1301

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 9, 2002

8 JOSE GUILLERMO GARCIA, an )

individual, CARLOS EUGENIO VIDES)

9 CASANOVA, an individual, and ) VOLUME 8

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

1302

1 THE COURT: Please be seated, ladies and

2 gentlemen.

3 Let me just take a moment, if I might, because

4 there is one thing I said I wanted to put on the record

5 out of the presence of the jury and I didn't get the

6 opportunity to do that last night. It dealt with

7 Professor Karl's disclosure of the underlying basis for

8 some of her opinions.

9 And as we discussed yesterday, Rule 703 as

10 amended prohibits expert testimony from bringing out what

11 would be inadmissible foundational information relied upon

12 by an expert. However, the rule is quite explicit that

13 facts or data that are otherwise inadmissible shall not be

14 disclosed to the jury by the proponent of the opinion or

15 inference unless The Court determines that their probative

16 value in assisting the jury to evaluate the expert's

17 opinion substantially outweighs their prejudicial effect.

18 I want the record to reflect in overruling the

19 Defendant's objection, it was my ruling, and I now

20 reaffirm the ruling, that the disclosure of the underlying

21 information and its probative value did indeed and will

22 indeed assist the jury to evaluate the expert's opinion

23 and it substantially outweighed its prejudicial effect.

24 In making this judgment, first, I determined

25 the -- and I looked at whether the foundational

1303

1 information was itself admissible. As I indicated before,

2 in large part Professor Karl has looked at and relied upon

3 State Department cables, many of which have been admitted

4 into evidence without objection.

5 So that is an indication of someone looking at

6 information that is itself admissible into evidence, and

7 indeed has in fact been admitted, but we all realize in

8 addition to that experts can look at data that themselves

9 would not be admissible, but as long as they are the type

10 of data which are normally relied upon by experts in that

11 field, and are reliable, they may be relied upon by the

12 expert as a basis for the opinion.

13 Now, as I mentioned yesterday, when talking about

14 the meeting between the Secretary of State or the meeting

15 between the Vice President and General Vides, the witness

16 indicated that she had access to Government documents that

17 were generated at that time cataloging the dialogue and

18 discussion that had taken place.

19 I think a strong argument can be made that those

20 types of documents are themselves admissible under 803.8.

21 And in addition to that, if The Court needs to make that

22 additional finding, it is my conclusion that their

23 probative value in assisting the jury to evaluate the

24 expert's opinion substantially outweighs any prejudicial

25 effect.

1304

1 But I wanted to make that clear on the record. I

2 didn't think it was appropriate to say that in front of

3 the jury, but I do think the rule requires that The Court

4 make that finding.

5 Now, I passed out what I marked as The Court's

6 second draft on the command responsibility instruction.

7 Let me tell you what I did so this will not confuse you.

8 Yesterday we began to discuss the fact that if

9 the Plaintiffs proceed under both statutes, that there are

10 some additional elements that obviously are different and

11 broader than torture. And what I did was omit that,

12 because I thought that at a later time, depending on the

13 Plaintiffs' decisions in this regard, it is going to be

14 very easy to go back and add on the additional language.

15 But I wanted to put the concept in front of you,

16 that is, listing the elements as we discussed them

17 yesterday, there are some stylistic changes, but simply to

18 have a draft and go from there.

19 I have a copy of the defense proposed

20 instruction, we may be crossing wires here, because we may

21 be proceeding along in the same direction. But if you

22 look at these and when we meet this evening we can again

23 go back and talk about them.

24 MS. VanSCHAACK: We have a draft as well that we

25 will circulate.

1305

1 THE COURT: Wonderful.

2 Mr. Marshal, is our jury present?

3 Would you bring in the jury, please?

4 I wanted to make a suggestion, too. I think it

5 would be helpful if we start referring to and labeling

6 these documents in a special way, because at some point it

7 is going to be necessary, or it may later become necessary

8 for the appellate court to go back and be able to look at

9 the document we were talking about, whether it is

10 Plaintiffs' First Amendment, court's first, second,

11 Defendants' first, second, and so on.

12 I suggest we keep it as simple as possible, but I

13 really think it is important that the original document

14 you file be labeled that way, even if you go back and

15 write on it, so that should anyone else be trying to go

16 back and track whatever progress is made or not made.

