U N R E D A C T E D 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 18, 2005 VOLUME XIII BRENDA PARKER OFFICIAL REPORTER SUITE 942 FEDERAL BUILDING 167 NORTH MAIN STREET MEMPHIS, TENNESSEE 38103 1838 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. 1839 1 FRIDAY MORNING & AFTERNOON 2 NOVEMBER 18, 2005 3 The jury trial in this case resumed on this, 4 Friday, November 18, 2005, at 9:00 o'clock a.m., when and 5 where evidence was introduced and proceedings were had as 6 follows: 7 8 ____________ 9 10 THE COURT: I think you have two things. I 11 think you have a supplemental instruction already. Has 12 that been handed to you? 13 THE CLERK: Yes, Your Honor. 14 THE COURT: That is supplemental instruction 15 number three, partial verdicts. And then you have a draft 16 set of papers that just go with the punitive stage if we 17 get to it, which I don't know that we will, but we have to 18 agree on that at about this time if we think there's any 19 real possibility that we might get to it. The 20 supplemental instruction would read, and I will read it 21 out loud because not everybody can see it. 22 I received the following question from the 23 jury: Will not finding a verdict yes or no in one case 24 impact the other cases in any way. 25 The answer to your question is no. Let me 1840 1 explain further. You do not have to return a verdict on 2 all of the verdict forms or all of the questions on the 3 verdict forms. If you have reached unanimous agreement on 4 one or more of the entire verdict forms or on part of the 5 questions on one or more of the verdict forms, you may 6 return a verdict on those questions as to which you have 7 reached unanimous agreement. You do not have to do this, 8 but it is -- but you can do this, if you wish. If you do 9 return a verdict on some -- as to some of the parties or 10 as to some of the questions as to a particular party now, 11 that verdict will be final. You will not be able to 12 change your minds later on about it. Your other option is 13 to wait until the end of your deliberations and return all 14 of the verdicts then. The choice is yours. I'm going to 15 add an S to that. You may now resume your deliberations. 16 Anything else we need to correct? You do have this form. 17 The question that was received, you should have a copy of. 18 Joe, let's go ahead and make that one change in the back. 19 The question, I'll read it out loud was: 20 Judge McCalla -- and this was received at the 21 very end of the day yesterday which you should have gotten 22 a copy of already. The jurors need a response to a very 23 important question. Will not finding a verdict yes or no 24 in one case impact the other cases in any way? Of course, 25 the answer to that is no. I mean they're all essentially 1841 1 separate, and you can find one case and not find the 2 others, it is no problem at all, but I needed to explain a 3 little more about it. I need to tell them it is a final 4 verdict, they can't change it, so forth and like that. 5 Anything else? 6 MR. BROOKE: Your Honor, I believe if we were 7 to just say the answer to your question is no -- 8 THE COURT: This is from the standard Sixth 9 Circuit instructions. 10 MR. BROOKE: It seems to be confusing. If you 11 were to just say the answer is no, and each case is a 12 separate case and leave it at that. 13 THE COURT: It is just not a complete answer 14 because what if they said no, and then later on they 15 said -- they brought a verdict form back and they changed 16 their mind, it would be a problem for the court. You have 17 to tell them it is final. I'm not saying that it is the 18 only one way to do it, but I would tend to go with the 19 pattern jury instruction, because it has been designed to 20 avoid a problem. I mean like you say, there's not just 21 one way to do it, but when a bunch of judges tell you it 22 is the best way to do it, you usually do it that way. 23 MR. ESQUIVEL: Your Honor, I believe from the 24 plaintiffs' perspective, the supplemental instruction 25 number three is acceptable, but does the court intend if 1842 1 the jury comes back with a unanimous verdict on certain 2 cases or parts of cases without a unanimous verdict, does 3 the court intend to instruct the jury to go back and 4 deliberate further? 5 THE COURT: That's when you ask them this sort 6 in sequence -- and we're going to give this out to you 7 again. What usually happens in these cases is that you 8 give the partial verdict instruction, the jury goes back. 9 They have been deliberating now since Monday evening, 10 although Monday evening was very brief, and this is 11 Friday, so usually what occurs at that point in time is 12 that they go back, they usually return a partial verdict, 13 not always, and usually pretty quickly because they have 14 resolved those issues, and then they -- and we see where 15 we are. If we have got, you know, everybody decided 16 except one person and maybe everybody decided except one 17 question on one person, then the normal inquiry of the 18 panel is do you believe with further deliberation that the 19 jury would be able to reach a verdict? And I can ask that 20 question of everybody. It sort of depends on how much is 21 not decided. If a lot is not decided, you usually give 22 the modified Allen type charge where you tell them all to 23 consider whether you are in the majority or in the 24 minority, you ought to seriously reconsider your position. 25 You give a deadlock jury modified Allen charge. If you 1843 1 have got one question that is not resolved, you usually 2 make the inquiry, and that's something I can't -- you 3 know, I can't know about in advance. You just have to 4 wait and see what the result is. This is happening in 5 cases where we have multiple counts in a criminal case, 6 and for practical purposes, it made a little difference if 7 they addressed the remaining question, so I went directly 8 to the will further deliberation assist you in reaching a 9 verdict, but it doesn't always work that way. If you have 10 got a lot of things that are unresolved, then you give the 11 modified Allen charge. That's what we usually do. 12 Any other questions from anybody else? That is 13 sort of the normal process. Okay. Y'all all look -- 14 well, if there is nothing else -- Ms. Blum, what other 15 grammatical corrections do we need to make? 16 MS. BLUM: Well, if you are really asking, I'm 17 sitting here and I'm keep looking over and over again at 18 their question, and I do think that it might be best -- I 19 agree with defendant on this that the answer to the 20 question is no, not finding a verdict in one case does not 21 impact the other cases. Their question is worded a little 22 awkwardly, and so sometimes no -- I still think they might 23 have a question about whether a finding in one case 24 impacts the other case even know I know you're giving them 25 the straightforward answer of how their question was 1844 1 phrased. I still think it might be best to say the answer 2 to their question. 3 And the only other -- I didn't know if we were 4 now going to discuss the instruction for the second phase 5 because we really haven't had a chance to review it. 6 THE COURT: That's really so you can start 7 thinking about it. I think we're at that stage where it 8 is going to come up soon or it is never going to come up, 9 and we need to look at the format and see if it looks 10 okay. 11 MS. BLUM: Did you have any thoughts about how 12 you thought we might proceed on the second phase? 13 THE COURT: Yes. Let me finish this. I think 14 your suggestion is a good one, because you will say the 15 answer to your question is no, and there's a comma there. 16 Not finding a no, in quotes, comma -- or the comma is 17 before the closed quote. Not finding a verdict, in 18 parenthesis yes or no, in one case will not impact the 19 other cases in any way. I think that is a good way to put 20 it, because it parallels exactly what they said. So we 21 will -- with that clarification, we will make that change, 22 and then we can send that note back. And while we do 23 that, we will look at the next note. 24 (A note was passed to the court.) 25 THE COURT: We have got a note: Please provide 1845 1 us with seven more jury service questionnaires. And we 2 don't know what the inquiry is because we hadn't give them 3 jury service questionnaires yet. We don't give them until 4 the end, but maybe they found some or something. So that 5 doesn't have anything -- they may indicate they have 6 reached a verdict, I don't know. If you don't mind, Joe, 7 that's an administrative matter, and we will go ask, but 8 don't provide them with the questionnaires yet. 9 I think, Ms. Blum, we're now to that question 10 you asked about what would we do in the event that we do 11 have anybody -- what we did is I went through very 12 quickly -- actually not that quickly, and put together 13 some simple instructions. This is like -- similar to the 14 instructions in every case that we give on punitives if it 15 comes up, and we simply put in language so we can strike 16 language. In other words, if we get one person, let's say 17 that we have it as to Mr. Alvarado -- I will tell you what 18 Joe said, because there were -- there was a folder somehow 19 back there that had some questionnaires in it, which we do 20 as a routine matter, and they said they hadn't filled them 21 out, they just wanted to be ready when they -- so that 22 suggests to me that -- you have as much information as I 23 do, they wanted to be ready in case they needed to fill it 24 out. Have you given them the supplemental instruction? 25 Let's give them that and then -- 1846 1 MR. BROOKE: Do those have your note on there? 2 THE COURT: Nobody showed it to me. 3 THE CLERK: That is not the one with the 4 change. 5 THE COURT: This looks fine to me and so, Joe, 6 we will go ahead and y'all take a quick look and then we 7 will pass it back. 8 Anything else? 9 MR. ESQUIVEL: On the supplemental 10 instructions, nothing else, that looks fine, Your Honor. 11 THE COURT: All right. Let's go ahead and 12 submit it. 13 All we did was put in strikable language so 14 that as to anybody as to whom we were proceeding, we would 15 be able to leave that in and strike everybody else's 16 language, and we prepared forms for everybody, and we -- 17 all I did was take part of the one addition from -- I 18 can't remember if the instruction is in Garcia or which 19 one, and we added in the criteria in making your decision, 20 you must consider the instruction that I have already 21 given you, and also the following -- and we added one 22 criteria to the standard Tennessee instruction, and we are 23 striking the reference to the Tennessee civil instructions 24 because I know it is not a Tennessee question, but it is 25 probably as good a list as any to use, and one was the 1847 1 reprehensibility of the defendant's conduct which I took 2 from the previous case. The other factors were all 3 factors. I did modify one of the burden shifting punitive 4 instructions that had been given in another case because I 5 didn't think that was appropriate and simply said that 6 they could consider the defendant's net worth, financial 7 condition. I think the burden at all times rests on the 8 plaintiffs, so I did not include that from some other 9 instructions that we used in other cases. I just would 10 like everybody to look at these so that we are prepared, 11 and if anybody has any suggestions, that's fine. And I 12 did notice that perhaps there were some suggestion, if you 13 are ready with those, now I will listen to them. 14 Otherwise, we will simply wait, we may never need these. 