By José Pertierra

The María Elvira, Live! show came to El Paso this week. Luis Posada Carriles’ defense attorney turned the federal trial into a television talk show. The defense called Roberto Hernández del Llano as a star witness in an attempt to impeach the previous testimony of Cuban investigator Roberto Hernández Caballero, who had inspected the bombing scenes in Havana in 1997.

Hernández del Llano is one of María Elvira’s favorite guests. He is an habitué of television talk shows, where he holds forth on the personal lives of Fidel Castro, his wife and their children. He never offers any proof of what he says. He simply declares his assertions are true, so they can spread like wildfire in Miami’s Little Havana. Hernández del Llano tried to do the same here in El Paso.

Cuba on trial (again)

Before the witness testified, prosecutor Jerome Teresinski objected without success to Judge Kathleen Cardone. He reminded the judge that she had previously ruled that she would not allow Cuba to be put on trial. “This case is about the crimes of Luis Posada Carriles. It is not about Cuba,” he said.

The judge only partially agreed and said, “I havedecided that the government of Cuba is not being tried here, but I will allow the witness to testify. As the questioning proceeds, you may object to the question, and I will decide if I will allow a response.”

Knowing that even an elephant can fit through the eye of the legal loophole the judge had just left open, Teresinski repeated his objection. “Your Honor, I don’t want to appear to quibble …”

“Hah!” bellowed the defense attorney from counsel table with a loud laugh.

Teresinski became livid. Without finishing his sentence, he said to the judge: “I see nothing funny here His [the defense attorney’s] laughter is stunning.  It is a lack of professionalism.”

The judge tried to placate him, but Teresinski continued to stew for the rest of the day. Each question that the defense attorney directed at the witness met a forceful objection from Teresinski.

The judge overruled nearly all of them, and Hernández del Llano was able to make under oath and in federal court the kinds of outrageous statements that have established his reputation as a provoking television personality on the María Elvira, Live!

The witness’ colorful declarations

He said that Roberto Hernández Caballero, the Cuban investigator who testified last month in El Paso, had personally tortured him in April 2005 at the Villa Marista prison in Cuba. He offered no details. He simply mentioned it.

The witness did not explain why he had never said this in any of his many television appearances on María Elvira, Live! Such a declaration would certainly have boosted the ratings, gotten him a raise and turned him into a hero in Miami’s Little Havana.

Hernández del Llano told the jurors that he had been a major in Cuba’s Interior Ministry (MININT), but that he resigned more than 20 years ago. He said he defected in 2007 and now lives–where else?–in Miami.

He declared that in 2003, two MININT counter-intelligence agents tried to re-recruit him. “The work that they wanted me to do involved a friend of mine and a relative, and so I refused,” he said. “Did you suffer any consequences?” asked attorney Arturo Hernández. “Yes.  They threatened me and shortly thereafter, troops from Villa Marista invaded the home of my brother Pedro Hernández del Valle and evicted his family,” answered Hernández del Llano.

HHH

The direct examination of the witness sounded like blues in H flat: attorney Hernández asking Roberto Hernández about Roberto Hernández.

Roberto Hernández del Llano told attorney Hernández that Roberto Hernández Caballero was the one responsible for his arrest in 2005.  “Since January of 2003, Hernández has directed an entire repressive operation against me,” said Hernández del Llano. “He tortured me physically and beat me.”

At that the judge called a recess. Maybe she wanted to sort out the Hernándezes. But also she had a number of pending matters she wanted to resolve. She has several other cases on her docket besides this one, and there were a dozen criminal defense attorneys in the courtroom (their clients in the court’s holding cell) waiting for sentencing hearings.

Arturo Hernández is not finished with his direct examination, and the prosecutor’s cross-examination of Roberto Hernández del Llano is still to come. The Government has access to the witness’ records, which includes his 2007 application for asylum. It also has access to FBI records regarding the witness and can ask Cuba for its records, assuming that the witness was actually a prisoner there.

The defense’s medical expert

Yesterday a pathologist hired by attorney Hernández also testified: Dr. Ronald K. Wright. He came to El Paso looking like Kentucky Fried Chicken’s Colonel Sanders, in a white suit and a bow tie. With a strong southern accent, he stated that he has testified in 520 cases, 178 of which were criminal cases.

With the exception of about six cases, he has always testified for the defense. “It’s because the prosecutors have cornered the market on forensic pathologists,” he said. He testified that Posada Carriles paid him $4,500 for his testimony. If we counted only the criminal cases in which he testified and multiply them by the $4,500 he was paid for this one, Dr. Wright would have earned more than $800,000 for his testimony over the years. Not a bad gig.

Fingers

Defense attorney Rhonda Anderson questioned Dr. Wright, and he testified that the shrapnel that struck the throat of Fabio Di Celmo was not the cause of death. The thirty-two-year-old Italian businessman died, said Dr. Wright, because of inadequate medical attention by the Cubans.

“If I’d been there, he wouldn’t have died,” the doctor said brimming with confidence. Of course, the Miami-based doctor did not explain how he could be so sure that if he’d been at the side of Di Celmo he could have avoided the shrapnel that fatally wounded the decedent.

“You just needed to hold down the bleeding by putting something on it. It’s a very simple procedure,” he declared. Lifting both arms in the air and moving his fingers around, the doctor said to the jurors. “Fingers, fingers, fingers.  It’s quite simple. If somebody had used his fingers, Di Celmo could have survived for several hours.”

Vanity

The vainer the witness, the easier the cross-examination. Prosecutor Timothy J. Reardon quickly managed to get the witness to admit that Fabio Di Celmo died due to a severe hemorrhage.

“Mr. Di Celmo died, isn’t that true?” he asked.

Upon hearing the witness’ affirmation, he said, “You weren’t there, isn’t that true?”

“Correct,” answered the doctor.

“Are you saying that Di Celmo did not bleed to death?” Reardon snapped.

Dr. Wright hesitated and finally said, “Well, yes. But it didn’t have to happen.”

“It didn’t have to happen, because you would have known how to attend to him immediately with your fingers?” the prosecutor asked with obvious disdain.

Reardon didn’t wait for an answer. He pivoted away from the witness and walked to the prosecutor’s table saying, “I have no further questions.”

José Pertierra practices law in Washington, DC. He represents the government of Venezuela in the case to extradite Luis Posada Carriles.
Translated by Machetera and Manuel Talens. They are members of Tlaxcala, the international network of translators for linguistic diversity.
Spanish language version:http://www.cubadebate.cu/noticias/2011/03/29/diario-de-el-paso-el-testigo-de-maria-elvira-live

By JOSÉ PERTIERRA

At 9:00 a.m. sharp, Judge Kathleen Cardone entered the courtroom. Her last encounter with the defense attorneys and prosecutors had been exactly one week ago, when the judge continued the trial to “calmly deliberate” about whether to grant either of the pending motions from Luis Posada Carriles’ attorney: one calling for a mistrial, the other calling for a dismissal of the first three counts of the indictment.

Those counts pertain to the false declarations made by the defendant about the 1997 bombings in Havana.We could all feel the tension in the courtroom. Judge Cardone extended the attorneys a bleak greeting, and Prosecutor Timothy J. Reardon, III, as he does first thing every morning, stood and politely approached the podium.

“Good morning, Your Honor. The government is ready for the trial,” he said, knowing full well that the judge had not as yet ruled on whether to halt the proceedings. The lead defense attorney, Arturo Hernández, also stood and from counsel table cheerfully greeted the judge.

Judge Cardone’s decision

“The Court would first like to address the defense counsel’s motions for a mistrial or for a dismissal of counts 1, 2 and 3 of the indictment,” said Judge Cardone. She then pulled out a piece of paper and read her decision out loud.The legal impasse between the parties arose from defense counsel’s allegations that the prosecution had failed to disclose certain “exculpatory” documents before the expiration of deadlines laid down earlier by Judge Cardone.

According to attorney Hernández these so-called “exculpatory documents” show that a key government witness-a criminal investigator from Cuba-is biased against Posada Carriles and had fabricated evidence in an unrelated case several years ago.The defense counsel also alleged that the FBI knew, yet had failed to disclose, that a secretary in Guatemala, Cecilia Canel, had made statements seemingly exculpating Posada Carriles from responsibility for the bombs that exploded in Havana in 1997 and that the government had withheld two FBI reports that are favorable to the defense’s theory of the case.

As prologue to her decision, Judge Cardone read aloud from the defense counsel’s written motion of February 11 some of the allegations against the government concerning the exculpatory evidence. She looked firmly at the prosecutors and said, “This court has set orders for discovery deadlines. I find that the government has not met those deadlines and has withheld documents from the defense attorneys. What’s more,” said the judge, “if the defense had not found out on its own that these documents existed, the prosecution probably would not have turned the documents over.”

