El Paso Diary
The Trial of Luis Posada Carriles
by José Pertierra
Jan. 19, 2011
Reprinted from CounterPunch
José Pertierra
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January 10, 2011: Jury Selected
With a jury of five men and seven women empaneled, opening statements in the trial for immigration fraud against Luis Posada Carriles, will be heard tomorrow. Judge Kathleen Cardone is the presiding judge.
The government attorneys will offer up the opening salvo. Prosecutor Timothy Reardon requested 60 minutes to introduce the case to the jury, and Posada Carriles' defense lawyer asked for the same block of time. After opening statements by both sides, the prosecution will begin the process of presenting evidence, including witnesses. The defense will be able to cross-examine them.
Upon the conclusion of the prosecution's case, Posada Carriles' lawyers will present their version of things and will in turn offer witnesses that the prosecutor may either challenge or question. It will be up to the jury to evaluate the evidence. The judge assured those present that this trial would take more than a month to be heard.
With the jury absent from the court so that the lawyers could discuss all the trial's preliminary proceedings, prosecutor Reardon expressed his concern to Judge Cardone that Posada Carriles' lawyer would use his initial presentation time before the jury to attack a country: specifically Cuba.
Arturo Hernández – Posada Carriles' lawyer – said, "the topic of Cuba is endemic in this case." He also warned that he wants to notify the jury that he will present "a plethora of evidence on the type of regime Cuba has," and that he is entitled "to prove that Cuba's regime lies and fabricates false evidence."
Hernández affirmed that the government of Cuba has a longtime prejudice against Posada Carriles. He spoke of "50 years of dictatorship and tyranny against the Cuban people" and threatened to present historical examples of "Castro's tyranny."
Reardon responded forcefully, "This is not the History Channel." He stated that the prosecution is thinking of bringing two Cuban police officers and a doctor to the court. At that very moment, Reardon turned to face Posada Carriles. He fixed his gaze on him and told him: ". . . so that they might testify about the death of that poor Italian. Remember?" he told him with his voice raised. Posada Carriles didn't look back. He didn't even blink, his blue eyes cold as ice.
Reardon warned the judge about Hernández's tactics, "This is a judicial forum, not the Miami Herald." By my side, present in the court, was Juan Tamayo, from the Miami Herald. I asked him if he planned to use these words as a headline for his dispatch tomorrow.
The judge ruled that alleged evidence against Cuba "is irrelevant to this trial," although some may be offered for purposes of impeachment. This means that attorney Arturo Hernández will not be able to refer to it in the course of his opening statement to the jury which will be limited to the actual evidence that he intends to use during his case in chief.
Hernández seemed annoyed by that decision. He asked to respond to it and to put his opinion in writing. The judge gave him until tomorrow to do it. She will hear arguments on this topic outside the presence of the jury and before opening statements.
Today's session concluded shortly after 4:00 p.m., El Paso time.
January 11, 2011: Reardon, "Art" and the Promises to the Jury
We all stood at the sound of the gavel that announced the entrance of the twelve jurors and four alternates who will decide if Posada Carriles is guilty of having lied to U.S. authorities. At 10 a.m. sharp, the jurors took their seats.
They arrived to hear the opening statements in the case that will keep them in the El Paso Federal Court until next month. Opening statements by attorneys offer a jury an idea of what the evidence will show during the course of the legal proceeding against the accused. They are like promises to the jury. It's a dangerous tactic, because if the attorney doesn't deliver the goods promised during his opening statement, the jury might think that the evidence is weaker than it really is.
In a criminal case, under United States law, the prosecution has the burden of proof. It must show beyond a reasonable doubt that the defendant committed the offenses charged in the indictment. This is why, in the order of presentations, the government attorneys go first.
The main prosecutor in the case is Timothy Reardon III, an elegant and sober man. With a measured voice, he greeted the jury this morning. "This is essentially a case about lies," he said. Before detailing for the jury the lies that Posada Carriles had told U.S. immigration authorities on different occasions, Reardon said, "This is the story of an extraordinary man. It's the story of how he arrived illegally in the United States and what he said after he arrived."
"Posada arrived in the United States on March 18, 2005, aboard a boat called the Santrina," said Reardon, "and requested asylum." "The evidence will show that he repeatedly lied." It will also show that "when an immigration judge asked Posada if he had solicited individuals to help set off bombs in Cuba or carry explosives to Cuba, he said no. "He lied," stated the attorney for the United States government.
