p>Day 14 in the Trial of Posada Carriles
Today in El Paso, Luis Posada Carriles, the defendant, was able to sleep in. Not at the hotel but in court. For several days there’s been no mention of him, because his defense attorney has managed to disrupt the proceedings and put Gilberto Abascal, Fidel Castro and Cuba on trial, rather than Posada.
At 9:25 in the morning, I realized that a number of the jurors were whispering amongst themselves as the witness testified for the seventh consecutive day. I heard one of the women say, “look at him, he’s snoring.”
I looked to my left. Posada was calmly snoring away. And why not? He appears to enjoy absolute impunity in the United States for the 73 murder charges pending against him in Caracas for blowing up a passenger airliner. He is also not worried about having to answer for the murder of Fabio Di Celmo, and he appears to have no remorse regarding the many accusations against him from those in Venezuela, El Salvador, Guatemala and Honduras who say he tortured them.
Nor is he concerned that the Supreme Court in Panama declared unconstitutional the pardon previously given him by the former president Mireya Moscoso, and that there is now an outstanding order for his arrest in Panama, so that he may be returned to complete his prison sentence. His crime? Trying to blow up an auditorium full of students at the University of Panama, when the Cuban president, Fidel Castro, was scheduled to speak there in 2000.
No. In El Paso he is only charged with lying, and even at this trial his name and his lies are scarcely mentioned. The jurors have instead been subjected to a seemingly endless grilling of Gilberto Abascal by the defense counsel about the witness’ failure to properly disclose cash income on his federal income tax returns. The witness´ medical history has also been under scrutiny, but not Posada Carriles´ crimes.
Gilberto Abascal was born in the municipality of Batabanó, in the Cuban province of Mayabeque. The town is located just an hour away from Havana but galaxies away from El Paso.
In Batabanó, he was a farmer. He testified that he produced “beans, garlic, plantains, sweet potatoes, malanga, everything.” After immigrating to the United States, he invested in a chicken farm, and he was Santiago Álvarez’s handyman. Since 2005 he has been a protected confidential informant for the FBI.
The witness needed rehabilitation after five days of intense cross-examination during which Posada Carriles’ attorney did his utmost to impeach his credibility and paint him as a liar, a thief, a lunatic and a spy. Government Prosecutor Jerome Teresinski wanted the jury to know that Abascal´s testimony is trustworthy: that the information he provided the FBI about an arsenal of dangerous weapons led to felony convictions. Judge Kathleeen Cardone, however, ruled that Teresinski could not touch the subject of Abascal’s assistance to the FBI in that case.
Therefore the jury will never learn that in August of 2005, Abascal warned the FBI about the existence of an arsenal of illegal weapons in the Bahamas. The FBI investigated, and as Abascal had told them, found C-4 plastic explosives, grenades and grenade launchers along with other illegal weapons, one of which was registered in the name of Posada Carriles’ principal benefactor and owner of the good ship Santrina, Santiago Álvarez. Later, Abascal informed the FBI about some weapons that were hidden at an apartment complex, Inverary Village, also owned by Santiago Álvarez.
Judge Cardone stated that this information might prejudice the jury against Posada, since Santiago Álvarez is Posada’s financial benefactor, the owner of the boat that allegedly smuggled him into the United States and his co-conspirator in the cover-up of the smuggling operation. She ordered Teresinski to limit his redirect examination of Gilberto Abascal.
Constrained by the judge´s ruling, Teresinski asked Abascal whether he suffered from hallucinations. “No,” he answered. “I have depression, insomnia and nightmares. The nightmares are because of Santiago Álvarez, who was the one who got me into this mess,” he testified. Teresinski asked him about some of the trips he made to the doctor. “I had problems with my wife, money, depression, lack of work and that thing with Santiago Álvarez,” he answered.
Uff. Up sprang attorney Arturo Hernández, like a rooster ready for a fight. He complained to the judge that the witness must not make reference to the case of Santiago Álvarez. Hernández wants to be sure that the Great Wall of China surrounds that case, so the jury will never learn that some of the Santrina’s crew, including the owner and captain of the boat that smuggled Posada into Miami, were convicted for possessing a large arms cache, including machine guns, silencers and grenade launchers in 2005, and that they negotiated a reduced sentence in 2007 after agreeing to surrender an additional 14 pounds of plastic explosives, 200 pounds of dynamite, 4,000 feet of detonator cord, 30 semiautomatic and automatic weapons, one grenade launcher and two handmade grenades.
