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The Fear, the Courage and the Bomb

by JOSÉ PERTIERRA

Luis Posada Carriles’ attorney dedicated the entire day to the cross-examination of Gilberto Abascal, the witness who testified that he traveled to Miami on the Santrina with Posada in March of 2005. The interrogation went on far too long, despite what appeared to be only three questions, asked about 300 different ways.

Fed up, an exasperated Abascal snapped: “I’ve answered that question 300 times and you keep on repeating it.” He complained in that vein a number of times, but Arturo Hernández was not to be dissuaded and continued his stubborn grilling, to the point of exasperation.

The Three Questions

Hernández had promised the jury two weeks ago that he would prove that Abascal is a liar and a thief. That he has serious mental problems and that, furthermore, he’s a spy for the Cuban government. It’s a timeworn strategy. If an attorney doesn’t like the testimony, the first thing to do is to establish him as a liar. It’s even better if he can unmask the witness as mentally unstable and a thief. The thing is to damage the credibility of the witness before the eyes of the jury.

Abascal is key to a conviction on the perjury charges against Posada Carriles. His testimony directly contradicts the declarations that Posada Carriles made under oath regarding his manner of entry into the United States in March of 2005. That’s why Hernández must try and impeach him. The prosecutor knows this, and that is why he had Abascal air his dirty laundry on direct examination: that he underreported his income to several government agencies, including the IRS, and that he suffers from depression.

Hernández had three lines of questions today: (1) that Abascal lied to the government about his income, (2) that he received $90,000 in ten checks of $9,000 apiece in order to avoid having to declare the income on his tax return and (3) that he suffers from mental problems.

Who does Gilberto Abascal fear?

Abascal admitted that he suffers from “insomnia and depression,” and said that he doesn’t leave the house at times, because he is afraid. “Who are you afraid of?” asked Posada Carriles’ attorney? “Of you, because you’ve been watching me for six years,” Abascal responded.

Hernández asks the judge to declare a mistrial

Immediately, the prosecutor stood to complain that Hernández was “harassing and hounding the witness in order to confuse and obfuscate the jury.”

“It’s not appropriate for Teresinski to accuse me of harassment. I was only asking the witness about his mental health,” replied Hernández. “Furthermore, Abascal’s personal statements against me put me in a highly disfavorable (sic) light in front of the jury, I therefore move for a mistrial,” he argued.

It’s the second time thus far that Hernández has asked the judge to declare a mistrial.

The jury was noticeably disturbed by the delays. Since the morning session, certain incidents should have served as a warning that the session was heading toward this awkward situation. Timothy J. Reardon, the prosecutor heading the government’s legal team, had warned the judge that certain of Hernández’s questions were designed so that the jury “would sympathize unduly with his client. They contain inappropriate references to Posada Carriles’ age and the possible sentence he might receive.”

Teresinski suggested that Hernández’s questions were a search for “sensationalism.” Reardon and Teresinski complaint is the same: that Posada Carriles’ attorney has a prefabricated script for turning the trial into theatre, and that is against the law.

The Fear, the Courage, and the Bomb

The prosecution confirmed that Abascal “has been under surveillance for six years.” Teresinski said that for the witness “to have the courage and temerity to say in open court that he is afraid is commendable.”

No one mentioned that four years ago, Abascal discovered a bomb in his pickup truck. The Associated Press reported on January 18, 2007 that Abascal detected an explosive device and called the Hialeah police. A team of explosives specialists from Miami-Dade County detonated the bomb.

The Judge’s Decision

Judge Kathleen Cardone, visibly upset, admonished both lawyers for their interruptions, complaints, and motions.

Judge Cardone rejected Hernandez’s motion for a mistrial but warned the prosecutors that she had no intention of limiting the wide latitude a defense attorney enjoys on cross-examination. “Sometimes emotions may get heated,” the judge told the attorneys, “but I’m not going to impose limits on Mr. Hernández about what he may ask Mr. Abascal.”

She threatened to sanction the attorneys if they continue to interrupt the natural flow of the trial. “I’ve been presiding over litigation in the courts for more than 20 years,” said the judge, “and I’m concerned about the number of objections and sidebars.”

At this rate, the trial could last several more weeks. Today for instance, one of Posada’s attorneys asked the judge to assign an additional day off each week – apart from Saturday and Sunday – in order to make the necessary arrangements to bring witnesses to El Paso.

“We have a list of 38 witnesses, Your Honor,” said Arturo Hernández, “but we’re not going to call all of them. Maybe only ten,” he explained. The prosecutors announced that they still have a few more witnesses and that the trial will take two more weeks. Hernández said that he could complete his part of the case in one week.

That means that under the best of circumstances we still have three more weeks of litigation. Tomorrow we begin at 9 o’clock in the morning. We expect more questions for Abascal about his mental health as well as about his supposed relationship with the Cuban government. Hernández has yet to question Abascal about Luis Posada Carriles’ trip from Isla Mujeres to Miami aboard the Santrina. I believe that we’ll have Abascal around for a while.

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

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

Spanish language version: http://www.cubadebate.cu/noticias/2011/01/27/diario-de-el-paso-abascal-para-rato/

 

José Pertierra is an attorney in Washington, DC.

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