“I have reflected long and hard on this,” said Judge Cardone still staring at the prosecutors. She paused. At that moment, the fate of the government’s case against Luis Posada Carriles hung by a thread. Government attorney Bridget Behling stole a furtive peek at her colleague, Jerome Teresinksi, who sat to her left. She looked worried. So did he.

“I have asked myself whether the government has made an untimely disclosure,” Judge Cardone continued. “The answer is affirmative,” she declared.”Has the defendant been prejudiced by the untimely disclosure?” she mused.

Without articulating an answer to her last question, the judge suddenly stated, “I am going to deny the motions …” She paused a moment before adding “…for now.” “But I am warning you,” she said to the prosecutors, “If this kind of thing should happen again…” Her voice trailed off. She didn’t finish her sentence. She didn’t have to.

Judges rarely declare a mistrial for failure to meet discovery deadlines unless there is evidence of prejudice to the defendant’s due process rights. Here Judge Cardone did not find such prejudice and therefore could not take such a radical decision as a dismissal.”Anything else before I convene the jury?” the judge asked. Attorney Hernández, who began the morning brimming with confidence, mumbled a disappointed “no.” He didn’t even bother to embellish his reply with the customary “Your Honor.”

The jury comes in

The gavel sounded three times. The guard opened the side door to the courtroom, and the jurors slowly filed in to their seats. None had the slightest idea why they had been given so many days off other than what Judge Cardone had told them a week ago-that there were some “legal matters” that needed to be resolved.

After the jurors were seated, the witness returned to the stand. “It’s been a long time since you were last here,” said government attorney Timothy J. Reardon to the witness. “Please give the ladies and gentlemen of the jury your name.” With that question, Reardon resumed the direct examination of Roberto Hernández Caballero. It’s been almost two weeks, since the witness testified. He was dressed today in a light green suit, with a black shirt and black tie.

A Game of Football at Hyannis Port with President Kennedy

The lead prosecutor is a veteran Justice Department litigator. His father, Timothy J. Reardon, Jr., was a very close friend of President John F. Kennedy and one of his closest aides in the White House. Decades ago, father and son played football at Hyannis Port with the Kennedy clan.

Senator Edward M. Kennedy delivered the eulogy for Reardon’s father in 1993. He told of the time a young Timothy J. Reardon, III, intercepted a football thrown by the recently elected President Kennedy. His father made him return the ball to the President, because “you must never intercept the pass of the President-Elect of the United States.”

Today the boy who intercepted President Kennedy’s pass is an experienced litigator with the Counterterrorism Section of the Justice Department’s National Security Division and is responsible for prosecuting a former CIA agent who has been the mastermind of much of the terrorism unleashed against Cuba during the last fifty years-a terrorist campaign that originated in Washington.

A new paradigm?

Government policy is only a memorandum, a record of an agreement policymakers may retract tomorrow. For decades, the United States Department of Justice has given anti-Cuban terrorists a pass. Things may be changing.

It is significant that its Counterterrorism Unit is prosecuting Posada Carriles with the full collaboration of the Cuban government, using as a star witness a lieutenant colonel from Cuba’s counterintelligence unit as well as documents prepared by forensic specialists in Cuba. The American Justice Department’s Counterterrorism team working hand in hand with the Cuban Ministry of the Interior’s Counterintelligence team to stem five decades of U.S.-sponsored terrorism against the island is a new paradigm for U.S.-Cuba relations.

Terrorists in our midst

As the historian Peter Kornbluh, of the National Security Archive, told me, “After the Bay of Pigs, the Kennedys unleashed a wave of violent exiles against Cuba through Operation Mongoose as well as more autonomous actions.” The purpose of the CIA undercover operation known as Mongoose was to destroy the Cuban revolution. Its plans included the assassination of President Fidel Castro and other leaders, the use of sabotage and attacks on civilian targets. Terrorism was a favorite weapon of the United States in its undeclared war against Cuba.

The head of Operation Mongoose was the then U.S. Attorney General, Robert F. Kennedy, from the same Justice Department where Timothy J. Reardon, III, now works. While still attorney general, Kennedy began distancing himself from the Cuban extremists of Operation Mongoose.

Author David Talbot described Robert Kennedy’s conundrum with the so-called Cuban exiles. “As he tried to establish control over CIA operations and to herd the rambunctious Cuban exile groups into a unified progressive front, Bobby learned what a swamp of intrigue the anti-Castro world was. Working out of a sprawling Miami station code-named JM/WAVE that was second in size only to the CIA’s Langley, VA, headquarters, the agency had recruited an unruly army of Cuban militants to launch raids on the island and even contracted Mafia henchmen to kill Castro-including mob bosses Johnny Rosselli, Santo Trafficante and Sam Giancana, whom Kennedy, as chief counsel for the Senate Rackets Committee in the late 1950s, had targeted. It was an overheated ecosystem that was united not just by its fevered opposition to the Castro regime, but by its hatred for the Kennedys, who were regarded as traitors for failing to use the full military might of the United States against the communist outpost in the Caribbean.”

Robert Kennedy’s growing understanding of the mentality of these Cuban extremists led him to suspect them of assassinating President John F. Kennedy. On the afternoon of November 22, 1963, Kennedy called zEnrique “Harry” Ruiz-Williams, a Bay of Pigs veteran and one of the leaders of the Cubans involved in Operation Mongoose, and told him point-blank, “One of your guys did it.”

After President Kennedy’s assassination, the United States government continued to rely on the Cuban exiles for its dirty war against Cuba. In the 60s, 70s and 80s, they were also used to help prop up military dictatorships and repressive governments in Chile, Venezuela, the Dominican Republic, Guatemala, El Salvador, Honduras and elsewhere. Posada Carriles was dispatched to Venezuela to head the Special Operations division of the country’s intelligence service-the DISIP.

In later years, he helped train death squads in El Salvador and Guatemala, becoming eventually a “special adviser on security” to Guatemalan President Vinicio Cerezo Arévalo.As Posada Carriles’ own attorney, Arturo Hernández, told the Court in pleadings he filed months ago, “Everything that my client has done has been in the name of Washington.” During opening arguments to the trial now under way in El Paso, defense counsel told the jury, “Luis Posada Carriles has been an ally of the United States his entire life. Always on the side of our country.”

Have things changed? If so, has 9-11 changed them so much that the United States is now going after the terrorists it unleashed against Cuba and Latin America for decades?

Although it is true that Washington is not prosecuting Posada Carriles for terrorism or murder, it has indicted him for perjury and obstruction of an investigation into international terrorism. Some of the alleged false declarations he made involve immigration infractions, but others have to do with a campaign of terror against Cuba in 1997-that resulted in the murder of a thirty-two-year-old Italian businessman in Havana named Fabio Di Celmo.

Has the torch been passed to a new generation of prosecutors at the Department of Justice?

The Bombs

This morning Reardon showed the Cuban investigator, Hernández Caballero, several photographs from the places in Cuba where a series of bombs exploded in 1997: the Copacabana, Chateau Miramar and Tritón hotels, as well as the most famous restaurant in Cuba La Bodeguita del Medio. Two weeks ago, Reardon had shown him similar photos of the bombing damage at the Meliá Cohiba and Capri hotels, as well as at the most representative of Cuba’s hotels El Nacional. The jury listened attentively to the Cuban investigator as he described the photos while looking intently at the photographs on their personal television monitors.

“We can see there the bar in the lobby of the Copacabana Hotel. The entire right side was destroyed by an explosive device,” said the investigator. “That bloodstain on the floor is from the person who was wounded and later died from the wounds he suffered in the explosion,” the witness pointed out.

Defense counsel shot up from his seat and objected. “This witness is not competent to offer an opinion about cause of death,” he said. Posada Carriles’ attorney also does not want the jury to hear that Fabio Di Celmo bled to death as a result of a piece of shrapnel launched by an explosion at the Copacabana Hotel.

He is also counting on the jury never learning that the bomb was placed at the hotel by a Salvadoran named Raúl Cruz León at the urging of Francisco Chávez Abarca and under the direction of Luis Posada Carriles. Both Cruz León and Chávez Abarca confessed, and Posada Carriles boasted the following year to the New York Times of being the mastermind behind the crime.

Raúl Cruz León admitted to Cuban authorities that he arrived at the Copacabana on September 4, 1997 at around 10:30 a.m., sat down in the lobby/bar, and asked for a “Bucanero” beer, before going to the bathroom to assemble and activate the bomb that he deposited in the base of a metal ashcan located at the right hand corner of the bar. When he finished his beer, he exited the hotel, leaving behind the bomb that took the life of Fabio Di Celmo.

