The Expert’s Ignorance and the 71 Objections From the Prosecution

The attorney for one of the convicted killers of Chilean diplomat, Orlando Letelier, testified today in El Paso on behalf of Luis Posada Carriles.

José Dionisio Suárez Esquivel was convicted for conspiring to murder Letelier and his assistant Ronni Karpen Moffitt in Washington, D.C., on September 21, 1976.  Michael Townley, a U.S. citizen, confessed to having placed the bomb underneath the car.  Suárez Esquivel and his accomplice Virgilio Paz detonated it as Letelier’s car was passing near the Chilean embassy that rainy morning.

Afterwards, Suárez Esquivel went underground.  He lived as a fugitive for 14 years, until his arrest in Florida in 1990.  He later confessed to his role in the double-murder conspiracy and was sentenced to eight years in a penitentiary.

With a straight face Ralph E. Fernández, the attorney for Suárez Esquivel, argued the novel legal theory that the rain—not his client—had detonated the bomb that killed Letelier and Moffett.  Not surprisingly, no one bought his story.  The Government didn’t indict the rain, and his client was convicted of murder.

The expert’s knowledge

Ralph E. Fernández took the stand in El Paso and testified that he left Cuba as an eight-year-old-child.  He said that he has not set foot on Cuban soil since the day he left in 1961, yet he dared to declare to the jury, “I know everything that goes on in Cuba.  It is difficult for me to be modest about this.”  Fernández is now a practicing attorney in Tampa, Florida.

Judge Kathleen Cardone qualified the witness as an expert in matters relating to Cuba.  As such, Fernández was able to freely air his opinions without any need to establish an experiential foundation.

Fernández’s testimony was being sought by the defense to impeach the testimony of the Cuban investigator, Roberto Hernández Caballero, who testified several weeks ago.  The Cuban witness had established that bombs exploded in several Cuban hotels and restaurants in 1997.  Fernández maintains that Hernández Caballero falsified evidence—years ago—against a client whom the attorney defended in Tampa on federal charges of skyjacking a Cuban plane.

The prosecutor’s 71 objections

The U.S. government attorney, Timothy J. Reardon, III, vigorously opposed Ralph Fernández’s testimony and moved that Judge Cardone not allow the witness to testify.  “He is simply a defense attorney who cross-examined Hernández Caballero some years ago, defending a client of his who was accused of hijacking a Cuban airplane,” argued Reardon.  The judge rejected his argument and allowed the testimony.

During the two hours that followed, defense attorney Rhonda Anderson questioned Fernández, and Reardon rose to make 71 forceful objections.  Reardon challenged practically all of the defense attorney’s questions.  But Judge Cardone overruled approximately 95 per cent of the objections.

Reardon’s main complaint was that the witness’ testimony was totally irrelevant to this case.  The skyjacking of a Cuban airplane years ago is not related to the charges pending in El Paso against Posada Carriles, Reardon said.  Moreover, Fernández has no personal knowledge whatsoever about the bombs that exploded in Havana in 1997.  Lastly, argued Reardon, the defendant is Luis Posada Carriles and not the Republic of Cuba.  The judge did not offer her reasons for overruling the prosecutor’s objections.

The only time that Posada Carriles’ full name was mentioned during Fernández’s testimony was when Reardon mentioned it in order to object to the irrelevance of the Tampa attorney’s statements.

The informant

The witness astonished the judge, the attorneys, the prosecutors and the jury, when without anyone asking, he blurted out in open court that he was an FBI informant.  “I collaborated with U.S. intelligence even while representing my client, because I thought there were certain common interests,” declared Fernández.  The Tampa attorney did not explain whether he had sought his client’s permission before informing the FBI.  It must be hoped that he did.

“My handlers are with the FBI,” the witness said proudly.  “A handler is the agent who directs you,” he declared during direct examination by the defense attorney.

The startled prosecutor rose and said, “Excuse me.  Did he just say that his handlers are with the FBI?”  Defense attorney Anderson confirmed that the witness had said precisely that.

Reardon objected to the testimony again and was overruled.

