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The Cross-Examination of Ann Louise Bardach

by JOSÉ PERTIERRA

The lawyer representing Luis Posada Carriles has a reputation for aggressive and effective cross-examination.  Today his job was to question one of the case’s star witnesses: Ann Louise Bardach.

Anticipating the moment, some of the jurors leaned forward when Arturo Hernández approached the witness stand this morning.  The African-American in the second row exchanged a knowing look with the Chicano on his right, who was rubbing his hands together with the look of a child about to devour an ice-cream cone.

Annie’s books

Bardach is not an easy witness.  She’s eccentric, unpredictable and capable of almost anything on the stand.  For example, before the defense attorney’s cross-examination, the prosecutor, Timothy Reardon, questioned her at length.  Witnesses are not allowed to have books or other documents on the stand, while they are testifying.

“Did you speak with Luis Posada Carriles in 2005?” asked the prosecutor.

As though direct examination were a television interview in a book promotion tour, Bardach suddenly lifted a book from her lap that no one was aware of her having taken to the witness stand.  “Yes. Posada was reading my book.  This book, Cuba Confidential!”

Some of the jurors laughed out loud.  Witnesses ordinarily never do these kinds of things in court and the jurors knew it.  But Bardach wasn’t finished.  Still holding the book up, she showed it to the jurors and said, “Posada told me, ‘qué bueno!’”

Prosecutor Reardon’s face flushed.  He asked his assistant for a label and hastily marked Bardach’s book with an exhibit number.  He had no choice.  The rules require it, he said, because the witness had referenced the book while on the stand.

But things didn’t end there.  Anything marked as an exhibit becomes part of the case until its conclusion.  Therefore Reardon asked Bardach for the book.  Annoyed, she handed him Cuba Confidential.  Who knows when she’ll see it again.

FBI Agent Jorge Kiszynski

Reardon played parts of the recorded interview between Bardach and the defendant to the jurors.  The first part was about FBI Agent Jorge Kiszynski, who worked for the Bureau for 33 years on drug trafficking and international terrorism cases.

Kiszynski had interviewed Posada Carriles in 1992 for a congressional investigation into his activities related to the Iran-Contra scandal, and Posada Carriles considered him a good friend.

“That FBI man is a good friend of mine,” Posada Carriles was heard to say on the tape.  “The FBI and the CIA don’t bother me.”

“Whatever they [the FBI agents] ask you, you’d try to do?” asked Bardach. “Of course, why not?” Posada Carriles replied.

“La Cota”

The next clip the prosecutor played for the jury included a conversation about a friend of Posada Carriles known as “La Cota.”  The jury doesn’t know it, but “La Cota” is the nickname of Ángel Manuel Alfonso Alemán.  He was the vice president of a militant organization in New Jersey called the Coordinate of Former Cuban Political Prisoners.

“La Cota” was arrested aboard the La Esperanza yacht in 1997, on his way to Isla Margarita, allegedly to assassinate Fidel Castro during a presidential summit that was to be held there.

The U.S. Coast Guard intercepted the vessel at sea and discovered several high-powered weapons aboard.  “La Cota” told the Coast Guard agents, “These weapons are mine.  The others don’t know anything.  I put them there myself.  They are weapons to kill Fidel Castro!”

Though details about the Esperanza case were kept from the jurors in El Paso, they were allowed to listen to Posada Carriles confirming to Bardach that La Cota had sent him money through Pepe Álvarez.

La Cota worked for Arnaldo Monzón Plasencia, one of the principal financiers of the conspiracy to detonate the bombs in Havana.  When Bardach mentioned the name La Cota, Posada Carriles remembered his friend and laughed.  “La Cota is very brave.  He was a prisoner for 18 years.”

The jurors, however, don’t know whether La Cota was a common criminal or a Cuban version of Nelson Mandela.  They are also unaware of La Cota’s role in the conspiracy to murder Fidel Castro on Isla Margarita.