The battle of medical reports
Wanting to counteract the medical reports that defense counsel introduced into evidence to impeach Abascal, Teresinski moved to admit another medical report that concluded that Abascal did not suffer from psychosis or manias, and that his reasoning capacity was fine, particularly in the months immediately before, during and after the voyage of the Santrina in March of 2005.
He introduced a report from a Dr. Butz, who was hired by the government to evaluate Abascal’s psychological competence. “He’s a doctor paid by the government, Your Honor,” protested Hernández.
Meanwhile, defendant Posada Carriles continued to sleep, though snoring less. “I sleep like a baby,” he told the New York Times in 1998 when the reporter asked him to comment on the fact that one of the bombs he boasted about sending to Cuba had killed Fabio Di Celmo in the Copacabana Hotel in 1997. That Italian “was in the wrong place at the wrong time,” he said.
Judge Cardone again stymied Teresinski. She refused to allow Dr. Butz’s report into evidence. She also said he would not be allowed to testify, “because the government did not previously submit a copy of the medical report to the court.” Teresinski, who ordinarily battles until the last out, insisted that the government has the right to “complete the picture,” since defense counsel has muddied it during cross-examination and shown the jury only half-truths.
He came within a hair’s breadth of a contempt of court citation. “I already warned you,” the judge said. “Mr. Hernández and you, but especially you, Mr. Teresinski. After I’ve made my decision I don’t want to hear any more arguments,” she said with the greatest annoyance I have seen her express during this entire trial. “I warned you that I would impose sanctions for that, and you are perilously close to those,” she told him.
In the United States, judges have the power to fine or even jail an attorney for contempt of court.
Two hours later, the prosecutors realized that they had indeed filed the Butz Report with the Court-in January of last year. Teresinski brought the matter up with the judge. She admitted that she had overlooked it in her file. Nevertheless, she did not reverse her ruling.
CDRs and condominiums
After a brief recess to allow everyone to calm down, Teresinski continued with his questions on redirect. Hernández had already accused Abascal of spying for the Cuban government, and Teresinski knows that the evidence includes an immigration form on which Abascal admitted having been a member in Cuba of the neighborhood committees called the CDRs, “Committees for the Defense of the Revolution.”
Going for a preemptive strike, Teresinski asked the witness, “explain to me what the CDR is.” “It’s similar to an association for condominium residents in the United States.” Hernández’s rage turned his face beet red. Many Cuban exiles in Miami believe that the purpose of the CDRs is simply to spy on neighbors. Cuba maintains that their purpose is to combat crime, defend the revolution and help neighbors in need: not so different from neighborhood watch committees in the United States.
Posada Carriles continued with his siesta. Who knows what he was dreaming? At times, he would scratch his right ear and crinkle his eyebrows. With the headphones over his ears transmitting a simultaneous interpretation, he slept on. “The interpreter will develop a complex because he´s speaking to somebody who’s sound asleep,” said the man sitting next to me.
Every so often, the judge looked at Posada out of the corner of her eye, probably trying to ascertain whether the defendant was still alive.
Teresinski finished with these two questions: “When the Santrina arrived in Miami, who was on board?” “Me, Santiago Álvarez, Pepín Pujol, Osvaldo Mitat and Posada,” Abascal answered. “Did you suffer from hallucinations during the Santrina’s voyage?” “No,” Abascal replied. “I have no more questions for Mr. Abascal,” said the prosecutor.
Art, again and again
But Arturo “Art” Hernández always has questions, even if they are the same questions. To no one´s surprise, the judge allowed him to renew his inquiries about Abascal’s income tax forms, his immigration forms, his medical problems, etc. The witness had by now run out of patience.
“You’ve asked me the same question a thousand times and four hundred ways, and I’ve answered you. Would you like me to tell it to you in both ears?” said the exasperated witness. And it didn’t stop there. Abascal erupted with,” “You’ve already tried to slander me on Channel 41 in Miami.”
Immediately Posada Carriles’ attorney moved for mistrial. It’s his fourth request for a mistrial: an essential element of his defense strategy.
