U N R E D A C T E D 246 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ------------------------------------------------------- ANA PATRICIA CHAVEZ, CECILIA ) SANTOS, JOSE FRANCISCO ) CALDERON, ERLINDA FRANCO, AND ) DANIEL ALVARADO, ) ) Plaintiffs, ) ) VS. ) NO. 03-2932-Ml/P ) ) NICOLAS CARRANZA, ) ) Defendant. ) ------------------------------------------------------- TRIAL PROCEEDINGS BEFORE THE HONORABLE JON PHIPPS MCCALLA, JUDGE NOVEMBER 1, 2005 VOLUME II BRENDA PARKER OFFICIAL REPORTER SUITE 942 FEDERAL BUILDING 167 NORTH MAIN STREET MEMPHIS, TENNESSEE 38103 247 A P P E A R A N C E S Appearing on behalf of the Plaintiffs: BASS BERRY & SIMS PLC 315 DEADERICK STREET, SUITE 2700 NASHVILLE, TENNESSEE 37238-3001 By: DAVID R. ESQUIVEL, ESQ. CAROLYN PATTY BLUM, ESQ. CENTER FOR JUSTICE & ACCOUNTABILITY 291 WEST 12TH STREET NEW YORK, NEW YORK 10014 MATTHEW J. EISENBRANDT, ESQ. CENTER FOR JUSTICE & ACCOUNTABILITY 870 MARKET STREET, SUITE 684 SAN FRANCISCO, CALIFORNIA 94102 Appearing on behalf of the Defendant: FARGARSON & BROOKE 65 UNION AVENUE 9TH FLOOR MEMPHIS, TENNESSEE 38103 By: ROBERT M. FARGARSON, ESQ. BRUCE BROOKE, ESQ. 248 W I T N E S S I N D E X WITNESS PAGE LINE ROBERT WHITE DIRECT EXAMINATION BY MR. ESQUIVEL: ...................... 309 6 CROSS EXAMINATION BY MR. BROOKE: ........................ 369 16 LUIS RAMERIZ DIRECT EXAMINATION BY MR. EISENBRANDT: ................... 426 8 249 E X H I B I T I N D E X EXHIBIT NUMBER PAGE LINE Exhibit Number 1 Telegram 321 7 Exhibit Number 2 Telegram 325 5 Exhibit Number 3 Telegram 331 9 Exhibit Number 4 Telegram 342 10 Exhibit Number 5 Telegram 353 16 Exhibit Number 6 Memo 357 25 Exhibit Number 7 Briefing Memo 362 14 250 1 TUESDAY MORNING & AFTERNOON 2 NOVEMBER 1, 2005 3 The jury trial in this case resumed on this 4 date, Tuesday, November 1, 2005, at 9:00 o'clock a.m., 5 when and where evidence was introduced and proceedings 6 were had as follows: 7 8 ____________ 9 10 THE COURT: Counsel, let me speak to counsel 11 very briefly at side bar on one point. 12 (The following proceedings had at side-bar 13 bench.) 14 THE COURT: What is the intention of both sides 15 in terms of dealing with the issues that have been 16 resolved on summary judgment? I -- we did this in the -- 17 we have done this in other cases, and I -- but I kept 18 waiting for it to come up naturally, that is by one of 19 you, and it didn't, and I need to understand how you 20 intend to utilize the findings. 21 MR. ESQUIVEL: Well, we will explain to the 22 jury in the opening. I didn't intend to refer to the 23 summary judgment. 24 THE COURT: You don't have to. 25 MR. ESQUIVEL: So I actually didn't think that 251 1 it would come up at this point, Your Honor, I thought it 2 would be something at the instruction phase and in closing 3 argument that we would refer to. 4 THE COURT: Okay, that's fine. In the 5 Medtronic case, the way that we dealt with it, which is 6 the only case where we had many, many issues 7 preliminarily, those findings were allowed to be presented 8 by either side through -- but they showed me the portions 9 of the findings that they wanted to present. Does that 10 make sense to you, so that it would not be -- so -- does 11 that make any sense at all? 12 MS. BLUM: Yeah. 13 THE COURT: They actually put them on the 14 screen, not the whole order, that would be confusing and 15 unnecessary, but some certain specific findings. 16 It can also be dealt with in the context of 17 some type of agreement that this is what these things say 18 because sometimes people want particular wording. It 19 doesn't matter to the judge, as long as the finding is the 20 same. You have told me what I needed to know 21 preliminarily, which is that issue has not been addressed 22 between the two sides, and that you're not planning to put 23 it on the screen, which really is a public document, so 24 the issue in that case can't be placed on the screen. 25 We're waiting on one juror. 252 1 THE CLERK: One juror, Ms. Hebron. 2 THE COURT: Well, we may lose one right away. 3 Have we made contact? 4 THE CLERK: She hasn't called me and left me a 5 message. 6 THE COURT: I thought we may as well try to use 7 our time a little beneficially. 8 MR. ESQUIVEL: There was one more matter, and 9 that is that we have two expert witnesses that would like 10 to sit in and listen to the testimony. 11 THE COURT: It's certainly normal in the 12 process, but usually you announce them on the record so 13 that the other side -- so it is on this record. Who do 14 you want to sit in? 15 MR. ESQUIVEL: Colonel Jose Luis Garcia would 16 be listening to today's testimony and the testimony until 17 the point that he testifies. 18 MS. BLUM: And Professor Karl will be here, I 19 don't know if she is here yet, but she should be here any 20 minute. 21 THE COURT: Any side can have an expert sit in 22 unless there's some peculiar reason that they should not 23 sit in. It is done routinely in state court and federal 24 court here. I think that we would allow an expert to sit 25 in. It is not a problem. 253 1 MR. FARGARSON: Sometimes the state courts do 2 and sometimes they don't. 3 THE COURT: Exactly. That's why we need to 4 make sure we're on the same page. I suppose it could 5 matter in some situations, but I think in this case, it 6 would be fine. 7 Now, going back to the summary judgment 8 question, Ms. Blum has clearly got some thoughts about it. 9 MS. BLUM: No, I believe that, you know, it is 10 probably not going to be raised by us until closing 11 statements or -- in the context of the jury instructions 12 and we haven't really hammered out exactly how we're going 13 to define the jury instructions. 14 THE COURT: Although we can -- there's some 15 additional material to be included in the instructions 16 which has not gotten there, you're right. 17 MS. BLUM: I meant the instruction that relates 18 to the findings for the motion for summary judgment. 19 THE COURT: Absolutely. Absolutely. That's 20 what I have been -- one of those things that I have been 21 waiting on without putting pressure on you and saying -- 22 because a lot of times it simply comes up when somebody 23 submits it, but we're to the stage where it usually would 24 have come up. 25 MS. BLUM: Okay. We will frame an instruction. 254 1 THE COURT: I think it is useful, and I think 2 also sometimes the jury needs to be told these things in 3 some context. I'm concerned about it being 4 non-contextual, that is coming up at the end when they 5 wondered why it didn't come up earlier. It normally is 6 the type of thing that you wonder about. Do you think in 7 this case it will make any difference, I'm truly asking? 8 MS. BLUM: It doesn't affect proof in the sense 9 of it doesn't impact the way in which we're going to 10 conduct examination of our witnesses. I'm trying to 11 figure out what is the best context in which to raise it, 12 but -- 13 THE COURT: How did they do it in the other 14 case that you tried? 15 MS. BLUM: We didn't prevail on a motion for 16 summary judgment. No, I shouldn't put it that way, he 17 didn't file a motion for summary judgment in the predicate 18 acts on the other case, so there wasn't a question about 19 whether the judge had granted it, so that was not -- no, 20 it did not come up. 21 THE COURT: It didn't come up that way. 22 MS. BLUM: No, no. I'm just trying to think. 23 MR. EISENBRANDT: We have never had that 24 experience before. 25 THE COURT: I have raised the issue. All of 255 1 you may want to consult with many attorneys involved in 2 the other case, 50, 60, so there are lots of people who 3 know what occurred, and it seemed to work well. It seemed 4 to eliminate -- it also was helpful in the -- as to the 5 examination of a couple of witnesses. It may not matter 6 so much here, but I was thinking you needed it in 7 connection with the examination of Mr. Carranza, but I 8 don't know. 9 MS. BLUM: Oh, in terms of the cross 10 examination of the defendant, yes, it may come up in that 11 context, but I meant the direct examination of the 12 plaintiffs who -- 13 THE COURT: I'm -- it came up in that context. 14 MS. BLUM: Uh-huh, uh-huh. 15 THE COURT: And I -- well, now, that I have 16 raised the issue -- Joe, what is our situation? 17 THE CLERK: Not good, Judge. Ms. Hebron just 18 called Mrs. Dote and said that she had overslept, that her 19 uncle had passed away, and that she is getting ready and 20 on her way now, and I just looked up her address, she 21 lives like out in Whitehaven. 22 THE COURT: She overslept and her uncle passed 23 away. We would normally let somebody whose uncle passed 24 away be excused. 25 MS. BLUM: She is probably going to have to be 256 1 attending a funeral. 2 THE COURT: I am assuming she hasn't thought 3 that she needs to go to a funeral. 4 MR. ESQUIVEL: Maybe a Saturday funeral. 5 THE COURT: Still it is a difficult time to ask 6 somebody to sit on the panel because if they have got the 7 preliminary matters relative to the funeral in the 8 south -- 9 MS. BLUM: How far is Whitehaven? 10 MR. BROOKE: 15 miles. 11 THE COURT: Traffic, she won't get here for an 12 hour, if she is now getting dressed. Well, we have our 13 first -- now, I'm beginning to wish I had seated 12. 14 MR. EISENBRANDT: Well, the good thing is 15 nobody one else said they had time issues. 16 THE COURT: That's true, and we didn't really 17 lose people in the other case until the third week where 18 it became a serious problem, and everybody is apparently 19 free through Thanksgiving. We're probably in good shape. 20 So she said apparently an uncle recently has just passed 21 away, she is trying to deal with all the -- 22 THE CLERK: I can get more information from 23 Mary Ann. She overslept and that her uncle passed away, I 24 don't know when, if he passed away last night. 25 THE COURT: She didn't mention anything 257 1 yesterday. It sounds like it is recent. See if you can 2 get Mrs. Dote on the phone, we need to resolve this 3 matter. 4 MR. BROOKE: Your Honor, on the subject matter, 5 the defendant wasn't capable of responding affirmatively 6 to the acts of -- 7 THE COURT: Right. 8 MR. BROOKE: For instance, he had no knowledge. 9 THE COURT: I understand fully. And in the 10 court's ruling, in part, it accepted the UN Truth 11 Commission Report in evidence as part of its 12 consideration. Under 803 -- 13 MR. BROOKE: And in the court's ruling, it 14 identified the four criterion for a public study or public 15 report. Two of the points that the court addressed are 16 identified. One was -- one, that there would be a public 17 hearing. 18 THE COURT: I discussed that. I discussed the 19 fact that there was not one, but there was extensive 20 interviews. 21 MR. BROOKE: And then, two, that it would be 22 timely. 23 THE COURT: Correct. 24 MR. BROOKE: And, of course, the Truth 25 Commission Report was approximately 10 to 12 years after 258 1 the fact of most of these acts. 2 THE COURT: What did the juror say? 3 THE CLERK: She didn't say. Mrs. Dote just 4 told her to get dressed and get down here. 5 MS. BLUM: She called her after the alarm clock 6 went off. 7 THE COURT: What we need to do if it is a 8 recent death in the family and there's an impending 9 funeral in which she can reasonably be expected to be 10 attending, we would always excuse somebody under those 11 circumstances. 12 MR. FARGARSON: Is she on the way? 13 THE COURT: Just call one more time and see if 14 she is still at home and find out, you know, when her 15 uncle just passed away. If her uncle just passed away 16 last night, we're obviously not going to -- we would feel 17 actually bad about making her come in. 18 MR. FARGARSON: He died last night, is that 19 what they're saying? 