The case of Cabello v. Fernandez-Larios began this morning in the United States District Court in the Southern District of Florida with Judge Joan A. Lenard presiding. In this case, the mother, sisters, and brother of Winston Cabello, a Chilean economist killed in Chile in October 1973, seek to establish the responsibility of a Chilean former army officer Armando Fernández Larios for his role their brother's death. Fernández Larios was one of several officers in a military squad believed to have ordered or carried out the killings of more than 70 civilians, including Winston Cabello, during a journey by helicopter throughout Chile in late September - October 1973. This military group has become known as the "Caravan of Death."

On this preliminary day of the trial, the parties selected an eight-person jury from a panel of 18 persons, and the court addressed a challenge by Defendant to Plaintiffs' proposed use of testimony from depositions taken in Chile. The Court also addressed other procedural matters.

The Plaintiffs in the case are Winston Cabello's sisters, Zita Barrueto, 56, and Karin Moriarty, 43, his brother Aldo, 59, and mother Elsa. Zita Barrueto also represents the Estate of Winston Cabello in the lawsuit.

Attorneys appearing for Plaintiffs are Leo Cunningham and Nicole Healy of the Palo Alto, California-based law firm of Wilson Sonsini Goodrich & Rosati, and Robert Kerrigan of Pensacola Florida-based Kerrigan Estess Rankin & McLeod. Attorneys for Plaintiffs are not charging any fees for their services ("pro bono"). Appearing for Defendant Fernandez is Steve Davis of the Miami office of the law firm Boies Schiller & Flexner. The case was filed on behalf of the Plaintiffs by the San Francisco human rights organization the Center for Justice & Accountability represented at trial by Litigation Director Joshua Sondheimer, Legal Advisory Council member Carolyn Patty Blum, and interns Angie Barkin and Abby Reyes.

Jury Selected
After attorneys for the parties entered their appearances, Judge Lenard announced a revised schedule for the case - due to a recent injury requiring medical attention, she will hold court this week only on Tuesday, September 23rd, from 9:30 until 2:00, and on Wednesday, September 24th, from 9:30 until 12:00. Court will not be in session Thursday or Friday, September 24-25, and will resume on Monday, September 29, 2003 with her regular schedule, 9:30 a.m. until 2:00 p.m., Monday through Friday. It is expected the trial will be completed by the end of next week.

After approximately two hours of questioning by Judge Lenard regarding the jurors' backgrounds, attorneys for the parties exercised challenges to potential jurors and selected eight jurors who will hear the case. The jury consists of five women and three men. At least four of the jurors are of Latin American descent - two men and two women. Two of the women are African American, and one man and one of the women appear Caucasian. After being selected, the jury was sent home for the day.

Procedural and Evidentiary Rulings
Judge Lenard then took up several procedural issues raised by counsel. She first advised that she would not rule on the final statement of the jury instructions - the statement of the legal standards the jury should apply in making its decision -- until after opening statements.

The second issue Judge Lenard addressed concerned the Defendant's objection to a demonstrative exhibit Plaintiffs' attorney Leo Cunningham planned to use in his opening statement that included a list of 72 individuals believed to have been killed by the Caravan of Death. Defendant's attorney Steve Davis claimed the list of names was unfairly prejudicial. Plaintiff responded by reminding the Court that all acts of the Caravan of Death were made admissible under her previous rulings and that such events are necessary in order to prove that the killing of Winston Cabello was part of a widespread or systematic attack against a civilian population, necessary to prove their claim that Mr. Cabello's killing constituted a crime against humanity. The court agreed that all acts of the Caravan are admissible, but ruled that the actual names of the victims (other than Winston Cabello) should not be used in opening statements. Rather, the use of names would be more appropriate in closing arguments. She did, however, allow for the exhibit to list the number of victims killed by the Caravan of Death.

Finally, the Court took up Defendant's objection to the Plaintiffs' use of depositions taken in Chile. Davis argued that the depositions were not taken in compliance with Federal Rules of Civil Procedure and were not fair to Defendant because there was no one from Chile to administer the oath to the witnesses testifying. Instead, Plaintiffs had used a United States court reporter, licensed in the United States to administer oaths. Davis argued that because the proper party from Chile did not administer the oath, there would be no perjury penalty to witnesses that did not tell the truth. Additionally, Davis argued that Defendant would have no subpoena power over the witnesses and would therefore be at the "mercy of whoever voluntarily wanted to show up." Davis argued that such circumstances produced unreliable testimony that should not be admitted.

Plaintiffs' attorney Nicole Healy responded for the Plaintiffs. She noted the depositions were taken pursuant to a stipulation by both parties in a pretrial scheduling order in which both parties stated that they anticipated that depositions and other discovery would need to be taken in Chile. Healy suggested the procedure followed by Plaintiffs did satisfy the federal rules of civil procedure because notice was given to Davis, the depositions were taken under oath by a licensed court reporter, each deposition was transcribed and most were videotaped, and Davis was present in person or by telephone for most depositions to permit objections and cross-examination. Healy cited Federal Rule of Civil Procedure ("FRCP") 807 to suggest that these circumstances demonstrate the reliability of the testimony. Further, Healy cited to FRCP 29 which states that the parties may agree upon any discovery procedure. Because both parties stipulated to the necessity of depositions in Chile, Healy argued Davis had waived any objections. Healy cited FRCP 804, which allows for the use of prior testimony when witnesses are unavailable, as the basis for admissibility of the depositions. One individual has died since giving his testimony, and the rest currently live in Chile or outside the jurisdiction of the Court. Finally, Plaintiffs' attorney Bob Kerrigan stated that Plaintiffs offered to have a Chilean notary provide an oath to the deponents, and that Davis had said that would not be necessary.

Judge Lenard told both parties she would not rule "off the cuff" on this issue and instructed Plaintiffs' counsel to submit a legal memorandum on the issue by 4:00 p.m. that afternoon, and Defendant to respond by 9:00 a.m. the following morning. She further instructed both parties to continue their cases without the use of the depositions until she ruled on them, though she did not indicate when that ruling would come.

Tomorrow both parties will present opening statements to the jury, and Plaintiffs will begin presenting their witnesses.

Plaintiffs' Opening Statement
In his opening statement, Plaintiffs' Attorney Leo Cunningham laid out for the jury the plaintiffs' case. He explained that this case is about the killing of Winston Cabello, who was murdered along with twelve other victims of the "Caravan of Death" in the city of Copiapó, Chile on October 17, 1973. He noted that 55 other persons were killed shortly before and after as the newly-installed Chilean dictator Pinochet took power. Cunningham commented that Winston Cabello was 28 years old when he was killed in 1973, that in addition to being an economist working as a regional planner, he was a husband, a son, and a father of two little girls. Cunningham told the jury that the plaintiffs are here in trial to ask them to hold Fernandez Larios accountable for his responsibility for Winston's death.

At Cunningham's invitation, Aldo Cabello, Winston's brother; Zita Cabello-Barrueto and Karin Cabello-Moriarty, Winston's sisters, stood in court as he introduced them to the jury as the plaintiffs. He also invoked Elsa Cabello, Winston's mother, who is not well enough to come to trial, and Winston's wife and children who are still in Chile.

Claims: Cunningham next explained that plaintiffs were presenting four substantive claims against Fernandez:

1) Plaintiffs charge Fernandez with the extrajudicial killing of Winston Cabello. In order to establish that, the plaintiffs will have to prove that Winston Cabello was killed, that the killings was done without legal authorization, and that it was done by someone under the color of law (meaning under the official capacity of the government).

2) Plaintiffs also charge that Fernandez Larios participated in the torture of Winston Cabello. This claim requires generally that Winston Cabello have been subjected to severe physical mental suffering while in official custody.

3) In addition, Cunningham explained that Plaintiffs claim Defendant is responsible for the cruel, inhuman or degrading treatment of Winston Cabello; and

4) Plaintiffs allege that Fernandez Larios participated in crimes against humanity against Winston Cabello. To prove this claim, Cunningham explained, the plaintiffs will have to prove that Winston Cabello's death was part of a widespread or systematic attack on a civilian population. He cautioned the jury not to be confused about the name of the charge 'crimes' against humanity: while such a name makes the case sound criminal, this lawsuit remains a civil case.

Theories of Liability. Cunningham next turned to an explanation of the three ways Fernandez Larios could be held legally responsible for these charges: first, if Fernandez Larios directly committed them; second, if Fernandez Larios aided or abetted the commission of the acts, which means that he gave substantial assistance to others who committed the acts; and third, if Fernandez Larios conspired in these acts, which means that he participated in an agreement that killed Winston Cabello.

Overview of the Evidence. Cunningham stated that the evidence will show that in 1973 Winston Cabello was a 28 year old economist in Copiapo working for the government under the democratically elected government of President Salvador Allende. On September 11, 1973, everything changed in Chile when Allende was overthrown by the Chilean military led by General Augusto Pinochet. Fernandez Larios was 24 years old, a few years younger than Winston Cabello, though he didn't have a wife and children as did Winston.

Cunningham explained that Fernandez Larios joined a small squad of military officers led by General Arellano for a mission in Chile. The squad was small, only large enough to fit on a helicopter. Cunningham told the jury that this squad has become known as the Caravana de la Muerte, or the "Caravan of Death," and then showed the jury a map of Chile highlighting the trail the Caravan of Death made throughout the Chilean countryside. The map showed remote towns to which Fernandez Larios and the squad traveled by helicopter: first to Cauquenes, where, Cunningham stated, Fernandez Larios has acknowledged that four people were killed when his squad was there. After Cauquenes, the squad returned to Santiago, yet Fernandez Larios did nothing, Cunningham noted, to alert he authorities to the four killings before rejoining the squad for a trip two weeks later to northern Chile. Next, Cunningham told of the squad's continuation to La Serena in northern Chile where 15 people were illegally killed. He then pointed on the map to Copiapo, where the squad went next. When Fernandez' squad was there, 13 people were killed, inclding Winston Cabello.