15 I do not know if we will. Anybody who wants to make a 16 suggestion, we will try to deal with that at this time. 17 MS. BLUM: Your Honor, if you could give us a 18 couple of minutes to confer. 19 THE COURT: Absolutely. The Federal Bar 20 seminar is actually starting right now, and this is what 21 we anticipated, that's the reason I didn't put myself on 22 the program was I was afraid I would be in and out during 23 the day over here, and I had invited anybody from any 24 office who wanted to spend some time over there so you 25 didn't have to sit around. I will take a break, and I'm 1848 1 going to walk over there in just a couple of minutes, I 2 have got my phone with me, I can come back in five to ten 3 minutes, and they will call me immediately. 4 Mr. Fargarson, if you need to go -- I understand you need 5 to go, and is Mr. Brooke authorized to handle any 6 additional matters? 7 MR. FARGARSON: Yes. 8 THE COURT: All right. Mr. Brooke, then we 9 will retain you, and thank you very much for everything in 10 the case. We may see you before it is concluded. 11 All right, Joe. 12 THE CLERK: All rise. This honorable court 13 stands in recess. 14 (Recess taken at 8:55 a.m.) 15 (At 11:20 a.m, the following proceedings were 16 had:) 17 THE COURT: We have a note from the jury, and 18 there is one ambiguity in the note, and we probably need 19 to ask Mr. Warren to have them clarify the second line. 20 I'm going to read you the first line of the note and not 21 the second line because it has some issues. Judge 22 McCalla, we, the jury -- we, the jurors, have reached 23 verdicts on four of the five cases. Now, by inference, 24 that would suggest that they have not reached a verdict on 25 the fifth case, but their second line is ambiguous, I do 1849 1 not know if they have not reached a verdict or if they 2 have a particular kind of verdict and, you know, they're 3 not allowed to tell us the verdict until we have them all 4 here and have the verdict forms, so while I think I should 5 not show you the -- I can show you the sentence, but it is 6 ambiguous. Does anyone have any objection to having 7 Mr. Warren simply step back and ask them to please clarify 8 the second sentence that it is -- we're unclear as to 9 whether they are indicating that they are unable to reach 10 a verdict in the fourth matter, which, of course -- the 11 fifth matter which they can tell us, but they cannot tell 12 us the outcome if they have reached a verdict, they can't 13 tell us if it is yes or no or anything like that. It is 14 an ambiguous sentence. I'm concerned that it might cause 15 confusion if we don't ask them to clarify it. 16 Mr. Esquivel, any problem in asking for a 17 clarification? You can see it is one of these things that 18 we don't know what it means. 19 MR. ESQUIVEL: The plaintiffs have no 20 objection. 21 MR. BROOKE: Your Honor, I would prefer to at 22 least be able to see the sentence. 23 THE COURT: Why don't you come to side bar, and 24 I don't think -- we don't want to alarm anybody by what is 25 probably an error in writing, but I'm not sure. 1850 1 (The following proceedings had at side-bar 2 bench.) 3 THE COURT: Logically, as you can see, the next 4 sentence would make sense if it said we have no verdict on 5 one case, that is we have failed to reach a verdict, which 6 would be consistent with the first sentence, but by 7 putting the letter A in, we don't know if they're telling 8 us what the verdict is. They shouldn't tell us what the 9 verdict is through a note. I think it is a miswriting, 10 but I don't have any way to know, and I don't want to read 11 that out loud in front of the parties. I think it would 12 be upsetting, and unnecessarily stressful. 13 MR. ESQUIVEL: Thank you very much for taking 14 that into consideration. 15 THE COURT: May I ask Mr. Warren to ask, one, 16 if they have a specific verdict, they need to strike the 17 sentence. If they have simply no verdict, we need to 18 strike through the erroneously included letter? Is it 19 okay to let him do that? 20 MR. BROOKE: Just say that? 21 THE COURT: Right, I mean -- I don't care who 22 does it, but I technically couldn't do it. 23 MS. BLUM: We have no objection at all. 24 THE COURT: Otherwise, it would be very 25 stressful. I think it might be better if you write it for 1851 1 him and let him read it. That way nothing lost in the 2 transmission communication. 3 MS. BLUM: That's fine. 4 MR. ESQUIVEL: That's fine. 5 THE COURT: Okay. Please clarify the meaning 6 of the second sentence. You cannot tell us in a note what 7 a particular verdict is. Does the second sentence mean 8 you have not reached a verdict as to one case? And that 9 will clarify the answer. 10 MS. BLUM: You just want them orally to tell 11 him? 12 THE COURT: I think they can write down their 13 answer and give it to him. I think that Mr. Brooke's 14 comment is a good one, and they may need to see their 15 note. Now, this will have to be received. I will keep 16 this. 17 THE CLERK: I will give them a copy of that. 18 THE COURT: You can give them this one, that's 19 fine. 20 All right. Thanks very much. We will wait a 21 second. 22 (The following proceedings were had in open 23 court.) 24 (A note was passed to the court.) 25 THE COURT: The notes says: We, the jury, have 1852 1 reached on four of the five cases. We have not reached a 2 verdict on one of the cases. Signed by Juanita 3 Richardson, the presiding juror. 4 Ladies and gentlemen, the normal procedure is 5 to allow the jury to return a verdict as to those cases or 6 questions as to which they have reached unanimous 7 agreement. I will then ask each juror do you believe that 8 with additional deliberations you would be able to resolve 9 the remaining matter. Now, I will probably confer with 10 you after I receive the verdict before I begin any 11 questioning. I will certainly give us all that 12 opportunity, because we -- I can't anticipate every 13 possibility, but is that the way in which -- is there any 14 objection from the plaintiffs in proceeding in that way, 15 allowing the jury to return -- I don't think we have -- we 16 certainly have a choice, but I think in consideration of 17 the amount of time the jury has deliberated, we probably 18 should allow them to return a partial verdict. We could 19 always say no, but I think we probably should. What is 20 the thought of Mr. Esquivel? 21 MR. ESQUIVEL: We agree with that, Your Honor, 22 that the jury should return its partial verdict on four of 23 the five cases. 24 THE COURT: And Mr. Brooke? 25 MR. FARGARSON: That's fine. 1853 1 THE COURT: All right. Well, we will ask the 2 panel to come in, and Ms. Richardson will need to bring 3 the verdict folder with the verdict forms to the podium 4 and I will look at them and then I will have her read out 5 loud those as to which verdict has been reached. And then 6 I will hold out the one, of course, that has not been 7 reached, and that is how we will proceed. I will tell 8 everybody now -- I ask everybody, please, it is a 9 difficult case, and I don't have any idea what the 10 verdicts will be, and it is very important for everybody 11 to just remain very quiet, whatever the result is. It is 12 just a -- it is a case where it is important we maintain 13 decorum. 14 You may bring the panel in. 15 COURT SECURITY OFFICER: Yes, Your Honor. 16 (Jury in at 11:40 a.m.) 17 THE COURT: You may be seated. 18 Ms. Richardson, I'm going to ask a question 19 first, and I'm going to read the note, and then -- if 20 everybody would like to be seated. I have received a note 21 with clarification. I'm going to read the clarifying note 22 to everybody. It says we, the jurors, have reached 23 verdicts on four of the five cases. We have not reached a 24 verdict on one of the cases. It is signed by 25 Ms. Richardson, the presiding juror in the case. 1854 1 Ms. Richardson, I understand from what the jury 2 is telling me that you would like to return a partial 3 verdict, a verdict on those matters as to which you have 4 reached unanimous agreement, and that that will be the 5 final jury verdict on those matters, and is that correct? 6 JUROR RICHARDSON: That is correct. 7 THE COURT: I'm going to make sure because it 8 has to be everybody, so I know -- Mr. Russell, is that 9 what you wish to do? 10 JUROR RUSSELL: Yes, Your Honor. 11 THE COURT: Ms. Fields, is that what you wish 12 to do? 13 JUROR FIELDS: Yes, Your Honor. 14 THE COURT: Ms. Rooks, is that what you wish to 15 do? 16 JUROR ROOKS: Yes, Your Honor. 17 THE COURT: And Mr. Francis, is that what you 18 wish to do? 19 JUROR FRANCIS: Yes, Your Honor. 20 THE COURT: Ms. Ragsdale, is that what you wish 21 to do? 22 JUROR RAGSDALE: Yes. 23 THE COURT: Ms. Foran, is that what you wish to 24 do? 25 JUROR RICHARDSON: Yes, Your Honor. 1855 1 THE COURT: Mr. Roby, is that what you wish to 2 do? 3 JUROR ROBY: Yes, Your Honor. 4 THE COURT: And Ms. Minor? 5 JUROR MINOR: Yes, Your Honor. 6 THE COURT: All right. Then I'm going to ask 7 you to hand the folder to me, and I'm going to -- I'm just 8 going to look to see that they're dated and signed and 9 filled out, I'm not going to read them. I will then hand 10 them back. 11 I'm going to reorder them slightly so that 12 they're in order as to the ones that have a verdict 13 entered, and I'm going to hand them back. 14 Ms. Richardson, would you start with verdict 15 form one and read the verdict? And read -- I'm sorry, 16 would you read question one and the jury's answer and so 17 forth? 18 JUROR RICHARDSON: We, the jury -- this is 19 Plaintiff Cecilia Santos? 20 We, the jury, present the following answers to 21 the questions submitted by the court. 22 1. Do you find that Nicolas Carranza is liable 23 under the law of command responsibility for the torture of 24 Plaintiff Cecila Santos. 25 We said yes. 1856 1 THE COURT: All right. As to question two, 2 what was your verdict? 3 JUROR RICHARDSON: As to question two, what is 4 the total amount of compensatory damages that should be 5 awarded to the Plaintiff Cecilia Santos for her torture? 6 We said $500,000. 7 THE COURT: As to question three? 8 JUROR RICHARDSON: As to question three, do you 9 find that Nicolas Carranza's conduct was intentional, 10 malicious, wanton or reckless? 11 We, the jury, said yes. 12 THE COURT: As to the verdict form number two? 13 JUROR RICHARDSON: Verdict form number two, 14 Plaintiff Jose Francisco Calderon. 15 We, the jury, present the following answers to 16 the questions submitted by the court: 17 1. Do you find that Nicolas Carranza is liable 18 under the law of command responsibility for the 19 extrajudicial killing of Plaintiff Jose Francisco 20 Calderon's father, Paco Calderon? 21 We, the jury, said yes. 22 THE COURT: As to two? 23 JUROR RICHARDSON: As to question number two, 24 do you find that Nicolas Carranza is liable under the law 25 of command responsibility for the torture of Plaintiff 1857 1 Jose Francisco Calderon? 2 We, the jury, said yes. 3 THE COURT: As to question three? 4 JUROR RICHARDSON: As to three question, what 5 is the total amount of compensatory damages that should be 6 awarded to Plaintiff Jose Francisco Calderon? 