The judge sent everyone to lunch for an hour and a half, obviously fed up with so many questions and so many complaints from the attorneys. Hearing the shuffling of chairs and feet around him, Posada finally awakened from his slumber.
One of his defense attorneys, Felipe Millán, asked him if he felt all right. “Yes, I’m just tired,” Posada told him.
When we returned from lunch, Abascal wasted no time in speaking his mind, “Mr. Hernández is a liar. He asks me the same, the same, the same question. I’ve spent seven days answering the same question. I have a child alone at home that needs me,” he told the judge, expressing years of pent-up visceral anger at Arturo Hernández.
But the person Judge Cardone wanted to listen to more was Attorney Hernández.
Hernández: “Abascal is a scoundrel”
The judge asked Hernández to explain his reasons for a mistrial. The Miami defense attorney buttoned his suit jacket, arranged his glasses on the tip of his nose and approached the podium with the look of an injured child. “Abascal launched a personal attack against me. I must maintain my credibility before the jury, and his statements against me could hurt my client. Abascal is a scoundrel and has been poisoning the jury. The only way to repair the damage is for Your Honor to declare a mistrial,” he concluded.
It was Teresinski´s turn to speak: “Mr. Hernández is looking for any excuse for a mistrial. Furthermore, what Abascal said is true. Hernández did grant interviews to Channel 41 in Miami and has also spoken with the press in El Paso.”
Hernández’s color turned Bloody Mary red. “I went on Channel 41 to raise funds for my client’s defense,” he said. “Mr. Teresinski plays too fast and loose with the facts and with his tongue, and he ought to be held accountable.”
To be held accountable
Ah, to be held accountable! Isn’t that precisely what the families of the victims of Cubana de Aviación’s Flight 455 deserve? Next to the demand for justice by the families of the 73 defenseless civilians killed aboard that passenger plane, including adolescents and a nine-year-old girl named Sabrina, Hernández’s complaint against Teresinski is nothing more than a petty schoolyard rant. What about Giustino Di Celmo´s demand that Posada Carriles be held accountable for the murder of his son, Fabio, at the Copacabana Hotel? Does that not matter here?
A decision on the motion for mistrial and an adios
“I’m not going to declare a mistrial, because we’ve not arrived at the point of having contaminated this jury,” ruled Judge Cardone.
“I have no more questions for Mr. Abascal”, said Hernández (finally). Abascal’s El Paso nightmare finally ended.
The judge dismissed Gilberto Abascal after seven days on the stand. He left the courtroom with dignity, looking to get a flight out tonight. As he said earlier, his son awaits him at home.
Two witnesses in one afternoon
This afternoon, we heard from two Department of Homeland Security officials, Cletus William and Christopher Torres. William testified that he was responsible, on behalf of the Immigration Customs and Enforcement Agency (ICE), for inspecting the boats that arrived at the Port of Miami in March of 2005. He remembered the Santrina. He said that he’d received a radio call from Santiago Álvarez on March 18, 2005. Officer William suspected something odd, because Álvarez said that the Santrina was a private vessel, but that he wanted to dock in the Miami River “where only commercial vessels go.”
But ICE was understaffed that day, and Officer William let the Santrina pass. Perhaps if he had inspected the ship, he’d have discovered that Álvarez had reported five people on board, but there were actually six.
The next witness is Christopher Torres, also an investigator with ICE. He testified that he travelled to Isla Mujeres to investigate the Posada case and that he had taken pictures of the barbershop where the defendant got a haircut in March of 2005. Torres’ photo is very similar to the one taken by Abascal that is now part of the evidence. In that picture, Posada sits in the barber’s chair with a barber’s apron speckled with recently shorn gray hair. “The barbershop is just half a block from the pier where the Santrina was docked in March of 2005,” Torres told the jury.
High gusts of wind and freezing weather
The hotel is six or seven blocks away from the courthouse: a short walk, but tomorrow it will not be as pleasant. We’re expecting 10-degree temperatures, with 45-mile-an-hour winds and a topping of snow. I regret not having brought either a winter coat or boots. How could anyone guess that El Paso could get so cold?
José Pertierra practices law in Washington, DC. He represents the government of Venezuela in the case to extradite Luis Posada Carriles.