20 THE COURT: I'm not sure, but my -- we have 21 imprecision in connection with these communications. The 22 data is -- but -- 23 MR. BROOKE: Based on both of those two points, 24 we would challenge or except to the court's ruling. The 25 other point is the court referenced that if, in fact, such 259 1 evidence is to be allowed, the burden of proof shifts to 2 those in opposition of the public ruling. And so I think 3 that would be sort of akin to like the court taking 4 judicial notice of a fact, in which case if the court is 5 going to consider taking judicial notice, then the 6 opposition to that judicial notice is given an opportunity 7 to try to challenge the -- you have a burden of proof 8 itself to try to rebut. 9 THE COURT: Okay. Well, let's hear from -- 10 MR. ESQUIVEL: I'm not sure on the last point 11 what Mr. Brooke is saying. I think the operation of Rule 12 803(8)(c) is that once the elements of the rule are met, 13 then the burden shifts to the party opposing introduction 14 to demonstrate some reason why there would be lack of 15 trustworthiness about the document, is that what you're 16 talking about? 17 MR. BROOKE: Right. Can we speak to her so we 18 can let her be dismissed appropriately? 19 MR. ESQUIVEL: We have no objection to 20 dismissing her on that basis. 21 THE COURT: Her uncle passed away yesterday 22 afternoon. 23 MR. FARGARSON: Okay. 24 MR. BROOKE: We have no objection to dismissing 25 her. 260 1 (Ms. Hebron was called on the speakerphone, 2 and the following proceedings were had:) 3 THE CLERK: Ms. Hebron, this is Joe Warren in 4 federal court. I'm going to put you on speaker phone for 5 the judge, okay? 6 BY THE COURT: 7 Q. Ms. Hebron, how are you this morning? 8 A. I'm doing okay. 9 Q. Well, I'm very sad to hear that your uncle died 10 yesterday afternoon, and I wanted -- I know Mrs. Dote had 11 spoken to you and asked you to get dressed and come on, but 12 all of us understand that under those circumstances, it would 13 be very, very difficult, I would imagine, for you to proceed 14 as a juror, is that correct? 15 A. I will be okay. I'm trying to make it. I was over 16 there with them last night, and that is what made me fall 17 behind, and due to the fact that I was trying to leave there 18 and go to work, and I been working ten hours, I will be okay. 19 Q. Let me ask a couple of questions. Do you think the 20 funeral will be in the next several days? 21 A. They're trying to make it where it will be Saturday. 22 Q. Obviously, you will have been with the family last 23 night, is that correct? 24 A. Yes. 25 Q. Now, normally what we do in a circumstance involving a 261 1 tragedy like that in the family is we recognize that it is 2 extremely difficult even though you would, I understand, want 3 to come in, that it is very, very difficult for you to focus 4 on the evidence during a difficult situation like that. So 5 that normal procedure is to allow that individual to be 6 excused. It's out of respect for the situation in which you 7 find yourself; is that okay with you? 8 A. That's fine. 9 Q. Okay. And you sound like it has been a tough, tough 10 time period. Was everybody doing okay last night? 11 A. Yeah, I just had to be there for my father because him 12 and his brothers is real close. 13 Q. And the funeral will be here in Memphis some time 14 either Friday or Saturday? 15 A. They're trying to make it where it will be Saturday, 16 but we don't definitely know, because he just passed yesterday 17 about 5:15. So she don't know, but they want to push it for 18 Saturday. 19 THE COURT: Is there any objection by any of 20 the counsel for allowing Ms. Hebron to be excused under 21 these circumstances? 22 MR. ESQUIVEL: No objection. 23 MS. BLUM: No objection. 24 MR. BROOKE: No objection. 25 MR. FARGARSON: No. 262 1 Q. We appreciate it. I wanted to get you before you get 2 all the way down here under these circumstances, but thanks 3 very much for being able available, and we're all thinking 4 about you. Thanks very much. 5 A. Okay. Thank you. 6 (The phone call was ended.) 7 THE COURT: Thank you. I have had people 8 before say that they thought they could do it and then 9 they arrive in midday, they realize I can't do this, this 10 is just too much for me, and my experience is that people 11 think they can do more than they can do under those 12 circumstances. 13 Well, I'm going to bring the panel in, we will 14 explain that Ms. Hebron had a death in the family and that 15 we fortunately have the ability to let her be excused, and 16 we will proceed with opening statement. 17 On the other issues, we have time to talk about 18 them. On the 803(8)(c) question, the court did give a lot 19 of consideration to that at the time. It was a very 20 serious issue for me at the time. If there is new 21 information to consider in that regard, I can consider it. 22 Certainly, I started out from the point of view that we 23 needed to be skeptical of allowing this type of material 24 to be received without meeting the criteria -- we had to 25 be careful to make sure it met the criteria. After 263 1 reviewing the material and seeing the list of three 2 individuals involved in the Truth Commission and the 3 methodology that they used, I became frankly surprisingly 4 comfortable that this was appropriate to receive, but we 5 can talk about it some more. It is not being introduced 6 today, as I understand it, we can discuss it some more. 7 On the summary judgment question, it does 8 appear that we do need to give a little more thought about 9 how that is going to come up, because I have to always be 10 concerned that it will look like the court has given its 11 imprimatur to something, and the jury may not understand 12 in the summary judgment section, there are certain rules 13 that if it is not opposed, it is, in essence conceded, and 14 yet that would not sound -- we have to be careful about 15 how that is presented to the panel. 16 MS. BLUM: Absolutely, we appreciate that. 17 THE COURT: Okay. Thanks very much. 18 (The following proceedings were had in open 19 court.) 20 THE COURT: Mr. Tuggle, we will have the panel 21 come in. 22 (Jury in at 9:15 a.m.) 23 THE COURT: You may be seated. They're 24 standing because you're judges of the facts. You may be 25 seated as you come in, and they will stand. Of course, 264 1 you may be seated, ladies and gentlemen. 2 I need to advise the jury that Ms. Hebron spoke 3 with me this morning, her uncle died last night and, 4 obviously, under those circumstances, she was with the 5 family late last night, and this is not an appropriate 6 time for her to try to be away and serve on jury duty. So 7 fortunately we do have the ability to allow an individual 8 under those extreme circumstances to be excused from the 9 panel, and so I did so and, of course, I expressed our 10 appreciation for her being available. Under those 11 circumstances, Mr. Roby, you will move over to seat number 12 10 and, Ms. Minor, you will move over to seat number 11, 13 over one seat, and we do have enough jurors that we can 14 actually -- we have the ability to do that, so that is not 15 a problem. But I know you wondered what had happened, and 16 I wanted to so advise you. 17 We're ready now to proceed with opening 18 statements in the case. Mr. Esquivel, are you ready to 19 proceed with opening statements on behalf of the 20 plaintiffs? 21 MR. ESQUIVEL: The plaintiffs are ready to 22 proceed, Your Honor. 23 THE COURT: You may proceed. 24 25 OPENING STATEMENT BY MR. ESQUIVEL 265 1 MR. ESQUIVEL: May it please the court, it's 2 1980. 3 THE COURT: We need to make sure your 4 microphone is on. Just need to be sure, and Mr. Warren 5 will come help you. 6 MR. ESQUIVEL: Thank you, Your Honor. Good 7 morning. It's 1980 in the City of San Salvador, the 8 capitol of the country of El Salvador, a young woman goes 9 to a shopping mall to buy a birthday present. She is a 10 college student, and she works full-time to put herself 11 through school and to help support her parents and her 12 brothers and sisters. When she goes to the shopping mall, 13 she needs to go to the bathroom, and while she is in the 14 bathroom, she hears a loud bang outside. It sounds like a 15 tire blowing out in the road. As she is coming out of the 16 bathroom, two security guards come to her and ask her what 17 she knows about the loud explosion. She says she doesn't 18 know anything about it. Nonetheless, they take her to a 19 back room in the shopping mall and there a man at a desk 20 picks up a telephone and makes a phone call. A few 21 minutes later, two plain clothes people arrive at the 22 office and take the young woman and put her in a taxi, and 23 the taxi drives and goes to the headquarters of the 24 national police, and there one of the men in plain clothes 25 takes the young woman's arm, walks her up the steps and OPENING STATEMENT BY MR. ESQUIVEL 266 1 goes to the front of the national police headquarters. 2 There is a man at a desk, he's wearing a uniform, and he 3 tells them to go up to the second floor. When the young 4 woman gets to the second floor, she is put in a chair and 5 a bandanna is tied around her neck -- around her eyes. 6 She is led by a different man down a hallway, and as 7 they're walking down the hallway, she hears the sounds of 8 people moaning and groaning, and the sounds are coming 9 from the floor. She eventually is led to a room where she 10 is put in a school desk and made to sit in a school desk 11 and now there are four men around her. She can hear the 12 sounds of four men standing around her, and they begin to 13 interrogate her. Who are you? Who is your family? Who 14 are your friends at school? Who do you work with? While 15 they're doing this, some of the men begin to put their 16 hands under her blouse. They begin to put their hands 17 under her skirt, they're groping her and questioning her. 18 Another man takes a bottle of acid, sticks a cue tip in it 19 and puts the cue tip in her nose to burn her nose. They 20 take the acid and they drip it on to the skin between her 21 fingers which causes a blister to form immediately. She 22 screams and she cries. After a little bit of time, they 23 bring out a machine and force her hand into the machine, 24 and this is a machine that runs electric current through 25 her body. All during this time, they are interrogating OPENING STATEMENT BY MR. ESQUIVEL 267 1 her, asking her questions about who she knows, about who 2 her friends are, about who she works with. After some 3 time, other men come in, they take off the bandanna, and 4 the young woman sees that they are wearing plain clothes 5 and ski masks and they take her picture. This torture 6 goes on for hours and hours until finally the young woman 7 faints, and when she comes to, there's a man standing in 8 front of her. He has a pen and a blank piece of paper and 9 he says you need to sign this blank piece of paper. She 10 is not physically able to sign the paper because of the 11 electric current that had run through her body and because 12 of the blister on her hand, and she says I can't sign it. 13 He says that's okay, he puts the pen in her hand between 14 her fingers, grabs her hand with his and signs her name 15 while holding her hand. That woman spent the next three 16 years in a prison in El Salvador. She was finally able to 17 leave the prison. She came to the United States, and she 18 is here in the courtroom this morning. Her name is 19 Cecilia Santos, and she is one of the plaintiffs in this 20 case. 21 Ladies and gentlemen, this is a case about 22 courage and justice. It will take courage for Cecilia 23 Santos and the other plaintiffs to sit in that witness 24 stand and tell you about the worst thing that ever 25 happened to them in their lives. Stories of torture, OPENING STATEMENT BY MR. ESQUIVEL 268 1 stories of murder and stories of lies and families that 2 were ripped apart. It will also take courage for them to 3 seek justice against the man who had the ability to 4 prevent what happened to them, who had the ability to 5 investigate and punish those who were responsible, but not 6 only the ability to investigate and punish and prevent 7 what happened to the five of them, the ability to prevent 8 the torture and murder of thousands and thousands of 9 innocent civilians in El Salvador in the early 1980s. 10 That man is in the courtroom. He is Nicolas Carranza, the 11 defendant in this case. 12 In 1980, Nicolas Carranza was a member of the 13 Salvadoran military. He was a member of the high command 14 of the military. That is the four leading military 15 officers at the time. He occupied the post of the 16 vice-minister of defense, and in that position he was the 17 operational commander of the security forces of El 18 Salvador. He was also one of only two men who had the 19 ability under Salvadoran law to take officers who were 20 committing abuses and immediately remove them from power, 21 one of two people. He never exercised that power. We'll 22 talk more about Nicolas Carranza in a few minutes, but let 23 me tell you about the other four plaintiffs and what 24 brings them into court today. 