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Swinging Doors

by JOSÉ PERTIERRA

A pair of swinging doors separates the well of the court from the seating area for the press and invited guests.  They swing four or five times every time someone pushes on them to pass through.  This afternoon, after the defense attorney for Luis Posada Carriles finished his cross-examination of the journalist Ann Louise Bardach, he barreled through the doors with such force that they swung 12 times altogether.  I know because I counted.

Hernández knew that he did not succeed in discrediting the journalist, despite his desperate effort to accomplish that.  Bardach left the stand, having firmly established that the recording of her 1998 interview of Posada Carriles, which the jurors heard, was authentic.  She also evidenced that the Solo fax was written and signed by the defendant.

The jurors listened to the recording and heard Posada Carriles confess to being the mastermind behind the bombings in Havana, and they read the Solo fax, which revealed that the money trail for the bombings began in New Jersey and led directly to Posada Carriles in Guatemala and El Salvador.

Last chance

Today was the last chance for the defense attorney to impeach Bardach.  After watching him in action for the past two and a half months, the jurors have learned to gauge the defense attorney’s temperament.  For one thing, his ears give him away.  The redder they get, the nastier his demeanor.  This afternoon they were the color of ripe tomatoes.

Hernández opened fire with a statement, rather than a question.  “Ms. Bardach, each time I ask you about the conversation that you had with Mr. Posada after you turned off the tape recorder, you take advantage and add or subtract whatever occurs to you.”

Bardach responded defiantly, “You want to ask and answer your own question, and you are making wild accusations against me.  It’s too bad you’re doing this.”

Posada’s pride

Hernández then focused on an article that Bardach and her colleague Larry Rohter had written for the New York Times and which the Times published on the front page of its Sunday edition on July 12, 1998.  The defense attorney read aloud from Bardach’s article, “Mr. Posada proudly admitted authorship of the hotel bomb attacks last year.  He described them as acts of war intended to cripple a totalitarian regime by depriving it of foreign tourism and investment.”

Hernández followed that question with this one, “Where in the transcript—out of Mr. Posada’s mouth—did he tell you that he ‘proudly admitted’ to the bombings?”  “I asked him and he told me ‘yes,’” answered Bardach.  “I took that as an affirmative response.  We journalists are in the information collection business, and you lawyers in the deletion business.”

Cherry picking

One way of twisting the meaning of the compromising statements Posada Carriles made to Bardach is to try to take them out of context, something that on the stand she repeatedly called cherry picking.  That is, selecting the most desirable phrases.

This exchange between the attorney and the witness is an excellent example of Hernandez’s cherry picking today.  He read a portion of the Bardach interview out loud, in a voice that was alternately monotonous and derisive:

Bardach: Okay…then, the part about Colombia is … true.  He conspired to move plastic explosives from Guatemala to Cuba last fall, hiding them in diapers, shampoo bottles and…you know, Guatemalans can pass as tourists.

Posada: True, more or less.

Bardach: True, more or less.

Posada: It’s not … it’s not …

Bardach: Not completely.

Referring only to that portion of the transcript, Hernández asked Bardach, “Mr. Posada denied there having introduced explosives into Cuba from Guatemala, but you say ‘not completely.’  Isn’t it true that you are putting words in my client’s mouth?”

“Wrong!” said Bardach, at the same time mimicking the sound of a bell.  “What you’re doing is shameful.”  She pointed out to the defense attorney that in the part of the interview he selected, Posada was talking about an article that appeared in the Miami Herald the previous month, which alleged that Posada had planted bombs in Guatemala.

“In the part of the interview you cherry picked, I was reading to him the Miami Herald article, and he responded by telling me that no bombs went off in Guatemala,” said Bardach.  “He was telling me that the Miami Herald is wrong, that the bombs went off in Cuba—not in Guatemala.”

In apparent exasperation, she added, “Let the jurors read the entire interview, including the parts you censored.  Let them also read my three articles from the New York Times, as well as my books (Cuba Confidential  and Without Fidel).  It would be much better for them.”

You don’t want to hear the truth

The exchanges between Posada Carriles’ lawyer and the journalist got testier.  Hernández’s face reddened and he raised his voice at the witness.  “How can you, with God as your witness, say that my client was proud [of what he’d done]?” he bellowed.

Bardach didn’t flinch.  She said, “Would you stop yelling at me and using that tone of voice?”  She added, “You don’t want to hear the truth.  Posada was proud of what he’d done, and he got to be on the cover of the Sunday New York Times.  That’s as good as it gets!”

The purpose of cross-examination is to suggest to the jurors that the witness is lying.  There is a danger, though.  If the jurors believe that the cross-examiner has become abusive, is playing tricks or manipulating the evidence, then it’s the attorney—not the witness—whose credibility is undone.

During cross-examination, attorney Hernández insulted Bardach.  He mocked and tried to ridicule her.  When he couldn’t make any headway with his aggressive questions, he lost his temper and shouted at her.

Had he bothered to look at the jurors, he would have observed that they were enjoying Bardach.  They liked her idiosyncrasies and her quick retorts.

But it was a rough cross-examination.  When Hernández finally finished, Bardach left the stand, walked directly into the arms of her husband Bob and burst into tears.

The King of Hearts, the Unhappy Lizard and Arturo Hernández

The defense attorney’s questions were reminiscent of the cross-examination by the King of Hearts at the trial of the Knave of Hearts in the Lewis Carroll story, Alice’s Adventures in Wonderland.  As the White Rabbit announced in open court, the Knave was indicted for stealing the Queen of Hearts’ tarts.  The King cross-examined the witness:

“What are tarts made of?”

“Pepper, mostly,” said the cook.

“Treacle,” said a sleepy voice behind her.

“Collar that Dormouse,” the Queen shrieked out. “Behead that Dormouse! Turn that Dormouse out of court! Suppress him! Pinch him! Off with his whiskers!”

The King’s questions in Wonderland made no sense.  They were pure gibberish.  Bill, the unhappy Lizard in the jury box, tried to take notes but soon realized that his scratches made no marks on the slate.

Here in El Paso, the jurors’ notepads were also blank.  They stopped taking notes because they had come to realize that Hernández’s questions were no more than nonsensical wordplay.  At the end, the defense attorney looked like he, too, wanted to behead the witness, but he had to confine the unleashing of his frustration to the courtroom’s swinging doors.

Sidebar

This afternoon a giant of the legal profession, Leonard Weinglass, passed away at the age of 78.  He was the attorney for the Cuban Five, a fighter for justice.

Weinglass did not become a lawyer to make money or to run for office.  His clients weren’t bankers or drug-traffickers.  He chose to defend los pobres de la tierra (the poor people of the earth) and those who struggled for a better world.

Weinglass’ life taught us that justice is not the law we find in books.  He showed us that the finest advocacy is not merely interpreting the law but striving for justice.

Leonard Weinglass, ¡Presente!

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/2011/03/24/el-diario-de-el-paso-puertas-batientes

 

 

 

More articles by:

José Pertierra is an attorney in Washington, DC.

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