Cunningham next laid out what the jury could expect to hear from witness testimony about their knowledge of Fernandez's involvement in the killings in Copiapo, including: the process by which detainees were selected to be killed; his assistance to Gen. Arellano; his beating of a detainee in the Copiapo military garrison; and his attempt to take a patient at the Copiopo hospital out of the hospital during the early morning hours of October 17, 1973, around the time that the rest of the victims in Copiapo were transported out of the city and killed. He said other witnesses will explain what they experienced the night Winston Cabello taken from the Copiapo garrison. How he was taken out of his cell by young officers dressed in combat gear in the early morning, hours after Fernandez's squad arrived, along with 12 other political prisoners from Copiapo, how they were placed into a truck, driven to a remote location, killed, and then thrown into a mass grave. Cunningham told the jury they would hear from doctors who saw the bodies the bodies before they were buried, and after they were exhumed from a mass grave 17 years later. These witnesses will explain that the detainees were not just shot, but were massacred, and some of them slashed with knives.

Cunningham then told how after Fernandez Larios and his squad left Copiapo, they traveled on to Antofagasta where Fernandez Larios admits that 14 more detainees were killed. They then traveled to Calama where 16 more were killed. He gave the jury a preview of a story they will hear from a mother who was in detention with her son in Calama, and who watched through the bars as detainees, including her so, were loaded onto a truck by Fernandez and his squad just before he was driven away and killed.

Cunningham noted that Fernandez Larios has said that "being part of Arellano's squad has made me have these big problems in my conscience." And he said, "I recalled they killed a lot of people and now I was part of these killings."

In closing, Cunningham thanked the jury members for serving jury duty, reminding them that every case is important, and especially this one, to the family of Winston Cabello.

Defendant's Opening Statement
After Cunningham completed his opening statement to the jury, Defendant's counsel, Steve Davis, began his opening statement with these words: "Armando Fernandez Larios did not kill Winston Cabello. Armando Fernandez Larios did not torture Winston Cabello. Armando Fernandez Larios had nothing to do with what happened to Winston Cabello." Davis then pointed to Cunningham's outline of the case and noted it did not include evidence of actual contact between Armando Fernandez Larios and Winston Cabello. The reason Cunningham did not include this evidence, Davis suggested, is that no such evidence exists, because it did not happen.

Davis stressed to the jury how important this case is to Armando Fernandez - important, but not complicated. Davis accused Cunningham of avoiding details because the details, Davis suggests, "confirm that Armando Fernandez had nothing to do with Winston Cabello." He responded to Cunningham's use of Defendant's statement in his deposition where Fernandez admitted that being part of Arellano's squad caused him problems with his own moral conscience by explaining such statements were made in Chile in an attempt to be exonerated, and had nothing to do with Winston Cabello or the proceedings before the court today.

Davis then stated the exact issue the jury will be called upon to decide: "what happened to Winston Cabello, and did Armando Fernandez have anything to do with it." He reminded the jury that their duty is to follow the evidence of the case. It is not to be decided based on misplaced anger toward Fernandez due to his membership in the Chilean army, and it is not to be decided based on their sympathetic feelings toward the family of Winston Cabello. The case, Davis repeated, is to be decided on the evidence.

Davis then described Armando Fernandez's life and career in the military. Armando Fernandez was born in Washington D.C. in 1949. His father was in the Chilean Military and worked with the Chilean Embassy in Washington D.C. Though born in the United States, Armando Fernandez returned to Chile to be raised and educated there. While in Chile, he joined the military school and graduated in 1969. In January of 1970, at 20 years of age, Armando Fernandez became a second lieutenant in the Chilean military and worked in the infantry. Davis noted this was a low position in the Chilean military.

Davis explained that on September 11, 1973, the coup, led by General Pinochet, overthrew the government of Chile. Davis asserts that as far as the Defendant was concerned, Chile at that moment was in a time of war and that he was to follow whatever orders assigned to him. This is true, Davis stated, because Fernandez believed the military was the law. Davis emphasized that Fernandez was stationed in Santiago at the time Winston Cabello was arrested in Copiapo by local forces, demonstrating that Armando Fernandez had nothing to do his arrest.

Davis discussed Armando Fernandez's orders to report to General Arellano, the most powerful general in Chile according to Davis. As a powerful General, Arellano had a delegation of officers assigned to his squad. Of all the officers under Arellano, Davis noted, Armando Fernandez was the lowest ranking officer. To demonstrate this point further, Davis described how Fernandez did not even receive a pair of ear phones for the helicopter rides as the other officers did.

Now part of Arellano's squad, Davis described the pattern Arellano and his men would follow as they moved to different cities. He stated the squad would arrive at a new city, Arellano would give a speech to the officers of that city, Arellano would meet in private with the local officers (Armando Fernandez was not invited to these private meetings), and then leave. Davis noted that Arellano had a paper from General Pinochet granting him with the power of Pinochet, but Armando Fernandez was such a low ranking officer he did not get to see that paper.

Above all, Davis emphasized that Armando Fernandez did not see, witness, or take part in any of the interrogations or executions he acknowledges were committed by the Caravan.

Davis emphasized that the important events the jury should focus on are those that occurred in Copiapo, for that is where Winston Cabello was killed. Davis stated that Arellano arrived in Copiapo with his squad on October 16, 1973 at 7:00pm and stayed there until approximately 10:00am the next morning, for a total of 16 hours. Davis explained that Captain Diaz, the Commander of the Regiment in Copiapo, confessed to killing the 13 individuals in Copiapo (including Winston Cabello) under an order from the local commander Oscar Haag. In that confession, Davis noted, Diaz stated that he did not know Armando Fernandez and did not see him there. Davis followed this statement with a question to the jury: why did the family name Armando Fernandez and not Colonel Haag, Captain Diaz, General Pinochet, or Arellano in this law suit? Why did they only name Armando Fernandez, the lowest ranking officer of all of them?

Davis ended his opening statement by explaining to the jury that though Armando Fernandez feels badly about the fact that he was in the helicopter, he had nothing to do with the death of Winston Cabello. He repeated his instruction to the jury to decide the case only on the evidence, not on sympathy for the family or dislike toward the Defendant. And the evidence, Davis claims, "says Armando Fernandez had nothing to do with the death of Winston Cabello."

Testimony of Plaintiffs' Witness Patricio Barrueto

Next Judge Lenard instructed the plaintiffs to call their first witness. Cunningham invited Patricio Barrueto to the stand. Patricio, or Pato, is Winston Cabello's brother-in-law. He was 27 years old when Winston was killed. Pato now lives in the San Francisco Bay Area where he runs a family day care center and is the father of two boys, Felipe, age 31, and Roberto, age 25. Pato testified that he first met Winston Cabello in 1963 when he was 19 years old. They were students at the school of economics. He was part of a Chilean folk music and dance group that Winston joined as a guitarist. He later met his wife Zita Barrueto, Winston Cabello's sister, through the song and dance group when Winston started to bring his sister and her friend along. Winston was studying for his economics degree, which he finished rapidly with a specialty in accounting and economic activity. Pato told how Winston was married to his wife Veronica in 1970 and had one child with her, Susan, who is now thirty. Before that, Winston had another child Marcela.

Cunningham next showed Pato a photograph. Pato recognized the picture as one of Winston when he was in his mid-twenties. Pato then continued by telling of Winston's new job after graduation working for the national planning office. Pato was the regional director for the planning office in southern Chile. By March 1972, Pato and Zita moved to Copiapo in part because Winston was there and in part because of a better work opportunity. Pato worked under Winston's direct authority in the national planning office. Pato explained that neither Winston nor himself was a member of any political party.

Key Evidentiary Ruling on Use of Depositions at Trial
At this point Judge Lenard requested a 15-minute break. During the break, she advised the parties of her decision to exclude, on the defendant's motion, the recorded testimony of three of the plaintiffs' witnesses. (See Day 1 for argument before the court on this issue). She said the three depositions, taken in Chile, did not comply with the federal rules of civil procedure because the witnesses were not sworn in before a Chilean notary. Davis, the Court ruled, waived his objection to subsequent depositions on this ground after he declined Plaintiffs' offer to have the witnesses sworn before a Chilean notary. Judge Lenard, however, allowed the plaintiffs to proceed with their plan to offer other testimony by deposition, despite the defendant's objections.

After the break, Pato continued his testimony. He detailed his experience of what happened in Copiapo on September 11, 1973, and the governmental change over to military control, which he inferred from his observation of many military checkpoints throughout the city and military deployment. Later he heard President Allende's last address to the nation over the radio and came to understand that the military junta was led by General Pinochet. The next day, Pato said, the superintendent, who, after the coup, was named Oscar Haag, called a meeting for the chiefs of service. Winston went to the meeting. Late that evening Winston called Pato and said, "I'm in jail. I don't know why, please bring me my sleeping bag [and some presonal effects] and try to talk to the fiscalia [military prosecutor]." Pato tried to talk with the fiscalia, but could not. Then he went to the jail, gave Winston his things, and talked with him briefly. Afterwards, he drove Winston's car to Winston's wife Veronica's home, told Veronica what had happened, and went home to tell Zita.

In the following days, Pato continued to visit Winston in the patio of the jail, and then, a couple of weeks later, when they transferred Winston to the military garrison, he visited him there. Pato then told that within a few weeks of the coup, he, too, was put in jail, even though he was never charged with any crime. On Tuesday, October 16, 1973, Pato was transferred from the Copiapo jail to the Copiapo military garrison. At the garrison, Pato saw Winston, who helped Pato find a bed, assuring him they would talk more in the morning. He said Winston's state of health was perfect. That night, Pato slept intermittently and was awoken by the door opening loudly and military personnel entering in full combat dress with weapons, including machine gun. There were other people pressing in at the door, trying to see in. Pato heard them calling names. One of the names was Winston Cabello. Pato identified a number of the names that were called and how the soldiers ordered them to hurry up. After his name was read, Winston, from a lower bunk bed at the other end of the room, dressed hurriedly. He left cinching his belt, saying "I'm hurrying." That was the last time Pato saw Winston. Pato stated that he was released from jail in mid-December that year into a state of internal exile before leaving Chile for the United States in 1974.

Next, defense attorney Davis cross-examined Pato. He confirmed that Col. Haag was the local military leader in charge in Copiapo during Pato and Winston's detention through to the time of Pato's release into internal exile. Plantiffs' attorney Cunningham declined to ask further questions after Davis' cross-examination ("redirect").