25 The second plaintiff is Erlinda Franco. Today OPENING STATEMENT BY MR. ESQUIVEL 269 1 Ms. Franco lives in El Salvador. She is a teacher at a 2 rural school. In 1980, Erlinda Franco was married and she 3 had four young children. Her husband's name was Manuel 4 Franco. Manuel Franco was a professor at the university. 5 That's a picture of Manuel Franco. He was also one of the 6 leaders of a political party which was known in El 7 Salvador as the FDR, and the FDR was a coalition of groups 8 that advocated for democracy in El Salvador. They were 9 opposed to the military dictatorship at the time. 10 On November 27, 1980, Manuel Franco kissed his 11 wife Erlinda good-bye and went to a meeting of the 12 leadership of the FDR party. They were meeting at a 13 Catholic high school in San Salvador. While the meeting 14 was going on, uniform members of the Salvadoran military 15 established a perimeter around the school, and they 16 allowed plain clothes men driving pickup trucks to go to 17 the entrance of the school and abduct the six leaders of 18 the FDR, including Manuel Franco, put them in the pickup 19 trucks and take them away. The body of Manuel Franco and 20 the other five leaders of the FDR were found the next day 21 on the side of the road outside San Salvador. Erlinda 22 Franco went to the funeral home to identify her husband's 23 body. When she got there, she saw his body and the bodies 24 of the five other leaders on the floor. Manuel Franco had 25 been shot in the neck and in the face. And all around his OPENING STATEMENT BY MR. ESQUIVEL 270 1 neck was a burn mark as if some sort of a hot collar, 2 metal collar had been placed around his neck. All six 3 leaders of the FDR had the same marks on their neck. No 4 one was ever tried or punished for the torture and murder 5 of Manuel Franco. 6 The third plaintiff is Francisco Calderon. 7 Today Mr. Calderon is a United States citizen. He lives 8 in California and works as a security guard. In 1980, 9 Mr. Calderon lived in San Salvador. He worked as a -- he 10 worked in a factory. On September 11th, 1980, 11 Mr. Calderon was getting ready for bed. It was about 10 12 o'clock at night. His father and his little sister were 13 in the living room watching television when all of a 14 sudden there were loud bangs at the door like boots 15 kicking the door. Mr. Calderon went to the window and 16 looked outside and there he saw uniformed members of the 17 national police wearing bulletproof vests. They demanded 18 to be let inside. So Mr. Calderon went to the door, he 19 opened the door; and when he did that, the uniform members 20 of the national police stepped back and let plain clothes 21 men wearing ski masks and carrying G3 rifles, the rifle 22 that was the military issued rifle in El Salvador at the 23 time. They came into the house, put Mr. Calderon on the 24 floor and pointed a G3 rifle at his back. Mr. Calderon's 25 father and little sister tried to get out of the back of OPENING STATEMENT BY MR. ESQUIVEL 271 1 the house, and when they got to the back door, they found 2 other men already guarding it, and they heard even more 3 men on the roof. So the father and the sister came back 4 into the living room to find Mr. Calderon on the floor. 5 But the father knew that the people were not there for his 6 son. Because Mr. Calderon's father was a teacher and a 7 member of the Teachers Union known as ANDES, A-N-D-E-S, 8 and because the members of ANDES were educated, because 9 they were organized, they were a threat to the military 10 dictatorship that ruled at the time. So the father came 11 into the room and said, no, he is not the one that you 12 want, you are coming for me. The men came and tried to 13 get the father and take him out of the house, but he 14 wouldn't go. So instead, they put him on the floor of the 15 living room next to his son, they put a rifle in his back 16 and fired several shots into his body. No one has ever 17 been tried or punished for the murder of Francisco 18 Calderon's father. 19 The fourth plaintiff is Ana Patricia Chavez. 20 Today Ms. Chavez lives in Van Nuys, California. She is a 21 housekeeper at a hospital. In 1980, Ms. Chavez lived in 22 San Salvador. She was studying to be a secretary. She 23 and her husband had a small infant baby girl. Ms. Chavez' 24 parents, like Mr. Calderon's father, were members of the 25 ANDES Teachers Union. Every weekend, Ms. Chavez, her OPENING STATEMENT BY MR. ESQUIVEL 272 1 husband and their baby went to visit Ms. Chavez' parents 2 who lived in a town called Ahuachapan, which is in the 3 western part of El Salvador. 4 On July 26th, 1980, while Ms. Chavez and her 5 family were visiting her parents, she woke up in the 6 morning, was doing some chores around the house when 7 suddenly she saw a man standing in their home carrying a 8 rifle. When Ms. Chavez's mother came out of the bathroom, 9 the man took both women, put them on the bed in 10 Ms. Chavez's mother's room and they asked for something 11 they called propaganda. Ms. Chavez's mother said we don't 12 have any propaganda, so they began to beat her, and they 13 beat her viciously while she was laying next to her 14 daughter. 15 After some amount of time and more beating, the 16 men -- the man who put them in the room and other men who 17 had come in put Ms. Chavez into a separate room and put 18 her in the room with her daughter. And while she was 19 there, she heard the sounds that would change her life 20 forever, the sounds of gunshots that took her mother's 21 life. The baby screamed, and Ms. Chavez prayed that the 22 men would not come for her. She sat and waited, and after 23 some time went to her mother's bedroom and saw her there 24 where she had been shot. Frantically, she went outside to 25 find out what happened to the rest of her family, and a OPENING STATEMENT BY MR. ESQUIVEL 273 1 neighbor told her that she ought to go up the road because 2 a young man had been killed by these same men and was 3 lying in the road. She went up the road and found that 4 that young man was, in fact, her husband Omar who had been 5 shot and killed. She walked back to the house, and to her 6 horror found that her father, also a teacher, also a 7 member of the Teachers Union had been shot and killed in 8 his home. No one was ever tried or punished for the 9 murder of Ana Patricia Chavez's parents. 10 The fifth plaintiff is Daniel Alvarado. Today 11 Mr. Alvarado lives in Sweden, and he works in a factory. 12 In 1983, Mr. Alvarado was an engineering student and part 13 of a student movement that opposed the military 14 dictatorship in El Salvador. In 1983, Mr. Alvarado was at 15 a soccer game with his friends when two men in civilian 16 clothes and carrying G3 rifles took him and abducted him, 17 they tied his hands behind his back and they put him in a 18 car, and they drove Mr. Alvarado to the headquarters of 19 the treasury police, and there in the treasury police, 20 Mr. Alvarado was placed in a torture cell with 20 other 21 people. For days and days, he endured horrific, horrible 22 torture. In his torture cell, there were two rooms, one 23 where most of the people were held, another room where you 24 were actually tortured. When it was your time to be 25 tortured, your name was called, and you would go into the OPENING STATEMENT BY MR. ESQUIVEL 274 1 other room. The people who committed this torture in the 2 treasury police headquarters were so sadistic that they 3 gave the torture names. One of the methods of torture 4 that Daniel Alvarado was subjected to was called the 5 little airplane with a pilot. In the little airplane with 6 a pilot, Mr. Alvarado's hands were tied behind his back. 7 His feet were bound together, and he was placed face down 8 on the floor. Wires were attached to his feet, an 9 electric current was run through his body; and while he 10 was lying down and his hands were tied and his feet were 11 bound, a man stood on top of his back, and while electric 12 current was sent through his body, the man took a hood and 13 placed it over his head and pulled back on the hood. He 14 did that until Mr. Alvarado couldn't breathe any more, and 15 when Mr. Alvarado lost conscientiousness, he would release 16 him, take the hood off and allow him to regain 17 conscientiousness. 18 Mr. Alvarado endured this type of torture and 19 other torture for days and days until finally when he 20 could endure no more, the treasury police members made him 21 sign a false confession, and they asked him to sign a 22 confession for a particularly heinous crime, the murder of 23 an American military advisor in San Salvador, Lieutenant 24 Albert Schaufelberger who had been killed in San Salvador 25 earlier that year. Mr. Alvarado had nothing to do with OPENING STATEMENT BY MR. ESQUIVEL 275 1 that crime whatsoever, but that didn't matter to the 2 people who tortured him into giving his false confession. 3 After signing a false confession, Mr. Alvarado 4 was presented to the media at a press conference, and he 5 was presented to the media by Colonel Nicolas Carranza. 6 Now, the United States government had an 7 interest in finding out who the real killer of Lieutenant 8 Schaufelberger was, and they knew what really happened in 9 treasury police headquarters, so they managed to get 10 Mr. Alvarado out of the headquarters, take him to a secure 11 location and interview him, ask him to compare what he 12 might know about the murder, with the true facts of the 13 murder, the crime scene, what actually took place. 14 Representatives of the United States government came to 15 two conclusions. One, that Daniel Alvarado had nothing to 16 do with the murder of Lieutenant Commander Schaufelberger 17 and, number two, that Daniel Alvarado was tortured into 18 giving a false confession. News of Daniel Alvarado's 19 torture became known in El Salvador. But beyond El 20 Salvador, news that Daniel Alvarado had been tortured by 21 the treasury police was headlines in the United States, in 22 El Salvador and elsewhere; and despite all of that notice 23 and all of that knowledge, no one was ever tried or 24 punished for the torture of Daniel Alvarado. 