221

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 29, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 4

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.

TONY CASTRO, ESQ.

Court Reporter: Richard A. Kaufman, CMRR

RICHARD A. KAUFMAN, CMRR

222

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

ELVIRA MIRANDA 232 262 272

6 ANGEL RUBEN HERRERA (depo.) 274

8 WITNESSES FOR THE DEFENDANT:

13 EXHIBITS

14 PLAINTIFF IN EVID.

15 Plaintiffs' Exhibit 5.01-5.14.............. 233:2

Plaintiffs' Exhibit 5.18, 19, 21-27........ 245:2

16 Plaintiffs' Exhibit 37..................... 246:25

Plaintiffs' Exhibit 39..................... 250:3

17 Plaintiffs' Exhibit 41..................... 251:3

Plaintiffs' Exhibit 43..................... 254:8

18 Plaintiffs' Exhibit 45..................... 258:17

Plaintiffs' Exhibit 47..................... 259:15

19 Plaintiffs' Exhibit 23..................... 260:12

DEFENDANT'S

RICHARD A. KAUFMAN, CMRR

223

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: I apologize for the delay. All the jurors

7 are here. Let's proceed.

8 MR. DAVIS: The witness is on the stand and they

9 desire to present some photographs. It might be better to take

10 up before the jury comes in.

11 THE COURT: Okay.

12 MR. DAVIS: The plaintiffs filed a brief in support of

13 it. I did not file a written response to it. However, I have

14 seen the video clips.

15 THE COURT: I have not seen their brief. I have it

16 now but I have not read it.

17 MR. DAVIS: The premise of what they want to present,

18 they want to show a whole series of photographs of bones being

19 excavated in Copiapo. The doctor testified about it a little

20 bit last week and I raised the objection Wednesday at side bar.

21 I received this and I don't think the Court had ruled on it one

22 way or the other at that point.

23 THE COURT: No, I hadn't, I hadn't seen it.

24 MR. DAVIS: They have the videotape here. It is our

25 position these photographs of the bones should be excluded

RICHARD A. KAUFMAN, CMRR

224

1 under 403 for two reasons. First, the excavation occurred in

2 1990, 17 years after these events occurred. What we would see

3 in these photographs would be bones, skulls and it shows

4 various people excavating the bodies. There are

5 approximately -- I didn't count them exactly. From there it

6 looks to be about 15 to 18 photographs of skulls or bones they

7 want to show. I didn't count it precisely but they have a list

8 they have attached in their papers which they want to hand to

9 me. I did look at the videotape they wish to present.

10 It is our position, one, the only reason to show these

11 bones is to inflame the jury. These bones do not depict

12 anything other than bones. She can testify as to what she

13 believes the cause of deaths were to the extent she has already

14 done so. Under Rule 403 Your Honor can not only exclude

15 evidence on the basis of unfair prejudice, because we believe

16 these photographs are only seeking to inflame the jury against

17 the defendant.

18 Secondly, it is a needless presentation of cumulative

19 evidence. She already testified all they uncovered were bones,

20 there was no tissue remaining from 17 years earlier, and that

21 really there is no issue in the case, one, that these bodies

22 were in a mass grave. That is not a disputed factual issue in

23 this case. Two, the fact is there is a person who has admitted

24 to the executions. There is nothing to say Mr. Fernandez was

25 present when the executions occurred.

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1 The admission of this evidence can be presented only

2 for one reason, to inflame the jury against him and we believe

3 it is highly prejudicial.

4 The tissue injuries these individuals may have

5 suffered, there are other witnesses they desire to offer who

6 will testify about that, but this witness cannot testify about

7 that because she didn't see the tissue and that would be the

8 only thing that would be conceivably relevant based upon where

9 they are positioned in this case.

10 It is our position under Rule 403, unfair prejudice,

11 needless presentation of cumulative evidence that the

12 photographs of skeletons in the ground should not be presented

13 to this jury.

14 MR. KERRIGAN: Your Honor, we rely on our papers and

15 I think you are reviewing them at this time.

16 This is evidence in the case. We would be willing to

17 certainly reconsider this if Mr. Davis would stipulate this was

18 a massacre. This evidence is necessary for us to establish for

19 the jury the nature of the killings and that they were

20 violations of crimes against humanity.

