U N R E D A C T E D 1594 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 14, 2005 VOLUME X BRENDA PARKER OFFICIAL REPORTER SUITE 942 FEDERAL BUILDING 167 NORTH MAIN STREET MEMPHIS, TENNESSEE 38103 1595 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. 1596 W I T N E S S I N D E X WITNESS PAGE LINE NORMA ELIZABETH CARRANZA DIRECT EXAMINATION BY MR. BROOKE: ........................ 1599 8 TERRY LYNN KARL DIRECT EXAMINATION BY MR. ESQUIVEL: ...................... 1606 6 CROSS EXAMINATION BY MR. BROOKE: ........................ 1614 21 1597 E X H I B I T I N D E X EXHIBIT NUMBER PAGE LINE Exhibit Number 54 Cable 1607 12 Exhibit Number 55 Article 1609 4 Exhibit Number 56 Cable 1610 10 Exhibit Number 57 Newspaper Article 1612 7 1598 1 MONDAY MORNING AND AFTERNOON 2 NOVEMBER 14, 2005 3 The jury trial in this case resumed on this 4 date, Monday, November 14, 2005, at 9:05 o'clock a.m., 5 when and where evidence was introduced and proceedings 6 were had as follows: 7 8 ____________ 9 10 THE COURT: If everyone is ready, we can bring 11 the panel in. 12 (Jury in at 9:05 a.m.) 13 THE COURT: All right. You may be seated. 14 Will there be any other witnesses for the defense? 15 MR. BROOKE: Yes, Your Honor. Norma Carranza. 16 THE COURT: All right. 17 THE CLERK: Ma'am, if you will raise your right 18 hand to be sworn. Do you solemnly swear the testimony you 19 are about to give the court and jury in this matter to be 20 the truth, the whole truth and nothing but the truth, so 21 help you God? 22 THE WITNESS: I swear. 23 THE CLERK: You may take the witness stand. 24 THE COURT: You may proceed. 25 DIRECT - NORMA ELIZABETH CARRANZA 1599 1 (Francis Icaza previously sworn to interpret 2 English into Spanish and Spanish into English.) 3 NORMA ELIZABETH CARRANZA, 4 was thereupon called as a witness on behalf of the 5 Defendant, and having been first duly sworn, was 6 examined and testified as follows: 7 DIRECT EXAMINATION 8 BY MR. BROOKE: 9 Q. Would you please state your full name for the court and 10 jury? 11 A. Norma Elizabeth Carranza. 12 Q. And what is the date of your birth? 13 A. 28th of March of 1940. 14 Q. And where were you born? 15 A. In El Salvador. 16 Q. Where do you attend school? 17 A. Elementary school at the (speaking in Spanish) and 18 secondary school at (speaking in Spanish). 19 Q. When did you meet Nicolas Carranza? 20 A. I met him in the year of 1957. 21 Q. And did you and Nicolas Carranza get married? 22 A. In 19 -- the 30th of August of 1958. 23 Q. And have you and Mr. Carranza had any children? 24 A. We have five children, one male and four females. 25 Q. What are the ages of your children and where do they DIRECT - NORMA ELIZABETH CARRANZA 1600 1 live? 2 A. 50, 47, 45, 41, 38. Victor Manuel lives in Los 3 Angeles, California. Maria Teresa lives in Memphis, 4 Tennessee. Norma Elizabeth lives in El Salvador. Ana 5 Consquelo lives in El Salvador, and Claudia Heldena lives here 6 in Memphis. 7 Q. Did you live with your husband in El Salvador? 8 A. The majority of the time, yes. 9 Q. And when your husband came for training in Oklahoma, 10 did you live with him in Oklahoma? 11 A. Yes. 12 Q. And is that where your daughter Maria was born? 13 A. Yes. 14 Q. And did you then move with your husband and family to 15 the United States? 16 A. Yes. 17 Q. What year did you move to the United States? 18 A. It was in 1958. 19 Q. The year that you moved to the United States? 20 A. Yes, it was that year, the year I married. 21 Q. And did you stay in the United States then through that 22 time or did you go back and live in El Salvador? 23 A. No, I was here for one year during his studies here. 24 Q. Yes, but I mean did you move back to El Salvador after 25 you lived the one year here? DIRECT - NORMA ELIZABETH CARRANZA 1601 1 A. Uh-huh, yes. 2 Q. And when did you permanently move to the United States 3 to live permanently here? 4 A. In 1985. 5 Q. And what address have you lived at in the United States 6 since moving here in 1985? 7 A. At the same address always at 6530 Red Birch Drive, 8 Memphis, Tennessee, for 20 years. 9 Q. Since moving to the United States and in Memphis, 10 Tennessee in 1958, have you and your husband had occasion to 11 go back and visit in El Salvador? 12 A. We have returned almost every year to see my parents 13 and my daughters who live there. 14 Q. How many grandchildren do you and your husband have? 15 A. Fourteen. Beautiful children. 16 Q. Do you recall when your husband was made the 17 subsecretary of defense ministry? 18 A. Not exactly. 19 Q. Do you remember generally? 20 A. Must have been between 1983 or '81 or '84, I don't 21 know. 22 Q. Okay. 23 A. I'm not sure. 24 Q. No, I'm not asking for a date, I'm asking you if you 25 just generally remember when he held that position. DIRECT - NORMA ELIZABETH CARRANZA 1602 1 A. Yes. 2 Q. At any time when your husband held that position, did 3 he bring a weapon into the home? 4 A. Not visible because we had children in the house. 5 Q. At any time while he held that position, did he leave 6 the home during the middle of the night? 7 A. Never, never. 8 Q. Do you recall when your husband became the director of 9 the treasury police? 10 A. Yes, but not the date. 11 Q. All right. And as the director of treasury police, did 12 he bring a weapon into the home? 13 A. No. 14 Q. At any time while he was director of the treasury 15 police, did he leave during the night? 16 A. No. 17 Q. During your marriage at any time while you lived in El 18 Salvador with Nicolas Carranza, did he tell you that he was 19 receiving any monies from the United States government? 20 A. Not until my deposition in December of last year. 21 Q. During the course of your 30 -- course of your 47-year 22 marriage, have you witnessed, observed your husband to be a 23 man of violence? 24 A. Never. I would never have been able to stand 47 years 25 with a violent man. DIRECT - NORMA ELIZABETH CARRANZA 1603 1 Q. Has your husband been a good husband? 2 A. A marvelous husband. 3 Q. Has he been a good father? 4 A. More than a better husband. 5 THE INTERPRETER: More than a good husband, the 6 interpreter corrects himself. 7 BY MR. BROOKE: 8 Q. And has he been a good grandfather? 9 A. I really have no words to express. A grandfather more 10 than being a good one, very aware, careful. 11 MR. BROOKE: I believe that's all. Thanks very 12 much. 13 THE COURT: Cross examination? 14 MS. BLUM: Your Honor, we don't have any cross 15 examination. 16 THE COURT: All right. Thank you very much. 17 (Witness excused.) 18 THE COURT: Who will our next witness be? 19 MR. BROOKE: That completes the defendant's 20 proof. 21 THE WITNESS: Thank you, everybody. 22 THE COURT: Certainly. Will there be any 23 rebuttal proof from the defense? 24 MR. ESQUIVEL: Your Honor, the plaintiffs call 25 one rebuttal witness, Professor Terry Karl. 1604 1 THE COURT: Certainly. Professor Karl, so it 2 will reflect it in the record, we're going to swear you in 3 again so it will be right here in this point of the 4 record. 5 THE CLERK: Do you solemnly swear the testimony 6 you are about to give the court and jury in this matter to 7 be the truth, the whole truth and nothing but the truth, 8 so help you God? 9 THE WITNESS: I do. 10 MR. BROOKE: Your Honor, may we approach? 11 THE COURT: You may. 12 (The following proceedings had at side-bar 13 bench.) 14 MR. BROOKE: Your Honor, may we inquire into 15 the scope of the rebuttal to determine if it is 16 appropriate rebuttal? 17 THE COURT: Sure, if you want to. 18 MR. ESQUIVEL: I have two subjects. One is the 19 assassination of Colonel Montenegro. There was testimony 20 last week that the colonel was still alive. Professor 21 Karl will present evidence that Colonel Montenegro was 22 assassinated in 1984. 23 The second subject I have is the testimony last 24 week about members of the military who were punished for 25 the killing of the American church women, and she is going 1605 1 to clarify the people who were punished and their 2 positions in the military. 3 THE COURT: All right. It sounds appropriate. 4 MR. BROOKE: Can we ask what are the sources of 5 the assassination information? 6 MR. ESQUIVEL: I think we're about to find out. 7 THE COURT: I don't think we need to do that 8 right now. 9 (The following proceedings were had in open 10 court.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DIRECT - TERRY LYNN KARL 1606 1 TERRY LYNN KARL, 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, Professor Karl. 8 A. Good morning. 9 Q. I have two subjects that I want to ask you about, 10 Professor Karl. The first is were you surprised last week 11 when you heard Colonel Carranza's testimony that the judge who 12 was investigating Mr. Alvarado's torture and Lieutenant 13 Commander Schaufelberger's murder was still alive? 14 A. Yes, I was. I had testified that he was dead. 15 Q. In your research and your studies, have you come across 16 evidence that Colonel Montenegro who was the judge in 17 Mr. Alvarado's case was, in fact, assassinated in 1984? 18 A. Yes, I have. His full name is Colonel Jose Montenegro 19 Vasquez. 20 MR. ESQUIVEL: Your Honor, may I have 21 permission to approach the witness? 22 THE COURT: You may. 23 BY MR. ESQUIVEL: 24 Q. Professor Karl, I've handed you -- excuse me. I've 25 handed you a document that is dated September 28th, 1983 that DIRECT - TERRY LYNN KARL 1607 1 is a cable from the United States Embassy. Do you recognize 2 this document? 3 A. Yes, I do. This is a cable that was sent by Ambassador 4 Tom Pickering who was U. S. ambassador at the time of Daniel 5 Alvarado's capture. It was sent directly to the secretary of 6 state, and it reflects that the interactions between the 7 embassy and the secretary of state around the case of Daniel 8 Alvarado were being watched very carefully from Washington. 9 MR. ESQUIVEL: Your Honor, the plaintiffs move 10 this cable into evidence as the next marked exhibit. 11 THE COURT: It is so received. Exhibit 54. 12 (Exhibit Number 54 was marked. Description: 13 Cable.) 14 BY MR. ESQUIVEL: 15 Q. Would you please read paragraph two of this cable for 16 the jury? 17 A. On September 24th, 1983 -- excuse me, I can't actually 18 read this. The -- 19 Q. Does that say RSO, Professor Karl? 20 A. RSO, that's right. Received a letter from Colonel Jose 21 A. Montenegro Vazquez. The judge now presiding over the ITCIR 22 Schaufel -- over the Lieutenant Commander Schaufelberger 23 assassination case. And that's a document that documents the 24 name of the judge who was presiding over the murder of 25 Lieutenant Commander Schaufelberger, the American officer. DIRECT - TERRY LYNN KARL 1608 1 Q. And that judge is Jose A. Montenegro Vasquez, is that 2 right? 3 A. That's right. 4 Q. Now, we have heard testimony in this trial about a 5 Colonel Montenegro, can you explain to the jury why his name 6 is Montenegro Vasquez in this cable? 7 A. The way names work in Latin America is Montenegro is 8 the name he would be referred to as. Vasquez is the name of 9 his mother or his mother's family, so we would call him 10 Colonel Montenegro, and that's how he would be referred to in 11 El Salvador. 12 MR. ESQUIVEL: Your Honor, may I have 13 permission to approach the witness? 14 THE COURT: You may. 15 BY MR. ESQUIVEL: 16 Q. I have handed you a document which is an article from 17 United States Press International dated March 1, 1984. Have 18 you seen this document before? 