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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 19, 2002

6 ) 3:55 p.m.

JOSE GUILLERMO GARCIA and )

7 CARLOS EUGENIO VIDES CASANOVA, )

)

8 Defendants. )

)

9 --------------------------------------x

VOLUME 15

11 TRANSCRIPT OF JURY QUESTIONS

BEFORE THE HONORABLE DANIEL T.K. HURLEY

12 and a jury

14 APPEARANCES:

15 For the Plaintiffs: JAMES GREEN, ESQ.

PETER STERN, ESQ.

16 BETH VanSCHAACK, ESQ.

19 For the Defendants: KURT KLAUS, ESQ.

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

United States Courthouse

25 West Palm Beach, FL 33401

Pauline A. Stipes

Official Federal Reporter

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1 THE COURT: Ladies and gentlemen, we have a question

2 from the jury in the trial matter. I wonder if I could talk to

3 the lawyers in that case.

4 THE COURT: Mr. Klaus, are generals Garcia and Casanova

5 here?

6 MR. KLAUS: No.

7 THE COURT: Is it all right to proceed in their

8 absence?

9 MR. KLAUS: Yes.

10 THE COURT: The parties are present. Dr. Romagoza and

11 Ms. Gonzalez, is it all right to proceed in Professor

12 Mauricio's absence?

13 MR. GREEN: Yes.

14 THE COURT: We have a five part question from the jury,

15 some of which we can handle right away. There is one I want to

16 put before you, as well, and get your advice on how to respond

17 to this.

18 The first question is:

19 " Regarding the Legion of Merit awards, may a juror

20 who has personal knowledge of similar awards advise the jury as

21 to his or her knowledge and opinion of the value and weight to

22 place on the award? "

23 Why don't we talk about that for a moment?

24 We tell jurors that they can use their common

25 experience and judgment, but we also tell the jurors that they

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1 need to limit themselves to the evidence.

2 It would seem to me we could say to the jury that they

3 ought to limit themselves to the evidence presented, but they

4 are free to use their own opinions regarding the weight of that

5 evidence and the interpretation of that evidence.

6 What do you think about that kind of an approach to

7 it, and let me tell you what I am thinking about.

8 If somebody says, you know, look, these are awards,

9 and the language they stick in them is all the same. It is

10 flowery language. It is in the nature of the award. I think

11 the jury should be able to say that as opposed to saying this

12 isn't an effort to write a history, and, for instance, one of

13 the reasons that I let the awards in, as I said at sidebar,

14 there is a discrepancy between the parties about the nature and

15 perhaps the magnitude of the Civil War. One side would suggest

16 that it was a small armed guerilla group which became much

17 larger because of the role of the military in its repressive

18 actions. The other side has suggested that this was a full

19 scale communist insurgency that -- because of which the

20 country, literally, was tittering on the brink and could have

21 gone one way or the other.

22 You know, there are different views about that.

23 Now, I certainly think that the jury looking at

24 language, and maybe the similarity in the language, and so on,

25 should be able to express its views in that regard, but I would

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1 be concerned about somebody -- I have no idea what they would

2 bring into this from some other source that you don't know

3 about.

4 How would you approach this? I think the normal

5 approach that we tell jurors is that we limit ourselves to the

6 evidence of what has been presented but they can use their own

7 common sense in interpreting the evidence.

8 Is that walking kind of an ambiguous line but

9 acceptable line or what?

10 MR. KLAUS: I think they can -- they have to rely on

11 the evidence and use their own common sense and their own life

12 experience and they are free to express any opinions they want

13 that they have garnered from their life experience, the case

14 has to be decided on the evidence. The way the question is

15 worded sounds like someone is holding himself forward as an

16 expert on Legion of Merit awards.

17 THE COURT: Someone may have been in the Army and said

18 I have seen 50 of these. They pass these things out left and

19 right, they mean nothing; or, someone may say the opposite,

20 this is significant when it comes from the Secretary of Defense

21 and personally signed, so on, so forth, this is not the run --

22 I don't know what they are going to say.

23 I think the guiding principle should be that they have

24 to limit themselves to the evidence, although they are free to

25 use their common sense in interpreting the evidence.

