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1 IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

2 NORTHERN DIVISION

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

) July 11, 2002

8 JOSE GUILLERMO GARCIA, an )

individual, CARLOS EUGENIO VIDES)

9 CASANOVA, an individual, and ) VOLUME 10

DOES 1 through 50, inclusive, )

10 )

Defendants. )

11 _______________________________ x

14 COURT REPORTER'S TRANSCRIPT OF

TESTIMONY AND PROCEEDINGS HAD BEFORE

15 JUDGE DANIEL T. K. HURLEY

17 APPEARANCES:

18 For the Plaintiffs: JAMES GREEN, ESQ.

PETER STERN, ESQ.

19 BETH VanSCHAACK, ESQ.

20 For Defendant: KURT KLAUS, ESQ.

Court Reporter: Pauline A. Stipes, C.S.R., C.M.

24 PAULINE A. STIPES

Official Reporter

25 U. S. District Court

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1 THE COURT: Please be seated, ladies and

2 gentlemen. I am going to pass out what is marked as a

3 fourth draft which incorporates some of our discussion

4 last night. It has a couple other additions. I thought

5 it would be helpful -- let me make sure that this is in

6 here -- it is not. Let me double check, I saved something

7 from a disk, and I must have done something wrong because

8 it is not on the copies I have in front of me.

9 I wanted to make sure the parties -- that the

10 jury is aware, and I think that this is correct in terms

11 of our discussions, that the concept of a subordinate,

12 wherever that is used in the jury instruction, is a

13 subordinate who exists in the relationship that we defined

14 in element two. So that you remember we talked about

15 elements one and two are specific, three and four are

16 general, but clearly the subordinates referred to in three

17 and four are people who are subordinate to the Defendants

18 in this case.

19 That is the whole theory of command

20 responsibility, that the commander must have effective

21 responsibility, not only over the people who actually

22 committed the torture with respect to the Plaintiffs, but

23 the other troops that the Plaintiffs are contending were

24 committing other acts of torture and I am not sure that is

25 clear. I made that change, and I have incorporated the

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1 others.

2 I thought it would be helpful if The Court could

3 rule on the motion at limine at the outset. I think it

4 would be helpful so the defense can set their own pace in

5 terms of their discussion.

6 Is there any further argument? Does anyone want

7 to be heard further on it?

8 MR. KLAUS: No.

9 MS. VanSCHAACK: No.

10 THE COURT: Okay. Let me take a moment, if I

11 can, to review this.

12 The Plaintiffs in this case have filed a motion

13 in limine and the thrust of the motion is to preclude the

14 jury from seeing or knowing that both General Garcia and

15 General Vides Casanova were awarded the United States

16 legion of merit by the President of the United States upon

17 their completion of service in El Salvador. The motion

18 filed by the Plaintiffs describes these commendations as

19 classic hearsay and as character evidence.

20 Now, last night in our discussion I understood

21 Ms. VanSchaack retreated a bit under the hearsay and

22 perhaps these do fall under 803.8. They are public

23 documents, and bear the seal of the state, but they are

24 character evidence, and character evidence is normally not

25 admissible in a civil trial.

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1 Now, in the courts of the United States, we have

2 tried carefully to safeguard concepts of due process. For

3 example, the United States Supreme Court in Davis versus

4 Alaska, when viewing an impediment to cross examination,

5 and the ability of an accused to confront the witness

6 against him, clearly opted for that right over the

7 countervailing right that was being raised as to preclude

8 the defendant to cross examine a key prosecution witness

9 regarding his adjudication for juvenile delinquency, and

10 we did that because we believed that full cross

11 examination was critical, it is a component of due

12 process.

13 Now, it seems to me that -- by the way, in

14 support of the motion, the Plaintiffs have pointed out

15 correctly to a scenario that seems somewhat analogous, and

16 that is, in situations, for instance, when police

17 officers, and sometimes high ranking police officers have

18 been accused of police brutality, it is generally held

19 that their commendations and awards are usually not

20 admissible because they are not relevant. When you think

21 about it, the issue is, did this officer do a particular

22 act at a particular time, and it is very specific. So the

23 general rule is those commendations are not appropriate.

