DAY THREE: Trial Against David Castillo, Co-Author of Berta Cáceres' murder
/Main Points of the Day:
The trial started again for its third day after a 12 business-day delay. The opening remarks have still not taken place. The parties continue to present new evidence and objections or clarifications of evidence presented to the court on day one and two.
Castillo’s defense team objects to the following evidence presented on day two by the private accusers (acusador privado) representing the Cáceres family:
All three of the expert analyses
The documents that demonstrate Castillo’s legal role in the Panamanian company PEMSA and object to the document demonstrating the approx. $1.2 million dollar bank transfer authorized by Daniel Atala to PEMSA (directed by David Castillo) days before Berta was murdered.
The defense presents 11 new pieces of evidence, most of which are objected to by the prosecutors and the private accusers, and presents three nulidades (legal objections) to evidence presented by the prosecutors and private accusers as well as the court’s resolution of the evidentiary hearing. The proceedings will start again tomorrow at 9 am and the court will rule on newly presented evidence and objections presented today.
More Details
General Context
The trial has started again, this time after a 12 business-day delay. On April 7th (day two of the trial), David Castillo’s legal team recused the court. The recusal was sent to the Appeals Court for a ruling. The motion was denied and the case was sent back to the same Sentencing Court. Today’s proceedings were convened for 1 pm and began at approximately 2:15 pm and continued until 6:45 when it was suspended for “20 minutes for dinner” but didn’t start again until 8 pm. The court went to deliberate at 9 pm and at 9:35, informed the attorneys that the trial was suspended for the day. It will start again at 9 am tomorrow.
The proceedings were broadcast on Facebook using Zoom. The audio quality was overall much better but it was very difficult to hear one of Castillo’s defense attorneys at several points throughout the afternoon. The signal also failed several times including ending the transmission twice for approximately 5 minutes.
Once again, the victims and international observers from Peace Brigades International (PBI) and the UN High Commissioner’s Office were denied entry into the court to observe the trial.
The presiding judge warned that the trial proceedings could be held outside of regular business hours including up to 9 pm and on Saturdays.
Defense Objects to Evidence Presented on Day Two, Including:
NOTE: Under each argument or piece of evidence, the response of either the prosecutors and/or the private accusers (the Cáceres family attorneys) is noted. In all cases, both ask the court to deny the newly presented evidence or deny the requests and motions presented by the defense. Private accusers A refers to the attorneys representing Berta Cáceres’ son, Salvador Zúniga. And the private accusers B refers to the attorneys representing Berta and Laura Zúniga and Berta’s mother, Austra Bertha Flores.
Objects to Evidence presented by prosecutors:
Two cell phones - one black and one blue - presented by the prosecutors on day two and seized during a physical search of Castillo, arguing that the cell phones don’t have serial numbers.
Prosecutor’s response: All evidence including the documents outlining the seizure of the phones from Castillo were presented. Don’t understand why defense is objecting.
Participation of the technical consultant, Jose Eduardo Sierra arguing that his expertise was not credited and his CV was not presented to the court.
Prosecutor’s response: Sierra has acted in previous trials as an expert witness and has been sworn in.
Objects to Evidence presented by the private accusers:
Rejects the objection of the private accusers regarding the testimony of the expert witness proposed by the defense, Rubén Chapa.
The expert witness Gladys Tzul and analysis called “The analysis of the situation and condition of violence experienced by indigenous women and women human rights defenders” arguing that the analysis is a political topic based on subjective elements citing sources in the bibliography that are from the internet. Defense believes the analysis to be speculative, not based in facts and that the issue of gender is “not an issue of debate here.”
Private accusers A argue that the abundant bibliography demonstrates the level of seriousness and rigor that the expert used to conduct her analysis. The objection to this expert testimony is being made outside of established legal procedures.
The document dated February 6, 2019, presented by the private accusers demonstrating David Castillo’s condition as a legal representative of PEMSA (Potencia y Energía de Mesoamerica S.A.) arguing that the document was obtained in Panama and not correctly verified by a notary. The defense also questions the ability of Castillo to be named as a legal representative on a date when he was already imprisoned and his ability to be named as a legal representative given that he’s not a lawyer.
