Vulgar Questions

The testimony from the Cuban investigator Roberto Hernández Caballero in the case of United States v. Luis Posada Carriles ended today.

Through Hernández Caballero’s statements over the past three days, the prosecution managed to establish as evidence that a series of explosions occurred in Havana in 1997—also that one of the explosions resulted in the murder of Fabio Di Celmo on September 4, 1997 in the Copacabana Hotel and that others resulted in physical injuries and material damages.

The Cuban witness gave his testimony in a concrete, coherent and credible manner over the course of three days on the stand. Posada Carriles’ defense attorney tried to impeach his credibility during two days of intense cross-examination but did not manage to puncture the candidness of the witness.

Poison barbs

During hours of interrogation, defense attorney Arturo Hernández needled the Cuban witness relentlessly with the kind of barbs more commonplace in the cafes of Miami’s Calle Ocho than in federal court.  Several times, the defendant’s Miami attorney posed defiantly before the witness, as if the courtroom were a neighborhood back-alley, opened his suit jacket, put his fists on his waist and bombarded the witness with a fire hose stream of inflammatory questions.  One notable sample being, “Isn’t it true that you are not a real investigator, but an officer of the Cuban intelligence services?”

Lt. Col. Roberto Hernández Caballero responded with self-assurance and dignity. “I am an investigator,” he said, emphasizing the noun.

The defense attorney wanted to ambush the witness by using a photograph of the damage caused by an explosion at the Hotel Nacional, but his plans were foiled by his own faulty premises: ones shaped entirely by the distorted vision of Cuba that the media in Miami provides.

“Is this the same photograph that you identified previously?” asked the attorney. The Cuban investigator first looked at the attorney—wondering what was coming—and then at the photo. “Correct,” he answered. “The hotel where you said an explosion occurred on July 12th, 1997?” “Yes.” “Can ordinary Cubans go to the Hotel Nacional without asking for permission?” “Yes,” he answered perplexed. “Can ordinary Cubans spend the night in a Cuban hotel without asking permission?” “Yes.” “Isn’t it a fact that ordinary Cubans do not have access to these hotels?” “No.” “Can Cubans have computers?”

Here, the prosecutor, Timothy J. Reardon, interrupted, “Objection, Your Honor. Relevance”. Reardon argued that this trial is not about life in Cuba—but whether Luis Posada Carriles made false declarations to the U.S. Government. The judge sustained Reardon’s objection and told Hernández, “Move on.”

A Miami attorney’s lesson in litigation

Almost all Americans boast that their legal system is the best in the world. In the United States, however, litigation is not necessarily a search for truth. Law students in this country learn right away that the job of a good defense attorney is to confuse the jury and twist the evidence. Posada Carriles’ attorney learned this lesson well, for he knows how to turn a serious case into something grotesque and ridiculous. Today he offered us a lesson into how to confound the evidence: the point being to so bewilder the jurors that they will be unable to distinguish between credible evidence and unfounded allegations.

The Cuban government shared with the U.S. Government detailed reports of its investigations into the series of bombs that exploded in Havana in 1997. The U.S. Government is using some of that evidence to prosecute Luis Posada Carriles in the federal court in El Paso. The prosecutors are also using a Cuban investigator from the Ministry of the Interior, Lt. Col. Hernández Caballero, as a star witness. He testified that the crime scene photographs are “true and faithful representations” of the destruction left behind by the explosions.

Since he apparently felt that he couldn’t discredit the photographs, Posada Carriles’ defense attorney spent several hours trying to discredit the witness. Using only part of the investigative reports, the Miami attorney cross-examined the Cuban witness and elicited from him confirmation that his signature appears on only one of the reports: the one having to do with the explosion at the Aché nightclub in the Hotel Meliá Cohiba.

“I show you the investigative report from the incident at the Hotel Tritón: is your name on the report?” One at a time, he also asked about the investigative reports from the hotels Capri, Nacional, Sol Palmeras and Chateau Miramar, as well as the restaurant La Bodeguita del Medio. He thus elicited a series of “no’s” from the witness, which is what he was after all along. The defense attorney wanted to leave the jurors with the impression that the Cuban investigator had perjured himself when he testified to having been present at most of the crime scenes. Thereby calling into question whether bombs exploded at all in Havana in 1997.

“If you would be so kind…”

“If you would be so kind as to examine my complete investigative report, you will see my name there,” answered the Cuban investigator. But Posada Carriles’ attorney wasn’t interested in the truth. Instead, he barked, “Isn’t it true that your name doesn’t appear on these reports because you are not an investigator after all, but a Cuban intelligence officer?”