19 A. Yes, I have. 20 Q. What is it? 21 A. It is a document by United Press, UPI, United Press 22 International that went over the wire services. It was picked 23 up by the Washington Post in Washington, D. C. And the 24 document reports the murder, the death of Army Colonel Jose 25 Alberto Montenegro Vasquez. DIRECT - TERRY LYNN KARL 1609 1 MR. ESQUIVEL: Your Honor, the plaintiffs move 2 this document into evidence as Exhibit 55. 3 THE COURT: So received. 4 (Exhibit Number 55 was marked. Description: 5 Article.) 6 A. It also notes, by the way, that he is the coordinator 7 of instruction judges in charge of military tribunals which 8 confirms that he would then be the same military judge that 9 was presiding over Daniel Alvarado's case. 10 BY MR. ESQUIVEL: 11 Q. Now, Professor Karl, the members of the jury are able 12 to see that exhibit. Would you please read for them the 13 sections that you were just referring to? 14 A. Yes. It says unidentified gunmen shot to death Army 15 Colonel Jose Alberto Montenegro Vasquez, 51, coordinator of 16 instruction judges in charge of military tribunals. 17 Q. Thank you, Professor Karl. 18 Have you seen evidence in declassified documents of the 19 assassination of Colonel Montenegro? 20 A. Yes, I have. 21 MR. ESQUIVEL: Your Honor, may I approach the 22 witness? 23 THE COURT: You may. 24 BY MR. ESQUIVEL: 25 Q. Professor Karl, I have handed you a cable from the DIRECT - TERRY LYNN KARL 1610 1 United States Embassy in San Salvador dated March 6th, 1984. 2 Have you seen this before? 3 A. Yes, I have. 4 Q. What is this document? 5 A. This is a cable that is sent by the embassy to the 6 department of state. 7 MR. ESQUIVEL: Your Honor, the plaintiffs move 8 this document into evidence as Exhibit 56. 9 THE COURT: So received. 10 (Exhibit Number 56 was marked. Description: 11 Cable.) 12 BY MR. ESQUIVEL: 13 Q. Professor Karl, would you please read for the members 14 of the jury paragraph two of this cable? 15 A. On March 1st, Colonel Jose Alberto Montenegro Vasquez, 16 a judge in the military tribunal, was shot and killed by would 17 be kidnappers when he resisted abduction. 18 Q. Thank you, Professor Karl. 19 From your research, did you find whether evidence of 20 Colonel Montenegro's assassination appeared in newspapers in 21 El Salvador? 22 A. Yes, I did. This assassination was -- appeared in the 23 major newspapers in El Salvador. 24 MR. ESQUIVEL: Your Honor, may I have 25 permission to approach the witness? DIRECT - TERRY LYNN KARL 1611 1 THE COURT: You may. 2 BY MR. ESQUIVEL: 3 Q. Professor Karl, I've handed you a document that is 4 written in Spanish. It is a newspaper article from March 2nd, 5 1984. Have you seen this document before? 6 A. Yes, I have. And I have seen other documents like this 7 from other newspapers in El Salvador. 8 MR. ESQUIVEL: Your Honor, the plaintiffs move 9 this document into evidence as Exhibit 57. 10 THE COURT: It is so received as 57. 11 BY MR. ESQUIVEL: 12 Q. Now, this document is in Spanish, but do you speak 13 Spanish, Professor Karl? 14 A. Yes, I do. 15 Q. Would you please translate for the members of the jury 16 or tell them what the headline of this article says? 17 A. At the top where that black box is, these are events 18 that happened the night before, so this is something that must 19 have been put in the paper very late in the production of the 20 newspapers. This is a corner of a newspaper called La Prensa 21 Grafica where they report the happenings from the night 22 before. 23 Q. And what does the newspaper report? 24 A. The newspaper headline says Fue asesinado ayer el 25 Colonel Montenegro V. The Colonel Montenegro V was DIRECT - TERRY LYNN KARL 1612 1 assassinated yesterday. And then it proceeds to describe that 2 Colonel Jose Alberto Montenegro Vasquez, 51 years of age, 3 whose body was found in the Centro Urbano Jardines de Moupegon 4 was assassinated. And they describe his murder. 5 Q. Thank you, Professor Karl. Now, I want to ask you -- 6 A. Excuse me, this hasn't been marked in evidence. 7 (Exhibit Number 57 was marked. Description: 8 Newspaper Article.) 9 BY MR. ESQUIVEL: 10 Q. Now, Professor Karl, I want to ask you about the murder 11 of the American church women in December of 1980. Were any 12 Salvadorans soldiers punished for killing the American church 13 women? 14 A. Four American church women were murdered on December 15 the 2nd, 1980. There was tremendous pressure from the United 16 States to find who the murderers of these Americans were, and, 17 in fact, U. S. aid was contingent upon the discovery and 18 prosecution of the murders. As a result, five national guard 19 men were identified. They included the deputy sergeant who 20 was in charge of the other four national guard members. His 21 name was Luis Antonio Calendres Alemon (spelled phonetically), 22 and four other national guard men. They were eventually 23 tried. They were arrested in 1981. Excuse me, let me 24 backtrack a minute. They were arrested in 1981 and put in 25 Mariona prison, which is the prison for men. They were put in DIRECT - TERRY LYNN KARL 1613 1 a special section of the prison because in Mariona prison 2 which was frequently visited between 1983 and 1985, in 3 particular, by the Red Cross, members of the U. S. Congress 4 and human rights organizations. In Mariona prison, there's a 5 section for political prisoners, which is where Daniel 6 Alvarado was held. There is another section for military 7 prisoners. That section includes all military men who have 8 been convicted of common crime. And in frequent visits, there 9 were never any military men in that prison for human rights 10 violations. In other words, they would be there because they 11 stole the cattle of a landowner or because they had gotten 12 drunk and shot up a restaurant for common crimes, but they 13 were not there for human rights violations. 14 Q. When were the five members of the national guard tried 15 and punished for the killing of the church women? 16 A. They were tried in 1984. They were arrested on 17 April 29th, 1981, and they were tried and sentenced on May the 18 25th, 1984. This is the first time in Salvadoran history that 19 any member of the Salvadoran armed forces, and by this I mean 20 low level, none of these men are officers, including the 21 deputy sergeant who gave an order, none of these men are 22 officers. The lowest rank of officer is a sub-lieutenant, so 23 all of these are below the level of officer and are what we 24 would call normal troops, if I can put it that way. So they 25 were tried and convicted for -- by the first time in El DIRECT - TERRY LYNN KARL 1614 1 Salvadoran history. On May 25th, 1984, they were sentenced to 2 30 years in prison for the rape and murder of the American 3 church women, and they spent 17 years after that in prison 4 before they were released. These are the men -- the only men 5 who were in prison during the period of time that Mr. Romero 6 was in prison in Mariona and Mr. Alvarado was in prison there. 7 The only military men in prison for any human rights 8 violations. There were five of them. Their names are Deputy 9 Sergeant Luis Antonio Calendres Alemon (spelled phonetically), 10 Daniel Canales Ramirez (spelled phonetically), Carlos Wakeen 11 Contrarez (spelled phonetically), Francisco Orlando Contrarez 12 (spelled phonetically) and Jose Roberto Morano. These are the 13 only military men, and there were no officers, as I said 14 before, who have been tried for any human rights crimes at all 15 in El Salvador until the year 1991, and that was for the 16 murder of six Jesuit priests. 17 MR. ESQUIVEL: Thank you, Professor Karl. 18 THE WITNESS: Thank you. 19 THE COURT: Cross examination. 20 CROSS EXAMINATION 21 BY MR. BROOKE: 22 Q. Professor Karl, when were the six Jesuit priests 23 killed? 24 A. Six Jesuit priests were killed on November the 16th, 25 1989. CROSS - TERRY LYNN KARL 1615 1 Q. Where was Mr. Carranza living at that time? 2 A. In the United States. 3 Q. What was his position with the El Salvadoran military? 4 A. He was outside the army. 5 Q. Why would you and Mr. Garcia bring up -- and former 6 Ambassador White bring up the killing of the six Jesuit 7 priests in 1989 in relevance to this trial? 8 A. I think because what permitted human rights violations 9 to occur in El Salvador was a concept that we call impunity. 10 Impunity means that you can commit violations of human rights 11 without any fear of legal prosecution. And there was absolute 12 impunity for Salvadoran military officers in El Salvador until 13 the murder of the Jesuits, that's why it is important. 14 Q. And you think that has relevance to Mr. Carranza? 15 A. I think that there was impunity in El Salvador when 16 Mr. Carranza was in positions of command responsibility. In 17 other words, I believe that he failed to prevent or punish any 18 human rights violations when he was subsecretary, and I also 19 believe he failed to prevent and punish the violations of 20 people in the treasury police when he was director of the 21 treasury police, and that's why I think impunity matters. 22 Q. Now, you've brought up now the killing of the American 23 church women in December of 1980, correct? 24 A. That's right. 25 Q. When did Mr. Carranza leave the position of CROSS - TERRY LYNN KARL 1616 1 subsecretary of ministry? 2 A. In January, early January. 3 Q. Of 1981? 4 A. That's right. 5 Q. When these military officers were apprehended in '81, 6 would that have been Mr. Carranza's position then, that he was 7 occupying that he was involved in the apprehension? 8 A. They were not officers, sir, they were normal enlisted 9 men, but they were very rapidly identified for the murder of 10 the nuns. 11 Q. And the trial of those men, would that have been 12 carried out by the ministry of defense? 13 A. The trial of the nuns was a very unusual trial. The 14 only trial, as I said, in the first time in Salvadoran history 15 that a trial like this occurred. It was conducted by a 16 regular Salvadoran judge. 17 Q. They had a separate judicial -- civilian judicial 18 system versus just a military judicial system, didn't they? 19 A. They had both, that's right. 20 Q. Versus Guatemala had a military judicial system and a 21 military? 22 A. Well, that's actually not quite correct. Guatemala 23 also has a civilian part of its judicial system. 24 Q. I'm not asking about now. I'm asking about then, in 25 1981-'82. CROSS - TERRY LYNN KARL 1617 1 A. There were no civilian trials of military officers in 2 Guatemala at the time, but I believe there was also a civilian 3 part of the judicial system in Guatemala. 4 Q. Now, Exhibit 56, do you have that in front of you? 5 A. I'm sorry, I don't remember which exhibit number that 6 was. 7 Q. This is one of the documents you have identified 8 referencing the killing of Judge Montenegro. 9 A. That's right. 10 Q. Now, in Exhibit 56, it indicates he was overcharged or 11 had responsibility, I assume, is what the word choice would 12 mean, with overseeing all cases involving terrorists 13 activities and membership to subversive organizations under 14 Decree 507, the state of siege law, is that correct? 15 A. That's right. 16 Q. Counsel didn't have you read that, did he? 17 A. I think the purpose of this cable was to identify the 18 judge. 