7 We, the jury, said $500,000. 8 THE COURT: As to question four? 9 JUROR RICHARDSON: As to question four, do you 10 find that Nicolas Carranza's conduct was intentional, 11 malicious, wanton or reckless? 12 We, the jury, said yes. 13 THE COURT: As to verdict form number four? 14 JUROR RICHARDSON: Verdict form number four, 15 Plaintiff Erlinda Franco, we, the jury, present the 16 following answers to the questions submitted by the court: 17 1. Do you find that Nicolas Carranza is liable 18 under the law of command responsibility for the 19 extrajudicial killing of Plaintiff Erlinda Franco's 20 husband, Manuel Franco? 21 We, the jury, said yes. 22 THE COURT: As to question two? 23 JUROR RICHARDSON: Question two: Did you find 24 that Nicolas Carranza is liable to Plaintiff Erlinda 25 Franco under the law of command responsibility for crimes 1858 1 against humanity? 2 We, the jury, said yes. 3 THE COURT: As to question three? 4 JUROR RICHARDSON: As to question three, what 5 is the total amount of compensatory damages that should be 6 awarded to Plaintiff Erlinda Franco? 7 We, the jury said, $500,000. 8 THE COURT: As to question four? 9 JUROR RICHARDSON: As to question four, do you 10 find that Nicolas Carranza's conduct was intentional, 11 malicious, wanton or reckless? 12 We, the jury, said yes. 13 THE COURT: As to verdict form number five? 14 JUROR RICHARDSON: As to verdict form number 15 five, Plaintiff Daniel Alvarado. 16 We, the jury, present the following answers to 17 the questions submitted by the court: 18 1. Do you find that Nicolas Carranza is liable 19 under the law of command responsibility for the torture of 20 Plaintiff Daniel Alvarado? 21 We, the jury, said yes. 22 THE COURT: As to question two? 23 JUROR RICHARDSON: Question two: Do you find 24 that Nicolas Carranza is liable to Plaintiff Daniel 25 Alvarado under the law of command responsibility for 1859 1 crimes against humanity? 2 The answer the jury said is yes. 3 THE COURT: As to question three? 4 JUROR RICHARDSON: Question three: What is the 5 total amount of compensatory damages that should be 6 awarded to Plaintiff Daniel Alvarado? 7 We, the jury, said $500,000. 8 THE COURT: As to question four? 9 JUROR RICHARDSON: Question four: Do you find 10 that Nicolas Carranza's conduct was intentional, 11 malicious, wanton or reckless? 12 We, the jury, said yes. 13 THE COURT: Would you hand those forms to 14 Mr. Warren at this time, and then I'm going to 15 independently look at the form number three one more time. 16 Ms. Richardson, thank you very much. I'm going 17 to let you return to your seat, and I have another set of 18 questions. 19 JUROR RICHARDSON: Thank you. 20 THE COURT: Let me start with Mr. Russell, 21 because as to the four verdict forms that have been read, 22 I'm going to ask a question of each of you. Mr. Russell, 23 you have heard the reading of the four verdict forms that 24 have been delivered in the court. Is each of those 25 verdicts your verdict? 1860 1 JUROR RUSSELL: Yes, sir. 2 THE COURT: Ms. Fields, is each of those 3 verdicts your verdict? 4 JUROR FIELDS: Yes, Your Honor. 5 THE COURT: Ms. Rooks, is each of those 6 verdicts your verdict? 7 JUROR ROOKS: Yes, Your Honor. 8 THE COURT: Mr. Francis, is each of those 9 verdicts your verdict? 10 JUROR FRANCIS: Yes, Your Honor. 11 THE COURT: Ms. Ragsdale, is each of those 12 verdicts your verdict? 13 JUROR RAGSDALE: Yes, Your Honor. 14 THE COURT: Ms. Foran, is each of those 15 verdicts your verdict? 16 JUROR FORAN: Yes, Your Honor. 17 THE COURT: And, Ms. Richardson, is each of 18 those verdicts your verdict? 19 JUROR RICHARDSON: Yes, sir. 20 THE COURT: Mr. Roby, is each of those verdicts 21 your verdict? 22 JUROR ROBY: Yes, Your Honor. 23 THE COURT: And, Ms. Minor, is each of those 24 verdicts your verdict? 25 JUROR MINOR: Yes, sir. 1861 1 THE COURT: Now, let me speak very briefly to 2 the attorneys at side bar, and then I have another 3 question to ask you. 4 (The following proceedings had at side-bar 5 bench.) 6 THE COURT: This form simply has a note on it 7 that says no verdict, and there are no notations as to 8 Ms. Chavez at all. 9 Now, we have received more than one inquiry 10 regarding either the transcript or materials as to 11 Ms. Chavez, and I don't know that there's any other 12 alternative but to ask at this time the question that I 13 posed earlier, which is do you believe that with further 14 deliberations you would be able to reach a verdict as to 15 Ms. Chavez's claim. Any other thoughts in that regard 16 from plaintiffs? 17 MR. ESQUIVEL: No, Your Honor. 18 THE COURT: Any other thoughts from defense? 19 MR. BROOKE: No. 20 THE COURT: We will proceed. 21 (The following proceedings were had in open 22 court.) 23 THE COURT: I need to ask each of you another 24 question, and that is do you think that with additional 25 deliberation you would be able to reach a verdict as to 1862 1 the claims of Ana Patricia Chavez. Mr. Russell? 2 JUROR RUSSELL: No, Your Honor. 3 THE COURT: Do you think that with additional 4 deliberation, you would be able to reach a verdict as to 5 Ms. Chavez? 6 JUROR RUSSELL: No, Your Honor. 7 THE COURT: Ms. Fields? 8 JUROR FIELDS: No, Your Honor. 9 THE COURT: Ms. Rooks? 10 JUROR ROOKS: No, Your Honor. 11 THE COURT: Mr. Francis? 12 JUROR FRANCIS: Yes, sir. 13 THE COURT: Ms. Ragsdale? 14 JUROR RAGSDALE: No. 15 THE COURT: Ms. Foran? 16 JUROR FORAN: No, Your Honor. 17 THE COURT: Ms. Richardson? 18 JUOR: No, Your Honor. 19 THE COURT: Mr. Roby? 20 JUROR ROBY: No, Your Honor. 21 THE COURT: Ms. Minor? 22 JUROR MINOR: No, Your Honor. 23 THE COURT: Well, I do need to speak with 24 counsel again at side bar. 25 (The following proceedings had at side-bar 1863 1 bench.) 2 THE COURT: I can ask another question. I can 3 ask Mr. Francis, having heard the response of your fellow 4 jurors, do you still think that with additional 5 deliberation the jury would be able to reach a verdict. I 6 can't really do any more. But sometimes a person doesn't 7 know what the other jurors will say, and having heard what 8 others say, it may affect his view, but this is a 9 difficult area because the law favors the disposition of 10 the case by this panel as to everybody as to the issues 11 that have been presented. The other alternative is to 12 send them back and let them talk some more as to 13 Ms. Chavez's claims. I'm seeking -- 14 MS. BLUM: What would you normally do when you 15 have a split in the responses from the jury about the 16 disposition? 17 THE COURT: I have never had a split. I have 18 had plenty of cases in which we have had that question 19 asked. 20 MS. BLUM: He looks pretty dead set that that 21 they could talk more because I just saw them glance at 22 each other, and he's shaking his head yes. 23 THE COURT: Well, the dilemma is that we have 24 another stage of the case to go through. We have some 25 time constraints, and they have been in deliberations 1864 1 three and a half solid days, and this is substantial 2 deliberation. 3 MS. BLUM: I know, yes. 4 THE COURT: Let me -- 5 MR. BROOKE: I believe, Your Honor, it would be 6 inappropriate to address a question to one juror, that 7 that -- 8 THE COURT: It might -- 9 MR. BROOKE: -- might put pressure on him. 10 THE COURT: No, no, that is exactly the 11 concern, that is always a concern. 12 MR. BROOKE: I think the only thing, Your 13 Honor, that is appropriate to say -- 14 THE COURT: Well, both of have you an option 15 here that no one has raised, which is that any of you can 16 move for a mistrial. 17 MR. BROOKE: Which I will move for a mistrial. 18 THE COURT: No one has done that at this time, 19 and the reason would be that they have had a prolonged 20 deliberation, that they have asked for multiple -- they 21 have asked for a lot of information as to Ms. Chavez, 22 although we didn't include a transcript, and clearly that 23 seems to be the focus of the discussion based on the 24 record that we have, and it appears that there is just no 25 possibility of a verdict. 1865 1 MR. BROOKE: I would ask for a mistrial, Your 2 Honor, based on the fact that the gentleman has indicated 3 publicly in front of all the parties, witnesses, courtroom 4 that he's the odd man out, and so that if he fails to go 5 back and reach a consensus, he would have to yield his 6 position. 7 THE COURT: The other alternative is for me to 8 give the modified Allen charge. 9 MR. BROOKE: Which I think again would do the 10 same thing. He right now has put himself out there as the 11 one man, and for him to do anything but yield, I think is 12 probably -- 13 THE COURT: It doesn't necessarily mean that 14 he's the one in the position, he could be the one who 15 thinks that Ms. Chavez should prevail, he should -- there 16 could be three -- it could be divided any way. He could 17 be a person who thinks he will ultimately be persuasive in 18 his argument. 19 MS. BLUM: I don't think it is reflective of 20 people's ultimate positions on the issue. 21 THE COURT: I don't know that it is. I have no 22 idea about that. But the question is do we ask them to 23 deliberate any more in the Chavez matter. You have moved 24 for a mistrial on the basis that they have been 25 deliberating on this for a long time. 1866 1 MR. BROOKE: Yes. 2 THE COURT: Well, motion, any opposition? 3 MR. BROOKE: The effect would be as to a 4 mistrial as to Ms. Chavez's claim. 5 THE COURT: Then we would go to the punitive 6 stage of the others. I think you have to talk with her. 7 MS. BLUM: With her obviously. 8 THE COURT: I think you ought to talk with her. 9 I'm going to ask the jury to return at -- since 10 there was some question that they might be able to resolve 11 it, to at least discuss the possibility of this case being 12 resolved. 13 THE CLERK: There is one juror who is crying 14 right now, Your Honor. 15 THE COURT: Thank goodness, I don't have my 16 glasses on, I wouldn't have a clue has to who. Ms. Foran. 17 It has been a hard case. This is not an easy case for 18 anybody. Let me let them go back and we will let y'all 19 discuss things. I'm going to let them go to lunch, I 20 think that's a better idea. 21 (The following proceedings were had in open 22 court.) 23 THE COURT: Well, what I need to do is on a -- 24 I think I need to let everybody take their lunch break 25 early. I understand lunch is ready for you upstairs, and 1867 1 they have to discuss a couple of things among themselves. 