1
1 IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
2 NORTHERN DIVISION
3
4 JUAN ROMAGOZA ARCE, JANE ) Docket No.
DOE, in her personal capacity ) 99-8364-CIV-HURLEY
5 as Personal Representative of )
the ESTATE OF BABY DOE, )
6 )
Plaintiffs, )
7 vs. ) West Palm Beach, Florida
) June 24, 2002
8 JOSE GUILLERMO GARCIA, an )
individual, CARLOS EUGENIO VIDES)
9 CASANOVA, an individual, and ) VOLUME 1
DOES 1 through 50, inclusive, )
10 )
Defendants. )
11 _______________________________ x
12
13
14 COURT REPORTER'S TRANSCRIPT OF
TESTIMONY AND PROCEEDINGS HAD BEFORE
15 JUDGE DANIEL T. K. HURLEY
16
17 APPEARANCES:
18 For the Plaintiffs: JAMES GREEN, ESQ.
PETER STERN, ESQ.
19 BETH VanSCHAACK, ESQ.
20 For Defendant: KURT KLAUS, ESQ.
21
Court Reporter: Pauline A. Stipes, C.S.R., C.M.
22
23
24
PAULINE A. STIPES
25 Official Reporter
U. S. District Court
2
1 THE COURT: Good morning, ladies and gentlemen.
2 Please be seated.
3 This is case number 99-8364. It is the case of
4 Dr. Juan Romagoza et al., versus General Jos‚ Guillermo
5 Garcia, et al.
6 We are here this morning for presentation of
7 opening statements, and I am going to move to that in just
8 a moment.
9 I wanted to advise counsel that I misspoke when I
10 spoke about the Monday we would not be sitting, and I have
11 had a chance to look at the calendar again. The Monday we
12 will not be sitting is Monday, July 1st, rather than
13 July 8th, and I wanted to bring that to your attention.
14 I also wanted to take a moment. When we were
15 concluding on Thursday, Mr. Klaus mentioned his concern,
16 having read some of the expert reports that had been
17 provided to him, and voiced the concern as to whether
18 because of what was in those reports, whether that would
19 permit the admission into evidence of the prior verdict.
20 The parties will recall that I have signed an
21 order granting a motion in limine finding that the verdict
22 would not be admissible. Now, as I mentioned to the
23 parties in a telephone conversation that we had on Friday,
24 the thrust of that order was that just as though the
25 Plaintiffs are clearly free to bring this lawsuit, the
3
1 Defendants would not be entitled to assert the judgment in
2 the prior case as a defense to this lawsuit.
3 Now, I know the parties because of the discussion
4 that we had on Friday probably have given more thought to
5 this and I think the parties indicated they were going to
6 have a written submission for me on this. If you do, I
7 would appreciate it. You can pass it up at the break.
8 I have had occasion to look again at the case law
9 governing collateral estoppel, res judicata, and so on. I
10 have also looked at the case law regarding admissibility
11 of judgment of acquittals in criminal cases, and I
12 continue to believe that the order that was entered is a
13 correct order.
14 That means that the verdict in the prior case
15 should not be raised unless you alert me beforehand and we
16 can talk about it. It may be, I simply don't know, it is
17 very hard now in the abstract, it may be there would be
18 some situation that might open the door to that. But it
19 seems to me that would be the only way conceivably that
20 the verdict would be admissible.
21 So, why don't we agree that the order stays in
22 effect, that is no one should mention the decision, the
23 verdict in the prior case unless you've alerted me to it,
24 unless we have had the opportunity to discuss it at the
25 close of business one day so we can have a discussion
4
1 about that.
2 And having said that, the Plaintiffs, obviously,
3 are free to discuss whatever historical facts they choose
4 to discuss in presenting the theory or analysis of their
5 claims.
6 Okay. Are we set and ready to proceed with the
7 opening statements?
8 MR. KLAUS: I have a couple issues, Your Honor.
9 I don't know if The Court wants to inquire as to the
10 jury -- newspaper articles.
11 THE INTERPRETER: Your Honor, I can't hear.
12 THE COURT: Counsel, we have a problem. You need
13 to come to the lectern only because the interpreters are
14 using the sound system. Maybe we ought to have
15 microphones put at the counsel table.
16 MR. KLAUS: There are two articles in the paper,
17 one in Parade Magazine about crime in Central America
18 including crippling El Salvador, and one about today's
19 trial. I don't know if the judge wants to inquire of the
20 jury if they read it or not. The article of this sets
21 forth what the burden of proof is, and it is not correct.