19 Q. Right, but I mean that -- the fact that Judge 20 Montenegro was killed and being the one responsible for 21 overseeing the judges that handled the terrorists who were 22 incarcerated, wasn't that a continuing problem that judges, 23 the civilian judges who had responsibility for handling the 24 cases of terrorists were under extreme fear and, in fact, many 25 were killed by terrorists and guerillas? CROSS - TERRY LYNN KARL 1618 1 A. I think if you look at the pattern of judges that were 2 threatened and killed in El Salvador, the majority of judges 3 that were threatened had to leave the country or were killed 4 were actually attempting to investigate known cases of 5 civilian murders. For example, the judge who tried to 6 investigate the murder of Arch Bishop Romero had an 7 assassination attempt against him. He recognized the national 8 policemen who were trying to kill him and he had to flee the 9 country. So there are judges killed for all kinds of reasons 10 in El Salvador, and it is true that judges were very afraid in 11 El Salvador, but they were afraid of -- I would imagine if I 12 were a judge, they would be afraid of people who threatened 13 them, depending on the nature of the cases that they were 14 overseeing. 15 Q. Well, are you saying then that the Truth Commission 16 didn't make a finding that many of the judges and mayors were 17 killed by FLM and guerillas and they had fear of handling 18 those cases? 19 A. No, sir, I believe I just testified to that, and I also 20 testified to the targeting of mayors. 21 Q. By the FML or or by the FMLN? 22 A. By the FMLN, that's right. 23 MR. BROOKE: Thank you. 24 THE COURT: Redirect? 25 MR. ESQUIVEL: I have no further questions, CROSS - TERRY LYNN KARL 1619 1 Your Honor. 2 THE COURT: Professor Karl, thank you. We will 3 let you be excused. 4 THE WITNESS: Thank you. 5 (Witness excused.) 6 THE COURT: Will there be any other proof from 7 the plaintiffs in this case? 8 MR. ESQUIVEL: Your Honor, the plaintiffs rest. 9 We have no further proof. 10 THE COURT: All right. Ladies and gentlemen, 11 that concludes all of the evidence that will be submitted 12 in the case. At this time, there's always a break of 13 about 15 to 20 minutes. This will be part of your morning 14 break, at which time we should be returning for the 15 closing arguments in the case. As I indicated, we will 16 probably take a break between the closing arguments and, 17 of course, in closing argument in a civil case or any type 18 of case, frankly, the plaintiff goes first, the defendant 19 then has an argument, and then the plaintiff has an 20 opportunity for a brief rebuttal, which is really limited 21 in time pretty significantly. So it is usually not more 22 than 10 or 12 minutes. So the last two arguments will be 23 heard at the same time. That's the schedule that we will 24 be on. We will see you probably very close to 10:00 25 o'clock to begin final arguments in the case. We will let 1620 1 you be excused. I need to stay here for a moment. Thanks 2 very much. 3 (Jury out at 9:45 a.m.) 4 THE COURT: I'm going to hand out the final 5 revised instructions, and we have actually pulled the -- 6 and I will need one eventually. 7 MR. EISENBRANDT: Your Honor, may we approach 8 after the jury has been dismissed? 9 THE COURT: Sure. Absolutely. Everybody else 10 can be seated. Thanks very much. 11 (The following proceedings had at side-bar 12 bench.) 13 MR. EISENBRANDT: Your Honor, at this time at 14 the close of evidence, the plaintiffs would move under 15 Rule 50 for judgment as a matter of law on all the claims 16 in the case in that no reasonable jury would be able to, 17 after the close of all the evidence, be able to find in 18 favor of the defendant in this case. If you would like me 19 to expand on the argument, I'm happy to do so. 20 THE COURT: Well, as we all know, the role of 21 the court is simply to determine if there is something in 22 each basket; it is not to determine the weight or value of 23 any of the evidence. And under those circumstances, I'm 24 always reluctant to grant that type of relief where there 25 appears to have been some indication on either side in any 1621 1 circumstance, some evidence that was submitted, unless it 2 is just simply di minimus or virtually nonexistent. I 3 don't think I could do that in this case. Colonel 4 Carranza's contention, at least in part, is that he did 5 not have effective command or control and could not have. 6 That was held by others, and one of the arguments is, he 7 was essentially an administrative person within the 8 department of defense. Now, I don't have to resolve that 9 one way or the other, but the jury can consider that, and 10 that is certainly usually a factual question for the 11 panel. So unless there's something else, we need to deny 12 that. 13 On the question of the insertion of the -- of 14 course, now we have pulled out the instruction that we did 15 we just put in. You shouldn't have it in there, I hope it 16 has come out. Now, we do have -- there's certainly a 17 question of fact as to the death of the military judge, 18 and so we would not give that instruction. The jury could 19 consider that, I think it has been well explained why 20 these things would have relevance. 21 There was no instruction initially submitted by 22 anyone in connection with the definition of wanton. We 23 just included the standard definition from Blacks Law, 24 which would include the first definition is a person's 25 conduct is wanton if the person acts unreasonably or 1622 1 maliciously, risking harm while being utterly indifferent 2 to the consequences. That's just the definition of 3 wanton. I think it is probably hopefully acceptable to 4 everybody. 5 MR. BROOKE: Your Honor, we do want to just 6 note for the record on the instruction regarding the death 7 of the military judge, that in the plaintiffs' case in 8 chief, it was standing out there as a hearsay statement, 9 and for that reason, we submit that should not have been 10 anything further involved with that issue. The fact it 11 was hearsay, and it was a -- 12 THE COURT: It would have been an interesting 13 situation if the defendant had put nothing on in that 14 regard, then to allow rebuttal might have been 15 inappropriate, but there was proof and, therefore, the 16 defense was allowed to put on rebuttal, but I understand 17 the argument, absolutely. 18 MR. FARGARSON: And, Your Honor, we want to 19 renew our motion to dismiss. We don't waive that, we 20 still contend the statute of limitations applies and the 21 other issues apply that we made in our prior motions. 22 THE COURT: Exactly. 23 MR. FARGARSON: Dismissed for judgment on the 24 pleadings -- 25 THE COURT: And we have gone over those. 1623 1 Absolutely, we have gone over them carefully earlier, and 2 for the reasons that have been previously stated, I will 3 deny those motions. 4 Also, once again, the evidence is construed in 5 the light most favorable of the nonmoving party in these 6 circumstances. There is simply a dispute as to facts in 7 this case, and the jury is the appropriate entity to make 8 that determination, the court can certainly allow them to 9 do so. 10 Now, let's see, I think you have got the 11 revised instructions here. I think there may be something 12 that hasn't gotten pulled along the way, and there are a 13 couple of things. We did include under the military -- 14 under the law, we changed it to Law of Command 15 Responsibility because that's what was requested, and 16 nobody opposed it. 17 MS. BLUM: Thank you very much, Your Honor. 18 MR. FARGARSON: What was that now? 19 THE COURT: We did change it back to Law of 20 Command Responsibility. I don't have any problem. That 21 was a word choice, it didn't have anything to do with the 22 substance. It is certainly appropriate. 23 MR. FARGARSON: The Law of Command 24 Responsibility? 25 THE COURT: At the end of that, I did add some 1624 1 language, and they used an abbreviated form, which I never 2 do, but at the end of that, I added the language that we 3 talked about earlier. Defendant/commander is used to mean 4 that you cannot find the defendant liable if you find that 5 he was not a military commander. The terms are used 6 conjunctively to show the person is not only a defendant, 7 but must also be shown to be at the relevant time a 8 military commander. Now, this is an interesting concept, 9 we have talked about it. That doesn't mean, of course, 10 that he has to know what is happening, but had he -- and I 11 think you have chosen situations where he was in a 12 position that you can easily argue that he was in a 13 command position at the time of each of these events, so I 14 don't know that there is a question there, and I just said 15 at the relevant times. Somebody can argue that that was 16 not correct, but I did not put in there at the time of the 17 asserted event as to each defendant -- as to each 18 plaintiff; however, I believe that that is correct, that 19 he was in a position of command at the time of the 20 asserted event as to each plaintiff. Mr. Esquivel, I 21 believe that is right. 22 MR. ESQUIVEL: I believe that's right. I think 23 that's what the proof has shown. 24 THE COURT: I said we would put something in. 25 We have sort of ad libbed it before, we have all sort of 1625 1 explained it to the jury before, we may as well write it 2 down. Anybody have a problem with the modification? I 3 don't say things like can't, we don't use -- 4 MS. BLUM: You put cannot? 5 THE COURT: I put cannot. 6 MS. BLUM: Thank you. 7 THE COURT: I literally never do that. 8 MS. BLUM: I was going to be very offended by a 9 contraction in the jury instructions. 10 THE COURT: I think I have actually corrected 11 at least one, maybe I didn't correct it on this one, 12 right? 13 THE LAW CLERK: Perhaps not. 14 THE COURT: But we have been working to get rid 15 of those. We don't like them either. It was actually -- 16 we had that discussion, and that was actually pulled from 17 the transcript -- not the transcript, but the realtime. 18 Punitive damages, what we did on punitive 19 damages was expanded your punitive damages section because 20 there were no definitions in there, really. We need to 21 have definitions for intentional, malicious, wanton and 22 reckless, so I have included definitions for those. And I 23 have pointed out that they will not be deciding the amount 24 at the time. There might be some additional proof in that 25 regard, and we have indicated that to the jury, but they 1626 1 would have to answer the question. And if they say, of 2 course, that it was not, then we won't have a punitive 3 damages question. At the very end, I notice that we 4 needed to make sure that it was said, a little 5 interlineation here, and that will be your final verdict 6 in this case as to that plaintiff, because they could find 7 as to one plaintiff yes, as to one plaintiff, no. 8 MS. BLUM: Oh, yeah, that would be helpful. 9 THE COURT: I just want to make sure it is 10 correct, but I don't want to suggest that at any time you 11 don't decide each case separately because you do. 12 MS. BLUM: You're going to insert that at the 13 verdict form, is that -- 14 THE COURT: It just goes at the bottom, and we 15 have got them most everywhere else, and if I read one that 16 doesn't have one in there and it is clear that it should, 17 and it needs it, I will try to add that at the time. 18 Anything else on the instructions? I mean I 19 think you have got the final version and -- 20 MR. BROOKE: We just want to note for the 21 record our exception to the charge on command 22 responsibility, Your Honor. 23 THE COURT: Certainly, certainly. Did I ask 24 any questions during the trial? I have got over here on 25 statements of counsel, I don't remember asking a single 1627 1 question. 