By José Pertierra, 31 March 2011.
It’s one thing for an attorney to zealously defend his client’s interests and quite another for him to embrace the defendant’s premises. An attorney is most effective, when he keeps a certain critical distance.
Here in El Paso, Luis Posada Carriles’ attorney has adopted his client’s cause as his own—thus coloring his cross-examination to the point of silliness. His nutty questions about Cuba are pregnant with the false postulates of certain exiles in Little Havana who haven’t set foot on Cuban soil in more than five decades. It’s evident that the Miami defense attorney hasn’t done his research.
The art of cross-examination
A good defense attorney takes charge during cross-examination, but he should be careful that the jurors do not perceive him as abusive of the witness. The secret is in being able to develop a narrative for the jury, through skillful questions, that is convincing yet different from the story the witness wants to tell.
But if the jurors feel that the attorney is bullying the witness, the cross-examination backfires. And if the questions are fraught with dubious assumptions, the witness can easily disarm them and expose the attorney’s theory of the case as sheer fantasy.
Many of the questions posed today by defense attorney Arturo Hernández to Ann Louise Bardach revealed more about the attorney, than the witness.
The attack begins
Hernández arrived this morning in a dark grey suit, white shirt and purple tie. With a furrowed brow and reddened ears, he adjusted his spectacles on the tip of his nose and began firing away at the witness.
“Having established, Ms. Bardach, that you have been in Cuba 10 times and that you have interviewed Fidel Castro on two occasions, isn’t it true that only people who are trusted by the Comandante manage to obtain an interview?” Hernández asked.
With that question, the hand-to-hand combat that began yesterday between the Miami attorney and the journalist from California, resumed. “That’s not true,” answered Bardach.
“Isn’t it true that only journalists favored by the regime are granted the privilege of interviewing the Comandante?”
Annoyed by his cynicism, Bardach raised her voice and said, “That’s not true, Mr. Hernández. The correspondents Maria Shriver, Ted Koppel, Tom Brokaw and Peter Jennings have also interviewed him. Do you think that they’re all agents of the Cuban Revolution?”
Attorney Hernández then showed a photograph to the witness for identification. “It’s a photograph that shows me with Fidel Castro,” said Bardach.
“The photograph shows you in close proximity to the Comandante,” said Hernández, sneering each time he said Fidel Castro’s rank. Without knowing where Hernández was headed with this question, Bardach answered, “Yes. This is our sit-down interview,” and shrugged her shoulders.
“Is that a pen in your hand?” asked the defense attorney? Without waiting for the answer to the question, Hernández asked another, “Isn’t it true that journalists are not allowed to interview Fidel Castro with a pen in their hand?” “I’ve never heard such a thing,” answered Bardach.
“Isn’t it true that journalists are forbidden to sit so close to Fidel Castro?” inquired the Miami attorney. Incredulous, Bardach answered, “No, that’s not true.”
I feel slandered
“But isn’t it true that you have a history of writing articles critical of the Cuban American community in Miami?” asked Hernández.
Bardach, who has earned numerous prizes and recognition for excellence in journalism—including a place on a Miami Herald top ten books list—reacted sharply. “That’s not true, sir, and you know it.” “I don’t demonize anyone in my stories. I feel as if I am being slandered here.”
Hernández then asked Bardach several more times why hadn’t she interviewed or written previously about dissidents in Cuba. In vain Bardach tried to explain to the Miami attorney that she had spoken with dissidents in Cuba and even spent quite a bit of time with General Patricio de la Guardia, the twin brother of Colonel Tony de la Guardia, who was executed in Cuba along with General Arnaldo Ochoa in 1989 for drug-trafficking and treason. Patricio de la Guardia received a 30-year prison sentence. He is now serving the remainder of his sentence under house arrest.
“Are you referring to the Patricio de la Guardia who is the paid assassin of Fidel Castro?” asked Hernández, looking toward the jury. “I’ve never heard that,” said Bardach. “Look, Mr. Hernández, you know that Mr. Posada’s sister is a colonel in the Cuban army. Let’s not criminalize everybody who lives in that country,” the thoroughly irritated Bardach answered.
Hernández is known to ask the same question in a variety of ways during cross-examination, and so he asked again, “You think that you haven’t written critically about the Cuban-American community?”
“Look, Mr. Hernández,” answered Bardach. “The truth is that there are people in that community that have broken the law.” She offered the example of David Rivera, a Cuban American congressman from Miami who is under investigation for financial irregularities, as well as Jorge Mas Canosa, linked to, “That funny business with Miami County. The entire community is not tarnished simply because of the mistakes of certain individuals,” stated Bardach.
Hernández: “Are you mocking me?”
Hernández directed Bardach’s attention to Cuba once again. “The Committees for the Defense of the Revolution (CDR) are instruments used by the Castro regime to maintain control of the country, isn’t that true?” asked the attorney.