Private accusers B present a document that outlines an extraordinary assembly held in Tamara [the location of the prison where Castillo is in pre-trial detention] with company shareholders that reaffirms Castillo’s legal authority to represent PEMSA.
The bank transfer request signed by Daniel Atala from CONCASA (Concretos del Caribe) to PEMSA arguing that its a transfer request which does not demonstrate that the transfer actually occurred. The defense argues that bank transactions are standard business procedures. The document is a copy and the original is in the possession of the anti-corruption prosecution office (UFERCO). The document has nothing to do with David Castillo and is speculative.
Private accusers B argue that this was not a standard bank transfer as it occurred in the context of conversations days before Berta’s murder between Castillo and convicted murderer Douglas Bustillo, who then later coordinated the group of hitman that killed Berta Cáceres. The transactions show how CONCASA, a company directed by Daniel Atala, who is also DESA’s financial manager, made transfers that corresponded to aggressive actions against people in Rio Blanco and other incidents.
Expert testimony of Harald Waxenecker arguing that his focuses is too broad and questioning the argument that Castillo has a lot of power in Honduras.
Private accusers B argue that Waxenecker has worked extensively in Central America and his expertise is about economic power in Honduras. His testimony will show Castillo’s power as the President of DESA but also in the role he held in the National Electrical Energy Company (ENEE). It will also show Castillo’s relationship with state security forces.
Expert testimony and analysis by Andrés Arrieta arguing that the analysis was written by three other collaborators that have not been sworn in by the court. Also argue that Arrieta was given information in 2018 before he was sworn in by the court.
Private accusers B argue that Arrieta had assistance from a team of individuals that assisted him.
Defense Proposes Additional Evidence
Testimony of Mariano Díaz Chavez (convicted and sentenced for murdering Berta Cáceres) (and Jose Paloma? This is unclear).
Prosecutors argue that Mariano Díaz Chavez has been convicted of a crime and has never given a court testimony.
Private accusers B argue that this testimony is irrelevant.
A document containing Castillo’s migratory record arguing that it contradicts testimony presented by the prosecutor’s witness, Brenda Barahona about Castillo’s physical location.
Prosecutors argue that this piece of evidence is vague and the defense does not specify the specific dates they are referencing.
Private accusers B argue that this evidence is irrelevant because Castillo was never the person coordinating the activities from the community and did not have to be physically present in one specific place to be linked to the crime.
Testimony by Aristides Mejía who will testify as to David Castillo’s location during moment(s) relevant to Cáceres’ murder.
Prosecutors argue that they have never established Castillo to be in another location and that his whereabouts at the time of the murder is irrelevant given his status as an intellectual author.
Private accusers A argue that this declaration is useless as Castillo’s location is irrelevant.
A document written by the Honduran Armed Forces that states that David Castillo was never assigned to the same brigades or military assignments as convicted murderers and former military officials, Douglas Bustillo and Mariano Díaz Chavez.
Prosecutors argue that this document is insufficient in arguing whether or not Castillo knew and was associated with Bustillo and Chavez.
Private accusers A have not seen or been able to verify this document.
Private accusers B argue that such evidence cannot be presented at this moment of the proceedings.
Copies of documents outlining the chain of custody and seizure of an LG black telephone. The defense states that the originals are in another investigative and judicial file located in a court in La Esperanza. The documents compliments the below testimony.
Prosecutors argue that this should not be accepted as evidence as it cannot be verified whether these cell phones were in Castillo’s possession and the defense has not indicated where the original copy of the document can be found.
Testimony of DPI agent Juan Carlos Cruz (NOTE: Who is accused, along with another DPI agent, of manipulating investigative evidence related to Berta Cáceres’ murder). Juan Carlos Cruz worked alongside agents assigned to the investigation by the US Embassy and will testify about a recording discussing a red, Frontier truck related to the initial investigation. This testimony shows that Castillo is a victim of a poor investigation.
Prosecutors argue that Juan Carlos Cruz is being accused by the office of a special prosecutor for manipulating the information on the LG phone.
Private accusers B argue that Cruz will not contradict his defense being used in the legal proceedings against him and thus does not have a credible testimony. His testimony will also not add any new or relevant elements to the case.
