893

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 3, 2002

8 JOSE GUILLERMO GARCIA, an )

individual, CARLOS EUGENIO VIDES)

9 CASANOVA, an individual, and ) VOLUME 6

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

894

1 THE COURT: Good morning, everybody. Are we all

2 set and ready to proceed.

3 Let me double check.

4 Mr. Marshal, madam courtroom deputy, would you

5 bring in the jury?

6 Is Professor Garcia here this morning?

7 MR. GREEN: Yes, Your Honor.

8 THE COURT: I wonder if we could ask him to come

9 forward.

10 (Thereupon, the jury returned to the courtroom.)

11 THE COURT: Mr. Green, would you like the last

12 couple of questions?

13 MR. GREEN: What I thought I would do is a quick

14 repeat.

15 THE COURT: All right.

16 MR. GREEN: Also, the translation on Article 375,

17 I must take some responsibility for it, my Spanish is not

18 what it used to be, and I asked for a professional

19 interpretation, and we have that blown up. I would like

20 to go there at the beginning.

21 THE COURT: Good. Good.

22 (Thereupon, the jury returned to the courtroom.)

23 THE COURT: Good morning, ladies and gentlemen.

24 We are happy to have all of the members of the jury

25 present. I am glad the baby is feeling well.

895

1 When we stopped yesterday afternoon, as you know,

2 we were in direct examination of Professor Garcia, so I am

3 going to turn back to Mr. Green and allow him to continue.

4 Mr. Green.

5 BY MR. GREEN:

6 Q. Good morning, Professor Garcia.

7 A. Good morning.

8 Q. Before we recessed yesterday afternoon, you testified

9 about the Christian Democrat letter and General Garcia's

10 reaction to it?

11 A. Yes.

12 Q. In response, you read Army regulation -- or Army

13 Ordinance Article Number 375. I have asked that it be

14 blown up for the benefit of the jury.

15 As a military command structure expert, could you

16 summarize what Article 375 means to you?

17 A. This is the result of experience. You see, this

18 article is common to all Army ordinances around the world,

19 this is nothing unusual.

20 And it is done mainly so a superior is unable to hide

21 his lack of efficacy as well as lack of action.

22 Q. When you say efficacy, you mean lack of ability to

23 control?

24 A. Of course. Or his cowardess on certain occasions.

25 Shielding himself behind actions taken by his subordinates

896

1 that would prevent him from exercising effective command.

2 That is why this article recommends to whomsoever has

3 command over troops, that he must always be at the head of

4 his subordinates, he must be the first to accept all risks,

5 and he must have trained his subordinates and informed them

6 that they must comply with his orders instantly and without

7 complaint.

8 This is the essence of command.

9 Q. Professor Garcia, as a military command structure

10 expert, under Salvadoran Army regulations can a military

11 commander justify his failure to act because he is afraid

12 how his troops, his subordinates will react?

13 MR. KLAUS: Objection; calls for a legal

14 conclusion beyond his expertise.

15 THE COURT: I am going to overrule the objection.

16 I think the jury understands that the witness is

17 testifying within his area of expertise, and so I am going

18 to limit the answer to that, that is, to allow the witness

19 to give his opinion on these issues.

20 Now, of course, as I said before, ultimately it

21 is going to be for the jury to decide whether to accept

22 that opinion testimony, but I will allow this as an

23 opinion.

24 You may proceed.

25 MR. GREEN: May I repeat the question?

897

1 THE COURT: Yes.

2 BY MR. GREEN:

3 Q. Professor Garcia, as a military command structure

4 expert under Salvadoran Army regulations, can a military

5 commander justify his failure to act because he is afraid

6 of how his subordinates will react?

7 A. No. Absolutely not.

8 Q. Professor Garcia, as a military command expert under

9 Salvadoran Army regulations, can a military commander

10 justify his failure to act or failure to command because he

11 is afraid of political pressure from civilians?

12 MR. KLAUS: Objection; goes beyond the scope of

13 his expertise. Misleading.

