July 10th and 11th, 2002
By Patty Blum, Clinical Professor of Law and Director
of the Boalt Hall Law School’s International Human Rights Law Clinic,
University of California, Berkeley
Trial Update, Days 9 and 10 - Legal Rulings and Defendants’
Opening Statement
At the conclusion of the day on Wednesday, July 10, the defendants’ lawyer presented two motions. The first, a motion for judgment as a matter of law, argued that Carlos Mauricio’s case against Vides-Casanova should be dismissed. He premised his argument on the ten-year statute of limitations in the Torture Victim Protection Act and claimed that Mauricio had not filed his claim within ten years of the date of his release from detention in El Salvador (the date of his injuries). In counter-argument, Peter Stern emphasized that Judge Hurley had ruled on this issue last year. Judge Hurley’s order held that the statute of limitations was subject to “equitable tolling,” a legal concept that allows any limits on the date for filing a lawsuit to be extended if fairness demands it. In his earlier ruling, Judge Hurley had concluded that equity required that the plaintiffs were not bound to file their cases until the signing of the Salvadoran Peace Agreements in January, 1992. Stern emphasized that a range of other equitable factors were applicable to this case.
In ruling against the defendants, Judge Hurley stated that the heightened state of repression in El Salvador led to the plaintiffs’ legitimate fear that legal action in the U.S. might endanger family or colleagues back home, particularly given the power and position of the defendants. Judge Hurley noted that, based on the evidence adduced at trial, he now was hesitant to specify January 1, 1992 as the date on which the statute of limitations should begin to run because he now understood that El Salvador was still in a state of transition, at least until the 1994 elections.
Klaus next moved for a judgment as a matter of law, premised on his argument that plaintiff Neris Gonzalez was not seeking damages in this case. Jim Green, who had conducted the direct examination of Gonzalez, told the court that she had stated only that money could not compensate her for her torture and the loss of her son. Judge Hurley denied against the motion. He noted that Gonzalez had not formally requested withdrawal from the case and thus, no legal basis existed to terminate her as a plaintiff.
Discussion on the language of the critical command responsibility jury instruction continued but was not concluded.
On Thursday morning, July 11, before the defendants began the presentation of their case, Judge Hurley ruled on the plaintiffs’ Motion in Limine, a request to prohibit the defendants from entering their Legion of Merit Awards into evidence. After each defendant’s retirement as Minister of Defense, each received a Legion of Merit award on behalf of President Reagan and signed by the Secretary of Defense. The plaintiffs had argued that the awards were ”classic” hearsay and character evidence, normally inadmissible in a civil case and irrelevant to the central issue in this case -- the defendants’ command responsibility. The defendants had argued that the awards were highly relevant as they constituted an important part of the version of history that the defendants would be presenting to the jury – the encouragement, backing and military assistance of the United States throughout the 1980s.
The judge then rephrased the question he confronted in making his ruling: are the defendants entitled to put on a defense that includes the view, stated by the President of the United States, through his Secretaries of Defense, on the Legion of Merit Awards, that these defendants were engaged in institutional reform of the Salvadoran Army and that they maintained ethical standards? Hurley then ruled that the Legion of Merit awards were not character evidence; rather, they were documents from the President in fulfillment of his office. He ruled that they are admissible as public documents under seal. Judge Hurley stated that to fail to admit the documents would be inappropriate as it would prohibit the defendants from putting on evidence that the U.S. recognized the enormous difficulties the defendants say they faced and, thus, would limit their ability to explain themselves to jury. He emphasized that it will be for the jury to decide on the credibility of the evidence. Judge Hurley noted the plaintiffs’ objection on the record.
Opening Statement for the Defendants
In his opening statement, which he had not delivered at the beginning of the trial, defendants’ attorney Kurt Klaus characterized his version of Salvadoran history and the events relevant to the case. He began by telling the jury that the roots and nature of conflict go back to its colonization by the Spanish. At that time, the Spanish governor and the large landowners controlled the country. By the end of the nineteenth century, after El Salvador had gained independence, the country had become largely a one-crop economy (coffee), and land had become increasingly centralized in the hands of fewer families.
