UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

ESTATE OF WINSTON CABELLO, ET AL., ) Docket No.

) 99-0528-CV-LENARD

Plaintiffs, )

) Miami, Fl. 33128

v. ) September 22, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 1

TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE JOAN A. LENARD

APPEARANCES:

For the Plaintiffs: LEO P. CUNNINGHAM, ESQ.

NICOLE M. HEALY, ESQ.

JENNY L. DIXON, ESQ.

ROBERT KERRIGAN, ESQ.

For the Defendant: STEVEN W. DAVIS, ESQ.

Court Reporter: Richard A. Kaufman, CMRR

RICHARD A. KAUFMAN, CMRR

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFFS:

WITNESSES FOR THE DEFENDANT:

EXHIBITS

PLAINTIFF IN EVID.

17 DEFENDANT'S

RICHARD A. KAUFMAN, CMRR

1 THE COURT: Estate of Winston Cabello, et al. versus

2 Armando Fernandez Larios, Case Number 99-528.

3 Good morning. Counsel state their appearances for the

4 record.

5 MR. CUNNINGHAM: Good morning. Leo Cunningham for the

6 plaintiffs. With me is Bob Kerrigan and also Nicole Healy.

7 MR. DAVIS: Steve Davis on behalf of the defendant who

8 is present.

9 THE COURT: Both sides ready for trial?

10 MR. CUNNINGHAM: Yes, Your Honor.

11 MR. DAVIS: Yes.

12 THE COURT: We will proceed with voir dire this

13 morning. Let me tell you in light of my situation what the

14 schedule will be for this week.

15 We will start at 9:30 in the morning. Wednesday we

16 will end at noon and that will be it for the remainder of the

17 week because of medical issues that I have. Then we will

18 continue on Monday.

19 I expect we should be able to pick a jury today,

20 perhaps opening statements. We will go 9:30 to 2, today,

21 tomorrow and stopping at noon on Wednesday.

22 I wanted to give you that notification so you could

23 plan your witnesses accordingly.

24 How long do you expect the trial to take so I could

25 inform the jury venire?

RICHARD A. KAUFMAN, CMRR

1 MR. CUNNINGHAM: We expect under two weeks. Probably

2 five trial days to present the evidence.

3 MR. DAVIS: I expect the defense will be under two

4 days. A lot of my case will go into the plaintiff's case.

5 THE COURT: Estimating we don't start until tomorrow,

6 let's go on that conservative schedule. Probably the end of

7 next week to present the evidence would be a fair estimation to

8 inform the jurors?

9 MR. CUNNINGHAM: Yes, Your Honor.

10 MR. DAVIS: It is, Your Honor.

11 THE COURT: Both sides have received the Court's

12 orders on the motions in limine and the motion concerning the

13 expert witnesses. You received those orders from me?

14 MR. CUNNINGHAM: We did, Your Honor.

15 MR. DAVIS: Yes.

16 THE COURT: I have reviewed your proposed voir dire

17 questions. As to the plaintiff's request, I will include in

18 the questioning of the potential jurors, if any member of the

19 panel has ever lived abroad, in what country, the dates of

20 residence and the reason for being there.

21 Has anyone ever traveled to any Caribbean, Central or

22 South American country, listing the country that was visited

23 and the year visited; and has anyone lived in or visited Chile

24 in the years of the visitation or the time period they lived

25 there.

RICHARD A. KAUFMAN, CMRR

1 In addition, does any member of the jury panel have

2 family that lives outside the United States and if so, what

3 country and depending on what the answer is there may be a

4 follow-up; if anyone has relatives living in Chile, how often

5 they correspond with them.

6 As to the defendant's proposed voir dire questions, a

7 modification of question number 3 of the introductory

8 questions. Defendant Armando Fernandez served as a second

9 lieutenant in the Chilean Military in 1973 which replaced the

10 Allende Government in 1973.

11 Is there any member of the jury panel who has strong

12 feelings one way or the or regarding the fact Mr. Fernandez was

13 a member of the military.

14 Is there any member of the jury panel who has heard,

15 read or knows anything about the change in government in Chile

16 in 1973 that it would affect your ability to be a fair and

17 impartial juror.

