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Quicksand

Today Judge Kathleen Cardone did not allow the Cuban inspector Roberto Hernández Caballero to testify and postponed the trial of Luis Posada Carriles until Tuesday of next week. Posada Carriles’ attorney threw a roadblock before the proceedings that brought the trial to a temporary halt.

Prosecutor Timothy J. Reardon had planned to continue with his direct examination of the Cuban witness, but first thing in the morning Posada’s attorney made two motions: one to compel the government to share new allegedly “exculpatory” evidence about his client, and another to dismiss the charges against the defendant.

What attorney Hernández found among his papers last night

“Last night I discovered two declassified FBI reports in my files that the prosecution gave me on the eve of the beginning of this trial,” Arturo Hernández told the court in an extremely loud voice first thing this the morning. “I didn’t realize it because my mind was focused on something else, but I found the documents last night.”

With great fanfare, attorney Hernández announced that the documents he discovered among his papers during the evening hours were an FBI report dated September 25, 1997, and another dated November 18, 2004. Both, he said, corroborate Posada Carriles’ innocence.

The prosecution had them, he said. Although the government was obligated to provide copies to the defense, it delayed too long in doing so, he argued. Attorney Hernández said that the 2004 report tells how the FBI warned Luis Posada Carriles that the Cuban General Directorate of Intelligence (DGI) had made plans to kill him. The report is dated less than three months before the former president of Panama pardoned Posada on August 26, 2004.

Posada had been sentenced for crimes related to an attempt against Cuba’s President Fidel Castro in 2000. The plan included detonating 20 pounds of C-4 explosives at an auditorium filled with students at the University of Panama.

After ex President of Panama, Mireya Moscoso, pardoned him, Posada Carriles went underground again and reappeared in Miami in March of 2005. His attorney did not disclose how the FBI had warned him about the supposed threat on his life, or if the FBI knew his whereabouts. A few months later, Panama’s Supreme Court declared the pardon unconstitutional.

The second FBI Report that attorney Hernández found in his file last night was drafted exactly three weeks before the murder of Fabio Di Celmo on September 4, 1997. Posada Carriles’ attorney told Judge Cardone that the document makes reference to an “intelligence source” that told the FBI that the Cuban Interior Ministry (MININT) and Armed Forces Ministry (MINFAR) were responsible for the bombs that exploded in Havana that year.

“MININT and MINFAR did this in order to blame Posada Carriles for the rebellion,” said Hernández, feigning intense indignation.

The accusations against the Cuban inspector

“But there’s more,” Posada Carriles’ attorney said with great seriousness. “I’ve learned that yesterday’s witness, Roberto Hernández Caballero, is a Cuban counterintelligence agent.” Hernández told the judge that the prosecutor had purposely withheld that information from him.

I do not know whether Mr. Hernández Caballero works with Cuban counterintelligence nor do I believe it matters. I’m sure that if he were asked, he would tell the jury. Until now, it has not occurred to anyone to ask him, including Posada’s defense attorney. I know that he is a Lieutenant Colonel with the Interior Ministry. He has said so publicly on a number of occasions. It seems logical to me that an investigation into a terrorist campaign that endangers the national security of a country would be assigned to an institution like the MININT. Wouldn’t any other country do the same, including the United States? What does Hernández think? That the Al-Qaeda terrorist attacks on the Twin Towers were only investigated by the NYPD?

Without offering an iota of proof, Posada Carriles’ lawyer alleged to the Court that the Cuban inspector had falsified evidence in other cases: that of the three persons who were accused of hijacking a Cuban plane in 1996 and who were acquitted by a court in Tampa the next year: José Roberto Bello, Leonardo Reyes Rámirez and Adel Given Ulloa. Despite being completely bilingual, Posada’s attorney gets tongue-tied when he pronounces Spanish language names. He called them: Hosaah Belo, Leeonahdo Oo-ayes and Ahdehl Gweeven Uiloa. Why? I don’t know.

Brady documents

“Your Honor,” said the lawyer, practically shouting, “I move to dismiss the case because the prosecutors have shown a continuous pattern of refusing to disclose Brady documents to me: at a minimum I move that the Court dismiss counts one through three.” The first three counts of the indictment are those relating to Posada Carriles’ false statements regarding his involvement with the bombs in Havana in 1997 and the murder of Fabio Di Celmo.