“How far away from the blood was the focus of the explosion?” asked Reardon. “Just 5 or 6 meters,” answered the investigator. The prosecutor did not ask and the jury did not realize that the hotel also suffered damage from broken glass, a suspended ceiling, lamps, furniture and the floor of the bar, valued at $16,700.60 Cuban pesos and more than $3,000 U.S. dollars.

“How many places did you go on September 4, 1997, where there had been explosions?” asked the prosecutor. “To three places in the morning and one more that night. Four in all,” answered the witness. That day, bombs exploded at the Copacabana, the Chateau Miramar, the Tritón hotels, and finally at the Bodeguita del Medio restaurant.

With the assistance of the photos, the witness described to the jury the destruction at the Chateau Miramar. While he was there investigating, another bomb went off at the Hotel Tritón, just 3,000 meters away. “I got there in five minutes,” said the witness.”When I arrived at the Tritón,” Lt. Col. Hernández Caballero told the jury, “There was already a group of experts on the scene. The alarm and worry on the faces of the guests and workers at the hotel was evident. The location of the explosion was also visible.” The witness commented that three consecutive explosions had taken place in a brief period of time.

While the Cuban investigator testified, Posada Carriles’ attorney held his glasses in his hand, nibbling on them, while scrutinizing the members of the jury. It was as though he was trying to read their minds. The jurors paid no attention to him. They were concentrating on Hernández Caballero’s testimony. Reardon showed the witness photo after photo.
“You can see in this particular photograph one of the aluminum beams that was violently severed and landed against the wall of the Tritón’s lobby,” the witness pointed out. “This other shows the back of the sofa that was thrown 15 to 20 meters by the force of the explosion. It landed at the hotel entrance,” he added.

The Cuban investigation established that the Hotel Tritón suffered damage to glass in the lobby, display cases and doors, its suspended ceiling, lamps and furniture, of $3,661 dollars. The same Raúl Cruz León placed the bomb at the Tritón Hotel–between the planters behind the sofa, close to some children from Spain who were vacationing in Cuba with their parents. One of them, just 14 years old, alerted the guard on duty, who immediately evacuated the children and everyone else in the lobby. There was no time to deactivate the device before it exploded. Thanks to the alertness of the Spanish boy, there were no deaths or injuries at the Tritón.

The jury doesn’t know any of this, because it is not part of the case against Posada Carriles. In El Paso, he is not on trial for murder-only for perjury.

Reardon showed the Cuban investigator another photo of the Hotel Tritón. Hernández Caballero explained, “This is a photo from just before the bomb’s explosion. There were some children…” At that, Posada Carriles’ attorney objected. “That is beyond the scope of the witness’ personal knowledge, Your Honor. It’s hearsay,” he said. The judge sustained the objection.Except for the details of the photographs shown to them, therefore, the jury will not get to hear much of what happened at the Tritón Hotel on September 4, 1997.

The fourth bomb on September 4, 1997 exploded at the Bodeguita del Medio restaurant in the heart of Old Havana. “It’s possibly the most famous restaurant in Cuba,” said the investigator as the jury members listened to him closely. “The explosion was at around 11:50 p.m.,” said Hernández Caballero. “I arrived there at 1:00 a.m.”

Reardon showed him several photos of the Bodeguita. “This is the part of the restaurant where the explosive device went off,” he said, pointing to the Terrace Bar located on the second floor.

Although the El Paso jury won’t ever learn it, the Cuban people know that Cruz León admitted to having placed the bomb behind a refrigeration unit on the restaurant’s second floor, on the afternoon of September 4, 1997, after having ordered some drinks and roasted meat. He confessed to having programmed the timer on the bomb so that it would go off approximately seven or eight hours later. Reardon showed the Cuban investigator another photograph from the restaurant. “This is the crater caused by the explosion,” said the witness. “Pieces of the ceiling fell on some Mexican tourists who were eating downstairs and injured them.”

The limitations of the U.S. judicial system prevent the witness Hernández Caballero from saying that the Mexican tourist, Marco Polo Soriano Villa suffered a head injury. Or that Juan José Huerta Lluviano, another Mexican tourist suffered a mild concussion and a one-centimeter scalp wound. And that Ramón Soriano Ledesma, Octavio Soriano Ledesma and Nicolás Rodríguez Valdés were also wounded in the explosion. The purpose of Hernández Caballero’s testimony in El Paso is simply to establish that there were explosions in Havana in 1997. Nothing more. Having met the goal, Prosecutor Reardon ended the direct examination of Roberto Hernández Caballero.

An agitated Posada Carriles

During the break, Posada Carriles stood up to nervously ask one of his attorneys, Felipe Millán, when “la Bardach” would testify (Ann Louise Bardach, the New York Times journalist, to whom he boasted of having been the mastermind of the 1997 explosions in Havana). He also asked Millán about María Elvira Salazar, a Miami television journalist who also interviewed him about the matter. In that interview Posada is clearly heard to have said, “I have no remorse whatsoever, and accept my historic responsibility. They can call me whatever they want. The only option that we Cubans have is to fight a violent regime with violence.”Posada Carriles was also visibly upset when he heard the Cuban investigator describe the destruction left behind by one of the explosions. He blurted, “Está loco.”

The cross-examination

Arturo Hernández, Luis Posada Carriles’ lead attorney, approached the witness and began the cross-examination in a solemn tone. He asked the witness his name, his birthplace (Matanzas, Cuba) and his profession. But the Miami attorney did not contain his hostility toward the witness for long. “Whom do you work for?” he asked. “Isn’t it true that you work for the Castro regime?””I work for the Cuban government. The Interior Ministry. The Directorate of Criminal Investigations and Operations, the Department of Crimes Against State Security,” said Lt. Col. Hernández Caballero calmly. “Isn’t it true that you work for counterintelligence?” Posada Carriles’ attorney asked accusingly, as if it were illegal to be so employed. “Yes,” said the witness, “I work investigating crimes that affect Cuban state security, but mainly I am an investigator.”

“During a trial in the city of Tampa in 1997, you were asked if you worked for the DGCI. Is that true?” asked the attorney. “Yes. I work for the Directorate of Counterintelligence,” answered Hernández Caballero. “But I’m not a counterintelligence expert. I investigate the facts after the crimes have occurred.”

Defense counsel continued his barrage, “Yet you never told us that you worked for the DGCI.””Because no one asked me,” answered Hernández Caballero.

The defense attorney then whipped out the trick he had been keeping up his sleeve for the Cuban witness.”Don’t you remember that in 2001 you testified in Miami in the case of the five Cuban spies and denied ever working for the DGI?”Lt. Col. Hernández Caballero smiled, sipped a little water and savored it before answering. “I don’t work for the DGI. One thing doesn’t have anything to do with the other,” he answered amiably.

The Miami attorney obviously doesn’t know that the DGCI is one thing (counter-intelligence) and the DGI something else (intelligence). They are different institutions in Cuba. Hernández Caballero works for one, but not for the other.In Spanish, caballero means gentleman. When Hernández Caballero testified in the case of the Cuban Five in Miami, one of the defendants in that case, René González Sehweret, said he had been “a gentleman on the stand.” And that’s also how he conducted himself in El Paso.

The lawyers skirmish

“Your Honor, I want to make a proffer,” said attorney Hernández. In legal parlance, a proffer is a preliminary offering of what will later be shown by testimony or other evidence.

To allow him to make his points outside the presence of the jurors, Judge Cardone dismissed the jury. She then asked the Cuban witness to step outside.

“We’re going to establish that the mission of this witness is to conduct investigations, so that this [Castro's] tyrannical regime can continue to exist,” said Posada Carriles’ attorney. “This has been a complete bamboozlement of the jury by the Government to present this witness as a cop, an FBI agent or an investigator,” he continued. “This person falsifies documents,” he insisted, without proof. “The purpose of Castro’s intelligence services is to kill or jail my client,” he alleged, practically shouting. “It is the will of the dictator.”

The judge then gave the floor to Reardon, but immediately tried to take it away.Reardon began his rebuttal with a retort made famous by Ronald Reagan during his 1980 Presidential debate with Jimmy Carter, “There you go again.”

“There is a back door to the front door,” Reardon continued. He was referring to a decision Judge Cardone made some weeks ago in which she had prohibited the defense attorney from turning the case into a trial against Cuba in order to divert attention from Posada Carriles.

But Judge Cardone cut Reardon off before he could say more.

“Your Honor,” insisted Reardon, by now very irritated. “The Court has given the defense counsel every opportunity to lay a foundation for his arguments. May I be given the same opportunity as Counsel? This court has been very liberal with the defendant, but the Court must draw a line when bias is invoked. This is way beyond the pale. Defense counsel is now confusing the jury,” said Reardon. He then reminded Judge Cardone, “This witness is here to testify about the places where bombs exploded.”