What do the jurors make of this name they heard on the recording?  Why is Posada Carriles happy to hear his name?  Do they think that La Cota is somebody with whom the defendant used to play dominoes or that he is a partner in crime?

The legal system places blinders on jurors, preventing them from seeing, hearing or learning about things that are essential to placing the evidence in context, yet it is the jury who decides the defendant’s guilt or innocence.

Yet another motion for a mistrial

The prosecutor played the jurors another three-and-a-half minute clip from the Bardach interview.  This one captured their conversation about passports.

Wanting to put the conversation in context, Bardach turned to the jurors and explained, “He had different passports.  He came to the United States under the radar due to the problems he faced in other countries …,” she was cut off by the defense counsel before she could finish.

Attorney Hernández moved for a mistrial:  his thirteenth such motion since the trial began.  He argued that if the jurors learned that Posada Carriles faced legal troubles abroad it would be prejudicial to his client.

The Judge admonishes Bardach

Judge Kathleen Cardone overruled the motion, but admonished the witness.  Looking sternly at Bardach she said, “This is not about telling stories.  It is a trial.  We want to be sure that the trial is fair under the rules of evidence and procedure.  Your background stories are not for this jury.  Every time you add things that are not asked, you go into an area that this court and these lawyers have spent years deciding what can come in as evidence.  You need to listen to the question and answer the question.  You are not to make commentaries.”

Bardach looked embarrassed.  She told the judge that it had not been her intention to cause any such problem.

The jury was reconvened and direct examination resumed.  Bardach answered the Government attorney’s questions as if in a straitjacket.

Without the benefit of Bardach’s explanations, the brief clips of the interview seemed disjointed.  Posada Carriles was heard to say, “One has to be careful with telephones.  Look what happened to me with the fax.”

Bardach testified that the fax (without daring to say Posada was referring to the Solo fax) had the phone number the fax had been sent from at the top of the paper: 503-221-9849.  But she didn’t know whether 503 was the country code for Guatemala or El Salvador.  Maybe the jurors know, but no one told them so in court today.

Advance obituaries

Reardon then asked Bardach if she works as a CBS News consultant. “Well, I’m a consultant with CBS for the day Fidel Castro dies.  However, I’ve already done the obituary for many other news organizations beforehand, because the moment that he is confirmed dead I can only talk about it with CBS News,” she answered.

She said she had interviewed Castro twice.  “Getting a world leader is very hard,” she said.  “It’s called ‘getting a get’.  Vanity Fair told me to go down there [Cuba] and get Fidel Castro.”

Bardach provided little detail about the interview.  She wanted to follow the judge’s instructions and only answer the questions she was asked, though she showed her frustration by grimacing and rolling her eyes.

Cross

Attorney Hernández approached the witness stand to begin what everyone expected to be an extended cross-examination of one of the Government’s star witnesses.  But Bardach seemed preoccupied with having her book returned.  She turned to Judge Cardone and said, “Mr. Reardon still has my book and has not returned it to me.”  Before the surprised judge could respond, Bardach looked at the prosecutor and said, “I need my book. You have my book.”

“Ms. Bardach,” the judge scolded, “you don’t need to have it up there while you testify.”

The defense attorney didn’t know whether to laugh or complain to the judge about Bardach’s disruptions.  He shuffled his papers, adjusted his glasses and tried to continue, “None of Posada Carriles’ answers to your questions in Aruba were under oath, right?”

“Of course not,” snapped Bardach. “It was an interview, not a trial.”

“Yes, he did in a hundred ways”

Attorney Hernández didn’t waste any time in getting to his point. “During your interview, Mr. Posada never admitted explicitly to the bombing campaign.  Is that correct?” the defense attorney asked.

“Yes, he did, yes, he did—in a hundred ways.  He was very proud of it, of what had been his success, he was proud of everything except the death,” Bardach answered firmly

The relentless defense attorney pressed on.  “Isn’t it true that Posada never admitted to you that he was the mastermind of the bombing campaign?”