21 Just because photographs might be offensive doesn't

22 mean they are inadmissible. By their very nature --

23 THE COURT: Are they still photographs?

24 MR. KERRIGAN: Portions of the video. He referred to

25 them as photographs so I am responding.

RICHARD A. KAUFMAN, CMRR

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1 There is no gruesome aspect of this. This is a

2 carefully documented archaeologic site and this was a videotape

3 taken simultaneously with the excavation of the site. It does

4 show bashed in skulls, for example, and other evidence of what

5 happened.

6 Mr. Davis' position, if we had evidence of soft tissue

7 injury that might be considered so offensive to a jury to see

8 the actually soft tissue injury. This is just evidence of the

9 remains, and it might be somewhat offensive but it certainly

10 isn't gruesome. Many courts, and Your Honor deals with this in

11 criminal cases, it has high probative value for our crimes

12 against humanity count.

13 THE COURT: Your brief indicates there are portions of

14 Winston Cabello's clothing. Are they included in this video

15 excerpt?

16 MR. KERRIGAN: They are, Your Honor.

17 THE COURT: Perhaps you can show me the video

18 excerpts, please.

19 MR. KERRIGAN: Yes, Your Honor.

20 Do you have the index present with our papers? It

21 would assist the Court.

22 THE COURT: Yes.

23 MR. KERRIGAN: Would you like us to show you all of

24 them.

25 THE COURT: What you wish to introduce.

RICHARD A. KAUFMAN, CMRR

227

1 (Videotape played.)

2 THE COURT: This is the dusting. What was the

3 initial?

4 MR. KERRIGAN: The initial portion they found. As

5 soon as they found any evidence they began the dusting. You

6 can see in the lower right-hand side of this clip the area they

7 are dusting around. That is cut one.

8 (Videotape played.)

9 MR. KERRIGAN: Cut two.

10 (Videotape played.)

11 MR. KERRIGAN: This demonstrates the care at the site

12 as soon as they discovered any bones. That is cut three.

13 This is the initial skull that was found, cut four.

14 (Videotape played.)

15 MR. KERRIGAN: This is further demonstration of the

16 manner in which bones were recovered from the site.

17 This is portions of clothing that was discovered, cut

18 five. Further dusting of the second skull. You can see the

19 glasses on the forehead. This depicts the fact the skull was

20 caved in which the first shot did not show.

21 This demonstrates the manner in which the bodies were

22 placed in the grave. This is boots of one of the victims.

23 THE COURT: What excerpt are we up to?

24 MR. KERRIGAN: Excerpt number seven.

25 THE COURT: Are any of these skeletal remains

RICHARD A. KAUFMAN, CMRR

228

1 Mr. Cabello's?

2 MR. KERRIGAN: It is not clear from the video, Your

3 Honor, which bones related to Mr. Cabello.

4 This gives an overall picture of the whole site once

5 they determined the total number of bodies.

6 This is number nine.

7 It is undisputed Mr. Cabello's remains were found

8 within the site, however.

9 THE COURT: What number is this?

10 MR. KERRIGAN: Number nine.

11 This is number ten, uncovering of clothing.

12 Further indication of other skulls and bodies that

13 were found. This is not a duplication.

14 THE COURT: What number is this?

15 MR. KERRIGAN: Eleven. It is an attempt to identify

16 each of them.

17 We can move this clip along. This is just a

18 measurement and depicts all of the same sort of things at the

19 site before the bodies were removed. That is number twelve.

20 Is that sufficient for Your Honor?

21 THE COURT: I want to see thirteen and fourteen.

22 MR. KERRIGAN: This depicts the manner and care in

23 which the remains were removed from the site.

24 This is thirteen, Your Honor. It is actually 5.13.

25 When we have said the numbers, it is actually 5., then the

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229

1 number.

2 This is 5.15 and really is an extension in terms of

3 5.13 in terms of the manner in which the body was removed.