In the early twentieth century, Klaus described a revolt against this
inequitable system which ultimately was crushed. The landowners realized
that they could use the Army to accomplish this, and 30,000 people were
exterminated, including much of the indigenous population. Disparity kept
growing between the landowners and landless peasants and throughout mid-century,
the labor movement and peasant associations continued to organize. In
contrast to Costa Rica, Klaus stated, in El Salvador, no consensus was
reached between the “haves and the have-nots.” Klaus conceded
that “you can not have this kind of disparity without doing something
about it.” Elections were held in 1972; Napoleon Duarte won but was
then forced into exile. Another cycle of repression and military dictatorship
began. Eventually, in October, 1979, he told the jury, young officers
toppled military President Romero and threw out over forty of the “worst”
officers in the Army. They set forth their plan for reform in a proclamation
called the “Proclama.” They appointed a junta of two military
officers, Col. Gutierrez and Col. Majano, and three civilians to run the
country. Klaus noted that defendant Garcia was appointed Minister of Defense
and then characterized Gutierrez as his superior. Klaus stated that “people
on the right” opposed the coup and remained active in the country
and in the Army. He noted further that great divisions existed in the
society as the
communist insurgency began. The right-wing wanted to crush the opposition.
Echoing earlier testimony in the plaintiffs’ case, he recounted their
philosophy of “draining the sea” which was aimed at eliminating
any potential popular support for the guerrillas.
Klaus then noted fundamental changes in the perspectives of the Catholic Church. In particular, he described, a new church philosophy that encouraged individuals to pursue their rights to dignity in this life not merely wait for the afterlife. In one of the consistent themes of his opening, Klaus again noted that the oligarchy resented this change as a threat to their way of life and “that was how problems broke out.”
Klaus noted that the years from 1979 to the 1990’s were a process of transition from an oligarchy/military dictatorship to democracy. He contested Professor Karl’s statement that the transition to democracy had not really begun until after the Peace Agreement. Klaus characterized Professor Karl to the jury as “a professor writing a thesis, needing to come up with a thesis on history.” Instead, he said his expert witness, former U.S. Ambassador Edwin Corr, was more reliable as he “needed to give accurate accounts to [the] government.” Klaus conceded that members of the death squads operated within the military. He blamed Major D’Aubuisson for planning coups and the assassination of Archbishop Romero. He even noted that General Garcia’s Vice Minister, Nicolas Carranza, was on the payroll of the CIA (making $90,000 dollars per year). He noted that the Truth Commission attributed most of the abuses to forces on the right, both within and outside the military.
Klaus urged the jury to assess whether the defendants had command control over the people who perpetuated the acts against the plaintiffs. He said that they would have to evaluate the weakness of the command structure, including breaks in the chain of command. He said “my clients did not have direct control over the people who perpetuated the acts.” He continued that he would give examples of what was really occurring in El Salvador – the bribery, the selling of guns to the guerrillas, the disobeying and ignoring of written orders, and the pursuit of individual campaigns against the people, influenced by group ORDEN. He then blamed ORDEN for the majority of the repression.
In concluding, Klaus noted, in the United States, “we have certainty in our lives, and people follow laws.” He then referred to the testimony of Glenn Caddy that one of the worst consequences of torture is the feeling of “lack of certainty; the lack of plan for the future because the person doesn’t know what is going to happen.” Klaus analogized Caddy’s statement to the attitudes of U.S. government officials during this period -- that the U.S. wanted a reliable future for El Salvador because of the fears of the spread of communism, the protection of U.S. corporate investments, and the stability of the region. According to Klaus, from 1979 forward, El Salvador went through a long, painful process. Peace was finally negotiated when it was clear that neither the military nor the guerrillas could win. Today, El Salvador is a democracy, he concluded, with the tragic horror of pain and suffering that people went through to accomplish that goal.
Klaus then conducted his direct examination of General Garcia, and plaintiffs’ lawyer, Jim Green, began his cross-examination. Garcia’s testimony will be summarized when his testimony is completed on Tuesday, July 16. The remaining two witnesses for the defendants are Edwin Corr, a former U.S. Ambassador to El Salvador and General Vides Casanova. The parties estimate that the case will go to the jury on Thursday, July 18.