Posada Carriles’ attorney always insists on having the last word, and he managed to do so again. “This is unbelievable naiveté by government counsel,” said the Miami attorney. “The DGI and the DGCI [here the attorney appeared to have at last understood that the agencies are not the same] have engaged in extraterritorial murders in the United States and around the world. This is bias that needs to come out. If the Court allows me to call witnesses, we will show what Villa Marista is all about,” he concluded.

After listening to Posada Carriles’ attorney, Judge Cardone ruled that although this case is not against Cuba, she would allow defense counsel to inquire about the witness’ bias against Posada Carriles, thus opening the door to questions and accusations against Cuba. “This is a plea for pity and jury nullification,” said Reardon, greatly irritated.

Respect

The judge then reconvened the jury. “Are you a communist?” snapped Posada Carriles’ attorney, pronouncing the word communist as if it were a sexual perversion. “Isn’t it true that you have fabricated evidence? Do you know Cuba’s position on the shoot down of the Brothers to the Rescue airplanes? Isn’t it true that Castro’s regime is a sponsor of terrorism?”Posada Carriles’ attorney unleashed a barrage of accusatory questions on the witness with no link to the issues related to the case at bar.

“These questions poison the jury,” Reardon objected. “I overrule the objection,” said the judge. “You may proceed with your questions, Mr. Hernández.” And proceed he did: with question after question meant to impress upon the jury the notion that the witness is a communist who fabricates evidence and probably tortures people at a mysterious detention facility in Havana. Posada Carriles’ attorney didn’t offer any proof for his allegations. He didn’t have to. After all, as Judge Cardone has said repeatedly during this trial, “this is cross-examination.”

Unruffled, the Cuban investigator responded to all of the questions. “Yes, I’m a member of the Communist party. No I have not fabricated evidence. I don’t know the details of Cuba’s official position on the shoot down of the Brothers to the Rescue airplanes. No, Cuba neither sponsors nor supports terrorism.”

Tomorrow, Posada Carriles’ attorney will continue with his cross-examination of the witness. Today he was unable to score any points. He found himself up against a professional investigator who answered every question respectfully despite the disrespectful questions put to him by Luis Posada Carriles’ attorney.

Lt. Col. Roberto Hernández Caballero remains a formidable witness, and it will be difficult for defense counsel to impeach him. He led the investigations into the bombings in Havana. He was easily able to identify the bombing scenes and describe them in detail to the jury. All the prosecutors want him to do on the stand is to evidence that bombs exploded in Havana in 1997. Today, he did that in spades.

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

Translated by Machetera and Manuel Talens. They are members of Tlaxcala, the international network of translators for linguistic diversity.
Spanish language version: http://www.cubadebate.cu/especiales/2011/02/11/diario-de-el-paso-arenas-movedizas/

By JOSÉ PERTIERRA

Today Judge Kathleen Cardone did not allow the Cuban inspector Roberto Hernández Caballero to testify and postponed the trial of Luis Posada Carriles until Tuesday of next week. Posada Carriles’ attorney threw a roadblock before the proceedings that brought the trial to a temporary halt. Prosecutor Timothy J. Reardon had planned to continue with his direct examination of the Cuban witness, but first thing in the morning Posada’s attorney made two motions: one to compel the government to share new allegedly “exculpatory” evidence about his client, and another to dismiss the charges against the defendant.

What attorney Hernández found among his papers last night

“Last night I discovered two declassified FBI reports in my files that the prosecution gave me on the eve of the beginning of this trial,” Arturo Hernández told the court in an extremely loud voice first thing this the morning. “I didn’t realize it because my mind was focused on something else, but I found the documents last night.”
With great fanfare, attorney Hernández announced that the documents he discovered among his papers during the evening hours were an FBI report dated September 25, 1997, and another dated November 18, 2004. Both, he said, corroborate Posada Carriles’ innocence.

The prosecution had them, he said. Although the government was obligated to provide copies to the defense, it delayed too long in doing so, he argued. Attorney Hernández said that the 2004 report tells how the FBI warned Luis Posada Carriles that the Cuban General Directorate of Intelligence (DGI) had made plans to kill him. The report is dated less than three months before the former president of Panama pardoned Posada on August 26, 2004.

Posada had been sentenced for crimes related to an attempt against Cuba’s President Fidel Castro in 2000. The plan included detonating 20 pounds of C-4 explosives at an auditorium filled with students at the University of Panama.

After ex President of Panama, Mireya Moscoso, pardoned him, Posada Carriles went underground again and reappeared in Miami in March of 2005. His attorney did not disclose how the FBI had warned him about the supposed threat on his life, or if the FBI knew his whereabouts. A few months later, Panama’s Supreme Court declared the pardon unconstitutional.

The second FBI Report that attorney Hernández found in his file last night was drafted exactly three weeks before the murder of Fabio Di Celmo on September 4, 1997. Posada Carriles’ attorney told Judge Cardone that the document makes reference to an “intelligence source” that told the FBI that the Cuban Interior Ministry (MININT) and Armed Forces Ministry (MINFAR) were responsible for the bombs that exploded in Havana that year. “MININT and MINFAR did this in order to blame Posada Carriles for the rebellion,” said Hernández, feigning intense indignation.

The accusations against the Cuban inspector

“But there’s more,” Posada Carriles’ attorney said with great seriousness. “I’ve learned that yesterday’s witness, Roberto Hernández Caballero, is a Cuban counterintelligence agent.” Hernández told the judge that the prosecutor had purposely withheld that information from him.

I do not know whether Mr. Hernández Caballero works with Cuban counterintelligence nor do I believe it matters. I’m sure that if he were asked, he would tell the jury. Until now, it has not occurred to anyone to ask him, including Posada’s defense attorney. I know that he is a Lieutenant Colonel with the Interior Ministry. He has said so publicly on a number of occasions. It seems logical to me that an investigation into a terrorist campaign that endangers the national security of a country would be assigned to an institution like the MININT. Wouldn’t any other country do the same, including the United States? What does Hernández think? That the Al-Qaeda terrorist attacks on the Twin Towers were only investigated by the NYPD?

Without offering an iota of proof, Posada Carriles’ lawyer alleged to the Court that the Cuban inspector had falsified evidence in other cases: that of the three persons who were accused of hijacking a Cuban plane in 1996 and who were acquitted by a court in Tampa the next year: José Roberto Bello, Leonardo Reyes Rámirez and Adel Given Ulloa. Despite being completely bilingual, Posada’s attorney gets tongue-tied when he pronounces Spanish language names. He called them: Hosaah Belo, Leeonahdo Oo-ayes and Ahdehl Gweeven Uiloa. Why? I don’t know.

Brady documents

“Your Honor,” said the lawyer, practically shouting, “I move to dismiss the case because the prosecutors have shown a continuous pattern of refusing to disclose Brady documents to me: at a minimum I move that the Court dismiss counts one through three.” The first three counts of the indictment are those relating to Posada Carriles’ false statements regarding his involvement with the bombs in Havana in 1997 and the murder of Fabio Di Celmo.

Brady documents are potentially exculpatory documents in the prosecutor’s possession. They are called Brady after a case in which the U.S. Supreme Court ruled that not sharing them with the defendant is a violation of his right to due process. Reardon: “Defense counsel’s arguments are ridiculous.”
“Mr. Reardon?” said the judge.

Prosecutor Timothy J. Reardon slowly arose from his chair leaned over to pick up some papers from his table and approached the judge. He began his response in a solemn, quiet voice. “Your Honor, I came this morning to renew my direct examination of the witness, and I find this docudrama in court that has nothing to do with the facts of this case,” he said, gesturing toward Posada Carriles’ attorney.

“Counsel today has delivered us a bravura performance deserving of an Oscar,” said Reardon. “His breathless presentation, topped with an alleged inability to represent his client, was delivered with blistering and blustery attacks against the record of this case”, Reardon declared. “The government,” he said-his face flushed with anger-”has to defend the record.”

“The defendant’s motion to dismiss is ridiculous,” said Reardon. “It is part of defense counsel’s strategy to always file something at the last minute to get to the podium and toss out wild accusations,” said Reardon as he pointed toward the defense attorney. Reardon is a veteran litigator, who gives the impression that he has seen a quite a few docudramas in his life.

“There is no evidence whatsoever that the witness has falsified evidence in this or any other case,” said Reardon. “The defense attorney is speaking to an audience beyond this court,” exclaimed Reardon, in an obvious reference to Cuban-American extremists in Miami. “He is wrong about the law, and he is wrong about the facts. The Court should recognize that this is nothing more than a strategy and confront it as such,” the prosecutor continued. “Poets may use poetic license-attorneys may not,” he concluded.

