christic@labrea.stanford.edu (06/08/91)
----------------------------------------------------------------- /* Written 6:44 pm Jun 7, 1991 by christic in cdp:christic.news */ /* ---------- "ORAL ARGUMENT ON AVIRGAN V. HULL" ---------- */ ----------------------------------------------------------------- ==================================================== APPEALS COURT HEARS ORAL ARGUMENT ON AVIRGAN V. HULL ==================================================== 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. ----------------------------------------------------------------- Andrew Lang 151251507 CHRISTIC telex Christic Institute christic PeaceNet Washington, D.C. tcn tcn449 202-797-8106 voice uunet!pyramid!cdp!christic UUCP 202-529-0140 BBS cdp!christic%labrea@stanford Bitnet 202-462-5138 fax cdp!christic@labrea.stanford.edu Internet