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Families of dead women want new trial

Special to National Catholic Reporter
West Palm Beach, Fla.

Two members of the jury that found Salvadoran military generals not liable for the torture and murder of four American churchwomen said they believed the men were murderers, but couldn’t find them responsible under the law.

Families of the murdered women were stunned by the verdict and said they plan to ask for a new trial.

On Nov. 3, a 10-member jury found that former ex-generals Jose Guillermo García, 67, and Carlos Eugenio Vides Casanova, 62, did not bear “command responsibility” for the women’s deaths. García and Vides served as military leaders during the Salvadoran civil war that pitted a right-wing military against leftist insurgents and left 75,000 dead.

If a new trial is granted, another jury may sit in judgment of the same case. The families of Maryknoll Srs. Ita Ford and Maura Clarke, Ursuline Sr. Dorothy Kazel and lay volunteer Jean Donovan will cite jury confusion and a verdict at odds with the evidence in their request for another trial.

Jury foreman Bruce Schnirel, a 50-year-old postal worker, said jurors in the civil case became “hung up” on the concept of “effective command” as explained in 12-pages of jury instructions provided by U.S. District Judge Daniel Hurley. Hurley presided over the complex, sprawling trial that began Oct. 10 and often resembled a graduate seminar on Salvadoran history and politics.

“I was absolutely sick to my stomach about this. I didn’t sleep the night before [a verdict was reached],” Schnirel said. “I was all set to convict. I had no doubt in my mind that these guys were murderers. But the instructions defined effective command as a leader having the legal authority and practical ability to control troops.” The plaintiffs’ lawyers, he said, “painted a picture of a military and country out of control, with left-wing and right-wing factions running around in and out of the military.” So the two generals, he said, “couldn’t have effective command.”

The four churchwomen were kidnapped, raped and murdered 20 years ago in El Salvador. Five low-ranking National Guard members were convicted of the murders in 1984. Four of them continue to insist they acted on orders.

The generals, living in retirement in South Florida, were tried under the Torture Victims Protection Act, a 1991 federal statute. Fewer than a dozen cases have been brought to trial under the act, and the churchwomen’s case marks the first time a jury was involved.

If a new trial is granted, the women’s families would once again bring to civil court the two former military leaders they blame for the Dec. 2, 1980, killings and the institutionalized violence that led to them.

García headed the military from 1979 to 1983. Vides served under him as head of the National Guard, then replaced him as defense minister from 1983 to 1989.

“We are looking at confusion regarding command responsibility, that the jury had difficulty understanding the legal concept, as a basis for awarding a new trial,” said Tallahasee attorney Bob Kerrigan. He and Palm Beach lawyer Bob Montgomery provided pro bono legal counsel for the families of the dead women.

Throughout the trial that began Oct. 10, U.S. District Judge Daniel Hurley repeatedly emphasized that the critical importance of “command responsibility,” the legal concept that says superior officers can be liable for war crimes committed by their troops if they order, tolerate or fail to prevent atrocities -- particularly if they fail to act to stop a pattern of prolonged violence that breaks international law.

During deliberations, jurors peppered the judge with repeated questions about command responsibility, seeking clarification for the painstakingly crafted legal instruction that was supposed to help them determine whether the generals had effective command over their troops and could be held responsible for the atrocity that outraged the nation and interrupted the flow of billions of dollars in U.S. military aid to El Salvador.

Attorneys for the families spent days using U.S. State Department documents and eyewitness accounts to detail escalating military violence against citizens and insurgents, yet apparently failed, in the jury’s eyes, to prove that the military functioned effectively in carrying out its perceived anti-communist mission.

The defense believes the truth has set them free.

“God’s will has been done,” García said during a phone interview from his Plantation, Fla., home. Both generals -- and their attorney, Miami lawyer Kurt Klaus -- repeatedly referred to their deep Catholic faith during the trial. García refused further comment, saying that he preferred to speak only in Spanish and did not have an interpreter available.

“I hope the families find peace and closure,” Klaus said. “I don’t believe they have a good case for a new trial.”

But Mike Donovan, older brother of the slain Jean Donovan, said family members savor a partial victory: getting the generals into court for a trial. “There is such a thing as the court of public opinion,” he said.

At least one other juror believes that the six women and four men on the panel may have been confused by the legal underpinnings of the case.

“My view on it is that jury never got past semantics of the word effective command. There was absolutely confusion,” said juror Lilyan Sasson, a West Palm Beach entrepreneur.

“These guys [the defendants] were guilty, they are murderers, but seven jury members argued that they didn’t have effective control over the troops,” Sasson said. Lawyers for the murdered women’s families failed to link the military’s pattern of violent repression directly to the rape and execution of the four women, she said.

Though Judge Hurley’s office said he would not comment on an open court case, attorneys at the Lawyers Committee for Human Rights, which has worked for years on the murder case, believe Hurley has grounds to order a new trial.

“Obviously the feeling is that the record for liability is very strong. Our principal argument is that the verdict was against the weight of evidence. In a civil trial, we have to prove preponderance of evidence supports the verdict,” said Rob Varenik, spokesman for the lawyers’ human rights group.

Bill Ford, the brother of murdered nun Ita Ford who is also a New York trial attorney, said he believes that some jurors did not come to the trial with an open mind.

“My guess is that there were one or two people on jury who were against us from the outset,” Ford said. “We are filing a motion for a new trial on the grounds that the weight of evidence was clearly in favor of the plaintiffs’ case.”

Attorneys have at least 10 days after the verdict is recorded to file the motion requesting the new trial. As of Nov. 8, the “not liable” verdict had not yet been formally recorded, according to the clerk’s office at the federal courthouse in West Palm Beach.

National Catholic Reporter, November 17, 2000