Testimony of Plaintiffs' Witness Angel Ruben Herrera Jofre (Videotaped Deposition)
The testimony of Plaintiffs' second witness, Angel Ruben Herrera Jofre (Herrera), was presented to the jury by a videotaped deposition taken November 16, 2000. Herrera is 56 years old and was born in Chile in a city named Ovalle. Mr. Herrera lived in Stockton, California at the time of the deposition, and had lived there since 1976. In his deposition, he testified that he has been married for 30 years and works as a carpenter for a construction company. Prior to 1976, he was not employed because he was imprisoned in Chile.

Herrera testified that he saw Winston Cabello on October 14th or 15th in Chile, while in jail. He spoke with Winston, telling him about a list of approximately fifteen names he heard being read, including Winston's name. During that conversation, Herrera told Winston "they're gonna kill us. They're gonna kill us."

Herrera was taken to the hospital on October 15, 1973 for medical treatment. He received a blood transfusion as well as injections of medicine every four hours. He remained conscious and aware of his surroundings during his stay at the hospital. He recalls his wife, who used to work at the hospital as a surgery nurse, visiting him at the hospital.

In the early morning hours of October 17, Herrera testified that an army officer came to visit him. Herrera said he had been alone in his room and woke up when he heard steps. His hospital door opened, and an Officer Ojeda, one of the local Copiapo officers, appeared with another military officer who was dressed differently than Ojeda. Herrera knew Officer Ojeda but did not know the other officer accompanying him. That officer wore a "battle-type uniform with a black beret, face painted, with camouflage equipment. I noticed how exaggeratedly armed he was." Herrera had only seen one local officer wear a black beret before. Herrera described the weapons worn by the officer who he did not know. The officer wore a corvo on his belt, which is a "big sort of machete or knife," as well as a machine gun; and a revolver. Herrera drew a picture of a corvo which was admitted into evidence.

After identifying himself, the officer with the corvo told Herrera to get up. Herrera began to follow that order when the door opened and about three more military personnel appeared dressed like the officer with the corvo. Herrera's doctor, a Major, also came into the room and instructed Herrera to lie down. Upon the doctor's refusal to allow the man with the corvo to take Herrera from the room, the man stated: "At your orders, Major, but I will return." The man then hit Herrara in the chest with the back of his rifle and left.

Herrera testified he believed the man with the corvo was superior in ranking to Officer Ojeda, because he was the one giving orders. Herrera also stated it appeared the officer seemed to be enjoying himself: "I got the impression like he felt he was winning the war or something like that. I was unarmed. I was sick. and … if he hit me it was because it gave him pleasure to do so."

Herrera testified that he later learned the identity of the man with the corvo. While still imprisoned in Chile, Herrera stated that he saw the officer on television and said aloud: "That's him." After coming to the United States, Herrera saw more pictures of that man. He testified he is now "99 percent sure" that he knows the identity of the man with the corvo: the Defendant, Armando Fernandez Larios. When asked why he believes Armando Fernandez Larios was the man in his hospital room, Herrera stated: "Because later I saw pictures of him. I think I can clearly identify faces. That look, even when I sleep, sometimes I see it."

Cross-Examination of Herrera

Defense attorney Davis read selected sections of the transcript of Herrera's deposition, which will be continued tomorrow when court resumes at 9:30 am.

Court was expected to begin with Davis continuing to read portions of the deposition of Plaintiffs' witness Mr. Herrera; however, the attorneys agreed to postpone that reading in order to accommodate the limited schedule of Plaintiffs' witness, Dr. Elvira Miranda Vasquez, who had flown from Chile to testify.

Testimony of Plaintiffs' witness Dr. Miranda

Dr. Miranda testified that she is a clinical pathologist and medical examiner. As a clinical pathologist, she performs microscopic studies of disease in the deceased. Her training includes seven years of premedical studies, for which she received a clinical physician degree; three years studying for her specialty degree in clinical pathology; four years working as a clinical pathologist in a hospital; and another four years working as a forensic pathologist and medical examiner. Currently, Dr. Miranda specializes in microscopic studies to assess causes of death based on autopsies performed by others. The Chilean court has called upon Dr. Miranda to give her expert opinion on the cause of deaths in court cases there.

After establishing her expertise, Dr. Miranda discussed the exhumation of thirteen bodies from a mass grave in the Copiapo cemetery where Winston Cabello's body was found. Dr. Miranda testified that she participated in the exhumation as a member of the Chilean Government's Servicio Medico Legal (Legal Medical Service) at the order of a local judge. The exhumation team consisted of several experts including medical doctors, a forensic dentist, a photographer, archeologists, autopsy assistants, and Dr. Miranda. Doctor Miranda explained that a Chilean judge had asked the team to identify the bodies recovered and to advise the court of the cause and manner of deaths when possible. She indicated General Pinochet was no longer in power when the exhumations took place in 1990, and that she had worked at other mass graves in Chile.

Bob Kerrigan then played a short video of the area where the thirteen bodies, including Winston Cabello's, had been exhumed. During the video, Dr. Miranda testified that after locating the general area from written reports, the archeologists used heavy picks and shovels to uncover the top layers of the mass grave. Pieces of paper were found in the ground, indicating the bodies had been buried there. At that point, the team began using small shovels and brushes, so as to uncover the bodies as carefully as they could. Dr. Miranda explained how the team then isolated the bodies in order to extract them in the most careful manner possible. Once extracted, the team covered the skulls in aluminum foil and put the body remains in plastic bags.

After describing the exhumation process, Dr. Miranda discussed her findings at the mass grave. Based on the thirteen forensic reports she prepared as part of her official duty under the court order, Dr. Miranda concluded the bodies had been killed at the same time. Kerrigan asked Dr. Miranda to state the cause of death of each of the twelve bodies found next to Winston Cabello. Time allowed for Dr. Miranda to get through only six of the reports. Of the reports she did speak to, Dr. Miranda testified that causes of death included head and face trauma, broken ribs, gunshot wounds, blunt force wounds, and knife wounds. She further indicated that many were shot in the back, some from the front, and some from both the back and the front.

Dr. Miranda will continue her testimony when Court resumes on Monday, September 29, 2003 at 9:30am.

As scheduled, court began this morning with the continued testimony of Dr. Elvira Miranda, the forensic pathologist who prepared reports on the exhumations of the Caravan victims in Copiapó. Before the jury entered the court room, Defense Attorney Steve Davis raised an objection to video excerpts Plaintiffs planned to admit into evidence during Dr. Miranda's testimony.

The video excerpts depicted the process of the exhumation of the mass grave in Copiapó, and the uncovering of bones, skulls, and clothing from the thirteen bodies exhumed from the grave, including the torn jacket of Winston Cabello. Davis argued the excerpts should be excluded under Federal Rule of Civil Procedure 403, in that the pictures were unfairly prejudicial to the defendant. He suggested the only reason Plaintiffs would use the video was to inflame the jury. Davis further claimed the pictures were cumulative -- a needless repetition of Dr. Miranda's testimony. He argued that the defense did not dispute the existence of the mass grave, making the evidence unnecessary.

Attorney Bob Kerrigan responded for the Plaintiffs. Kerrigan argued the videos contained evidence necessary for Plaintiffs to demonstrate how the exhumation was performed and that the killings constituted a crime against humanity. Kerrigan further stated that the disturbing nature of the evidence did not make it inadmissible.

After viewing the video excerpts outside the presence of the jury, Judge Lenard ruled all excerpts admissible, except four. She stated the prejudice did not outweigh the probative value of the evidence, to prove a crime against humanity, and therefore did not violate Rule 403. Of the four rejected excerpts, three were ruled cumulative, and the fourth was withdrawn by Plaintiffs.

Dr. Miranda's Direct Examination Continued:

Dr. Miranda continued her testimony with the aid of the video excerpts described above. Using the video, Dr. Miranda described the work performed by the archeologist at the mass grave in Copiapó, and identified the remains shown such as bones, skulls, shoes, and clothes. She noted that some skulls were destroyed, while others remained intact. Regarding the destroyed skulls, Dr. Miranda testified that the condition of the skulls was not due to natural deterioration, but rather the result of "considerable trauma." Dr. Miranda defined "considerable trauma" as a "mechanical wound probably [caused by] an object of considerable weight or considerable violence."

Dr. Miranda explained that the forensic team also examined the victims' clothes. Dr. Miranda explained how they studied the holes and tears in the clothing to determine the weapon used to kill each victim. She noted the size of the holes indicate whether they were caused by the entry or exit of a projectile (the larger holes being exit wounds), and how these helped to establish whether a victim had been shot in the front or the back. Dr. Miranda further testified that most items of clothing tested positive for gun powder.

Last week, Dr. Miranda testified as to the causes of death and injuries of six of the thirteen bodies exhumed from the mass grave at Copiapó. She continued that testimony today, stating the causes of death of the remaining victims included cranial and facial trauma, wounds to the legs and arms, damage to soft tissue, and thoracic and spinal trauma. Dr. Miranda listed the additional injuries suffered by the victims, including knife tears, bullet holes, fractured ribs, and pelvic trauma.

After describing the injuries and causes of death of the twelve bodies buried with Winston Cabello, Dr. Miranda stated her findings regarding the body of Winston Cabello. Dr. Miranda testified that Winston Cabello died due to thoracic trauma. Though Dr. Miranda stated there was insufficient evidence to determine the exact mechanism used to produce that trauma, she did testify that the trauma had been caused by an external source, and that no gun powder had been found on his clothing. Dr. Miranda further testified that Winston's jacket had several tears in the front and back that penetrated through the lining of the jacket. Blood stains surrounded these tears.

Cross-Examination of Dr. Miranda:

On cross-examination, defense attorney Steve Davis brought out that the exhumation of the mass grave at Copiapó was the first exhumation of Dr. Miranda's career. Davis also questioned why Dr. Miranda's report was not definitive as to the cause of Winston Cabello's death. Specifically, the report stated there was "no evidence tending to explain how said trauma injury could have been produced, but it could have been caused by a projectile or a blunt object." Dr. Miranda stated the report was written this way in order to leave the investigation open for a judge in Chile to determine the cause of death after reviewing the evidence, including Dr. Miranda's report.

Davis then asked Dr. Miranda whether she had interviewed or read statements of alleged participants in the Copiapó killings regarding the deaths of the thirteen individuals. Dr. Miranda testified that she had not. She explained the Criminal Procedural Code in Chile states that experts do not need to gather such information concerning their conclusions.