25 Now, ladies and gentlemen, you have heard what OPENING STATEMENT BY MR. ESQUIVEL 276 1 brings the plaintiffs to court here today, and these are 2 different stories that occur at different times. What 3 unites these stories? What unites these stories is 4 Nicolas Carranza. Today Nicolas Carranza lives in 5 Memphis. He's a retired employee of the Brooks Museum of 6 Art. But in 1980 Nicolas Carranza led a very different 7 life. In 1980, Nicolas Carranza was a member of the High 8 Command of the Salvadoran military. The High Command 9 consisted of the four leading officers of the Salvadoran 10 military, the group that established military policy in El 11 Salvador. The specific post that Colonel Carranza held 12 was called the vice-minister of defense, and in this case, 13 you will hear that referred to in different ways. Some 14 people in documents called it the vice-minister of 15 defense, some call it the subsecretary of defense. Other 16 times, it is called the undersecretary of defense. All 17 those terms mean the same thing, the vice-minister of 18 defense. And as the vice-minister of defense, Colonel 19 Carranza had operational control of the security forces in 20 El Salvador, the forces that are responsible for the 21 torture and the murder that were endured by the plaintiffs 22 and their families. 23 In 1980, while Colonel Corranza served as the 24 operational commander of the security forces, at least 25 10,000 civilians were killed. The vast majority of them OPENING STATEMENT BY MR. ESQUIVEL 277 1 by the Salvadoran military. These are not military 2 casualties, this is at least 10,000 civilian deaths. 3 Now, in 1983, Colonel Carranza assumes a 4 different position, and that is the position of director 5 of treasury police. It is in 1983 in treasury police 6 headquarters that Daniel Alvarado was tortured. In 1983, 7 there were torture cells being operated at the 8 headquarters of the treasury police, and they were 9 operated by a man named Ricardo Pozo. Ricardo Pozo was a 10 major in the Salvadoran military and the direct 11 subordinate of Colonel Nicolas Carranza. 12 Now, there's a very important concept in this 13 case, which is the law of command responsibility, and 14 Judge McCalla told you about that law yesterday. He read 15 you the elements of what the law requires. The law of 16 command responsibility is essentially this: It is the 17 job, it is the duty of every military commander to ensure 18 that his subordinates are not committing the kind of 19 violence against civilians that happened to these 20 plaintiffs. Specifically, the law of command 21 responsibility requires three things: In this case, to 22 show that the defendant is a commander. That means that 23 the defendant was the superior, and his subordinates 24 committed the acts against the plaintiffs. 25 Second, the law of command responsibility OPENING STATEMENT BY MR. ESQUIVEL 278 1 requires that the defendant knew or that he should have 2 known that abuses were being committed by subordinates 3 under his command. 4 And, third, the law of command responsibility 5 requires that the commander has failed to prevent or 6 failed to prevent what happened, what -- failed to prevent 7 the abuses that occurred or failed to investigate and 8 punish them after the fact. When a commander fails to do 9 these things, he fails in his duty. 10 Now, let's take a step back and talk about the 11 background of this case. This case is going to be about 12 El Salvador. Where is El Salvador? This is a map of 13 North America. You can see Memphis there right below the 14 word states to the right. That's Memphis. El Salvador is 15 a country all the way at the bottom of this map. El 16 Salvador is just south of Mexico. It is the smallest 17 country in Central America. The State of Tennessee is 18 approximately 40,000 square miles. The country of El 19 Salvador is approximately 8000 square miles. That means 20 that El Salvador is one-fifth the size of Tennessee. You 21 could fit five El Salvadors within the State of Tennessee, 22 so this is a very small country. 23 In the 20th century, El Salvador was governed 24 by a series of military dictatorships. From the mid 1930s 25 until the mid 1980s, the governments of El Salvador were OPENING STATEMENT BY MR. ESQUIVEL 279 1 controlled by either military officers or civilians who 2 worked -- who were and picked by the military to lead the 3 country. 4 Mr. Warren, if I could have an easel. This 5 chart shows you the military chain of command as provided 6 in Salvadoran law, and you will see here that this is the 7 commander in chief of the armed forces. The next in the 8 chain of command is the ministry of defense, which is 9 composed of the minister of defense and the vice-minister 10 of defense. This is the post that Colonel Carranza held 11 in 1980. Below that is the general staff of the armed 12 forces. This is the entity that issues commands to the 13 six branches of the Salvadoran military. Those branches 14 are the army, the air force, the navy, the national guard, 15 the national police and the treasury police. 16 Now, three of these branches we're familiar 17 with in the United States as being traditional military 18 branches. The army, the air force and the navy. Now, 19 what is different about El Salvador is that these police 20 organizations, these three organizations are also part of 21 the military chain of command. These are military 22 soldiers that operate in these posts, and they are led and 23 directed by military officers, and they operate in the 24 military chain of command. So in this country we have a 25 difference between the police and military, and they OPENING STATEMENT BY MR. ESQUIVEL 280 1 operate separately. And what you need to know about El 2 Salvador is that it is different. When we are talking 3 about these police agencies, these three agencies, we're 4 talking about people who operate in the military chain of 5 command. And these three agencies, the national guard, 6 the national police and the treasury police together are 7 known as the security forces. So when we talk in this 8 trial about the security forces, we're talking about these 9 three police organizations. 10 By the 1970s in El Salvador, there was 11 opposition and resistance growing to decades and decades 12 of military dictatorship. And so by the 1970s, groups 13 like the FDR and the Teachers Union and other groups began 14 to advocate for some democratic reform, for some stop to 15 the control of the government and society by the military. 16 And so these groups emerged in the 1970s, and at the same 17 time, there emerged a split within the military. One 18 group in the military wanted reform. These were the 19 younger officers who believed in greater civilian control 20 and wanted an end to the military dominance, like the 21 groups who advocated that reform. 22 There was another branch within the military, 23 another group in the military that were the hardliners, 24 and those are the people who wanted to conduct business as 25 usual, they wanted to maintain military control. And what OPENING STATEMENT BY MR. ESQUIVEL 281 1 happened in 1980 was that these two groups within the 2 military were struggling for control, and by the end, the 3 hardliners prevailed, and what they did in 1980 to try to 4 stop the opposition, to try to stop democratic reform was 5 to institute a wave of violence against the civilians, and 6 Colonel Carranza was one of the hardliners, one of those 7 who advocated a strong response, a violent response to the 8 democratic groups that had formed. 9 So in 1980, you have a time of extraordinary 10 violence. As I said, state violence in El Salvador in 11 1980 reached at least 10,000 civilian deaths. State 12 violence also took the form of the systemic use of 13 torture. Torture that were given names, torture that was 14 uniform throughout the country, not random acts, 15 systematic policy of the use of torture for intimidation. 16 The state violence also selected specific targets of 17 repression. We have talked about some of those targets, 18 students, teachers, members of unions, political parties, 19 even elements of the Catholic church, all who were 20 organized and who wanted democratic reform were the 21 targets of violence on the part of the military. 22 One of the methods used to carry out this 23 violence was the use of death squads, death squads like 24 the ones that killed Francisco Calderon's father, like the 25 one that killed Ana Patricia Chavez's parents and husband. OPENING STATEMENT BY MR. ESQUIVEL 282 1 These were paramilitary groups who took their orders from 2 military officers. They operated out of military 3 barracks, but they did their work in plain clothes so as 4 to have the ability to deny what was happening. But they 5 carried them out in very similar ways. They used the 6 military issued rifles, the G3, they wore ski masks, they 7 wore civilian clothes, all of these attributes of the 8 death squads that operated in El Salvador in the early 9 1980s. 10 Now, let's talk about Colonel Carranza's 11 particular role within this violence. In this case, you 12 will hear evidence about two specific time periods, 1980 13 and 1983. In 1980, Colonel Carranza was the vice-minister 14 of defense and member of the high command. Judge McCalla 15 yesterday read to you several undisputed facts. These are 16 facts that the parties have agreed to before trial. And 17 for the 1980 period, it is undisputed, and Colonel 18 Carranza admits that he did not initiate an investigation 19 to determine whether members of the Salvadoran military 20 were responsible for human rights abuses. That is a fact. 21 Another fact that is undisputed from the 1980 22 period is that Colonel Carranza did not discipline or 23 punish any members of the Salvadoran military for human 24 rights abuses. 25 Colonel Carranza will tell you that during this OPENING STATEMENT BY MR. ESQUIVEL 283 1 period he had no command authority in order to investigate 2 these abuses or to punish them. That will be his story, 3 but the evidence, the facts will show to the contrary. 4 You will hear testimony that Colonel Carranza was the 5 operational commander of the security forces. He 6 exercised the real power in the high command. You will 7 hear that testimony from witnesses in this case. You will 8 see it in documents with your own eyes. You will see the 9 Salvadoran Code of Military Justice, which provides for 10 the duties of Salvadoran officers, and Article 186 of the 11 Salvadoran Code of Military Justice provides the following 12 things: It says that the application of disciplinary 13 punishments in cases having to do with violations 14 committed by officers falls upon the following groups. 15 The first group being the minister and the deputy 16 secretary of defense. Remember, that this is another word 17 for vice-minister of defense. Salvadoran Military Code of 18 Justice gives the authority to the vice-minister for 19 disciplinary punishment of officers, but more than that, 20 termination of employment as disciplinary punishment may 21 only be imposed by the minister or the deputy secretary of 22 defense. That means that there are only two people under 23 Salvadoran military law who have the ability to take an 24 officer who is responsible for human rights abuses, pull 25 that officer out of his employment immediately and remove OPENING STATEMENT BY MR. ESQUIVEL 284 1 him from power. Colonel Carranza had the authority to do 2 that, but he never did it. 3 Now, the second period we will be talking about 4 is 1983. And in that period, Colonel Carranza held a 5 different post. Colonel Carranza was the director of the 6 treasury police, and you will remember that the treasury 7 police is one of the three branches of the security 8 forces, part of the military structure. For the 1983 9 period, there are also undisputed facts, facts that the 10 parties agree on. For this period, Colonel Carranza 11 admits, he admits for this period that he had the legal 12 authority and the practical ability to exert control over 13 subordinate members of the treasury police. 