Families of dead women want new
trial
By MARIANNE M. ARMSHAW
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 couldnt 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 womens 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
didnt 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,
couldnt 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
churchwomens case marks the first time a jury was involved.
If a new trial is granted, the womens 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 jurys
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.
Gods 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 dont 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 didnt have effective control over
the troops, Sasson said. Lawyers for the murdered womens families
failed to link the militarys pattern of violent repression directly to
the rape and execution of the four women, she said.
Though Judge Hurleys 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
clerks office at the federal courthouse in West Palm Beach.
National Catholic Reporter, November 17,
2000
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