An official from the Immigration and Naturalization Service (INS) interviewed him. Posada said that he entered the United States. "A lie," said Reardon. Posada said that he had never been in Cancun. "A lie." Posada said that he had never seen the Santrina. "A lie." Posada said that he had never seen Santiago Alvarez. "A lie." That he had never seen Osvaldo Mitat. "A lie." That he had never seen José Pujol. "A lie," said Reardon emphatically.
Santiago Alvarez, Osvaldo Mitat and José Pujols were part of the crew on the Santrina. The prosecutor stated that they went to Mexico to pick up Posada Carriles in order to bring him to the United States illegally. Helping a terrorist illegally enter the United States is severely sanctioned by U.S. law.
Reardon raised a Guatemalan passport in his hands. The passport has a photo of Posada but bears another name. An alias. "You will be able to examine this passport," he said. "You will also hear from a member of the Santrina's crew who picked up Luis Posada Carriles in Mexico." Reardon was referring to Gilberto Abascal, an undercover FBI agent who will testify during the trial.
Reardon promised that the evidence would show that Posada used this passport to travel from Guatemala to Mexico through Belize, and that someone brought the passport from Miami to Guatemala for the purpose of delivering it to Posada. The prosecutor said that he has photos of the Santrina in Mexico and of Posada Carriles in a barbershop on Isla Mujeres.
"The other series of lies by Posada Carriles," said Reardon, "have to do with the bombings in Havana." Reardon told the jury that the bombs exploded between the spring and September of 1997. They were set off in the Copacabana, the Chateau Miramar and the Bodeguita del Medio. He told the jury that the explosion in the lobby of the Copacabana that killed an Italian tourist named Fabio Di Celmo.
"Posada Carriles gave an interview to the New York Times in Aruba in 1998. Why?" asked Reardon. "Because Posada felt that the bombs were not getting enough publicity. He would do anything to change things in Cuba," said the prosecutor.
Then Reardon read part of the transcript of the interview Posada had given to the New York Times in 1998, in which he admitted to being the mastermind of the 1997 bombing campaign. In response to a question from the Times journalist about the death of Di Celmo, Posada answered, "It's a shame. He was in the wrong place, at the wrong time. I sleep like a baby."
Reardon said that he would show the jury an intercepted fax, dated August 25, 1997, that has to do with four money orders from Western Union for $800. Reardon then cited Sir Walter Scott: "Oh, what a tangled web we weave, when first we practice to deceive!" He ended, saying: "What destroys a man are not the qualities he lacks, but the ones he possesses."
Arturo Hernández, the main attorney for Luis Posada Carriles went next. He started badly. He spilled a glass of water on his clothing, his glasses, his papers and the podium: a glass that prosecutor Reardon had forgotten on the podium. After several minutes of fussing with an easel on which he wanted to place a National Geographic map in order to teach the El Paso jury where Mexico is located – territory that can surely be seen from any building in the city more than two stories high – Hernández began his presentation.
"Good morning. I'm 'Art' Hernández." He pronounced the H. Odd, because in Spanish the H is silent. He asked Posada Carriles to stand, so that the jury could see him. Posada, in a suit and tie, looked uncomfortably at the jury. With his mouth half open due to a bullet wound he received in the jaw in Guatemala in 1990, he moved his tongue from side to side while peering at them perplexedly.
"Luis Posada Carriles has been an ally of the United States his entire life. Always on the side of our country," said "Art" Hernández. "He is innocent, because he substantially told the truth, and because the evidence that the government will present against him is intrinsically bad evidence," he continued.
He showed the jury the map he'd brought and told them where Mexico, Guatemala and the United States are. He said that Posada Carriles had told the truth when he said that he had entered the United States through Matamoros, a Mexican border city. That he had told the truth when he stated that he had not solicited anyone to place bombs in Cuba or bring explosives to the island. That the Santrina had gone to Isla Mujeres in order to bring Posada Carriles $10,000 so that he could cross illegally into the United States via the border.