14 THE COURT: Okay. I am going to overrule that

15 objection but let me come back to this again.

16 Ultimately in this case the jury is going to be

17 asked to determine whether the Plaintiffs have established

18 that one or both of the Defendants are liable. That is

19 bare responsibility for what the Plaintiffs say happened

20 to them.

21 The Plaintiffs are relying upon a doctrine, a

22 legal doctrine called the Doctrine of Command

23 Responsibility and I am going to talk to you in detail

24 about that later, but that Doctrine allows a commander to

25 be held liable for the acts of the subordinate officers if

898

1 the commander knows or should have known that the

2 subordinates are committing violations and the commander

3 doesn't do anything to investigate or punish the

4 subordinate officers who are engaging in those acts.

5 Now, ultimately the jury is going to have to look

6 at the law, that is, the law as explained by The Court, by

7 miss on what are the duties of an officer. You are

8 allowed to consider the testimony if you find it to be

9 credible and worthy of belief in making judgments about

10 whether an officer had the ability to do those things.

11 That is, had the ability to investigate, and so on, and

12 the ability to punish.

13 Those ultimately are factual questions that the

14 jury is going to have to decide. So I am going to

15 overrule the objections and allow counsel to go forward

16 understanding that ultimately the jury is going to have to

17 decide this case on whether there has been a violation of

18 the law of command responsibility, not a violation of the

19 Salvadoran military code.

20 Okay. You may proceed.

21 BY MR. GREEN:

22 Q. Professor Garcia, under Salvadoran Army regulations,

23 can a military commander justify his failure to act because

24 of political pressure from civilians?

25 A. It would have to be a commander who does not comply

899

1 with his duties before his own institution and his country.

2 That would be impossible.

3 Q. Professor Garcia, is a military commander's duty to

4 act independent of either fear of his own troops reaction

5 or fear of civilian political pressure?

6 A. I do not understand the sense of the question.

7 Q. Let me rephrase it.

8 Professor Garcia, is a military commander's duty to

9 act independent of either political pressure or fear of his

10 troops' reaction?

11 A. Absolutely. Hence, the famous principle of command

12 responsibility which is incorporated in the Nuremberg

13 accords, and Tokyo accords, and incorporated in all of the

14 military legislation all over the world.

15 Q. Professor Garcia, you testified earlier that Minister

16 of Defense Garcia failed to order an investigation of the

17 19 incidents listed in the Christian Democratic letter?

18 A. Yes.

19 Q. What else, if anything, should Minister of Defense

20 Garcia have done besides order an investigation?

21 A. First he has legal responsibilities as assigned by the

22 code of military justice which is the initiation of an

23 investigation.

24 In addition to that which are the obligations assigned

25 to him by the code of military justice, a commander faced

900

1 with such an incredible amount of allegations, he must call

2 to his headquarters the commanders of the regions where the

3 events took place, and investigate if they were aware of

4 the barbarous acts that were taking place within their

5 jurisdictions. Ask them if they had taken any measure to

6 initiate investigation at their level as it is legally

7 required.

8 Order them to call in at their own level all of their

9 subordinates, and to perform the corresponding

10 investigation face-to-face, because it was evident that

11 something was happening beyond not only my control but

12 beyond the control of all of the levels of command all the

13 way down to corporal, that the disciplinary system that I

14 was trying to impose had broken down, and that may not last

15 but one minute and if I have any dignity in my command, if

16 I cannot reimpose discipline on my troops, I should have --

17 if I could not have done that, I should have stepped down

18 from my command and allow a person with more capacity, more

19 character and more willing to comply with the law to take

20 over my position, because that is my duty before the Army,

21 the institution and to my country. And especially with my

22 own principles and my own conscience.

23 Q. Professor Garcia, did Minister of Defense Garcia have

24 the power to meet directly with the director of the

25 National Guard, Vides Casanova, concerning the 19

901

1 instances, some of which were involved with National Guard

2 that were specified in the Christian Democratic letter?

3 A. Yes.

4 Q. If the Minister of Defense had information from a