22 I don't know if the jury would be influenced with that.
23 You want this?
24 THE COURT: Yes, let me see it. I will ask the
25 jury -- I thought I would limit it to the local section of
5
1 the local papers, and I would ask the jury to be extra
2 careful about any article dealing with the case that might
3 appear in any other section of the paper and ask them to
4 be extra careful about that.
5 Would that be adequate for both sides?
6 MR. KLAUS: Yes. That appeared in the local
7 section of my version of the Miami Herald.
8 THE COURT: Okay. Anything else we need to
9 discuss before we start?
10 Mr. Stern?
11 MR. STERN: If it please The Court, several
12 items, Your Honor. First thing this morning we did file a
13 short paper in response to The Court's request on Friday
14 and The Court will review that, of course. I think bottom
15 line is that we don't feel that that issue is going to be
16 an impediment, and the position we set out in the papers
17 we believe moots the issue.
18 We are willing to forego the admission of
19 substantive evidence regarding the churchwomen's murders
20 to avoid any complexity in issues in this regard. Perhaps
21 it would make sense for us to talk more about it after the
22 court has reviewed our papers. We would appreciate -- we
23 would like an understanding if we agree not to elicit
24 testimony regarding the churchwomen's murders, by the same
25 token the Defendants would not be allowed to put on
6
1 investigation or remedial measures that have been taken in
2 that regard.
3 THE COURT: Let's save those matters for our
4 meeting this evening. Those are substantive issues, and
5 it would help me if maybe you would privately talk with
6 defense counsel so everybody is aware what it is you are
7 proposing, and both sides can reflect on it. And if they
8 are able to enter into a stipulation, fine, if not, we can
9 deal with that at an appropriate time.
10 MR. STERN: Certainly, Your Honor.
11 The only other thing, we do have exhibits that we
12 have agreed on by stipulation and we would like to enter
13 into evidence at the appropriate time, certainly before
14 Ambassador White's testimony.
15 THE COURT: My suggestion is when The Court
16 finishes preliminary jury instructions and before opening
17 statements, it might be appropriate to receive those if
18 any of those are going to be read in the opening
19 statement. If they are not, why don't we wait until we
20 are ready to begin the first witness, and take that before
21 the first witness testifies. And I will leave it up to
22 you to tell me how you would like to approach that.
23 MR. STERN: Thank you, Your Honor.
24 THE COURT: Okay. All set and ready to proceed?
25 MR. GREEN: One other matter, Judge. We will be
7
1 invoking the Rule of Sequestration. We should wait until
2 after opening, but we will have one, if not two experts in
3 the courtroom with us throughout the trial.
4 THE COURT: Well, you are raising a couple of
5 issues. The first is the parties wish to invoke the Rule
6 of Sequestration. That means anyone who is going to be a
7 witness needs to remain outside until they are called.
8 And certainly they can talk with the lawyers on either
9 side, but I need to ask the lawyers if you would be good
10 enough that those conversations take place in such a
11 physical location and such a tone of voice that no other
12 potential witness is able to overhear them.
13 The second issue you are raising, whether the
14 experts on either side should be excepted from the Rule of
15 Sequestration. Mr. Klaus, do you have any objection to
16 that?
17 MR. KLAUS: I object to that because of the
18 nature of this case.
19 THE COURT: Why don't we agree until we have had
20 a chance to further discuss it, that since the rule is
21 being invoked, it be applied across the board. And let's
22 talk about it further this evening to see if there is an
23 exception. Sometimes exceptions are made for expert
24 witnesses because one expert is entitled to listen to
25 another so they can respond to the same issues. I have
8
1 seen it done both ways. It is a discretionary matter with
2 The Court, but I would like to have an opportunity to talk
3 with you about that.
4 MR. GREEN: Your Honor, I assume the rule will be
5 invoked after opening statement.
6 THE COURT: Do you care when the rule is invoked?
7 It really doesn't make a difference. It can be invoked
8 now or after, whatever you want.
9 MR. KLAUS: Now.
10 MR. GREEN: We do have an expert, I would like
11 her to be here for the opening statement. My
12 understanding is the rule is generally invoked after
13 opening statement but before the first witness is called.
14 THE COURT: If the rule is being invoked now,
15 that is all right. I would ask anybody who is going to be
16 a witness to remain outside, and hopefully we can further
17 clarify this to see whether someone is an expert witness,
18 maybe we will exempt them. That is the safer and easier
19 approach.
20 Anything else we need to talk about?
21 MR. GREEN: Your Honor, are you going to give a
22 preliminary instruction on burden of proof?
