175

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 24, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 3

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

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176

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

DR. ELVIRA MIRANDA 178

WITNESSES FOR THE DEFENDANT:

EXHIBITS

PLAINTIFF IN EVID.

Plaintiffs' Exhibit 5..................... 189:8

15 Plaintiffs' Exhibit 25.................... 200:7

Plaintiffs' Exhibit 27.................... 201:22

16 Plaintiffs' Exhibit 29.................... 202:18

Plaintiffs' Exhibit 31.................... 204:6

17 Plaintiffs' Exhibit 33.................... 205:8

Plaintiffs' Exhibit 35.................... 208:4

20 DEFENDANT'S

RICHARD A. KAUFMAN, CMRR

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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: Since all the jurors have just

7 arrived, are we ready to begin?

8 MR. DAVIS: Yes. Mr. Kerrigan informed me they have a

9 witness that flew in from Chile --

10 THE COURT: Do you wish to proceed with the witness

11 then continue reading afterwards?

12 MR. DAVIS: Yes, Your Honor.

13 THE COURT: That is fine. I will inform the jurors.

14 (Jury present.)

15 THE COURT: Ladies and gentlemen, Mr. Davis is going

16 to hold off the continuation of the reading of the deposition

17 that he started yesterday and the plaintiff is going to be

18 calling a witness at this time.

19 We will take that witness out of turn.

20 MR. KERRIGAN: We call Elvira Miranda.

21 Thereupon - -

23 ELVIRA MIRANDA,

24 called as a witness by the plaintiffs, having been first duly

25 sworn, testified as follows:

RICHARD A. KAUFMAN, CMRR

178

1 DIRECT EXAMINATION

2 BY MR. KERRIGAN:

3 Q. Good morning doctor.

4 A. Good morning.

5 Q. Would you tell us your name, please?

6 A. Elvira Miranda Vasquez.

7 Q. What is your profession, doctor?

8 A. I am a clinical pathologist, a cytopathologist and a

9 medical examiner.

10 Q. What is a clinical pathologist?

11 A. It is a pathologist that deals with illnesses in patients

12 by way of microscopic studies, as well as the deceased persons

13 in hospitals.

14 Q. Do you perform autopsies?

15 A. Not at this time.

16 Q. Have you performed autopsies in the past?

17 A. Yes.

18 Q. Could you at this time give us a summary of your

19 educational background?

20 A. Seven years University studies of premed to obtain the

21 degree of clinical physician. After that three years of

22 specialization in clinical pathology. Four years working as a

23 clinical pathologist in the hospital. And four years as a

24 medical examiner pathologist. Exclusively.

25 Q. Dr. Miranda, could you tell us about the latter years of

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1 your training in pathology and start with the clinical

2 experience you had that I think was about three years in

3 duration?

4 A. It is three years for forensic pathologist to be trained.

5 Excuse me. For clinical pathologist to be trained. After that

6 I spent four years working as a clinical pathologist full-time

7 at a hospital. After that I entered service with the legal

8 medical service as a forensic pathologist.

9 Q. Doctor, you indicated you are not now performing autopsies.

10 What does your present practice consist of?

11 A. My specialty has become more and more subspecialized. At

12 this time at the legal medical service, I have a short workday,

13 during which I perform microscopic studies of autopsies that

14 others perform in order to clarify the causes of death. The

15 rest of my workday I spend at the cancer control laboratory

16 working on, doing work on uterine cancer as a cyto-

17 pathologist.

18 Q. The subspecialty that you are now engaged in is called

19 what?

20 A. Histo forensic pathology on the one hand, and cyto-

21 pathology on the other hand.

22 Q. Have you been directed by judges in Chile to perform

23 autopsies in the past?

24 A. Yes.

25 Q. Would you explain what the designation "medical legal"

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1 means in Chile?

2 A. It is what is known over here as a medical examiner.

3 Q. Are you required to give opinions on causes of death to the

4 courts in Chile?

5 A. It may be so, yes. Frequently, but it may be in a written

6 form, not in an oral form. Judges send me questions along with

7 some of the backgrounds they have been able to gather so we can

8 manage to determine the causes of death.

9 Q. I asked you about the term "medical legal." Can that be

10 distinguished from just a medical practice, or what is the

11 significance of the term "medical legal" in Chile other than as

12 a medical examiner; is there any other designation?

13 A. A canothologist, those that perform autopsies in Chile are

14 called canothologist which comes from the Greek root, canoto

15 which means death, and logos, which is the study of death,

16 therefore.

17 Q. Have you testified in a court before in Chile?

18 A. We don't have this system of justice in Chile. It has only

19 been this year they are starting to use it in some cities.

20 Q. In Chile, times before this year, has the medical examiner

21 served as an adviser to the judiciary of the country?

22 A. That is their mission.

23 Q. Directing your attention to Copiapo in 1990, did you have

24 occasion to be involved in the exhumation of bodies in Copiapo?

25 A. Not prior to Copiapo. Copiapo was the first time.

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1 Q. Let me restate the question. Were you involved in the

2 exhumation of 13 bodies in Copiapo in 1990?

3 A. Yes.

4 Q. Will you tell us how you became involved in the exhumation

5 process in 1990?

6 A. The legal medical service in Chile has the obligation of

7 performing autopsies, legal medical autopsies by way of

8 judicial orders issued by judges. On that opportunity, the

9 Judge of Copiapo ordered exhumations to be performed at the

10 Copiapo cemetery. At that time we were forming a group or we

11 had already formed a group to begin by studying in order to

12 prepare for these events, and such a group did not exist until

13 that time. This is how part of our group offered itself as

14 volunteers to the director and we went to Copiapo to perform

15 the exhumations.