2 MR. FARGARSON: I don't think you did. 3 THE COURT: During a jury trial, I usually 4 don't. You never know what the answer will be, as we all 5 know. 6 MR. FARGARSON: I don't think it hurts to have 7 it in there. I mean I don't think -- I don't think it 8 hurts to have it in there. 9 THE COURT: Except that they may think I have 10 lost my mind since I didn't ask any. 11 MR. ESQUIVEL: Or they forgot something. 12 THE COURT: Did I ask a question at any time? 13 THE LAW CLERK: Not that I remember. 14 THE COURT: I don't remember a single question. 15 MR. ESQUIVEL: Not that I remember. 16 MS. BLUM: I don't think you did. 17 THE COURT: I will just strike it, I don't want 18 to confuse them. They may try to figure out which 19 questions I asked. 20 MS. BLUM: Did we fill in the expert witness 21 names? 22 THE COURT: No, we didn't. I will do that in 23 just a moment. Let's see -- we have heard from -- let me 24 get my list over here. 25 MR. BROOKE: You want to put them in 1628 1 alphabetical order? I think Araujo is first, Your Honor. 2 THE COURT: Let's see. Everybody has referred 3 to Ambassador White, I feel it will be confusing if I 4 don't say Ambassador White. 5 MR. ESQUIVEL: It is his title, Your Honor. 6 THE COURT: Well, I mean since everybody has 7 referred to him in that way, including the defense, it is 8 kind of hard not to. It might be confusing to the jury. 9 Ambassador Robert White. 10 MR. EISENBRANDT: Then you can go with 11 Professor Garcia, if you want. 12 THE COURT: Sure. 13 MR. EISENBRANDT: Since that is how everybody 14 generally was referring to him. 15 THE COURT: Do we have a section there on 16 deposition testimony? 17 THE LAW CLERK: Yes. 18 THE COURT: We do, we do. I know we talked 19 about it. 20 MR. BROOKE: Do you have the standard charge on 21 expert witnesses? 22 THE COURT: Yes. 23 MR. FARGARSON: Yeah, it is in there. 24 THE COURT: It is the standard charge. How am 25 I supposed to refer to Professor Jose Antonio Araujo? 1629 1 MR. BROOKE: He was a professor for a short 2 while, Your Honor, which they have challenged completely. 3 THE COURT: I could say attorney. 4 MR. ESQUIVEL: That would be accurate, he's an 5 attorney. 6 MR. FARGARSON: That's fine, that's what he is. 7 Attorney and professor, just like me. 8 MR. ESQUIVEL: Right, we will call you 9 Professor Fargarson. 10 THE COURT: Is Terry with an I or Y? 11 MS. BLUM: It is Y. 12 THE COURT: I thought I copied it from all the 13 materials, but I wanted to -- four experts. 14 MR. ESQUIVEL: That's correct. 15 THE COURT: Ambassador Robert White, Professor 16 Jose Luis Garcia, Professor Terry Lynn Karl and Attorney 17 Jose Antonio Araujo. 18 MR. FARGARSON: Araujo. 19 THE COURT: Well, they will have it written. I 20 think that's it, just four. 21 Okay. Anything else? 22 MS. BLUM: I think we're set. 23 MR. FARGARSON: Give us a few minutes to go to 24 the restroom. 25 THE COURT: We will take a restroom break. 1630 1 Tell them we're just taking a restroom break, and we will 2 start in five minutes. 3 THE CLERK: Okay. 4 (Recess taken at 10:00 until 10:05 p.m.) 5 THE COURT: All right. I think -- is everybody 6 ready to proceed? 7 Mr. Esquivel, are you going to take the lead? 8 MR. ESQUIVEL: Yes, I am, Your Honor, I will be 9 giving the closing argument. We're ready. 10 THE COURT: Are you going to split the 11 argument? 12 MR. ESQUIVEL: We're not going to split the 13 argument, Your Honor. 14 THE COURT: And let me ask the same thing, is 15 this going to be one argument or is it going to be split? 16 MR. BROOKE: Split. 17 THE COURT: And about how much time -- I'm 18 going to basically -- I will watch the time a little bit. 19 If anybody starts to exceed an hour altogether, then I 20 will say something about it. We said 90 minutes, I would 21 let you have up to 90 minutes. Do you think you will need 22 that much? 23 MR. ESQUIVEL: I don't think we'll need that 24 much. It may be a little bit more than an hour. 25 THE COURT: We will break at the end of yours 1631 1 anyway, that will let us have a good gauge about how much 2 time we're going to need. Good, I think we're all set, 3 you can bring the panel in. You will be getting copies 4 during the -- Ms. Rimmer will distribute them in a moment, 5 but I don't think you probably need anything additional. 6 (Jury in at 10:08 a.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CLOSING ARGUMENT BY MR. ESQUIVEL 1632 1 THE COURT: All right. You may be seated. 2 Counsel for the plaintiff may proceed with closing 3 argument. 4 MR. ESQUIVEL: Thank you, Your Honor. Good 5 morning. 6 THE JURY: Good morning. 7 MR. ESQUIVEL: Let me begin by thanking you for 8 your service as jurors in this case. None of you 9 volunteered to participate in this case, and when you came 10 to the courthouse and into this courtroom two weeks ago, 11 you couldn't have imagined the kind of testimony that you 12 were going to hear and the kind of case that you were 13 going to be asked to serve on. And you have paid close 14 attention to the witnesses, you have paid careful 15 attention to the documents and the exhibits that have been 16 put up during trial, and you have learned during the 17 course of this trial how much this case means to our 18 clients, the plaintiffs, and we appreciate on behalf of 19 myself, my co-counsel and our clients, appreciate very 20 much your service in this case. 21 Two weeks ago, Judge McCalla went through and 22 talked about all of the ways that we can ensure a fair 23 trial, and at the end of that day, two weeks ago, there 24 was some consensus that in order to have a fair trial, to 25 be sure that both sides are heard, we should focus on the CLOSING ARGUMENT BY MR. ESQUIVEL 1633 1 facts. And this morning, I will be going through with you 2 the facts in this case. In this case, the fact is that 3 the plaintiffs have suffered terrible, horrible losses. 4 They have experienced torture, they have experienced 5 murder. The fact is that Colonel Carranza is responsible 6 for those injuries. Colonel Carranza is responsible as a 7 commander. He had command authority over the troops, over 8 the soldiers who committed these acts against the 9 plaintiff. And as a commander, the fact is he had a duty 10 to be sure that those under his command did not commit 11 these kinds of abuses. The fact is that Colonel Carranza 12 failed in his duty as a commander. 13 Now, before we talk about the facts, I want to 14 say a couple of things about the law. Judge McCalla will 15 instruct you after the arguments about the law, and he 16 will tell you what law governs this case. One of the 17 things that he will talk about is the burden of proof, and 18 as the plaintiffs in this case, we have the burden of 19 proof and every one has seen TV and movies and hears the 20 phrase beyond a reasonable doubt. And that is the burden 21 of proof in a criminal case, but as we have said before, 22 this is a civil case, and that is not the burden of proof 23 in this case. In this case, the plaintiffs have the 24 burden of showing their claims, of proving their claims by 25 a preponderance of the evidence, and a preponderance of CLOSING ARGUMENT BY MR. ESQUIVEL 1634 1 the evidence simply means the greater weight of the 2 evidence. It means that the plaintiffs' claims are more 3 likely than not true. So imagine a scale, and on this 4 scale is the plaintiffs' evidence and the defendant's 5 evidence. Now, if the evidence that is presented at trial 6 is equally balanced, the same amount of evidence supports 7 the plaintiffs' case and the same amount of evidence 8 supports the defendant's case, then the burden of proof 9 means that the plaintiffs cannot win in that situation, 10 because the burden is on us, the plaintiffs. But in a 11 civil case, if the evidence leans in favor of the 12 plaintiffs, if there is more evidence in favor of the 13 plaintiffs' case than in favor of the defendant's case, 14 then that is the greater weight of the evidence and the 15 plaintiffs have proven their case; and if you find by a 16 preponderance of the evidence that the plaintiffs have 17 proven their case, then they are entitled to judgment 18 against Colonel Carranza. 19 The other point of law I want to talk to you 20 about is command responsibility. This is a case about 21 command responsibility. The plaintiffs have not alleged 22 and are not saying that Colonel Carranza pulled the 23 trigger in any of these situations or that he directly 24 tortured any of the plaintiffs. The plaintiffs' claim is 25 that Colonel Carranza is responsible as a commander, and CLOSING ARGUMENT BY MR. ESQUIVEL 1635 1 in any command responsibility case, there are two levels 2 of proof. There are two levels to the case. 3 The first level is the acts or the abuses 4 suffered by the plaintiffs, and in this case, we have 5 three claims, extrajudicial killing, torture and crimes 6 against humanity. Those are the three parts of the first 7 level of command responsibility. 8 The second level of any command responsibility 9 case is proving that the defendant is responsible for 10 those underlying acts under a theory of command 11 responsibility, and so as we go through the evidence this 12 morning, I will talk to you about those underlying claims 13 in the first level and I will talk to you about the 14 command responsibility at the second level that Colonel 15 Carranza has for each of those claims. 16 There are two periods at issue in this lawsuit. 17 The period in 1980 when Colonel Carranza was the 18 vice-minister of defense in El Salvador and the period in 19 1983 to 1984 when he was the director of the treasury 20 police. And in the 1980 period, four of the plaintiffs 21 have their claims. They were themselves tortured or their 22 family members were killed during that year. 23 Let's start with the plaintiff, Ana Patricia 24 Chavez. Let me ask her to stand up, please. Thank you. 25 Ana Patricia Chavez's parents were killed by a death squad CLOSING ARGUMENT BY MR. ESQUIVEL 1636 1 in their home in July of 1980. Ana Patricia Chavez is 2 bringing a claim for the extrajudicial killing of her 3 parents, and she is also bringing a claim for Colonel 4 Carranza's responsibility for those killings. 5 The second plaintiff in the 1980 period is 6 Cecilia Santos, and let me ask her to stand up, please. 7 Thank you. Ms. Santos was tortured in the national police 8 headquarters in 1980. Ms. Santos is bringing a claim for 9 her torture. Now, it is common in cases for the court to 10 make certain decisions on parts of the case before trial, 11 and that has happened in this case. Before the trial 12 began, the court has already held that what happened to 13 Cecelia Santos in the national police headquarters meets 14 the legal definition of torture, and so Judge McCalla will 15 instruct you that her claim, her cause of action for 16 torture has already been established. The question you 17 will be asked to decide for Cecilia Santos is whether 18 Colonel Carranza is responsible as a commander for her 19 torture. 20 The next plaintiff in the 1980 period is 21 Francisco Calderon. Mr. Calderon's father was killed in 22 Mr. Calderon's home in September of 1980. Mr. Calderon 23 brings claims for torture and for extrajudicial killing. 