’s a lot of Peruvians living in Santiago. So it’s having those cultural competencies and translating it for students, judges, and lawyers to hear those other voices and narratives and to somehow judicialize them. That takes time, but it also takes a particular set of skills that more and more people are going to need.
What skills would they need to have?
Cross-cultural negotiations and knowing how to use social media and having language skills. They have to know the cultural cues and they have to have litigation skills because they will need to collect evidence and conduct fact finding missions to figure out what is the best way to solve a problem. The best forum might be an international tribunal or a local, indigenous court.
You also have to sometimes be a legal cultural anthropologist or a forensic anthropologist to figure out where certain laws and practices came from and then move them into the next legal system. It’s ironic that we move from the inquisitorial system to an adversarial system and we leave out the indigenous, who are the only people who use the oral tradition in their culture. Now, we’re not including them in the new process that actually celebrates orality. Chief Justice Yazzie, when commenting on the lack of recidivism in their area, said this is not because of ADR. This is ODR, original dispute resolution. He said we’ve been doing this long before you got here!
What things can Western justice sector actors and practitioners learn from South American justice systems and indigenous forms of justice?
I think humility and shame. We’ve lost the notion of shame in our western legal culture and in our western culture. I think that’s an amazingly powerful tool. The notion that from a town or pubelo, people are exiled in traditional justice, they have to leave for 2 or 3 years. That’s all they know and they have to go to another place. That notion of shame on a collective basis is incredibly powerful. It’s shame without violence.
Finding ways to ensure projects are sustainable often seems to be a challenge. In what ways have you sought to make your projects sustainable? What best practices would you recommend?
The key is to create a market for it. There are law reforms and criminal procedural reforms and oral trials now in so many countries. We get 80-90 judges and lawyers every year to our trial skills academy. People pay their own way. It’s good and really important. If you’re going to have a functioning legal system, it’s not about building courtrooms. It’s about operators of the system knowing how to do an oral trial. Sustainability is going to be done through creating a free market. You can find more information about the program here.
Patience. Legal reform takes time and institutions don’t change overnight. The thought of doing meta-change in short periods is difficult. I got asked to do a project once in Mexico City by the Fox administration. President Fox was legacy shopping and it was going to be about transparency and different states had taken the lead in making the legal reform in criminal procedure. So Fox was trying to figure out how he could get credit for the legal reform. He wanted to change the Mexican City Superior Court and move to oral trials in 13 months, and we tried to explain no amount of money would make that happen. With a city of 25 million people, they had 300,000 pending cases and 400 judges. They wanted to clear those cases and get to oral trial. You have to know when to say no. You don’t want mission impossible.
Make sure you archive your successes and your failures. Understand why this worked and why that didn’t work and don’t always blame funding. This is a long term process and you can’t do this work in short periods of time.
USAID has mentioned that one of the things they struggle with is finding ways to scale up projects. Have you tried scaling up some of the smaller projects and what has been the result?
The best was the Chilean criminal procedure that started in 2000. It took 5-6 years and it was July 2005 when it finally came to Santiago. Santiago has 60% of the criminal cases and that was the last nut to crack. To start out small in the north, and to do it region by region is much better. We tried to take what we learned from one country to another country. Particularly with indigenous systems and how to integrate them, taking best practices not just from one small place to another but from country to country.
You’ve been working in Chile and other countries in South America for awhile. What recommendations do you have for monitoring and evaluating changes in rule of law? How do you evaluate the effectiveness of your programs?
I think you can map it better than you can measure it. We measure by things like the people we’re training and how many cases they’re winning. How many cases are settling and whether there’s trust in the administration of justice. I think polling is really important, but having the time to do that is important.
I would map, for example in the indigenous justice project, the cases that are being dealt with by the local elders and by the community. Then I would map what the case law is, what sources they used to effectuate, and then what the punishment was, and then look at the varieties and grade it all differently, so you can see a visual case law by subject matter. You might have to boil it down to domestic violence, sexual assault, rape, property theft, murder, and beatings and work through that. But it’s complicated and difficult getting data on the ground. I’m starting to think twitter is a way to measure it. With assaults against women in Egypt, twitter is being used. You have to be much more inventive. You also have to learn to measure public opinion a lot better.
Another recommendation that has been made with regard to rule of law reform is to target a country’s power structure and culture. How do you think the work you’ve done has contributed to either of those and how else should practitioners go about making those changes?
I think the media plays a critical role. We’re on youtube and we’ve worked with local TV stations in a variety of countries putting on public programs. I think public education and the use of media is critical and we ignore it at our own peril. That’s where a lot of the public discussions are being held. It’s not in the public square anymore, it’s in the mall. We have to re-calibrate how we access that new vibe.
What other lessons would you like practitioners, donors, and others to take from your experience working on rule of law?
This is an extreme sport. It’s a bit of gorilla journalism, union hall activism and a bit of corporate gadflyism. You’re working in an incredibly post modern absurdist environment, where narcos are better funded and better organized than most law enforcement agencies and they don’t have to go through the appropriation process. The free market is out of control and transnational criminal organizations have infiltrated the very legal sector we’re trying to help. The international community has to fund this stuff and take it seriously in the context in which we’re working. One of the greatest exports of the US, is a robust legal system. It’s the best we got, and it’s one of the few things we can export without fear of being legal imperialists.
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