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The War Against the Evidence From Cuba

The first witness from Cuba to testify in the trial of Luis Posada Carriles in federal court in El Paso is Roberto Hernández Caballero. Accompanied by FBI agent Omar Vega, Hernández Caballero got there early and waited in a solitary chair in the hallway. His wait was for nothing, because today Posada Carriles’ attorney declared war against any and all evidence coming from Cuba.

After the defense attorney’s declaration of war, Judge Kathleen Cardone recessed proceedings until tomorrow (Wednesday) at 8:30 a.m. She said she needed to ponder whether the results of the Cuban investigation of the bombs that exploded in Havana in 1997, one of which killed Fabio Di Celmo in September of that year, may be evidenced in a U.S. court.

The Eagle

The door to Judge Cardone’s chambers is to the left of the judicial dais, behind an imposing wall of bronze. A closer look, however, reveals that the bronze wall is actually a tin partition, painted bronze. Appearances are important and often deceptive.

Attached to the tin panel is the official seal of the United States District Court for the Western District of Texas. Emblazoned in its center is a bald eagle draped in the flag of the United States of America. The eagle symbolizes empire. It represented the Persian and Roman empires, the kingdom of Charlemagne and Napoleon’s reign. According to Greek mythology, Zeus sent an eagle to eat the liver of the rebel Prometheus, who had disobeyed the gods and armed mankind with fire. I wondered whose liver this El Paso eagle might want to devour?

Morning chitchat

The prosecutors began their day in a private early morning meeting in Judge Cardone’s chamber. They had been reviewing documents and consulting amongst themselves, when Javier Martínez—the court clerk—emerged from behind the tin partition and told them that the judged wished to see them. At that precise moment, they had been looking over some of the exhibits they intended to show the jury today, including enlarged photos from the autopsy of Fabio Di Celmo. Martínez interrupted them and escorted them to the judge.

After meeting with the prosecutors, the judge called for a separate meeting with Posada Carriles’ lead attorney, Arturo Hernández. When the defense counsel reappeared, he called his team together and privately whispered the details of what had happened behind the tin partition.

Soon we all learned what the mystery was about: the so-called Cuban evidence.

Hernández: “I’m going to oppose everything”

I heard Hernández tell Prosecutor Timothy J. Reardon, “I’m going to oppose everything, except for the translations.” Just a few minutes later, Judge Cardone entered and announced that she was going to dismiss the jury until tomorrow, because “we have to attend to some important matters.”

She turned to Hernández and asked him to approach the podium and make his legal objections concerning the evidence. “I move that you exclude the use of all the documents originating in Cuba,” said Posada Carriles’ defense attorney. He alleged that he received 6,000 pages of documents from the prosecution only two months ago, and “I’ve not had the time to review them,” he said.

He also asked that the court disallow the testimony of the Cuban experts. The prosecution had announced its intention to call as witnesses Lieutenant Colonel Roberto Hernández Caballero, a member of Cuba’s Interior Ministry, who personally investigated the bombing campaign against Cuba in 1997, Major Misael Fonte, an expert from the Central Criminal Laboratory in Havana with 18 years of experience at that lab, and Ileana Vizcaíno Dime, the forensic pathologist who conducted the autopsy of Fabio Di Celmo and concluded that he had died as a result of shrapnel, hurled from an explosive, that had severed his jugular vein.

Hernández further argued that for him to properly cross-examine Dr. Vizcaíno Dime about the autopsy, he first needed to consult a forensics expert he trusted: Dr. Ron Wright, from Broward county (the county next door to Miami-Dade). “Dr. Wright is my preferred forensic expert. The problem is that right now he has a scheduling conflict,” he continued.

“The witness Roberto Hernández Caballero is much more than a policeman,” said Posada Carriles’ attorney, insinuating that he is an agent for Cuban state security. “The Cuban intelligence apparatus is within the Interior Ministry, where Mr. Hernández Caballero works,” he added.

“Can you give me an example of how your defense would be unjustly damaged by the use of the Cuban documents and witnesses?” the judge asked. The attorney faltered. He stammered a bit and then thought to say, “It’s that I’ve not been able to find an explosives expert to help me. I don’t know anything about explosives. It’s not fair.”

Judge Cardone thanked him and invited Reardon to approach the bench and respond to defense counsel’s objections.

