United States v. Perez-Casillas

• Decision Date: 22 August 1984
• Docket Number: Crim. No. 84-0070CC.
• Citation: 593 F. Supp. 794
• Parties: UNITED STATES of America, Plaintiff, v. Angel PEREZ-CASILLAS, Jaime Quiles-Hernandez, Rafael Moreno-Morales, Rafael Torres-Marrero, Luis Reveron-Martinez, Juan Bruno-Gonzalez, Nelson Gonzalez-Perez, William Colon-Berrios, Jose Rios-Polanco, and Nazario Mateo-Espada, Defendants.
• Court: U.S. District Court — District of Puerto Rico

593 F. Supp. 794

UNITED STATES of America, Plaintiff, v. Angel PEREZ-CASILLAS, Jaime Quiles-Hernandez, Rafael Moreno-Morales, Rafael Torres-Marrero, Luis Reveron-Martinez, Juan Bruno-Gonzalez, Nelson Gonzalez-Perez, William Colon-Berrios, Jose Rios-Polanco, and Nazario Mateo-Espada, Defendants.

Crim. No. 84-0070CC.

United States District Court, D. Puerto Rico.

August 22, 1984.

Daniel López-Romo, U.S. Atty. by Gary H. Montilla, Asst. U.S. Atty., Hato Rey, P.R., for plaintiff.

Francisco M. Dolz Sanchez, San Juan, P.R., Jose M. Ortiz, Eduardo Caballero Reyes, Jose C. Aponte, Wilfredo Figueroa, Federico Delgado Torres, Hato Rey, P.R., Teodoro Mendez Lebron, Santurce, P.R., Jose A. Torres Martinez, Hato Rey, P.R., William Arias, Rio Piedras, P.R., Carlos M. Mangual Lopez, Hato Rey, P.R., for defendants.

OPINION AND ORDER

CEREZO, District Judge.

On July 25, 1978 Carlos Soto-Arrivi and Arnaldo Dario Rosado died in a confrontation with the police at a mountain site known as Cerro Maravilla. This incident led to several investigations of possible police brutality and violation of civil rights by federal and local law enforcement authorities. These early investigations did not result in any criminal or disciplinary action against the policemen involved. In the year 1979 relatives of the deceased filed a civil rights complaint seeking damages against the policemen and other government officials which is still pending in this court. The policemen gave sworn testimony during the taking of depositions in the civil case, made statements to law enforcement officers and appeared before the grand jury during the initial investigations. Throughout those proceedings, they maintained that Soto-Arrivi and Rosado were killed in self-defense during a shootout while attempting to commit a terrorist act.

Prior to the elections of 1980, the local press reported statements attributed to the candidate for governor for the Popular Democratic Party promising to give top priority to this matter if elected.¹ Cerro Maravilla and its sequelae became one of the issues most debated during the 1980 local electoral campaign. Following that election, the Senate of Puerto Rico, presided by Popular Democratic Party leader Miguel Hernández-Agosto, launched an investigation of the Cerro Maravilla incidents and the Judiciary Committee, presided by Senator Francisco Aponte-Pérez, received testimony in executive sessions.² Public hearings were subsequently held from June 15, 1983 through the first days of December 1983. These hearings, televised on a commercial station, were paid by the Senate. They reached their climax when Miguel A. Marte, a television technician present at the time of the shoot out, and three of the Cerro Maravilla policemen — Carmelo Cruz, José Montañez and Cartagena-Flores — requested and were granted immunity by the Senate of Puerto Rico and by the federal government. Their testimony brought forth a version of the facts which essentially contradicted that originally advanced by the policemen. Weeks later the grand jury returned a seventy-page indictment containing forty-four counts which is the basis of this case. The first count charges all ten policemen indicted with conspiring to obstruct criminal investigations and to give false testimony under oath.³ The remaining counts charge the individual defendants with multiple instances of perjury and obstruction of justice. The backdrop to the perjury charges is the prior sworn testimony given by defendants before a grand jury summoned for an earlier investigation and deposition testimony in the Section 1983 action. The obstruction of justice charges refer to actions allegedly taken by defendants during the initial and recent criminal investigations which were supposedly intended to withhold evidence, alter testimonies and induce others to testify falsely. Each of the perjury charges contained in the indictment is, of course, juxtaposed against a final factual averment which is stated to be the truth. The statements embodied as the truth in the indictment follow closely the testimony of the witnesses and the data gathered before the Senate committee which conflicted, in varying degrees, with the original version of the events given by the defendants. The structure of the indictment reveals that to prove the perjury charges the July 25, 1978 scenario has to be reenacted during the trial of the instant case and the government bears the burden of proving, beyond a reasonable doubt, that what it states to be the truth is in fact what occurred.