24 Now, we sit in a trial in which eight citizens of

25 the United States sit as a jury. These are people who --

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1 and I suspect the sentiment has occurred to all of us as

2 we have listened to the events of El Salvador -- but our

3 jury are people who have lived in the United States, who

4 have had the blessings, who have lived in a relatively

5 ordered society, and who are learning about events that

6 are totally alien to their own common understanding of the

7 way the world works. And clearly we have listened to

8 extraordinary accounts of torture, and the infliction of

9 pain upon people.

10 The Defendants in this case are two of the

11 highest ranking officers in sovereign nation, but by

12 virtue of an act of the Congress of the United States,

13 this type of trial is allowed to take place. The defense

14 that is about to be mounted is a defense that asks the

15 jury to look at what was taking place in El Salvador.

16 The defense would contend that looking back 20

17 years ago the world was gripped in cold war. Cuba was

18 regarded as a Communist satellite state, indeed a state in

19 which missiles had been introduced at one point that posed

20 a direct threat to the safety of the United States. That

21 Nicaragua had fallen, and there was the view that other

22 countries in Latin America were susceptible to falling

23 into the Communist ideology. And because of their

24 proximity to the United States it was not simply an

25 ideological division, but it would have been a development

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1 that would have posed a real clear danger to the safety

2 and security of the United States.

3 The defense is contending there was in fact a

4 civil war in that country, the result of which was

5 seriously in doubt that the rebel forces appeared to be

6 gaining momentum at certain times, and there was a

7 concerted effort, number one, to institute governmental

8 change, to combat a growing insurgency, Communist

9 insurgency, and to handle all of these things

10 simultaneously.

11 And that this effort, this transition period was

12 a transition that was marked by enormous suffering and so

13 on. And that the people who were in charge of the

14 government following the October, 1979 coup were

15 shouldered with this responsibility of attempting to

16 effectuate the change, win a war, and to deal with all of

17 the other cultural institutional problems that had been

18 discussed in this case.

19 The Tanda System, trying to determine who was

20 doing what, and recognizing there were in fact death

21 squads, the evidence of that is irrefutable, but trying on

22 the one hand to determine who is responsible and so on.

23 That is the defense.

24 Now, the question becomes, are the Defendants

25 entitled in attempting to put that defense forward to

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1 offer documentary evidence that the President of the

2 United States through his Secretaries of Defense took the

3 view that these Defendants were engaged in institutional

4 reform in the Salvadoran Army, that they were engaged in

5 implementing policies regarding civilian and military

6 relations, that they were engaged in efforts to improve

7 the professionalism and ethical standards of the El

8 Salvadoran military and so on.

9 It seems to me that these documents are not

10 character evidence at all. These are not documents that

11 say General Garcia is a wonderful humanitarian or a

12 charitable person or so on. These are documents by the

13 President of the United States suggesting that General

14 Garcia in the fulfillment of his office and in handling

15 the responsibilities that were upon him was discharging

16 those responsibilities in a way that was consistent with

17 the views of the United States regarding the ethical and

18 responsible obligations of a Defense Minister or of an

19 Army general and commander.

20 Now, it seems to me, first, these documents are

21 admissible in a sense that they are public documents under

22 seal. There is no question that they had in fact been

23 offered. I notice that the Plaintiffs suggest that they

24 were purportedly offered, but no one is seriously

25 suggesting that these are not trustworthy or truthful.

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1 I think the issue is, are the Defendants in the

2 effort to put forth their defense, in the effort to try to

3 explain the enormous difficulties that they say they

4 faced, trying to institute change within the military

5 structure, trying to combat military insurgency, are they

6 entitled to introduce evidence that the Government of the

7 United States regarded the discharge of their overall

8 responsibilities regarding the conduct of this war in a

9 satisfactory manner?

10 It is my view that these documents are

11 admissible, that to not admit them would be inappropriate,

12 because it would strip to some degree the Defendants'

13 effort to explain to the jury what they were facing and

14 what they were attempting to do.

15 Now, whether that is a credible defense in light

16 of all that we heard remains for the jury to decide, but

17 it seems to me the Defendants have an absolute right to

18 put forth this defense and these documents, in my

19 judgment, that are relevant to that defense. They are

20 relevant to an issue that is in dispute in this case, and

21 that is, trying to make this judgment call about the

22 conflicting responsibilities, the difficulties of the

23 time, and so on.

24 I think one of the problems in a case like this,

25 and we've talked about it, and alluded to it yesterday in

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1 our discussion about the statute of limitations, is the

2 difficulty of looking back in this instance of almost 20

3 years, and attempting to fully understand the context in

4 which these things occurred.