July 18 and 19th, 2002
Trial Update, Days 14 and 15 -- -- Closing Arguments, Jury Instructions
read by the judge, and clarifications given to the jury.
Closing Arguments: Plaintiffs and the Defendants
Plaintiffs' Rebuttal by Jim Green
Jury Instructions and Clarifications
CLOSING ARGUMENTS
Plaintiffs' Closing Argument
"This case is about the duties of military commanders," Jim Green told the jurors at the start of the closing argument for the plaintiffs. He reminded the jury that he had fulfilled the promise he made in his opening statement to provide them with proof that the defendants presided over a reign of terror against unarmed civilians. He said that the generals were masters of "deception, denial, and dictatorship" on a scale that was and is "truly frightening." Green emphasized that they used denials, which they continued to cling to in their own depositions and on the witness stand, to take no action to prevent or punish those responsible for the mass terror in El Salvador that left tens of thousands dead. Green told the jurors that they had "an historical opportunity and obligation to set the record straight; to declare what the generals did was wrong; and to say it loud and clear."
Green then explained that, despite the fact that torture has been outlawed since World War II, it continues in some countries. In El Salvador from 1979 to 1983, the military pursued a deliberate strategy to "drain the sea;" that is, to persecute anyone they perceived as giving support to the armed opposition. Green pointed out that, in this case, there is no evidence that the three plaintiffs were armed or dangerous; in fact they were unarmed and simply teaching, providing health care, and working among the poor. But the generals and the small and loyal officer corps saw people like the plaintiffs as subversives. Green acknowledged that it is "hard to imagine the cruelty and inhumanity" that the plaintiffs experienced or to imagine "how a human being can be so inhumane to another human." In a steady voice, Green then reminded the jury of the horror of each plaintiff's torture.
Green emphasized that General Garcia lacked credibility when he said that he did not know that repression was taking place. Instead, he was aware of it; yet he chose the path of "I see nothing; I hear nothing." Green stated that once Garcia became Minister of Defense, he had the duty, at a minimum, to order investigations into the allegations of wrong-doing by his subordinates, but he never ordered anything.
Then, Green explained damages to the jury. He told the jury that the only remedy for the plaintiffs was to seek monetary damages because the plaintiffs do not have the ability to send the defendants to jail or have them deported. He emphasized that no one can put a price on the rape and torture of the plaintiffs, on their loss of promising professional careers or their exile from the country they love. He told the jurors that the plaintiffs were seeking justice. Under the law, compensatory damages are specific to each individual plaintiff's pain and suffering and personal loss. Punitive damages send a message - to deter the defendants and others like them from similar misconduct in the future. In order to award punitive damages, the jury must find that the defendants' actions or inactions were malicious, wanton, or recklessly or callously indifferent. He told them that they also may consider the reprehensibility of the defendants' acts, and the nature and extent of the harm. In reaching their decision, he emphasized, the jurors would be acting as the conscience of the community and the nation.
Green next led the jury through the elements of the law of command responsibility. He reminded them that all three plaintiffs were tortured in National Guard or National Police posts or headquarters. As proof that the torturers were subordinates of the generals, Green recapitulated: both Gonzalez and Romagoza were captured by uniformed National Guardsmen; Vides Casanova entered Romagoza's cell during the period of time he was being tortured; and the Ministry of Defense acknowledged Mauricio's capture to an Amnesty International member. Further, Garcia testified that Vides had command authority over the National Guard Headquarters where Romagoza was held. U.S. government cables also labeled Garcia "the power behind the throne." In order to meet their burden of proof, Green said, the plaintiffs did not have to prove that the defendants knew of their torture specifically. Further, it was clear that they should have known of abuses, given the extent of murders and massacres occurring in the country. Green stated that the defendants did nothing to prevent atrocities or punish abusers. They never ordered investigations; instead, they promoted human rights abusers and booted out the reformers.
