Public Interest
Aug. 16, 2002
Bittersweet Verdict
SAN FRANCISCO - Eyes downcast, the jury filed in with its verdict in a high-visibility federal test of torture victims' ability to hold their tormentors liable.
Palo Alto plaintiffs attorney Beth Van Schaack's spirits sank, observing the litigators' truism that lack of juror eye contact signals defeat.
"I was completely sure we had lost," said Morrison & Foerster's Van Schaack, who worked pro bono with colleague Peter Stern of the firm's Walnut Creek office.
They represented the claims of three Salvadoran victims of severe official abuse. On the line too was the future of a decade-old U.S. law designed to ease the plight of those mistreated.
The scene last month in a West Palm Beach, Fla., federal courtroom was the climax to the most recent trial under the Torture Victim Protection Act of 1991. Because of jurors' averted gaze, Van Schaack feared the plaintiffs had failed to pin command responsibility on two former Salvadoran generals for their underlings' atrocities.
She was wrong. The jury awarded $54.6 million to the ex-generals' victims - one now a San Francisco high school science teacher - who had been brutalized by the Salvadoran military. Romagoza v. Garcia, 99-8364DTKH (Southern District of Florida).
Their torment was inflicted in the early 1980s. According to court records, Carlos Mauricio, the teacher, was handcuffed, blindfolded, beaten and electroshocked for eight days. Church worker Neris Gonzalez was eight months pregnant when soldiers seesawed a metal bed across her belly, causing her child to die soon after birth. Physician Juan Romagoza was hung by his fingers, leaving nerve injuries that prevent him from performing surgery.
All were accused of leftist sympathies by Salvadoran right-wing forces. None was ever charged with a crime. Soldiers shot at Romagoza's left arm, marking him as a leftist.
The former generals, who now live in the Miami area, were absent when the verdict was read. The courtroom was packed with the victims' families and supporters.
"I've never been so happy," Van Schaack said last week of the moment the result was announced. "It was equivalent to giving birth to my son. The judge had warned against outbursts, so the courtroom was filled with stifled gasps and quiet sobs and weeping. You'd have to be a poet to describe it."
She worked in 1997 and 1998 in The Hague at the office of the prosecutor of the International Criminal Tribunal for the Former Yugoslavia. Exultant at the Florida win, she said it was hard to return to her patent law practice. She plans to teach human rights law at Santa Clara University School of Law starting in January. Today is her last day at her law firm.
"This case is part of a continuum of remedies newly emerging for [torture] victims," Van Schaack said. Some cases were filed as early as 1980 under the Alien Tort Claims Act of 1789, one of the nation's first laws, which gives survivors of human rights abuses, wherever committed, the right to sue responsible persons in U.S. courts.
The Torture Victim Protection Act, signed by President H.W. Bush a decade ago, gives similar rights to U.S. citizens and noncitizens alike to bring claims for torture and extrajudicial killings. Both laws require alleged perpetrators to be physically served with the complaint in the United States.
"There have been maybe 30 cases total under the two statutes combined," Van Schaack said. "Often, there have been one-sided default judgments because the defendant flees the U.S. and the victim is denied process. Here, in Florida, the defendants stayed and fought."
The win was all the more striking because two years ago another federal jury concluded the same two defendants bore no liability, under the same laws and the same command-responsibility theory, for the rapes and murders of three U.S. nuns and a missionary.
The defendants, both retired generals, were Carlos Eugenio Vides Casanova, former director of El Salvador's National Guard, and José Guillermo García, the country's former minister of defense.
A U.S. jury's decree that their acts will cost them a huge dollar figure sends a powerful negative message to any who seek impunity here for wrongdoing abroad, the plaintiffs lawyers said.
The most recent trial featured live victim witnesses and better fact evidence than was available in the churchwomen's case, the plaintiffs lawyers said. They added that they had learned from the loss in the earlier case.
