by José Pertierra
Feb. 18, 2011
Reprinted from CounterPunch

Judge Kathleen Cardone continued the case of Luis Posada Carriles in El Paso until next Tuesday, February 22, 2011, at 8:30 a.m. The defense attorney, Arturo Hernández, moved last week to dismiss counts one through three of the indictment: those having to do with his client's false statements about the bombs that exploded in Havana in 1997. This morning, the judge was supposed to have announced her decision regarding that motion, but she surprised everyone by deciding to delay the case another seven days to "deliberate calmly."

Good morning

Both the defense and the prosecution met yesterday behind closed doors with Judge Cardone. This is a judge who enjoys many such meetings, even some ex parte, meaning that she meets first alone with the defense and later with the prosecutors (or vice versa). Although it is permitted, this is rare during criminal litigation.

Today's hearing lasted less than ten minutes. The judge entered the courtroom with a worried expression on her face. After a dry "good morning," she asked the attorneys, "Are you ready for the jury?" No one said no. It would have been logical for at least one of the attorneys to ask about the pending motion for dismissal, yet none did. They remained at ease at counsel table—like characters in a chronicle of a case foretold.

The members of the jury filed in and walked slowly toward their seats. When they were all situated, Judge Cardone told them, "Oftentimes there are complicated matters that require a lot of thought, and I still have some legal matters to resolve." She apologized for the delay and told them, "I want you to know that I don't take these steps lightly." She then continued the case until Tuesday, February 22nd. The judge reminded the jurors that they could not read or listen to news about the case nor conduct research about it on the Internet. Her smile appeared strained as she dismissed the jury until next week.

The jurors filed out of the courtroom with no clue about the legal controversy that had precipitated yet another delay in the case. Judge Cardone rose, and without looking at the faces of the attorneys still in the courtroom or saying a word, opened the door to her chambers and made her exit.

The FBI cables

Things came to a head after Luis Posada Carriles' attorney lodged objections. Arturo Hernández asserted that the prosecution had not shared two declassified FBI cables that would have exculpated Posada Carriles. The first, dated September 24, 1997, reported that an FBI informant had said that Fidel Castro was responsible for the bombs exploded in Havana. From this FBI "source," Attorney Hernández deduced that "the bombing campaigns were the opportunistic brainchild of Fidel Castro, then absolute dictator of Cuba, and his intelligence services, for the purpose of deflecting attention away from the upcoming visit of Pope John Paul II."

The U.S. government attorneys, alleged defense counsel, had failed to turn over this FBI report to him until only a few weeks ago, which resulted in him not having had time to subpoena the author of the document or identify the source that provided the information so that both might be brought to El Paso to testify.

The prosecutors responded to these arguments yesterday. In a pleading filed with the court, they discounted the credibility of the source that provided that information to the FBI, because "the United States has conferred with the FBI Agent who wrote the September 25, 1997 document, who stated that the document was based on the statements of an uninformed source who was biased against Cuba."

The prosecution added, "the FBI eventually conducted a more thorough investigation of the Havana bombings, which did not reach the conclusion that the Cuban government was in any way involved in planning the bombings."

Posada Carriles' lawyer also complained in his motion that the government had failed to disclose to the defense a second FBI report that contains "extremely important exculpatory material." Arturo Hernández summarized the document dated November 18, 2004 as having stated that the "Castro regime had undertaken a plan to assassinate the Defendant in the year 2004."

This, Hernández, "is evidence of extreme bias against the accused by the Castro regime." In its response yesterday, the prosecution discounted this FBI report as simple conjecture from an unreliable source, and further cited as an example a third FBI report dated May 11, 1999 that says that the government of Guatemala—not Cuba —had organized the attempt made on Posada Carriles' life in the 1980s.

The prosecution characterized all three FBI reports as "unreliable, unfounded conjecture." Consequently, wrote the prosecution in its response to Posada Carriles' attorney, the reports are not relevant to the case.

Posada Carriles' complaints about the Cuban inspector

Another of the complaints from Posada's defense attorney is that the Cuban inspector who testified last Wednesday, Roberto Hernández Caballero, is allegedly a Cuban counterintelligence agent. We don't know if this is true, because the judge abruptly interrupted the prosecutor's direct examination of the inspector and the question had not been posed to him yet.

