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6 December 2001

Update: Voices from the Grave - 11th U.S. Circuit Court Hears Case of American Church Women Slain by Salvadoran Military
Mayer, Brown, Rowe & Maw LLP

Five Salvadoran National Guard members abducted, tortured, raped and murdered four American church women in El Salvador on 2 December 1980. Twenty-one years later, relatives of Maryknoll Sisters Ita Ford and Maura Clarke, Ursuline Sister Dorothy Kazel, and lay missionary Jean Donovan, are seeking to hold two former commanding generals of the killers accountable.

Mayer, Brown, Rowe & Maw lawyer Peter Choharis argued before the U.S. Court of Appeals in Miami that a trial judge's jury instructions tainted the civil trial verdict finding General Carlos Eugenio Vides Casanova and General Jose Guillermo Garcia not liable for the rape and murder of the church women. The generals, who now live in Florida, were commanders of the five Salvadoran guardsmen who were convicted of the murders in 1983.

A West Palm Beach jury returned a verdict in favor of the generals at the conclusion of an October 2000 civil trial. The jury foreman later publicly expressed anguish at being confused by the jury instructions even after repeated requests for clarification.

The church women's case is considered to be one of the most important human rights cases in the past 10 years. It could serve as a precedent in many future terrorist trials in the United States. The suit invokes the Torture Victims Protection Act of 1991 and international human rights laws that hold military commanders responsible for the actions of their troops under the doctrine of command responsibility.

At December's oral argument, relatives of the church women were joined by leaders of their religious orders as well as human rights lawyers and national media.

"The families have been seeking justice for these horrific events, and they don't want them to be forgotten," said Peter.

Judge's Critical Mistakes
Mayer, Brown, Rowe & Maw partner Phillip Allen Lacovara supervised the appeal, and Julie McConnell and Sandy Weisburst worked with Peter as well. The appeal argues that the trial judge made several critical mistakes in instructing the jury in shifting the burden of proof.

One of the trial judge's mistakes was to require the families to prove that the generals had control over their troops. Well-established law places the burden on military commanders to prove, as part of an affirmative defense, that they took all necessary measures to control their subordinates, said Peter.

The trial judge also improperly required the families to show that the generals failure to fulfill their "obligations" was the proximate cause of the church women's rape and murder. Command responsibility doctrine places the action of troops squarely on the shoulders of their commanders. It imputes responsibility to the generals, and the victims should not have been required to show the generals' inactions caused their deaths.

"We looked at every relevant case during the last half century and all of them establish that the instructions were wrong," said Peter.

Command Responsibility
During the 1980s, the Salvadoran military death squads were notorious for their killings of thousands of teachers, students, labor unionists, and religious leaders. Catholic Archbishop Romero was killed in March 1980, eight months prior to the church women's murders, by a sniper in his church, a day after appealing in his homily for the armed forces to "stop the repression."

Several retired U.S. generals have provided valuable assistance during the appeal. The Department of the Army Field Manual endorses the doctrine that commanders are responsible for their subordinates.

"Command responsibility is central to the role of a professional army. It is something the U.S. army recognizes as essential," said Peter.

The appeal also argues that the trial court improperly admitted expert testimony of Edwin Corr who began serving as U.S. ambassador to El Salvador five years after the murders occurred. The appeal argues that the two generals violated court rules in failing to provide adequate notice of Corr's testimony, and by not allowing lawyers an opportunity to depose the witness.

The largest hurdle the families of the church women face in getting the verdict overturned is the standard of review. The appeal must show plain error in the trial judge's jury instructions and abuse of discretion in allowing the expert testimony.

"There truly was a miscarriage of justice. The evidence is overwhelming and, based upon what jury members have said, the families would have won if the proper instructions were given," said Peter.

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