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 23, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 2

TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE JOAN A. LENARD

and a jury

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 PLAINTIFF:

PATRICIO BARRUETO 100 129

6 ANGEL RUBEN HERRERA JOFRE 136 148

(depo.)

8 WITNESSES FOR THE DEFENDANT:

13 EXHIBITS

14 PLAINTIFF IN EVID.

15 Plaintiffs' Exhibit 1..................... 104:2

Plaintiffs' Exhibit 17.................... 141:8

16 Plaintiffs' Exhibit 11.................... 146:12

19 DEFENDANT'S

RICHARD A. KAUFMAN, CMRR

1 (Open court. Jury not present.)

2 THE COURT: Estate of Winston Cabello, et al. vs.

3 Armando Fernandez-Larios, Case Number 99-0528.

4 Would counsel state their appearances.

5 (All parties present.)

6 THE COURT: Both sides are ready to proceed?

7 MR. CUNNINGHAM: Yes.

8 MR. DAVIS: Yes.

9 THE COURT: Bring the jury in. I will swear them in

10 and I have some opening instructions to give them before

11 opening statements.

12 (Prospective jurors present.)

13 THE COURT: Now that you have all been seated, Lisa

14 will swear you in and she will ask you to stand up and raise

15 your right hands.

16 (A jury of eight sworn.)

17 THE COURT: Ladies and gentlemen, you have now been

18 sworn as the jury to try this case. By your verdict, you will

19 decide the disputed issues of facts. I will decide all

20 questions of law and procedure that arise during the trial and

21 before you retire to the juryroom at the end of the trial to

22 deliberate upon your verdict and decide the case, I will

23 explain to you the rules of law that you must follow and apply

24 in making your decision.

25 The evidence presented to you during the trial will

RICHARD A. KAUFMAN, CMRR

1 primarily consist of the testimony of the witnesses and

2 tangible items, including papers or documents, called exhibits.

3 You should pay close attention to the testimony

4 because it will be necessary for you to rely upon your memories

5 concerning what the testimony was. Although, as I indicated to

6 you previously the court reporter is making a stenographic

7 record of everything that is said, typewritten transcripts will

8 not be prepared in sufficient time or appropriate form for your

9 use during your deliberations and you should not expect to

10 receive them.

11 On the other hand, any exhibits admitted in evidence

12 during the trial will be available to you for detailed study if

13 you wish during your deliberations. If an exhibit is received

14 in evidence but it is not fully read or shown to you at the

15 time, do not be concerned, because you will get to see and

16 study it later during your deliberations.

17 If you would like to take notes during the trial you

18 may do so. On the other hand, of course, you are not required

19 to take notes if you do not want to. That will be left up to

20 you individually, and we have provided pads and pens for you if

21 you wish to take notes.

22 If you do decide to take notes, do not try to write

23 everything down because you will get so involved in note taking

24 you might become distracted from the ongoing proceeding. Just

25 make notes of names and dates and places, things that might be

RICHARD A. KAUFMAN, CMRR

1 difficult to remember.

2 Also, your notes should be used as aids to your memory

3 and if your memory should later differ from your notes, you

4 should rely upon your memory and not your notes.

5 If you do not take notes, you should rely upon your

6 own independent recollection or memory of what the testimony

7 was, and you should not be unduly influenced by the notes of

8 other jurors. Notes are not entitled to any greater weight

9 than the recollection or impression of each juror concerning

10 what the testimony was.

11 During the trial you should keep an open mind and

12 should avoid reaching any hasty impressions or conclusions.

13 Reserve your judgment until you have heard all the testimony in

14 evidence, the closing arguments or summations of the lawyers

15 and my instructions or explanations to you concerning the

16 applicable law. Because of your obligation to keep an open

17 mind during the trial coupled with your obligation to then

18 decide the case only on the basis of the testimony and evidence

19 presented, you must not discuss the case during the trial in

20 any manner amongst yourselves or with anyone else. Nor should

21 you permit anyone to discuss it in your presence, and you

22 should avoid reading any newspaper article that might be

23 published about the case. You should avoid hearing or seeing

24 any television comments about the trial.

25 From time to time during the trial I may be called

RICHARD A. KAUFMAN, CMRR

1 upon to make rulings of law on objections made by the lawyers.