Davis further noted that no bullets were found at the site and that Dr. Miranda could not identify the type of guns used to kill the thirteen victims, including Winston Cabello.

Re-Direct Examination of Dr. Miranda:

On re-direct, Dr. Miranda testified that interviewing individuals is not part of her duty or routine as a pathologist. She testified that had an individual told her something inconsistent with her scientific findings regarding the deaths of the thirteen victims, she would not have changed her conclusions because the "scientific findings speak for themselves."

Dr. Miranda confirmed that the videos shown to the jury had not been changed or tampered with in any way, and that they "faithfully represented the reality at that time."

Finally, Dr. Miranda testified that she did not know any member of the Cabello family at the time she performed the exhumation and reported her findings.

Herrera's Cross-Examination Continued:

Upon the completion of Dr. Miranda's testimony, Steve Davis continued reading excerpts from the deposition of Plaintiffs' witness Ruben Herrera, who had been detained at the Copiapó garrison with Winston Cabello.

Davis read portions indicating that Herrera had been arrested and tortured prior to the arrival of the Caravan in Copiapó, and that Herrera had been at political meetings which Winston Cabello attended. Herrera further stated that he had been tortured, causing him to lose consciousness, and had received a blood transfusion and medication in the hospital prior to his visit from the "man with the corvo," whom he had previously identified as Defendant Fernández.

Court will resume tomorrow morning (Tuesday) at 9:30am, beginning with deposition excerpts of Plaintiffs' fourth witness, Victor Bravo Monroy.

Testimony of Plaintiffs' Witness Victor Bravo Monroy
Once the jury entered, trial continued with Plaintiffs' fourth witness, Victor Bravo Monroy (Bravo), who appeared via videotaped testimony from his deposition in Chile last year. Bravo lived in Copiapó, Chile, for 21 years. In 1973, he was the provincial head of the state's Civil Registry.

On direct examination, Bravo testified that in the early evening hours of October 16, 1973, a jeep came to his house with a commanding army officer and an accompanying soldier armed with a machine gun. Without explanation, they told Bravo to get in the jeep and drove to the Copiapó regiment. Bravo characterized this occurrence as unusual. In the regiment's dining hall, where Bravo was made to wait, he watched several officers coming and going. He recalled that he knew most of these officers since several were diving and sailing students of his. Also coming in and out were two to three other officers Bravo did not recognize, who wore different clothing -- combat fatigues -- and sat and talked among themselves. After two hours, Bravo said, the officers took him back to the jeep and drove him to the city cemetery, where a group of military personnel awaited them. One directed a flashlight toward the ground, revealing to Bravo a "whole row of corpses," each of which had a sleeping bag stuff sack tied around his head. The corpses had been washed down with water. When told to identify the bodies in order to issue death certificates, Bravo testified that he told the officers he needed his usual instruments for fingerprinting. To his surprise, the officer showed Bravo his instruments - the set from his own office - which were placed on the first corpse in the row.

Bravo proceeded to remove the bags from the heads. At this point in his testimony, Bravo commented that he has rarely talked about this aspect of this experience in his life because it is gruesome. He said the first corpse he identified was that of his friend Alfonso Gamboa, the director of a radio station. Bravo testified that the lower portion of Gamboa's face had been blown off. Bravo identified him by taking his documents off his body; otherwise it was impossible to recognize him. Next Bravo described the corpse of student leader Jaime Sierra whose eye was carved out by a corvo. He continued describing the condition of the other corpses, six or seven of whom he personally knew. Bravo then commented that none of the victims had only been shot to death. He described Winston Cabello as having a gash on his ear that ran through his throat. There were gunshot wounds on the victims' feet up through the bodies, including the hands. Bravo said that when he was on the thirteenth corpse, a patrol squad from the cemetery approached, setting the military personnel on edge. After he identified the bodies, Bravo said, they were placed in a common grave.

Bravo observed that he saw near the mass grave a dump truck, like one used by the mining company, with a raised bed that looked as though it had been hosed out in order to remove the blood. He could not identify by name the military men who were present due to the dark and his nervous condition. When asked whether he saw Fernandez Larios, Bravo recounted that among the officers dressed in combat fatigues was a tall man with a corvo attached to his leg having all of the characteristics of the commandos, which were dressed differently than the other officers. Bravo said he saw Fernandez Larios for the first time in the dining hall earlier that evening while waiting.

Testimony of Plaintiffs' Witness Juan Morales Alcota

After resolving defendant's evidentiary objections to Plaintiffs' next couple of video deposition excerpts, Plaintiffs presented their fifth witness, Juan Morales Alcota (Morales).

In 1973, Morales was a Colonel First Class of the Chilean military stationed in the city of Antofagasta. He testified that in early October 1973, he went to Copiapó to work in the military's second division for security. As such, he created and maintained the cards that recorded each prisoner's name, identification number, address, and political affiliation. The records were kept in his office in the garrison's second floor. When he arrived in Copiapó, he said, approximately 35 political prisoners were in the garrison and public jail.

Morales said that after the Caravan of Death's helicopter arrived in Copiapó, two people came to his office, at the Copiapó garrison. One of these men was Fernandez Larios. Morales then recounted seeing Fernandez Larios mistreat prisoner Jaime Sierra, who was held with the other detainees in the garrison's second floor corridor near Morales's office. He saw Fernandez Larios hit Sierra with his rifle in the stomach or chest two or three times, so hard that Morales heard Sierra's bones crack. When Sierra fell to the ground, Morales watched Fernandez Larios kick Sierra's head down, smashing his face into the pavement. He said it sounded like a watermelon. He noted that later Sierra asked to be killed because he could no longer stand the beatings.

Morales described Fernandez Larios as being heavily armed in a combat uniform. This dress differed from those regularly stationed in Copiapó, and was similar to the others with whom Fernandez Larios arrived in the helicopter. He described that Fernandez Larios, along with the others from the helicopter, interrogated each of the 35 political prisoners in an inner office of the second floor, for 20 - 40 minutes each. Morales said Fernandez Larios was the only one who would remain in the office throughout all of the interrogations, and that he acted like the head of the group of interrogators. Morales commented that Fernandez Larios was the "lead singer in that group. He carried the voice." Fernandez Larios looked at cards containing information about each of the detainees., then took a general list of all of the political prisoners' names. He made check marks by certain names on the list.

Morales asserted that he could accurately recall Fernandez Larios after this many years because he saw the defendant in the news in Chile, in his office, and he recalled him striking Jaime Sierra.

Morales heard shots during the night Winston Cabello and other Copiapó detainees were killed. After the executions, Morales was told that some detainees tried to escape while being transferred and were shot. At 1:30 am the next day - 24 hours after Morales heard the shots - Carlos Brito, Morales's supervisor, ordered Morales to drive the dump truck with the bodies to a side entrance of the cemetery, where Morales saw a mass grave. There, Morales took the fingerprints of the corpses onto what he believed were like those used at the garrison. He later gave these to his supervisor.

Testimony of Plaintiffs' Witness Dr. Ivan Murua Chevesish

Next the Plaintiffs offered the video deposition testimony of Dr. Ivan Murua Chevesish (Dr. Murua). A Chilean pediatrician and physician, in 1973 Dr. Murua directed a hospital in northern Chile affiliated with the copper mines near Copiapó. He testified that at 3 pm on September 11, 1973, the day of the coup, the police arrested him at his house under orders of the Interior Ministry. They detained him for three days at police headquarters before transferring him to the Copiapó public jail, where he stayed until October 21, 1973. Dr. Murua said that on October 16, 1973, at approximately 7 or 8 pm, he and a few others were taken to the regiment and interrogated by the local military prosecutor Carlos Brito, who was looking through a thick file on him. After half an hour, three military men showed up, including General Arellano and Fernandez Larios, making the local officers very nervous. General Arellano appeared "very upset" and asked Brito for the files of the political prisoners. Fernandez Larios put red circles by some of the prisoners' names. He heard General Arellano say that "all these have to be eliminated." Fernandez Larios was present in the room when General Arellano said this. Dr. Murua said that Brito remained motionless.

Dr. Murua then reflected how surprised he was at how brutal the situation had turned out to be. He said that, before General Arellano and the others arrived, the detainees generally had a good relationship with the regular guards, such that the prisoners nicknamed local commander Oscar Haag "Pope John the 23rd" because their treatment had generally been humane.

Dr. Murua described Fernandez Larios as being in combat gear, and though not able to discern Fernandez Larios's rank by his clothing, he stated that Fernández appeared to be Arellano's "aide-de-camp" by the way the two interacted . Years later, Dr. Murua conveyed, he was able to recognize Fernandez Larios from a photograph that appeared in the press. It was not until this time that he learned Fernandez Larios's name. Dr. Murua said he knew it was Fernandez Larios in that room that day not only because of his good memory but also because in a situation so pressing, "you can see clearly, like in a photograph."

On cross-examination, defense attorney Davis probed the circumstances of Dr. Murua being in the room while General Arellano and the others made their plans. Dr. Murua noted that everyone in the interrogation room was surprised when the General Arellano and the others walked in. He clarified that he was not formally introduced to General Arellano. He stressed that during the 20 minutes he remained in the room after the strangers arrived the military personnel were engaged in matters unrelated to Dr. Murua.

Davis next showed Dr. Murua a photograph of a group of soldiers walking in file and asked Dr. Murua to identify Fernandez Larios in the photograph. Dr. Murua eventually asserted that six of the men in the photo were not Fernandez Larios, but could not determine whether the two remaining men pictured in the foreground were Fernandez. The doctor acknowledged that his identification of Fernandez Larios as being in the room with General Arellano that day was a serious matter. He noted that Fernandez Larios had a short military haircut with short sideburns.

At this point Judge Lenard excused the jury for the day. She then informed the parties of her remaining evidentiary rulings on tomorrow's anticipated deposition testimony from Patricio Lapostal and Enrique Vidal Aller.

Testimony of Plaintiffs’ Witness Vidal
Plaintiffs opened trial today at 10 am with the video deposition of witness Enrique Vidal Aller (Vidal). In September and October 1973, Vidal was a lieutenant in the Chilean Army assigned to the engineering regiment headquarters in Copiapó as an assistant to the regiment commander, Colonel Oscar Haag. In this position, he coordinated activity between the commander and other officers.