17 They will be able to see the documents we were talking

18 about. It gets very difficult if you don't do that.

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

20 THE COURT: Good morning, ladies and gentlemen.

21 Please be seated.

22 When we stopped yesterday, we were in direct

23 examination of Professor Karl, so let me turn back to

24 Mr. Stern and allow the professor to retake the witness

25 stand.

1306

1 By the way, Mr. Marshal, I notice the microphone

2 is sinking lower and lower.

3 THE WITNESS: We do have a problem.

4 THE COURT: Okay, good.

5 Mr. Stern when you are ready, you may proceed.

6 DIRECT EXAMINATION (RESUMED)

7 BY MR. STERN:

8 Q. Professor Karl, shortly before we concluded yesterday,

9 I asked your definition as a scholar in the area of

10 politics and military, your definition of the word

11 impunity. Would you please repeat that for us today?

12 A. Yes, impunity simply means that an organization or

13 entity, because of its privileged position, exempts itself

14 from the law, so it means above the law.

15 MR. STERN: Could I please have slide number 13

16 on the screen, which is an excerpt from the deposition of

17 Ambassador Edwin Corr?

18 MR. KLAUS: Give us the page number.

19 MR. STERN: Page 91.

20 BY MR. STERN:

21 Q. Professor Karl, I will read this.

22 "There was this brotherhood of military officers, it

23 was really like these guys kind of went to the military

24 high school, to the academy and they worked in the same

25 firm for the next 20 years. They all knew each other very,

1307

1 very well.

2 "Did that mean when abuses came up, they were willing

3 to cover for each other?

4 "Certainly, in some cases that was absolutely so.

5 "Did they do that in part because they were concerned

6 that they would be implicated for their own abuses if they

7 pointed the finger at others?

8 "I think that they knew if they did point the finger

9 at others, that their other officers would view that --

10 they would lose favor with the other officer. There was an

11 unwritten code no different than juveniles that you don't

12 rat on people.

13 "And that inhibited the reporting of human rights

14 abuses in the military, didn't it?

15 "Yeah."

16 Professor Karl, is Ambassador Corr's testimony

17 consistent with your understanding of impunity?

18 A. Yes.

19 Q. And did that impunity extend to the military high

20 command?

21 A. Yes.

22 Q. Including Minister of Defense?

23 A. Yes.

24 Q. And Director of the National Guard?

25 A. Yes.

1308

1 Q. Professor Karl, are you familiar from your studies of

2 human rights abuse with the notion of a code of silence?

3 A. Yes, I am.

4 Q. Could you tell us what that means to you as a scholar,

5 please?

6 A. Code of silence is a term that we often use when an

7 organization, often used in -- even in domestic police

8 cases in the United States, in looking at any organization

9 that protects itself and its members, it is used in

10 thinking about the police sometimes, military, the mafia,

11 the fraternity, any group that might actually operate to

12 protect each other by maintaining a code of silence.

13 Q. In your view does that phrase have some application to

14 the Salvadoran military in 1979 through 1983 time period?

15 A. Yes, it does.

16 Q. If I may approach, Professor Karl, I am going to hand

17 you a copy of Plaintiffs' Exhibit 557, which is in

18 evidence.

19 Professor Karl, can you identify Exhibit 557 for us?

20 A. Yes. This is what is called a post reporting plan of

21 Ambassador Edwin Corr. He was Ambassador from 1985 to

22 1988. Every year at the end of the year an Ambassador

23 writes a document that is a summation of the main issues

24 that this Ambassador sees at the end of the year. This is

25 the post reporting plan of that Ambassador.

1309

1 Q. What is the date on the document?

2 A. Sorry, I don't see it.

3 Q. If you look above the list of addresses.

4 A. Still don't see it. June, 1988. I can't read the

5 </