2551

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 22, 2002

6 ) 9:30 a.m.

JOSE GUILLERMO GARCIA and )

7 CARLOS EUGINIO VIDES CASANOVA, )

)

8 Defendants. )

)

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

VOLUME 15

11 TRANSCRIPT OF JURY QUESTION

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.

For the Defendants: KURT KLAUS, ESQ.

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

24 United States Courthouse

West Palm Beach, FL 33401

Pauline A. Stipes

Official Federal Reporter

2552

1 THE COURT: Good morning.

2 MR. KLAUS: Good morning.

3 MR. STERN: Good morning.

4 MS. VAN SCHAACK: Good morning.

5 THE COURT: I think when we stopped on Friday one of

6 the questions I posed to counsel was whether they had an

7 objection to the instructions of law as given by the court and

8 the plaintiffs asked for the ability to wait on their response

9 to that question until they had the opportunity to review the

10 written instruction.

11 Let me turn now and post that question again, if I

12 might, to counsel for the plaintiff.

13 Is there objection to the instruction of law,

14 supplemental instruction of law given to the jury?

15 MR. STERN: Your Honor, as the court is aware, we have

16 submitted some briefing today on the two questions that were --

17 two of the three questions that were received from the jury on

18 Friday and our position is that we would object to the

19 instructions, further instructions, given by the court to the

20 extent that they do not include the supplemental language we

21 have submitted in our papers this morning.

22 In other words, the language given by the court, while

23 we believe was helpful, it does not go far enough in addressing

24 what we believe is the serious confusion the jury is suffering

25 from at the moment.

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1 THE COURT: All right. And I think defense has already

2 responded to that.

3 MR. KLAUS: No objection.

4 THE COURT: Okay. I wanted to take a moment, if I

5 might, because I think this -- I would hope that this was

6 implicit in my rulings, but I think perhaps it would be

7 appropriate to make it explicit.

8 One of the questions I have looked at again over the

9 weekend was the plaintiff's request, and I think it has been

10 made at least twice in the case, that the court instruct the

11 jury that there is a presumption that a de jure commander, that

12 is, someone who has military command by virtue of formal rank

13 or formal appointment, that there is a presumption that they

14 have effective control and that the court should instruct the

15 jury as to the existence of the presumption and indicate that

16 the presumption exists unless it is rebutted by evidence that

17 owing to the circumstances at the time, the presumption of

18 effective control has been rebutted.

19 I have twice denied the plaintiffs' request in that

20 regard and I do so again and reaffirm my prior ruling.

21 In the United States Court of Appeals for the 11th

22 Circuit's opinion in the case of Ford versus Garcia issued

23 April 30, 2002, the court quoted extensively from opinions

24 issued by both the trial and the appeals chambers from the

25 International Criminal Tribunal for the former Yugoslavia.

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1 I think it is significant that those proceedings do

2 not involve jury trials, and it is true that in some of the

3 text of the opinions issued by both the trial chamber and the

4 appeals chamber, the word -- the phrase or the word, the term

5 presumption has been used. In one opinion, for example, and it

6 may be the case of Prosecutor versus Delic, D-e-l-i-c, the text

7 reads: " In general, the possession of de jure power itself may

8 not suffice for the finding of command responsibility if it

9 does not manifest in effective control. Although a court may

10 presume that possession of such power prima facie results in

11 effective control unless proof to the contrary is produced. "

12 Using that quotation and others as a basis, the 11th

13 Circuit discussed the concept of the presumption as that

14 concept has been used by the 11th Circuit in its analysis of

15 Title 7 and other discrimination cases; that is, the proof of

16 certain facts creates a prima facie case and shifts the burden

17 of production to the other side.

18 The classic example in a Title 7 or discrimination

19 case is by showing the various requirements that are necessary,

20 the defendant employer is usually required to come in with

21 evidence of a legitimate nondiscriminatory reason, and if that

22 is done, the presumption, if you will, vanishes, and the burden

23 of proving discrimination remains with the plaintiff and as the

24 court explained in its opinion in Dudley versus Walmart Stores

25 at 166 F.3rd, 1317, in that type of a situation, it is not

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1 appropriate to instruct the jury about shifting burdens of

2 production. It is too confusing.