23 THE COURT: I am. Not on burden of proof, I am
24 going to give the traditional opening statement, but I
25 want to remind you counsel were introduced to the first
9
1 panel but not the second panel. What I thought I would
2 do, if it is okay with you, is turn to you again and allow
3 you to introduce yourselves and the parties so that the
4 jury again has a chance to meet everybody. Okay.
5 But remember, through my oversight the parties
6 were introduced to the second jury panel but not the
7 lawyers. So I think we really need to do that. Okay.
8 And I want to just review one other thing with
9 you. By mutual agreement we have agreed now the jury may
10 take notes and the jury may ask questions.
11 MR. KLAUS: Yes.
12 MR. GREEN: Yes, Your Honor.
13 THE COURT: Okay, fine, good.
14 Mr. Marshal, would you bring in the jury, please?
15 (Thereupon, the jury returned to the courtroom.)
16 MR. GREEN: Your Honor, we do have one board --
17 we prefer to do the stipulation on the evidence after
18 opening statement. We do have one board which has been
19 stipulated into evidence.
20 THE COURT: Good.
21 MR. GREEN: I am going to show the jury that
22 during opening.
23 THE COURT: Good. Mr. Klaus, did you decide you
24 were going to give an opening statement?
25 MR. KLAUS: I am not, unless they say something
10
1 so outrageous I would have to respond.
2 THE COURT: All right.
3 (Thereupon, the jury returned to the courtroom.)
4 THE COURT: Good morning, ladies and gentlemen.
5 I thought I would start by asking Mr. Caldwell if you
6 would be good enough to administer the oath in this case.
7 (Thereupon, the jury was sworn.)
8 THE COURT: Ladies and gentlemen, please be
9 seated.
10 Ladies and gentlemen, I would like to begin, if I
11 might, by once again, on behalf of all of the parties in
12 the lawsuit to express to you our gratitude at your
13 willingness to serve. We are deeply indebted and most
14 appreciative to you.
15 I thought I would begin this morning, if I might,
16 before we turn to counsel for opening statements, first to
17 again allow the lawyers to introduce themselves to you,
18 and to allow them to introduce their clients to you.
19 I apologize, but to the second panel of jurors
20 who came in on Thursday afternoon, while the parties had
21 the opportunity to introduce themselves to you, I
22 neglected to invite the lawyers to do that. And I want to
23 make sure you have a chance to meet everybody who is going
24 to be involved in the lawsuit.
25 Let me begin, if I might, by turning to counsel
11
1 for the Plaintiff, and allow him to introduce himself to
2 you and the other lawyers together with the other party
3 Plaintiffs who are present today.
4 Mr. Green.
5 MR. GREEN: My name is James Green, and
6 co-counsel with me are Peter Stern, Beth VanSchaack, and
7 my three clients are Dr. Juan Romagoza. Neris Gonzalez,
8 and Carlos Mauricio.
9 THE COURT: Thank you very much.
10 Counsel for the defense.
11 MR. KLAUS: Kurt Klaus, and General Carlos Vides,
12 former administrator of the defense, and General Garcia,
13 former defense minister of El Salvador.
14 THE COURT: Thank you.
15 Now, ladies and gentlemen, by taking the oath you
16 took a few moments ago, you became the jury to decide the
17 issues in this case, and by taking that oath you literally
18 have become judges of the facts of this case. By your
19 verdicts you will decide the disputed issues of fact.
20 As I mentioned to you when we were talking about
21 the selection of the jury, it is going to be my
22 responsibility to decide all questions of law and
23 procedure that arise during the trial, and before you
24 retire to the jury room at the very end of the trial to
25 deliberate upon your verdict and decide the case, I will
12
1 explain to you the rules of law that you must follow and
2 apply in making your decision. I want you to know it is
3 my hope I will have a written copy of the jury
4 instructions for each member of the jury at that time.
5 Now, the evidence presented to you during the
6 trial will primarily consist of the testimony of
7 witnesses, in other words, people who will come in and
8 come up to the witness stand, who will take the oath and
9 be examined, and cross examined. And the evidence may
10 also consist of tangible items, documents or other
11 exhibits that will be offered into the record.
12 I need to tell you what you will have and what
13 you will not have to decide the issues in this case.
14 You want to pay close attention to the testimony
15 as it is presented because it will be necessary for you to
16 rely on your memories concerning what that testimony was.
17 Although as you can see, Mrs. Stipes, our court
18 reporter, is making a stenographic record of everything
19 that is said, typewritten transcripts will not be prepared
20 in sufficient time or in appropriate form for your use
21 during your deliberations, and so I want you to know up
22 front that we will not be able to provide them for you.
