DAY FORTY-ONE: Trial Against David Castillo
/Last update: July 18 at 3:45 pm
Main Points of the Day
Castillo’s defense team made a procedural error in not instructing their technical consultants (consultor tecnicos) to present their conclusions in the correct moment established by law. For the second day, the defense presents motions to insist that the court allow their consultants to present their conclusions – despite this meaning that the court would have to call all expert witnesses back to the court - basically requesting the judges to violate clearly established legal procedures to, according to the defense, ensure Castillo’s right to a defense. The court denies their motions.
The defense presented an analysis written by Ruben Chapas, who did not appear in court. Instead, the report was read by the court secretary. It outlined how the prosecutor’s telecommunications expert Brenda Barahona allegedly manipulated and altered evidence including taking messages out of context and ignoring messages that indicated that Berta was receiving threats from other sources (ex. mining companies). The presentation was complicated and used unintelligible words, making it difficult for observers to understand the details of the analysis.
Two of the defense’s witnesses, Edgardo Jerezano Sarmiento (a lawyer) and Fabiola Zelaya Hernandez, will not give any declarations in the trial as originally planned. According to the defense, this is because they have been threatened.
Trial is convened for 9 am tomorrow.
More Details
Controversy About The Defense’s Technical Consultants
The defense brought in two technical consultants to help them question the expert witnesses presented by the prosecutors and the private accusers - Jose Antonio Cruz questioned the prosecution’s telecommunications expert, Brenda Barahona on day 22, and controversial Honduran teacher Edgardo Rodriguez questioned the private accuser’s experts, Gladys Tzul and Harald Waxenecker on day 29 and day 35
The role of a technical consultant (according to what I understand as a non-expert, non-lawyer) is that the consultants assist attorneys in understanding an expert witness testimony presented by another side. The technical consultants are able to directly question the expert and then present their conclusions at the end of the expert’s presence in court. The technical consultant is not sworn in and do not have the same weight - in terms of expertise and authority granted by the court - as the experts do.
Yesterday (day forty), the defense asked the court to allow their technical consultants to present their conclusions. It seems like the defense forgot or were negligent at instructing the court and their technical consultants to present their conclusions at the respective moment and missed the opportunity.
In order to reverse this error, the defense petitioned the court to allow the technical consultants to present their conclusions at the end of the trial. The private accusers and prosecutors rejected this saying it violated the clear instructions of a legal note published by the Supreme Court on November 27, 2014 regarding the role and procedures related to technical consultants, experts, etc.
By not being able to present the technical consultants conclusions, the defense argued that the court is violate Castillo’s right to a defense. The court denied the motion and told the defense that Castillo’s attorneys could themselves present the consultants’s conclusions in their own conclusions.
The following day (today), the defense once again presented a motion for the court to reconsider their decision. The prosecutors and private accusers again rejected the defense’s request arguing that it would violate legal procedures and force the judges to act outside of their legal roles. The prosecutors argued that the defense had been negligent and were attempting to correct an error that they themselves had caused.
The court once again, denied the defense’s request and sustained their decision from the previous day.
Presentation by Ruben Chapas Outlining Alleged Manipulation of Evidence by Prosecutor’s Telecommunications Expert, Brenda Barahona
Ruben Chapas did not appear in court. On day 4, the defense indicated that Chapas would not appear in person to present or answer questions about his presentation arguing that Chapas had been threatened. The private accusers asked the court for the defense to present evidence of the threats, arguing that the report not be accepted. It was admitted but the court will decide at a later date (during the sentencing?) whether it will be considered in their final decision or not.
The presentation was hard to understand and it involved various slides. Those can be read by watching the Facebook live: https://www.facebook.com/PJdeHonduras/videos/488087062425683
[NOTE: This is a very rough summary of the document.]
The practices recommended by the International Organization for Standardization (ISO) were not practiced in the correct manner.
There wasn’t an adequate digital forensic investigation that protected and conserved the integrity of the evidence. This could have altered the contents of the evidence which would affect the ability of other expert witnesses to reach the same conclusion as prosecutor’s expert, Brenda Barahona.
International standards were not followed:
There were no images or forensic copies of the acquisition process making it impossible to establish the state of the initial information on the equipment [the telephones used? this is not clear]
The analysis does not use necessary elements to guarantee an appropriate protection against humidity, magnetism, etc. as required by international norm ISO 27037
Issues with the management of evidence in a specific file (names the file)
To extract information from the cell phones, they changed the version of the extraction program’s operating system which could have altered the evidence.
Regarding the use of phone conversations,
1. The messages from Whatsapp chats were not presented in sequence or in order according to the original timelines which violates international norms.
2. On pages 14 and 16 of the legal file, the Whatsapp chat messages were taken from different Whatsapp group conversations and presented in a different order. This forms a new conversation and changes the context.
Examples were given from messages taken from the Whatsapp chat groups: Security PHAZ and PHAZ Coordination [The messages were not read in court and it was impossible to read them on the screen]
The messages taken from the Security PHAZ Whatsapp chat never refer to illicit actions.
In none of the messages did the conversations discuss the planning of Berta Cáceres’s murder. Douglas Bustillo’s messages were taken out of context.
If the conversations are read in order, before and after the crime, you cannot establish David Castillo’s involvement in the crime or the planning of the crime.
Ex. There is no communication between David Castlilo, Henry Hernandez, and Mariano Diaz Chavez.
Conversations between Berta Cáceres and a number assigned to Yanik Sansonnens, discuss mining projects where Berta makes reference to “serious threats.” There are also conversations between Cáceres and another number used by Carlos Juarez Juarez where there are references to someone that had been arrested.
Regarding the friendship between David Castillo and Berta Cáceres, there are 144 conversations from July 2013 to February 18, 2016. Their conversations are open and cordial and show that they support one another.
Conclusions: The reports and examination of the evidence (messages, Whatsapp, text messages, etc) do not show any involvement of David Castillo in criminal elements.
[NOTE: Following the oral dictation of this report, the private accusers reminded the judges about their decision to determine during sentencing whether this report would be considered or not in their final decision]
The Defense Retracts Two Witnesses
The defense announced that Edgardo Benjamin Jerezano Sarmiento had been subpoenaed by the court but he has informed the defense that he won’t be testifying because of threats.
The same was announced for the witness Fabiola Esmeralda Zelaya Hernández.
Clarifying Evidence Used by Harald Waxenecker As Per Request By Defense
Following the expert testimony of Waxenecker, Castillo’s defense team requested that the court review the evidence that was provided to Waxenecker to carry out his analysis. This is to ensure judicial control of what documents and elements were authorized by the court.
The court reported back about the list of evidence that had been authorized, informing all parties that they were going to review Waxenecker’s report to ensure all included elements were in fact, authorized by the court.