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1 MR. KLAUS: You want to say life experience or just

2 common sense?

3 THE COURT: I don't know. What is the plaintiff's

4 view? How would you respond to that?

5 MR. GREEN: First, we contend that they are irrelevant

6 and not admitted and perhaps they should be stricken now.

7 THE COURT: Right, but that is not helpful now.

8 MR. GREEN: I think they should be advised that jurors

9 are not witnesses and jurors cannot provide evidence.

10 THE COURT: That is an interesting approach to say

11 that --

12 MR. KLAUS: I think that is a necessary approach.

13 THE COURT: How about if we wedded those two things

14 together and said the principle that has to be applied here is

15 that the jury must limit its decision to the evidence, although

16 the jury is free to use their own common sense in interpreting

17 the evidence, but we must remind you that jurors are not

18 witnesses.

19 What was the second part you have?

20 (Thereupon, the portion of the hearing referred to was

21 read by the Reporter as above-recorded.)

22 THE COURT: I think those are accurate principles.

23 MR. GREEN: However, you can evaluate the evidence with

24 evidence and personal experience.

25 THE COURT: It is personal experience that we open the

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1 door here.

2 MR. KLAUS: I would include the first phrase, so well

3 put.

4 THE COURT: Let me take a look at the jury instruction

5 of what we said. There is something right in there on that.

6 This is the phrase from the jury instructions: "You

7 may make deductions and reach conclusions which reason and

8 common sense lead you to make".

9 What if we said that jurors are not witnesses, nor may

10 jurors provide evidence. You must limit your decision making

11 to the evidence presented in the courtroom, however, you are

12 free to evaluate that evidence and make deductions and reach

13 conclusions which reason and common sense lead you to make.

14 Could both sides live with that response?

15 MR. KLAUS: Yes.

16 MR. STERN: Could we have a moment?

17 THE COURT: Surely, yes, of course.

18 MR. GREEN: That is fine, Your Honor.

19 THE COURT: Let me go over this verbiage with you again

20 before I write it down.

21 " Jurors are not witnesses and may not provide

22 evidence. The jury must limit its decision making to the

23 evidence presented in the courtroom, however, that evidence may

24 be evaluated -- however, in evaluating that evidence you may

25 make deductions and reach conclusions which reason and common

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1 sense lead you to make. "

2 That is okay?

3 MR. KLAUS: Yes.

4 MR. GREEN: Yes, Your Honor.

5 THE COURT: Okay. Second question:

6 " Is there a list of exhibits and descriptions that we

7 may have? "

8 I think the answer is no. I am not aware of any

9 descriptions. We have the exhibit lists, but I don't know how

10 accurate they are in terms of descriptions. I never send them

11 back.

12 MR. STERN: In the binder, we did include an index, but

13 that is merely, you know, cable from so and so to so and so.

14 That does not cover every exhibit. Frankly, I think it is more

15 than they normally would have.

16 THE COURT: I do, too.

17 Would it be appropriate to say there is an index in

18 the binder, but we do not have a larger index?

19 MR. KLAUS: That is fine.

20 MR. STERN: The number of exhibits is not -- I am sure

21 it seems daunting to them, but it is not that extensive.

22 THE COURT: Let me read the next question.

23 It says:

24 " Is it incumbent upon us to read all of the exhibits

25 in full, or acceptable refer to parts as we may recall as

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1 necessary? "

2 I would suggest that the answer to that should simply

3 be you may conduct your deliberations as you see fit in light

4 of the oath you have taken.

5 MR. GREEN: Yes.

6 MR. KLAUS: That is fine.

7 THE COURT: Next question:

8 " Are we permitted to review depositions both written

9 and video and have testimony reread to us if we ask for it? "

10 MR. GREEN: I believe the answer to that is, the video

11 depositions are in evidence and they can review those. As to

12 the depositions that were used for impeachment purposes, I

13 believe that those are not considered substantive evidence.

14 THE COURT: Help me out on the video, did we do that?

15 Did we edit it?

16 MR. GREEN: We designated the portions we wanted and

17 played those for the jury.