Suddenly, Judge Cardone interrupted Reardon and told him, “I have before me a motion that alleges that the witness is a DGI agent from Cuba and that it was not disclosed to the defense. I also have allegations that say that the government has received accusations that the witness fabricated evidence. I have to decide what to do with this.”

The source of the complaints against the Cuban inspector

The defense attorney’s allegations that the Cuban witness has falsified evidence come from an attorney in Tampa who represented Adel Ulloa, one of those accused of hijacking a Cuban plane in 1996. In a motion that Posada Carriles’ attorney presented in writing a few hours before the beginning of today’s court session, he says that he contacted Ulloa’s attorney in Tampa yesterday, and it was he who had informed Hernández that Cuba had falsified evidence in that case. Posada’s lawyer claims that the Tampa lawyer told him he has evidence that would impeach the Cuban witness, Roberto Hernández Caballero, but that “it cannot be divulged now for reasons of national security.”

Defense counsel did not identify the attorney with whom he spoke. But the electronic federal court records contain the entire legal history of the Ulloa case under a file number of 2:96-cr-0007. The only counsel retained by Ulloa (the others were court-appointed attorneys) is Rafael E. Fernández of Tampa, Florida. This attorney wrote a letter dated December 12, 1997 to Congressman Jim Davis, complaining that Roberto Hernández Caballero is “a counter-intelligence expert who tortures anti-Castro and dissident elements in Villa Marista, Cuba.” The allegation was made with no supporting evidence.

The Tampa attorney is Cuban-American and the author of a report about Cuba dated January 22, 2003. In it he maintains that “Fidel Castro is a terrorist,” an allegation that is also unsupported. Using that premise, the report goes on to conclude that Cuba is a terrorist state involved in drug trafficking. Since Posada’s attorney said that his friend from Tampa couldn’t divulge the basis of the allegations against the Cuban witness, we are left to wonder whether they have any foundation at all.

Is there meat on the bones?

“The accusations of Posada Carriles’ attorney rest on quicksand,” said Prosecutor Reardon. Judge Cardone said, “I don’t know if these defense allegations have any meat to them and I want to do the right thing.”

She ordered both sides to commit their arguments to paper, and she continued the case until after Valentine’s Day. The trial will resume on Tuesday, February 15, at 8:30 a.m. We will all be there.

José Pertierra practices law in Washington, DC. He represents the government of Venezuela in the case to extradite Luis Posada Carriles.
Translated by Machetera and Manuel Talens. They are members of Tlaxcala, the international network of translators for linguistic diversity.
Spanish language version:http://www.cubadebate.cu/especiales/2011/02/11/diario-de-el-paso-arenas-movedizas

By José Pertierra

For the first time in the history of the thorny relations between the two countries, the United States Justice Department used a Cuban law enforcement official as well as the findings of a Cuban investigation to prosecute a former CIA agent who led a decades-long terrorist campaign against Cuba. It’s true: the U.S. Government did not charge Luis Posada Carriles with terrorism or murder, but rather with denying that he had murdered and engaged in a campaign of terror. Even so, what is happening in El Paso is historic.

Still pending matters

Judge Kathleen Cardone took the bench at 9:00 a.m. sharp. We were all anxious. Yesterday defense counsel moved to continue the case to better prepare to cross-examine the Cuban witness. The defense also asked the judge to exclude from evidence any documents originating in Cuba. Attorney Arturo Hernández also moved to exclude the testimony of any witness that the United States government brought from Cuba. Judge Cardone promised us a decision on these motions by this morning.

Before convening the jury, the judge asked attorney Arturo Hernández to approach the bench. “Did you receive from the government the transcripts of the witness’ testimony in previous cases?” she asked him. “Yes,” conceded Hernández, “but the government has not given me the five Diplomatic Notes I asked for,” he complained.

Governments customarily communicate officially through Diplomatic Notes and Hernández insisted that he has the right to review the communications between Cuba and the United States. “The five Diplomatic Notes are not relevant to this case,” Judge Cardone ruled.

Her patience wearing thin, the judge then turned to Prosecutor Timothy J. Reardon. She asked him if he planned to qualify the witness as an expert. “Colonel Hernández Caballero will testify from his experience—his observations on the scene,” he responded. “He is here to establish that the bombing incidents in Havana occurred in 1997 and that he was present at all of the scenes except one,” Reardon added.

“And Dr. Ileana Vizcaíno Dime?” asked the judge. “She will testify about the autopsy she performed and the report she wrote,” answered Reardon, adding “as well as the photographs from the autopsy.” “The autopsy photos are not relevant,” objected Posada Carriles’ attorney. Hearing this last objection, Judge Cardone lost her patience. “Let me see if I am understanding you,” she said with annoyance. “You are opposing having the jury see the photos of the autopsy, because they’re not relevant?” she exclaimed, incredulous. “What do you think, Mr. Reardon?” asked the judge.

“This is a serious case,” answered the prosecutor. “The photos are relevant, because they corroborate the statement–I sleep like a baby– that Posada Carriles made to the journalist Ann Louise Bardach of the New York Times,” he said.

In an interview that Posada Carriles gave the New York Times on June 17, 1998 in Aruba, Bardach asked Posada about the death of Fabio Di Celmo. “It is sad that someone is dead, but we can’t stop…that Italian was sitting in the wrong place at the wrong time.” This morning, Posada Carriles’ attorney told Judge Cardone that these declarations to the New York Times were simply innocent “reaction and commentary regarding the death of Mr. Di Celmo.”

Attorney Hernández added that he is prepared to stipulate that Fabio Di Celmo died “at a certain time in a certain place, but not as to how he died.” He said, “There are no photographs of Di Celmo dying or being autopsied. We only have photos of his cadaver after the autopsy was completed.”

Meanwhile, the jury remained in the waiting room without the least idea of what was happening inside the courtroom. The judge finally announced her decision: she would allow the Cuban witnesses to testify and hold in abeyance a decision on the admissibility of the documentary evidence until she could hear testimony about it.

“Are you ready for the jury?” asked Judge Cardone.

With that question, the judge informed the defense counsel that she was denying his motion to continue.

Who is Roberto Hernández Caballero?

The long-awaited moment had arrived. The Cuban witness entered the courtroom. In a light-colored suit, pressed shirt and matching tie, Roberto Hernández Caballero strode confidently toward the witness stand. He is a 47-year-old Cuban law enforcement official who has spent the last 26 years performing criminal investigations on the island.

“My work is similar to that of an FBI investigative specialist,” he told the jury in response to the first question that Reardon asked him. He explained that he has “a degree in Legal and Criminal Sciences and is a specialist in criminal investigations.” He also confirmed having completed a number of graduate-level studies, including one in fire investigations.”

Through his testimony, the prosecutor wants to prove to the jury that bombs exploded in a number of hotels in Havana in 1997, and that they were linked. The prosecution does not want to use his testimony to prove that Posada Carriles placed the bombs or that he sent someone to place them—that will be established by other witnesses and documents.

The bombs of ‘97

Using several photographs that the Cuban government shared with the FBI in 1998, Reardon asked the inspector from Cuba’s Interior Ministry to identify the places where explosions occurred in 1997, beginning with the bomb that exploded in the Aché nightclub at the Meliá Cohiba Hotel on April 12, 1997.

“This hotel is in one of the most populous areas of Havana, in a tourist zone visited by a large number of people. It’s a very important hotel, close to the Hotel Riviera,” explained the Cuban inspector to the Texans on the jury.

“I went personally to the nightclub at 5:00 AM,” testified Hernández Caballero. He explained that when he arrived at the hotel, “the first thing I observed was the huge destruction, especially in the bathroom, and the alarm among the workers.” He testified that the explosion had destroyed the washbasins in the bathroom, shattered the urinals and torn through the walls and roof.

Reardon showed the jurors three photographs showing the condition of the Aché nightclub immediately after the explosion. The photos piqued their curiosity. I noticed that when Reardon showed them one of the photographs, some of the jurors tilted their heads. Why? I thought. I then looked at the courtroom monitor. The photo was placed sideways and Reardon scrambled to straighten it. Several of the jurors giggled uncomfortably in a brief moment of levity, in the midst of the evidence of the terrorism that Cuba has suffered for more than 50 years.

Reardon then showed the inspector another photograph and asked him to describe what he saw. The witness pointed to “the crater caused by the explosion.”

The explosives expert next to counsel

Posada Carriles’ attorney did not remain silent during the direct examination of the Cuban inspector. He raised objection after objection. The judge rejected almost all of them. With an even more strident tone of voice than usual, his interruptions annoyed the prosecutor, but they could not quiet the inspector, who described in detail the crime scenes depicted in the photographs.

Some of the objections from Posada Carriles’ attorney seemed ridiculous. For example, attorney Hernández objected to the inspector’s use of the words crater and explosion. “He is not qualified to make that evaluation,” said the defense counsel.