23 We've made some tremendous strides in court
24 reporting because Mrs. Stipes literally has a computer
25 built into her stenographic machine, but we are not quite
13
1 there yet where we have a record to be able to present it
2 to the jury. So you want to pay close attention to the
3 evidence as it is presented.
4 Now, I want you to know on the other hand that
5 anything that is introduced into evidence, in other words,
6 any document or exhibit, that will be available to you for
7 your detailed study in the jury room during your
8 deliberations.
9 We've been talking about maybe developing an
10 exhibit book that we would be able to have for you here in
11 the courtroom so if there were exhibits that we might be
12 using repetitively, you have it at your hands and be able
13 to flip to it. However, sometimes the lawyers will
14 introduce an exhibit and might pass it among you. If you
15 don't have the time to study it to the degree you want,
16 please know at the very end of the trial it absolutely
17 will be back in the jury room with you.
18 I think you know the answer to this already,
19 because I think sometimes jurors have come to court and
20 they look around and everybody else has pads and papers
21 and pencils, and jurors have said what about me, can I
22 take notes if I want to? The answer is absolutely, yes,
23 you can. That is why we've passed out those note pads.
24 We put a number on them, and I want to tell you
25 why. We need to collect those during the break, but I
14
1 want you to know, we regard those as your private notes,
2 and so they are locked up. No one looks at them. At the
3 end of the trial they are yours to take and as you will,
4 if you leave them here, we destroy them because we regard
5 those as your private notes.
6 Now, if you do want to take notes, I want to
7 simply remind you about what is the -- really, the unique
8 function of the jury, and we discussed it during the jury
9 selection process. I think everybody understands that it
10 is only the jury that can decide the credibility of the
11 witnesses.
12 Now, I want to tell you, if you are trying to
13 take notes, there is no way to get everything down word
14 for word. The problem is if you do try to do that, you
15 can get lost in the note taking. You want to stay focused
16 on your ability to judge the credibility of the witnesses.
17 You need to be able to see the expression of the witness
18 while they are testifying, body language, and all the
19 other things you normally look at when you are trying to
20 decide someone's credibility.
21 So my suggestion would be if you want to take
22 notes, first I would write the witness' name down, and I
23 will always ask the witness to identify themselves, and
24 tell us the spelling of their last name.
25 I also suggest that you may want to write a note
15
1 to yourself about who they are, and I say that because at
2 the end of the trial when you are trying to look back and
3 distinguish or differentiate one witness from another, you
4 may need something that you've used as a little reminder
5 for yourself so you can in fact differentiate one witness
6 from another.
7 And then I would limit the note taking to the
8 things you think are significant, measurements, distances,
9 or relationships, things like that.
10 Now, I want to emphasize to you your notes should
11 be used only as aides to your memory and if your memory
12 should later differ from your notes, you should rely upon
13 your memory and not your notes.
14 Let me give you an example. When a witness comes
15 in to testify, the lawyer who called the witnesses gets to
16 ask some questions first. That's called direct
17 examination. Then the other side, the lawyer on the other
18 side gets to ask some questions, cross examination, and
19 usually, the lawyer for the side that calls the witness
20 gets a chance to go back and ask more questions, that is
21 redirect examination.
22 Now, what if during the direct examination the
23 witness said something that you thought was significant so
24 you wrote a cryptic note, and then later when you are back
25 in the jury room at the end of the case, as you are
16
1 looking at that note and thinking about the witness'
2 testimony, you remember on cross examination the witness
3 modified the answer. Well, remember, it is your memory
4 that has to control, not that cryptic note. Okay?
5 Now, if you do not take notes, you want to the
6 rely on your own independent recollection or memory of
7 what the testimony was and you should not be unduly
8 influenced by the notes of other jurors. I want to
9 emphasize again that notes are not entitled to any greater
10 weight than the recollection or the impression of each
11 juror concerning what the testimony was.
12 Now, during the trial, you should keep an open
13 mind, and you should avoid reaching any hasty impressions
14 or conclusions. You want to reserve judgments until three
15 things have happened.
16 Number one, until you have heard all of the
17 evidence in the case.
18 Secondly, until at the very end you've had the
19 benefit of listening to the lawyers make their closing
20 arguments to you.
21 Now, I wanted to make sure you understand this:
22 What the lawyers say in the case, what the lawyers will
23 talk to you about in the beginning, and what the lawyers
24 will argue to you at the end, it is meant to help you,
25 certainly the arguments are meant to persuade you, but I
17
1 want to emphasize to you what the lawyers say is not
2 evidence. The evidence, in other words, what you need to
3 look to to decide the issues in this case is going to be
4 whatever comes from the witness stand and any of the
5 exhibits that are actually offered into the record.
6 Now, at the e