Unlike in the earlier case, in which the victims had been killed at a remote jungle location far from military headquarters, the plaintiffs in this case were held not far from the generals' offices. In addition, Romagoza testified that, though blindfolded, he was 90 percent certain that defendant Vides visited his cell at National Guard headquarters.
The Morrison & Foerster litigators, alongside James K. Green, of West Palm Beach, and lawyers from Boalt Hall's International Human Rights Law Clinic and San Francisco's Center for Justice & Accountability, found ways to advance the Torture Victim Protection Act's intent to hold superiors responsible for the wrongdoing of subordinates.
The former generals' Miami lawyer, Kurt Klaus Jr., filed a notice of appeal Aug. 8.
In a telephone interview, Klaus said the trial was an uphill battle. "It was a horrible situation in El Salvador, but my guys were part of a reform government doing everything they could to bring law and order and democracy to the country."
His theory did not convince jurors that the ex-generals were unaware of the torture and would have been powerless to stop it had they known.
"There's not a lot of sympathy here for former generals of Central American countries," Klaus said.
His chief appellate issues will include a statute of limitations claim and an assertion that the plaintiffs introduced insufficient evidence to show the defendants controlled their troops.
"The judge arbitrarily tolled the statute to 1993, even though my guys lived here since the late '80s," he said. "As for control, it's like holding the police chief responsible for the cop who goes home and beats his wife."
He said it's hard to achieve a balanced presentation of the evidence in such a passion-stirring case.
"You're walking a tightrope if you try to argue that torture is part of the culture in these violent countries," Klaus said.
Opposing counsel Stern had a similar problem.
"We tried to focus the evidence," he said. "How do you dole out information so the jury grasps the politics and history [of El Salvador] but not give them so much that they throw up their hands?
"And the plaintiffs' testimony was so powerful that we knew we could engage the jurors on an emotional level, but we didn't want to overwhelm them," he said.
Klaus conceded the victims' accounts of their torture were devastating for his clients.
"It was live testimony - everybody in court was crying," he said. "I don't remember if I was crying then, but I'm crying now."
Both defendants deny having funds to pay the big judgment. Klaus said that since the trial the ex-generals have paid him a $50,000 retainer to fund the appeal. "They gave me whatever they had left. I'll do all I can for them," he said.
Plaintiffs attorneys suspect the defendants are far from broke.
"We've already begun talks with two international asset-collection companies," said Sandra Coliver, the executive director of the Center for Justice & Accountability. "We know Vides owned several condos when he moved to the United States."
Coliver added that the verdict has galvanized human rights groups in Latin America and thrown a scare into other potential defendants living in south Florida.
One organization, the Due Process Law Foundation of Washington, D.C., has announced it will sponsor an Aug. 30 conference in San Salvador to discuss the case.
Some in the expatriate military community in Florida are reportedly rethinking their decision to move to the United States and may depart, Coliver said. Her group, a nonprofit organization that works to help abuse victims hold perpetrators accountable, estimates there are about 150 potential defendants living in the Miami region.
"This case is going to prove a deterrent," she said. "It will discourage some from moving here and it will persuade some to leave. It's a penalty for these guys to realize they're barred from south Florida. The fact is, they're at risk, big-time."
In July, Coliver's group filed another complaint under the Torture Victim Protection Act, this time against Juan Evangelista López Grijalba, a former Honduran army intelligence chief accused of torture and extrajudicial killings.
López Grijalba lives in Sweetwater, Fla. In early August he hired Klaus. "Now I'm going to be known as the Torture King," Klaus said wryly. "Intellectually, it's a lot of fun, because command responsibility is a new area. It's tough because the facts are so painful - juries hear them and they want to punish somebody."
Klaus also complained he was outnumbered. "I'm a sole practitioner, and the plaintiffs had law school classes doing research for them," he said.
That would include students at Boalt's International Human Rights Law Clinic.