He said that although a Guatemalan passport with a photo of Posada Carriles exists, he has never had nor used that passport. Hernández spent the next half hour attacking the credibility of certain key prosecution witnesses, especially Gilberto Abascal. "He is a person with a serious mental illness," said Hernández. "He suffers from psychosis, paranoia and depression. He has been hospitalized for it."
"He is a criminal. A fraud. He says that he is disabled, but he works under the table." Ironically, Hernández portrays Abascal as a liar in order to devalue his testimony and protect his client, who is accused of being a liar. "Abascal said that he paid his taxes, but he didn't pay them," complained Hernández. Furthermore, "Abascal is a Cuban spy."
When he had finished thrashing Abascal's reputation, Hernández spoke to the jury about the other witness for the prosecution, Tony Alvarez, a Cuban who told the New York Times in 1998 about the links between Posada Carriles and other Cubans in Union City, New Jersey, who sent money to finance the 1997 bombing campaign in Cuba.
To discredit Tony Alvarez, Posada's attorney told the jury that Alvarez knows Fidel Castro personally. "He even had a romance with his daughter," he said. He also said that Alvarez had been involved in money laundering through banks in Colombia and Mexico.
The journalist who interviewed Posada Carriles in 1998 is Ann Louise Bardach. The government will bring her as one of the most important witnesses in the case. "She is prejudiced against Cuban exiles," said Hernández. "Art" vigorously told the jury that the New York Times is prejudiced in favor of Cuba. It's impossible to know what the twelve Texans on this jury were thinking about Hernández´view of the New York Times´ position regarding Cuba.
"Art" Hernández ended his presentation with a phrase from Fidel Castro. Without giving him credit. Perhaps he is unaware that it was Fidel who first said that "Luis Posada Carriles is a political hot potato for the United States government," yet it was with this phrase Posada's lawyer ended his presentation. Maybe Art's inspiration comes from a Cuban cartoon titled "The Hot Potato"
Tomorrow we will hear testimony from the first witness.
Side notes
Before the opening statements, the attorneys engaged in some minor legal skirmishes over preliminary matters. First, the attorneys defending Luis Posada Carriles tried to convince Judge Cardone that they should be allowed to tell the jury tomorrow that Cuba falsifies records, distorts evidence and fabricates witness testimony.
In the name of Posada Carriles, his attorney Rhonda Anderson said that she wanted the judge to allow her to "inform" the jury that Cuba falsified evidence during the case of the Cuban Five in order to prove that the shoot down of the Brothers to the Rescue aircraft had occurred over Cuban waters, knowing that the shoot down had occurred over international waters. "Gerardo himself said last month that the evidence had been falsified," said Anderson.
The reference is to the legal appeal that Gerardo Hernández, one of the five Cubans being held prisoner in the United States, presented on October 12, 2010. Anderson is wrong on the date and the facts. Gerardo's legal appeal was filed by his attorneys, and it does not say that Cuba falsified any evidence whatsoever. It simply says that his previous attorney, Paul McKenna, erred in concentrating his defense on the location of the planes that were shot down instead of focusing the jury's attention on the fact that Gerardo did not participate in any kind of plan to shoot down planes--neither over international nor over Cuban waters.
Anderson also said that she wanted to be able to tell the jury during opening statements that Cuba killed General Abrahantes and General Ochoa because "they knew too much." General Ochoa was convicted, she said, because Cuba had falsified evidence.
Anderson's counterpart was prosecution attorney Bridget Behling. She said that Posada's attorneys had not shown that the witnesses and documents coming from Cuba had been falsified. She said that the Cuban witnesses would testify that a bombing campaign took place against Cuba and that one of the bombs killed a person. "They would not even testify about Posada Carriles' involvement in the murder of Fabio Di Celmo or about the bombs in Havana, said Behling"
Judge Cardone did not accept Anderson's arguments. She ruled that Posada's legal team does not have the right to make this kind of argument to the jury before the government presents the evidence that it wants to use against Posada. For Cuba evidence to come in for purposes of impeachment, said the Judge, the defense will need to show a link between the government evidence and the allegations that Posada intends to raise against Cuba.
José Pertierra practices law in Washington, DC. He represents the government of Venezuela in the case to extradite Luis Posada Carriles.
Translated by Manuel Talens and Machetera. They are members of Tlaxcala, the international network of translators for linguistic diversity (http://www.tlaxcala-int.org).
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