14 Colonel Carranza also admits that he did not 15 prosecute under military law or refer to civilian courts 16 any members of the treasury police for incidents of 17 torture or extrajudicial killing. So in this period, 18 Colonel Carranza admits that he had the authority to 19 punish. What he will tell you is that he had no notice of 20 abuses, that had he known about abuses in the treasury 21 police, that he would have investigated and punished them. 22 The evidence in this case will show, the facts will show 23 that Colonel Carranza knew or he should have known that 24 there were abuses being committed at the treasury police. 25 You will hear the testimony from Daniel Alvarado about OPENING STATEMENT BY MR. ESQUIVEL 285 1 Ricardo Pozo, the man who oversaw his torture, who was 2 present in the torture cell when he was tortured. Ricardo 3 Pozo was a direct subordinate of Nicolas Carranza. You 4 will hear that evidence. You will hear the evidence that 5 once it became known that Daniel Alvarado was tortured, 6 that it became news, not just in El Salvador, but in the 7 United States and elsewhere, specific reports of Daniel 8 Alvarado's torture in the treasury police headquarters. 9 Despite that notice, despite all of that information that 10 was available, Colonel Carranza did nothing to punish the 11 people responsible for Daniel Alvarado's torture. 12 The plaintiff will present the following 13 evidence in this case: The plaintiffs will first present 14 the testimony of Ambassador Robert White. Ambassador 15 White was the United States ambassador to El Salvador in 16 1980. He had meetings, regular meetings with members of 17 the Salvadoran High Command to talk about these abuses and 18 to address them and insist that the Salvadoran military 19 stop. The United States policy at the time was opposed to 20 all of this torture and killing, and the role of the 21 ambassador in El Salvador at the time was to try to 22 convince the members of the Salvadoran military to stop. 23 Ambassador White will testify about his experience in El 24 Salvador, what he saw in El Salvador, and he will talk 25 about the specific targets of violence. OPENING STATEMENT BY MR. ESQUIVEL 286 1 You will hear from the plaintiffs in this case. 2 You will hear from Cecilia Santos about her torture in the 3 national police headquarters. You will hear from Ana 4 Patricia Chavez and Francisco Calderon who will tell you 5 how death squads murdered their parents. You will hear 6 from Daniel Alvarado who will describe his torture in the 7 treasury police headquarters. And you will hear from 8 Erlinda Franco, the widow of Manuel Franco, one of the 9 leaders of the FDR. And you will also hear from an 10 eyewitness who was present at the school when the leaders 11 of the FDR were abducted, who saw with his own eyes men 12 abducting and taking away the leaders of the FDR. You 13 will also hear from two expert witnesses in this case. 14 You will hear from Colonel Jose Luis Garcia. He is a 15 retired colonel of the Argentinian army. Lieutenant 16 Garcia is an expert in issues of military structure, and 17 he has studied in particular the structure of the 18 Salvadoran military. He will tell you about Colonel 19 Carranza's duties and his obligations, not just in general 20 as a military commander, the obligation that all military 21 commanders have. He will tell you about the specific 22 duties and obligations that were upon Colonel Carranza as 23 a member of the Salvadoran military. You will also hear 24 testimony from Professor Terry Karl. She will give you 25 expert testimony in this case. She is a political science OPENING STATEMENT BY MR. ESQUIVEL 287 1 professor at Stanford University, and she has spent much 2 of her career studying the politics and the history and 3 the military in El Salvador. She has spent many, many 4 days, weeks and months in El Salvador personally 5 interviewing witnesses, including during the 1980s, people 6 from all levels of Salvadoran society, peasants, members 7 of unions, members of political parties, people in the 8 military, presidents of the country. She has reviewed 9 thousands of government documents, declassified documents, 10 Salvadoran documents, U. S. government documents, all 11 recounting what was happening in El Salvador at the time. 12 And she will tell you that what the Salvadoran military 13 did during this time was a widespread and a systematic 14 attack against the civilian population. That is what was 15 happening in El Salvador. And she will testify to Colonel 16 Carranza's particular role within the military and within 17 that violence. 18 At the end of this case, we will ask you, the 19 members of the jury, to find three things, three 20 categories of things. First, we will ask you to find that 21 what happened to these plaintiffs, to three of these 22 plaintiffs constitute crimes against humanity. That means 23 that what happened to these plaintiffs was not just an 24 isolated act, but what happened was part of a widespread 25 or a systematic attack against the civilian population. OPENING STATEMENT BY MR. ESQUIVEL 288 1 So these were not random acts, these were not things that 2 occurred in a vacuum, these were part of a much bigger 3 pattern of violence. And when you find that, you will 4 find that these are crimes against humanity. 5 Second, we will ask you to find Nicolas 6 Carranza responsible as a commander, that he has command 7 responsibility for what took place and what happened to 8 these plaintiffs. 9 And finally, we will ask you for damages. 10 Judge McCalla explained that this is a civil case. That 11 means that the only remedy that the plaintiffs can ask for 12 is money damages, and we will ask you at the end of this 13 case to consider the evidence and to compensate the 14 plaintiffs for what has happened to them, to compensate 15 them for their physical and their emotional injuries. But 16 clearly, ladies and gentlemen, this is not a case about 17 money, it is certainly not. This is a case about justice 18 for the plaintiffs, and at the end of the evidence, we 19 will ask you to give the plaintiffs the justice that they 20 have awaited for too long. 21 THE COURT: Mr. Fargarson, do you wish to make 22 an opening statement on behalf of Mr. Carranza? 23 MR. FARGARSON: Yes, sir. 24 THE COURT: You may proceed. Just make sure we 25 have got our mic, Joe. OPENING STATEMENT BY MR. FARGARSON 289 1 MR. FARGARSON: Members of the jury, as you 2 were told when you were being qualified as jurors in this 3 case that opening statements are not evidence. The 4 evidence comes from the witness stand, and this is a time 5 for us to state something about the case and what we 6 believe the facts in the case are going to show. 7 Now, if I say something that's -- that doesn't 8 turn out to be evidence or isn't exactly true, I want you 9 to understand that that is not coming from my heart trying 10 to deceive you in any way, and to keep you from reaching 11 the truth and right of the case, it is an error in my mind 12 or either my tongue. 13 Now, on behalf of Mr. Carranza's case, let me 14 tell you a little bit about him at this particular point 15 and then we will talk about El Salvador. Mr. Carranza 16 came to the United States in 1985. He was still a member 17 of the military of El Salvador, but he retired, and after 18 coming to the United States, he got a license to sell real 19 estate, and he did sell real estate here in Memphis, 20 Tennessee for a couple of years. 21 After that, a friend told him about an opening 22 at the Brooks Art Gallery here in Memphis, Tennessee, and 23 he applied for that job at the Brooks Art Gallery and he 24 got a job as a security guard, and he continued to work 25 there from approximately 1991 until he retired as the head OPENING STATEMENT BY MR. FARGARSON 290 1 of security at the Brooks Art Gallery in 2001. He has 2 become a United States citizen, he lives in Memphis, 3 Tennessee, he has never gotten in any trouble. He has 4 lived an exemplary life, which is contrary to what the 5 plaintiffs particularly contend in this case. 6 Now, of course, prior to coming to Memphis, 7 Tennessee, he did live in El Salvador. He was born in 8 eastern El Salvador in the Yucatan Peninsula. His father 9 worked for a telegram company and his father wanted him to 10 be a lawyer, so he studied law for one year, but he had a 11 relative that was in the military that encouraged him in 12 the military career, so he did enroll in military school, 13 not desiring to complete his law courses, and he graduated 14 from military school, which I understand you have to go to 15 be an officer. That may or may not be true, but anyway, 16 he did, and graduated from military school in 1957, number 17 one in his class. 18 While in the military, he participated in 19 various areas. He was in the artillery, he went and came 20 to an artillery school in the United States on a 21 scholarship presented to him by the United States. He 22 also was in the calvary regiment and learned calvary 23 tactics, riding horses and being in the mountains, and he 24 served in a number of other areas in the military. 25 Now, in the period of time that we're talking OPENING STATEMENT BY MR. FARGARSON 291 1 about, which is 1979 and 1980, it was a very -- it became 2 a very turbulent time in the history of El Salvador, not 3 to say that there weren't other periods of turbulent 4 times, but in this particular period of time it was a very 5 turbulent period of time. The communists and 6 Marxist-Leninist proponents were very active in Central 7 America. Nicaragua had fallen into the hands of communist 8 sympathizers and those that believed in the communist 9 theory of government, and there was also activity going on 10 in other countries like El Salvador, Guatemala and 11 Honduras, and the United States government was very 12 interested in what was taking place in that area, and they 13 were sending military support, military aid and help into 14 that area because they didn't want communism to go any 15 further in the Western Hemisphere, and in particular that 16 close to the United States. 17 Also, in that period of time, the communists 18 were undertaking to influence their doctrine on certain 19 groups, and as Mr. Esquivel has told you, there were 20 groups that arose that were opposed to the military. 21 Those groups that were opposed to the military were 22 organizations like the FDL, organizations like the FMLN, 23 and they were indoctrinated in communism and they were 24 supplied by the communists and they were battling against 25 the military, which was the government of El Salvador at OPENING STATEMENT BY MR. FARGARSON 292 1 that time. And while we mentioned -- or Mr. Esquivel has 2 mentioned the 10,000 civilians that were killed, these 3 organizations which operated in guerrilla units throughout 4 the country and wore masks and carried rifles just like 5 military rifles that the military of El Salvador carried 6 except they were either Russian or Cuban or Mongolian made 7 were likewise killing civilians, cornering civilians and 8 forcing them to join with them, or if they wouldn't join 9 with them, they would either abduct them, kill them or 10 they were committing not just random acts, but they were 11 committing open violence in El Salvador. And not only 12 that, they were doing their best to destroy the 13 infrastructure in El Salvador and change the entire 14 government to their way of thinking, and there were 15 numerous of those groups, to the point that they even 16 controlled certain areas of El Salvador and even certain 17 cities at certain times. 