Next, Peter Stern summarized much of the documentary and testimonial evidence in the case. He first explained the evidence that the defendants knew or should have known that abuses were being committed. He reminded the jury of the cable from the U.S. Defense Intelligence Agency recounting the assassination of the FDR leaders and Garcia's evident support of the murders. He recalled how Father Schindler, on numerous occasions, witnessed the National Guard leading people away with their thumbs tied behind their backs and how he and boys from the church retrieved the bodies of torture victims. He mentioned the Truth Commission's finding that a pattern of visible and brazen massacres occurred in El Salvador and that uniformed members of the military and security forces committed 85% of the abuses during the armed conflict. He talked of Ambassador Corr's admission that torture was prevalent in El Salvador, and reminded the jury of testimony about the bodies in the streets, the thousands of letters from Amnesty International about specific persons held by the military, and the efforts of U.S. officials to tell the Salvadoran military about specific cases of torture and other abuses.
Stern stated that a pattern of deniability by the defendants cast a shadow over the trial. He recalled Terry Karl's description of this pattern which was to deny the occurrence of a human rights abuse; underestimate its impact; attribute its occurrence to the guerrillas or some force other than the security or armed forces; and, if forced to do so, initiate an investigation but ensure that it was carried out by someone under the defendants' control. He showed the jury excerpts of the defendants' trial testimony where they made statements exactly following this line of denial.
Next, Stern demonstrated how the defendants' failure to prevent abuses or punish perpetrators gave a "green light" to human rights abusers that they would not be held accountable for their actions. He reminded the jury of Magaret Popkin's testimony that no member of the Salvadoran military was convicted of a human rights offense between 1979 and 1983. As an example, the Truth Commission found that no effort was made to investigate the massacre at El Mozote in 1981. Stern recalled Professor Karl's testimony as to what the defendants had the capacity to do to prevent abuses and punish perpetrators. They could have publicly denounced abuses, removed abusers immediately, inspected sites where abuses allegedly occurred or were occurring, and shut down torture facilities. Furthermore, they could have freed victims, protected witnesses, and actively sought prosecutions and convictions of officers. In conclusion, Stern stated, "their failure led to the torture of individuals, including these plaintiffs. How can they explain what they failed to do in light of the overwhelming evidence of abuses? How can they still deny the torture?"
After thanking the jury for their service, Kurt Klaus described the case as unique. He emphasized that the jurors were not being asked to judge the history of El Salvador or the war, but to determine legal issues. He conceded that there was "no doubt" that the plaintiffs had suffered. Klaus characterized the doctrine of command responsibility as rooted in long-standing rules of organized armies and as a cornerstone of military discipline. He emphasized, however, that the doctrine was often applied selectively by victors in war to hold their former enemies accountable. For example, he said that the Allies held the Nazis accountable for war crimes; yet the U.S. was never prosecuted for bombing Nagasaki or Hiroshima. He also noted that Lieutenant William Calley was held responsible for the My Lai massacre by American soldiers during the war in Vietnam but that his immediate superior, Medina, and the General Commander, Westmoreland, were not held responsible. He also argued that the U.S. had never been held responsible for bombing missions flown over North Vietnam or Cambodia.
Klaus then mentioned several well-known cases of police abuse in the United States, including that of Abner Louima and Rodney King; in those situations, he said, the captain of the police department was not held accountable for the abuses of lower level officers. Finally, Klaus used the analogy of a parent trying to control a child and that surely, a parent cannot be held responsible for his child's actions.
Klaus stated that the plaintiffs had not met the first element of their burden of proof under the command responsibility doctrine. He stated that his clients were not present at the plaintiffs' torture and although the acts occurred in official facilities of the security forces, it was not clear that the perpetrators were "under the command of my clients." Further, he stated that the defendants could not have known of abuses at the time Neris Gonzalez was captured and tortured as they had only gained their positions of leadership two months earlier. He also argued that the plaintiffs had never reported their own tortures, so the defendants "can't punish when they didn't know what happened."
Continuing on this theme, Klaus stated that the El Mozote massacre, which occurred in January 1981, after the captures and tortures of two of the plaintiffs, was irrelevant to this case. He further noted that the findings of the Truth Commission, issued in 1993, blamed the defendants for acts about which they were not aware at the time they were in office.