2 There will be some additional information to be submitted 3 to you when you come back from lunch, and why don't you -- 4 I mean do you want to take -- you have been taking an hour 5 for lunch. Why don't you definitely do that, and then we 6 will be in a position to respond to your -- to where we 7 are. We will tell you exactly what we need to do. So 8 thank y'all very much. Remember the case is not resolved, 9 there are some other issues to be resolved. You cannot 10 discuss anything among yourselves. Of course, you're not 11 in deliberations, you're just going to be in lunch, you 12 won't be in deliberations, and we will ask you to be back 13 in the jury room at 1:00 o'clock or 5 after, whatever 14 suits you, y'all have been working hard, and then we will 15 be in a position to address you when you're back. So have 16 a pleasant lunch, and we will see you shortly after 1:00, 17 at which time we should be able to discuss our next step 18 in this matter. Thank you very much. 19 (Jury out at 12:00 p.m.) 20 THE COURT: I'm going to let you be seated and 21 I'm going to take a break in a moment too, because I know 22 you need to have a conversation. And what we were 23 going -- what we're going to do is as to the additional 24 materials that were submitted to you, we will prepare 25 those for four plaintiffs, and I will ask you to be ready 1868 1 to proceed with that portion of the case at 1:15 or so. 2 Now, I'm not saying we're going to proceed at 1:15, we 3 have got to resolve this other issue first. We either 4 have to have a determination that there should be a 5 mistrial in that matter or I have to give them a 6 supplemental instruction or I have to simply determine 7 that that would all be futile, and I think there's 8 certainly some evidence that might support that. And 9 that -- as I said, we would have to have a mistrial, so 10 that is going to be our approach. Questions before I take 11 lunch? 12 MS. BLUM: The only question was that I had 13 some changes on the jury instructions that you circulated 14 to us on -- 15 THE COURT: Oh, absolutely. We do need -- 16 MS. BLUM: You want to take those up now? 17 THE COURT: Yes. Let me find my set. Yes, I 18 have it in front of me. And we will change that where it 19 says jury instruction, that will be changed to 20 supplemental jury instruction number four, in all 21 likelihood, since we have had three already, so they're 22 easy to follow and put in order. 23 All right. Yes, ma'am. 24 MS. BLUM: Your Honor, in the supplemental 25 punitive damages instruction, there's no reference back to 1869 1 the punitive damage instruction that they have already 2 reviewed for purposes of making the determination as to 3 whether the defendant should be subject to punitive 4 damages. And if it is permissible, we would highly 5 recommend inserting into this punitive damage instruction 6 the general punitive damage language that relates to the 7 purposes of punitive damages, which is in the current 8 punitive damages instruction that they have so far 9 reviewed, begins the fourth line, punitive damages are 10 designed to punish a defendant for his wrongful conduct 11 and to deter him and others from committing similar 12 misconducts in the future. In the context of the 13 international law violations, punitive damages may be 14 awarded to punish heinous conduct and to demonstrate that 15 human rights abuses will not be tolerated. 16 THE COURT: Why don't we -- right, why don't we 17 not refer them back, they will have these instructions. 18 Let's make it clear, I thought it was clear earlier. 19 MS. BLUM: I thought it would be clearer to put 20 it in the instruction, but if you would like, it is fine 21 to refer them back to the punitive damages instruction and 22 the general instructions. I would have suggested 23 inserting it right after the opening paragraph you have 24 decided, et cetera, et cetera, then you would insert a new 25 paragraph that starts with punitive damages are designed 1870 1 to et cetera, and then go on to the considerations for the 2 decision. 3 THE COURT: All right. Any other changes? I 4 mean this is the insert of the punitive -- portion of the 5 punitive damage instruction, so it is only one place, and 6 that's not a bad idea, but I thought I would refer back, 7 but let's see, anything else in the text? 8 MS. BLUM: In terms of the list of relevant 9 considerations, on number three, one of the factors is for 10 the relationship of the parties, I'm concerned that that 11 terminology may confuse them given that this is a command 12 responsibility case. We have various questions about that 13 that have come up in jury instructions about the whole 14 question of sort of the direct connection between the 15 defendant and the plaintiff. 16 THE COURT: I don't think that relationship -- 17 this is out of a standard thing in which it could have 18 been that there was a dominant person and a submissive 19 person, so it doesn't really have to do with this type of 20 claim particularly. Punitives come up in all kinds of 21 cases, and this is a generic list. I don't have any 22 problem with removing that, it just doesn't have much -- 23 MR. BROOKE: Your Honor, we don't believe that 24 would be appropriate in the consideration when they have 25 to think about intentional, reckless and all that type of 1871 1 thing. There has to be some causal close linkage in a 2 relationship, we submit, is very appropriate. 3 THE COURT: It doesn't have to be a causal 4 relationship, and that is what Professor Blum is concerned 5 about is it might suggest that there needed to be a causal 6 relationship. Relationship, I think, often may mean if 7 there is a -- well, if there is a sexual harassment case, 8 it is particularly applicable because you end up with 9 these individuals in powerful positions dealing with 10 someone's position who has no power within a corporate or 11 causal structure, and that's not the only way it can be 12 construed, but that's certainly one of the ways it is 13 used, and this doesn't really translate very well here. 14 MS. BLUM: That was my concern, Your Honor. 15 THE COURT: The relationship of the parties, I 16 think, it is prone to some confusion. Anything else? 17 MR. BROOKE: I just want to note our objection 18 to striking the word relationship. 19 THE COURT: Certainly. 20 MS. BLUM: Your Honor, the other thing is 21 number six, seven, eight and nine, the plaintiffs do not 22 intend -- 23 THE COURT: If you don't put any proof on, I 24 will take them out. 25 MS. BLUM: We do not intend to put any proof 1872 1 on. 2 THE COURT: Okay. I mean that's not a problem. 3 I didn't know if you were going to -- if I knew what 4 people were going to do in advance, I wouldn't -- I would 5 be in a another business. 6 MS. BLUM: And lastly, there was, I think, in 7 the instruction that we had suggested, proposed 8 instructions that we had suggested to Your Honor, there is 9 an additional factor to that list which had been used in 10 other Alien Tort Claims Act cases given the purposes of 11 punitive damages, particularly in a command case, which 12 is -- the language was an amount reasonably necessary to 13 deter others from engaging in similar conduct in the 14 future. So it is simply putting into it the factors that 15 they should consider setting an amount that relates to the 16 purposes of punitive damages. I have written out the 17 language if you would like to read it. 18 THE COURT: That's fine, and that is 19 appropriate, and that is often used, so I don't have any 20 problem. 21 MR. BROOKE: Your Honor, we object to that 22 language again. 23 THE COURT: Well, it's similar to the language 24 already in the punitive damage charge which was given 25 which was to deter him and others from committing similar 1873 1 types of misconduct, which is in the list. It is not 2 something that we haven't given already. You just want it 3 to be included in the list, so it doesn't look like it is 4 excluded somehow? 5 MS. BLUM: Exactly, and that is actually part 6 of the calculation. It is not just sort of a lofty 7 purpose, but, in fact, it is a factor that you should look 8 at when you come up with the factors that are relevant to 9 the calculations. 10 THE COURT: Okay. Well, do you want me to hand 11 me up your notes? 12 MS. BLUM: The thing that I wrote out was my 13 handwritten just saying what I just told you, which I'm 14 happy to give to Mr. Warren. 15 THE COURT: It is an amount to deter? 16 MS. BLUM: Reasonably necessary to deter others 17 from engaging in similar conduct in the future. 18 MR. BROOKE: Your Honor, we object to that, 19 that already is in the other charge that Your Honor has 20 given, and it highlights the deterrence factor. 21 THE COURT: I understand. I'm going to have to 22 overrule that. I think it is a disjunctive and. It is 23 defendant and/or others, isn't that right, from committing 24 similar conduct in the future? 25 MS. BLUM: Absolutely. 1874 1 THE COURT: All right. I've deleted 6, 7 and 2 8. I have -- 3 MS. BLUM: And 9 as well, Your Honor. 4 THE COURT: Well, there's no proof in that 5 area, I would delete it. I don't know if there would be 6 any proof on that or not. Right now, I have no proof in 7 that area. I will delete it, but if something comes up in 8 the proof, I may have to reinsert it. I just don't know 9 the answer on that. I will take it out, because at this 10 point I have no proof, but I mean it would be confusing 11 since there's not any evidence on that point. But these 12 things often come up later, so I don't know the answer. 13 Okay. All right. We will make some changes and run off 14 another set. I do have to walk across the street and 15 participate for a very short period of time in those 16 activities, not very long at all, frankly, and then I will 17 see you all here at 1:00, and we will see what we need to 18 do. 19 MS. BLUM: Thank you, Your Honor. 20 THE CLERK: All rise. This honorable court 21 stands in recess. 22 (Recess taken at 12:15 until 1:00 p.m.) 23 THE COURT: Any other thoughts about how to 24 proceed? I know the plaintiffs have an had an opportunity 25 to wish to oppose the motion of the defendant. 1875 1 MR. ESQUIVEL: Your Honor, what the plaintiffs 2 would suggest is that the court ask the question that 3 Mr. Brooke suggested to give all the panel members an 4 opportunity to decide whether in light of the other panel 5 member responses they have any different view as to 6 whether they could reach a verdict on Ms. Chavez's claim, 7 and after the jurors are given an opportunity to state 8 their views on that issue, that we then be allowed to 9 confer with the court on the issue of the motion for 10 mistrial. 11 THE COURT: All right. 12 MR. BROOKE: Your Honor, I don't believe that 13 was my suggestion. 14 THE COURT: I hear what you're saying, and I 15 thought the same thing. Your suggestion was that if we 16 ask -- if we ask only Mr. Francis that that would unduly 17 focus on him, and I agree with you. I agree with you. 18 And the counter suggestion is just ask everybody in light 19 of the responses of the other members of the panel, do you 20 believe that with additional deliberation, the jury would 21 be able to reach a verdict as to Ms. Chavez, and I think 22 that's -- as long as we ask everybody, it is probably 23 okay. 24 MR. BROOKE: I think, Your Honor, if we have -- 25 if the man has done that publicly, that he's going to feel 1876 1 compelled to -- 2 THE COURT: The other alternative is to bring 3 every juror in singly at the side bar and just ask them. 4 MR. BROOKE: Well, I think that, again, is 5 going to just focus too much pressure after what they have 6 been through in three weeks of this trial. 7 THE COURT: It is one of those things where you 8 let people have an opportunity to relax and reflect a 9 little bit. We probably need to make some inquiry to 10 determine whether or not we have exhausted all of our 11 possibilities. I think that the suggestion by 12 Mr. Esquivel is a reasonable compromise of what we 13 previously discussed, and it would be sort of odd for us 14 not to think that they haven't been talking among 15 themselves about all sorts of things, so I have a feeling 16 that at this stage after this many days of deliberation, I 17 would not think that the effect of the question would be 18 much at all, particularly as opposed to everyone. I'm 19 going to pose that question to everyone and see what they 20 have to say. Have the panel come in. 21 COURT SECURITY OFFICER: Yes, Your Honor. 