Wednesday, 3 November 2010

That El Mundo Interview – Why did Amaral Lie?



Here are the exchanges at issue:

Q – It was said that Kate was very cold. But I've seen her cry.

A - So did I. She is not cold. There was a moment, in a meeting with them, when we set out the sofa theory [that Madeleine fell off it and died]. Kate puts her head down, looking distant, and, after a few seconds, she looked up again as if nothing had happened. She looked like she was escaping from the role that she was interpreting.

Q - When you raised the hypothesis that the girl might have died after falling off the sofa, did Kate McCann answer?

A - She did not answer, she just dropped her head for a moment, as if she was about to faint. She had an emotional collapse that lasted just a moment.

Now, here is what Amaral himself has to say about imposition of the arguido status in chapter 19 of his book:

TOWARDS PLACING THE McCANN COUPLE UNDER INVESTIGATION.

In Portugal, the criminal process is comprised of three phases: the investigation, the instruction and the trial. Under the direction and control of the Public Minister, the investigation is led by the criminal police, who enjoy total practical and tactical independence. The police officers may make a declaration of arguido status as they think fit. This status confers on a suspect a set of rights and responsibilities. One of the fundamental principles of our code of criminal procedure is that of non-self-incrimination: it is illegal for information given by a witness to later be used against him and to implicate him in a crime. The right of silence, therefore, allows him to avoid giving incriminating details. But the status heaps opprobrium on those who become arguido, in spite of the principle of presumption of innocence. 

The BBC helpfully interviewed a Portuguese lawyer on the Arguido process, and here is what he had to say: 

 How is arguido status given and what does it mean?
Under Portuguese law either the police or a person being questioned can request that they be formally named as a suspect, a process called arguido.
Artur Rego, a Portuguese lawyer, told BBC News: "Arguido is the person who has been accused of being the perpetrator.
"This is just an accusation made exactly at the end of the investigation."
A person can ask for arguido status if they feel the line of questioning is implying that they are a suspect. This gives them more rights than a witness would have.


What rights does an arguido have?
Arguido status gives a range of legal protections, such as the right to remain silent and the right to a lawyer during questioning.
Mr Rego said: "Sometimes when they [the police] suspect someone, they call that person in as a witness.
"They don't constitute him as arguido and they extract as much information from him as they can, because as a witness he cannot refuse to collaborate with the police.
"Now the moment he is constituted as arguido, as the defendant, then he can not only refuse to answer questions because they can incriminate him, but also he has the right to be accompanied in the questionings by his own solicitor."
Once someone is an arguido they can be arrested, but only if there is sufficient evidence.


What action can the courts take against an arguido?
The police can use their powers to bring the suspect before a judge to ask for restrictions to be imposed on their movements.
If they do, they could be banned from leaving their house or the area, or held in custody while the case continues.
In this case, the suspect is not subject to a judge's order, but has signed an identity and residence statement.
It prevents the person moving house or leaving the country. If they stay anywhere other than their given place of residence for more than five days they have to notify police.


The key point from both these descriptions is that there are not the same protections for informal witnesses (as the McCanns were before being made arguidos) as for Arguidos. Informal witnesses must answer all questions put to them and have no right to ask for a lawyer. But the balance is that neither can informal witnesses be asked leading or incriminating questions.

Note that Amaral describes this exchange with Kate as a meeting, not an interrogation, nor even an interview. Note, also, that Amaral says Kate did not reply. On two grounds, then, we can rule out that this was before the McCanns were made arguidos. As an informal witness Kate would not have been allowed to refuse to reply. And to an informal witness, the PJ would have been prohibited by law from putting such a leading or incriminating question.

As arguida, we all know about the famous 48 questions Kate refused to answer. A question about ‘the sofa theory’ wasn’t one. Was there a 49th?

The further point is that Amaral seems to describe something that would surely, only, be noticed from personal and first-hand observation of actually being present. Amaral never personally and directly interviewed the McCanns.

So why did Amaral lie?

 

By Honestbroker