Remember that yesterday we reported that attorney Hernández complained that he had not been able to find an explosives expert who could help him examine the evidence. A reader of this Diary made a very astute observation, “Why doesn’t he get his own client to give him some lessons?” True enough. Posada Carriles is an expert when it comes to bombs. The U.S. Army trained him in the use of explosives at Fort Benning, Georgia, in 1962. It would be difficult for Hernández to find a better explosives expert than his own client.

What the witness wasn’t asked

The witness was not asked—and the jury does not realize—that Francisco Chávez Abarca confessed to having placed the bomb that exploded in the Aché nightclub in the Meliá Cohiba Hotel in April of 1997. At his trial, he confessed that Posada Carriles recruited him, trained him in the use of explosives, supplied him and paid him $2,000 for each bomb placed. Chávez Abarca said that Posada even “congratulated (him) for the bomb he placed at the Aché.” He is now a prisoner in Cuba, serving a 30-year sentence for terrorism. The prosecution wanted to depose him in Cuba, but Judge Cardone would not allow it.

The Cuban inspector went on to describe to the jury in detail the destruction he observed at the Hotel Capri and the Hotel Nacional in July of 1997. “The Hotel Nacional is Cuba’s most most iconic hotel, visited by presidents. It’s in the heart of the Vedado neighborhood,” he testified.

“When I arrived for the investigation, I observed the after-effects: the crater, the broken glass and the area where the telephones had been that was also destroyed by the explosion,” said the Cuban witness. The jurors took note and looked at the photos they were shown, including one from an explosion in the Meliá Cohiba Hotel on August 4, 1997 and at the Sol Palmeras Hotel on August 22nd of that year.

The murder of Fabio Di Celmo

But the photo that most impacted the jurors was the one of the lobby and bar at the Copacabana Hotel, shortly after the explosion that took the life of Fabio Di Celmo on September 4, 1997. Fabio was only 32 when he was killed.

The inspector from Cuba pointed to “a very large bloodstain amongst the wicker chairs.” He said, “you can see the blood from the person who was wounded by the explosion.” He further explained that the photo showed “the bar area, and in the right-hand corner, we can see where the ashcan that was destroyed had been.” “Shrapnel from the ashcan was propelled by the explosion,” he testified. “This was the main focus of the blast.” Reardon asked the inspector to circle the blood pictured in the photograph and then to date and initial the circle. The witness did. The prosecutor asked him to do the same with the spot where the blast occurred.

Reardon waited a moment to allow the jury to take their time examining the photos of the explosion at the Copacabana. No one dared break the silence. The courtroom monitors showed the blood spilled from Fabio Di Celmo at midday on September 4, 1997, and the jurors stared at the photograph in stunned silence.

I thought of Giustino, Fabio’s father—and also of Livio, his brother. I remembered the photo of Fabio playing soccer that Giustino proudly displays in the restaurant that carries the name of his son. The restaurant at 17th and J streets in Havana’s Vedado district. I must admit that I had to look away from the monitor. It was difficult for me to look at the picture of Fabio’s spilled blood.

I looked instead in the direction of the prosecutor’s table. The attorneys had a number of blue volumes before them. The black lettering on the white labels read: Caso volcán. I saw the ones marked Volumes II, III and IV. I do not know their contents, but they appear to be the records of the Cuban investigation into the terror campaign waged by Posada Carriles in 1997.

Colonel Hernández Caballero came to testify in El Paso at the invitation of the U.S. Government. He headed the investigation in Cuba into the 1997 bombings. The prosecutors wanted him to tell the jury about the findings of his investigation.

“Giustino was the one who identified the cadaver,” Hernández Caballero told the jurors. Hearing the word cadaver hit me in the pit of my stomach. Giustino has always told me that the reason he moved to Havana is because he feels his son’s spirit alive there. Fabio loved Cuba, and Giustino has made it his mission to keep his son’s memory alive. All Giustino asks for is that justice be done. All of Cuba knows this, but in the United States few people even know his name.
From his prison cell in Colorado, Antonio Guerrero wrote Giustino a poem. In it he tells Giustino, “Even death is full of life, when the cause is worthwhile.” It is painful to see Fabio as nothing more than a cadaver. But the photograph of the cadaver bears witness to his murder. A Salvadoran named Raúl Cruz León killed him in cold blood. But Cruz León was only the hired gun. The mastermind behind Fabio’s murder was Luis Posada Carriles.

“Posada Carriles prepared the explosives”

On July 1 of last year, Venezuelan authorities captured another Salvadoran, Francisco Chávez Abarca, at the airport in Caracas. He was on an Interpol watchlist, as he was wanted on first-degree murder charges in Cuba. Six days later, Chávez Abarca was sent to Cuba to answer for the murder of Fabio Di Celmo and for a string of bombings at hotels and restaurants in Havana in 1997.

At his trial in Cuba last December, Chávez Abarca confessed that Luis Posada Carriles prepared the explosives that Raúl Cruz León placed in the Copacabana.

“Posada Carriles prepared everything for Raúl Cruz León, and I delivered it,” said Chávez Abarca. “With his own hands, Posada also hid the C-4 explosives in the portable television that Cruz León took to Cuba in 1997,” he continued. Those explosives were the ones that killed Fabio Di Celmo.

The day after the murder of Fabio Di Celmo, Luis Posada Carriles made a call from Central America to his friend Paco Pimentel who was then living in Venezuela. Cuban authorities have a recording of the call in which Posada told his friend, “Paco, have you been keeping up with everything? You have no idea, three in a row in three hotels in Miramar, all well synchronized and without any possibility of detecting the messenger, and this is just the beginning. I promise you that more messengers are on their way to Cuba to execute new actions.”

Miramar is a comfortable neighborhood in Havana. Among its many hotels are the Copacabana, the Chateau Miramar and the Tritón. Three bombs exploded within a few minutes of each other on September 4, 1997 at these hotels. One of them killed Fabio. “All well synchronized,” said Posada Carriles in that recorded telephone call the day after.

In June of 1998, in an unprecedented collaboration between the two governments, Cuban authorities provided the FBI with the evidence it had compiled in the investigation conducted by Roberto Hernández Caballero, today’s witness in El Paso.

Although Posada Carriles is not on trial for murder, the jurors now know that a series of bombs exploded in Havana’s hotels in 1997 and that one of them killed Fabio Di Celmo.

Jurors don’t know that Chávez Abarca confessed to recruiting Raúl Cruz León—and that he did so at the behest of Posada Carriles. They also don’t know that Posada assembled the explosives and secreted them into Cruz León’s television set. They won’t learn about Posada’s call to Paco Pimental the day after the explosions.

The indictment establishes the parameters of this trial, and it charges Posada Carriles only with false declarations and perjury, yet the truth is seeping out.

Next week jurors will hear Posada Carriles in his own voice, boasting to Ann Louise Bardach and Maria Elvira Salazar, two journalists who interviewed him, that he has no remorse and that he is the mastermind behind the bombs in Havana.

Abrazos

Anyone who heard Roberto Hernández Caballero’s testimony today or saw the photos showing the effects of the explosions now knows the reason why the Cuban Five were sent to the United States: to penetrate the extremist Cuban-American groups responsible for a campaign of terror against the island. The FBI knew it from the beginning. So did the White House. Yet the Five were tried and convicted of conspiracy to commit espionage and were given long sentences in U.S. federal prisons, while Posada Carriles remains free to enjoy the trappings of a comfortable life in the United States.

Perhaps this case will mark a much-needed turning point. Posada Carriles ought to be in prison and the Five ought to be free.

I learned that Leonard Weinglass, one of the key attorneys for the Cuban Five, is seriously ill in a hospital in New York. Let’s send him millions of abrazos. Lenny needs them.

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

Translated by Machetera and Manuel Talens. They are members of Tlaxcala, the international network of translators for linguistic diversity.

By JOSÉ PERTIERRA

The first witness from Cuba to testify in the trial of Luis Posada Carriles in federal court in El Paso is Roberto Hernández Caballero. Accompanied by FBI agent Omar Vega, Hernández Caballero got there early and waited in a solitary chair in the hallway. His wait was for nothing, because today Posada Carriles’ attorney declared war against any and all evidence coming from Cuba.

After the defense attorney’s declaration of war, Judge Kathleen Cardone recessed proceedings until tomorrow (Wednesday) at 8:30 a.m. She said she needed to ponder whether the results of the Cuban investigation of the bombs that exploded in Havana in 1997, one of which killed Fabio Di Celmo in September of that year, may be evidenced in a U.S. court.

The Eagle

The door to Judge Cardone’s chambers is to the left of the judicial dais, behind an imposing wall of bronze. A closer look, however, reveals that the bronze wall is actually a tin partition, painted bronze. Appearances are important and often deceptive.

