Court decides whether a lower court can assign a new trial in cases of this type; thesis of general repercussion has not yet been established
The STF (Federal Supreme Court) formed a majority this Wednesday (2.Oct.2024) so that a lower court can designate a new trial in the event of acquittal by the popular jury motivated by “generic issues”, such as clemency or mercy.
However, the ministers have not yet defined a thesis for the case due to lack of consensus. It must be fixed during trial on a date yet to be defined. THE The action has recognized general repercussions, so what is established by the ministers must be followed by other bodies.
The score was 7 to 4 in this specific case. Here is how the ministers voted:
- for the possibility of a new jury: Edson Fachin, Alexandre de Moraes, Flávio Dino, Cármen Lúcia, Dias Toffoli, Luiz Fux and Roberto Barroso (president);
- due to the impossibility of a new jury: Gilmar Mendes (rapporteur), Celso de Mello (retired minister who voted before leaving the STF), Cristiano Zanin and André Mendonça.
The trial was in the virtual plenary, but went physical after a request for prominence from Alexandre de Moraes. Celso de Mello, a retired minister, voted online and his vote was maintained. Nunes Marques, as he succeeded the minister, did not vote.
UNDERSTAND THE CASE
The collegiate analyzed the case of a Sentencing Council that acquitted a defendant, even though it recognized that he had committed an attempted murder. The jurors would have taken into account that the victim was responsible for the murder of the defendant’s stepson.
In other words, he was acquitted due to the jury’s mercy, in a decision that supposedly contradicted the evidence in the case.
The case reached the Supreme Court through the MP-MG (Public Ministry of Minas Gerais), after the body’s request for a new trial was denied by the TJ-MG (Court of Justice of Minas Gerais).
The MP claims that the jurors made their decision in a “arbitrary”in order to propagate the idea of “defense with your own hands” and endorsed the defendant’s revenge.
The vote that formed the majority was that of minister and rapporteur Edson Fachin, who opened the divergence. He understood the possibility of a new trial in case of acquittal on generic grounds. He also says that this would not affect the sovereignty of the jury when the decision is contrary to the evidence in the record.
Fachin also defended that there should be minimum judicial control over the decisions made by the popular jury, since it is not possible that, even through clemency, the verdict would contradict the Constitution.
One of the points raised by minister Alexandre de Moraes, who voted with Fachin, was that homicides are used as a form of “maintenance of power” of drug traffickers and militiamen. “It is not uncommon for jurors to be threatened”he said.
The vote of the rapporteur, Gilmar Mendes, ended up being defeated. For the dean, the annulment of the decisions of the popular jury could compromise the sovereignty of the court. The only exception admitted by the judge would be in cases of acquittal that used the argument of “legitimate defense of honor” in cases such as feminicide.
JURY SOVEREIGNTY
The popular jury, as the jury court is known, is responsible for the trial of intentional crimes against life. It is made up of a judge and lay jurors, who are people from society without prior legal knowledge and can decide whether to convict or acquit the defendant.
In trials, jurors must answer 3 questions: whether the crime occurred, who was the perpetrator and whether the accused should be acquitted. In the case analyzed, the “generic question” is when the jury answers the 3rd question positively without justification.
The trial is the 2nd in 1 month that deals with the sovereignty of the popular jury. In September, the STF defined that the Jury Court may impose immediate execution of the sentencethat is, ordering the prisoner of the convicted person immediately after the sentence given by the jury.
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