24 The extrajudicial killing of his father and a claim for 25 his own torture, the torture that he suffered in being CLOSING ARGUMENT BY MR. ESQUIVEL 1637 1 forced to witness his own father's death. Again, before 2 trial, the court has already found that what happened to 3 Mr. Calderon's father meets the legal definition of an 4 extrajudicial killing, and that what happened to 5 Mr. Calderon in being forced to witness his father's 6 murder meets the legal definition of torture. Those two 7 things have already been found. You will be asked to find 8 that Colonel Carranza is responsible as a commander for 9 the torture of Francisco Calderon and for the 10 extrajudicial killing of his father. 11 The fourth plaintiff from the 1980 period is 12 Erlinda Franco. Ms. Franco's husband was Manuel Franco, 13 one of the six leaders of the FDR, tortured and 14 assassinated in 1980. Ms. Franco brings claims for 15 extrajudicial killing and for crimes against humanity. 16 The court has already found before trial that what 17 happened to Erlinda Franco's husband meets the legal 18 definition of an extrajudicial killing. So that has 19 already been established. Erlinda Franco is also suing, 20 however, for crimes against humanity, and Judge McCalla 21 mentioned that briefly in his preliminary instructions and 22 you have heard something about that. Crimes against 23 humanity basically means that what happened to Manuel 24 Franco was not a random event or a random occurrence, but 25 part of a larger widespread and systematic attack by the CLOSING ARGUMENT BY MR. ESQUIVEL 1638 1 Salvadoran military against a civilian population. You 2 will be asked to find that the killing of Manuel Franco 3 was a crime against humanity, and you will also be asked 4 to find that Colonel Carranza is responsible as a 5 commander for the extrajudicial killing of Manuel Franco 6 and for a crime against humanity. 7 Let's begin with the claims of Ana Patricia 8 Chavez and her claim for extrajudicial killing. As I 9 said, Judge McCalla will read you the instructions of the 10 law. These are the instructions that you will find when 11 you hear those and when you take them back to the jury 12 room with you for your deliberations. There are three 13 elements to a claim of extrajudicial killing. The first 14 element is that a person or persons deliberately killed 15 Humberto and Guillermina Chavez. Humberto and Guillermina 16 Chavez are Ana Patricia Chavez's parents. This first 17 element, there can be no doubt has been met. It merely 18 recognizes that they were killed and that their killing 19 was not some kind of a mistake, but a deliberate act. And 20 you will recall the testimony of Ms. Chavez that her 21 mother was thrown to the bed, she was beaten and shot and 22 that her father was shot in the corridor of the house. 23 The second element of an extrajudicial killing 24 is that the person or persons acted under the actual or 25 apparent authority of El Salvador. In this case, you have CLOSING ARGUMENT BY MR. ESQUIVEL 1639 1 heard testimony and seen documents about the practice of 2 military death squads in El Salvador, and it was military 3 death squads who went into the Chavez home and committed 4 these killings. You have heard testimony about how death 5 squads operate. They operated with the same MO. They 6 wore masks, they carried large caliber rifles, they 7 targeted particular sections of the population, teachers 8 like Guillermina and Humberto Chavez, political leaders 9 like Humberto and Guillermina Chavez who were part of the 10 Christian democratic party. They invaded people's home, 11 and they committed their murders in front of families, 12 leaving witnesses so that they could terrorize and put 13 fear into the population. These death squads operated 14 within the military structure. 15 Remember the testimony of Professor Karl when 16 she showed you the military chain of command chart and she 17 identified within the three branches of the security 18 forces the intelligence section within each of those 19 security forces. That is where the death squads operated. 20 That is where they resided within the military hierarchy. 21 Ambassador White told you that the death squads 22 were military death squads that were made up of military 23 personnel dressed in plain clothes. 24 When you go back to the jury room, you will 25 have the opportunity to take with you all of the documents CLOSING ARGUMENT BY MR. ESQUIVEL 1640 1 and all of the evidence in this case. One of those 2 documents is the United Nations Truth Commission Report 3 for El Salvador. This is the commission that was 4 established and received 22,000 complaints. They 5 investigated those complaints, they went to the sites 6 where things occurred, they heard testimony, they 7 conducted interviews. This is the United Nations Truth 8 Commission Report finding about death squads. Death 9 squads operated in coordination with the armed forces and 10 acted as a support structure for their activities. You 11 will see that in Trial Exhibit 28. The Truth Commission 12 Report goes on to say about death squads. 13 The State of El Salvador, through the 14 activities of members of the armed forces and/or civilian 15 officials, is responsible for having taken part in, 16 encouraged and tolerated the operations of the death 17 squads which illegally attacked members of the civilian 18 population. That is the State of El Salvador. That is 19 the second element for extrajudicial killing that the 20 death squads operated under the authority of the State of 21 El Salvador. 22 You also saw evidence from U. S. government 23 declassified documents. Trial Exhibit 7, which is a memo 24 by the State Department which refers to the assassination 25 of the leaders of the FDR. That statement department memo CLOSING ARGUMENT BY MR. ESQUIVEL 1641 1 found the following: 2 There is no doubt that last Thursday's killing 3 of the FDR leadership was done by the security forces. 4 Our embassy reports that the Maximilliono Martinez 5 brigade, which took credit for the assassination is simply 6 a phantom front or pseudonym for elements of the security 7 forces. The security forces carried out their murder in 8 plain clothes so they could deny what they had done. That 9 was their mode of operation. 10 You also saw a declassified document, in 11 Exhibit 4, an embassy telegram from Ambassador White 12 describing a meeting between himself, Minister of Defense 13 Garcia and Vice-minister Carranza. Ambassador White wrote 14 in his comment to that cable: 15 Garcia and Carranza know perfectly well that 16 some middle and low level members of the military are 17 involved in death squads and other right-wing violence. 18 And you saw in Colonel Carranza's own words in 19 Exhibit 2 a quote from a newspaper article in 1984. 20 Colonel Carranza said this about death squads: 21 The first time the death squads appeared, they 22 appeared in Brazil. Those in the death squads were police 23 officials, police officials who shot criminals, mostly 24 thieves. There was no law then and no way to put them in 25 jail. Every time the police arrested someone, they were CLOSING ARGUMENT BY MR. ESQUIVEL 1642 1 set free, so crimes went unpaid. We too found that the 2 justice system did not punish the terrorists here who 3 attacked the population, and so we had to take measures on 4 our own. 5 Those are Colonel Carranza's own words about 6 the death squads. We had to take measures on our own. 7 All of the testimony that you have heard in this case 8 describes uniform military personnel acting in conjunction 9 with nonuniform personnel. This is the way that the 10 Salvadoran military operated, in plain clothes, so they 11 could deny what they were doing. 12 Remember the testimony of Luis Ramirez, he was 13 the eyewitness to the abduction of the leaders of the FDR. 14 He worked in the school where the FDR leaders were 15 meeting. He saw uniformed military personnel at the 16 perimeter of the school, and then when he got to the 17 school, he saw plain clothes men taking the leaders of the 18 FDR and putting them in a pickup truck. 19 You heard the testimony of Cecilia Santos, she 20 was taken to national police headquarters by plain clothes 21 officers, marched into national police officers and 22 watched plain clothes people milling around. She was 23 tortured by people wearing plain clothes. And when they 24 took off her bandanna to take her picture, the men were 25 wearing plain clothes and masks. The modus operandi of CLOSING ARGUMENT BY MR. ESQUIVEL 1643 1 the death squad. 2 Daniel Alvarado was taken into treasury police 3 headquarters by police clothes treasury police officers. 4 They identified themselves as something called the freedom 5 commandos. He was tortured by people in plain clothes. 6 Francisco Calderon looked out his window on 7 September the 11th, 1980 and saw uniform members of the 8 national police demanding to be let in. When he opened 9 the door, those policemen stepped back and let the plain 10 clothes men to come in to shoot his father. 11 And Ana Patricia Chavez, in Ana Patricia 12 Chavez's case, you remember her testimony. It fits this 13 pattern exactly. It is in the morning when she sees a man 14 in plain clothes with a large rifle standing in her 15 parents' house, and remember she asked him what do you 16 want, and he did not reply. He was not there to cause 17 maihem, he was not there for any purpose but the specific 18 purpose, he was looking for someone in particular. And 19 when Ana Patricia Chavez's mother came out of the 20 bathroom, he saw the person that he was after. 21 Ms. Chavez, Guillermina Chavez, leader of the ANDES union, 22 member of the ANDES teachers union, member of the 23 Christian democrat political party. When that man saw 24 her, he had what he wanted, he threw her on the bed, he 25 beat her, he asked for propaganda, and then he shot her CLOSING ARGUMENT BY MR. ESQUIVEL 1644 1 and her husband. 2 So, ladies and gentlemen, there's not just a 3 preponderance of the evidence, there's overwhelming 4 evidence that those persons who killed Ana Patricia 5 Chavez's parents were acting under the actual or apparent 6 authority of El Salvador. 7 Now, the final element for extrajudicial 8 killing is that this killing was not previously authorized 9 by a judgment of a court affording judicial guaranties 10 recognized as indispensable by civilized peoples. That 11 was very clearly written by a lawyer. That is a lot of 12 words that means a very simple thing. It means that this 13 is not a killing that was authorized by a court or by a 14 governmental body that would be considered a judicial 15 process by civilized peoples. The killing of Ana Patricia 16 Chavez's parents could not have been conducted pursuant in 17 any kind of court order of a civilized judicial system. 18 No judicial system carries out executions by sending 19 people in plain clothes to someone's home to beat them and 20 then to shoot them in their beds. That's not the way 21 executions are carried out. So very clearly, the third 22 element is met. This is a murder, this is not something 23 that is pursuant to a judicial order. And when you find 24 those three things, you will find that Ana Patricia Chavez 25 as proven her claim for extrajudicial killing. CLOSING ARGUMENT BY MR. ESQUIVEL 1645 1 Now, let's talk about Erlinda Franco's claim 2 for crimes against humanity. There are also three 3 elements for a claim for crimes against humanity. The 4 first element is that a person or persons committed 5 murder, torture or other inhumane acts. The court has 6 already found that the killing of Manuel Franco is an 7 extrajudicial killing. It is a murder, and, therefore, 8 the first element is met for crimes against humanity. 