22 (Jury in at 1:08 p.m.) 23 THE COURT: You may be seated. Ladies and 24 gentlemen, I do need to ask you an additional question, 25 and it is in light of the fact that you have now had an 1877 1 opportunity to hear -- and I don't really question that 2 perhaps you didn't have that opportunity to contemplate 3 some of these responses before you delivered your verdict, 4 but in light of fact that you have now heard the responses 5 of each of the other panel members to the question that I 6 last asked you, do you, based on those responses, now 7 believe that with additional deliberation the jury might 8 be able to reach a verdict as to Ms. Chavez's claims, and 9 we will start with Mr. Russell, what do you think? 10 JUROR RUSSELL: No, sir. 11 THE COURT: Ms. Fields, what do you think? 12 JUROR FIELDS: Yes. 13 THE COURT: Ms. Rooks, what do you think? 14 JUROR ROOKS: No. 15 THE COURT: Okay. And Mr. Francis? 16 JUROR FRANCIS: Yes. 17 THE COURT: You think yes. 18 And Ms. Ragsdale, what do you think? 19 JUROR RAGSDALE: No. 20 THE COURT: You think no. 21 And Ms. Foran? 22 JUROR FORAN: No. 23 THE COURT: Okay. Ms. Richardson? 24 JUROR RICHARDSON: Yes. 25 THE COURT: Okay. And Mr. Roby? 1878 1 JUROR ROBY: No. 2 THE COURT: And Ms. Minor? 3 JUROR MINOR: No. 4 THE COURT: Okay. Let me speak briefly with 5 counsel at side bar. 6 (The following proceedings had at side-bar 7 bench.) 8 THE COURT: Basically, I think we have limited 9 options at this point in my view. Any thoughts from the 10 plaintiffs, or from -- the option at this point is to give 11 them the modified Allen charge instruction and just say go 12 back and think about it some more. We really need to do 13 that. That's typically what we would do. I'm going to 14 have to deny the motion for a mistrial at this time and 15 ask them to deliberate some more. 16 Now, sometimes in this process, we do tell them 17 they can still communicate with me, I don't want them to 18 feel like they're held hostages here, and I need to -- I 19 will say, now, you know how to communicate with me, and if 20 after, you know, a reasonable period of time, they are not 21 able to, they will have told us that, but they have some 22 more information in the sense that they -- in the sense 23 that perhaps they can reach a resolution. We should give 24 them that opportunity. That is what the court thinks. 25 Anything else from the plaintiffs? 1879 1 MS. BLUM: No. 2 THE COURT: Anything else from the defense 3 other than -- 4 MR. FARGARSON: What we have done -- just what 5 we have already done. We keep on doing it. 6 THE COURT: That's okay. There is nothing 7 wrong. 8 MR. BROOKE: Is Your Honor going to provide us 9 a copy of the proposed additional instruction? 10 THE COURT: Well, usually, I just read the 11 deadlock jury charge, the 90 -- can you make a copy of it 12 and then we change it a little bit -- I can go back and 13 retype it, it might be better -- well, it is because it 14 changes, you know, this is a civil case and not a criminal 15 case, so it does change a little bit. But they don't have 16 a copy of it. So I will make a copy for you. 17 MR. FARGARSON: Are you going to type it up and 18 just read it? 19 THE COURT: Maybe I ought to type it up and 20 send it back. I feel comfortable doing that. Okay. So 21 I'm going to tell them that I'm going to prepare a 22 supplemental instruction that I will send back to them, 23 and they should receive it in about 10 minutes. 24 MS. BLUM: You're going to allow them to go 25 back in the jury room and you will send it back there? 1880 1 THE COURT: Right, and we need to -- is Mr. 2 Ruby here? We need the verdict folder, and we can send it 3 on back, and I will tell them I will send then back 4 another instruction very, very shortly. It may be 15 5 minutes. I'm not a very fast typist. 6 MR. ESQUIVEL: Thank you. 7 (The following proceedings were had in open 8 court.) 9 THE COURT: Just as we did before, I'm going to 10 prepare a supplemental instruction, and it will give you 11 some additional guidance in terms of how to proceed. That 12 will be shortly. Also, I'm going to let you go ahead and 13 take the verdict form, which is the one that is 14 unresolved, Mr. Ruby, let you get that folder and retire 15 to resume your deliberations, but you will be getting, as 16 soon as I can type it up, about a three or four paragraph 17 additional instruction. When you get that, of course, I 18 know the practice is to read it out loud so everybody can 19 hear it, and then we will send you some additional copies, 20 if you would like. So we will be glad to do that. 21 Well, ladies and gentlemen, I will allow you to 22 be excused to begin your deliberations. Bear in mind that 23 very shortly, you will receive some deliberations that you 24 will use to help guide you in your deliberations. 25 (Jury out at 1:15 p.m.) 1881 1 (At 3:50 p.m., the following proceedings were 2 had:) 3 THE COURT: I have a note from the jury. It 4 says: 5 We, the jury, are able to unable to reach a 6 verdict on the case of Ana Patricia Chavez. It is signed 7 by Ms. Richardson. At this point, I will bring the panel 8 back in, I will read the note out loud, and once again, I 9 will ask each do you think with additional deliberation 10 you will be able to reach a verdict. If the answer is no, 11 based on the prior motion of the defense, the court will 12 grant the mistrial. That's how I would proceed. Is this 13 consistent with what everybody understands? 14 MS. BLUM: That sounds fine, Your Honor. 15 MR. BROOKE: Yes, Your Honor. 16 THE COURT: Once I have done that, we would 17 have to be in the position to proceed on the punitive 18 stage. The jury may not understand, although I think 19 everybody here -- all the lawyers have heard me saying 20 that there will be an additional stage. How much 21 additional proof do the plaintiffs expect to present in 22 this matter? 23 MS. BLUM: Your Honor, we don't intend to call 24 any witnesses, but we would like an opportunity for brief 25 argument. 1882 1 THE COURT: You are allowed a brief amount of 2 reargument in the case. How much time do you think that 3 would take? 4 MS. BLUM: It's about 15 minutes. 5 THE COURT: All right. 6 MS. BLUM: Twenty minutes, at the most. 7 THE COURT: Would the defense present any proof 8 at this stage of the case? 9 MR. FARGARSON: No. 10 THE COURT: Would that amount of limitation on 11 argument be sufficient, can we stay within that limit? 12 MR. FARGARSON: Yes. 13 THE COURT: I do have a panel I'm supposed to 14 be on, we will not worry about that. That's okay. If I'm 15 not there, that will go ahead. The only question is 16 whether we should reserve this until Monday or attempt to 17 proceed this afternoon, and the reason is that it is 4:00 18 o'clock. 19 MS. BLUM: Your Honor, it would be our 20 preference, if we could do it today, and maybe I don't 21 know if they absolutely have to leave at 5:30, if they 22 have a little more time at the end of the day, if they 23 want to. 24 THE COURT: There's a stress issue that you run 25 into, but -- obviously, but let's see what the jury says. 1883 1 I think at this point we would ask the panel -- we have to 2 be most concerned about being considerate of them. 3 MS. BLUM: Absolutely, absolutely. 4 THE COURT: So I think I would probably ask the 5 panel do you wish to proceed with deliberation today or do 6 you wish to conclude your deliberations on Monday, and 7 they will tell us. I mean if they really are exhausted, 8 they need to tell us they're tired, and I know that's 9 not -- well, that's what we will do. 10 All right. We're ready to bring the panel in. 11 COURT SECURITY OFFICER: Yes, Your Honor. 12 (Jury in at 4:00 p.m.) 13 THE COURT: I have -- you may be seated. Of 14 course, I have received an additional note from 15 Ms. Richardson, and the note reads as follows: 16 We, the jury, are unable to reach a verdict on 17 the Ana Patricia Chavez case. Of course, it is signed by 18 the presiding juror, Ms. Richardson. Now, let me ask, 19 starting with Mr. Russell, Mr. Russell, do you believe 20 with additional deliberation the jury could reach a 21 verdict. 22 JUROR RUSSELL: No, sir, Your Honor. 23 THE COURT: Ms. Fields, what do you think? 24 JUROR FIELDS: No, sir. 25 THE COURT: Ms. Rooks? 1884 1 JUROR ROOKS: No, Your Honor. 2 THE COURT: Mr. Francis? 3 MR. FRANCIS: No, Your Honor. 4 THE COURT: Ms. Ragsdale? 5 JUROR RAGSDALE: No. 6 THE COURT: Ms. Foran? 7 JUROR FORAN: No, Your Honor. 8 THE COURT: Ms. Richardson? 9 JUROR RICHARDSON: No, sir. 10 THE COURT: Mr. Roby? 11 JUROR ROBY: No, Your Honor. 12 THE COURT: And Ms. Minor? 13 JUROR MINOR: No, sir. 14 THE COURT: As we previously discussed then as 15 to the matter of Ana Patricia Chavez versus Nicolas 16 Carranza, the court will declare a mistrial. 17 Now, let me advise you as to the next stage 18 because I think you all have been listening carefully and 19 are aware there is one other thing that we have to do in 20 this case, and that is that I have to give you some 21 additional supplemental instructions, and the parties have 22 an opportunity to present a brief additional argument on 23 the question of the amount of punitive damages, if any, 24 that you, the jury, determine should be awarded in each -- 25 as to each of these four individuals as to which you have 1885 1 indicated a yes to the last question on the verdict form. 2 The parties have indicated to me, and I will now turn to 3 them and ask them in order do you wish to -- that they do 4 not intend on putting additional proof on. Sometimes 5 additional proof is received, but let me ask counsel for 6 the plaintiff, does the plaintiff -- do the plaintiffs 7 intend to present additional proof in this matter? 8 MS. BLUM: No, we do not, Your Honor. 9 THE COURT: And counsel for the defense, does 10 the defendant wish to present additional proof? 11 MR. FARGARSON: No, Your Honor. 12 THE COURT: Does the plaintiff wish to make a 13 final argument? And we agreed upon a time limit in this 14 matter. 15 MS. BLUM: Yes, we would, Your Honor. 16 THE COURT: Ms. Blum, will you be making that 17 argument? 18 MS. BLUM: Yes, I will be. 19 THE COURT: Let me ask, will the defense be 20 making a final argument on this point? And, 21 Mr. Fargarson, will you be making that argument? 22 MR. FARGARSON: Yes. 23 THE COURT: Now, ladies and gentlemen, there's 24 one thing that is obviously important before we go to this 25 next stage, my -- we do have enough time to complete the 1886 1 arguments, they have agreed that they will be no more than 2 approximately 15 minutes per side, and the additional 3 instructions will take relatively a few minutes. However, 4 the first consideration always is, as you would expect, 5 with the jury, if the jury is so tired that you simply 6 feel that you should go home today and we should conclude 7 this matter on Monday, that is a better way to proceed. 8 It is never a good thing to proceed if people feel that 9 they really do need to stop for the day. But I know you 10 have not had a chance to discuss that among yourselves. 