Vidal testified that between 6-7 pm on October 16, 1973, he saw a helicopter landing on the soccer field within the regiment and organized a squad to surround it as he did not know who it was. About eight soldiers surrounded the helicopter, pointing their weapons at it. He recalled that Fernandez Larios stepped out of the helicopter first, followed by a second lieutenant with the last name of Julio, and then General Arellano. Three to four other officers of higher rank also accompanied them. They were all dressed in green combat uniforms. Vidal recognized Fernandez Larios because they had been classmates at the military academy. Vidal noted that Fernandez Larios had an unusual weapon on his belt – a flail, with a wooden handle and a spiked metal ball attached to a chain.

Vidal stated that General Arellano asked Vidal for the regiment’s commander, and he ran to alert the commander that the General had arrived, though Vidal did not know who he was. When Col. Haag approached General Arellano, Fernandez Larios asked Vidal how many prisoners there were in Copiapó. Vidal recalled telling him that there were many, but that the military prosecutor had the exact numbers. He described Fernandez Larios as very nervous, as though he were looking for prisoners. Vidal recounted that Fernandez Larios then went with the military prosecutor and his fellow officers from the helicopter “task force” to see the detainees.

Vidal next saw Fernandez Larios in the courtyard of the Copiapó garrison at around 10:30 or 11 pm upon returning with the other officers from the area where the garrison’s political detainees were held. Vidal noted that Fernandez Larios was carrying in his hands the weapon he had earlier seen – the flail with a spiked metal ball at the end of a chain. Vidal had never seen this object before, except in movies about Roman times, and did not recognize it as an object used by the army. Vidal noted that when he saw Fernandez Larios come from the area where the detainees were being held, he was acting “high” and nervous, which was not normal in comparison with his companions who were calm. Vidal noted a vast difference between Fernandez Larios and the other officers, as though something had upset him.

After that, Vidal next saw the officers from the “task force” around midnight at a dinner at the officers’ club. He noted that Fernandez Larios was not with the others. Vidal did not see Fernandez Larios after the dinner either. The next day the officers went right into the helicopter and Vidal did not speak to them again.

Vidal said he knew Winston Cabello as the chief of service of planning in Copiapó and that they had a professional relationship. He stated that Winston, like all the detainees, had pending cases that Arellano’s arrival seemed to speed up. He said that in the early morning, around 2 – 3 am, of October 17, 1973, he learned that some of the prisoners had been killed. The first story he heard was that they were killed while trying to escape. When asked who killed them, Vidal responded that the prisoners must have been killed by the people who took them in the truck, which would have been Captain Patricio Diaz and others who took the detainees out of the garrison. He did know the rest of the personnel who went with the truck.

In the next portion of the recorded deposition, defense attorney Davis ascertained more details about the location of the regiment in relation to the public jail, the helicopter’s arrival, and Fernández’s activities in Copipó. Vidal said that the helicopter landed in the regiment’s soccer field without prior announcement of their arrival. Vidal was tasked with surrounding the helicopter with about eight armed guards, since no one knew who the helicopter was carrying. Vidal said that when Fernandez Larios descended, he asked who was with him and what the objective of their visit was. He recalled Fernandez Larios responded by inquiring about the number of prisoners in Copiapó. Fernandez told Videal that he was General Arellano’s “right hand man” and that the General trusted him totally.

Davis then asked Vidal more about the weapon he saw Fernandez Larios carrying, the flail with a spiked steel ball. Vidal clarified that when he first saw Fernandez Larios emerge from the helicopter, he had the weapon tied to his waist. When Vidal asked what the weapon was for, Fernandez Larios told him it was “to caress the little pigeons with.”

Vidal said that Fernandez Larios was the lowest ranking officer that he saw with the “task force” and did not have authority to give orders in Copiapó in 1973; instead, he would have received orders from General Arellano.

Upon redirect, plaintiffs’ attorney Kerrigan asked Vidal to say what he understood “to caress the pigeons” to mean. Vidal said that he understood Fernandez Larios as meaning “to beat up the prisoners.”

Vidal then looked at the photo of the marching military cadets, a copy of the photo shown to Dr. Murua yesterday. Vidal immediately identified himself and Fernandez Larios in the photo, recalling that at that time, in 1967 or 1968, Fernandez Larios had a broken arm. When Kerrigan showed Vidal the copy of the photo upon which Dr. Murua had made X marks to indicate men he recognized as NOT being Fernandez Larios, he confirmed that Dr. Murua had not crossed off Fernandez Larios in the photo, identifying him as either one of two people in the photo.

Vidal recounted that when he asked Fernandez Larios what the task force was doing in Copiapó, Fernandez Larios replied “you’ll soon find out.”

Vidal also commented on another of the weapons Fernandez Larios carried, the corvo. Vidal identified it as a curved, double-edged knife. He noted that Fernandez Larios carried it tied to his right leg and that it was a weapon carried only by Chilean special forces. He stated that the regiment officials in Copiapó neither wore nor had access to corvos. Vidal said that because Fernandez Larios was his former classmate, he remembered in particular how he was dressed and the unusual weapons he was carrying.

Testimony of Plaintiffs’ Witness Patricio Lapostal
Plaintiffs next showed excerpts from the video deposition of Patricio Francisco Andres Lapostal Amo (Lapostal). Lapostal joined the Chilean army in 1968. In September 1973 he was a Second Lieutenant under Col. Rivera Desgroux in the city of Calama, assigned there to protect a copper mine in the area. He described that on October 19, 1973, the “task force from Santiago” arrived in Calama. Whereas he and his local colleagues were armed with handguns, or pistols, he noted that the visitors from Santiago had handguns, corvos, and rifles.

Lapostal then elaborated on the design and function of the corvo. He said Chilean officers carried them in 1973 as a special display, but not for use. He said the curved shape, when used on the human body, can cause great damage – more than a normal knife would. He observed that the inner curve of the corvo can easily slit someone’s throat and that a corvo stabbing is likely to cause a slow death.

Lapostal said he was first introduced to Fernandez Larios at a luncheon after the helicopter arrived in Calama. After lunch, around 2 or 3 pm, Lapostal saw a jeep and a truck leave. Then, around 5:30 – 6 pm, Lapostal was asked to help organize a guard in the spot where the Calama detainees had been shot.

Lapostal said he ordered the soldiers to safeguard the zone and not to allow civilians to enter. He said he saw the bodies, which were “absolutely destroyed.” Lapostal described the bodies as having several gunshot wounds and, in some cases, knife wounds. He didn’t observe other kinds of wounds in particular because “it wasn’t a very pleasant site.” He expressed that he expected to see a normal military execution, as he had seen in the past at other times. When Kerrigan asked Lapostal to describe how the killings in Calama differed from a normal military execution, Lapostal explained that in a military execution the prisoner is subject to a formal procedure in which he carries a circle to place over his heart in front of a firing squad. In comparison, Lapostal commented “that constitutes an enormous difference from what I saw on October 19th. Prior to October 19th, the executions were the result of formal procedure. He said “The executions that took place on October 19th were summary executions.”

Lapostal recalled noted that the bodies of the victims were buried in a common grave. He said he did not know why the bodies were not given to the families, though that would have been normal in an official military execution. He noted that not all of the bodies from the October 19th killings have been recovered. Lapostal concluded by saying he did not have any doubt that the person he met was Fernandez Larios.

Court concluded early today due to one juror’s scheduling conflict. The plaintiffs’ presentation of their case will resume tomorrow at 9:30 am.

Direct Examination of Plaintiff Aldo Cabello

Court opened this morning with the testimony of Aldo Cabello, Winston Cabello’s older brother. Plaintiffs’ attorney Bob Kerrigan asked Aldo to describe his family prior to Winston’s murder. Aldo stated that his parents had been married for some thirty or more years at the time of Winston’s death. He testified that he is one of five children in his family, and named them in order from oldest to youngest: Manuel, Aldo, Winston (11 months younger than Aldo), Zita, and Karin. Aldo explained that he was married at that time with one daughter. Winston also was married. He and his wife Veronica had two daughters, Marcela (6 years old) and Susan (about 13 months). In 1973, Aldo testified that he was teaching at the University of Chile, School of Engineering. Prior to teaching, Aldo worked as a civil engineer.

Aldo stated that he learned of Winston’s death on October 17, 1973 at 11:00 in the evening. He and his family resided in Santiago at the time. The very next day, Aldo left for Copiapó, a 600 mile trip. On October 19th, Aldo arrived in Copiapó and spoke with Winston’s wife, Veronica. He testified that Veronica was in a state of disbelief because she had not seen the body. Aldo described the situation as being “like a dream.”

Kerrigan asked Aldo to detail Winston’s profession and personal life in 1973. Aldo stated that Winston was an economic engineer, graduating from the University of Chile in 1969. At that time, President Frei, a Christian Democratic leader, was in charge of the country of Chile, and Winston worked for that government.

In Copiapó, Aldo testified that the military released a bando, detailing the military’s description of the deaths of 13 prisoners, including Winston Cabello. Aldo defined a bando as a military order in the newspaper or on the radio. The bando stated that the 13 prisoners were being transported by truck from Copiapó to La Serena, when the truck began to have mechanical problems. The story alleged the 13 prisoners attempted to escape at that time and were shot to death because they would not stop running. Aldo stated no other bando has ever been issued to correct that story.

Aldo also described the effect of Winston’s death on his parents. He stated that his mother was very religious and tried to find a religious explanation to make sense of what happened. His father, Aldo testified, became extremely depressed: “His spirit died that day.”

Finally, Aldo testified to his knowledge of David Silberman. Silberman was a classmate of Aldo’s and was also a civil engineer. In 1973, Silberman worked as the CEO of the large mining company in Chuquicamata, CODELCO.

Cross Examination of Aldo Cabello

On cross-examination, Defense attorney Steve Davis questioned Aldo about the population of Copiapó. Aldo estimated that the population was roughly 30,000 in 1973. Davis also asked Aldo whether he had spoken to different men in the Chilean army at that time. Aldo testified that he has never spoken with Colonel Diaz, or Ojeda; however, he did speak with Colonel Haag, the man in charge of Winston’s arrest and detention in November of 1973. Aldo stated that he also spoke with other military men in Copiapó in 1973.