“They also distribute food and help neighbors resolve certain daily problems,” she said.
The vein on the Miami attorney’s neck bulged and his face reddened. “Are you mocking me?” he demanded. “Fifty years of exile and you are telling me ...?”
He didn’t finish the question. Prosecutor Timothy J. Reardon rose and made an objection, which Judge Kathleen Cardone immediately sustained. “Move on,” she said. Hernández changed the subject, but only slightly.
“Didn’t you write in your book that the Miami community is a mirror image of the CDRs in Cuba?” he asked.
“Look, Mr. Hernández, the idea you are presenting here—that I have a dog in this fight—is a lie—sir,” Bardach answered.
There is a four-minutes-and-twenty-seconds gap within the more than six hours of tape recordings that Bardach made during her interview of Posada Carriles in June of 1998.
The defense attorney directed Bardach’s attention to it, “I want you to listen to the gap.”
A perplexed Bardach responded, “Mr. Hernández, I’m confused. You want me to listen to a gap?”
That was exactly what attorney Hernández wanted. For more than four long minutes, the judge, the attorneys, the prosecutors, the witness, the interpreters, the bailiffs, the clerks, the assistants, the jurors and the journalists listened to the gap in the tape. “A dramatic pause,” as the prosecutor later referred to it.
At the end of the sound of silence, Hernández drew his finger across his throat and his colleague, Rhonda Anderson, switched off the recording. “Ms. Bardach, now that we’ve heard a gap of four minutes and twenty seconds, you may explain to us what may have caused that.”
“I don’t know. Perhaps someone pressed the wrong button when the transcript was made. That sometimes happens. But if anything significant had happened during that brief time, it would be in my notes—and there’s no indication of that,” answered Bardach.
“You erased that part of the recording?” Hernández asked accusingly.
“Please! That’s absurd,” answered Bardach. “I am in the information collecting—not the destroying—business. I’m a journalist,” answered Bardach.
The size of the recorder
The defense attorney also accused Bardach of recording the interview without having sought his client’s permission. “That’s almost funny. The tape recorder was practically on Posada’s lap many times. He himself turned it off when he didn’t want something recorded. It’s huge. It’s more than six inches high,” answered the journalist, mouthing an audible “duuuh.”
The jurors will remember the answers, not the questions
Hernández failed to impeach Bardach’s testimony. He knew it. He looked deflated. Tomorrow he will have another opportunity, but today his questions didn’t hurt her.
Bardach proved to be difficult to cross-examine. She is a brilliant and eccentric witness. Hernández could not box her in. She turned the tables on him, giving the jurors lengthy explanations that put Hernández’s questions into a context that suited her.
While on the stand, Bardach nearly drove the judge, the prosecutors and the defense attorney over the edge. The jurors, however, clearly enjoyed her. Bardach gave them a lesson on the role of Posada Carriles in the 1997 bombing campaign in Havana, as well as a history of the terrorism Cuba has faced over five decades, including the role played by the Cuban American National Foundation.
Today the jurors will remember Bardach’s stories, not Hernández’s questions.
The tango and the confession
The day ended with a clip from the interview. The jurors heard the unmistakable voice of Posada Carriles, but in the background they also heard a trio singing one of Carlos Gardel’s most famous tangos:
El día que me quieras
no habrá más que armonía.
Será clara la aurora
y alegre el manantial.
Traerá quieta la brisa
rumor de melodía.
Y nos darán las fuentes
su canto de cristal.
El día que me quieras
endulzará sus cuerdas
el pájaro cantor.
Florecerá la vida
no existirá el dolor.
(The day that you love me/There’ll be only harmony/The dawn will be clear/and the spring joyful./The breeze will carry a quiet/hint of melody./And the fountains will give us/their crystal song./The day that you love me,/the songbird’s call/will be sweetened./Life will blossom,/there will be no pain.)
In the foreground, Posada was singing a different sort of tango, one about being the mastermind behind the bombings in Havana and the murder of Fabio Di Celmo in the Copacabana Hotel.
Bardach: So, you’re like ... “el jefe.”
Bardach: The mastermind ...
Posada: Compartmentalized ... I know everybody but they don’t know [me] ...”
Bardach: So you were saying ... the intention was to scare off the tourists, not to kill the tourists.
Posada: Yeah. Sure.
Bardach: But one, you know, one person was killed.
Posada: Yeah. But you know what happened?
Posada: Sixty feet away ... here was this poor guy ... in the chair ...
Posada: ... and the bits ... small ...
Bardach: Shrapnel ...
Posada: ... ahhh ... and took the jugular. This was the unluckiest guy in the world ... because it took the jugular ... It’s sad ... because it is not our intention ... But we can’t stop because ... eh ... that Italian was sit down ... at the wrong time ... at the wrong place.
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.