18 Now, it is against this backdrop of civil war, 19 civil disorder and civil disturbance that some of these 20 acts and these circumstances have taken place, mainly all 21 of them. It is against this backdrop of confusion, civil 22 disorder, civil unrest that these occurrences are taking 23 place. 24 Now, in the period of 1979 to 1980, a period of 25 approximately 14 months, and only 14 months, Mr. Carranza OPENING STATEMENT BY MR. FARGARSON 293 1 was a subminister of defense. As Mr. Esquivel has told 2 you, there were divisions even in the military, and in 3 that period of time or during that period of time, there 4 were the younger military officers that wanted to take 5 over the military, and there were older military officers 6 that didn't want them to, and so there was at times a 7 struggle for control of the military. And what would take 8 place is there would be a coups. Certain periods of time, 9 there were coups in the military and in the government and 10 there would be a change. 11 The proof is going to show that Nicolas 12 Carranza never took part in any of those political matters 13 to try to take control of anything, but in the 1979-1980 14 period, when Guillermo was the minister of defense, he was 15 designated to be his assistant. In El Salvador, a number 16 of names is used, in the United States we would call it 17 the vice-minister. In El Salvador, it is called the 18 subminister. Basically, his assistant, but he acts always 19 under the orders and insubordination to Guillermo Garcia. 20 And I believe you will hear in this particular proof that 21 Guillermo Garcia, the minister of defense, was the most 22 powerful man in the army at this particular time. As a 23 matter of fact, when some of the younger officers wanted 24 to take a more authoritative position in the military, 25 many of the inline officers said they wouldn't take orders OPENING STATEMENT BY MR. FARGARSON 294 1 from anybody but Guillermo Garcia, and that's the man that 2 Nicolas Carranza served under and reported to and was 3 responsible to and was to obey and to do what he was told 4 to do and not usurp authority out from under him and try 5 to go around him insofar as the chain of command is 6 concerned. The chain of command works two ways. In other 7 words, a military officer is supposed to obey superiors, 8 and that included Nicolas Carranza. In acting as 9 subminister, he had to obey Guillermo Garcia, the most 10 powerful man in the army at the time he was the 11 subminister and his minister of defense. 12 Now, he was only in that position 14 months. 13 And then from that position, he was changed to ANTEL, 14 which was a telephone company in El Salvador, and he 15 stayed in that job for a short period of time, and then -- 16 to manage that at a period of time when subversive actions 17 were taking place and disruption was taken in 18 communication and the phone lines, and then he was 19 assigned to what is known as the Limpa River Authority for 20 another relatively short period of time. In that period 21 of time, a man named Vides Casanova who had gone to school 22 with Nicolas Carranza became the minister of defense in 23 the place of Guillermo Garcia, and Vides Casanova asked 24 him to come to the treasury police and to be the director 25 of the treasury police. Now, it's no secret -- and this OPENING STATEMENT BY MR. FARGARSON 295 1 will be shown, that the treasury police had a terrible 2 reputation. They did have a reputation for being out of 3 hand. They did have the reputation for having violence. 4 And what Vides Casanova asked Nicolas Carranza to do is to 5 come and try to change the way the treasury department 6 conducted their business and the way they conducted their 7 affairs, and Nicolas Carranza accepted that position, and 8 he did come to the treasury police as their director. 9 Now, we're going to offer evidence that changes 10 were made, that he enlisted some civilian support, he 11 asked for regular officers to come over there so that he 12 would have people trained to work in that department 13 rather than people that weren't trained. He dismissed the 14 subdirector of the treasury police who was in that place 15 when he took over because he didn't like the way he was 16 conducting things, and he undertook to make a difference 17 in the treasury police from the very start, and there will 18 be a cable to the state department that shows that that 19 was his intention to make a change. 20 Now, how do you change everything that has been 21 going on for years in a moment of time? You -- if you use 22 your common sense, you'll understand that everything can't 23 be done in an organization that is misfit and not going on 24 in a moment of time, it is going to take some time. But 25 the proof is going to show that Nicolas Carranza made an OPENING STATEMENT BY MR. FARGARSON 296 1 effort to change what was taking place in the treasury 2 department. Just as soon as he got there, he started 3 doing things to make a difference. 4 Now, of all of the plaintiffs, there's really 5 only one plaintiff that Nicolas Carranza had any contact 6 with, and that was in 1983 regarding Daniel Alvarado when 7 Daniel Alvarado had been picked up and charged with the 8 assassination of Albert Schaulfelberger who was a military 9 attache of the U. S. Embassy. 10 Now, so you will understand, Nicolas Carranza 11 allowed Daniel Alvarado to go to a public meeting in front 12 of television cameras, in front of an audience which would 13 allow him to say anything he wanted to say. He could have 14 said I didn't do it, I have been tortured, I was captured 15 against my will, I have been held in a cell. Daniel 16 Alvarado never said a word about that. As a matter of 17 fact, Nicolas Carranza allowed him to go see a military 18 justice, and Daniel Alvarado never even said anything to 19 the military justice about being tortured or anything 20 happening to him. Nicolas Carranza allowed him to leave 21 the jail and go talk to agents from the United States, 22 which he did, and at first, even admitted to them that he 23 killed Schaufelberger. So Nicolas Carranza did not 24 prevent Daniel Alvarado from changing anything, from 25 saying anything, from telling the press, from telling the OPENING STATEMENT BY MR. FARGARSON 297 1 world from the very moment that Carranza saw him that he 2 had been duped, he had been forced into making a 3 confession. 4 With regard to the other members, Nicolas 5 Carranza has never seen any of them, didn't know anything 6 about their situations or their plight. And Mr. Calderon 7 is a relative, a distant relative of Guillermo Garcia, and 8 Mr. Calderon said and stated that he was offered the 9 opportunity to meet with Mr. Garcia and to see if an 10 investigation couldn't be conducted into the death of his 11 father, and rather than meeting with Mr. Garcia, who was 12 then Colonel Garcia at the head of the ministry, he chose 13 not to do so, not to have an investigation into the death 14 of his father. 15 Now, members of the jury, all I want you to 16 know is there's two sides to a piece of bread and there's 17 two sides to a lawsuit. Before closing, I want to tell 18 you one other thing. As I mentioned, the United States 19 was badly interested in what was happening in El Salvador. 20 Yes, there were some disagreements between the democrats 21 and the republicans, just like there is today. There were 22 times when aid was threatened to be cut off because of 23 what was going on. Then there were times they realized 24 that the best option was not to have a communist control 25 the country, but to have the Salvadorians in one form or OPENING STATEMENT BY MR. FARGARSON 298 1 another control their country, and that that would be in 2 the best interest of the United States of America. 3 In that process, you're going to hear in this 4 case that Nicolas Carranza was a paid informant of the 5 United States government, that he was paid by the United 6 States government to provide information to United States 7 representatives in the United States Embassy. 8 Now, Mr. Carranza does not know whether those 9 individuals that he was giving information to were state 10 department civilian employees, whether they were attaches 11 of the United States military to the state department or 12 whether they were CIA representatives. All he knows is 13 that he was enlisted to provide information to agents and 14 representatives of the United States, which he did over a 15 period of years, and in a sense, he was similarly employed 16 by the United States. 17 Now, I can understand that the United States 18 does things that are wrong even though it's my country, 19 and they're not always right, but it seems kind of 20 inconceivable to me that the United States of America 21 would trust a man like Nicolas Carranza to provide 22 information to them about what is taking place in El 23 Salvador and he be the savage and incentive person that 24 the plaintiffs want to make him out to be. The truth of 25 the matter is what the plaintiffs want done is to have OPENING STATEMENT BY MR. FARGARSON 299 1 Nicolas Carranza take the blame and the responsibility for 2 everything that took place down there because he had a 3 position, not that he did anything, not that he was the 4 cause of it, but because he was in a position and he 5 should have stopped the struggle and the harm that was 6 taking place, not that it would have helped these people, 7 but that he should be accountable for all those acts of 8 violence. 9 Ladies and gentlemen, we submit this to you, 10 and believe that you will when you hear all the proof in 11 the case, be able to be fair and reach the truth in light 12 of the case and satisfy the requirements of justice for 13 all the parties. Thank you. 14 THE COURT: Ladies and gentlemen, we have 15 concluded the initial opening statements of counsel, and 16 this is the time to take a break, and then we will come 17 back and hear from the first witness. I will tell you 18 that we adjusted the schedule. We will be able to stay 19 until noon and have a more normal schedule, I was able to 20 get somebody else to handle something else that was a 21 matter that had to be taken care of earlier, so your lunch 22 break will be at 12:00, and I anticipate that maybe we 23 will leave five minutes till 12 and come back no later 24 than 1:30. I'm going to see how we're doing. If we can 25 come back earlier, we will. That's going to be our 300 1 schedule. So I'm going to ask you to -- we will -- these 2 breaks will be somewhat shorter, but there are a lot of 3 people, so they will typically be a 15-minute morning 4 break and an afternoon break. We will take that 15-minute 5 break at this time, ask you to check your watches and come 6 back in 15 minutes and be ready to proceed at that time. 7 THE CLERK: All rise. This Honorable Court 8 stands in recess for 15 minutes. 9 (Recess taken at 10:30 until 10:45 a.m.) 10 THE COURT: Yes, sir. 11 MR. BROOKE: May we approach? 12 THE COURT: You may. 13 (The following proceedings had at side-bar 14 bench.) 15 MR. FARGARSON: Let me tell him something 16 first. 17 THE COURT: Yes, sir. 18 MR. FARGARSON: I want you to know that I 19 opened the door to the jury room and I saw them in there 20 and I immediately got out. 21 THE COURT: Okay. I have never had a lawyer do 22 that before, but -- it is set up differently, as you know, 23 in different courtrooms, and ours unfortunately doesn't 24 have a separate restroom section, and you wouldn't know 25 that. 301 1 MR. FARGARSON: I forgot. 2 THE COURT: You wouldn't have any way to know 3 that. I assume that is not a problem. 4 MR. FARGARSON: I told David that, but I wanted 5 you to know. 6 THE COURT: That just scared them. I'm 7 kidding, you know that. 8 MR. FARGARSON: It scared me more than it did 9 them. 10 THE COURT: That's no problem. I'm sure -- 11 that's no big issue. Anything else? 12 MR. BROOKE: I have something, Your Honor. It 13 appears that they have some documents that they want to 14 use with Mr. White. 