The Tip of the Iceberg

Several heated clashes between the defense and prosecution attorneys dominated the morning session in the seventh day of Luis Posada Carriles’ trial in El Paso. Before Judge Kathleen Cardone convened the jury, prosecutor Jerome Teresinski outlined a number of complaints about the behavior of Arturo Hernández – Posada’s defense lawyer – during yesterday’s cross-examination of Officer Susana Bolaños from the Department of Homeland Security.

“We ought to be carrying out a search for the truth, not a misrepresentation of it,” said a quite irritated Teresinski. “Yesterday attorney Hernández left the jury with the impression that the United States Government ambushed his client,” he explained. Teresinski argued that, by the questions Hernández posed to Officer Bolaños, he was able to unfairly insinuate things that are not in evidence to the jury.

“Mr. Hernández used certain words loaded with emotion and prejudice, solely to project the idea to the jury that “the Defendant´s will was overborne by the government”, insisted Teresinski. “The United States believes that yesterday Defense Counsel left a misrepresentation with the jury who now thinks that Mr. Posada was not free to answer truthfully or to decline to respond to questions”. In fact, Teresinski maintained, “Mr. Posada did refuse to answer several questions and even invoked the 5th Amendments several times.”

A SWAT Team of Lawyers?

The language that Hernández used yesterday that got Teresinski´s dander up were words such as “coercion” or “overwhelmed”, when referring to the interviews DHS conducted.

For example, when he questioned Bolaños during yesterday’s afternoon session, Hernández asked her about the “coercion” used by DHS against Posada. Teresinski was particularly upset with Hernández´ hyperbole, such as asking Officer Bolaños about the “overwhelming 57,000 questions” she and other government attorneys allegedly asked Posada in two days of interviews.

All of us that were in the courtroom yesterday heard Hernández refer to his client several times as “Mister P,” and that Posada is an elderly 78-year-old man (the interviews were done four years ago), also that he was ambushed by a special unit of the Justice Department which he referred to as “a SWAT team” (we can only guess whether he made this remark intentionally or not). SWAT is an acronym standing for Special Weapons and Tactics, an elite police group that uses military firearms and special tactics in police operations of great danger. They usually overcome their targets with overwhelming weaponry and force.

After having characterized Posada’s interrogators in 2006 as “a SWAT team,” Hernández immediately corrected himself and alluded to them by their correct name: the National Security Division of the Justice Department. It’s a group of lawyers and investigators. They don’t carry firearms, and they are not dangerous.

However, what is said is said. The jury heard it and probably went home with the false sense that the powerful United States Government ambushed Attorney Hernandez’s elderly client, Mister Pi.

The prosecution moved that Judge Cardone’s allow the jury to hear Posada invoking the 5th amendment and refusing to answer questions. Teresinski wanted to show that Posada’s will was not in any way “overcome” by any alleged ambush and that Posada made his declarations freely. Judge Cardone denied the motion. She said that she didn’t feel comfortable letting the jury hear the Defendant invoking his right to remain silent.

Teresinski: Yesterday Lawyer Hernández Savagely Attacked the U.S.

The judge then convened the jury, and Teresinski began redirect examination of Officer Susana Bolaños. It was at that moment that things became heated. Teresinski’s anger bubbled from his pores. His neck red with fury at Hernández, the prosecutor approached the podium and said, “good morning, Ms. Bolaños. You, the agency for which you work, and the government of the United States whom you represent were savaged yesterday by Attorney Hernández.” He voiced the word savaged in a heated tone.

“Objection!” shouted Hernández, jumping from his seat. He didn’t even have time to button his jacket. The judge heard the objection, but didn’t scold Teresinski or strike the statement from the record. Teresinski was allowed to proceed with his question. Now both lawyers were fuming. In the last few questions, during direct examination of Ms. Bolaños, the prosecutor was able to establish that the Justice Department’s legal team didn’t ambush Posada, that it is normal for DHS to consult with the FBI on cases such as this one, and that Posada had answered the questions she posed to him freely and under oath.

Tough Cross-Examination

It was then Hernandez’s turn to cross-examine Bolaños again. All of us who were there could see that it would be tough. Hernández is sly and astute. He is always looking for a way to plant doubt in the jury’s mind, and suddenly he took full advantage. He dropped his first question to the woman with the preamble: “As your testimony was impeached yesterday…” Teresinski, astonished, opened his mouth. “Objection. She was not impeached, Your Honor”, said a furious Teresinski.

To impeach a witness means to diminish his or her credibility. In a polite way, Hernández was telling the witness that she was a liar, that her testimony from the day before was not credible and that his cross-examination had impeached her. Having made his point to the jury, Hernández told the court that he had no further questions for the witness. With an ironic expression on his face, he returned to counsel table.

