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Questions Are Not Evidence, But They Sway

The morning began with a warning to Gilberto Abascal, who’s spent the whole week testifying in the trial against Luis Posada Carriles in El Paso. “You have to listen to the questions and answer them without going beyond that,” Judge Kathleen Cardone told the witness who’d complained yesterday that Posada Carriles’ attorney had been harassing his ex-wife and his children.
Cardone admonished him, “for example, it’s inappropriate in front of the jury for you to talk about the incident that happened on the telephone and the accusations of bribery.”

What the jury wasn’t told

None of us is quite sure what the allegations of bribery are, nor do we know the details of the telephone “incident.” Judge Cardone wants to keep it that way, because she doesn’t want this trial contaminated by allegations that go beyond its limited scope: 11 charges of false statements and perjury by Posada Carriles.

It has nothing to do with the 73 murder charges pending against the Cuban-Venezuelan for blowing up a passenger airliner on October 6, 1976, nor with the murder of Fabio di Celmo in Havana on September 4, 1997, nor the torture of Jesús Marrero in June of 1973 in Venezuela, and certainly not with the sworn allegations of Brenda Esquivel in Caracas, who said she would never forget that Posada Carriles killed her unborn son with a single kick to her womb.

The purpose behind Posada Carriles’ attorney’s cross-examination of Abascal is simply to try and show the jury that he has received payment from the FBI, that he’s a liar, a lunatic, and … on top of it all, a spy for the Cuban government.

Abascal maintains that he brought Posada Carriles from Isla Mujeres to Miami in a boat called the Santrina in March of 2005, and Posada claims he entered the U.S. in a pickup truck with the help of a coyote who brought him from Guatemala to Houston, where he boarded a Miami-bound Greyhound bus.
Miami premises

Abascal previously testified that he’d accompanied Osvaldo Mitat to Panama in 2004 for Posada’s trial there. Posada was convicted of charges relating to his attempt to assassinate Cuban President Fidel Castro.

He also said that in the same year he went to Cuba several times. With great fanfare, Hernández presented several photos of Abascal that were supposedly taken in Panama. “Blurry,” said Abascal, about the pictures. Hernández also placed into evidence a plane ticket to Panama in the name of Gilberto Abascal and dated March 13, 2004.

Hernández then readied a trap for Abascal. “Isn’t it true that there were people in Panama, connected with the Cuban regime, who were in Panama observing the trial of Posada Carriles?” “I don’t understand the question,” answered Abascal. “Officials from Cuban intelligence,” said the attorney. “I don’t know,” the witness answered. Hernández asked, “Isn’t it true that there were reporters from the Cuban press there?” “Yes,” said Abascal. “And isn’t the Cuban press controlled by the Cuban regime?” asked Hernández, thinking that he’d managed to establish that the Cuban journalists were spies for the Cuban government: a Miami twist in an El Paso drama. “Yes,” answered Abascal, “in Cuba everyone works for the government.”

Another legal trap lay in wait for Abascal who had already spent five days answering Hernandez’s questions. “Isn’t it true that the Cuban press, specifically the Granma newspaper, reported that you’d been in Panama supporting Luis Posada Carriles in his trial?” Bewildered by so many questions he considered absurd, Abascal patiently said, “I don’t know. Santiago Álvarez sent me to Panama to help Osvaldo Mitat during the trial of Posada Carriles.” Prior to his trip to Panama that year, Abascal did not know Posada. He worked for Santiago Álvarez as a handyman and schlepper. He did what Álvarez asked him to do, but the questions insinuated that Abascal was a confirmed supporter of Posada Carriles.

“Isn’t it true that you submitted an application for a specific license to travel to Cuba through the Department of the Treasury Office of Foreign Assets Control of the United States?” asked Hernández.” “Huh? No. I asked for the license from the Marianao Travel Agency in Miami. The one you threatened,” Abascal answered Hernández with his thick Cuban accent. The court interpreter, who is not Cuban, did not understand the name of the travel agency. She asked Abascal to repeat it slowly. “Ma-ri-a-na-o,” he said, enunciating each syllable. She translated it as “Maria – Now.” Even this trial has its humorous moments.

Hernández didn’t laugh. He renewed the attack. “How is it that a person so closely identified with Luis Posada Carriles, whom you accompanied and supported during his trial in Panama, could have gotten permission from the Cuban regime to enter and leave the country five times?” There was the trap that Hernández had in store.

A major premise of jurisprudence is that attorneys’ questions are not evidence. The jury is only allowed to weigh the testimony of the witnesses and the documents introduced as evidence. But insidious questions insinuate plenty. The jury hears them and is influenced by them. It’s inevitable. That’s why defense attorneys ask so many of them.

Hernández wanted to convey to the jurors the notion, popular among some in Miami, that there are Cuban spies everywhere: that the journalists who interviewed Abascal in Panama were spies because they worked for the Cuban press and the Cuban “regime” controls the press. Abascal is a spy, goes Hernandez’s theory, because if he weren’t, Cuba would never have given him permission to enter and leave the country in 2004.

Yet the fact that Abascal visited Cuba several times the same year that he accompanied Osvaldo Mitat to Posada’s trial in Panama—at Abascal’s employer’s request—does not evidence that he is a spy. There is no evidence that Abascal was then, or is now, a political activist. On the contrary, the evidence shows that he is no more than a handyman for one of Posada’s friends.

Perhaps Hernandez´s premises work in Miami. In El Paso, I don’t think so.

Abascal’s relationship with the FBI

After insinuating through his questions that Abascal is a spy for the Cuban “regime,” Hernández moved on to another line of questions: namely, that Abascal is in the pocket of the FBI.

