1848

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

) July 15, 2002

8 JOSE GUILLERMO GARCIA, an )

individual, CARLOS EUGENIO VIDES)

9 CASANOVA, an individual, and ) VOLUME 11

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

Official Reporter

25 U. S. District Court

1849

1 THE COURT: I wonder if I could see counsel

2 sidebar for a moment.

3 (Sidebar discussion on the record.)

4 THE COURT: Last week I had intended to defer my

5 ruling on the question of the admissibility of the

6 statements accompanying the Legion of Merit until we

7 reached that issue, but in thinking about it, because I

8 felt Mr. Klaus ought to be able to know that so he could

9 pace his presentation however he did, I made my ruling,

10 but I would like to take a moment and add, just to

11 supplement that a bit.

12 I suspect that none of us are aware of the fact

13 that as we are trying this case, the United States has

14 used its extraordinary power as a member of the Securities

15 Counsel of the United Nations to veto the Bosnian Peace

16 Force because of its concern that American troops might be

17 held to answer in some international tribunal because of

18 allegations of war crimes.

19 And, of course, I think we also remember that

20 President Bush has been talking about ways to eradicate or

21 somehow withdraw President Clinton's signature to the

22 International Treaty creating the International Criminal

23 Tribunal, because an American leader might be called in

24 front of that tribunal because of allegations of war

25 crimes.

1850

1 I think we understand that doesn't signify the

2 United States lack of concern about war crimes, but what

3 it does is signify a sovereign nation's concern about the

4 kinds of tribunals in which its leaders might be called

5 upon to account for their actions.

6 Now, I mention that because when you think about

7 it, it is extraordinary, but by virtue of the Torture

8 Victims Protection Act that is exactly what is taking

9 place in the courtroom.

10 We have two people who by virtue of their past

11 official positions are really being asked to be

12 accountable for their actions or their inactions as to

13 what they did while they held office.

14 Now, the Plaintiffs, of course, in the

15 presentation of their case presented numerous State

16 Department cables, which were admitted into evidence,

17 really without objection, but probably would have been

18 admissible anyway under 803.8. Government reports,

19 seemingly trustworthy, they were being prepared and so on.

20 But there is no question those reports certainly

21 talked about the writer's review or the writer's opinion

22 as to what the Defendants were doing or not doing, and the

23 reasons that they may have had for taking action or not

24 taking action.

25 Now, the defense -- by the way, one of the things

1851

1 that was brought out in the Plaintiffs' case was a

2 suggestion, I think Mr. Green mentioned this maybe a

3 little bit in opening statement, but it came out also as

4 evidence that there is a question as to what was the

5 nature of the armed insurgency. In other words, was it a

6 relatively small group that effectively grew because of

7 the over reaction of the Army literally driving people

8 into it because of repression, murder, and so on.

9 Now, the defense that has been mounted, of

10 course, is a defense that says, number one, the country

11 was in complete chaos, that there was an armed insurgency

12 which looked like it could have been successful and that

13 there were groups on the left and the right interacting

14 and engaging in death squads and extrajudicial killing,

15 torture, so on, so forth.

16 As I said before, whether that is a credible

17 defense is for the jury to decide. So the question, it

18 seems to me, is whether the statement accompanying the

19 Legion of Merit is admissible, and it seems to me that it

20 is, number one, it represents a statement by the

21 Government of the United States, it is apparently issued

22 by the Secretary of Defense with the concurrence of the

23 Defendant, and number one, represents and states

24 equivocally in the Government of the United States' view

25 there was in fact a war, Communist insurgency and so on,

1852

1 and then goes on and talks about the role of the generals

2 in fulfilling their responsibilities.

3 Now, it seems to me that, too, is admissible

4 under 803.8. While we tend to think of accommodation as a

5 metal or certificate given to somebody, this is

6 accompanied by a statement of --

7 MR. KLAUS: Explanation.

8 THE COURT: -- explanation or view, and offered

9 under the seal of the Government of the United States.

10 We've heard testimony in this record there were military

11 advisers and other people providing information to the

12 defense Defendant and so on.