An email dated February 28, 2016 at 5:25 pm written by David Castillo and sent to Elvin Santos. In this email, Castillo is discussing the hydroelectric project named Estación Santa Lucía del Sur referring to security threats against the project. This email attempts to credit the argument that Castillo continued to work with Bustillo and the conversations discussing specific plans believed to be about Berta’s murder, were in fact related to the project mentioned above.
Prosecutors argue that the defense has not followed the correct legal procedural manner to present such electronic evidence in the trial.
Private accusers A and B argue that this evidence has not been introduced following the correct procedural required for electronic evidence.
Expert analysis by Hugo Alberto Rivas García (already sworn in) who will show that the messages and communications presented by prosecutor’s witness Brenda Barahona, were manipulated, some erased, and/or excluded by the prosecutors.
Prosecutors argue Rivas García uses sources that were not made clear to the court when he was sworn in as an expert and includes personal pictures obtained from the prosecutor’s expert witness, Brenda Barahona’s Facebook page. He also references the defense’s expert witnesses Shaun Vodden and Jonathan Langtong, who were not sworn in to provide an analysis but instead extract telephone data.
Private accusers A argue that this is an illegal piece of evidence and the analysis was done on the expert analysis of Barahona, instead of the actual evidence that Barahona presents.
Private accusers B argue that this evidence was not presented in a manner that gives the parties sufficient time to analyze it (the document is 90 pages).
Proposes a document outlining the data extracted from a grey LG phone conducted by Jonathan Murillo. This expert analysis will show that chats were deleted and that the whole truth about Cáceres’ murder is not being revealed (NOTE. It is unclear where and from whom this phone was seized or belonged to).
Prosecutors argue that they have not seen the data and whether or not it is relevant and legally admissible evidence.
Two certificates - one dated April 13, 2021 that shows that the Panamanian company PEMSA received a loan of approximately $1.2 million. The certificate is issued by BAC Bank (NOTE: Jose Eduardo Atala Zablah is President of BAC Bank). The second certificate demonstrates that on February 29, 2016, the money was returned. These documents show that the bank transactions were standard procedure.
Prosecutors argue that the certificates do not include the names of the individuals that provided the certificates. It is unclear if the certificates were scanned and do not follow the correct way of presenting financial information.
Private accusers B argue that the documents do not include the names of the individuals that issued the certificates.
Documents issued by a court in the District of Mississippi dated September 24, 2020. The court sentence in the case demonstrates that no transactions were carried out between PEMSA and David Castillo.
Prosecutors argue that this evidence was previously presented during the evidentiary hearing and declared inadmissible.
Private accusers B clarify that this evidence is irrelevant as their argument has nothing to do with Castillo’s personal transactions but instead transactions related to PEMSA and DESA.
Defense Proposes 3 Legal Objections
Objects to the expert testimony of prosecutor’s expert Brenda Barahona, who will analyze Whatsapp chat conversations and other data extracted from telephone communications. The defense argues that the contexts of the conversations were manipulated.
Prosecutors argue that the defense has used these same arguments several times throughout the legal proceedings. These arguments have previously been declared without merit.
Private accusers A argue that Barahona’s participation is not the extraction of the phone data but instead the messages that the telephone(s) contain. Barahona’s expert testimony does not violate procedural norms.
Private accusers B note that this motion was presented previously and was rejected.
Objects to the wiretaps ordered from March 14, 2016 to end of July 2016 of attorney Juan Carlos Sanchez (one of Castillo’s lawyers). The defense argues that this shows an irregular and excessive move by the prosecutors.
Prosecutors argue that a court determined the necessity to wiretap certain communications that were relevant to the investigation. Prosecutors were unaware that Sanchez was the attorney for Castillo at the time the taps were requested. The prosecutors note that this motion is another attempt by the defense to delay the trial process.
Private accusers A argue that it is not the correct procedural moment to present such objection.
Objects to the court resolution of the evidentiary hearing arguing that the court had previously heard and been exposed to the same evidence in the previous trial against the 7 men convicted of murdering Berta Cáceres.
Prosecutors argue that the hearing was conducted within the parameters of objectivity.
Private accusers A argue that similar arguments have been made to superior courts who have confirmed the decision of the Sentencing court to hear the case. This objection is another example of how the defense is abusing their rights to use the legal resources at their disposal to simply delay the trial from moving forward.