[misc.activism.progressive] ORAL ARGUMENT ON AVIRGAN V. HULL

christic@labrea.stanford.edu (06/08/91)

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/* Written  6:44 pm  Jun  7, 1991 by christic in cdp:christic.news */
/* ---------- "ORAL ARGUMENT ON AVIRGAN V. HULL" ---------- */
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APPEALS COURT HEARS ORAL ARGUMENT ON AVIRGAN V. HULL
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Convergence Magazine, Christic Institute, Summer 1991

On Feb. 25 in a crowded Miami courtroom, a three-judge panel of the
11th Circuit Court of Appeals heard oral argument on Avirgan v.
Hull, a Federal civil lawsuit alleging the existence of a criminal
racketeering enterprise involved in terrorism, arms smuggling, drug
trafficking and other serious Federal crimes over a 30-year period.

The Christic Institute, which represents journalists Martha Honey
and Tony Avirgan in the case, is asking the appeals court to
reinstate Avirgan and remove Federal Judge James Lawrence King from
the case. King blocked the trial in June 1988 by granting motions
for ``summary judgment'' filed by the defendants. Several months
later he ordered the Institute and its clients to pay more than $1
million in punitive sanctions to the defendants because, he ruled,
the lawsuit was ``frivolous.''

Enforcement of the sanctions order has been halted while the
appeals court considers the Institute's appeal.

The Institute wants the appeals court to throw out the sanctions
and reinstate ``discovery''--the pretrial investigation during
which both sides have the power to subpoena witnesses and evidence.
The Institute says Judge King refused to compel several defendants
and key witnesses to appear for depositions or produce subpoenaed
evidence.

Avirgan v. Hull centers on a May 1984 bombing during a press
conference in La Penca, Nicaragua. The Institute charges the
bombing was a failed attempt by right-wing contras to assassinate
moderate contra leader Eden Pastora. Three journalists were killed
in the attack, including an American reporter. Avirgan was one of
a dozen reporters wounded by the bomb.

The case charges that a racketeering enterprise engineered the
bombing. The case also charges the same enterprise with a long
criminal history, including arms smuggling and drug trafficking
through contra bases in Central America. 

Most of the charges have since been independently confirmed by
congressional investigations and criminal prosecutions in the
United States and Costa Rica. One of the principal figures in the
alleged enterprise, former C.I.A. contract agent John Hull, is
wanted by Costa Rican authorities who have charged him with murder
for his role in the La Penca bombing.

King's surprise ruling in favor of the defendants was handed down
two days before the trial was scheduled to begin. The ruling did
not mention most of the crimes charged by the plaintiffs. Instead,
the judge centered on a single issue: the La Penca bombing.
According to King, the Institute possessed no ``competent
evidence'' to prove either the identity of the alleged bomber or
his relationship with John Hull and other defendants.

During oral argument, plaintiffs' counsel Eugene Scheiman argued
that Judge King ruled on factual issues never disputed by the
defendants. During pretrial proceedings, no defendant had
challenged the Institute's charge that a professional terrorist,
posing as Danish reporter ``Per Anker Hansen,''detonated the La
Penca bomb. King raised this issue of fact for the first time when
he threw the case out of court.

King compounded this error by giving the Institute no opportunity
to present evidence on this issue--an omission that violated court
rules. ``Had he done so,'' says Christic Institute General Counsel
Daniel Sheehan, ``we could have driven a truckload of evidence to
the front door of the courthouse. The judge raised an issue not
disputed by the defendants, then used it as a basis for summary
judgments without giving the Institute any opportunity to respond
or present evidence on the point.'' 

The evidence available to the Institute at the time included
eyewitness testimony describing the bomber's actions, photographs
showing the bomber at the scene of the explosion, Costa Rican
police reports concluding that ``Hansen'' had detonated the bomb
and videotape footage shot by a Costa Rican news cameraman minutes
before he died in the La Penca explosion. The footage shows the
bomber leaving the room minutes before the bomb was detonated.

``Most of this evidence was not in the hands of the court because
it had nothing to do with the issues raised by the defendants in
their motions for summary judgment,'' says Sheehan. ``It would have
been presented at the proper time to the jury. But Judge King never
allowed a jury to hear this case.''

Scheiman also argued that Judge King improperly ruled that evidence
on the bomber was ``inadmissible.'' Although the defendants never
challenged the identity or actions of the alleged bomber, some
evidence concerning the bomber had coincidentally been submitted by
the Institute in connection with other issues before the court.
King assembled a part of this evidence as if it were a systematic
presentation of the Institute's case on the bombing--it was not--
and ruled that all of it was inadmissible.

``It is true that some of the evidence dismissed by King was not
yet in admissible form,'' says Sheehan. ``There is no rule that
evidence must be submitted in admissible form during pretrial
proceedings when parties to a lawsuit are arguing motions for
summary judgment. On the other hand, King's ruling simply
disregarded other evidence that also proved the bomber's identity
and his relationship with the enterprise. This evidence was also
before the court and was certainly in admissible form, but none of
it appears in the judge's ruling.''

Opposing attorneys Thomas Hylden and Jack McKay attempted to
convince the three judges that the Institute's lawyers had been
``dilatory'' during ``discovery''--the pretrial investigation
period. That argument was the heart of the defendants' attempt to
show that Avirgan v. Hull was merely a ``political'' lawsuit never
intended to be supported by evidence.

Scheiman told the court that the Institute followed proper
procedures during discovery but was blocked by Judge King's refusal
to order the defendants to comply with subpoenas.

Scheiman argued that depositions were scheduled at the appropriate
time following submission of interrogatories and document requests.
Defendants, on the other hand, consistently obstructed orderly
discovery. Answers to written interrogatories were delayed and
documents subpoenaed by the plaintiffs were not produced.

``Judge King allowed Hull and the other defendants to ignore
subpoenas and ultimately rewarded the defendants' obstruction of
discovery by granting their motions for summary judgment,'' Sheehan
says.

During oral argument the charge that Avirgan v. Hull was filed for
improper political reasons was addressed by Sheehan, who stressed
that RICO, the Federal racketeering law used as the basis for the
lawsuit, was enacted by Congress expressly to encourage private
citizens to prosecute racketeering actions when the government has
not stepped in.

The three-judge panel also asked plaintiffs' counsel to discuss the
significance of the first-degree murder indictments that have been
lodged by Costa Rican prosecutors against defendants John Hull and
Felipe Vidal for their role in the La Penca bombing.

The judges are Bush appointee Judge Stanley Birch, Carter appointee
Judge Joseph Hatchett and Nixon appointee Judge Paul Roney.

The court is also considering ``friend-of-the-court'' briefs filed
by churches, religious organizations and public-interest groups to
support Avirgan v. Hull. They include: Trial Lawyers for Public
Justice, a nationwide association of progressive attorneys; the
Alliance for Justice, a coalition of 30 public-interest groups; the
Public Citizen Litigation Group, a nonprofit law firm founded by
Ralph Nader; ten churches and religious organizations; and three
legal scholars.

It is not certain when the appeal court will rule.

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