4 This cut is a minute and twenty-one seconds.

5 This is a small ring that was found. Cut 16 indicates

6 the care taken.

7 This is the final separation of the bodies, cut 17,

8 5.17.

9 THE COURT: I will allow the introduction of the video

10 excerpts up until 5.15. I do not find, while it is certainly

11 disturbing, I do not find it is a violation of Rule 403, in

12 that the prejudice does not outweigh the probative value based

13 upon the claims plaintiff presents here.

14 I do find 5.15, 5.16 and 5.17 are cumulative, and

15 based upon the cumulative nature would then be a violation of

16 403.

17 MR. KERRIGAN: There are a number of shortcuts that

18 follow taken from the actual laboratory analysis and start with

19 5.18.

20 THE COURT: What is the probative value?

21 MR. KERRIGAN: It demonstrates how the remains were

22 evaluated in the laboratory of the personal affects recovered.

23 It is relatively short in duration. This demonstrates how

24 bullet hole evidence was analyzed, depicting four holes in

25 clothing. I think that was actually in a shirt. This is 5.12.

RICHARD A. KAUFMAN, CMRR

230

1 Next is 5.20.

2 If you look at the upper left portion of the skull,

3 you can see it has been damaged. At least the remains appear

4 to have been damaged.

5 THE COURT: That is what the testimony is going to

6 be -- this is 22?

7 MR. KERRIGAN: That was 20, Your Honor, a skull.

8 THE COURT: Is there testimony that goes along with

9 that that indicates that the skull is damaged or are you

10 surmising? Is that what the witness will testify to?

11 MR. KERRIGAN: I believe so. In an abundance of

12 caution we will take out 5.20. I am not positive the witness

13 will testify to that.

14 This is 5.21. It also indicates the manner in which

15 the bones were presented in terms of the analysis that was done

16 and the care in which it was done in a laboratory setting.

17 There is clothing here and boots and other items recovered from

18 the site.

19 This is a jacket that was recovered and this shows

20 bullet holes in the jacket.

21 THE COURT: Is that what the testimony is going to be?

22 MR. KERRIGAN: Yes, Your Honor, it is.

23 5.22, this is a skull that was shattered. That will

24 be the testimony.

25 More evidence of bullet holes, Your Honor, Exhibit

RICHARD A. KAUFMAN, CMRR

231

1 5.23.

2 This is just the manner in which each of the remains

3 were analyzed based on a numbering system that they used, Your

4 Honor. 5.24, that was.

5 This is just one of the skulls that was recovered,

6 Your Honor. There is also a shirt shown in the shot.

7 5.26 is another demonstration of the way the various

8 bones of the remains were organized.

9 The last one, 5.27, depictions of other remains.

10 That is the totality of the cuts. We have paired a

11 three hour videotape down to these cuts.

12 THE COURT: As far as these excerpts, with the

13 exclusion of 5.20, I will allow the introduction and

14 publication of these laboratory site excerpts before the jury.

15 I do not find that the probative value is outweighed by any

16 unfair prejudice based upon the claims made by the plaintiff.

17 While the video excerpts are clearly disturbing, the claims as

18 they are alleged by the plaintiff encompass a disturbing set of

19 circumstances including crimes against humanity. Therefore, I

20 find they are both relevant and probative and not a violation

21 of Rule 403, and I cite in support of my ruling, U.S. versus

22 Y A H W E H, 792 Federal Supplement 104, a 1992 decision in the

23 Southern District of Florida, and U.S. versus McRae,

24 M C R A E, 5393 F.2nd, 700, a Fifth Circuit decision in 1979.

25 Are we ready?

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232

1 MR. KERRIGAN: Yes.

2 THE COURT: Bring the jurors in.

3 (Jury present.)

4 THE COURT: Is your witness here?

5 MR. KERRIGAN: She is, Your Honor. I call

6 Dr. Miranda back to the stand

7 Thereupon --

9 ELVIRA MIRANDA,

10 called as a witness herein, having been previously duly sworn,

11 was examined and testified further as follows:

12 DIRECT EXAMINATION

13 BY MR. KERRIGAN: (Continuing.)