In conclusion, Klaus stated that he was glad the plaintiffs had the opportunity to seek justice, but that the defendants in this case were not personally responsible for the plaintiffs' torture. He said that they were not the Idi Amins or Adolph Hitlers of their country. Instead, Klaus called his clients the "Thomas Jefferson and John Adams" of El Salvador, two early American Presidents among the most important figures in the founding of the United States. While El Salvador is "not the safest place," he said, it is a democracy in which even former members of the FMLN hold government positions. He re-emphasized the U.S. government's recognition of the defendants through the issuance of the Legion of Merit awards.
Jim Green had a final opportunity to address the jury on behalf of the plaintiffs. He emphasized that the defendants were wrong on the "facts, their own actions and inactions, and history." He responded to Klaus' closing statement by arguing that the defendants cannot portray themselves as Jeffersons and Adams because they were "state terrorists." They allowed a massive reign of terror against unarmed civilians. They had knowledge of the terror, as they had access to the information that the U.S. government had. The historical facts have been proven, Green said. Each defendant, as Ambassador Corr testified, would have to be a "dunce, deaf or blind," not to know the extent of the abuses.
Green reviewed the concept of a chain of command and recalled Professor Garcia's testimony that everyone under a commander is a subordinate. He stated that the Salvadoran chain of command functioned, and no logistical or communication problems existed. He urged the jury to expose the "big lie" of this case - that these defendants, far from being ineffective commanders as they allege, were in fact carrying out mass state terror. He asked the jury to look closely at page 8 of the jury instructions which states that "A defendant/military commander cannot avoid command responsibility because his own action or inaction contributes to his lack of effective control."
Green emphasized how society entrusts the military with a sacred duty. The cornerstone of the military is the duty of commanders to keep their ears and eyes open. They cannot be "willfully blind or callously indifferent." Green re-summarized some of the crucial evidence that the defendants exercised command responsibility: the interrogators at the National Guard Headquarters were under the command of the Director, Vides-Casanova; Vides-Casanova never experienced a single act of insubordination; Garcia kicked out Col. Majano and the other reformers and released detained rightist coup plotters; no officer was ever punished for human rights abuses; no chaos existed in the torture cells of the plaintiffs; their torturers knew what they were doing and saying; U.S. officials knew that the defendants were the ones in control; the Christian Democratic Party letter enumerated numerous cases of abuses and recommended reforms which were never implemented; documents released or written after these events reveal much about what was known contemporaneously; when General Garcia had the political will to effectively use the military he did so, as in the case of the military takeover of the banks; and both men promoted human rights abusers.
In conclusion, Green quoted from General Douglas MacArthur on the duty of a military commander to protect the weak and unarmed. "It is the very essence and reason of his being. When he violates this sacred trust, he not only profanes his entire cult, but threatens the fabric of international society." He told the jury that the defendants had violated that trust. He evoked the famous words of Archbishop Romero's last homily before he was killed, a speech echoed many times in this trial: "I beseech you," Romero had begged, "stop the repression!" Green paraphrased: "On behalf of these three victims, we beseech you to tell these generals loudly and clearly that what they did was reprehensible. They breached their sacred trust as military commanders. Their callous indifference threatened the very fabric of civilization."
JURY INSTRUCTIONS AND CLARIFICATIONS
Following closing arguments on July 18, Judge Hurley read the "instructions" to the jury, which set out the legal standards to be applied in reaching their verdict. Key to the case, as the judge noted, is the definition of "command responsibility" included in the instructions. The so-called "doctrine of command responsibility" sets out the conditions under which military commanders and other superiors may be held responsible for abuses committed by subordinates, even when the commanders did not order the abuses.
The jury instruction on this issue had been the subject of ongoing discussion and as many as eight drafts from the court over the course of the trial, including changes proposed just prior to closing argument. As ultimately adopted by the court, the command responsibility instruction reads as follows:
"To hold a military commander liable for the acts of another under the doctrine of command responsibility, the plaintiff must prove all of the following elements by a preponderance of the evidence:
"(1) The plaintiff was tortured by a member of the military, the security forces, or by someone acting in concert with the military or security forces;
"(2) A superior-subordinate relationship existed between the defendant/military commander and the person(s) who tortured the plaintiff;
"(3) The defendant/military commander knew, or should have known, owing to the circumstances of the time, that his subordinates had committed, were committing, or were about to commit torture and/or extra-judicial killing; and
"(4) The defendant/military commander failed to take all necessary and reasonable measures to prevent torture and/or extra-judicial killing, or failed to punish subordinates after they had committed torture and/or extra-judicial killing."