11 It is an administrative question. Does the jury want to 12 caucus on that or do you want -- or do you have a 13 preference? Let me let you be excused to caucus on that 14 question and then advise me. 15 (Jury out at 4:05 p.m.) 16 THE COURT: You may be seated. Of course, I'm 17 going to stay here for a moment because I want to be sure 18 that all of you have the supplemental instruction. It 19 has -- 20 MS. BLUM: Yes, we do, and the plaintiffs have 21 no objection. 22 THE COURT: I think we have basically approved 23 everything. Make sure the defense has had a chance to 24 look at it and -- these final instructions are understood 25 to be the ones we will be using. 1887 1 MR. FARGARSON: It doesn't look like to me like 2 there is any proof at all in the record on 5 and 6. 3 THE COURT: There may not be. That is one 4 reason I asked this. 5 MS. BLUM: Your Honor, 5 is related to the 6 gravamen of the case, so I think it is 6 that we're 7 talking about. 8 THE COURT: It is 6, and I think that I noted 9 there that if the proof was presented, we would -- not 10 presented that we would strike it, and we agree that we 11 would take that out, so I think we will need to renumber 12 that. 13 MR. BROOKE: So 6 -- 14 THE COURT: 6 is deleted. And I believe with 15 the deletion of 6, then the instruction will be consistent 16 with what we previously discussed. 17 (A note from the jury was passed to the 18 court.) 19 THE COURT: We, the jury, have decided to 20 continue today with the case. So we will have the panel 21 come back in and hopefully we will have everything ready 22 in sequence. 23 (Jury in at 4:10 p.m.) 24 THE COURT: All right. You may be seated. The 25 final -- this folder, I'm going to receive which is not 1888 1 marked, and -- so this resolves the matter in that portion 2 of the case. 3 Ms. Blum, are you ready to proceed with final 4 arguments on the question regarding punitive damages? 5 MS. BLUM: I am, Your Honor. 6 THE COURT: You may proceed. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1889 1 MS. BLUM: And I just wanted to indicate that 2 we have a couple of slides that we would like to show the 3 jury. 4 Thank so much for your verdict. I know this 5 has been a long and difficult process for you, but your 6 verdict shows that you have rejected Colonel Carranza's 7 decades long attempts to deny his own responsibility for 8 the repression that occurred under his command. You have 9 rejected his attempt to shift the blame on to others and 10 you have placed the responsibility where it truly belongs, 11 in the hands of Colonel Carranza, and you have recognized 12 that these people should finally be given justice and 13 compensated for their losses. So thank you very much for 14 that. 15 This trial has been about memory, it has been 16 about history, it has been about accountability, it has 17 been about memory because you have listened to people 18 whose lives have been seared by memories which can never 19 be forgotten. The defendant would have you think that 20 this all happened a long time ago and should be forgotten, 21 but for each of these men and women, it is not so long 22 ago. It is a memory which they never forget. The memory 23 of what happened to them, of what they lost is a memory 24 with them every day of their lives. It is about history 25 because this court has created the opportunity to tell CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1890 1 what really happened in El Salvador. The truth of the 2 lives of each of these five individuals, the truth of the 3 country in which they were raised, in which they were 4 tortured and which they lost their parents and husbands. 5 This courtroom became a place where they would no longer 6 be robbed of their history, the way they were robbed of 7 their youth and the lives of their loved ones. It is 8 about accountability because you have determined who bears 9 a large part of the responsibility for what happened in El 10 Salvador in 1980 and between '83 and '84. 11 We are at the final phase of this trial, and I 12 want to emphasize to you how important your decision 13 making is during this last phase. You have indicated on 14 your verdict forms that you're finding that punitive 15 damages should be appraised against Colonel Carranza, so I 16 do want to talk to you a little bit about some of the 17 things to think about, to bear in mind while you make this 18 decision. 19 Punitive damages have two purposes. The first 20 purpose is to punish the defendant for the injuries to the 21 plaintiffs in this lawsuit. The second purpose is to 22 deter others from engaging in similar conduct in the 23 future. The law gives you, the jury, this way to send a 24 signal to Colonel Carranza, to El Salvador and to the 25 world that a military commander must not fail in the CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1891 1 sacred duty to protect civilians, to send a signal that 2 violations of human dignity are intolerable. 3 The law allows you to consider a certain number 4 of factors in making this assessment which you will see on 5 the forms which you are given. They are the 6 reprehensibility of the defendant's conduct, the 7 objectionable nature of the defendant's wrongdoing, the 8 impact of the defendant's conduct on the plaintiff or 9 plaintiffs, the duration of the defendant's misconduct and 10 whether the defendant attempted to conceal the conduct, 11 and finally the amount reasonably necessary to deter 12 others from engaging in similar conduct in the future. 13 You are free to choose to make the same award 14 in each case or to make different awards in each case. 15 This is for you, the jury, to decide. 16 As your verdict has indicated, you have 17 recognized that crimes against humanity occurred in El 18 Salvador under Colonel Carranza's watch. The term crimes 19 against humanity was coined to express the outrage of the 20 whole world at the crimes of World War II. It is a 21 recognition that there are acts which are so offensive 22 that they are crimes against all human kind. They're 23 crimes against everyone of us. You have recognized that 24 Colonel Carranza was at the pentacle of command of a 25 military that engaged in abuses so offensive that they CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1892 1 have been termed crimes against all humanity. 2 The evidence of Colonel Carranza's repeated 3 objectionable and reprehensible misconduct is 4 overwhelming. In a country one-fifth the size of 5 Tennessee, over 10,000 people were murdered in 1980 alone, 6 most of them by security forces under Colonel Carranza's 7 command. As vice-minister of defense, Colonel Carranza 8 was one of the key leaders who institutionalized the state 9 terror. From his position of command, Colonel Carranza 10 allowed for murder, torture, disappearances, abductions, 11 arbitrary detentions. From his position of command, 12 Colonel Carranza allowed crimes against humanity, such as 13 the ones that you found in this case and the appalling 14 massacres at the Sumpul River, a combined military 15 operation which killed at least 300 fleeing civilians, and 16 at the National University where unarmed students were 17 shot and killed. From his position of command, Colonel 18 Carranza allowed the targeting of political leaders, 19 unionists, teachers, including the teachers union, ANDES, 20 peasant organizers, students, nuns, priests, human rights 21 workers. From his position of command, Colonel Carranza 22 allowed the military to attack the largest peaceful civil 23 rights demonstration in El Salvador's history. From his 24 position of command, Colonel Carranza permitted death 25 squads to operate from the intelligence and operation CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1893 1 sections of every branch of the military and security 2 forces. Is this not the very definition of reprehensible 3 and repeated misconduct? From his position of command, 4 Colonel Carranza was continually beseeched to end the 5 repression. The civilian members of the junta asked him. 6 The cabinet asked him. The young reformists military 7 officers asked him. The FDR asked him. Every single 8 U. S. ambassador asked him, and perhaps most memorably on 9 the day before he was murdered, Arch Bishop Romero said I 10 beg you, I beseech you in the name of God stop the 11 repression. And how did Colonel Carranza respond? 12 Instead of stopping this repression from his position of 13 command, Colonel Carranza attempted to conceal the 14 military's role by engaging in a pattern of denials that 15 continue to this day. He deflected responsibility. He 16 said things were only allegations of torture. He said 17 there was no firm evidence of the security forces being 18 involved in abuses. A man who had been working in 19 intelligence since the mid 1960s said he didn't know these 20 abuses were occurring. A man who spent his whole career 21 in military operations and who was in charge of forced 22 deployment and the security forces said he couldn't stop 23 the abuses from occurring. 24 U. S. Ambassador Robert White told you that 25 Colonel Carranza was a soldier's soldier, probably the CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1894 1 most influential member of the military. He was the man 2 looked up to for leadership. He would have been more 3 effective, said U. S. Ambassador Robert White, than any 4 other person in the military in trying to stop the 5 repression. Colonel Carranza testified that he could not 6 have, even if he wanted to, even if he had wanted to, this 7 is not believable. Colonel Carranza told you that he felt 8 ashamed of taking money from the CIA, but why does he feel 9 no shame about all of this? The conduct of the defendant 10 in this case was reprehensible, it was shameful and it was 11 dangerous, and it was reckless. This is the basis for 12 punitive damages. 13 Another criteria for the assessment of punitive 14 damages is the impact of the defendant's conduct on the 15 plaintiffs. I know from your decision that you understand 16 and appreciate what these four people have withstood, and 17 I would just like to add a few words here to that 18 discussion. There are moments in one's life when one's 19 whole world changes. The first time a person holds their 20 own child or when two people meet and fall in love, the 21 pride of receiving a college degree or landing that first 22 job. These are markers in one's life, but for these four 23 people, their lives were changed forever in an instant. 24 These are the markers in their lives, moments that for 25 them can never be forgotten. CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1895 1 For Paco Calderon, he carries in his heart the 2 loss of his father everyday. For Erlinda Franco, she 3 carries the loss of her husband and a father to her 4 children who could never be replaced. 5 For Cecilia Santos, she carries the memory of 6 acid burning her flesh, the sound of keys jangled by her 7 jailer. 8 For Daniel Alvarado, the permanent pain in his 9 limbs reminds him every day of his torture, permanent 10 memories in his mind haunt his nights. Is this not 11 irreparable harm for which punitive damages must be 12 assessed against the defendant? 13 I want to pose to you a few additional 14 questions about the case of Daniel Alvarado that I hope 15 you will think about as you make your assessment of 16 punitive damages. Is it conceivable that Colonel 17 Carranza, the director of the treasury police, did not 18 know that torture cells existed in the treasury police 19 headquarters? Daniel Alvarado testified that he was in 20 the treasury police headquarters torture area and saw 21 dozens of other people lying on a filthy bathroom floor. 