18 Is there any member of the jury panel who has heard,

19 read or knows anything about the Pinochet Government in Chile

20 that would affect your ability to be a fair and impartial

21 juror.

22 Those are the questions after reviewing the voir dire

23 questions.

24 I have also prepared a statement to inform the

25 potential jurors what the case is about and to make inquiry

RICHARD A. KAUFMAN, CMRR

1 whether or not they have heard, read or know anything about the

2 case. The statement is as follows.

3 The plaintiffs in this case are family members of a

4 Chilean National, Winston Cabello, who died in Chile in 1973.

5 The defendant Armando Fernandez-Larios was a second lieutenant

6 in the Chilean Military at the time of Mr. Cabello's death.

7 This case revolves around plaintiff's allegations concerning

8 the circumstances surrounding the death of Mr. Cabello, and

9 whether or not the defendant should be legally responsible for

10 that death.

11 Is there any member of the jury panel who has heard,

12 read or knows anything about this case.

13 Any objection to that statement?

14 MR. DAVIS: No objection, Your Honor.

15 MR. CUNNINGHAM: No objection.

16 THE COURT: There was an article in the paper

17 yesterday. If there is any indication from anyone that they

18 have read something or heard something about the case, I will

19 ask them have they discussed this case with anyone and if they

20 say yes, with whom. I will then follow with, do you have an

21 open mind regarding this case. Have you formed an opinion

22 regarding the defendant based upon any outside information,

23 then follow-up depending what the answers are regarding any

24 publicity or outside information.

25 I have an introductory statement to the jurors and an

RICHARD A. KAUFMAN, CMRR

1 introduction to voir dire. I will then read the statement to

2 them and ask them if they have heard, read or know anything

3 about the case.

4 The other questions that I detailed to you submitted

5 by counsel then we will go into the questionnaires.

6 I believe we have 18 jurors. There will be 15 in the

7 box and three behind plaintiff counsel. All will be questioned

8 at once. We will take up challenges for cause then proceed

9 with peremptory challenges, plaintiff being odd, defense even

10 and no back striking and we will proceed until we have eight.

11 MR. KERRIGAN: Your Honor, would you consider asking a

12 question dealing with business relationships in Chile past or

13 present by the jurors or their family? It may not be

14 encompassed by all the other questions you ask and I haven't

15 reviewed all those questions, but there is no particular

16 question --

17 THE COURT: I will include, have you lived in, visited

18 Chile, or have any business relationships with Chile in that

19 question.

20 MR. KERRIGAN: That is fine.

21 THE COURT: I normally allow jurors to take notes.

22 Any objection?

23 MR. DAVIS: No, Your Honor.

24 MR. CUNNINGHAM: No.

25 THE COURT: I include in my introductory instruction

RICHARD A. KAUFMAN, CMRR

1 to the jurors an instruction about the taking of notes as well

2 as it would be included in the final instruction on the law to

3 the jury at the end of the case.

4 MR. KERRIGAN: May I ask a question with respect to

5 jury selection?

6 THE COURT: Yes.

7 MR. KERRIGAN: As I understand it, the Court will

8 present the first eight jurors and ask for challenges. I

9 assume you will ask the plaintiff first on peremptory

10 challenge?

11 THE COURT: No, that is not the way. We will probably

12 take up all 18, the 15 in the box and the three behind

13 plaintiff's counsel. We will take up challenges for cause of

14 those 18. Once I have ruled on the challenges for cause, we

15 will start with peremptory challenges. We will do this side

16 bar, as to juror number 1. Plaintiff will exercise their

17 peremptory first. Juror number 2, defense exercises their

18 peremptory and so on until we have eight. There is no back

19 striking.

20 MR. KERRIGAN: Thank you, Your Honor.

21 MR. DAVIS: Your Honor, I want to address one of the

22 limitations you imposed. I worked hard to get a door shut. If

23 we could address those issues before opening?

24 THE COURT: What issues are those?

25 MR. DAVIS: The main issue being Mr. Fernandez came

RICHARD A. KAUFMAN, CMRR

1 here in 1987. I was aware of the circumstances in which he

2 came here relative to his coming to the United States. He

3 turned himself into the United States Government. The Letelier

4 stuff is out. I am not trying to inject that into this case,

5 but he did resign from the Chilean Army and he did move here.