Attorney Anderson then told the witness that she wanted to ask him about a letter he received from his FBI handler.  Fernández turned to the jurors and dropped this tantalizing phrase, “We are now entering into matters that have to do with the national security of the country.”

Reardon, who had just been handed a copy of the letter, jumped from his seat and bellowed, “Your Honor, this is a ‘Dear Ralph’ letter from an FBI agent.  It’s not even been offered as evidence yet, Your Honor!”

The judge called the attorneys for a sidebar conference.  We don’t know what they discussed in private, but when attorney Anderson renewed her direct examination, she made no further mention of the ‘Dear Ralph’ letter from the FBI.  We presume “the national security of the country” is safe for now.

But this witness continued to divulge alleged secrets without any encouragement.  For example, he suddenly revealed that he had helped another of his clients, Adel Regalado, collaborate with the Assistant United States Attorney in Miami, Caroline Heck-Miller, to convict the Cuban Five.  “Regalado was an ‘asset.’  This has not been previously divulged,” said the attorney smugly, as if he was giving an exclusive for the local nightly news.  I almost expected him to add, “Details at 11:00.”

A quick check of the Internet reveals that the news was not as exclusive as the witness had made it sound.  Fernández had already given that “exclusive” story to a Florida paper in 2002.  He told the press that a Miami prosecutor had informed an immigration judge that Regalado provided the Government with information about the Cuban Five that was useful to their prosecution.

Brothers to the Rescue

Attorney Anderson then turned to the shooting down of the Brothers to the Rescue aircraft by Cuban Mig fighter planes in 1996.  This also had nothing to do with the case at hand.  Posada Carriles was not even remotely involved in that incident.  Nevertheless the judge allowed it.

“In that case, Cuba introduced falsified evidence, trying to establish that the shoot-down occurred over Cuban waters,” said Fernández while admitting that he had also represented José Basulto, the founder and head of Brothers to the Rescue.

In response to questions by the defense about Brothers to the Rescue, Fernández testified about the organization’s alleged humanitarian work, but never spoke about José Basulto’s acts of violence against civilian targets in Cuba.

Cuba films its tourists going to the bathroom?

The expert witness repeated that he knew everything there is to know about Cuba, and declared under oath that Castro’s communist government films all foreigners who visit the island, even when they are using the bathroom.  Satisfied that she had laid a proper foundation for her next line of questions, defense attorney Rhonda Anderson asked the witness whether the hotels in Cuba have the necessary video equipment to do this surveillance.

“Do you know if Cuba does videotaping in the hotels?” asked Attorney Anderson.

The answer was worthy of the type of nonsense expounded by the Mad Hatter in Alice in Wonderland.  Fernández said, “Not as different from everywhere which is everywhere.  Everything is videotaped everywhere in Cuba, according to our intelligence.”

With a look of “What did he just say?” on his face, Reardon lodged three objections.  They were each overruled.  Judge Cardone allowed Fernández to finish his narrative about the alleged videotaping habits of the Cuban government.  “From bathrooms to kitchens, everything is videotaped in Cuba,” he declared under oath.

The witness did not tell the jurors how many video cameras there are on the island nor how much it would cost to record all the bathrooms, kitchens and corners of an entire country.

The prosecutor was stunned.  “I don’t even know where to begin with this objection,” he told Judge Cardone.  He needn’t have bothered.  The judge resoundingly rejected his objection and allowed the witness to continue to tell the jurors about how Cuban communists tape the tourists as they use the toilet.

The judge was annoyed, but not by the witness’ testimony.  She threatened the prosecutor.  “I’m very close to imposing sanctions, Mr. Reardon.”  The prosecutor apologized, but continued to object throughout the rest of the questioning of Fernández.

An “expert” opinion

Moving from the expert witness’ special insights into the voyeuristic habits of communists in Cuba, attorney Anderson asked him, “Do you have any opinion about Roberto Hernández Caballero?”

The prosecutor objected again, but for naught.  The judge overruled him, and allowed the witness to answer.  “Colonel Hernández Caballero does whatever serves the interests of Cuba,” said Fernández.