Additional instructions further define those terms. Most importantly, the instructions provide a definition of the "superior-subordinate" relationship identified in element #2 above. This definition incorporates the concept of "effective control," which proved to be the stumbling block for plaintiffs in the lawsuit brought by the families of the four American churchwomen murdered in El Salvador, Ford et. al. v. Garcia and Vides Casanova. In an appeal from the defense verdict in that case, an appellate court confirmed that plaintiffs must show not only that the persons who committed the alleged abuses were subordinate to the commander in rank or authority, but also that the commanders had "effective control" over the subordinates.
The instructions provide that, in order to establish the existence of a "superior-subordinate" relationship, the plaintiff:
"must prove, by a preponderance of the evidence, that (1) the defendant/military commander held a higher rank than, or had authority over, the person(s) accused of torturing the plaintiff, and (2) the defendant/military commander had effective control over the person(s) accused of torturing the plaintiff."
The term "effective control" is then defined:
"Effective control means that the defendant/military commander had the actual ability to prevent the torture or to punish the persons accused of committing the torture. In other words, to establish effective control, a plaintiff must prove, by a preponderance of the evidence, that the defendant/military commander had the actual ability to control the person(s) accused of torturing the plaintiff."
Importantly, the instructions also provide that:
"A defendant/military commander cannot escape liability where his own action or inaction causes or significantly contributes to a lack of effective control over his subordinates."
With respect to the third element of actual or presumed knowledge, the instructions make clear that the plaintiff:
"does not have to prove that the defendant/military commander knew or should have known of the plaintiffs' torture. Rather, the knowledge element would be satisfied if the plaintiff proved, by a preponderance of the evidence, that the defendant/military commander knew, or should have known, that his subordinates had committed, were committing, or were about to commit, torture and extrajudicial killing."
Other instructions include definitions of torture and extra-judicial killing and describe the types of damages that may be available. Compensatory damages, as the instructions explain, may be awarded to compensate plaintiffs for actual losses and for pain and suffering. Punitive damages are available if the jury finds that a defendant's conduct was "malicious, wanton, or recklessly or callously indifferent," and are designed to punish a defendant and to deter him and others from committing similar misconduct.
After the instructions were read, the jury begin their deliberations, just two hours before the end of the day.
The following afternoon, Friday, July 19, the jury sent two questions to Judge Hurley concerning the command responsibility instruction. The first question requested a definition of the term "actual ability," a term that is part of the jury instruction's definition of "effective control". The second asked "shouldn't it be absolutely necessary for the accused torturers [to] be identified or at least proven to be subordinates of the defendant commanders?" After discussion with counsel of appropriate responses to these questions, Judge Hurley provided an oral response to the jurors. He also allowed the parties to suggest written language for a response on Monday morning.
With respect to the definition of "actual ability" to control subordinates, Judge Hurley explained that effective control focuses on the "relationship" that existed between the commander and people who committed the torture and requires a showing that the commander who is being sued had the practical ability to prevent his subordinates from committing torture or had the practical ability to punish subordinates who had committed torture.
With respect to the second question, about identifying the subordinates or proving the subordinate relationship, Judge Hurley explained that the plaintiffs do not have to identify the individuals who committed the torture. Rather, he stated, plaintiffs must show that the torturers were members of the military, security forces, or someone acting in concert with them, and that such person(s), in fact, were subordinate to a particular defendant.
The report on closing arguments was written by Patty Blum, Clinical
Professor of Law and Director, International Human Rights Law Clinic,
University of California, Berkeley. The report on jury instructions and
clarifications was written by Joshua Sondheimer, Litigation Director,
Center for Justice and Accountability
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