Prosecutor Teresinski could barely contain his anger. He made efforts to measure his words and calmly ask questions of Bolaños, but his voice was pregnant with emotion. Hernández´ mischievous tactics had gotten under his skin.

The Tip of the Iceberg

Wanting to show the jury that the Department of Justice didn’t ambush Posada, and that it simply had good reasons to interview him vigorously, Teresinski shot forth three quick questions to the Immigration Officer: “Do you believe that the allegations that he’s involved in the case of the bombings in Cuba are relevant?” “Yes,” answered Bolaños. “Do you believe that the use of false passports is relevant?” Yes. “Do you believe that the illegal entrance into the United States is relevant?” Yes.

Then he asked the question Hernández was waiting for, “And what if those concerns were only the tip of the iceberg . . . ?” Teresinski could not finish his question. Hernández shot up from his chair as though catapulted by a spring. He’d been lying in wait for this opportunity. This time, he buttoned his jacket. He settled his glasses comfortably on the tip of his nose so as to look directly at both the judge and the jury, and he announced that he wanted to reserve a motion.

Hernández Asks for a Mistrial

The judge dismissed the jury to a room next door and asked Hernández to explain his concern. “The comment about the tip of the iceberg opens a Pandora’s box, a panoply of possibilities so that the jury might infer that my client is a monster,” said Hernández, feigning indignation. “Teresinski´s personal diatribe against me is unacceptable… His comment about the tip of the iceberg forces me to demand a mistrial, because the government has hopelessly prejudiced the jury with that statement.”

I’m sure that the script Hernández wrote for this trial includes his making multiple motions for a mistrial during the course of the next several days. If granted, a mistrial would force the government to decide if it wants to continue spending money in order to start from zero and try Posada Carriles again for lying. It’s expensive and annoying. Posada is 82 years old. He will be 83 on February 15. Hernández plan is to hinder the process so that the prosecution surrenders because a trial is expensive, complicated and time consuming, and “Mister P.” – as Hernández called his client in the previous session, characterizing him as the nice old man of Spanish language children’s cartoons – is not worth the trouble. It wouldn’t be an acquittal but it would end the judicial process against Posada.

However, Judges are reluctant to declare a mistrial, except when the jury has been tainted with prejudice against the accused. “The comment about the tip of the iceberg has tainted this jury,” said Hernández. The judge disagreed with him. She recognized that such comments bias the jury in a cumulative way but said that this was an isolated incident. She said that this jury could still, impartially, render a fair verdict. Instead of declaring a mistrial, Judge Cardone decided to instruct the jury to ignore the prosecutor’s comment.

The jury returned, unaware of what had happened this morning between the lawyers. They saw two very well behaved attorneys and a calm and collected judge. “Mister P” even had a smile on his face. Everything continued as if nothing had happened. The controversy over the tip of the iceberg seems to have been nothing more than a tempest in a teapot.

David Cuddihy and the Dreams of Mister P

After lunch, prosecutor Bridget Behling presented the next witness to the jury. David Cuddihy, a translator for General Dynamics. He’s 40 years old. He studied Spanish at university and has more than nine years of experience in translation. He worked previously as an interpreter for the Justice Department. He speaks Spanish at home because, as he said, his mother-in-law is from the Dominican Republic and she doesn’t understand English.

Cuddihy seems to be a very meticulous man. He came to court very well groomed, in a brown suit, white shirt and pale tie. He’s plump, with a rosy complexion. He answered prosecutor Behling’s questions confidently. She established Cuddihy as a translation expert. He said that the transcriptions we listened to yesterday from Posada’s interviews with Immigration officers on April 2006 were correctly translated.

But to reach that conclusion, we spent almost two hours. The testimony was precise, but after the morning fireworks between both lawyers, Cuddihy’s declarations were excessively technical. Furthermore, he spoke very softly, with little inflection in his voice. Posada Carriles fell asleep. He closed his eyes, opened his mouth and nodded off for an hour and a half. He didn’t snore but his chest shifted from time to time, as if he were hearing music in his head. Cuddihy’s testimony made him sleepy. Very sleepy.

He woke up from his nap almost at the end of the afternoon in time to listen to Cuddihy evaluating the quality of interpreter Granados’ simultaneous translation of the April 2006 recordings that we heard yesterday. “Mr. Granados’ interpretation is not exact. Simultaneous interpretations are never exact. The interpreter can never translate each one of the words. The point is to correctly translate the idea.” And this is true.

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 (http://www.tlaxcala-int.org).

SOURCE: http://www.cubadebate.cu/especiales/2011/01/22/ui



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José Pertierra is an attorney in Washington, DC.

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