by José Pertierra
Jan. 24, 2011
Reprinted from CounterPunch

"Your Honor, I ask myself whether Attorney Hernández is trying to confuse and obfuscate the jury," Prosecutor Jerome Teresinski complained in annoyance this morning. The problem arose when the prosecutor tried to introduce into evidence the naturalization application that Posada sent to the United States Citizenship and Immigration Service (USCIS) in 2005, plus the tape recordings and transcriptions of the resulting two interviews performed by USCIS Officer Susana Bolaños in El Paso on April 26 and 27, 2006.

The Naturalization Application and the Recordings

"Art" Hernández

Luis Posada Carriles´ attorney, Arturo Hernández—who previously introduced himself to the jury as "Art"—vigorously opposed the introduction of the exhibits into evidence, alleging that the naturalization application is only a copy and since Ms. Bolaños did not prepare the transcriptions, she is incompetent to testify about the accuracy of the recordings. He asked to be able to review Posada's original citizenship request form and to examine the original tapes.

When Hernández interrupted him to make these objections, Teresinski had been conducting a direct examination of Officer Susana Bolaños. She is a middle aged Chicana of medium height, with dark brown hair pulled back in a tight ponytail. Bolaños works as an Adjudicator of the Department of Homeland Security's Immigration Division in Miami, but had been dispatched to El Paso in 2006 to interview Posada about his request to become a citizen of the United States.

The prosecutor needs Bolaños' testimony. Teresinski considers it important for the recording of the naturalization interviews to be heard in court, so that the members of the jury can hear for themselves that Posada clearly understands and speaks English, something he now disputes. The government contends that the recordings and the corresponding transcriptions of the two naturalization interviews conducted in 2006 show that Posada Carriles perjured himself.

The Indictment: Posada lied during the Naturalization Interviews

The indictment alleges that during his naturalization interview, Posada lied when he stated that, with the assistance of a coyote in a private vehicle, he had entered the United States from Mexico in March of 2005 without inspection. The prosecution contends it has evidence that he entered on a shrimp boat called the Santrina. Posada also claimed during the interview that he had not passed through Cancún or Isla Mujeres on his way to the United States. According to the indictment, that is yet another misrepresentation.

Other perjury charges arise out of his claim that he had not seen the Santrina, Santiago Álvarez, Osvaldo Mitat, Rubén López Castro or José Pujol in Mexico in March of 2005. A further count against him in the indictment is that he lied to Officer Bolaños when he told her that he had never had a Guatemalan passport, whereas in fact he possessed a photo-substituted passport from that country under the alias of Manuel Enrique Castillo López.

To show Posada's perjury, it is essential that the prosecution manage to admit into evidence the naturalization application as well as the audio and transcript from the naturalization interviews.

The Importance of Theater

Posada Carriles' attorney, Arturo Hernández, knows full well that the judge will admit them into evidence this morning. But he wants to make another point: one directed at the jury. In the United States, defense litigation in criminal cases is more theater than evidence. Hernández knows this. Before coming to Court, he has scripted and rehearsed his objections. They are an essential element in the drama he intends to play before the jury. After all, it is the jury, not the judge, who will decide whether Posada Carriles is guilty of perjury.

Art, as he calls himself in court, desperately wants to get the jury to like him, even if they don't like his client: one with a long resume of terror. That is why the lawyer is anxious to give the impression of utter respect for everyone: the judge, the jury, the prosecution and the witnesses. Art is courteous to the point of unctuousness. He's dressed in an elegant and expensive suit. He deliberately buttons his jacket every time he rises and unbuttons it again when he sits down. It's laborious, because he stands and sits very often, always looking at the jury. It is a meticulously rehearsed performance. That's his job. It's his play.

Prosecutor: The Defense Attorney is looking to Confuse and Obfuscate the Jury

Today the play called for Hernández to insinuate to the jury that the recordings of the naturalization interviews might possibly have been tampered with, and that perhaps Posada's naturalization application that the government introduced into evidence is a fake.

Of course, Hernández has no proof, nor does he need any. As the prosecutor so aptly put it, he is simply looking to "confuse and obfuscate" the jury. For example, when Teresinski showed him in open court the original recorded cassettes, Hernández reacted as if he had been handed something strange, despite his having seen and examined them many times. He made sure the jury saw the perplexed expression on his face.

Despite his vehement objections, the judge overruled his motion to exclude the naturalization application, the audio recordings and the transcripts. Hernández' sounded furious, but although his objections signified nothing of substance, his acting was effective. With so many vehement and demonstrative objections, the jury came away confused. Even though he lost the motions, he won the skirmish.

Fake Names and Fake Passports

When finally allowed to do so, Teresinski played the audio from the two naturalization interviews that USCIS conducted in April of 2006, and once again we heard the voice of Posada Carriles. It's likely that Hernández will not allow his client to testify in this trial. The recordings are therefore the only means to hear his voice, albeit statements he gave almost five years ago.

Through the court loudspeakers we heard the hoarse voice of Posada Carriles, as he answered "yes" in English to the question, "Do you swear to tell the truth and nothing but the truth, so help you God?" Thanks to the audio, the jury also heard an animated Posada speaking in fluent English about his fondness for painting.

They also heard Posada say that the Salvadoran government gave him false passports under the names of Ramón Medina and Franco Rodríguez, and that it also gave him a license to carry weapons. Why? "To fight the communists," said the easily identifiable voice of Posada Carriles. The Salvadoran government also "gave me a license to be a police instructor," said Posada, oblivious to the irony of a fugitive wanted for 73 counts of first-degree murder working innocently as a police instructor.

During its opening statement, the prosecutor promised the jury that it would introduce into evidence a Guatemalan passport in the name of Manuel Enrique López with a photo of Luis Posada Carriles. During his naturalization interview, Officer Bolaños asked him whether he had ever used that name or possessed a passport in that name. The Officer testified that Posada "never mentioned that name."

Score one for the prosecution, because the indictment charges Posada with a count of making false declarations under oath when he denied having used or possessed a passport in the name of Manuel Enrique López.

The Juror with the Cast on Her Leg

The judge concluded today's hearing earlier than planned, because a jury member had a medical appointment to remove a cast on a broken leg. Tomorrow at 8:00 a.m., we will reconvene, and after Teresinsky finishes his direct examination of Officer Bolaños, Hernández will perform the "art" of cross-examination.

José Pertierra practices law in Washington, DC. He represents the government of Venezuela in the case to extradite Luis Posada Carriles.

Translated by Machetera. She is a member of Tlaxcala, the international network of translators for linguistic diversity (http://www.tlaxcala-int.org).