16 Q. Who was in the group of the people that went to Copiapo

17 with you?

18 A. There was Dr. America Gonzalez, a forensic pathologist,

19 Dr. Patricio Carrasco, a forensic odontologist, a photographer,

20 Carlos Palauo and an autopsy assistant, Ivan Pardo, and myself.

21 That was the team that traveled from Santiago and from Copiapo

22 were added on the medical examiner and his assistant.

23 Q. What is an odontologist?

24 A. He is a dentist who has training as a clinical dentist with

25 a specialization in forensic dentistry primarily directed

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1 towards the identification of dental remains, in this case.

2 Q. In this case, was identification accomplished where

3 possible by dental remains?

4 A. Yes. In fact, that is what happened. These are gathered

5 together and compared against information that is acquired

6 concerning victims who had disappeared and suspected to be at

7 that place.

8 Q. Why was this done in 1990 and not in earlier years?

9 MR. DAVIS: Objection. There has to be a predicate

10 established she would have personal knowledge of that.

11 THE COURT: Sustained.

12 Rephrase your question.

13 BY MR. KERRIGAN:

14 Q. What was your understanding in 1990 by the directive given

15 to you by the Court of your mission in Copiapo and the time

16 that mission was directed to be accomplished?

17 A. The time allotted to this was minimal. We had to identify

18 the bodies recovered from there and advise the Judge of the

19 cause of death and the manner in which it took place, if it

20 were possible to do so with the background available. This is

21 through the findings at the site.

22 Q. Was General Pinochet still in power in 1990 when this

23 exhumation took place?

24 A. No.

25 Q. Were there any other locations in Chile that you know about

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1 where mass graves have been discovered?

2 MR. DAVIS: Objection, relevance.

3 THE COURT: Sustained.

4 BY MR. KERRIGAN:

5 Q. Have you been involved in forensic work in any other mass

6 grave sites in Chile?

7 A. Yes, at Paine working on some bone remains located by the

8 legal medical service.

9 Q. Have you done other laboratory analysis of other remains

10 that have been provided to you for analysis that have come from

11 other sites in the country?

12 MR. DAVIS: Objection, relevance.

13 THE COURT: Sustained.

14 BY MR. KERRIGAN:

15 Q. Did you have any preconceived views of what you would find

16 in Copiapo as a result of the exhumation before you began the

17 work that you began?

18 MR. DAVIS: Objection. That is an improper question.

19 THE COURT: Sustained.

20 MR. KERRIGAN: May it please the Court, I didn't

21 understand the basis of the objection. It is an improper

22 question but I don't understand the objection.

23 THE COURT: Sustained. Rephrase your question. It is

24 leading.

25 BY MR. KERRIGAN:

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184

1 Q. Did you do work preparatory to the exhumation in Copiapo in

2 1990 before you went to Copiapo?

3 A. Yes. By studying with our group concerning the best way to

4 work with the bone remains, the best way to identify them and

5 also working and looking through the literature as the best way

6 to conduct the identification.

7 Q. Were there also professional archeologists at this site?

8 A. Yes.

9 Q. What was their role?

10 A. Yes. They are appointed by the Judge, and their mission is

11 to carry out the excavations and obtain in the best way

12 possible the preservation of the bone remains.

13 Q. The team of physicians that were with you and the

14 photographer, as well as the professional archeologists, were

15 they all at the exhumation at the same time that the exhumation

16 was taking place?

17 A. That is correct.

18 Q. This was all under the orders of a Judge in Chile at the

19 time?

20 A. Yes, correct.

21 Q. When you went to Copiapo, were you able to immediately

22 identify the site where the bodies were ultimately found?

23 A. No, excavations were performed first in several different

24 places before we found the place where the remains were

25 located.

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185

1 Q. Was there a videotape recording made simultaneous with the

2 work you did at the site?

3 A. Yes. At that time there was a videotape that was made, but

4 it had nothing to do with our team.

5 Q. Have you had a chance to view that videotape?

6 A. Yes.

7 Q. Does the videotape accurately record the events as you

8 recall them when you were there and I think you are actually in

9 some of the videotape?

10 A. That is so.

11 Q. At this time, Dr. Miranda, we will play a small portion,

12 just the first cut of this tape and ask you to describe that.

13 MR. DAVIS: May we have a side bar?

14 THE COURT: Come up.

15 (Side bar.)

16 MR. DAVIS: I don't know the particular excerpt but I

17 have seen the entire tape and there are some parts which are

18 quite gruesome.

19 THE COURT: Are you offering this into evidence? You

20 just can't play the tape.

21 MR. KERRIGAN: I understand but the doctor has to be

22 able to describe what she has seen then we will put it into

23 evidence.

24 I don't understand the objection.

25 MR. DAVIS: There are some parts of this that are

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186

1 quite gruesome. That is why I object to the entire tape.

2 MR. KERRIGAN: I will have her identify the

3 abbreviated portions. We tried to take the portions out.

4 THE COURT: Have you seen the portions they want to

5 play?

6 MR. DAVIS: No. I don't know what they propose to

7 play.

8 MR. KERRIGAN: The first two or three segments. If we

9 could take a break, there might be some question about it but

10 they actually identify the remains of Winston Cabello. It is

11 heart part of our case and she will identify it. We have

12 pictures of a jacket that was recovered from the grave, so we

13 think it is relevant and probative. We don't go through an

14 extended display of everybody else. That is what the three