9 The second element of crimes against humanity 10 is that the person or persons committed the act as part of 11 a widespread or systematic attack directed against a 12 civilian population. You have heard testimony and seen 13 evidence and documents about the extent of violence in El 14 Salvador in the year 1980. At least 10,000 civilians were 15 killed, the overwhelming majority by the military in 1980. 16 You saw pictures of bodies by the side of the road, you 17 heard testimony that it was common in El Salvador to see 18 bodies decomposing on the side of the road. You saw 19 pictures of piles of bodies in downtown San Salvador. You 20 saw a picture of a body dump, El Playon with rotting 21 corpses and skeletons. You heard Professor Karl's 22 testimony that the only access to El Playon was through a 23 military check point. This was a widespread attack 24 against civilians by the Salvadoran military. To give you 25 a sense of the blood bath that took place in El Salvador CLOSING ARGUMENT BY MR. ESQUIVEL 1646 1 in 1980, consider that 10,000, at least 10,000 people were 2 killed in that year, and in that year, El Salvador had a 3 population of five million people. Now, the population in 4 the United States today is almost 300 million people. So 5 if you wanted to get a sense of what that kind of killing 6 would look like in the United States, that would be like 7 600,000 deaths, 600,000 murders of civilians in one year 8 in the United States. That is the effect of 10,000 9 killings in El Salvador in 1980. Of course, there were 10 body dumps. Of course, there were piles of bodies on the 11 street. You cannot have that level of violence, such 12 widespread atrocities without that kind of grotesque 13 scene, and that, ladies and gentlemen, was the reality of 14 El Salvador in 1980. And the Salvadoran military was 15 responsible for the overwhelming majority of this 16 violence. 17 You heard the testimony of Professor Terry Karl 18 who has spent her career studying El Salvador, who has 19 visited El Salvador, interviewed all levels of Salvadoran 20 society, she testified about state terror and about the 21 particular strategy of repression, the targets of 22 repression of the Salvadoran military in 1980. 23 You heard Ambassador White's testimony that in 24 1980, the military was killing thousands of civilians. 25 And the facts in this case show that the military was CLOSING ARGUMENT BY MR. ESQUIVEL 1647 1 responsible for these killings. 2 Trial Exhibit 7, again, is the declassified 3 memorandum from the United States State Department which 4 finds that the embassy reports made clear that the 5 security forces and the military are responsible for much 6 of the killings and human rights abuses in the country. 7 The assassination of the FDR leadership reflects an 8 intensification, an extension of the repression conducted 9 by the security forces since last March. 10 You also saw a document from the United States 11 Embassy in San Salvador, this is Trial Exhibit 5, 12 referring to the assassination of the leaders of the FDR. 13 The evidence that the security forces are responsible for 14 this action is overwhelming. 15 You will have with you in the jury room the 16 United Nations Truth Commission. The Truth Commission 17 found after receiving 22,000 complaints that the 18 overwhelming majority of violence committed in El Salvador 19 was committed by the military. So this is a widespread 20 attack. But it is also a systematic attack. That means 21 it was planned, it was carried out, it wasn't random. 22 You heard the testimony of Colonel Carranza's 23 own witness, Mr. Romero. Mr. Romero was tortured in all 24 three branches of the Salvadoran security forces in 25 January of 1981. He was tortured in five out of the six CLOSING ARGUMENT BY MR. ESQUIVEL 1648 1 branches of the Salvadoran military, the army, the air 2 force, the treasury police, the national police, the 3 national guard. This is what it means to have systematic 4 torture and state terror when all of the military branches 5 are given a green light to commit these kinds of 6 atrocities. These tortures had names, they were carried 7 out in the same way in different parts of El Salvador. 8 They consisted of electric shocks, of beatings, of people 9 being apprehended in plain clothes, of suffocation. They 10 were particular targets of repression, teachers, students, 11 union members, leaders of political parties. All of our 12 clients' claims are representative of those targets of 13 repression. And the goal of this repression was to stop 14 reforms, to stop peaceful opposition to 50 years of 15 military dictatorship. The overwhelming evidence in this 16 case has shown that the Salvadoran military was willing to 17 torture and murder in order to stay in power and that the 18 killing of the FDR leaders was not a random event, but was 19 part of that widespread and systematic attack that was 20 directed against the Salvadoran civilians. So that's the 21 second element. 22 The third element of crimes against humanity is 23 that the person or persons knew or should have known that 24 the attack was part of a widespread or systematic attack. 25 The members of the security forces that carried CLOSING ARGUMENT BY MR. ESQUIVEL 1649 1 out the assassination of the FDR leaders had to have known 2 in November of 1980 that what they were doing was a part 3 of this systematic attack. The leaders of the FDR were 4 well-known. You heard testimony that they appeared on 5 television. They were seen in the newspapers. They were 6 quoted. They were well-respected political leaders who 7 were well-known in El Salvadoran society. The people who 8 abducted, tortured and killed those people knew who these 9 men were, and they knew that the killing of the FDR 10 leaders was a politically motivated act that was part of a 11 systematic attack against the Salvadoran population. You 12 have seen proof in writing of the Salvadoran military's 13 knowledge of this systematic attack. 14 Trial Exhibit 6 is the cable written by Brian 15 Bosch, the military attache in the United States Embassy 16 in 1980, the person Ambassador White described as one of 17 the military attaches in his experience. Colonel Bosch 18 spoke Spanish. His job was to report on the Salvadoran 19 military, to understand Salvadoran military structure and 20 how it operated. And this is his report in December of 21 1980 documenting a meeting among mid level officers, the 22 minister of defense and Vice-minister Carranza. 23 Most military officers were highly pleased with 24 the assassination of the six FDR leaders. These officers 25 believed that other leaders and members of the FDR should CLOSING ARGUMENT BY MR. ESQUIVEL 1650 1 be eliminated in a similar fashion wherever possible. 2 These feelings were expressed by several middle level army 3 officers on 28 November, 1980 in the presence of Colonel 4 Garcia Marino, minister of defense and Nicolas Carranza, 5 subminister of defense, and both Garcia and Carranza 6 indicated that they supported this line of thinking. From 7 the comments of all those present during this 8 conversation, it was clear that Garcia, Carranza and the 9 other officers present accepted as a fact that the 10 military services were responsible for the assassination 11 of the six FDR leaders. 12 And so, ladies and gentlemen, there is not just 13 a preponderance of the evidence, there is overwhelming 14 evidence that on Erlinda Franco's claim for crimes against 15 humanity that a person or persons committed murder of her 16 husband, Manuel, that these persons committed this as part 17 of a widespread or systematic attack on the civilian 18 population, and that the persons who committed these knew 19 or should have known that they were part of that 20 widespread or systematic attack. When you make those 21 findings, you will find that Erlinda Franco has proven her 22 claim for crimes against humanity. 23 Now, I have talked about the first level claims 24 for 1980. Now, I want to talk to you about command 25 responsibility, that Nicolas Carranza is responsible as a CLOSING ARGUMENT BY MR. ESQUIVEL 1651 1 commander for all these first level claims because he was 2 the commander of those who carried out these acts. 3 There are three levels -- three elements, 4 excuse me, excuse me, to a claim for command 5 responsibility. The first element is that there is a 6 superior-subordinate relationship that existed between 7 Colonel Carranza and the person or persons who committed 8 the acts involved in this case. This means that Colonel 9 Carranza had the practical ability to exert control over 10 his subordinates in the military that committed the acts 11 against these plaintiffs. That is what that element 12 requires, and the proof on this issue has been 13 overwhelming as well. For two of these plaintiffs, their 14 relationship to the military is obvious. Francisco 15 Calderon testified, and he saw with his own eyes uniform 16 members of the national police participating in the 17 operation that killed his father. And Cecilia Santos 18 knows from her own experience and testified how she was 19 lead into the national police headquarters, and it was the 20 national police headquarters where she was tortured. 21 The Truth Commission for El Salvador and 22 declassified U. S. documents prove that the people who 23 carried out the assassination of the FDR leaders were also 24 subordinates of Colonel Carranza. This is Trial Exhibit 25 28. The finding by the Truth Commission about the FDR CLOSING ARGUMENT BY MR. ESQUIVEL 1652 1 assassination: 2 It is not possible to determine precisely which 3 public security force carried out these criminal 4 operations. Nevertheless, the commission considers that 5 there is sufficient evidence to indicate that state bodies 6 were jointly responsible for this incident which violated 7 international human rights law. 8 The Truth Commission went on to find that the 9 commission has substantial evidence that the treasury 10 police carried out the external security operation which 11 aided and abetted those who committed the murders. So 12 those who were involved in the assassination of the 13 leaders of the FDR were subordinates of Colonel Carranza 14 while he was the vice-minister of defense. They were 15 members of the treasury police. 16 And for Ana Patricia Chavez, we talked earlier 17 about the death squads. The death squads that came to Ana 18 Patricia Chavez's house and killed her parents were 19 residing in the military, they functioned within the 20 military structure, and because they functioned within the 21 military structure, they answered in the chain of command 22 and ultimately answered to Colonel Carranza. This element 23 is the key element for this part of the trial because it 24 is this element that Colonel Carranza has contested most 25 strongly in this case. Colonel Carranza has argued to you CLOSING ARGUMENT BY MR. ESQUIVEL 1653 1 and will argue to you that he had no command authority as 2 the vice-minister of defense. He will tell you that as 3 the vice-minister of defense, he was only an advisor and 4 he had no command responsibility for the troops that 5 committed these acts. 6 Ladies and gentlemen, that is simply not true, 7 and the evidence in this trial is completely to the 8 contrary. Colonel Carranza was a member of the high 9 command of the Salvadoran military as the vice-minister of 10 defense. Those are the four leading military officers in 11 the Salvadoran military. Colonel Carranza is trying to 12 tell you that he was a high commander who had no command 13 authority, and that just doesn't make sense. The members 14 of the high command exercised command authority. 