22 Is it conceivable that Colonel Carranza, the director of 23 the treasury police, did not know that Daniel Alvarado 24 would be tortured when he chose Ricardo Pozo, a known 25 human rights abuser, to be in charge of his interrogation? CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1896 1 Colonel Carranza acknowledged that the treasury police had 2 a long record of brutality. Colonel Carranza admitted 3 that torture occurred in the treasury police. Could he 4 really not have known that Daniel Alvarado would be 5 tortured until he confessed to a crime he did not commit? 6 Was Colonel Carranza really not aware of the harm being 7 done to Daniel Alvarado? Were Colonel Carranza's actions 8 not reprehensible? Is it conceivable that Colonel 9 Carranza did not know that Daniel Alvarado was, in fact, 10 tortured after seeing him at the press conference? You 11 saw the videotape excerpt, you saw Daniel Alvarado's 12 bandaged hand, you saw the look in his eyes, you saw his 13 startled reaction to the microphone being placed in his 14 face. Is it believable that Colonel Carranza did not 15 know, and are his actions not repeated misconduct in 16 regards to this plaintiff and reprehensible? And after 17 all of this, Colonel Carranza dares to call Daniel 18 Alvarado a liar in his deposition and blames Daniel 19 Alvarado for not reporting his torture to the very person 20 responsible for it? Is this not the very essence of 21 repeated and reprehensible misconduct? People like the 22 plaintiffs were falsely branded subversives, terrorists in 23 their own country. Meanwhile Colonel Carranza was able to 24 retire honorably to the United States life, live out his 25 life in freedom with his full military pension. In CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1897 1 reality, the honor belongs to these people, these brave 2 people who have the courage to tell you of their lives and 3 to speak for the thousands of other victims who cannot 4 speak for themselves. When you award punitive damages, 5 think of honoring them. 6 Finally, I want to remind you of the testimony 7 of Professor Terry Karl. She told you about the green 8 light for terror. Rather, than deterring the murdering of 9 teachers, priests and political leaders, Colonel Carranza 10 gave a green light for murder like that of Manuel Franco. 11 By not putting a stop to military led death squads, 12 Colonel Carranza gave a green light to the type of murder 13 that took the life of Paco Calderon. By not acting when 14 there was overwhelming evidence of torture, Colonel 15 Carranza gave a green light to the torturers who tortured 16 Cecilia Santos and Daniel Alvarado. By not curbing these 17 abuses, Colonel Carranza helped create a system of total 18 impunity, the ability to carry out atrocious acts without 19 any fear of legal consequence. Now, we ask you to send a 20 very different signal. By the amount of damages you award 21 in this case, we are asking you to send a message to all 22 those who abuse power, to all those who think they are 23 above the law, to declare loudly, clearly, that torture is 24 not permissible, extrajudicial killing is not permissible, 25 massacres are not permissible, killing teachers are not CLOSING ARGUMENT BY MS. BLUM ON PUNITIVE DAMAGES 1898 1 permissible. Commanders have a duty, a sacred duty, an 2 affirmative duty to protect civilians. You can send a 3 signal, a new signal, a powerful signal which will help to 4 stop, to deter, to prevent military commanders no matter 5 where they are from abusing the dignity of human beings 6 from here, from this courtroom in Memphis, Tennessee. 7 Thank you. 8 MR. BROOKE: May we approach, Your Honor? 9 THE COURT: You may. 10 (The following proceedings had at side-bar 11 bench.) 12 MR. BROOKE: Your Honor, for the record, I want 13 to note defendant's objections to several things that 14 counsel stated during this argument. One is that she 15 attempted to use compensatory damage arguments for 16 punitive damages. Secondly, she talked about the 17 punishment arising from crimes for World War II 18 atrocities, which the defendant attempted to bring into 19 evidence with Colonel Garcia, being from Argentina, that 20 very issue, and the court disallowed that evidence. 21 Thirdly, there is no evidence that I'm aware of in this 22 case that Colonel Carranza selected Mr. Pozo to be in 23 charge of interrogations of the treasury police. 24 Next is I don't believe there's any evidence in 25 this case that Mr. Alvarado appeared with a bandage on his 1899 1 hand in the photographs or that the videotape of 2 Alvarado's confession was presented to this jury. And 3 last -- another one is that the statement by counsel of 4 thousands of other victims or a thousand other victims, 5 that they likewise should be effectively demonstrated to 6 be compensated through the rendering of this verdict. And 7 for those reasons, we submit that the argument was 8 improper, and I want to note those for the record. 9 MS. BLUM: Your Honor, may I be heard? 10 THE COURT: Sure. 11 MS. BLUM: Although I can't actually remember 12 all of them that quickly, if you would just refresh my 13 recollection about taking them in turn. 14 THE COURT: Sure. Compensatory damages. 15 MS. BLUM: Compensatory damages. Yes, there 16 is -- in the instruction, in the list of factors, one of 17 them is the harm to the plaintiff by the defendant's 18 conduct. I mean it, in fact, mirrors to some extent, but 19 I mean I spent very little time discussing it, but it is, 20 in fact, one of the relevant factors. 21 In terms of World War II, all I did was explain 22 was the definition of crimes against humanity. That is, 23 in fact, the origin of the term. I wasn't trying to hold 24 him responsible for that, but I was just trying to give 25 them a context for the meaning of the word. 1900 1 The third point being -- oh, about Pozo, I 2 didn't say he appointed Pozo, I said that he had Pozo be 3 in charge of the interrogation of Daniel Alvarado. We had 4 Daniel Alvarado's testimony which clearly the jury 5 accepted as credible, that Pozo came into his torture cell 6 on a number of occasions and indicated that he was in 7 charge of the investigation. And let's see -- 8 THE COURT: Many victims, thousands of victims. 9 MS. BLUM: Well, I merely said that these 10 people came in speaking not on just their behalf, but on 11 behalf of thousands of victims. I think it is certainly 12 relevant in terms of the purposes of punitive damages to 13 raise. You know, there has been a lot of evidence in this 14 case about victims other than just these four people, 15 which was necessary to put on in the context of the case 16 about command responsibility and about crimes against 17 humanity. And I merely used it as a rhetorical device to 18 acknowledge that, and I think it is quite important to our 19 clients that they feel that they are here not just for 20 themselves. I was not trying to say that punitive damages 21 should be assessed against him on behalf of thousands of 22 other people. 23 And finally -- 24 THE COURT: I think that's basically it. 25 MS. BLUM: There was one more point. 1901 1 THE COURT: The tape playing. 2 MS. BLUM: Oh, the tape. I did not refer to 3 the videotape of the confession, I referred to the 4 videotape which the jury had seen from the NBC news clips 5 which shows Daniel Alvarado at the press conference. 6 THE COURT: Right. 7 MS. BLUM: And at the beginning, I stated you 8 saw the press conference. 9 The bandaged hand was from the photo that you 10 all put in evidence in which his hand is down and it is 11 covered by something. And that is where that 12 particular -- 13 MR. EISENBRANDT: And he testified to the wound 14 on his hand. 15 MS. BLUM: Right. 16 THE COURT: Well, I will give, of course, the 17 final instructions, and I think that they will adequately 18 indicate to the jury those factors that they can consider. 19 The argument certainly is not out of bounds, and it is 20 reasonably based on the record in the case. So I'm going 21 to overrule the objection, and we will proceed. 22 We do want to make sure we have the microphone. 23 (The following proceedings were had in open 24 court.) 25 CLOSING ARGUMENT BY MR. FARGARSON ON PUNITIVE DAMAGES 1902 1 MR. FARGARSON: Well, members of the jury, this 2 will be the last time for certain that I will have the 3 opportunity to state anything to you. And let me say 4 this, of course. You have spent a lot of time 5 deliberating on this case. You have been attentive, you 6 have been patient, and I know you have been considerate to 7 everyone, and while I'm disappointed with the verdict, 8 obviously, that has been rendered in the case, I want to 9 tell you I'm not going to fault you in any way, because I 10 know that you have probably did the very best that you 11 felt you could do under all the circumstances; and I say 12 once more that as far as I'm concerned y'all have been one 13 of the most attentive jurors that I have ever had the 14 pleasure of trying a case for, even though I'm 15 disappointed with what you did. 16 Let me say this on this issue of punitive 17 damages. The facts of the case still apply to this, not 18 additional facts, and I would like to point out to you one 19 thing, as Ms. Blum talked about Mr. Carranza was 20 responsible for death squads, Mr. Carranza was responsible 21 for all these people getting killed, 10,000 people, he was 22 responsible for everything. Let me remind you of one 23 thing, and you have the Truth Commission Report back there 24 with you that you could look at, and I read part of it to 25 you, and they read part of it to you, and Ms. Karl read CLOSING ARGUMENT BY MR. FARGARSON ON PUNITIVE DAMAGES 1903 1 part of it. In that Truth Commission Report, there was a 2 serious effort by the individual that was the 3 commissioners of the Truth Commission to find out the 4 names of people that were directly responsible for serious 5 atrocities, and nowhere in that report is Nicolas 6 Carranza's name, and I hope you'll remember that, and 7 you'll take that into consideration because, while that 8 was still made a number of years after the facts of the 9 case, it was made in 1992, it still was much more closer 10 in proximity in time than we are in this courtroom today. 11 Now, Ms. Blum has talked about the impact on 12 the plaintiffs of the conduct of Mr. Carranza, but ladies 13 and gentlemen, you all have awarded damages based on what 14 happened to these plaintiffs, the injury that they already 15 have suffered, and the testimony that you had heard, and 16 damages have been awarded for that. You have compensated 17 them for what happened to them as a result of what you 18 found him to be responsible of. And this stage of the 19 proceeding is to punish the defendant or to punish someone 20 else who might be involved in some situation like this. 21 Now, one element that was not read to you, and 22 I will just read all of them. First of all, the 23 reprehensibility of the defendant's conduct, now, that's a 24 big word. And from the standpoint that I would say to 25 you, maybe you could say or contend that Mr. Carranza was CLOSING ARGUMENT BY MR. FARGARSON ON PUNITIVE DAMAGES 1904 1 negligent, that he didn't perform his duty as efficiently 2 or as seriously as he should, but reprehensibility is a 3 big word, it just means, I guess, you school teachers and 4 those of you that know -- who are word crafters better 5 than I am will understand that that word is something 6 much, much greater than negligence and just disregarding 7 your duty. It is a word that describes just a callous 8 indifference, just turn your shoulders, just turn your 9 head and don't pay any attention to it, just ignore all 10 the consequences that are going on, and I believe that 11 that is a clear definition of what reprehensibility means. 