Testimony of Plaintiffs’ Witness Jorge Ortiz

Plaintiffs next offered excerpts from the video deposition of Jorge Nelson Ortiz Aedo (Ortiz), taken last year in Chile. As with all other video depositions played to the jury, also played were excerpts selected by Defendant.

Ortiz was an army inspector who, in the 1970’s, worked at the Santiago Penitentiary. After the coup, he replaced the civilian warden as the prison’s highest-ranking officer until 1976. Today Ortiz recounted the evening a military patrol came to the penitentiary to take prisoner David Silberman away. Ortiz explained that David Silberman was the well-known general manager of one of Chile’s largest copper mines in the north who served time in the Santiago Penitentiary under a conviction by a military tribunal.

Ortiz said that on October 4, 1974, around 6 pm, a military patrol arrived at the penitentiary presenting papers that ordered the warden to turn over inmate Silberman to them. Ortiz said that he confirmed the content of the order by calling the telephone number listed therein. He noted that a clause in Silberman’s internment order specified permission to release Silberman for military investigations. This clause gave Ortiz authority to order the transfer. Ortiz remembered that while being transferred over to the military patrol, Silberman seemed unconcerned and made no remarks, as this was not the first time he had been withdrawn from the penitentiary. From the front gate, Ortiz watched as the patrol made Silberman climb into the back of an unmarked pickup truck – the kind of truck used by state security organizations.

Ortiz revealed that later it became known that the officer from the military patrol who presented the papers gave a false name. Ortiz then identified Fernandez Larios “without a doubt” as the officer who came to the Santiago Penitentiary to get Silberman. Silberman has not been seen or found since the night Fernandez Larios took him from the penitentiary.

On cross examination, Otriz clarified that it was a daily and routine procedure for him to release prisoners to different branches of the armed forces, in cases in which the prisoner’s internment orders instructed the warden to turn over the prisoner to the military junta. When plaintiffs’ attorney Kerrigan asked Ortiz more, Ortiz explained that it was unusual to turn over convicted prisoners to outside organizations for investigation. He did not recall any other case during his tenure as warden in which the internment papers contained a clause such as that of Silberman.

Judge Lenard explained to the jury that Ortiz’s testimony discussed a separate matter in which Fernandez Larios was allegedly involved. She instructed the jury to limit their consideration of Ortiz’s testimony about Fernandez Larios’s involvement in the Silberman incident to whether it helps establish the defendant’s motive or plan.

She also reminded the jury to base their decision about Fernandez Larios’s liability on the evidence presented in court about his alleged acts in relation to the plaintiffs’ claims.

Direct Examination of Plaintiff Zita Cabello

Zita Cabello, Winston’s younger sister, was next to take the stand. Zita testified that she earned a Master’s Degree in economics and engineering in Chile, as well as a PhD in Development Economics in the United States. She currently teaches Latin American studies and is a visiting scholar at Mills College.

Zita testified that she grew up with her family in Renaico, a small town in southern Chile. She described her brother, Winston, as her “partner in many games,” as they spent much time playing and swimming together at a local river. She portrayed Winston as her “inspiration in life,” and state that she made her decision to study economics so she could follow in his footsteps. Zita spoke of Winston’s involvement in a folkloric dance group, playing the guitar and singing. Zita and her husband Patricio also were members of that same group.

Zita testified that she and her husband moved to Copiapó in the early months of 1973. She explained that she kept in touch with Winston every day in Copiapó. In addition, Zita and her family would take family outings with Winston and his family on weekends.

After September 11th, Zita testified of the many changes that took place in Chile. Two rather notable changes included the curfew that prohibited all citizens to leave the house before 6:00 or 7:00am, and required them to return home by 6:00pm. The second change was the “uncertainty that came into our lives,” as the streets were filled with military personnel carrying machine guns and other weapons.

Though Zita recognized the uncertainty in Chile, she testified it never crossed her mind that any atrocities would occur. On September 12, 1973, however, Zita recalled that she was teaching at the University when her friend came to tell her Winston had been detained. He was held at the jail and then moved to the military garrison. Zita testified that she visited Winston about three times a week to see him and bring him food. She described Winston as being healthy, optimistic, and reassuring regarding his detention, telling Zita he would only be detained until the military figured out how it would run the government. Zita testified that Winston had never been arrested or detained before September 12, 1973, and no charges were ever brought against him.

Zita testified that Saturday, October 14th, 1973 was the last time she saw Winston. During that visit, he told her that he and her husband would be released soon. Zita’s visits, along with Winston’s optimism and reassurance, dispelled Zita’s initial concern for Winston’s safety.

Zita explained that on October 17, a colleague invited her to have coffee at the University cafe. That colleague told Zita of rumors she had heard -- that Winston had been killed. Zita testified that she dropped her coffee cup and ran home and found Veronica and Susan at her house. Based on Veronica’s information, Zita went to the garrison to find out if Winston really had been killed; however the soldiers there would not give her information or allow her inside the garrison. Zita testified that she then went with Veronica to an officer’s house, where the man confirmed the rumors that Winston had been killed. From there, Zita explained that she went to an attorney to ask him for help in finding out what happened to Winston. The next day, at the attorney’s office, Zita and Veronica saw the bando, signed and written by Colonel Haag: “Prisoner escape thwarted.” Zita testified that she did not believe the official story at any time. She noted it would not make sense for Winston to attempt to escape when he believed he would be released the next day.

Zita then recalled the painful days after Winston’s death. She stated there was no funeral for Winston because the family never recovered his body. However, in October of 2002, the Cabellos did conduct a memorial service for Winston Cabello and the victims who died with him. Zita explained that she placed an advertisement in a well-known Chilean newspaper inviting anyone interested to come. Along with that advertisement, Zita placed what she believed to be a photograph of Fernandez Larios and a request for information about him. She testified that she had taken the photograph from a magazine, and that she had never seen Fernandez Larios before. She expressed that she now realizes the photograph was not of Fernandez Larios.

Zita testified that in the days following Winston’s murder, she realized she could no longer save Winston, and she devoted herself to saving her husband, who was still detained, and her father, who had become rather ill.

As for herself, Zita testified that “the day Winston died, I lost half of myself.” She expressed the deep pain she and her family experienced because “someone decided my brother was not worthy to live anymore.” Zita explained Winston’s last words to her have served as her source of hope: “They can cut all the flowers, but they can never prevent the spring from coming back.”

Cross-Examination of Zita Cabello

On cross-examination, defense attorney Steve Davis, questioned Zita regarding the advertisement she had placed in Chile with the mistaken photograph of Fernandez Larios. Zita repeated that she now knew that photograph was not of Fernandez Larios.

Davis questioned Zita regarding the military personnel in charge of Winston during his arrest. Zita testified it was Colonel Haag who ordered the arrest and had the authority to release Winston or keep him in detention. Davis also questioned Zita in regard to her knowledge of the local military’s involvement in torturing prisoners. Zita stated that she had heard rumors but had never met the prisoners and therefore could not testify to that.

Davis then asked Zita whether she had made it a purpose in life, since 1974, to find out what happened to Winston. She testified that this was her purpose and that she had traveled to Chile to find and locate witnesses who might know what happened. Zita stated that she has spoken with Haag and attempted to speak with Arellano, however, he would not speak with her. Zita testified that she never heard or saw a helicopter land in Copiapó.

Davis further questioned Zita about the bando written and released by Haag. Zita testified that in 1973, Haag told her that Winston had tried to escape, according to the story in the bando. In later conversations, however, Zita explained Haag told her that General Arellano had ordered Winston’s execution. A theme of the Defense throughout has been that Col. Haag and local officers were responsible for the killings in Copiapó.

Finally, Zita testified that she spoke with Haag regarding the release of her husband. It was then that Haag allowed Zita and her husband to leave by internally exiling them.

Testimony of Plaintiff Karin Cabello Moriarty

Karin Cabello Moriarty (Karin) was the third live witness of the day. Karin; who now lives in San Mateo, California, with her husband and young daughter; is Winston Cabello’s sister, 15 years his junior. She offered both her memory of her older brother and her recollection of the ramifications of his death on her family.

Karin shared that as a young girl Winston would play with and tease her – that he especially enjoyed her café latte. She remembers him buying her shoes for school when their parents didn’t have enough money, and giving Karin her first and only bicycle. Karin said Winston taught her how to drive in the family car in their rural hometown when she was eleven. She explained that Winston’s daughter, Marcela, was her playmate from childhood and that his wife, Veronica, was like a friend and tutor. As newlyweds, she explained, Winston and Veronica came to live with Karin and her parents.

Later, in 1973, when Karin was 13 years old, she lived in the town of Malloco near Santiago. Copiapó, where Winston lived at that time, was around eleven hours away by bus. On September 12, 1973, Karin learned that her brother had been detained. Karin’s voice broke as she told of her last conversation with Winston on October 15, 1973, in which he told Karin that he was told he would be released from detention a few days later.

Karin stated that it was a school day when she learned Winston had been killed. As she rode her bicycle up to her family home, she knew something was wrong because of many cars parked outside. When she parked her bike next to the kitchen porch, she saw her father standing in front with his arms crossed and no color in his dark-skinned face. He told her the news, that “the military killed him.” Inside the house, others confirmed.

Karin concluded by reflecting that she misses most her brother’s laughter. She remembers him as the organizer in the family, playing guitar with their father, and learning to knit with their mother.

Testimony of Plaintiffs’ Witness Leonardo Meza Meza

Plaintiffs next presented testimony of Leonardo Meza Meza (Meza) by reading aloud his written answers to questions posed by the parties last year in a “letter of request,” (“letter rogatory”), in which the U.S. federal court requested assistance from Chilean judicial authorities in obtaining testimony from various witnesses. Plaintiffs’ attorney Cunningham read the questions while Healy read his responses.

Meza was in charge of the Copiapó cemetery in 1973. He discussed his experience of the Copiapó killings that October. His testimony revealed the duress under which the military convoy ordered him to assist in the burial of the 13 bodies killed in the early morning hours of October 17. Meza said that after complying with their order to open the cemetery gate, they ordered him to help move the thirteen bodies from the truck into the trench. During this bloody work, they warned him that if he said anything, he “would be number 14.” Once the cadavers were in the trench, they left Meza to close up the cemetery. Meza reflected that his employment ceased after the convoy came because of this threat.

