Friday’s too-soon-to-have-even-been-considered “not guilty” verdict in Luis Posada Carriles’ immigration fraud trial landed with a shocking thud.
After a 13-week trial filled with conflicting testimony from 33 witnesses, a jury in El Paso, Texas, took just two hours and 57 minutes to conclude that Posada—the alleged mass-murdering mastermind of a 1976 Cubana Airlines bombing that killed all 73 people aboard; the confessed orchestrator of a 1997 Havana hotel bombing campaign that killed an Italian-Canadian businessman; and an already convicted felon as the result of a botched 2000 attempt to assassinate Cuban President Fidel Castro in Panama—was not guilty.
The jury had, in fact, found Posada not guilty on 11 counts of lying to immigration authorities during his 2005 application for asylum in the United States. Incredibly, they even found him not guilty of three counts of lying about his role in those Havana hotel bombings—which he was heard on tape in court during the trial boasting about!
“The verdict,” under-stated Alfonso Chardy in the Miami Herald, “was a surprise to many observers who had expected the jurors to deliberate for a few days before reaching a decision. The observers also expected the jurors to find Posada guilty on at least some counts. No one had predicted an acquittal across the board on all perjury and fraud charges.”
But perhaps careful observers shouldn’t have been surprised at all.
For all sorts of reasons—including the political influence of the powerful Miami exile lobby and the hypocrisy inherent in the U.S. war on terror—the American government was never really keen to bring Posada to justice.
When Posada snuck into the U.S. in 2005, the Bush administration did its best to pretend it didn’t know he was in Miami until Posada himself called a press conference, almost forcing immigration authorities to charge him with having entered the country illegally.
For the next six years, the case raveled and unraveled its way through the U.S. justice system (see timeline).
Finally, in April 2009, the new Obama administration tagged three additional counts onto the piddling initial indictment. Those charged him with lying about his role in the Havana bombing campaign.
The new charges were a backdoor way of placating an international community that had been asking increasingly sharp questions about America’s real commitment to fighting terrorism. Although Posada was not charged with the bombings themselves, the case at least made it seem as if the United States finally wanted to deal with—and get past—its penchant for winking at Cuban exile terrorism.
The case should have been a slam dunk. Prosecutors had a string of witnesses and documents that thick-black-ink-connected the dots among Posada, his American financiers and the mercenaries who carried out the bombings at his behest. Even more compelling was the “testimony” of Posada himself. There were tapes from a 1998 interview with the New York Times and a Miami TV interview, in both of which Posada had claimed credit for the bombings.
So what happened?
It would be easy to blame the prosecution. Watching the opening days of Posada’s trial in El Paso, I remember being struck by the seemingly bumbling ineptness of the prosecution’s examination of its first witnesses.
But eventually the trial settled down—as trials usually do—into good days and bad days, the prosecution scoring a point one day, the defence countering another, the judge’s decisions seeming to favour one side but then the other. (An aside: José Petrierria’s “El Paso Diaries” offers by far the best day-by-day narrative of Posada’s trial. A Cuban-born, Washington-based lawyer, Pertierra was in El Paso to keep a watching brief on the case for his client, the Venezuelan government, which still wants to extradite Posada to face justice in the Cubana Airlines bombing case. His nuanced, contextualized account of the unfolding trial offers a revealing window into the case, as well as the broader issue of how American justice actually works.)
Given the number of witnesses, the conflicting testimony and the sheer volume of the evidence presented during more than three months of on-again, off-again courtroom theatrics, how was it possible for the jury to have reached its unanimous conclusion before lunch on its first and only day of deliberation?
As I tried to make sense of that in the Friday afternoon aftermath of the case’s fly-in-the-face-of-all-the-facts verdict, I couldn’t help but think back to a conversation I’d had in Havana in February with Roberto González.
González is a Cuban criminal lawyer but he’s also the brother of René González, one of the Cuban Five. During preparation for the Five’s 2000 trial, González worked with their Miami-based lawyers, helping them line up evidence and witnesses in Cuba. He then spent the entire five months of the trial in the courtroom in Miami, observing American justice up close.
What did he see as the main differences between the American and Cuban systems of justice, I asked him?
“The objective in each system is the same,” González explained, “but the procedures are very different.”
In Cuba, he said, most of the real action happens outside the court room during the “preparation” phase. Lawyers for the accused and the prosecution spend their time discovering each other’s witnesses, sorting out evidentiary truth from lies away from the glare of publicity—and then submit their reports and responses for the judge to consider. That’s why the public phase of the process—actual trials—happen late in the day and don’t usually last long in Cuba.
While we in North America often question what we consider speedy “show trials” in countries like Cuba—witness the American reporting of Allan Gross’s recent conviction in Havana—González makes a compelling argument that our own system offers no greater guarantee of justice.
One of the first things he had to do in the case of the Five, he recalled, was to convince their lawyers that the Five really didn’t want to strike a deal with prosecutors by pleading guilty in exchange for lesser sentences. “Ninety per cent of American cases result in deals,” González said, “so they assumed the Five would want to do that too.”
The trial itself was also an eye-opener. “In the U.S.,” he marveled, “the ‘discovery’ happens during the trial, which makes trials go on for so long. And what is important in that sort of trial is not truth or facts, but theatre. The outcome has to do with the acting capacity of the lawyers, the personality of the witnesses—more sympathetic witnesses, less sympathetic witnesses, a very attractive woman witness, a less attractive woman witness…”
While we in North America like to think our jury system is a guarantee we will be fairly judged by our peers, González sees its actual workings differently.
Juries aren’t selected for their expertise or their wisdom, he points out, but often because they don’t know anything about anything that matters in the case before them. “I call it “trial by ignorance.”
González, of course, was talking about the trial of the Cuban Five in Miami, but he could just as easily have been discussing the Posada case in El Paso.
That trial was definitely theatrical. Posada’s Miami lawyer, Arturo—“call me Art”—Hernandez filled the courtroom with his strutting ego and his histrionics. He filed 13 separate motions for mistrials. He badgered witnesses, launching personal and often specious attacks. He insinuated—without ever having to prove—that one witness who connected Posada to the bombings had once been the lover of a Castro relative. He unfairly and with impunity sliced and diced the journalistic reputation of author Ann Louise Bardach. He even attacked the credibility and credentials of an Havana coroner who simply came to El Paso to testify that Fabio DiCelmo, the Italian-Canadian businessman killed in one of the hotel bombings, had died instantly of a shrapnel wound.
As for the jury, it was—as González notes—chosen more for what it didn’t know about Posada and the history exile terrorism than for what it did. To be fair, jury members spent so much time being bounced in and out of the courtroom while the lawyers argued interminably over what they could be allowed to hear, or whether the trial should continue, or… it would have been impossible for even the wisest among them to find the narrative thread in the lanbryinth of conflicting, confusing witnesses.
All of which is to say that we do finally have a verdict in El Paso but that doesn’t mean we have justice.
- Livio Di Celmo remembers his brother’s 1997 death in Havana
- Luis Posada caught on a Cuban intelligence wiretap bragging about the bombing campaign
- Journalist Ann Louise Bardach’s reports for the New York Times in which Luis Posada Carriles admits his role in the 1997 bombing campaign against Havana hotels.