15 THE COURT: Sure. 16 MR. BROOKE: And those documents, I believe, 17 are basically the cables that he had written back to the 18 state department, things like that. 19 THE COURT: That he wrote to the state 20 department? 21 MR. ESQUIVEL: Some that he wrote and some that 22 others in the embassy wrote, but most of what he wrote. 23 THE COURT: Certainly, things that he wrote 24 are -- they are hearsay if they were simply letters. They 25 are records if they were recorded in the ordinary -- it 302 1 needs to be qualified as a business record. I do not 2 know, but I assume that there are certain requirements of 3 the job and that they cable things as a matter of their 4 business, so the question is was this prepared in the 5 ordinary course type of inquiry, and I assume that is what 6 you intended to do. 7 MR. ESQUIVEL: We intended -- that is one of 8 the bases. We believe there are also matters pursuant to 9 duty 803(8)(b). 10 THE COURT: That can work also. I just don't 11 know every piece of paper, so some would be -- might be 12 more summary report material. Some matters might be 13 matters observed in that manner. I just don't know. 14 MR. ESQUIVEL: And, in fact, Your Honor, the 15 cleanest hearsay objection -- clearest hearsay exception 16 is the ancient documents rule. These are documents that 17 are greater than 20 years old. 18 THE COURT: Oh, okay. 19 MR. ESQUIVEL: So those are ancient documents, 20 the parties have stipulated to their authenticity, so all 21 of these documents come in under the ancient documents 22 section. 23 MR. BROOKE: Your Honor, I believe the witness 24 can use them to refresh his recollection, but just like a 25 police report, they're merely his observations. 303 1 THE COURT: Well, the exceptions that we just 2 went through would be exceptions which would allow 3 admissibility and would not be used for refreshment of 4 recollection, whereas a letter written by someone, a 5 letter written to a relative, you know, that sort of 6 thing, might well be in the category you just described 7 where you write your aunt and say this is what I observed, 8 you have no obligation to report it, it probably doesn't 9 have the same indicia in those circumstances. Generally, 10 that sort of material would be used only to refresh 11 recollection and probably would not be received, it would 12 probably be simply hearsay. 13 The ancient documents exception might sweep 14 that in too, but I just want to describe one category of 15 material that would -- that I don't think is going to come 16 up, but would probably generally not be in the same 17 circumstance as something prepared in one of the three 18 exceptions that we were talking about. 19 You see, you know every document that we have, 20 I don't. 21 MR. ESQUIVEL: Yes. 22 THE COURT: And you know what you intend to put 23 on. Although I have got some material on that, I do think 24 that these are probably each going to be admissible, but I 25 always reserve the final determination until I see it and 304 1 see for what purpose it is offered, and so what you will 2 do is you will hand the document to the ambassador, ask 3 him some appropriate preparatory questions. He doesn't 4 have to read the document. He shouldn't read it out loud 5 anyway. He can read the document to himself, and then say 6 we move its admission under, and if you want to reference 7 the rule at the time, then, of course, Mr. Brooke will 8 know exactly what you're talking about, which is very 9 helpful and so a lot of times if it is clear to me that it 10 is admissible, I'll say it's received and that will 11 resolve the question. If there seems to be a substantive 12 question, then you can approach the side bar. Most of 13 these are going to be pretty clear, I think. 14 MR. ESQUIVEL: I believe so, Your Honor. And I 15 have an extra copy for Your Honor so that I will show -- I 16 have one marked to show the witness and so that Your Honor 17 can see the document as well. 18 THE COURT: As soon as we determine it is 19 admissible or not, it should be very quickly, then it is 20 allowed to be displayed once it is received. Once it is 21 given a number, it can be then displayed so that, 22 obviously, it is much easier for all of us to see the page 23 you're on and the paragraph you're on if you're using the 24 computerized version. 25 MR. ESQUIVEL: So Your Honor prefers to show it 305 1 to the witness before it is marked with a potential 2 exhibit number? 3 THE COURT: Well, it can be given -- I would 4 like -- you can say I would like it marked for 5 identification Exhibit 1, and then we strike the ID or it 6 can be submitted, looked at and marked only for received, 7 it doesn't matter, either one is satisfactory. 8 MR. BROOKE: Is the general tenor of Your 9 Honor's thoughts that a state department memo that he 10 authored would more likely than not be received into 11 evidence, because I don't want to keep making objections? 12 THE COURT: Oh, exactly. It appears that these 13 are going to be exceptions under the hearsay rule for -- 14 under one, two or three of the reasons cited, maybe all 15 three. It does appear that they will be, and he wasn't 16 writing home to his Aunt Susan, he was actually doing this 17 as part of his job, he had an obligation to make 18 observations, I assume he will say that. 19 MR. ESQUIVEL: Yes, I assume so too. 20 THE COURT: If we get the appropriate predicate 21 laid, and he agrees that that is the situation, then they 22 will be received. 23 MR. BROOKE: All right. Can we assume then we 24 have a continuing objection so I don't have to -- 25 THE COURT: Oh, yes. You know, When the rules 306 1 were amended, most of the -- that is certainly a favored 2 procedure is to say, well, I object to this category of 3 materials and unless the plaintiff takes a different 4 position, you would have an objection in that regard. 5 Now, if you have got -- if one comes up and it is quite 6 clear that is different, we need to talk about it, because 7 I might exclude it, I may well exclude it. 8 MR. ESQUIVEL: We have no objection to that 9 procedure. 10 THE COURT: Are you all set? 11 MR. FARGARSON: Did we formally announce that 12 we wanted the rule? 13 MR. ESQUIVEL: Yes. 14 THE COURT: I don't know that the rule was 15 called for, but I think everybody understands that it has 16 been called for. Anybody -- of course, the parties can 17 all be present, the experts can be present for both sides. 18 MR. FARGARSON: Right, we talked about the 19 expert, but I don't believe we said we call for the rule, 20 but we do. 21 THE COURT: The rule has been called for and, 22 therefore, everybody -- 23 MR. BROOKE: We need to get Mrs. Carranza and 24 the daughter out. 25 THE COURT: Well, unless they have no 307 1 objection, and sometimes there's an agreement. 2 MR. FARGARSON: Mrs. Carranza will -- 3 MR. ESQUIVEL: We wouldn't object to 4 Mrs. Carranza, she is on the witness list, as long as they 5 wouldn't object to Irma Calderon who was the sister of 6 Mr. Calderon, who is also on our witness list. 7 MR. FARGARSON: Mrs. Carranza is gone. 8 MR. ESQUIVEL: And so is Mr. Calderon and so -- 9 THE COURT: Well, the rule will simply be 10 followed, and if there is an exception and you agree upon 11 it, you can announce it to the court. 12 (The following proceedings were had in open 13 court.) 14 THE COURT: Mr. Esquivel, I think we're ready 15 to proceed. I will have the jury come in, and we will 16 call our first witness, and the witness can come in and be 17 seated so they can be called immediately if you would 18 like. You can bring the panel in. 19 MR. ESQUIVEL: Yes, Your Honor. 20 (Jury in at 10:50 a.m.) 21 THE COURT: Y'all get to be seated. All right. 22 Everybody can be seated. Ladies and gentlemen, we were 23 back in here actually early, but sometimes things are 24 brought up, try to bring them up so we don't have too many 25 interruptions, and we have accomplished that. 308 1 Mr. Esquivel, who will your first witness be? 2 MR. ESQUIVEL: Your Honor, The plaintiffs call 3 Ambassador Robert White. 4 THE COURT: If you would stop there, please, at 5 the podium and raise your right hand. 6 THE CLERK: Do you solemnly swear the testimony 7 you are about to give the court in this matter to be the 8 truth, the whole truth and nothing but the truth, so help 9 you God? 10 THE WITNESS: I do. 11 THE CLERK: You may take the witness stand. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIRECT - ROBERT WHITE 309 1 ROBERT WHITE, 2 was thereupon called as a witness on behalf of the 3 Plaintiffs, and having been first duly sworn, was 4 examined and testified as follows: 5 DIRECT EXAMINATION 6 BY MR. ESQUIVEL: 7 Q. Good morning, Ambassador White. 8 A. Good morning. 9 Q. Where do you live, sir? 10 A. I live in Alexandria, Virginia. 11 Q. What do you do for a living? 12 A. I am the president of the Center for International 13 Policy, which is a think tank that specializes in 14 international affairs and particularly in Latin America. 15 Q. And how long have you done that work? 16 A. Well, I have done that work basically ever since I left 17 the Foreign Service. 18 Q. Now, Ambassador White, you served as the United States 19 Ambassador in 1980 and part of 1981, is that correct? 20 A. Yes. 21 Q. We will, of course, talk about that period in great 22 depth, but I want to begin and ask you to tell the members of 23 the jury, please, something about your background. Could you 24 describe your education, please? 25 A. Yes. I have a bachelor's degree in history and a DIRECT - ROBERT WHITE 310 1 master's degree in international relations. I entered the 2 Foreign Service after a brief period of working in the private 3 sector, and I was in the Foreign Service for 25 years. I 4 served in Asia and Europe and I served -- I concentrated on 5 Latin America; and I served in Latin America basically between 6 1963 and 1981. 7 Q. Now, Ambassador, when you say you were in the Foreign 8 Service, what kind of post did you hold in this position? 9 A. Well, you start out as a relatively junior officer, I 10 was Chief of the Political Section in Honduras. I was the 11 Deputy Ambassador in Nicaragua, I was the Deputy Ambassador in 12 Colombia, I was ambassador in Paraguay. I was Deputy 13 Ambassador to the Organization of American States and 14 Ambassador to El Salvador. 15 Q. What's the Organization of American States? 16 A. The Organization of American States is like the United 17 Nations for Latin America for the western hemisphere. 18 Q. And describe for the jury, please, Ambassador White, 19 generally what the duties of a United States ambassador are. 20 A. Well, the primary purpose -- of course, there's 21 several, there's a number of primary purposes. One, you are 22 the representative of your country, your nation. The 23 ambassador is the personal representative of the president. 24 In that capacity, he or she is the eyes and ears of the 25 nation. It is our responsibility to keep Washington, to keep DIRECT - ROBERT WHITE 311 1 the Department of State and the other agencies of government 2 and the White House informed of developments that could affect 3 the foreign policy of the United States. 4 Q. What are the resources that are available to a United 5 States ambassador to conduct that business? 6 A. Well, the resources are substantial. We have a -- the 7 United States is, of course, the super power and we have no 8 shortage of tools to get our job done. We have electronic 9 equipment where we have instantaneous communication with 10 Washington. We have representatives of various agencies 11 interested in foreign affairs in the Embassy, we have a 12 trained corps of diplomats which are -- which function under 13 the control of the Department of State. 