Attached to the tin panel is the official seal of the United States District Court for the Western District of Texas. Emblazoned in its center is a bald eagle draped in the flag of the United States of America. The eagle symbolizes empire. It represented the Persian and Roman empires, the kingdom of Charlemagne and Napoleon’s reign. According to Greek mythology, Zeus sent an eagle to eat the liver of the rebel Prometheus, who had disobeyed the gods and armed mankind with fire. I wondered whose liver this El Paso eagle might want to devour?

Morning chitchat

The prosecutors began their day in a private early morning meeting in Judge Cardone’s chamber. They had been reviewing documents and consulting amongst themselves, when Javier Martínez-the court clerk-emerged from behind the tin partition and told them that the judged wished to see them. At that precise moment, they had been looking over some of the exhibits they intended to show the jury today, including enlarged photos from the autopsy of Fabio Di Celmo. Martínez interrupted them and escorted them to the judge.

After meeting with the prosecutors, the judge called for a separate meeting with Posada Carriles’ lead attorney, Arturo Hernández. When the defense counsel reappeared, he called his team together and privately whispered the details of what had happened behind the tin partition.

Soon we all learned what the mystery was about: the so-called Cuban evidence.

Hernández: “I’m going to oppose everything”

I heard Hernández tell Prosecutor Timothy J. Reardon, “I’m going to oppose everything, except for the translations.” Just a few minutes later, Judge Cardone entered and announced that she was going to dismiss the jury until tomorrow, because “we have to attend to some important matters.”

She turned to Hernández and asked him to approach the podium and make his legal objections concerning the evidence. “I move that you exclude the use of all the documents originating in Cuba,” said Posada Carriles’ defense attorney. He alleged that he received 6,000 pages of documents from the prosecution only two months ago, and “I’ve not had the time to review them,” he said.

He also asked that the court disallow the testimony of the Cuban experts. The prosecution had announced its intention to call as witnesses Lieutenant Colonel Roberto Hernández Caballero, a member of Cuba’s Interior Ministry, who personally investigated the bombing campaign against Cuba in 1997, Major Misael Fonte, an expert from the Central Criminal Laboratory in Havana with 18 years of experience at that lab, and Ileana Vizcaíno Dime, the forensic pathologist who conducted the autopsy of Fabio Di Celmo and concluded that he had died as a result of shrapnel, hurled from an explosive, that had severed his jugular vein.

Hernández further argued that for him to properly cross-examine Dr. Vizcaíno Dime about the autopsy, he first needed to consult a forensics expert he trusted: Dr. Ron Wright, from Broward county (the county next door to Miami-Dade). “Dr. Wright is my preferred forensic expert. The problem is that right now he has a scheduling conflict,” he continued.
“The witness Roberto Hernández Caballero is much more than a policeman,” said Posada Carriles’ attorney, insinuating that he is an agent for Cuban state security. “The Cuban intelligence apparatus is within the Interior Ministry, where Mr. Hernández Caballero works,” he added.

“Can you give me an example of how your defense would be unjustly damaged by the use of the Cuban documents and witnesses?” the judge asked. The attorney faltered. He stammered a bit and then thought to say, “It’s that I’ve not been able to find an explosives expert to help me. I don’t know anything about explosives. It’s not fair.”

Judge Cardone thanked him and invited Reardon to approach the bench and respond to defense counsel’s objections.

The Boy Who Cried Wolf

Reardon began by comparing Hernández’s allegations to an Aesop’s fable, “The Boy Who Cried Wolf,” about a shepherd who cried, “the wolf is coming, the wolf is coming!” Truth be told, no wolf was coming and the shepherd knew it. “The defense counsel is crying wolf,” said the lead government counsel.

“Posada Carriles’ attorney is exaggerating about the amount of Cuban documents that we are thinking of using,” said Reardon. “Really we are arguing about thirty pages of documents, seven of which are the autopsy report,” said the prosecutor. He explained that the government had invited the defense’s legal team to go with him to Cuba to examine documents and speak with the Cuban experts, but that defense counsel had chosen not to go. “This is a very sophisticated defendant and a sophisticated defense counsel,” said Reardon. The prosecutor pointed out that “it was surely a mistake on the part of the defense not to go to Cuba, but it was a tactic with which they have to live.”

Hernández: “There is complicity between the CIA and Posada”

Posada Carriles’ defense counsel asked to be heard, yet again. “The prosecution has not given me the documents that I have been requesting for some time: the CIA records that show that Posada Carriles received instructions from the U.S. intelligence agency to keep quiet.”

Although he explained that he could not offer more details without violating the attorney-client privilige, Hernández announced that “Luis Posada Carriles lied about his false names, because they were given to him by the CIA…There is a complicity between the CIA and Posada Carriles about the aliases,” concluded Hernández.

Hernández also insisted that he needed to review CIA documents regarding the payments the agency made to his client over the years, his involvement with the CIA until 1996, as well as documents from the CIA that detail his years as chief of special operations for the Venezuelan secret intelligence agency, DISIP.

“My client had CIA authorization to use aliases,” said Hernández.

The previous testimony of Roberto Hernández Caballero

Posada Carriles’ attorney insisted that the government provide him with a copy of the witness’ past testimony in a federal case in Tampa in 1997. That case involved three Cubans who had been accused of hijacking a plane from Cuba: José Roberto Bello, Leonardo Reyes Ramírez and Adel Given Ulloa. The plane crashed into the sea before it could land in the United States. A Russian ship rescued the alleged hijackers and brought them to Florida. They were charged with hijacking and were acquitted on July 17, 1997. The three were later granted asylum.

Hernández also wants the government to provide him the transcript of the witness’ testimony in 1991, during the trial of the Cuban Five in Miami, as well as five Diplomatic Notes that were exchanged between the United States and Cuba during this period-allegedly related to Luis Posada Carriles.

“The Diplomatic Notes are not relevant” to this process, said prosecutor Jerome Teresinski. “Attorney Hernández simply wants to put Cuba and Fidel Castro on trial here in El Paso. This case is about perjury, nothing more,” Teresinski said to the judge. Teresinski explained, “the Cuban evidence is simply to establish that the bombs did explode in Havana in 1997.” “We have other evidence that establishes that Posada was involved in this bombing campaign and subsequently lied about that,” he argued.

Hernández asks for a continuance

Finally, Hernández asked Judge Cardone for a continuance until the prosecution could provide him the transcripts from the Cuban witness’s previous testimony in Tampa and Miami, plus the five Diplomatic Notes that he says were exchanged between Cuba and the United States. “Even just for one week,” he said, “I need you to continue this case.”
Having heard legal arguments from both sides, Judge Cardone said that tomorrow, Wednesday, at 8:30 a.m., she would render her decision. She warned all parties to arrive at court prepared, because if she decides not to continue the trial, she will immediately convene the jury and hear the testimony of Roberto Hernández Caballero, the first witness from Cuba that the government will present. We shall see.

What is all that dust blowing toward El Paso?

We left the courthouse a bit earlier than usual, finding a sunny afternoon with temperatures in the high 60s. But a few minutes later, a giant dust storm blew in, driven by nearly 45-mile-an-hour winds from Juarez to El Paso. As I watched the storm from the window of my hotel room, I thought of Pancho Villa. That’s probably how the dust the Mexican cavalry kicked up must have looked in 1916, when the Villistas invaded-trying to take back the 568,036 square miles that the bald eagle of the United States had snatched from Mexico. Not so long ago.

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

Translated by Machetera and Manuel Talens. They are members of Tlaxcala, the international network of translators for linguistic diversity.

Spanish language version:http://www.cubadebate.cu/noticias/2011/02/09/diario-de-el-paso-guerra-contra-evidencia-cubana

The trial of Luis Posada Carriles in El Paso stands now al filo del agua-on the eve of a major storm. I’m not talking about an Arctic storm like the one that hit this border town last week, causing power outages and even problems with our potable water, due to the record-breaking cold-minus 4 degrees Fahrenheit. The storm that will probably arrive tomorrow in El Paso is of another nature.

The great Mexican writer, Agustín Yáñez, said “al filo del agua is a campesino expression, meaning the immediate moments before the rains.” In a figurative sense, it means the coming of a major storm.

Tuesday

This Tuesday we get to the heart of the matter: the evidence and testimony related to the campaign of terror that set off bombs in a number of hotels and restaurants in Cuba in 1997. One of these killed an Italian businessman, Fabio Di Celmo, in Havana on September 4, 1997 at the Copacabana Hotel.