Testimony of Witness Sergio Victor Arellano Stark

Plaintiffs next presented the letter rogatory testimony of Sergio Victor Arellano Stark (Arellano). Arellano was the Army Troop Commander in charge of the troops that “acted” [carried out the coup d’etat] in Santiago on September 11, 1973. He stated he was general of the brigade answering to General Pinochet. Arellano stated that under Pinochet’s order, he traveled on a military mission to northern Chile in October 1973 accompanied by Lieutenant Colonel Sergio Arredondo Gonzalez, Major Marcelo Moren Brito, and Lieutenant or Second Lieutenant Armando Fernandez Larios. Arellano said that he met Fernandez Larios for the first time on the helicopter, as “he put himself” under Arellano’s orders. Arellano said he did not give Fernandez Larios any special function on the military mission.

Defense attorney Davis next proceeded to read additional portions of Arellano’s letter rogatory response in which Arellano asserted that he traveled to Copiapó on October 16, 1973 around 6 pm because it was one of the garrisons Pinochet ordered him to visit. He said he traveled there to “give instructions to the troops in the unit of that city.” He described Fernandez Larios as being with him in Copiapó, armed with a revolver and corvo. He noted that Fernandez Larios was the lowest ranking official of the men on the helicopter. As such, he stated that Fernandez Larios did not direct the helicopter to any destination.

Arellano stated that he first learned of the Copiapó killings through the press. He suggested that the cemetery administrator may have given the information to the press. He then stated that “the prisoners were dead when I arrived in Copiapó, they had been executed when I was still in Santiago.” He speculated that one of the implicated officers of the Atacama regiment probably gave the order to remove the prisoners from the garrison. Arellano stated that Patricio Diaz Araneda was in command of the group that killed the prisoners.

Testimony of Witness Marcelo Luis Manuel Moren Brito

Plaintiffs next presented the letter rogatory testimony of Luis Manuel Moren Brito (Moren Brito). In 1973, Moren Brito was an Army Major in La Serena Regiment under General Arellano. In his response, he stated that he traveled with General Arellano on his military mission to northern Chile in October 1973 along with Sergio Arredondo, Pedro Espinoza, Juan Chiminelli, other officers, and Armando Fernandez Larios. He said he had no idea what Fernandez Larios’s role was in the mission. When asked about the mission’s stop in the city of Calama, Moren Brito replied that he first learned “in the field on the same day the executions happened” of the 26 prisoners killed in Calama because he witnessed them.

Testimony of Witness Juan Viterbo Chiminelli Fullerton

Next Plaintiffs read the letter rogatory testimony of Juan Viterbo Chiminelli Fullerton (Chiminelli). In September and October 1973, Chiminelli was an army major serving as the Personal Adjunct to General Arellano at the Military Garrison of Santiago. Chiminelli traveled with General Arellano on the military mission to northern Chile in October 1973. Of Fernandez Larios’s role in the mission, he said “I basically do not know what it was because he was not selected by General Arellano to go on the trip. He showed up there and climbed aboard the helicopter.”

Defense attorney Davis will read his selected responses of Chiminelli when court resumes tomorrow at 9:30 am.

Plaintiffs stated that they would then continue by calling Defendant Fernandez Larios to the stand.

Court began Friday morning with defense attorney Steve Davis’ reading the jury the defense's designated sections of letter rogatory responses of Chilean ex-military official Juan Chiminelli.

In those designations, Chiminelli stated that he traveled to Cauquenes with General Arellano’s squad around the 1st of October, and that Fernandez Larios traveled with them. Chiminelli claimed he never saw any political prisoners during one of the Caravan’s early stops in southern Chile in the town of Cauquenes. Chiminelli denied any knowledge concerning the killings in Cauqenes and about Fernandez’s role in the killings.

Chiminelli repeated his assertion that he had no contact with prisoners when asked about any orders he had concerning prisoners at La Serena.

Chiminelli stated that the group traveled to Copiapó on October 16th, and that Fernandez was with that group. Chiminelli stated that Fernandez carried the rank of Lieutenant, and did not give orders to anyone on the helicopter because he held the lowest rank of everyone on the helicopter. When asked about his orders concerning the prisoners in Copiapó, Chiminelli repeated that he met with no prisoners. Chiminelli further stated that no one from General Arellano’s group brought with them documents or records identifying any of the prisoners held in Copiapó.

Regarding the thirteen prisoners killed during General Arellano’s stay in Copiapó in October 1973, Chiminelli stated he did not know in advance that prisoners would be killed, he did not participate in the killings, and that he did not learn of the killings until the trip to Antofagasta. Chiminelli claimed he learned from the press that Captain Diaz had organized the killings in Copiapó according to Haag’s order. Chiminelli stated his belief that Fernandez did not participate in the killings because he was with the rest of the group at that time. Chiminelli testified that Fernandez was armed with a pistol and a SIG rifle.

Chiminelli stated he did not know how Winston Cabello was killed. He stated he had no knowledge about the Copiapó killings or the burial of the thirteen executed bodies.

Chiminelli repeated he had no knowledge regarding the killings in Antofagasta, and did not know whether Fernandez participated in those killings.

Letter Rogatory of Sergio Arredondo Gonzalez

Plaintiffs next read excerpts from the written letter rogatory responses of Sergio Arredondo, a Chilean army official who also was part of General Arellano’s squad.

Arredondo testified that the time of the Caravan, he was the Chief of General Staff of the Santiago Center Combat Group. In September and October 1973, Arredondo carried the rank of Lieutenant Colonel and was stationed as the Director of the Army War Academy, until he was temporarily assigned to accompany General Arrellano Stark on a special mission. During that time, his commanding officer was General Arellano.

Arredondo testified that he traveled with General Arellano Stark to the northern regions of Chile in October, 1973 with the responsibility to discharge orders given by General Arellano. Arredondo stated that Fernandez traveled with the group as well, though Arredondo could not recall Fernandez’s specific assignment for the mission.

Arredondo testified that he also accompanied General Arellano to La Serena, and that Fernandez Larios traveled with the group as well. When asked about his orders concerning the mission in La Serena, Arredondo responded: “The mission was to verify the presence of prisoners and according to the instructions those people had, they had to eliminate them . . . . They had to be eliminated.” Arredondo stated he participated in no court martial or tribunals during the mission to La Serena.

Arredondo testified that he and the other members of General Arellano’s delegation knew in advance that prisoners would be killed in Calama. He further testified that General Arellano’s delegation, along with army personnel of the La Serena unit, participated in the killing of the prisoners. Arredondo witnessed the executions and described how the prisoners were blindfolded and shot in the regiment courtyard. When asked about Fernandez’s participation in the executions, Arredondo testified that Fernandez participated as one of the shooters.

Arredondo testified that he traveled with General Arellano to Antofagasta, as did Fernandez. Arredondo confirmed that he also knew in advance prisoners would be killed there. As in La Serena, Arredondo testified that he witnessed the executions carried out by General Arellano’s group and the local military personnel. Arredondo explained that the members of General Arellano’s group either took part in the killings as witnesses or executioners, and that Fernandez participated in the killings by forming part of an execution group.

Arredondo testified that he traveled with General Arellano to Calama, and that Fernandez accompanied the group as well. The orders concerning the prisoners were the same in Calama as they had been in La Serena and Antofagasta: “the prisoners had to be executed.” Arredondo testified he witnessed the execution of the twenty-six prisoners in Calama by General Arellano’s group and local forces. Arredondo explained that all members of General Arellano’s delegation were present at the execution site, and that Fernandez executed some of the prisoners.

Arredondo acknowledged that at the time this testimony was taken, he was under indictment by [for his role in] General Arellano’s delegation as the principal party, and is on parole pending criminal sentencing.

Cross-Designation of Arredondo Letter Rogatory

Before reading his designated excerpts from Arredondo’s Letter Rogatory, Davis read from a prior statement given by Arredondo on August 4, 1998. Judge Lenard gave a “limiting instruction” to the jury regarding the statement, explaining that the testimony was offered only to impeach the witness’ credibility and should not be considered as substantive evidence.

In the prior statement, Arredondo had expressed that at the time of the executions, everything was in a state of confusion. Regarding the executions in La Serena, Arredondo previously claimed he did not know they were going to take place, that he did not participate in them, and that he did not know who did. In that statement, Arredondo further stated he did not discuss the executions with General Arrellano, but he did give Arrellano a report that prisoners had been taken from Antofagasta and executed. Arredondo denied his involvement in the executions at Calama as well, stating he did not even witness them. Finally, Arredondo claimed he did not know why their group was going to the different cities, but knew they were to undertake some type of criminal investigation.

Davis next read additional portions of Arredondo’s letter rogatory responses to the jury. In those responses, Arredondo stated that Fernandez traveled to Copiapó with General Arellano’s group wearing a combat uniform and carrying a semiautomatic weapon. Arredondo described Fernandez’s demeanor as being “normal for a subordinate officer,” and noted that he was the lowest ranking officer on the helicopter. Upon arriving in Copiapó, Arredondo stated no prisoners were present "because they had been taken to La Serena." Arredondo testified he did not know in advance that the thirteen prisoners at Copiapó would be killed, and he did not know whether Fernandez Larios participated in those executions. Arredondo further stated he did not know where the prisoners were taken or who accompanied them because he was with General Arellano’s delegation at a Copiapó hotel.

Introduction of Admissions by Defendant Fernandez:

Over defense counsel’s objections, Plaintiffs’ counsel Leo Cunningham read to the jury two admissions made by the defendant prior to trial in answers to written questions. Fernandez first admitted that he “accompanied General Arellano’s unit to Copiapó on October 16, 1973.” He also admitted " that on or about October 17, 1973, General Arellano ordered thirteen persons to be loaded onto a truck and driven away" in Copiapó.

Plaintiffs’ attorney Bob Kerrigan called Defendant Fernandez to the stand mid-day Friday, cross-examining him as a “hostile witness.” This long-awaited testimony marked the first time Defendant has testified under oath regarding his role in human rights abuses. The examination will continue on Tuesday morning, October 7, at 10:00 a.m. (Court will not be in session on Monday, October 6, in observance of the Jewish holiday Yom Kippur).

