Tuesday, January 11, 2011

Posada Carriles and the "History will absolve me" defense

After Fidel Castro's disastrous attack on the Moncada barracks in 1953, the government of Fulgencio Batista put him on trial.
But Castro turned the tables. He effectively put the Batista government on trial. He said it was an "illegal government" and that's why his attack was justified.
Castro's ended his speech with the words: "History will absolve me." His speech became a rallying point of the revolution. Castro was freed from jail and forced Batista from power in 1959.
Now it appears Luis Posada Carriles wants to take a similar "history will absolve me" approach, putting the Cuban government on trial to justify his actions. His lawyers argued that Cuba has a history of falsifying and making up evidence, and so any testimony from Cuba is tainted.
Prosecutors today filed a motion objecting to such a strategy. They wrote:
A defendant is entitled to vigorously present his defense and to challenge the credibility of any witness or the veracity of evidence presented against him. However, to allow the defendant on this record to conduct a public trial of the alleged prior bad acts of another government would be of no probative value to the issues in this case and, consequently, would serve only to confuse the jury.
Lawyers for Posada Carriles threaten to use such a strategy if prosecutors follow through with plans to allow witnesses from Cuba - two police officers and a medical examiner - to testify that the anti-Castro militant was behind a string of bombings in Havana.
Posada Carriles' potential defense strategy - invoking what's known as Rule 404(b) - is unusual.

Prosecutors write:
Only in rare instances does a defendant even invoke the rule. Indeed, the type of evidence which the defendant seeks to introduce is not even contemplated by Rule 404(b).1 In the limited number of cases where the defense has been allowed to invoke the rule, the purpose has been to offer evidence related specifically to the prior acts of the witness on the stand.
Prosecutors say:
Rule 404(b) allows evidence of other crimes, wrongs, or acts to be admitted under limited circumstances to prove motive, plan, opportunity, intent, preparation, knowledge, identity, or absence of mistake.
...the defendant in the case...seeks to introduce evidence that is not specifically related to any of the three witnesses from Cuba... Rather, the defendant seeks to offer evidence that lambasts the Cuban government as a whole. Rule 404(b) speaks only of evidence related to a "person," and therefore its use in this case would not be proper.
The Court should not permit the defendant to distract and confuse the jury with evidence that has no bearing on the actual issues in this trial — namely the lies and false statements made by the defendant during a 2005 hearing in Immigration Court, and during a 2006 interview conducted in connection with his Naturalization Application. The defendant, if allowed to introduce the litany of items listed in his notice, would transubstantiate the case at bar into a trial of the Government of Cuba. The defendant has proffered no specific evidence that witnesses from Cuba will present anything but truthful testimony, or that they have been improperly influenced. Further, the defendant has proffered no proof that the evidence related to the 1997 Havana bombing campaign has been fabricated.

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