“Yes, he did,” she said.  “Mr. Posada told me, ‘I’m el jefe.  I know everybody, but they don’t know me.’”  Bardach added, “During this whole process, I have tried to protect your client as much as I could.”

That infuriated Hernández.  He turned red, raised his voice and in a threatening tone asked the witness, “Did I hear you correctly?”  He then shot off a series of questions premised on the notion that Ms. Bardach had based her entire career as a journalist on the interview she did with Posada Carriles in 1998.  She corrected him and recounted several of her many achievements and accolades as a prize-winning journalist.

Finally, she had heard enough from the defense attorney.  She said sharply, “Listen, Mr. Hernández, there are many journalists who have written about your client in a much more pejorative and damning way than me and you know it.”

Bardach then took out another of her books, Without Fidel.  She’d somehow gotten past the watchful eyes of the marshals.  She held it up and tried to say something about it, but Judge Cardone had it taken  away before the Court was forced to mark it as an exhibit.

I don’t know who was more frustrated at that point:  Bardach for having to answer so many questions without the use of her books or attorney Hernández for having failed to accurately fix her in his sights.

Posada has a very unusual profession

The defense attorney tried another line of attack against Bardach.  He pointed out to the witness that Posada Carriles had recanted some of the statements he had made to her and that he denied others.

“Look, your client had to do it.  He is in a very unusual profession,” Bardach answered, referring to Posada’s notorious career in the CIA.

The judge announced a brief recess, and Bardach went out to the corridor although not before greeting Posada Carriles who was holding Without Fidel in his hands.  “He’s reading my most recent book,” she said proudly. “I autographed it for him, just as I did with the first one.”

The show

When we returned from the break, Posada Carriles’ lawyer changed his routine.  He wrote the following words and phrases in large capital letters, each on a separate piece of paper.  Then he showed them to the jurors on the projector:  “SOLICITATION”; “ARRANGEMENT”; “I WROTE THE SOLO FAX.”

“Ms. Bardach, I am going to play a long section of the recorded interview—not the clips—the one that is two hours long.  I want you to tell me when you hear any of those words or phrases.”  It was the histrionic attorney’s version of litigation: the courtroom as theater.

Bardach didn’t want to be played for a fool and immediately shot back, “I’ve already told you everything you need.  You don’t have to play the whole tape and waste everybody’s time.  Posada didn’t use those words.  I asked him whether he wrote the Solo fax and he said yes.  I don’t use words like solicitation and arrangement.  You do.  I don’t,” an irritated Bardach told Posada Carriles’ attorney.

Hernández ignored her and asked his colleague Rhonda Anderson to switch on the recorder.

The time passed and my hair whitened

For the next few hours, the jurors listened to the defendant’s conversation with Bardach in June 1998 in Aruba.  The interview ranged from the bombings in Havana to the CIA, the Bay of Pigs and the murder of Fabio Di Celmo.

They heard Posada Carriles tell Bardach that it had taken him only “one or two months” to plan the bombings in Havana.  That part of the interview was recorded in a crowded restaurant.  In the background, if the jurors listened carefully, they could hear a trio singing a famous bolero of days-gone-by.

Mi cabello blanqueó, ya mi vida se va—ya la muerte me llamaaaa. [My hair turned white, my life is leaving me, death is calling meeeee], sang the trio as Posada Carriles recounted the military operations he had carried out against Cuba for the past fifty years.

Before leaving the courtroom at the close of the day’s proceedings, Bardach packed up her books and the transcript of the interview and put them in her purse.  She got as far as the first floor, where prosecutor Jerome Teresinski and FBI agent Omar Vega intercepted her.

Vega took out handcuffs and told her to put her hands behind her back.  Bardach didn’t know whether to laugh or cry until she realized that it was a joke that contained a not-so-subtle message.  Bardach was forced to turn over the book and the manuscript.  Teresinski told her she could have them back when the case was over.

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/2011/03/19/diario-de-el-paso-bardach-vs-hernandez-primer-round

 

 

 

José Pertierra is an attorney in Washington, DC.

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