Up to now, the case has involved only the immigration infractions of Luis Posada Carriles’ illegal entry into the United States. The prosecution alleges that he arrived on the Santrina, a converted shrimp boat, and disembarked in Miami. Whereas the defendant says that a smuggler drove him into the country in a blue pickup truck that crossed the Mexican/U.S. border at Brownsville, Texas. No one doubts that he entered illegally, but the prosecution maintains that Posada lied to protect his coconspirators aboard the Santrina. It’s a very serious felony to smuggle a terrorist into the United States. Punishment could include up to 30 years in prison. We also heard testimony and looked at evidence of Posada Carriles’ use of false names, including one that appears next to his photograph in a Guatemalan passport.

The Cuban witnesses

As the case moves towards its dénouement, we turn to the next chapter. Already in El Paso and prepared to testify, are three Cuban experts who investigated these crimes in 1997:

1. Lieutenant Colonel Roberto Hernández Caballero, the only Cuban witness in the case of the Cuban Five in Miami in 2000/2001.

2. Major Misael Fonte, from the Central Crime Lab in Havana, with 18 years of experience as an expert there.

3. Dr. Ileana Vizcáino Dime, the medical forensic pathologist who examined the body of Fabio Di Celmo and found that the cause of death was a piece of shrapnel hurled from an explosive device that slashed his jugular vein.

But the United States is not accusing Posada Carriles of terrorism or murder. He stands indicted only for making false statements to U.S. Immigration authorities and committing perjury. However, much of Posada’s mendacity, under oath, is closely related to the bombs that were placed in Havana’s hotels in 1997 and to the murder of Fabio Di Celmo.

Three weeks ago, a jury in El Paso listened to a recording and clearly heard Posada Carriles tell an immigration judge in 2005 that he was not involved with the bombs that exploded in Havana in 1997, nor had he sent anyone with explosives from Central America to Cuba in that year.

Now the jury will hear that there was indeed a terrorist campaign that shook Havana 14 years ago.

Cuba delivered four files of information containing samples of the materials used for the explosives, videos with statements from eyewitnesses and from those arrested and transcripts of telephone conversations of those who perpetrated the terrorist acts. Cuban law enforcement officials taped some of these conversations.

Hernández: “The source is rotten”

What is Posada Carriles’ attorney’s strategy for confronting the testimony from the Cubans? In an interview that Posada Carriles’ attorney gave Channel 41 in Miami two months ago, Arturo Hernández outlined his opposition to the witnesses and to the Cuban evidence. “The problem is that the government’s proof comes from Cuba, and since the source is rotten, the evidence is rotten,” he said.

Judge Kathleen Cardone has prohibited the attorneys from giving interviews to the press while the case is being litigated. On August 25, 2009, Judge Cardone told the lawyers, including Hernández, that they must not make statements to the press that might influence the jury. This restriction was also placed upon Posada Carriles.

Hernández’s statements on Channel 41 caused a brief stir in court last week, when prosecution attorney Teresinski complained that Hernández had given an interview to that television station. Hernández told Judge Cardone that he’d only gone on the program to raise funds for the costs of litigating the case.

The video reveals that in an interview that lasted 11 minutes and 55 seconds, Hernández dedicated only a minute and a half to soliciting money. The rest of the interview is a frontal attack on the Cuban witnesses and evidence.

For example, in reference to the Cuban witnesses and without first listening to their testimony, Hernández already prejudged it. “There cannot be any truthful testimony while these individuals [the witnesses] are in the claws of the dictatorship of Fidel Castro and Raúl Castro…[In Cuba] there’s no truth. There, only the dictator’s truth exists. No statement that might come from Cuba is worth anything at all, in my opinion,” he said to the Channel 41 reporter.

It’s obvious that Hernández will brand the Cuban witnesses as nothing more than puppets of the Cuban government, as well as liars. I wouldn’t be surprised to hear him say that they are spies. Miami Cubans love to go down that road.

Thomas B. Wilner, an attorney with the law firm of Shearman & Sterling in Washington, DC, told me that the statements Hernandez made on Miami television are a possible violation of the rules of conduct that Judge Cardone imposed on the attorneys. “What Hernández said in that interview was designed to undercut the testimony, the evidence and the verdict,” said Wilner. “The prosecutor ought to raise this with the judge and tell her the details of what he said on Miami television,” he concluded.

During the interview with Channel 41, Hernández said, “I admire [Posada Carriles] as a Cuban patriot.” He did not explain why he admires him. The U.S. filmmaker Saul Landau commented, “if Posada has done nothing, why is he so admired and why do they pay him so much homage in Miami?”

The battle over the passport: Act Two

As a prelude to the gathering storm, today’s session began with motions from the prosecutors and the defense attorneys. Posada Carriles’ attorney, Rhonda Anderson, asked Judge Cardone to reconsider her decision last Friday to admit the Guatemalan report as evidence. This report also includes a copy of the Guatemalan passport with the photo of Posada Carriles, but under the name of Manuel Enrique Castillo López.

The prosecutors also moved for reconsideration. They argued that the judge should accept the original Guatemalan passport into evidence, since she had already accepted the copy as evidence.

Judge Cardone rejected the motions from both sides in less than two minutes and convened the jury.

ICE official: “I never searched the Santrina”

Attorney Arturo Hernández cross-examined Steven Usscher, an investigator from U.S. Immigration and Customs Enforcement (ICE) who also testified on Friday. He managed to get Usscher to tell the jury that he had never carried out an inspection of the Santrina to find evidence that Posada Carriles had been on the boat. He said that he has no photographs or other evidence of the presence of Posada Carriles aboard the boat. Usscher, however, was not assigned to the case until a year after the Santrina is alleged to have brought Posada to Miami.

Prosecutor Reardon

The prosecutor, Timothy J. Reardon, then called the next witness, James Patterson, of the United States Citizenship and Immigration Service (USCIS) office in El Paso. Despite heading up the government’s legal team, Reardon has until now allowed his colleagues Jerome Teresinski and Bridget Behling to conduct most of the direct examination.

Reardon exudes personal presence. He dresses with elegance in pinstriped suits, starched white shirts, colorful ties and a white handkerchief tucked into his breast pocket. As the famous tango says, las nieves del tiempo blanquearon su sien, “the snows of time whitened his temples.” He is eloquent yet knows how to get directly to the point.

When the members of the jury realized that he would be in charge of Patterson’s questioning, they took notice, sat up straighter, took out their notebooks and pencils and readied themselves to take notes.

But they had to wait a bit for the direct examination to begin. The defense attorney, Felipe Millán objected to Patterson’s testimony. “It’s cumulative testimony,” said Millán. “Patterson has nothing to do with the Posada case. “Officer Bolaños already testified on the same points. She was the person who interviewed Posada in 2006 in relation to his naturalization application,” he told the judge.

“No,” said Reardon. “Mr. Patterson will testify to complete the record.” Reardon argued “the defense´s cross-examination of Bolaños insinuated that the naturalization interview was an attempt to entrap Posada.” Patterson, he said, “destroys the myth that there was a government conspiracy against Posada.”

The judge overruled Millán’s objection and asked Reardon to begin his direct examination of Patterson.

Patterson did not testify about anything of substance. He said he has almost 13 years of experience and has performed some five or six thousand interviews in naturalization cases. Patterson said that “naturalization officers are obligated to interview each applicant personally in order to determine whether they are eligible,” thus debunking the defense theory that the interview had been a pretext for entrapment. Hearing what he wanted to hear, the prosecutor concluded his direct examination.

The expressions on the faces of the jury members showed their disappointment. They had wanted to hear something substantive: important evidence. They were frustrated that the witness was only called to establish the bureaucratic procedures at USCIS.

The jurors don’t realize it yet, but tomorrow they will hear substantive testimony. Although it has not been announced, I am sure that the person who will examine the Cuban witnesses will be Reardon. It’s a question of the importance of the testimony but also one of protocol. The witnesses are here at the special invitation of the government of the United States, and it is logical that lead counsel will conduct the direct examination.

Historic collaboration

When in 1998, Cuba gave the United States evidence regarding terrorist acts on the island, Washington used it to jail the Cuban Five. None of the terrorists was prosecuted or arrested. It would appear that a new paradigm of collaboration between the two nations is at work here.

Posada Carriles’ attorney commented to Channel 41 in December that “it’s scandalous that the government of the United States is collaborating in this unprecedented way with the Cuban government.” Among certain extremist sectors in Miami that collaboration may be seen as a scandal, but it is important and historic.

For the first time, the United States is showing a willingness to establish before a federal court that Posada Carriles directed a terror campaign against Cubans with the financing of certain terrorist groups in Miami and New Jersey. It’s true, until now he has only been indicted for lying, but beginning tomorrow, there is much, much more at stake in El Paso.

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

Translated by Machetera and Manuel Talens. They are members of Tlaxcala, the international network of translators for linguistic diversity.

Spanish language version:http://www.cubadebate.cu/opinion/2011/02/05/el-diario-del-paso-la-batalla-del-pasaporte/