3 Now, I think everybody understand an appellate court

4 responds to the issues that have been placed before it, and in

5 the Ford case, the argument that was being placed before the

6 court was that lack of effective control constituted an

7 affirmative defense and that by placing the obligation on the

8 plaintiffs to prove effective control, there was a

9 misallocation of burdens of persuasion, and the court evaluated

10 that and again by looking initially at the concept of command

11 responsibility as it had developed in our own juris prudence,

12 the Supreme Court's opinion of In Re Yamashita and other cases,

13 and then looking to the development of this Doctrine of Command

14 Responsibility as in more recent times as applied by the

15 International Criminal Tribunals in Yugoslavia and Rwanda, all

16 of those tribunals, it is the plaintiff's burden to prove

17 effective control.

18 Interestingly enough, all of these tribunals, of

19 course, are interpreting statutes that have been enacted

20 whether it be the amendatory protocol to the Geneva Convention

21 or the individual statutes passed by the General Assembly of

22 the United Nations that's discussed and have -- at least, have

23 within them the concept of command responsibility.

24 Now, having looked at this, and what I was about to

25 say was, clearly, if there was a presumption in a sense of a

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1 presumption that shifted burdens of proof and under the

2 Evidence Code, Rule 301, if there was some type of legal

3 presumption as that term -- for instance, presumption of

4 innocence, or some of the other presumptions we regularly

5 instruct juries upon, it seems to me the 11th Circuit would

6 have clearly indicated that existed, and I simply can't find

7 that anywhere.

8 There is no statute creating that presumption. For

9 instance, when you look at the enactments of the United Nations

10 General Assembly, and I've tried to look at our own military

11 Code of Justice, and I simply can't find that presumption. So,

12 it seems to me that as I've indicated earlier, one has to

13 understand the concept of a presumption as the 11th Circuit has

14 analyzed it, and, that is, that when you do have a military

15 commander with de jure authority, there is, if you will, this

16 presumption of effective control with respect to a prima facie

17 case, and when a defendant comes in with competent evidence to

18 suggest that owing to the circumstances at the time the

19 defendant/military commander did not have effective control

20 because of a breakdown in the chain of command, because of the

21 existence of renegade units who were involved in death squads

22 because of other political interference, oligarchical private

23 interference coming in and co-opting members of the military, I

24 think that is enough to have the presumption vanish and place

25 upon the plaintiff the obligation to establish effective

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1 control.

2 Now, my point is, I want it clear I have made a legal

3 finding that the defendants have come forth with sufficient

4 evidence to establish lack of control so that the normal

5 presumption regarding prima facie case has now vanished and it

6 becomes a jury question.

7 It is for that reason that I, number one, reaffirming

8 my earlier rulings not to instruct as to the existence of a

9 presumption. I think that would be in contravention of the

10 11th Circuit's opinion in Dudley versus Walmart. But I did

11 want to make an explicit finding that I have concluded, and I

12 do find that the defendants have come forth with adequate

13 evidence establishing a lack of effective control so that it

14 makes it a jury question, and in this overall context, the

15 responsibility to establish that is on the plaintiffs by a

16 preponderance of the evidence.

17 Now, let me turn to the requested jury instructions.

18 In thinking and in reviewing this question about

19 whether the court should, in fact, give a supplemental

20 instruction indicating existence of a presumption, and so on, I

21 have had occasion to go back and look at some of the base

22 documents that we've talked about.

23 And I wanted to make sure that the record reflected

24 I've looked at an article entitled Humanitarian Law, Uncertain

25 Contours of Command Responsibility by Matthew Lipman found in

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1 the Tulsa Journal of Comparative and International Law, cited

2 as Nine Tulsa Journal Comparative International Law, Volume

3 One.

4 I've also reviewed an article by Timothy Wong-Sung,

5 W-o-n-g dash S-u-n-g, and Jonathan Kung, K-u-n-g, appeared in

6 the Harvard Winter Law Journal 1997, Criminal Liability for the

7 Action of Subordinates, Doctrine of Command Responsibility and

8 its Analogs in United States Law. That is cited at 38 Harvard

9 International Law Journal, 272, 38 Harvard International Law

10 Journal, 272.

11 And, finally, an article by Ann B. Ching, C-h-i-n-g.

12 This is a comment entitled Evolution of the Command

13 Responsibility Doctrine in Light of the Celebici,

14 C-e-l-e-b-i-c-i decision International Criminal Tribunal for

15 the Former Yugoslavia. This appears in the North Carolina

16 Journal of the International Law Commercial Regulation in Fall

17 1999, cited 25 North Carolina Journal, International Commercial

18 Regulation 167.

19 All of these articles have reviewed the development of

20 this doctrine, and as the lawyers argue to the jury and

21 suggested that the doctrines have really been applied most

22 recently both in the Tokyo trials and in the Nuremberg trials,

23 and now we have seen a new wave by the International Criminal

24 Tribunals for the former Yugoslavia and Rwanda.

25 But they -- these doctrines have looked at concept of

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1 holding the military commander responsible for the actions of