15 Colonel Carranza's specialty throughout his 16 military career was tactics and operations. And you 17 remember he said in his own testimony that he spent his 18 career learning tactics and operations. He spent his 19 career studying tactics and operations. He spent his 20 career teaching tactics and operations. And in 1980, when 21 he arrives at the pentacle of his military career and he 22 is appointed to the highest post that he will have in the 23 Salvadoran military as vice-minister of defense, he would 24 have you believe that he abandoned his specialty, he 25 abandoned his specialty in tactics and operations and had CLOSING ARGUMENT BY MR. ESQUIVEL 1654 1 absolutely no operational authority over the Salvadoran 2 military. That simply doesn't make sense. 3 You have seen in this trial Article 186 of the 4 code of military justice. You have seen it so many times 5 I will not put it up for you. You know what it says. You 6 know Article 186 gives to Colonel Carranza as the 7 vice-minister of defense the authority to discipline 8 officers who are committing abuses. He is one of two 9 people in the Salvadoran military who have the authority 10 to remove from employment any officer for disciplinary 11 punishment, and he never exercised that authority. 12 You have also seen many times Article 26 of the 13 law of national defense. I don't need to put that up for 14 you because you know what it says. Mr. Carranza -- 15 Colonel Carranza's own witness Mr. Araujo told you that 16 under that law that vice-minister of defense had an 17 obligation to ensure discipline among the members of the 18 armed forces. That is testimony from his own witness. 19 His own witness says that he had a duty to ensure 20 discipline, and he certainly did not comply with that 21 duty. 22 You have seen the military chain of command 23 chart. Remember from Colonel Carranza's testimony, he 24 admitted, he admitted that when he was in the ministry of 25 defense as the vice-minister of defense, he had command CLOSING ARGUMENT BY MR. ESQUIVEL 1655 1 authority over the nonsecurity forces, the army, the air 2 force and the national navy, but he has no explanation for 3 why he is in the chain of command for those three entities 4 and yet denies that he had command authority over the 5 remainder of the branches of the Salvadoran military. It 6 simply doesn't make sense, ladies and gentlemen. He 7 admits that he has command authority over those three. He 8 also has command authority over the security forces. And 9 document after document after document in this trial 10 proves that Colonel Carranza had that authority. 11 Trial Exhibit 1 in this case is a cable from 12 the United States Embassy, and remember Ambassador White's 13 testimony about these cables, this is not the opinion of 14 one person in the embassy. These cables to the State 15 Department in Washington represent the consensus of all of 16 those who are working in the United States Embassy. 17 Members of the defense department, military attaches, 18 members of the CIA, political officers, all embassy 19 personnel come together to inform the state department, 20 and this is what that consensus said in February of 1980: 21 Colonel Carranza is the operational commander 22 of the security forces. There it is in black and white. 23 Exhibit 33 in this case is an article from the 24 Washington Post dated December 14, 1980. That article 25 notes that Colonel Carranza was in charge of day-to-day CLOSING ARGUMENT BY MR. ESQUIVEL 1656 1 operations by the army and the security forces. That is 2 an observation at the time. 3 Exhibit 34 in this case is a memo to the 4 National Security Council of the United States. In that 5 memo, it says, more specifically, we need a dramatic and 6 tangible restructuring of the military high command, 7 including the dismissal of several of the leaders of the 8 security forces, e.g. Carranza or Moran who are most 9 clearly associated with the repressive right. The 10 National Security Council of the United States identifies 11 Colonel Carranza as a leader of the security forces, but 12 it is just not United States government documents, members 13 of the Salvadoran government who were in high positions of 14 authority confirm all of this information. 15 Exhibit 35 is a cable describing a meeting 16 between Ambassador White and Colonel Majano. You remember 17 Colonel Majano was a member of the junta. He was the 18 leader of the young officers who tried to reform the 19 Salvadoran military, to promote democracy, to throw off 50 20 years of military dictatorship. This is what Colonel 21 Majano had to say about this issue: 22 Majono stated that real power in the country 23 was exercised by Colonels Garcia and Carranza and that it 24 was idle to believe that they could not put an end to the 25 human rights abuses if they wanted to do so, if they CLOSING ARGUMENT BY MR. ESQUIVEL 1657 1 wanted to do so. 2 Exhibit 36 is a cable describing a meeting 3 between Ambassador White and Jose Napoleon Duarte, another 4 member of the junta in El Salvador. This is what Mr. 5 Duarte said: 6 That he was convinced now that Vice-minister of 7 Defense Carranza has important links with the extreme 8 right and exercises the real power in the high command. 9 The real power in the high command was exercised by 10 Attorney Nicolas Carranza. 11 Remember Ambassador White's testimony in this 12 court. He told you that Minister of Defense Garcia was 13 the public face of the military, and that Colonel Carranza 14 was the executive officer, the operational head, the man 15 who made things happen. He said Colonel Carranza was the 16 quarterback, that Colonel Carranza was the real leader of 17 the troops in the field. That is consistent with 18 everything we know about Nicolas Carranza, about his 19 background in the military, about his specialty in tactics 20 and operations. And recall the testimony that you heard 21 from Brian Bosch that was read to Professor Karl 22 describing Colonel Carranza as the center of gravity in 23 the ministry of defense, as the de facto field commander 24 in chief, that while Colonel Garcia focused on strategy 25 and political affairs, Carranza concerned himself with CLOSING ARGUMENT BY MR. ESQUIVEL 1658 1 forced employment and security forces. 2 Ladies and gentlemen, that is the critical 3 question for this part of the trial, and on that critical 4 question, the evidence is overwhelming that Colonel 5 Carranza did, in fact, command the Salvadoran military. 6 He was within the military chain of command, and he 7 exercised the real power in the high command and in the 8 ministry of defense. 9 The second element of command responsibility is 10 that Colonel Carranza knew or should have known that his 11 subordinates had committed, were committing or were about 12 to commit torture or extrajudicial killing. Now, it is 13 important for you to know that this -- this part of the 14 command responsibility law does not require that Colonel 15 Carranza knew or should have known about the specific 16 things that happened to these plaintiffs. Judge McCalla 17 will read you the law and describe that element. And that 18 law says that it is sufficient for Colonel Carranza to 19 have knowledge generally about torture and extrajudicial 20 killing. He does not have to have knowledge of these 21 specific acts. And as we said before, the evidence of 22 torture and extrajudicial killing by the Salvadoran 23 military in 1980 was overwhelming. It is inconceivable 24 that Colonel Carranza could not have known that his 25 subordinates were committing these types of acts. He CLOSING ARGUMENT BY MR. ESQUIVEL 1659 1 admitted as much in his testimony. He admitted that he 2 had notice of human rights abuses by radio. He admitted 3 that he had notice of allegations of human rights abuses 4 by television. He listened to the sermons of Arch Bishop 5 Romero in which Arch Bishop Romero called on the military 6 to stop the repression, to stop the violence. Colonel 7 Carranza admitted that it was common to see bodies 8 decomposing on the side of the road, and Colonel Carranza 9 admitted that where there is smoke, there is fire. When 10 you have this overwhelming number of allegations of 11 abuses, some of them have to be true. And so certainly 12 Colonel Carranza knew or should have known what was 13 happening by the subordinates under his command. 14 There are also documents that show his 15 knowledge. Trial Exhibit 1 describes a meeting in the 16 United States Embassy in which Colonel Carranza 17 participated. This is what he said: 18 Colonel Carranza also conceded excesses on part 19 of security forces, that he defended them for bearing the 20 brunt of terrorist assault and now harsh criticism of PDC 21 partners while maintaining good morale and avoiding 22 desertions. 23 Colonel Carranza conceded in 1980 excesses on 24 the part of the security forces. 25 You will also see that evidence in Trial CLOSING ARGUMENT BY MR. ESQUIVEL 1660 1 Exhibit 4 which describes a meeting between Ambassador 2 White, the head of the military group of the United States 3 in El Salvador. Minister Garcia and Colonel Carranza. 4 That cable states: 5 On October 27, Milgroup Commander Colonel 6 Cummings and I met for approximately two hours at 7 breakfast with the minister and vice-minister of defense, 8 Colonels Garcia and Carranza. I covered all of the points 9 made in reftel, the referenced telephone call. I 10 emphasized the need to control right-wing violence and to 11 put an end to the abuses committed by the military. 12 And finally, ladies and gentlemen, Exhibit 50, 13 which is another declassified document describing a 14 meeting between Ambassador White and Colonel Carranza and 15 other members of the Salvadoran military. Ambassador 16 White said this: 17 I emphasize to all present that unbridled 18 violence was responsible for the plummeting international 19 reputation of El Salvador and, unfortunately, the widely 20 held opinion that some members of the security officers 21 were involved was too often substantiated by convincing 22 evidence reported here and abroad. So in 1980, ladies and 23 gentlemen, clearly Colonel Carranza knew or he should have 24 known that torture and extrajudicial killing were being 25 committed by his subordinates. CLOSING ARGUMENT BY MR. ESQUIVEL 1661 1 The final element of command responsibility is 2 the third one. Colonel Carranza failed to take all 3 necessary and reasonable measures to prevent torture or 4 extrajudicial killing or to punish subordinates after they 5 committed these abuses. 