6 I would like to get into those areas. If I say he resigned I

7 am not opening the door to Letelier.

8 THE COURT: What do you intend to say, he resigned

9 from the Chilean Military and moved here in 1987?

10 MR. DAVIS: Yes.

11 THE COURT: I don't think that is violative of my

12 ruling.

13 MR. DAVIS: I just didn't want to open a door I worked

14 hard to close.

15 THE COURT: I don't see it as a door being opened.

16 (Interruption.)

17 MR. KERRIGAN: Do you normally ask in your preliminary

18 questions if any of the jurors have been represented by any of

19 the lawyers or their law firms?

20 THE COURT: I will have you introduce yourselves to

21 everybody on the panel and I will ask them when I read the

22 statements if they know anyone introduced to them in the

23 courtroom by virtue of the fact they have had any relationship

24 with you whatsoever, whether it be business or social.

25 I will also read a generic list of witnesses to them

RICHARD A. KAUFMAN, CMRR

1 and ask them if they know any of the persons or recognize any

2 of the names on the witness list by the fact they have had any

3 contact with any of those persons whatsoever, whether it be

4 business or social.

5 MR. KERRIGAN: Other than the lawyers, Your Honor, if

6 Your Honor would consider asking the panel if they have any

7 relationship or involvement with the lawyers or their law

8 firms, just to make sure we don't have somebody being sued by

9 Mr. Davis' partner and we don't find out until halfway through

10 the trial.

11 THE COURT: When you introduce yourselves, identify

12 your firms and I will incorporate that into my question.

13 (Interruption.)

14 (Jury panel present.)

15 THE COURT: Ladies and gentlemen of the jury, I want

16 to welcome you to our courtroom. I am Judge Lenard, a United

17 States District Judge for the Southern District of Florida.

18 The jury is an institution of the commonlaw. It is

19 recognized, preserved and protected by our constitution. Jury

20 service is one of the most important duties that you as a

21 citizen are called upon to perform. I am aware for some of you

22 this is your first call to jury service and these proceedings

23 are totally unfamiliar to you. Please do not be apprehensive

24 or feel inadequate as we go along. The Court will acquaint you

25 with the proceedings and I will instruct you what your role is

RICHARD A. KAUFMAN, CMRR

1 and what your duties will be.

2 In order that you will know the Court personnel with

3 whom you will be working and their respective duties, I will

4 introduce them to you at this time.

5 The courtroom deputy, who you already met, is Lisa

6 Shelnut. She assists in the administration of cases that

7 comprise the Court's docket and the coordination of the

8 day-to-day operations of the Court.

9 The court reporter is Richard Kaufman. He transcribes

10 and takes down everything that is said in the courtroom

11 including the statements I am now making, the questions that

12 will subsequently be propounded to you, your answers and all

13 other matters in this case.

14 We also have court security officers. Their job is to

15 enforce the Court's orders and take charge of the jury.

16 If you desire information concerning your personal

17 welfare, you should make your inquiries known to the court

18 security officer or courtroom deputy, who will if necessary

19 arrange with the Court to hear you on such matters. However,

20 you must not question either the court security officer or the

21 courtroom deputy concerning the case that is being tried.

22 The case set to begin trial today is that of the

23 estate of Winston Cabello et al. versus Armando Fernandez

24 Larios.

25 Are counsel ready to proceed?

RICHARD A. KAUFMAN, CMRR

1 MR. CUNNINGHAM: Yes, Your Honor.

2 MR. DAVIS: Yes.

3 THE COURT: Ladies and gentlemen, I will be asking you

4 questions touching on your qualifications to serve as jurors in

5 this particular case. This part of the case is known as voir

6 dire examination. Voir dire meaning to speak the truth. This

7 examination is for the purpose of determining if your decision

8 in this case would be influenced in any way by opinions you now

9 hold or by some personal experience or special knowledge you

10 may have concerning the case to be tried. The object is to

11 obtain a jury who will impartially try the issues of this case

12 upon the evidence presented in this courtroom without being

13 influenced by any other factor.

14 Please understand, this questioning is not for the

15 purpose of prying into your affairs for personal reasons. It

16 is only for the purpose of obtaining an impartial jury.