Evidence demonstrates that Abascal was part of the Santrina’s crew. When the news broke that Luis Posada Carriles had surreptitiously arrived in Miami aboard the Santrina, the FBI interviewed him. FBI agent, Omar Vega, questioned him in 2005, and Abascal told him that Posada did not make the trip to Miami on the Santrina. He told Vega that the purpose of the voyage had been to deliver $10,000 to Posada, so that he could hire a smuggler to drive him into the United States through the border crossing at Matamoros. Hernández focused on that. In 2005 “you told the FBI one thing and now you say another. Why?” “I’ve already explained that to you a number of times,” answered Abascal. “I was following orders from Santiago Álvarez. You are misinterpreting things in order to confuse me.”

“Isn’t it true that you changed your story so that the FBI would help you with your application for U.S. citizenship, in order to resolve an economic need and because you didn’t want to lose the welfare benefits that they were going to take away from you on the seventh anniversary of your becoming a permanent resident of the United States?” asked Posada’s attorney. “No,” he answered, “they never promised me anything.” “How much money have you received from the FBI?” asked Hernández. “Around $8,000 dollars,” said Abascal. “The government says in a document that you received $8,800, right?” repeated Hernández. “More or less,” replied Abascal. “Did you ask the FBI at the end of August 2005 to pay you?” Hernandez re-emphasized. “I don’t recall.” “Did you ask the government to give you any compensation?” insisted Hernández. “I don’t recall.”

This is classic cross-examination. The day before yesterday, Prosecutor Jerome Teresinsky complained that Hernández was repeating the same questions ad nauseam. In other words, a few questions repeated in different ways to the point of exasperation. That’s what cross-examination is all about, especially when you are looking to break the witness, as Hernández is doing here with Gilberto Abascal.

It’s true, however, that the FBI paid Abascal $8,800 for his services and that it spent a substantial sum of money to relocate him to a safer place. The witness already testified that he is afraid. The FBI customarily relocates witnesses whose willingness to testify puts their lives at risk.

In January of 2007, he found a bomb in his vehicle, which the police detonated to neutralize it. It made the news in Miami when it happened, but the jury doesn’t know that. It’s not part of this case. Perhaps when it is the prosecution’s turn to ask Abascal its final set of questions, on redirect examination, the jury will learn that the relocation costs the FBI incurred are because the witness needs protection.

A witness out of turn

In the middle of Abascal’s testimony, the prosecution announced that it wanted to take a witness out of turn. The Government’s attorney asked the court for permission to interrupt Hernandez’s cross-examination of Abascal in order to accommodate another witness whose business required him to leave town that afternoon. With the judge’s consent, the prosecution then introduced John Timoney, Chief of Police in Miami from 2003 to 2010.

The jury members who have been paying attention to Abascal’s testimony know that several days ago he testified that upon arriving in Miami, Rubén López Castro took Posada Carriles on a fast boat from the Santrina to a restaurant on the Miami River, and upon his return, López Castro exclaimed, “Oh my god, the Chief of Police was having dinner there!” That is why everyone was on pins and needles to hear the testimony of the police chief. Would he remember seeing Posada Carriles in March of 2005 at the restaurant?

Prosecutor Timothy J. Reardon wasted no time in dispelling any doubts. “Do you recognize anyone seated at the table to my left?” he asked, pointing to the table where the defense attorneys Arturo Hernández, Felipe Millán and Rhonda Anderson and their client Luis Posada Carriles were seated. Timoney looked in their direction and said that he did not recognize anyone. The jury’s expectations were dashed. They’d anticipated a confirmation of Abascal’s testimony from the Miami police chief, but Timoney didn’t provide one.

Why then, did the prosecutors call Timoney? Although the police chief retired last year, everyone still calls him “Chief.” He testified that, during his tenure as Chief of Police in Miami, his secretary kept a record of his daily activities. They were recorded in something called a “Day Book.” Reardon presented the Day Book into evidence. It shows that on March 18, 2005, Chief Timoney had lunch with the British consul in a restaurant located on the Miami River: The Big Fish. Reardon showed the court a photo of the restaurant. It sits on a great location.

“The restaurant is on the Miami River,” said Timoney. “I had just ordered my meal [he says he ordered fish, what else?], when I saw a boat arrive at the dock. Three or four people got off and entered the restaurant. It looked like they’d come from a fishing trip.” Timoney explained that he was dressed in his full chief of police uniform. “Four gold stars and the police chief insignia on my shirt … I remember that they walked very close by our table. About ten or fifteen feet away.” With that, Reardon suddenly finished his questioning of the police chief. It lasted less than ten minutes.

Arturo Hernández gave Timoney an unctuous welcome. He said that he’d enjoyed seeing the photos of the Miami River after so many days in El Paso. Hernández expressed appreciation for Timoney’s magnificent work as chief of police and sat down. His cross-examination of Timoney lasted less than five minutes. The substance of what Abascal stated is not proven, but neither is it discounted. The testimony from the former police chief supports Abascal’s testimony by proving that he was in the restaurant that day and that he remembered having seen four people disembark from a speedboat in front of the restaurant.

Until Monday

Today we finished early, at noon, because the attorneys were exhausted and asked for a break. Two days of rest await us in El Paso. We all need it because on Monday, the Abascal drama will begin again. Hernández will continue his cross-examination.

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/especiales/2011/01/28/diario-de-el-paso-las-preguntas-de-los-abogados-no-son-evidencia-pero-pesan/

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José Pertierra is an attorney in Washington, DC.

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