Brady documents are potentially exculpatory documents in the prosecutor’s possession. They are called Brady after a case in which the U.S. Supreme Court ruled that not sharing them with the defendant is a violation of his right to due process.

Reardon: “Defense counsel’s arguments are ridiculous.”

“Mr. Reardon?” said the judge.

Prosecutor Timothy J. Reardon slowly arose from his chair leaned over to pick up some papers from his table and approached the judge. He began his response in a solemn, quiet voice. “Your Honor, I came this morning to renew my direct examination of the witness, and I find this docudrama in court that has nothing to do with the facts of this case,” he said, gesturing toward Posada Carriles’ attorney.

“Counsel today has delivered us a bravura performance deserving of an Oscar,” said Reardon. “His breathless presentation, topped with an alleged inability to represent his client, was delivered with blistering and blustery attacks against the record of this case”, Reardon declared. “The government,” he said—his face flushed with anger—”has to defend the record.”

“The defendant’s motion to dismiss is ridiculous,” said Reardon. “It is part of defense counsel’s strategy to always file something at the last minute to get to the podium and toss out wild accusations,” said Reardon as he pointed toward the defense attorney. Reardon is a veteran litigator, who gives the impression that he has seen a quite a few docudramas in his life.

“There is no evidence whatsoever that the witness has falsified evidence in this or any other case,” said Reardon. “The defense attorney is speaking to an audience beyond this court,” exclaimed Reardon, in an obvious reference to Cuban-American extremists in Miami. “He is wrong about the law, and he is wrong about the facts. The Court should recognize that this is nothing more than a strategy and confront it as such,” the prosecutor continued. “Poets may use poetic license—attorneys may not,” he concluded.

Suddenly, Judge Cardone interrupted Reardon and told him, “I have before me a motion that alleges that the witness is a DGI agent from Cuba and that it was not disclosed to the defense. I also have allegations that say that the government has received accusations that the witness fabricated evidence. I have to decide what to do with this.”

The source of the complaints against the Cuban inspector

The defense attorney’s allegations that the Cuban witness has falsified evidence come from an attorney in Tampa who represented Adel Ulloa, one of those accused of hijacking a Cuban plane in 1996. In a motion that Posada Carriles’ attorney presented in writing a few hours before the beginning of today’s court session, he says that he contacted Ulloa’s attorney in Tampa yesterday, and it was he who had informed Hernández that Cuba had falsified evidence in that case. Posada’s lawyer claims that the Tampa lawyer told him he has evidence that would impeach the Cuban witness, Roberto Hernández Caballero, but that “it cannot be divulged now for reasons of national security.”

Defense counsel did not identify the attorney with whom he spoke. But the electronic federal court records contain the entire legal history of the Ulloa case under a file number of 2:96-cr-0007. The only counsel retained by Ulloa (the others were court-appointed attorneys) is Rafael E. Fernández of Tampa, Florida. This attorney wrote a letter dated December 12, 1997 to Congressman Jim Davis, complaining that Roberto Hernández Caballero is “a counter-intelligence expert who tortures anti-Castro and dissident elements in Villa Marista, Cuba.” The allegation was made with no supporting evidence.

The Tampa attorney is Cuban-American and the author of a report about Cuba dated January 22, 2003. In it he maintains that “Fidel Castro is a terrorist,” an allegation that is also unsupported. Using that premise, the report goes on to conclude that Cuba is a terrorist state involved in drug trafficking. Since Posada’s attorney said that his friend from Tampa couldn’t divulge the basis of the allegations against the Cuban witness, we are left to wonder whether they have any foundation at all.

Is there meat on the bones?

“The accusations of Posada Carriles’ attorney rest on quicksand,” said Prosecutor Reardon. Judge Cardone said, “I don’t know if these defense allegations have any meat to them and I want to do the right thing.”
She ordered both sides to commit their arguments to paper, and she continued the case until after Valentine’s Day. The trial will resume on Tuesday, February 15, at 8:30 a.m. We will all be there.

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/especiales/2011/02/11/diario-de-el-paso-arenas-movedizas

 

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José Pertierra is an attorney in Washington, DC.

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