2 You should not infer or conclude from any ruling or other

3 comment I may make that I have any opinions on the merits of

4 the case favoring one side or the other, and if I should

5 sustain an objection to a question that goes unanswered by a

6 witness, you should not guess or speculate what the answer may

7 have been, nor should you draw any inferences or conclusions

8 from the objection itself.

9 During the trial it may be necessary for me to confer

10 with the lawyers from time to time out of your hearing with

11 regard to questions of law or procedure that require

12 consideration by the Court or Judge alone. On some occasions

13 you may be excused from the courtroom for the same reason. I

14 will try to limit these interruptions as much as possible, but

15 you should remember the importance of the matter you are here

16 to determine and should be patient even though the case may

17 seem to go slowly.

18 The order of the trial proceedings are as follows. In

19 a moment the lawyers for each of the parties will be permitted

20 to address you in turn and make what we call their opening

21 statement. The plaintiff will then go forward with the calling

22 of witnesses and presentation of evidence during what we call

23 the plaintiff's case-in-chief. When the plaintiff finishes by

24 announcing that the plaintiff rests, the defendant will proceed

25 with witnesses and evidence, after which within certain

RICHARD A. KAUFMAN, CMRR

1 limitations, the plaintiff may be permitted to again call

2 witnesses or present evidence during what we call the rebuttal

3 phase of the trial. The plaintiff proceeds first and may rebut

4 at the end, because the law places the burden of proof or

5 burden of persuasion upon the plaintiff as I will further

6 explain to you as part of my final instructions.

7 When the evidence portion of the trial is completed,

8 the lawyers will then be given another opportunity to address

9 you and make their summations or final arguments in the case.

10 After which I will instruct you on the applicable law and you

11 will then retire to deliberate upon your verdict.

12 Now we will begin by affording the lawyers for each

13 side an opportunity to make their opening statement in which

14 they may explain the issues in the case and summarize the facts

15 they expect the evidence will show.

16 I caution you, that the statement the lawyers make now

17 as well as the arguments they present at the end of the trial

18 are not to be considered by you either as evidence in the case

19 or as your instruction on the law. Nevertheless, what these

20 statements or arguments are intended to help you understand the

21 issues and the evidence as it comes in, as well as the

22 positions taken by both sides.

23 I ask you give the lawyers your close attention as I

24 recognize them for purposes of opening statement.

25 You may proceed.

RICHARD A. KAUFMAN, CMRR

1 MR. CUNNINGHAM: May it please the Court. Good

2 morning ladies and gentlemen.

3 Winston Cabello was killed in the middle of the night

4 off a deserted road in Northern Chile. Twelve other men were

5 murdered with him that night and in the day or days after,

6 another 55 men were killed. They were killed by men working

7 for the newly installed dictator in Chile, General Pinochet.

8 One of the men that assisted in those killings is the defendant

9 in this case.

10 Winston Cabello was 28 years old when they killed him

11 in 1973. He was an economist working hard in the Northern

12 regions of Chile as a regional planner, but Winston Cabello was

13 much more than that to the people that loved him. He was a

14 brother, a son, a husband, and he was the father of two little

15 girls.

16 We are here on behalf of Winston Cabello's family,

17 because for the last 30 years the defendant, Mr. Fernandez, has

18 been evading responsibility for his role in those killings and

19 we are here asking that you hold Mr. Fernandez accountable for

20 ending Winston Cabello's life far too early.

21 I am Leo Cunningham and one of the lawyers that

22 represents the plaintiffs in this case, Mr. Cabello's family.

23 I would like to introduce to you the plaintiffs who

24 are here because you did not meet them yesterday and I would

25 ask them to stand as I call them out. Alto Cabello is Winston

RICHARD A. KAUFMAN, CMRR

1 Cabello's brother. Zita is the elder of Winston Cabello's two

2 sisters. She is also the representative of the estate of

3 Winston Cabello in this case. Karin Saray Cabello Moriarty was

4 Winston's little sister. She was 13 when he was killed.

5 Another plaintiff in this case is Winston's mother,

6 Elvira Miranda. She is not well enough to be here so you won't

7 see her during the course of the trial, and Winston's wife

8 Veronica, his widow and two daughters who are now adults are

9 still in Chile so you won't be seeing them, either.

