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1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

2 NORTHERN DIVISION

JUAN ROMAGOZA ARCE, et al., ) Docket No.

4 ) 99-8364-Civ-HURLEY

Plaintiffs, )

5 ) West Palm Beach, Fl.

v. ) July 18, 2002

6 ) 9:30 a.m.

JOSE GUILLERMO GARCIA an individual )

7 CARLOS EUGENIO VIDES CASANOVA, )

)

8 )

Defendants. )

9 )

--------------------------------------x

11 VOLUME 14

TRANSCRIPT OF TRIAL

12 BEFORE THE HONORABLE DANIEL T.K. HURLEY

and a jury

APPEARANCES:

For the Plaintiffs: JAMES GREEN, ESQ.

16 PETER STERN, ESQ.

BETH VanSCHAACK, ESQ.

For the Defendant: KURT KLAUS, ESQ.

Court Reporter: Pauline A. Stipes, CSR, RPR, RMR

25 United States Courthouse

West Palm Beach, FL 33401

Pauline A. Stipes

Official Federal Reporter

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1 THE COURT: Good morning, everyone, please be seated.

2 Before we begin, I would like to take a moment to seek

3 your advice regarding the appropriate verdict form, and I have

4 distributed to you two copies. The form that is labeled

5 "alternate one" is really a reflection of our discussion last

6 night, but the form that is listed as "alternate two" is a form

7 that was developed in light of our discussion last night.

8 Frankly, I think that it more appropriately addresses the

9 concerns that we had and it clearly allows simply one finding

10 of compensatory damages. It also reflects that any finding of

11 punitive damages is an individual finding, and there can be

12 differences in that regard.

13 My advice would be that we ought to use alternate

14 two. I think it is the preferable approach. I think it is the

15 easier approach and doesn't require the jury to double back, if

16 you will, and look at how they responded to earlier questions

17 as we would have had to do, and I think it does respond to all

18 of the concerns we discussed last night.

19 Does anyone object to using alternate two?

20 MS. VAN SCHAACK: No objection.

21 MR. KLAUS: No objection.

22 THE COURT: I apologize to you for this, because we

23 have spent a lot of time in attempting to develop the jury

24 instructions, and I wanted to make sure you had the final form

25 as you were preparing your final arguments. However, in

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1 rereading the 11th Circuit's opinion in the earlier Ford case,

2 and looking at how we had addressed those issues, I've passed

3 out what is marked draft seven and there are just a couple of

4 proposed changes but they deal with critical issues, so I

5 wanted to make sure that you were aware of them.

6 In stating the elements --

7 Let me double check. Is this an earlier version of

8 draft seven -- let me take a moment, I thought maybe the

9 changes we placed in bold so you can absolutely make sure you

10 are aware of them. Let me take a minute to make sure I have

11 them in front of me.

12 If you would go to page seven and let me get draft six

13 in front of me so I can be absolutely sure I am pointing out to

14 you the changes. I don't think they are significant, but I

15 want to make sure you are aware of them.

16 On page seven discussing the second element which was

17 the superior subordinate relationship, in the sixth line down

18 in that paragraph, it previously read open paren -- excuse me I

19 am looking at what would be the fifth line, open paren two,

20 close paren, the defendant slash military commander had

21 effective control over the persons accused of torturing the

22 plaintiff, and it had a comma and said, "that is, the defendant

23 military commander had the material ability to prevent the

24 torture," etc..

25 I've changed the word "material" to "actual" which is

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1 what the 11th Circuit uses. I am looking at the majority

2 opinion in that decision which says, referring to the earlier

3 cases from the international tribunals, these cases emphasize,

4 nonetheless, that the command responsibility theory of

5 liability is premised on the actual ability of a superior to

6 control his troops. A reading of the cases suggest that a

7 showing of the defendant's actual ability to control the guilty

8 troops is required as part of the plaintiff's burden under the

9 superior subordinate prong. So I have changed simply the word

10 "material", and remember we talked about that that that is a

11 somewhat of a pliable concept, and I used the word "actual".

12 The only thing I have done there is this: I have put

13 a period on the sixth line after the word "plaintiff" because

14 it previously had a comma, and then said "that is", so I put a

15 period and said "effective control means", and I kept the same

16 language, that the defendant military commander had the actual

17 ability as opposed to material ability to prevent the torture

18 or prevent the persons accused of committing the torture.

19 In other words, and here is a change, it previously

20 said to be able to invoke the Doctrine of Command

21 Responsibility. I tried to tie that down a little more to what

22 we are really talking about. That is, in other words, to

23 establish effective control, because that is what we are

24 talking about, establishing that element of the Doctrine of

25 Command Responsibility, and I kept the rest of it exactly the

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1 same.