13 So it is my view that the basis of this is

14 sufficiently reliable to allow it to go into evidence, and

15 I mentioned the other day, you know, the United States

16 Supreme Court decision in Davis versus Alaska, that talked

17 about how important it is in due process, someone being

18 able to present a defense.

19 I did not want to suggest that the normal rules

20 of evidence would not allow this, but seems to me

21 particularly in light of what I mentioned earlier, it is

22 important that we not take a narrow or cramped view about

23 the rules of evidence, and both sides need to be able to

24 put in appropriate evidence as long as it is reliable,

25 trustworthy, and so on.

1853

1 So I wanted to supplement that on the record.

2 Now, I wanted to mention two other things, and I

3 say this because I think we are within striking distance

4 of the conclusion of the case and I know that we've all

5 talked about this, how hard you have worked, and I think

6 you have succeeded. We have had a very good trial, and I

7 don't want this in any way to be seen as any kind of

8 restriction on cross examination. You have to have full

9 and complete cross examination.

10 I want to mention a couple things I am concerned

11 about it.

12 At one point when Ms. Gonzalez was on the stand,

13 there was a reference to the pain, difficulty she would

14 have in explaining what it was she went through because

15 her daughter was present in the courtroom, and would hear

16 for the first time the detail of that. My concern is that

17 that sounds like a -- kind of a thing for sympathy to the

18 jury, and I think we have to be careful.

19 The other thing, there was a picture and we were

20 talking about the uniforms. You remember General Garcia

21 was on the stand and there was a discussion about the

22 daily uniform, and then the dress uniform, and so a

23 picture was brought up. Now, the picture was not marked

24 for identification, and my initial thought was that you

25 were simply trying to show the colorful dress of the

1854

1 uniform, and there was no objection when the picture

2 itself was shown to the jury.

3 But Mr. Green then began to point out what I

4 hadn't focused on it, looked like the marching step was

5 the step typical of the Nazis, that sort of thing, and I

6 think that is where the questions were going. I am

7 fearful something like that, had you really asked that

8 question and had there been a request for a mistrial, I

9 think I would have had to grant it.

10 And what I am really asking is that you be very

11 careful, that you exercise some restraint as you get to

12 the fringes of what is really relevant. I think the

13 business about if that is where you were going, and I sort

14 of suspect it was.

15 MR. GREEN: It was to show the precision with

16 which these guys, in part of discipline is learning how to

17 march in precision is to pass and review.

18 THE COURT: I am glad to hear that. I stopped

19 that because my fear was that was going to be your next

20 question and it would not be something we could remedy.

21 I would ask on all sides as we are proceeding

22 into the closing stages, we want to be careful, and I

23 don't want to limit cross and redirect and so on, but I

24 really think we've come a tremendous distance and I think

25 we've had a really good trial, I think these issues have

1855

1 really been laid out, but I just ask everybody to be

2 sensitive to this as we are going along.

3 MR. GREEN: One matter along the lines we are

4 talking about in terms of the Legion of Merit. One of our

5 concerns is that the jury not be left with the message

6 that just because a person received a Legion of Merit

7 award, that they are immune or incapable of having

8 committed human rights violations. And we do intend to

9 elicit testimony concerning other Legion of Merit awards

10 being given to people who have subsequently been convicted

11 of war crimes, disappearances or other human rights

12 violations.

13 THE COURT: I will have to hear that in terms of

14 whether it is relevant or not. I suspected what you were

15 going to argue, this is so much diplomatic pablem, you can

16 argue that if you think that is appropriate. But --

17 MR. GREEN: I am trying to be up front with The

18 Court in terms of, that would be one issue.

19 The other issue --

20 THE COURT: Are these other people in El

21 Salvador?

22 MR. GREEN: No, Argentina.

23 MR. KLAUS: Did they receive the awards after the

24 alleged acts?

25 MS. VanSCHAACK: The same idea. When you change

1856

1 your position or retire, you get one.

2 MR. GREEN: The reason for the award is visit or

3 assignment, including these two Defendants.

4 THE COURT: Let's wait until we get to that and

5 let me think about it.