Judge Cardone at the Center of the Drama

The Federal Bureau of Investigations (FBI) scrambled to investigate complaints made this afternoon from the witness stand by a key witness at the trial of Luis Posada Carriles that a defense attorney for Posada is harassing his family, his friends and himself.

Gilberto Abascal, a handyman who was aboard the shrimp boat that brought Posada to Miami in March of 2005, testified that it is not true that Posada entered the United States through the border with Mexico with the help of a coyote in a pickup truck, as Posada said under oath at his prior immigration hearings. Abascal says that he saw Posada Carriles disembark in Miami from a boat called the Santrina.

The drama

We could almost see this afternoon’s drama coming. The courtroom is located at the end of a long, wide hallway that begins at the elevator exit on the fifth floor of the new $74 million dollar federal courthouse. Walking down this hallway, I could see Abascal at the end, all alone in an isolated wooden chair, with both buttons of his coat jacket seemingly about to burst. Everyone else was already in the courtroom, waiting for the proceedings to begin. As I walked toward him, I noticed that he was very upset. I had to approach very close to him in order to enter the courtroom. He looked as though he was staring at the floor, but when he felt someone draw near, he looked up. That’s when I saw his eyes. They were puffed up and red. He had been crying.

Speaking with the witnesses is prohibited, and I didn’t linger. Instead, I opened the door and entered the courtroom wondering what happened.
I didn’t have to wait long. Two minutes later, the clerk of the court sounded the gavel three times. “All rise!” he said, announcing the entrance of Judge Kathleen Cardone. She asked if the attorneys had any preliminary matters to discuss before she brought the jury into court. Timothy J. Reardon, the lead prosecutor in the case, rose and slowly approached the podium. Reardon suffers from a limp and uses a wooden cane as he walks. He was a running back on the University of North Carolina football team decades ago and recently underwent a knee operation.

“Your Honor, the witness is crying,” Reardon told the judge, “and I ask the Court to instruct him how to behave himself in court.” Reardon was worried that Abascal would not be able to continue, because his testimony is key to some of the perjury charges against Posada Carriles. Immediately, Judge Cardone asked that Abascal be summoned. He entered, eyes very red, head lowered and shoulders slumped. He sat in the witness box and the judge said, “Mr. Abascal, it appears to me that you are distraught. Can you tell me what’s going on?” “Arturo Hernández is interfering with my former wife and she called me to tell me that due to the harassment, she doesn’t want to have anything to do with me,” Abascal told the judge before the jury was called in.

“He’s interfered with my family. Mr. Hernández sent an investigator to my house to steal some photos of my ex-wife. I haven’t harassed his family, but he’s harassed mine,” explained the witness. Observing Mr. Abascal´s emotional distress, the judge became quite concerned that Abascal couldn’t continue testifying. This would, of course, be devastating to the government’s case against Posada, since Abascal´s testimony is key to most of the perjury and false declarations charges against him. The judge tried to calm the witness, but also explained to Abascal that Posada Carriles’ attorney has the right to do everything within legal parameters to defend his client.

With a halting voice, Abascal answered: “I’m going to defend myself. They are trying to intimidate people. They dress up like federal agents to intimidate my wife and my friends.” Hernández asked to respond to Abascal’s accusations but explained that he’d prefer to do it at sidebar. He didn’t want Abascal to hear his response. The judge asked that he approach the bench to whisper his response. Two of the prosecutors, Timothy J. Reardon and Jerome Teresinski, approached as well.


The scene at sidebar was surreal. Judge Cardone, perched atop the bench, leaned over from the waist, listening to an agitated Hernández whispering his innocence.

So that witnesses and observers cannot hear what is discussed amongst the judge and the attorneys at sidebar, the courts use a muffler. Usually its clatter is enough to muffle the sound of the voices, but suddenly Hernández forgot to whisper and everyone in the court heard his agitated voice rise, “I’m an attorney. I don’t have anything to do with this guy. I haven’t done anything except serve subpoenas.” The court’s silencer muffled the rest of the conversation.

With the sidebar concluded, the judge switched off the muffler and told Abascal that she was instructing the FBI to immediately get in touch with him and his family to begin an investigation, but that he may not mix those matters up with the pending criminal case in which he is testifying. Abascal, not entirely satisfied with that, insisted, “I want you to get Arturo Hernández to return the photos that he stole from the house.” To settle things down, the judge called for a ten-minute recess in the proceedings, and Prosecutor Teresinski left the courtroom with his witness to try and call him down. After all, Posada’s lawyer would soon resume what the defense hoped would be a withering cross-examination, designed to break Abascal.

During the recess, Posada stood up and went over to his lawyer to figure out what was happening. At first, we couldn’t hear any of their words. They were whispering. Hernández said something close in his client’s ear, and Posada reacted in a very loud and raspy voice that I could clearly hear from the front row where I was sitting, “Who could believe that Arturo Hernández is capable of such things! You are a prestigious lawyer! Can you imagine, some photographs . . . ha ha ha.”