But in their answer to attorney Hernández's motion to dismiss, the prosecutors did challenge the defense's underlying major premise. "The defendant's entire premise is based on his argument that the fields of criminal investigation and counterintelligence are somehow contradictory." The prosecutors pointed out, "In fact, in the United States, the Federal Bureau of Investigation is responsible for investigating counterintelligence matters and has a Counterintelligence Division within its National Security Branch. It is certainly possible that a foreign government could also assign counterintelligence duties to its FBI agents."

Trial or travesty?

Judge Cardone said that next week she will rule on the defense motion and decide whether to dismiss the counts related to the defendant's role in the bombs that exploded in Havana in 1997. If she throws out those charges, none of the three Cuban witnesses will testify, and the trial against Posada will be reduced to whether the defendant lied about his manner of entry into the country: whether he came by boat or by pickup truck—a true travesty.

Cardone

Judge Cardone

The case is now in the hands of Judge Kathleen Cardone. She was born in New York in 1953 and moved to Texas to attend law school at St. Mary's University in San Antonio. She graduated from St. Mary's in 1979.

In Texas judges are elected to their positions unless a vacancy occurs, at which time the governor appoints the judge. In 1995, a vacancy in Texas' Judicial District 383 arose, and the governor at the time—George W. Bush—named Kathleen Cardone to the post. Her tenure was short, however, because she had to submit to an election the next year and lost. Judge Cardone went back to work as an attorney and began teaching at a local community college. She also became an aerobics instructor.

Governor Bush, however, had not forgotten her. In 1999, state officials created Texas Judicial District 388, a new judicial district, and Governor Bush quickly named Cardone to fill the slot. Judge Cardone's joy was again short-lived, however. The next year, she had to stand for election to retain her seat on the bench and the voters defeated her once more.

Perhaps out of gratitude to George W. Bush for having placed so much faith in her, in 2000 Kathleen Cardone made a $500 contribution to Bush's presidential campaign. Her candidate of choice was declared the winner of that controversial election and became the next president. On May 1, 2003, President George W. Bush named Cardone the federal judge in El Paso: the third time he had given her a judicial position. Since federal judgeships are lifetime appointments, Judge Cardone need never again worry about losing another election.

In a 2004 article about Texas judges who lost state elections but later received a lifetime appointment to the federal bench—Judge Cardone mentioned among them—University of Houston professor Robert Carp is quoted as saying, "Judgeships often go to people who have served the party in some way. It's not an uncommon phenomenon or situation for someone who moves to the federal bench to have some political ties." (Joe Black, "Judge who lost election in line for a lifetime job," Houston Chronicle, Washington Bureau, May 20, 2004, 12:17 a.m.)

Barely four years after President George W. Bush named Cardone a federal judge, the case of Luis Posada Carriles fell on her doorstep. And on May 8, 2007 (less than five months after the case had begun), Judge Cardone dismissed it. She ruled that the government had deceived and entrapped Posada Carriles—and that it had done so to get him to make false declarations so that the government could later indict him for perjury. Judge Cardone was scathing in her criticism, "The Government's tactics in this case are so grossly shocking and so outrageous as to violate the universal sense of justice. As a result, this Court is left with no choice but to dismiss the indictment."

The Fifth Circuit Court of Appeals, whose jurisdiction includes the federal court in El Paso, reviewed the record on appeal. The Court remanded the case for trial, ruling that Judge Cardone had committed reversible error by dismissing the case. "...There simply is no basis for the district court's conclusion," wrote the appeals court in its 35-page decision issued on August 14, 2008.

Two questions

Once again the case is at a critical juncture. Judge Cardone has already dismissed the indictment once. Is she inclined to do so again?

If she throws out the indictment—or any of the counts therein—Judge Cardone would have to be certain that the Court of Appeals would not find grounds for reversing her decision again and level still more criticism against her reasoning. She would need to find solid legal ground for a decision to dismiss. Could this be the reason she needs more time to deliberate?

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).