2 the subordinate and have applied the statutory requirement. I

3 say statutory because it is found in both of the statutes

4 creating the tribunals for Rwanda and the former Yugoslavia,

5 and it is also to some degree found in -- although the language

6 is just ever so slightly different, in the amendatory language

7 Protocol One to the Geneva Convention of 1949. And what this

8 talks about is the concept of knowing or should have known that

9 the acts either were about to or had taken place and taking

10 reasonable measures.

11 The language between the protocol and the statutory

12 language creating tribunals for Rwanda and former Yugoslavia

13 indicate that this doctrine operates on agreed upon principles,

14 first, that a superior can be liable for admission, that is,

15 failing to act within his duty to control subordinate; and

16 second, superior is only liable if he knew or should have known

17 that the subordinate committed or was about to commit a

18 violation of humanitarian law.

19 Now, with that as background, I've looked at what the

20 plaintiffs have asked for in this case, that is, for a proposed

21 response to the jury's questions, and I believe that the

22 plaintiff's request is erroneous.

23 In the Court's instruction on command responsibility,

24 and I am talking about the original instruction, we talked

25 about the dates when each of the plaintiffs testified as to

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1 their torture, for example, Dr. Romagoza is December 12, 1980

2 and thereafter, Ms. Gonzalez 1979, and thereafter, and

3 Professor Mauricio June 13, 1983, and thereafter.

4 In thinking about this, let me take Dr. Romagoza, for

5 example.

6 What the plaintiffs have to establish is that as of

7 December 12, 1980, looking at that time frame, the plaintiff

8 has to establish that he was tortured, that the torturers were

9 members of the military and security forces, or somebody acting

10 in concert with them, that a superior subordinate relationship

11 existed between the particular defendant being sued, that is,

12 General Garcia and General Vides, and the people who committed

13 the torture.

14 Now, that means that the plaintiffs have to prove that

15 in this time frame of December 12, 1980, that the defendant

16 generals, general or generals had effective control over those

17 people who were committing the torture, and I've defined that

18 as the material or practicability to prevent or punish.

19 Now, the plaintiffs have said as long as you establish

20 that the general has this power -- that the defendant/military

21 commander has this power, generally, that is enough, and I

22 don't think that is accurate. I think you have to prove that

23 the relationship that existed between the torturers and the

24 defendant, that the military commander had, as a matter of

25 fact, had he chosen to exercise it, he had the power to punish

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1 those people. That was within his ambit of authority, and I

2 think that anything that would be done to defuse that, that is,

3 anything that is done to lessen that, impermissibly reduces

4 what has to be shown to hold a military commander liable.

5 I think that is particularly demonstrated in the

6 Harvard article that I've talked about. And in the Nuremberg

7 trials there was one particular general, I think Van Leeb or

8 Von Leeb, and dealt with military political officers, and

9 civilians, and the court grappled with what he should or should

10 not be held responsible for. They held him responsible for

11 some things and not others, but this concept of establishing

12 ability to control the people who are doing the act is

13 critical, and I don't think we can dilute that by saying you

14 have to show he has general authority.

15 Now, clearly, he doesn't have to know, that is, he,

16 the military commander doesn't need to know their names -- or

17 the plaintiff doesn't have to show he knew their names, so on,

18 so forth, but I think, as a matter of fact, the plaintiffs must

19 show that the military commander had that type authority over

20 the people who were doing the torturing.

21 Now, the third requirement is, of course, that he

22 should have known that his subordinates were engaging in this

23 kind of activity, and I suppose that goes to and can be

24 established by what has happened before then.

25 You know that the reports of atrocities by the

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1 military have been abundant and the complaints alleging

2 atrocities by subordinates under the commander's authority had

3 been abundant, and then showing that he didn't do anything

4 about that, and we've talked before about essentially giving

5 the green light.

6 So, for all of these reasons, I am going to adhere to

7 the jury instructions that were given. I think they are

8 correct and I am going to wait and see if the jury has

9 additional questions for us.