18 THE COURT: What we have, if we have a -- do we have

19 like a regular video tape that has a whole video and we need to

20 edit it, or is the video in edited form?

21 MR. GREEN: It is all edited.

22 THE COURT: The video is in and can be seen.

23 MR. GREEN: In its entirety.

24 THE COURT: What is in its entirety is everything that

25 is shown? Extraneous material is not on the tape?

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1 MR. GREEN: Correct.

2 THE COURT: Good, that is great.

3 MR. GREEN: To my knowledge, the only other depositions

4 that were referred to were used for impeachment purposes only

5 and were not introduced as substantive evidence.

6 THE COURT: I am trying to think, did anyone read

7 anyone's deposition?

8 MR. GREEN: No.

9 MR. STERN: Snippets were read.

10 THE COURT: Yes. How about having testimony reread if

11 we ask for it?

12 MR. GREEN: Yes. Depends on the testimony, but, yes.

13 THE COURT: Here is the problem. We are being asked a

14 question in advance of the issue.

15 If somebody came in and said we would like the

16 testimony of so and so reread, and it is two or three days of

17 testimony, that is one thing. If they come in and say we are

18 having a problem with this issue in that witness' testimony,

19 can you get it? We would get the direct, cross, and redirect

20 on that point.

21 Just trying to think, because I don't want to

22 foreclose anything here.

23 How would it be if we said videos are in evidence and

24 you can see those?

25 MR. GREEN: And we can provide you with a television

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1 and VCR.

2 THE COURT: How about if we said the videos are in

3 evidence and you can see those. We would rather wait on the

4 other matters and if you have specific questions or requests we

5 would respond to them at that time.

6 Is that an acceptable way?

7 MR. GREEN: That would be acceptable. Another way of

8 saying the latter part of what you just said is trial testimony

9 can be read back, however -- I am trying to think of a way to

10 request that the jury specify which part or portions of the

11 testimony they would like read back so as to guide the court in

12 making a determination as to whether we, in fact, allow a read

13 back.

14 My experience with juries, when they ask for two days

15 of testimony to be read back you say, no, rely on your

16 recollection, when you ask them to focus on particular parts of

17 the deposition, that will enable the parties to say, let's read

18 back pages 28 to 34, and if the other side wants read back

19 pages 60 to 68, we can, hopefully, narrow the scope. If there

20 is a way to ask them --

21 THE COURT: How about if we say this: The videos are

22 in evidence and may be viewed, and we would rather wait to

23 respond to the latter part of your question until we have

24 received -- if you find it necessary, and how specific your

25 request is.

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1 MR. GREEN: Or we ask that you narrow and make

2 specific -- I don't know if Your Honor finds itself helpful

3 when the jury says we would like to hear the testimony of agent

4 so and so concerning the lighting, or the --

5 THE COURT: Right, right, that is it. You are on

6 point and I normally allow it if it is specific.

7 I know Judge Ryskamp, I think, has a practice of not

8 allowing it. I want to do anything we can to help the jury.

9 If they are telling us they need something and we can get it to

10 them, I would like to do it.

11 MR. GREEN: Maybe you could say there are times when

12 the court will permit a read back of testimony -- of

13 specific -- of testimony depending upon length and specificity

14 of the request.

15 THE COURT: That is a good way to say it, I think.

16 Can you live with that, Mr. Klaus?

17 MR. KLAUS: Yes.

18 THE COURT: Next question:

19 " May we have all display boards and an easel? "

20 I think the display boards are -- I think the display

21 boards refer to the things that were put up, I think we need to

22 answer no to that since they were not in evidence. Anybody

23 feel differently about that?

24 MR. GREEN: With the exception of the goose stepping, I

25 believe most of them are summaries or are in evidence in other

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1 exhibits.

2 I think it is discretionary with the court to allow

3 them. I am not going to request the goose stepping.

4 THE COURT: Now, the map, I wouldn't have a problem

5 sending the map back, that may be of help to them, but I

6 normally don't allow that. The jury room is a relatively small

7 room and next thing you know people blow up all kinds of things

8 that you think are favorable to their side and it becomes very,

9 very difficult.

10 I am inclined to say that there are demonstrative