6 At the beginning of this trial, Judge McCalla 7 read to you certain stipulated facts. That means facts 8 that are undisputed. These are facts that the parties, 9 the plaintiffs and the defendant have agreed to ahead of 10 trial. These are facts that you must accept as true 11 because the parties have agreed to them. These facts -- 12 in these facts, Colonel Carranza makes admissions on this 13 third element. Colonel Carranza admits that as 14 vice-minister of defense he did not initiate an 15 investigation to determine whether any members of the 16 Salvadoran military were responsible for human rights 17 abuses. That is an undisputed fact. 18 It also undisputed that while serving as 19 vice-minister of defense, Colonel Carranza did not 20 discipline or punish any members of the Salvadoran 21 military for human rights abuses. That is a fact, and 22 that is because Colonel Carranza's argument is not that he 23 did anything to try to stop this; Colonel Carranza is 24 saying that he did not have the responsibility or the 25 authority to do it. CLOSING ARGUMENT BY MR. ESQUIVEL 1662 1 Remember, ladies and gentlemen, that this is a 2 small country with a small military. As Professor Karl 3 said in 1981, there are 33 field officers in the security 4 forces, that's 33 people who have day-to-day 5 responsibilities as officers for the security forces. If 6 Colonel Carranza as vice-minister of defense wanted to do 7 something to stop these abuses, all he had to do was get 8 those 33 people in a room and issue the order. The order 9 that says these abuses must stop, because as he said, in 10 the Salvadoran military, orders are to be followed. There 11 is to be no discussion, and if orders are not followed, 12 then people should be disciplined. Colonel Carranza never 13 did that, never took the simple step of getting those 33 14 people together and saying this must stop. And for that, 15 he has failed in his duty to take reasonable measures to 16 prevent torture, and the plaintiffs, because they have 17 proven the first, the second and the third element have 18 proven that Colonel Carranza is responsible for what 19 happened to these plaintiffs. He is responsible as a 20 commander. 21 Now, ladies and gentlemen, let's go to the 22 second period in this case, and the claims of the fifth 23 plaintiff, Daniel Alvarado. Daniel Alvarado was tortured 24 in treasury police headquarters in August and September of 25 1983. Daniel Alvarado brings two claims in the first CLOSING ARGUMENT BY MR. ESQUIVEL 1663 1 level. First, he brings a claim for torture. As with 2 some of the other plaintiffs, the court before trial has 3 already found that what happened to Daniel Alvarado in 4 treasury police headquarters meets the legal definition of 5 torture. The court has already found that he was 6 tortured. Daniel Alvarado also brings a claim for crimes 7 against humanity, that what happened to him at treasury 8 police officers was not a random act or part of a 9 widespread or systematic attack against civilians. And 10 Daniel Alvarado also alleges that Colonel Carranza is 11 responsible for his torture and for his crime against 12 humanity under the law of command responsibility. 13 The same elements that govern Erlinda Franco's 14 claims for crimes against humanity also govern Daniel 15 Alvarado's claim. First that a person or persons 16 committed murder, torture or other inhumane acts. The 17 court has already found that what happened to Mr. Daniel 18 Alvarado constitutes torture. So that element is met. 19 The second element is that the person or 20 persons committed the act as part of a widespread or 21 systematic attack directed against the civilian 22 population. What happened to Daniel Alvarado in 1983 is a 23 continuation of the same attack against civilians that 24 began in 1980, the same patterns emerged, targeting 25 students, using the same methods of torture, torture that CLOSING ARGUMENT BY MR. ESQUIVEL 1664 1 people who did this were so sadistic that they had names 2 for the torture. You recall Daniel Alvarado's testimony, 3 the little airplane with the pilot, the little airplane 4 without a pilot, that is the nature of this torture. The 5 man who oversaw his torture, Major Ricardo Pozo told him 6 that they worked in shifts, this is like an operation that 7 is being carried out, this is not a random act. These are 8 people who live in shifts torturing Daniel Alvarado and 9 others. That's why in December of 1983, shortly after it 10 became publicly known that Daniel Alvarado was tortured in 11 the treasury police, the vice-president of the United 12 States, George Bush flew to El Salvador after years of 13 being ignored by the Salvadoran military, the 14 vice-president of the United States went to El Salvador to 15 tell the Salvadoran military that it had to stop, and not 16 stop isolated incidents, stop the widespread and 17 systematic torture and killings that were being committed 18 by the military. That's the second element of crimes 19 against humanity. 20 The third element is that the person or persons 21 knew or should have known that the act was part of a 22 widespread or systematic attack. We know by name the 23 person who was in charge of Daniel Alvarado's torture, it 24 was Major Ricardo Pozo, the head of the intelligence 25 section of the treasury police, one of the few officers CLOSING ARGUMENT BY MR. ESQUIVEL 1665 1 with whom Nicolas Carranza who met regularly, who reported 2 to Nicolas Carranza who socialized with Nicolas Caranza. 3 This is a high ranking officer who had to have known that 4 what he was doing, in operating a torture chamber and in 5 working men in shifts, in cycling people through a torture 6 chamber was not a random act, this was part of a 7 systematic attack, it was part of the widespread violence 8 committed by the Salvadoran military. And when you find 9 those three elements in Daniel Alvarado's case, you will 10 find that he has been the subject of a crime against 11 humanity and that he has proven his claim for a crime 12 against humanity. 13 Now, let's talk about Colonel Carranza's 14 responsibility as a commander for the 1983 period, the 15 time in which Daniel Alvarado was tortured. I read to you 16 the first element of command responsibility which requires 17 that Colonel Carranza have the practical ability to exert 18 control over the subordinates who committed these acts. 19 Again, before trial, the parties agreed on certain facts. 20 These facts are undisputed in this case. And one of those 21 facts controls this first element. Colonel Carranza 22 admits that while he served as the director of the 23 treasury police he had the legal authority and the 24 practical ability to exert control over subordinate 25 members of the treasury police. When you see the jury CLOSING ARGUMENT BY MR. ESQUIVEL 1666 1 instructions in your deliberations, you will see that this 2 stipulation mirrors the language that is required to prove 3 that element. Colonel Carranza has admitted that he was 4 the superior of those in the treasury police who committed 5 these acts. He was the superior of Major Ricardo Pozo. 6 The second element requires the plaintiffs to 7 prove that Colonel Carranza knew or should have known that 8 his subordinates had committed, were committing or were 9 about to commit torture or extrajudicial killing. 10 You heard Colonel Carranza's own testimony in 11 this trial that before he assumed the -- he became the 12 director of the treasury police, it had the worst 13 reputation for human rights, that it was alleged that 14 torture was being done in the treasury police, that a 15 death squad was being operated out of the treasury police, 16 and you heard his testimony that those allegations 17 continued throughout the time that he served as the 18 director of the treasury police. He knew or should have 19 known that torture was happening under his command. This 20 is knowledge that is also reflected in the documents that 21 have been entered into evidence. 22 Trial Exhibit 39 describes the conversation 23 between Colonel Carranza and a member of the United States 24 Embassy in June, 1983. It says Colonel Carranza was 25 candid in admitting that these were abuses within the CLOSING ARGUMENT BY MR. ESQUIVEL 1667 1 treasury police, though he allowed that they may not be 2 much worse than those existing within the other security 3 forces. 4 Colonel Carranza admitted that there were 5 abuses in the treasury police. And at end of his tenure, 6 when he was leaving his position as director of treasury 7 police, he also admitted there were abuses at that time. 8 In his own words, in Exhibit 32, which is a newspaper 9 article in the Christian Science Monitor, Colonel Carranza 10 is quoted as saying, quote, abuses are committed, said 11 Colonel Nicolas Carranza, the former chief of the treasury 12 police, told the Monitor shortly before his transfer from 13 that post last week, and there may be some cases of 14 torture, but this is because our men lack training and 15 equipment. These are Colonel Carranza's own words. There 16 is torture, but it is because we lack training and we lack 17 equipment. 18 You saw evidence that the torture of Daniel 19 Alvarado was publicly known throughout the world. It was 20 the lead story on the NBC Nightly News in November of 21 1980 -- in 1983 in the United States. It was the subject 22 of an article in NewsWeek Magazine. How could Newsweek 23 Magazine, the viewers of the NBC nightly news all know 24 about Daniel Alvarado's torture and treasury police and 25 knowledge not make its way to the director of the treasury CLOSING ARGUMENT BY MR. ESQUIVEL 1668 1 police, Colonel Nicolas Carranza? That just doesn't make 2 sense, ladies and gentlemen. 3 And finally, you saw the embassy cable that is 4 Trial Exhibit 40. This describes a meeting between 5 Colonel Carranza and Chris Leibengood, who is a regional 6 security officer and who was investigating on behalf of 7 the United States the murder of Lieutenant Commander 8 Albert Schaufelberger. In that meeting, Colonel Carranza 9 described Daniel Alvarado's capture and his confession and 10 he said Colonel Carranza requested that details concerning 11 the event be given to him so that the interrogation could 12 be better directed. Colonel Carranza put himself in the 13 center of the investigation of the death of Lieutenant 14 Commander Schaufelberger. He told the United States 15 Embassy that information ought to be given to him so that 16 the interrogation could be better directed. Colonel 17 Carranza was offered any needed technical assistance, 18 specifically ballistics comparisons, polygraph 19 examinations, typewriter comparisons. He indicated that 20 he would request such assistance should it become 21 necessary. Again, Colonel Carranza is in the center of 22 the investigation of Lieutenant Commander Schaufelberger. 23 And so, ladies and gentlemen, he knew or he should have 24 known what was happening to Daniel Alvarado and others who 25 were being tortured at the treasury police. CLOSING ARGUMENT BY MR. ESQUIVEL 1669 1 The third element is that Colonel Carranza 2 failed to prevent or to punish, to take all necessary and 3 reasonable measures to prevent torture or killing or to 4 punish the subordinates after the fact. And on this 5 issue, there is also an undisputed fact that the parties 6 agree on that govern this element. It is undisputed that 7 Colonel Carranza did not prosecute under military law or 8 refer to civilian courts any members of the treasury 9 police for incidents of torture or extrajudicial killing. 10 You heard evidence in this case of at least two 11 people who were tortured by the treasury police, 12 Mr. Romero and the plaintiff, Mr. Alvarado. And both of 13 those men told you that no one was ever investigated, no 14 one was ever punished for their torture. By failing to 15 investigate and punish torture that Colonel Carranza 16 should have known about, he failed in his duties as a 17 commander. He failed to take the necessary and reasonable 18 measures to prevent that torture or to punish those after 19 they had been committed; and because he failed in those 20 duties, he is responsible as a commande