14 Q. And what type of staff is at the disposal of the 15 ambassador in an embassy? 16 A. Well, you have -- of course, first you have trained 17 diplomats who have language facility and who go out around the 18 country and ascertain what is happening. You have consuls 19 whose primary job is to protect American citizens, to make 20 sure that these applicants to the United States are 21 trustworthy and will return, that is you do passports and do 22 other work that has to do with protecting American citizens. 23 You have economic officers that report on the economic state 24 of the country to which you are accredited because naturally 25 you are there also to develop trade and investment. You have DIRECT - ROBERT WHITE 312 1 political officers that are specialized in analysis of the 2 political situation of the country, what is happening in that 3 country that could affect U. S. interests. 4 Q. Ambassador White, when were you appointed United States 5 Ambassador to El Salvador? 6 A. In 1979. 7 Q. And please describe for the jury for the particular 8 embassy in El Salvador where you served, what was the 9 composition of the staff and what were the resources available 10 to you there? 11 A. Well, I served as Ambassador in El Salvador. As I 12 said, the ambassador is the president's representative, it is 13 his or her responsibility to control all the different 14 elements that are within the embassy and to make certain that 15 they are functioning together as a team. That is the primary 16 responsibility of an ambassador. It also is that he will 17 relate to the head of state and the other important people in 18 the country, because it is his job to know what's going on. 19 Q. And as Ambassador to El Salvador, did you do that, did 20 you relate to the heads of state and inform people in El 21 Salvador? 22 A. Yes, I did. 23 Q. How often would you do that? 24 A. Well, I suppose every day, I would be meeting with all 25 different sectors of -- it would be a rare day when I was not DIRECT - ROBERT WHITE 313 1 involved in some way with El Salvadorans, and some days I 2 might just be playing tennis with them. Some days, I would be 3 out on the cocktail circuit, which is a heavy burden on 4 ambassadors, but you have to do it. 5 Q. What specific sectors of the Salvadoran government or 6 society would -- did you have interactions with? 7 A. Well, I had interactions with as many as I could, but 8 I -- of course, I'm accredited to the government, my primary 9 obligation was to relate to that government, to the head of 10 state, and in this case, the head of state was a junta, a 11 five-man team, although that would be going too far to call it 12 team, because there was marked differences of opinion between 13 and among the members of that team. You -- there were two 14 military representatives on that junta, and they represented 15 the real power in the country. 16 Q. Now, Ambassador White, these meetings that you had and 17 the information that you obtained, did you relay that 18 information to the State Department in Washington? 19 A. Yes, I did. 20 Q. And tell the jury about that process, how that was 21 done. 22 A. Well, I suppose that we were sending 50 or 60 telegrams 23 a day into the Department of State. Now, these cables varied 24 in importance from the petty -- the ones that were just 25 reporting on something insignificant, but was material to a DIRECT - ROBERT WHITE 314 1 particular issue at the time to the -- to those cables that 2 are of great importance that I would draft myself and would 3 sign. Now, I signed all important cables. There were some 4 cables of lesser importance that were signed by the Deputy 5 Chief of Mission, who is sort of the deputy ambassador. 6 Q. How important was it that these cables that you and 7 others in the Embassy relayed that they be accurate? 8 A. Well, I would say it was of crucial importance. The 9 integrity of Foreign Service reporting is of great importance, 10 because as I said, the Foreign Service and the ambassador are 11 the eyes and ears of this nation, and unless we report 12 accurately, our country is flying blind, and so it is of vital 13 importance that we get out, find out what is going on in the 14 country and tell the President, tell the Secretary of State 15 what is happening. 16 Q. Ambassador White, did you have a security clearance to 17 view classified information when you were the United States 18 Ambassador to El Salvador? 19 A. I had the highest security clearance. 20 Q. The highest clearance. 21 MR. ESQUIVEL: Your Honor, at this point, the 22 plaintiffs offer Ambassador White as an expert witness in 23 the political and military structure in El Salvador during 24 the time that he served as the ambassador. 25 THE COURT: Any voir dire as to his credentials DIRECT - ROBERT WHITE 315 1 or qualifications? 2 MR. BROOKE: Your Honor, I don't believe we 3 were ever advised that he was going to be designated as an 4 expert. 5 THE COURT: I think we had a discussion about 6 that already. We can talk about this very briefly at side 7 bar. 8 (The following proceedings had at side-bar 9 bench.) 10 MR. FARGARSON: Did we? 11 MR. ESQUIVEL: I sent a letter disclosing him 12 as an expert back in November. 13 THE COURT: Gentlemen, gentlemen, it has 14 already been signed as part of the pretrial order, so I'm 15 kind of at a loss here, I think. The plaintiffs -- this 16 is the language on page 13, the plaintiffs will also call 17 Ambassador Robert White who will testify primarily as a 18 fact witness, but will also be offered as an expert 19 witness about the Salvadoran military and political 20 structure based on the specialized notice he gained as 21 United States Ambassador to El Salvador. So, obviously, 22 the court has notice and it became part of the document 23 which controls the proceeding, so I'm kind of at a loss as 24 to the basis of the objection. 25 MR. FARGARSON: We never got any report about DIRECT - ROBERT WHITE 316 1 him being an expert. 2 THE COURT: But this document is the 3 controlling document in the case. In other words, there 4 was no objection, including the language in the pretrial 5 order, so it is a surprise to the court that there's an 6 objection, that's my problem. Was there a report also 7 produced, although -- 8 MR. ESQUIVEL: There was no need for a report, 9 Your Honor, because Ambassador White doesn't fall within 10 the category of an expert. 11 THE COURT: He's not a retained expert at all. 12 I don't think he is a retained expert, and this does come 13 up on occasion. The document was entered into and signed 14 by the court. I think we need to proceed in this matter. 15 Thanks very much. 16 (The following proceedings were had in open 17 court.) 18 THE COURT: The court will, in accordance with 19 the documents that govern the proceeding, accept 20 Ambassador White as an expert about the Salvadoran 21 military and political structure based on the specialized 22 knowledge gained by him as United States Ambassador to El 23 Salvador. 24 BY MR. ESQUIVEL: 25 Q. Ambassador White, describe for the jury, please, the DIRECT - ROBERT WHITE 317 1 political background of El Salvador in general terms before 2 you arrived as ambassador. 3 A. El Salvador had the longest running military 4 dictatorship in Latin America. It was a dictatorship known 5 far and wide for its brutal and harsh methods and for the 6 injustice of the system. The percentage of landless and near 7 landless in El Salvador was the highest in the world. 8 Bangladesh was second. The court system -- I mean there were 9 judges and courts, but they basically did nothing. No rich 10 person was ever tried for any serious crime, and rough justice 11 was meted out to the poor either through a gun butt or a gun 12 battle, depending on the seriousness of the offense or the 13 accusation. So what you had was a near total military 14 dictatorship that was run for the benefit of a very few 15 people. There's a very famous phrase that I'm sure you will 16 hear throughout this trial about 14 families, and 14 families 17 controlled the wealth of El Salvador. And what you had in El 18 Salvador when I arrived was an up-push of poor people. The 19 influence of guerillas as guerillas was wildly exaggerated. 20 Nobody -- a few guerillas are not really a problem unless they 21 have -- unless behind them in this great mass of people 22 demanding democracy, demanding change, and that's what 23 happened -- that's what was happening in El Salvador -- 24 Q. Ambassador White, I'm sorry to interrupt you, sir, but 25 I do want to make sure that the jury understands, when you DIRECT - ROBERT WHITE 318 1 used the term guerillas before, could you explain, please, 2 what you were talking about and what you were referring to 3 when you mentioned the presence of guerillas? 4 A. There was a left wing group of young people who had 5 despaired that change could ever take place under the 6 democratic forms of El Salvador, and they in despair took up 7 arms. These people -- there weren't that many of them. 8 According to our Embassy reports, there were fewer than 500 in 9 1979-1980. The real -- what you had was in a country of five 10 million people, you have 300,000 people peacefully 11 demonstrating in the streets, and that was where the real -- 12 the real challenged leg to military rule. The military could 13 not last if the people rose up and demanded a fair vote and 14 demanded that they be counted as citizens, and so the military 15 of El Salvador, they didn't fight very much when I was there. 16 They killed a lot of people on the mere suspicion that they 17 were -- that they would not accept the system as it was. 18 Q. Now, in the military in El Salvador at the time, was 19 there an event or a time in October of 1979 where something 20 happened politically that was significant? 21 A. Yes. 22 Q. What was that? 23 A. This was the -- a revolt by younger, more idealistic 24 officers who wanted change, who wanted a democratic form of 25 government. They wanted more than democratic form, they DIRECT - ROBERT WHITE 319 1 wanted the substance of democracy as well. And it was, as I 2 said, led by younger, more idealistic officers. And they 3 ousted the military president and they threw out of the 4 military a great many senior officers whose violations of 5 human rights were well documented and well-known, and so they 6 presented to the world during October and November a new face 7 of the Salvadoran military. 8 Q. And this effort at reform that these younger officers 9 began, was it ultimately successful? 10 A. No, unfortunately, it was ultimately unsuccessful. 11 Q. And why is that? 12 A. It was unsuccessful because the real power never passed 13 to the younger officers, the idealistic officers. There was a 14 cabal of men headed by Colonel Garcia and Colonel Carranza and 15 others who simply wanted to have the stamp of reform on their 16 efforts, but who were not going to allow civilians to govern. 17 MR. ESQUIVEL: Your Honor, may I have 18 permission to approach the witness and hand him a 19 document? 20 THE COURT: Certainly. 21 BY MR. ESQUIVEL: 22 Q. Ambassador White, I'm handing you a document that is 23 dated February 17, 1980, the subject of it is meeting with 24 Salvadoran high command on mobile training teams. 25 A. Yes. DIRECT - ROBERT WHITE 320 1 Q. Have you ever seen this document before? 2 A. Yes, I have. 3 Q. Can you tell me who the author of this document is? 4 A. The author of this document is James Cheek. 5 Q. And who is Mr. Cheek? 6 A. He was the acting ambassador for a short period between 7 the departure of the form