Testifying in somewhat broken English, Fernandez stated that he was born on September 18, 1949, and now resides in Miami, Florida. Fernandez said he preferred to respond to questions by Attorney Kerrigan in English rather than Spanish, with occasional assistance from a court interpreter.

Kerrigan began by asking Fernandez whether he had reviewed the transcript of statements he had made under oath during a previous videotaped deposition. Fernandez affirmed that he had reviewed it, that he understood it, and had that he was not aware of any changes that needed to be made.

Kerrigan then asked Fernandez a series of questions related to his military training in Chile. Fernandez stated that he graduated from military school in Chile in 1969 as an officer. He testified that although he did not remember having received any training regarding the treatment of unarmed civilians by the military, he was aware of the Geneva Conventions and understood that it was illegal for soldiers to use force or violence against unarmed civilians or protected prisoners.

When asked about his role in the helicopter delegation to military garrisons throughout northern Chile, Fernandez responded in an animated, indignant, and at times argumentative manner, presenting denials and explanations for his conduct and his purported lack of knowledge about the killings during the Caravan. He said that he was assigned as a bodyguard to General Sergio Arellano Stark, the head of the helicopter delegation, and that his role was to be by Arellano's side when Arellano needed him. When pressed for details about his instructions and duties as a bodyguard, Fernandez could provide little information. He confirmed that he had never before served as a bodyguard, and received no training for it. He acknowledged that Arellano was safer inside the regiments visited by the squad than outside the regiments, but stated that he accompanied General Arellano only once outside a regiment. He explained that he presumed that local officers were in charge of Arellano’s security when they left the regiments because Arellano would always be accompanied by the base commander, though he acknowledged that he did not confirm these arrangements with local personnel. Fernandez also explained that the use of the term "bodyguard" had a different meaning in that context than in the United States, and that he did not need to travel with Arellano if Arellano did not request his assistance.

Fernandez acknowledged that 13 prisoners were killed in Copiapó after the helicopter delegation arrived and prior to its departure for La Serena, but indicated that he was alone, sleeping in his room at the military garrison in Copiapó during the night of October 17, 1973, when the prisoners were killed. Fernandez denied that he interrogated, beat, or even saw any prisoners in Copiapó. He asserted that he never saw any detainees during his journey with Arellano’s squad.

When asked whether any of the members of Arellano's delegation was responsible for the killings of unarmed civilians, Fernandez responded that he "did not know whether he [Arrellano] or a local commander was responsible" for "these tragic events." Fernandez testified he later heard about the killings but did not question the other members of the delegation about them or raise any objections because his low rank meant that he "did not have the right to talk to a superior" without permission.

When Kerrigan inquired as to whether he had ever mentioned concerns about the helicopter mission to his father, an ex-member of the military, Fernandez replied: "you don't discuss military things in the family; my father was retired in '52 from the military." Asked whether he remembered ever asking other members of his delegation "who did what," Fernandez replied that it was "impossible" for him to tell because it was "thirty years ago" and that he "didn't know," adding: "That is the truth." Fernandez indicated at one point:

"It is easy for you to now say it was illegal, because now we understand it was illegal -- when then it was twenty-four hours a day, hearing that it was a war -- for us, all they did was correct. I could not ask them, I did not say, 'This is not correct.' It is difficult for a person who is not military to understand that when you are of a lower rank, you don't have the capacity or the right to question what your superiors do."

Attorney Kerrigan then asked: "So your position is, you admit to doing nothing wrong in any way?" the defendant responded: "That I recall, no." Kerrigan then asked: "If you did nothing wrong yourself, why do you tell us about the importance of your commanding officers?," Fernandez replied: "I'm not justifying myself, I'm just explaining the military.

Fernandez also stated that the country was at war, and that he did not think to question other members of the delegation about killings in the towns they visited, stating: "You must understand, in a war people die." When asked who the war was against, Fernandez stated, "We were in a war against people who were against the government. That means for us, they were enemies of the government."

Fernandez was also questioned about prior testimony offered in the trial from witnesses who identified Fernandez as having been in Copiapó in combat fatigues and heavily armed. Fernandez denied having carried a spiked “ball and chain,” incredulously responding that carrying such a weapon in his waistbelt as described by a prior witness would have caused injury to his own body. Fernandez added that he had never said that he brought such a weapon to "caress the little pigeons (the prisoners)" as testified by his classmate Enrique Vidal. He declared: "No, I did not have that weapon. I am denying one hundred, one thousand percent that I had that weapon."

Fernandez also testified that the "corvo" knife that he wore, which had been described by other witnesses, was an "ornament" worn by Chilean officers as part of a combat uniform. He indicated that he had never received training in the use of a corvo, and acknowledged to Kerrigan that because senior level officials might not have carried the corvo as part of their uniforms, and since local military members were not dressed in combat uniforms, he might have been "the only one with a corvo in Copiapó." (Witnesses who viewed the corpses or exhumed the remains of the detainees killed in Copiapó have testified that some of the victims showed signs of having slash wounds.)

Testimony will resume on Tuesday, October 7, at 10:00 a.m. with the continued cross-examination of defendant Fernandez.

Continuation of Direct Examination of Defendant Fernandez Larios

At 10:48 this morning Judge Lenard invited the Plaintiffs to continue direct examination of defendant Fernandez Larios. Plaintiffs’ attorney Kerrigan began by questioning Fernandez Larios about his duties as a supposed bodyguard to General Arellano during the journey of the “Caravan of Death” through Chile. Fernandez Larios stated that while his job was to be by Arellano’s side, he was not needed in that role on the helicopter and within the regiments of the different cities. Yet he also said that he didn’t remember ever traveling out of the regiments, for example to the surrounding countryside, with Arellano during the Caravan’s various stops. Next Fernandez Larios stated that he gave no report of the Caravan’s activities to any superiors upon his return to Santiago. He noted that he became upset to see his name associated with the Caravan of Death when information surfaced in the early 1980s about the Caravan’s massacre of civilian detainees in Calama. At that time, once Arellano had become a civilian, Fernandez Larios said he spoke with Arellano to ask that Arellano clear Fernandez Larios’s name by telling “the truth that [Fernandez Larios] want involved in any of the killings.” He reasoned that “since Arellano was in charge, then he should release [Fernandez Larios’s] name. Fernandez Larios said that Arellano was very nervous, naming Arredondo as responsible, and no other person.

Kerrigan followed by asking Fernandez Larios details about photographs of him admitted into evidence by the Plaintiffs. Fernandez Larios confirmed that Plaintiff’s witness Dr. Murua correctly identified Fernandez Larios as one of two individuals in a photo showing a line of young military cadets.  Fernandez admitted that he didn’t know Dr. Murua personally, and did not remember him as being in the second floor of the Copiapó garrison in a meeting with General Arellano and the local regiment command on October 16, 1973. However, Fernandez Larios asserted that Dr. Murua must have been confused because he, Fernandez Larios, was not present at the meeting.  Fernandez affirmed that Plaintiffs’ witness Enrique Vidal correctly identified Defendant in the same photo shown to Dr. Murua.  Vidal confirmed that Fernandez was one of the two individuals that Dr. Murua believed were Fernandez Larios in the photo.

At various points in his responses, Fernandez Larios stressed that he was never in any meetings with the higher ranking officers of the helicopter delegation and that he never saw or heard anyone saying they were going to kill any of the people killed. He emphasized that he understands the local officers from the regiment to be the ones involved in the killings. To this assertion, Kerrigan reminded Fernandez Larios of his deposition testimony in which he said that he knew a connection existed between the helicopter delegation and the deaths. He denied knowledge of how the Copiapó killings occurred.  He also denied having any connection with the disappearance of copper company executive David Silberman.  Fernandez asserted, “I had nothing to do with the death of Winston Cabello.” He also acknowledged no responsibility for the other Caravan deaths. He did, however, admit that he intentionally lied under oath in another judicial proceeding unrelated to this case.

Direct Examination of Fernandez Larios

In response to Fernandez Larios’ admission that he obeyed an order to lie in a separate legal proceeding, Defense counsel Steve Davis asked Fernandez Larios whether he resigned from the Chilean military as a result of that order to lie.  Fernandez Larios testified that he was very disappointed in the order to lie, and that he did resign in 1987 as a result of it.  He stated he has since rectified that false testimony.

Davis next elicited further information about Fernandez’s background.  Fernandez stated that before 1973, he was an instructor at the Infantry School.  On September 11, 1973, the day of the coup, Fernandez Larios stated he was assigned to patrol the streets in Santiago, a task which included protecting the people and enforcing curfew.

In relation to his orders to join General Arellano’s delegation, Fernandez Larios testified that the second-in-command at the Infantry School told him to go a military airport and present himself to General Arellano.  Fernandez Larios testified he was wearing the same uniform all soldiers wore at the time, green fatigues, a green cap, boots, and arms.  Fernandez denied wearing a camouflage uniform because the green uniform was the only uniform used by soldiers at the time.

Davis asked Fernandez Larios to describe the normal routine followed by Arellano’s delegation as they arrived to a new city.  Fernandez Larios stated the men would leave the helicopter, his superiors would meet with the commander in chief of the regiment, and he would go to the officers’ clubhouse.  Fernandez Larios claimed he never participated in any meetings because he was too low in rank.

In response to Davis’ questions about why he joined General Arellano’s delegation for the trip to northern Chile after the trip to the South, Fernandez explained that he was ordered to go, and that as a soldier, he was prepared to obey orders.  He insisted that a soldier does not deny orders.

Fernandez Larios repeated that he was a second lieutenant with no military authority to give orders over the local regiment or any superior.  He insisted that he gave no orders in Copiapó. In relation to the Caravan’s visit to Copiapó, Fernandez Larios testified that the helicopter landed in Copiapó, and he went to the clubhouse without meeting or seeing any prisoners.  He stated he never received any order to do anything in connection with prisoners.

Fernandez Larios further testified he had never met Captain Diaz (who has asserted that he and other local officers shot the 13 Copiapó detainees under orders from General Arellano and local commander Oscar Haag), nor Col. Haag or other local Copiapó officers. Regarding the spiked ball and chain he was accused of using to beat prisoners, referred to as a “manga,” Fernandez Larios claimed he has never seen or even heard of one before his deposition.

Finally, Fernandez Larios