The 1983 public hearings held by the Senate attempted to reenact that scenario. The cumulative effect upon the community of the media coverage of the Cerro Maravilla events since the very day that they occurred gained added strength with the televised hearings held during a period of approximately five months.

Adverse pretrial publicity has been the basis of motions for continuance of trial filed by some of the defendants and joined by others, which have been opposed by the government. Codefendant Moreno-Morales filed the first of these motions claiming that the ongoing Senate investigation⁴ and criminal proceedings related to police corruption have engendered aggressive and continuous publicity that places in jeopardy his Sixth Amendment rights. He requests that the trial date be continued until, at least, after the 1984 election. Similar grounds have been advanced by other defendants in support of their requests for continuance. The government, in its initial opposition to the postponement of trial,⁵ claims that defendants have not made a specific, substantial showing of prejudice and have not shown that the excessive publicity cannot be cured by an extensive voir dire. In its June 14, 1984 motion to set a trial date the government emphasizes the fact that six years have elapsed since the underlying events which form the basis of the case took place and that the passage of time increases "the chances for fading memory, interference or tampering with witnesses or witnesses' unavailability." On July 6, 1984 the court advised all parties that, in considering and before ruling upon the motions for continuance and the opposition, it intended to take notice of the following:

1. The contents of all newspaper reports, editorials, photographs and illustrations published in newspapers of general circulation in Puerto Rico during the period of 1979 to the present directly related to the Cerro Maravilla incident.

2. That the Senate hearings on the Cerro Maravilla incident held from June to December 1983 were televised by a private television channel and transmitted by radio broadcast. The prosecution replied on July 23, 1983 stating that it has no objection to the Court's taking judicial notice of the existence of publicity relating to Cerro Maravilla events, but does object to the taking of notice "of the character and effect of such publicity, particularly as a potential evidentiary basis on which to rule on defendant Moreno-Morales' motion for continuance." It urges that the accuracy of such publicity is generally highly questionable and unsuitable for judicial notice and that it is inappropriate "to rule upon the continuance motion on the basis of publicized items which are (a) not in the record, (b) not specifically designated and (c) clearly open to dispute with respect to accuracy and interpretation." It incorporates the grounds set forth in its previous opposition, mainly, absence of a showing of actual prejudice and its contention that continuances are unfavorably regarded in highly publicized cases.

The government's approach is misguided. The cases cited in support thereof deal with traditional judicial notice views which are wholly inapplicable to the situation now before us. In all three cases cited⁶ the courts were dealing with the propriety of taking judicial notice of matters which were found to be subject to reasonable dispute. The court's order advising the parties of its intention to take notice of publicity related to this case was not directed to evidentiary matters. Unlike the courts in the cases cited by the government, we are not dealing here with adjudicative facts in the traditional meaning of Rule 201, Federal Rules of Evidence. Neither is the court concerned with the truth or falsity of media reports. What is important is that the reports, aside from their accuracy or veracity, influence the community and create attitudes and beliefs. Furthermore, it is within the Court's legitimate function to make its own assessment of conditions created by pretrial publicity. To that end it must evaluate the nature of the materials publicized, the extent of its dissemination, its duration and its impact on the community from which potential jurors shall be drawn. The fact that defendants have not provided the court with a record of media coverage should not serve to negate the fact of its existence or bar the court from making its own estimate of it. It would be shunning reality not to recognize that the Cerro Maravilla events were followed by a deluge of publicity which has yet to abate. This much was recognized by our circuit as early as 1981 when it said: "Coming as it did in the midst of a heated debate over the Island's political future — and on the eve of a closely contested electoral campaign — the Cerro Maravilla incidents attracted widespread popular and political attention." In Re San Juan Star, 662 F.2d 108, 111 (1st Cir.1981). Again in 1983: "The incident at Cerro Maravilla had and has significant implications and has been the subject of intense media coverage and popular attention." Colón-Berrios v. Hernández-Agosto, 716 F.2d 85, 87 (1st Cir.1983).

The government contends, citing Reed v. Rhodes, 607 F.2d, at page 735, that the court errs in employing evidence dehors the record. The constitutional guarantee to a fair trial is not an abstract conception, but one that in its day-to-day application safeguards against the...