The jury returns

Ten minutes after the recess, we heard the gavel and the familiar cry of “All rise!” from the Clerk. Judge Cardone resumed her seat on the bench, and Abascal came back with Teresinski trailing behind him. Would Abascal continue? What emotional state was he in? The only sign was a deep-felt sigh from Teresinski that made both his cheeks puff like a blowfish, as he sat down at the prosecutor’s table. At that precise moment, you could have cut the tension with a knife.

With the jury reconvened, Hernández renewed his cross-examination regarding Abascal’s medical records. He questioned him about his alleged command hallucinations. Those who suffer from them hear voices and sounds that do not exist. They are also called second person hallucinations, in which a voice appears to address an order directly to the patient: such as, you are going to do…

“Do you suffer from command hallucinations?” Hernández asked the still agitated witness.

“No,” answered Abascal.

“Do you feel persecuted?”

“Yes,” said Abascal, “by you.”

Just as he did yesterday afternoon, upon hearing the witness´ response Hernández again moved for a mistrial. It’s the third time that the defense attorney moved to annul these proceedings. The judge then asked Mr. Abascal to go into the hallway and the jury to retire to their anteroom. She wanted Hernández to be free to argue his motion without their presence.

“I haven’t done anything wrong,” began the attorney. “I’ve investigated this case, and I’ve hired investigators to do so. I’ve served papers on certain people so that they might come to testify in court.”

Hernández tried to clearly establish his innocence. It’s a federal crime, a felony, to tamper with a witness. The sanctions are severe and include up to 20 years in prison.

“It’s patently false that I broke the law or that I would have illegally entered his house to steal 33 photos,” he said. “My investigators took photographs of his ex-wife and also took statements from her,” he declared, “but since 2006, no one connected with my office has surveilled Abascal. We have only served subpoenas. The witness said to the jury that I was persecuting him,” complained Hernández, “and they might think that it’s something I would have done, but this idea of Abascal’s comes from his own mental instability.”
Posada Carriles’ attorney concluded by telling Judge Cardone that he wasn’t happy with what the jury had heard and that the prosecutors couldn’t control their own witness. The judge patiently listened to Hernandez’s arguments in favor of a possible mistrial, something that were the court to grant it, would mean that the prosecution would have to bring a new case against Posada Carriles and start again. That is a weighty proposition in terms of time, money, attorneys and investigators. Hernández is betting that a mistrial will mean that the government will decide to drop the charges against his client

The judge rejected Hernández’s motion for a mistrial, but she couched her decision with a resounding “for now.” She explained that there were not yet sufficient reasons to think that this jury is prejudiced against Hernández or Posada Carriles despite Abascal’s allegations. She reminded Hernández that the majority of Abascal’s statements against him were made outside the presence of the jury.

“It’s the truth. You know it is”

Abascal has been testifying for four straight days. More time than it took Posada Carriles to travel from Isla Mujeres to Miami on the Santrina in March of 2005. If anyone were to ask Abascal, I’m sure that he would say that these four days have felt like forty. The case will continue tomorrow. During the course of the afternoon today, Hernández hammered away at Abascal´s prior inconsistent statements to the FBI, and to the misrepresentations he made to the Internal Revenue Service (IRS) and to the Social Security Administration regarding his finances. Abascal claims that Santiago Alvarez told him that if the authorities asked, he was to deny that Posada had been aboard the Santrina. When the FBI first questioned him, he did so. However, he later admitted to FBI Agent Omar Vega that Posada rode the Santrina all the way into Miami from Isla Mujeres. Abascal also admitted that in the past he had misrepresented his earnings to the IRS and to the Social Security Administration.

Abascal told the jury that he accepted full responsibility for his past transgressions and that if he has to face criminal charges for them, he will, but that he is telling the truth when he says that the Santrina picked up Posada Carriles in Isla Mujeres and brought him to Miami with Santiago Álvarez, Osvaldo Mitat, Rubén López Castro and Pepín Pujol aboard. “It’s the truth. You know it is,” he emphasized to the attorney for Luis Posada Carriles.
Kofi or Coffey?

Amidst today’s tension there is a bit of levity. Near the end of the day, Abascal recalled how he’d told Santiago Álvarez, the owner of the Santrina and Posada’s financial benefactor, that he was very afraid. “Santiago gave me a business card and told me that if I have any legal problem, I can call Kofi Annan.” I don’t think that Abascal was referring to the Ghanaian diplomat who at the time was Secretary-General of the United Nations. The business card probably belonged to Kendall Coffey, a well-known Miami criminal defense attorney who represented Elián Gonzalez’s Miami relatives. Coffey later went on to represent Santiago Alvarez on federal weapons and passport charges.
The hearing ended with the news that during the course of the afternoon, the FBI office in Miami contacted Abascal´s ex-wife there and that the El Paso FBI office was available to speak with Abascal immediately after today’s hearing, as well to investigate his charges of tampering and harassment.

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/2011/01/28/diario-de-el-paso-la-jueza-cardone-en-el-centro-del-drama/


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José Pertierra is an attorney in Washington, DC.

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