The law students helped develop the earlier case involving the slain churchwomen and worked during the current trial to extend the command responsibility doctrine, said the clinic's director, professor Carolyn Patty Blum.
"All these cases are building blocks," said Blum, who helped recruit expert witnesses in the case. The command responsibility concept is in part analogous to respondeat superior doctrine, she said, referring to the employment law theory that makes bosses accountable for wrongful acts by their workers.
"After this case I don't believe it will be necessary to show [a defendant] had the capacity to walk into a torture cell and stop what's going on," Blum said, because the command responsibility doctrine has been refined to include the notion of "effective" command.
The command responsibility doctrine itself derives from the post-World War II Nuremberg and Tokyo war crimes tribunals. It holds that a commander is responsible for what his men do. But how the doctrine actually plays out in a modern courtroom is evolving.
For example, in the more recent Yugoslavia conflict, paramilitary troops fought alongside regular army soldiers. Subsequent international courts developed the concept of effective command to cover military leaders who have de facto power over the actions of combatants not legally part of their units.
The effective command concept was built into the Torture Victim Protection Act, but it was left to case law to work out exactly how juries would be told to interpret it.
A significant legal advance came in the torture case came when the plaintiffs successfully cast off a thorny proximate-cause jury instruction that had plagued their attempt to demonstrate the defendants' effective command in the trial concerning the murdered nuns.
The instruction complicated the proof requirements, making it far more difficult for plaintiffs to meet the three-step test for command responsibility:
• That the defendants were in charge of subordinates who committed acts of torture or extrajudicial killings;
• That the defendants knew or should have known about the wrongful acts; and
• That the defendants failed to stop the acts or investigate and punish them.???? Jurors in the churchwomen trial were instructed that the plaintiffs had the additional burden of proving a proximate causal connection - meaning acts that directly produce effects - between omissions of the defendants and damages sustained by any plaintiff.
An 11th U.S. Circuit Court of Appeals panel declined to review the proximate-cause instruction, despite protests by the plaintiffs that it was plainly erroneous. The court held that the plaintiffs lawyers had helped draft it and therefore had waived the right to object. Ford v. Garcia, 289 F.3d 1283 (2002).
In a concurrence, Circuit Judge Rosemary Barkett argued that the proximate cause instruction was so great an error that it warranted reversal, even though circuit precedent did not allow that remedy. The instruction confused the jury and probably led to the defense verdict in the churchwomen case, she wrote.
Barkett cited one of the few Torture Victim Protection Act decisions to have undergone appellate review, the 9th Circuit's holding in Hilao v. Estate of Marcos, 103 F.3d 767 (1996). Marcos made clear that proximate cause is not an element of command responsibility.
"Indeed, a proximate cause requirement practically eviscerates the command responsibility doctrine's theory of liability," Barkett wrote. Case law, including judgments of international courts, "consistently asserts that commanders with executive responsibility who know or should know of a pattern or practice of abuse face a high presumption of liability, and causation is presumed to be the result of their failure to prevent those individual crimes."
Barkett's observations were not an official holding. But they proved effective when the plaintiffs lawyers presented them to U.S. District Judge Daniel T.K. Hurley. The judge presided over both the churchwomen case, at which he used the proximate cause instruction, and the more recent torture victims' trial.
To the relief of plaintiffs counsel in the more recent case, Hurley agreed to omit the proximate cause instruction. Barkett and other authorities changed his mind.
"It's a tribute to how much a domestic judge was willing to look to international tribunal jurisprudence," said Van Schaack. "He had us filing those cases and he cited them. It was remarkable that he would go beyond the four corners of U.S. jurisprudence."
She again emphasized that perpetrators-in-charge can no longer shield themselves by claiming ignorance of their subordinates' actions. Command responsibility has been upheld in a streamlined form unencumbered by proximate cause requirements.
"Like it or not, that's what the law is now," Van Schaack said.
John Roemer
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com