2 I think it is just a stylistic change but I wanted to

3 make sure you were aware of it.

4 Does that cause any problem to either side?

5 MR. KLAUS: No objection.

6 MS. VAN SCHAACK: We spoke yesterday about the word

7 "practical".

8 THE COURT: I was trying to remember where we had

9 that.

10 MS. VAN SCHAACK: It was going to be in lieu of

11 material.

12 THE COURT: I don't think it was here. I think it was

13 somewhere else.

14 MR. KLAUS: I think it was here. I requested actual

15 and said I would settle for practical.

16 THE COURT: I think I need to use the word "actual"

17 since that is the word out of the case law and that was clearly

18 discussed by the 11th Circuit.

19 Does the plaintiff want to lodge an objection to

20 that?

21 MS. VAN SCHAACK: Yes.

22 THE COURT: You would prefer the word "practical"

23 rather than "actual"?

24 MS. VAN SCHAACK: I think the concept of practicality

25 captures the notion that you have the means, ability, tools to

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1 do so. That is why we had originally composed that.

2 The concern, I think, is that the term "actual"

3 focuses too much on the specific perpetrators.

4 THE COURT: Okay. Let me take you back while we are

5 discussing this, and I hesitated to do it because we spent so

6 much time I didn't want to go back to what is really, if you

7 think about it, just the heart of the lawsuit. Let me draw

8 your attention to this.

9 In the sixth line down in that paragraph dealing with

10 superior subordinate relationship, I think we have it slightly

11 backwards and this is what I would like to suggest. As I read

12 the Ford opinion, what you have to establish is is that the

13 commander had the actual ability to control his troops and

14 because of that, he had the practical ability to prevent the

15 activity or punish it. Am I making myself clear?

16 As I read the case law on effective control, it means

17 the commander had actual ability over his troops and because he

18 had that actual ability, you presume he has the capability if

19 he wants to to go out and investigate, to go out and identify

20 the perpetrators and punish the perpetrators. However, in line

21 six we say "effective control means the defendant military

22 commander had the actual ability to prevent the torture or to

23 punish the persons accused of committing the torture".

24 The case law talks about actual ability to control the

25 troops and because of that you then infer he has the practical

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1 ability to do those very steps if he wishes to exercise that

2 ability.

3 Maybe that is not significant. As I look at it, that

4 was a thought I had.

5 MS. VAN SCHAACK: I guess I don't see the backwardness

6 that you are concerned about. My understanding the idea of

7 effective control is very much the fact that you can prevent it

8 or you can punish it.

9 THE COURT: If you are happy with the formulation that

10 is there, I would like to leave it because we have spent so

11 much time and you have prepared to go forward. The only

12 difference, if I understand, that we have is this question of

13 whether we should change the word "actual" to "practical".

14 I am inclined to leave actual because it is the phrase

15 and word consistently repeated in the 11th Circuit's opinion.

16 Can everybody live with that without the plaintiff

17 giving up its right on the objection to the word practical, or

18 actual versus practical?

19 MR. KLAUS: Yes.

20 MS. VAN SCHAACK: I think I understand the changes that

21 have been made.

22 THE COURT: Can I help you by giving you-- I have a

23 copy of what that page looked like before. I thought we were

24 going to have it in bold, and I think we just had a

25 misunderstanding. You have been very good about giving that to

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1 me that way to help me focus on any changes.

2 MR. KLAUS: We are looking at draft number five or

3 draft number six?

4 THE COURT: When Ms. Van Schaack and her colleagues are

5 finished with it, I would ask her to give it to you as well.

6 MR. KLAUS: I have it.

7 MS. VAN SCHAACK: Thank you, your Honor, I see the

8 changes that were made, with the exception of the term,

9 breaking up of the sentence evens works better.

10 MR. KLAUS: I agree with the changes, your Honor.

11 THE COURT: Okay.

12 MR. KLAUS: Especially the word "actual".

13 THE COURT: Let me double check to make sure those are

14 the only changes.

15 Again, stylistic, remember on the top of every one of

16 these headings, we tried to relate it back to the element.

17 With failure to punish, we added element four so the jury

18 understands that is what it relates to.

19 Okay.

20 MS. VAN SCHAACK: Yes.

21 THE COURT: What I thought I would do, again to try to

22 not interrupt people as best we can was to see if we can delay

23 lunch until about one. I think that would give everybody a

24 little more time, and, again, if Mr. Klaus has not finished at

25 one, we would simply stop for the break and come back and

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1 finish it up after the break.

2 That is okay with everybody?