12 The other thing is the defendant's net worth and financial 13 condition. Now, you didn't hear the plaintiff attorney 14 say anything about that, but let me tell you, you have 15 heard proof that Mr. Carranza is retired. That's the 16 ability, the financial ability that really he has. He's a 17 retired individual. He's not a rich person. He lives 18 down in the Hickory Hill area. 19 MS. BLUM: Objection, Your Honor. 20 MR. FARGARSON: And that's something -- 21 THE COURT: Well, that is a little piece of 22 information that is beyond the record in the case, and I 23 will sustain the objection to the particular location in 24 which the defendant lives. 25 MR. FARGARSON: You mean to that area? CLOSING ARGUMENT BY MR. FARGARSON ON PUNITIVE DAMAGES 1905 1 THE COURT: Yes. 2 MR. FARGARSON: Well, you heard the address 3 that he lived, you heard that he has been in the same 4 house, and you can take into consideration that in 5 evaluating this issue of punitive damages. 6 As a matter of fact, members of the jury, 7 $500,000 in and of itself is penal in nature. It has 8 severe financial consequences. 9 Now, I'm not saying you can't award punitive 10 damages, but all I'm saying is that in a case like this, 11 $500,000 for each of these four plaintiffs is penalty in 12 its very nature. It has financial consequences and 13 monetary consequences. 14 And then the other one is the objectionable 15 nature of the defendant's wrongdoing, the impact of the 16 defendant's conduct on the plaintiff. Well, again, part 17 of that, the impact on the plaintiff, you have awarded 18 damages for compensation, you have provided compensation 19 for the impact that this conduct had on the plaintiffs in 20 this particular case, and that was included in the 21 $500,000. 22 Four, the defendant's awareness of the amount 23 of harm being caused and the defendant's motivation in 24 causing the harm, whatever that you hear, that he had some 25 motivation in causing the harm. This issue has to be CLOSING ARGUMENT BY MR. FARGARSON ON PUNITIVE DAMAGES 1906 1 tried on evidence just like everything else. And what 2 evidence have you heard that he has some motivation in 3 causing this harm that affected these individuals? 4 And then, finally, the duration of the 5 defendant's misconduct, and whether the defendant 6 attempted to conceal the conduct. Have you heard any 7 proof of his concealing the conduct? Have you heard any 8 evidence that he tried to hide anything or cover anything 9 up? 10 You've heard the issue of whether or not he 11 investigated, but you haven't heard any evidence at all 12 that he tried to conceal anything or cover anything up by 13 his own acts or by his own actions. 14 And then finally, members of the jury, you have 15 heard the effect that it might have on others. Well, I 16 think this will have some effect on military personnel, it 17 sure would me. I'm glad now I was only a sergeant in the 18 Marine Corps and not an officer in the Marine Corps, if 19 this is what you get for being a commanding officer. But 20 the deterring of others, you know, the big issue in this 21 case, and one of the big issues in this case has been that 22 this was a military dictatorship and it lasted for years 23 and years and years. Now, it is no longer a military 24 dictatorship. El Salvador operates as a democracy. So as 25 far as El Salvador occurred where these acts took place, CLOSING ARGUMENT BY MR. FARGARSON ON PUNITIVE DAMAGES 1907 1 there is no one down there to deter after 25 years, and so 2 the plaintiffs say, well, deter the whole world, send a 3 message to the whole world. Let the people in Africa and 4 these third world countries know what is going to happen 5 to them if they violate their responsibility under command 6 responsibility. Well, that is a noble idea, but I don't 7 think many of the armies in third world countries or 8 anywhere else may get the message. I'm not telling you 9 they won't, I'm not telling you they won't pay any 10 attention to it, but I'm just saying that the location of 11 those, the status of the military in this country and the 12 conditions in this country are far different from what 13 goes on now. 14 Members of the jury, finally, as I say, and I 15 told you I would be brief, or I hope I told you I would be 16 brief, and I am going to be brief, you have awarded a 17 significant amount of damages for someone in Mr. 18 Carranza's station in life, and I say again, yes, you can 19 award punitive damages, but the amount that you have 20 awarded is already penal in nature to Mr. Carranza. 21 Thank you very much for your attention. 22 THE COURT: The plaintiff is allowed a very 23 brief rebuttal argument, but you may waive it if you wish. 24 MS. BLUM: We waive it. Thank you. 25 JURY INSTRUCTIONS BY THE COURT ON PUNITIVE DAMAGES 1908 1 THE COURT: Ladies and gentlemen of the jury, 2 we now come to the second phase of the case when it is my 3 duty to instruct you in the law that applies to punitive 4 damages. Again, you must follow the law as I state it to 5 you. 6 In the first phase of this trial, you found the 7 Defendant Nicolas Carranza liable to the Plaintiff Cecilia 8 Santos and awarded her compensatory damages. You found 9 the Defendant Nicolas Carranza liable to the Plaintiff 10 Jose Francisco Calderon and awarded him compensatory 11 damages. You found the Defendant Nicolas Carranza liable 12 to the Plaintiff Erlinda Franco and awarded her 13 compensatory damages, and you found the Defendant Nicolas 14 Carranza liable to the Plaintiff Daniel Alvarado and 15 awarded him compensatory damages. 16 You, the jury, also agreed that Defendant 17 Cecilia Santos -- excuse me that Plaintiff Cecilia Santos, 18 Plaintiff Jose Francisco Calderon, Plaintiff Erlinda 19 Franco and Plaintiff Daniel Alvarado had shown by a 20 preponderance of the evidence that the defendant's actions 21 were intentional, malicious, wanton or reckless as 22 evidenced by your answer of yes to the last question of 23 each of the verdict forms. 24 As we discussed earlier, as jurors, it is your 25 exclusive duty to decide all questions of fact submitted JURY INSTRUCTIONS BY THE COURT ON PUNITIVE DAMAGES 1909 1 to you, and for that purpose, to determine the effect and 2 value of the evidence. You must not be influenced by 3 sympathy, bias, prejudice or passion; and you're not to 4 single out any particular part of the instructions and 5 ignore the rest. But you're to consider all of the 6 instructions as a whole and regard each in the light of 7 all the others. 8 These instructions are in addition to the 9 instructions that you have already received. You have 10 decided that the Plaintiff Cecilia Santos and the 11 Plaintiff Jose Francisco Calderon, Plaintiff Erlinda 12 Franco and the Plaintiff Daniel Alvarado are entitled to 13 punitive damages. You must now decide the amount of those 14 damages. 15 Again, the plaintiff has the burden of proving 16 by a preponderance of the evidence the amount of punitive 17 damages, if any, that you should award. 18 In making your decision, you must consider the 19 instructions that I have already given you and also the 20 following: The reprehensibility of the defendant's 21 conduct; the defendant's net worth and financial 22 condition; the objectionable nature of the defendant's 23 wrongdoing; and the impact of the defendant's conduct on 24 the plaintiff that you're considering; the defendant's 25 awareness of the amount of harm being caused and the JURY INSTRUCTIONS BY THE COURT ON PUNITIVE DAMAGES 1910 1 defendant's motivation in causing that harm; the duration 2 of the defendant's misconduct and whether the defendant 3 attempted to conceal the conduct; an amount reasonably 4 necessary to deter the defendant and/or others from 5 committing similar misconduct in the future; and any other 6 circumstances shown by the evidence that bears on 7 determining the proper amount of punitive damages. 8 You have already awarded the plaintiff 9 compensatory damages for the purpose of making the 10 plaintiff whole. The purpose of the award of punitive 11 damages is to punish the wrongdoer and to deter conduct by 12 the defendant or others. 13 In this case, you will receive four additional 14 verdict forms. Those four additional verdict forms all 15 read essentially the same and read as follows: 16 The first one happens -- and they're in no 17 order -- happens to be the one as to Cecilia Santos. 18 We, the jury, find that Plaintiff Cecilia 19 Santos has proven by a preponderance of the evidence that 20 she should be awarded punitive damages against the 21 defendant, Nicolas Carranza, in the amount of blank. And 22 you may insert any number there that you determine is 23 appropriate, any number from zero to any number that you 24 determine is an appropriate number under these 25 instructions. JURY INSTRUCTIONS BY THE COURT ON PUNITIVE DAMAGES 1911 1 The same language appears in the -- in a form 2 for Jose Francisco Calderon, the same language appears in 3 the verdict form for the Plaintiff Erlinda Franco, and the 4 same language in a verdict form for Plaintiff Daniel 5 Alvarado. 6 At the end of the case earlier, I told you that 7 at this point, you would take the verdict forms and go to 8 the jury room and resume your deliberations. Those 9 instructions that I gave you at the end of the case in 10 chief apply in this case also regarding any messages that 11 you might need to send to me and, of course, how you would 12 communicate with the court. 13 Let me see counsel very briefly at side bar, 14 and then, of course, we will send these matters to you for 15 your consideration. 16 (The following proceedings had at side-bar 17 bench.) 18 THE COURT: I ad libbed just a little because 19 it is very important that the jury always know that they 20 can return zero. That may sound funny, but it is very 21 important that I tell them that, and I can -- I think that 22 was sufficient, because it is a very short instruction, 23 but really that's all. And I'm not saying they should, 24 I'm just saying that you have to tell them that they're 25 not required to return any dollar amount. Their finding, JURY INSTRUCTIONS BY THE COURT ON PUNITIVE DAMAGES 1912 1 it may be regarded as sufficient to punish, that was the 2 argument that was made by counsel, but it is also a sound 3 legal argument, so that's the reason I made that clear. 4 And then anything -- any objections to the 5 court's instructions, and may I send them back as they are 6 drafted? 7 MS. BLUM: No objection. 8 MR. EISENBRANDT: No objections. 9 MR. BROOKE: Only the general objection as to 10 punitive damages, Your Honor -- 11 THE COURT: Right, the general obj