The Boy Who Cried Wolf

Reardon began by comparing Hernández’s allegations to an Aesop’s fable, “The Boy Who Cried Wolf,” about a shepherd who cried, “the wolf is coming, the wolf is coming!” Truth be told, no wolf was coming and the shepherd knew it. “The defense counsel is crying wolf,” said the lead government counsel.

“Posada Carriles’ attorney is exaggerating about the amount of Cuban documents that we are thinking of using,” said Reardon. “Really we are arguing about thirty pages of documents, seven of which are the autopsy report,” said the prosecutor.

He explained that the government had invited the defense’s legal team to go with him to Cuba to examine documents and speak with the Cuban experts, but that defense counsel had chosen not to go. “This is a very sophisticated defendant and a sophisticated defense counsel,” said Reardon. The prosecutor pointed out that “it was surely a mistake on the part of the defense not to go to Cuba, but it was a tactic with which they have to live.”

Hernández: “There is complicity between the CIA and Posada”

Posada Carriles’ defense counsel asked to be heard, yet again. “The prosecution has not given me the documents that I have been requesting for some time: the CIA records that show that Posada Carriles received instructions from the U.S. intelligence agency to keep quiet.”

Although he explained that he could not offer more details without violating the attorney-client privilige, Hernández announced that “Luis Posada Carriles lied about his false names, because they were given to him by the CIA…There is a complicity between the CIA and Posada Carriles about the aliases,” concluded Hernández.

Hernández also insisted that he needed to review CIA documents regarding the payments the agency made to his client over the years, his involvement with the CIA until 1996, as well as documents from the CIA that detail his years as chief of special operations for the Venezuelan secret intelligence agency, DISIP.

“My client had CIA authorization to use aliases,” said Hernández.

The previous testimony of Roberto Hernández Caballero

Posada Carriles’ attorney insisted that the government provide him with a copy of the witness’ past testimony in a federal case in Tampa in 1997. That case involved three Cubans who had been accused of hijacking a plane from Cuba: José Roberto Bello, Leonardo Reyes Ramírez and Adel Given Ulloa. The plane crashed into the sea before it could land in the United States. A Russian ship rescued the alleged hijackers and brought them to Florida. They were charged with hijacking and were acquitted on July 17, 1997. The three were later granted asylum.

Hernández also wants the government to provide him the transcript of the witness’ testimony in 1991, during the trial of the Cuban Five in Miami, as well as five Diplomatic Notes that were exchanged between the United States and Cuba during this period—allegedly related to Luis Posada Carriles.

“The Diplomatic Notes are not relevant” to this process, said prosecutor Jerome Teresinski. “Attorney Hernández simply wants to put Cuba and Fidel Castro on trial here in El Paso. This case is about perjury, nothing more,” Teresinski said to the judge.

Teresinski explained, “the Cuban evidence is simply to establish that the bombs did explode in Havana in 1997.” “We have other evidence that establishes that Posada was involved in this bombing campaign and subsequently lied about that,” he argued.

Hernández asks for a continuance

Finally, Hernández asked Judge Cardone for a continuance until the prosecution could provide him the transcripts from the Cuban witness’s previous testimony in Tampa and Miami, plus the five Diplomatic Notes that he says were exchanged between Cuba and the United States. “Even just for one week,” he said, “I need you to continue this case.”

Having heard legal arguments from both sides, Judge Cardone said that tomorrow, Wednesday, at 8:30 a.m., she would render her decision. She warned all parties to arrive at court prepared, because if she decides not to continue the trial, she will immediately convene the jury and hear the testimony of Roberto Hernández Caballero, the first witness from Cuba that the government will present. We shall see.

What is all that dust blowing toward El Paso?

We left the courthouse a bit earlier than usual, finding a sunny afternoon with temperatures in the high 60s. But a few minutes later, a giant dust storm blew in, driven by nearly 45-mile-an-hour winds from Juarez to El Paso. As I watched the storm from the window of my hotel room, I thought of Pancho Villa. That’s probably how the dust the Mexican cavalry kicked up must have looked in 1916, when the Villistas invaded—trying to take back the 568,036 square miles that the bald eagle of the United States had snatched from Mexico. Not so long ago.

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/2011/02/09/diario-de-el-paso-guerra-contra-evidencia-cubana

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José Pertierra is an attorney in Washington, DC.

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