The defense attorney then concluded her cross-examination.

“I am proud to be an American”

It was Reardon’s turn to ask questions.  “Do you support the assassination of Fidel Castro?” he asked.

“No.  I want him to live 20 more years in order to see him debilitated, so that he pays for everything that he has done,” said Fernández.  “I want the world to see him debilitated, because Castro is the founding father of terrorism,” added the attorney for the man who murdered Orlando Letelier.

Reardon then asked what cause Fernández advocated.  The witness liked the question.  He immediately answered with evident pride in his voice, “First, for Cuba’s freedom, and second, for the security of the United States.  One cannot be a good Cuban if one is not a good American [referring to U.S. citizens and not to the inhabitants of the rest of the American continent].”

He further explained that if a conflict between Cuba’s freedom and the security of the United States occurred, he would side with the latter.  “I am proud to be an American,” said the witness.

Recalling that Fernández had twice stated that he knew “everything that happens in Cuba,” Reardon showed him a photo of the Copacabana Hotel, the hotel where Fabio Di Celmo was murdered on September 4, 1997 by shrapnel from a bomb that Posada Carriles is alleged to have sent to Cuba.  “It is a building that I have never seen before,” said the expert.

“Do you have personal knowledge that there are video cameras monitoring this hotel?” asked the prosecutor.  Fernández tried to explain that he had been told that there were, and Reardon insisted that the witness’ answer be limited strictly to what he himself had observed.  “No,” the witness had to respond.  “I’ve never been there.”

Having unmasked the expert before the ladies and gentlemen of the jury, Reardon concluded cross-examination.

The Honduran witness

The defense then called Fernando Lardizábal as its next witness.  An officer in the Honduran navy in the 1980s, Lardizábal admitted that he, too, had no information about the bombs that exploded in Havana in 1997.

Reardon asked the judge to dismiss the entire testimony of Lardizábal as completely irrelevant.  But Judge Cardone rejected the prosecutor’s request and allowed the Honduran to state that Posada Carriles was a “senior U.S. intelligence officer who fought in the name of the United States in the 1980s in Central America.”

He said that Posada Carriles represented the CIA in various high-level meetings in Honduras and that he was in charge of supplying the Nicaraguan Contras during that decade.  “Posada Carriles was in the CIA,” stated Lardizábal.

The defense’s strategy

Why such eagerness by the defense to bring up Posada Carriles’ history with the CIA?  Since his client’s arrest by U.S. Government officials in the spring of 2005, Arturo Hernández has been threatening to tell everything he knows regarding his client’s years in the CIA.  The prosecution has fought tooth and nail against the declassification of certain sensitive documents that Posada’s lawyers wanted released.

This afternoon, for example, the prosecution filed a motion under seal that it prepared three days ago regarding information that the defense has asked the Government to declassify.

The testimonies of Fernández and Lardizábal are meant to remind the judge and the prosecutor that Posada is a man who knows a lot.  That if they continue to pressure him, he is capable of divulging certain CIA secrets that the United States would rather that he did not tell.  Fernández left it very clear that he also knows a lot, and it would appear that he has a great desire to talk about it.

Until now, the defense has not rebutted the evidence that the Government presented in its case in chief:

* Bombs exploded in key hotels in Havana in 1997, one of which killed Fabio Di Celmo on September 4, 1997, in the Copacabana Hotel.

* Posada Carriles told an immigration judge and various immigration officials under oath that he was not involved in those bombings.

* Posada Carriles admitted to the New York Times that he’d been the mastermind of those terrorist actions and that he even received financing from New Jersey to carry out the campaign against the Cuban tourism industry in 1997.

We shall see if the defense is thinking of rebutting the prosecution’s evidence or if the jurors will have to listen to the defense attorney demonizing Cuba to sanctify Posada and if it will continue to threaten to let the skeletons of the CIA’s fifty-year war against Cuba out of Langley’s closet.

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/2011/04/01/diario-de-el-paso-la-ignorancia-del-experto-y-las-71-objeciones-del-fiscal







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José Pertierra is an attorney in Washington, DC.

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