10 I introduced the lawyers working with me yesterday,

11 Bob Kerrigan from Pensacola and Nicole Healy from California.

12 Why California? Because Winston Cabello's brother and sister

13 live in California.

14 I will give you an overview of what the evidence will

15 show after telling you what our claims are and the point is to

16 give you an understanding why you are listening to the evidence

17 that you will be listening to over the next few days as it

18 comes in. Just as you are allowed to take notes, this is an

19 attempt to help you organize in your own mind and listen to the

20 evidence in this case.

21 There are eight claims in this case but they really

22 charge Mr. Fernandez with four things that the law forbids.

23 Our first claim is that Mr. Fernandez participated in the extra

24 judicial killing of Winston Cabello. Judge Lenard already

25 explained at the end of the case she will give you detailed

RICHARD A. KAUFMAN, CMRR

1 instructions about the law that applies here. But so you have

2 an inkling of what it is you are listening for, let me tell you

3 what we will have to prove in connection with that claim. We

4 will have to prove that Mr. Cabello was killed. That we have

5 to prove it was extra judicial, it wasn't properly authorized

6 by a Court. We will have to show it was done by someone acting

7 under color of law. That really means acting by someone who

8 was purporting to be acting in an official capacity for the

9 government.

10 You will hear evidence to help you decide whether

11 Winston Cabello was killed, whether the killing was or was not

12 properly authorized and whether the men who did it were acting

13 as part of their official duties.

14 Our second claim is that Mr. Fernandez participated in

15 the torture of Winston Cabello. The law defines torture to be

16 the inflicting of severe, mental or physical pain for a

17 particular forbidden purpose and the Judge will explain what

18 those purposes are later on, and again, by someone acting under

19 color of law in their official capacity.

20 You will hear evidence to help you decide whether

21 Mr. Cabello was subjected to pain, why, and by whom.

22 Our third claim against Mr. Fernandez is cruel,

23 inhuman and degrading punishment by him against Mr. Cabello.

24 It doesn't require us to prove the pain was severe or it was

25 for one of these forbidden purposes.

RICHARD A. KAUFMAN, CMRR

1 Our fourth claim is that Mr. Fernandez participated in

2 crimes against humanity that affected Winston Cabello. To

3 prove that claim requires that we prove that Winston's killing

4 was part of widespread or systematic violations against the

5 civilian population.

6 So you will not just hear about the death of Winston

7 Cabello, you will hear about the death of twelve other men in a

8 town called Copiapo and you will hear about the killings in

9 four other towns.

10 The name of that offense, crimes against humanity, may

11 be a little confusing. This is not a criminal case and some of

12 you may have sat on criminal cases before. This is not a

13 criminal case, it is a civil case. Don't be fooled by the name

14 of that offense. The Judge will instruct you on the burden of

15 proof at the end. It is a civil case, so we will have to prove

16 our case by a preponderance of the evidence, not beyond a

17 reasonable doubt. I don't want people to be fooled by the name

18 of crimes against humanity.

19 Those are the four kinds of claims in the case, and

20 there are three different ways Mr. Fernandez can be held

21 legally responsible for those claims. The first is, if he

22 personally committed the acts in issue, and we intend to

23 emphasize the next two manners in which Mr. Fernandez can be

24 held legally responsible.

25 Judge Lenard will instruct you on two important legal

RICHARD A. KAUFMAN, CMRR

1 doctrines, one is the doctrine of aiding and abetting and the

2 other is the doctrine of conspiracy. To be held responsible as

3 an aider and abettor, we will have to establish that someone

4 committed the offense, not necessarily Mr. Fernandez personally

5 but someone else did it and Mr. Fernandez substantially

6 assisted and when he substantially assisted, he knew he was

7 providing substantial assistance.

8 To be responsible as a conspirator, we will have to

9 show that Mr. Fernandez was part of an agreement. It doesn't

10 have to be a formal agreement. It could be an understood

11 agreement, that Mr. Winston Cabello was killed as a result of

12 that agreement and the killing was in furtherance of that

13 agreement.

14 Those are the four kinds of claims in this case and

15 those are the three ways we will ask that you hold

16 Mr. Fernandez legally responsible.