“No,” the Cuban investigator responded patiently, and once again he reminded the Miami attorney that the full investigative report carries his name as chief investigator. It also names several other team members who helped him with the investigation. “That’s not to say that I didn’t see, that I didn’t observe,” added the witness. “Look, I’m a boss. I go to the crime scene, I see it, I give orders,” explained the investigator, “but I have other people who conduct different details of the investigation.”

When it was the U.S. Attorney’s turn to question the witness, he directed the jurors’ attention once again to the crime scene photographs. The photos are very important, because they are evidence that several bombs exploded in Havana in 1997. Reardon showed the witness photo after photo, and asked that he tell “the ladies and gentlemen of the jury if these crime scenes are those that you saw with your own eyes.” “Yes,” he affirmed as he looked at each photo.

It was then Posada Carriles’ attorney turn to question the witness again. Lawyers call this re-cross. The Miami attorney asked the clerk of the court to project onto the court’s television monitors the image of the Copacabana on September 4, 1997. Although the defense attorney didn’t remind the jurors, that’s the hotel where an explosion killed the Italian businessman, Fabio Di Celmo.

Wicker chairs

The defense attorney cross-examined the Cuban investigator at length about the wicker chairs that appear in the photos alongside the pool of blood from Di Celmo’s fatal wounds. “The alleged pool of blood,” as Hernández cynically referred to it.

“Doesn’t it seem strange to you that the explosion could have destroyed wood but not have affected the wicker chairs?” he asked, pointing to the upright chairs in the photograph. The witness’ response surprised him. “Wicker chairs are hollow. That’s why the shock waves from the explosion did not knock them to the ground,” said the Cuban investigator. “Wickerwork is not like the sail of a boat that fills with the wind. Furthermore, the hotel is a relatively open place,” he added.

Despite the investigator’s explanation, Posada Carriles’ attorney persisted in trying to insinuate to the jury that the crime scene must have been altered.

The jury

Each time the defense attorney asked the same question, the witness gave him the same answer—over and over. I looked at the jurors. The notepads were on their laps and the pencils in their pockets, no one was taking notes any more. The juror with the white blouse in the front row rubbed her eyes. The overweight juror on the left stretched and yawned, and the African-American in the second row who always appears more attentive than the rest, looked uncomfortably at his watch. What must they be thinking?

And what was Posada doing?

Meanwhile, Luis Posada Carriles slept like a baby. During a break, when he sensed movement all about him, he awoke and uttered, “We shall see, we shall see.”

The jurors only see the defendant, when they are in the jury box. They see an old man who naps every day. I’m sure they hear him snore. I do. They have probably also seen him awaken, usually dabbing at the saliva on his chin with the white handkerchief he keeps in his pocket.

But the jurors don’t see him during the breaks, stepping briskly down the hallways of the courthouse with his papers and plastic shopping bag. They don’t see him animatedly engaging with his lawyers and assistants. Could it be that his lawyers want the jurors to see him asleep? Might they be looking for the jurors to take pity on a seemingly frail little old man? Is that why his lawyers don’t wake him? Is he really asleep?

The curtain falls

The scene of the defense attorney’s final act with the Cuban investigator ended similarly to the play’s opening scene—with great fanfare and a cascade of questions intended to confuse and obfuscate the jury.

Questions are not evidence, but they are weighty. Attorney Hernández asked these and more like them. “When you met with the prosecutors in Cuba, what did they promise you?” “Did you participate in any negotiations about the terms of your testimony?” “Isn’t it a fact that the U.S. Government is paying your expenses during your stay in this country?” “Did they offer you any immunity in exchange for your testimony here? Yes or no.” “Do you know what sworn testimony is?” “Do you know what an oath is?” “Questions were asked of you here whose answers were under oath. Do you know that answers offered under oath expose one to sanctions such as perjury?” “Do you feel free to answer questions about Cuba?” “Did you tell the truth when you stated that Cubans can freely enter and use hotels on the island?”

It’s not necessary to detail how the even-tempered witness responded. I have rarely seen a witness as coherent and confident in front of a jury. The way in which he concluded his testimony will suffice: “The only thing that the United States asked me to do was that I tell the truth about my investigations in the case of the bombs that exploded in Havana.”

Tomorrow the Cuban forensic pathologist, Yleana Vizcaíno Dimé, will testify about the autopsy she performed on Fabio Di Celmo.

To be continued.

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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