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When they stepped out of their U.S. embassy van at the dusty prison compound on the outskirts of San Salvador, Scott Greathead and Robert Varenik were apprehensive. After nearly 18 years of investigating the 1980 torture, rape, and murder of four American churchwomen in El Salvador, Varenik and Greathead were there to question four of the five Salvadoran national guardsmen who had been convicted of the brutal crimes. After all this time, the lawyers had one overriding question: Who had ordered the executions? Varenik, an attorney with the Lawyers Committee for Human Rights, is notable for his bright blue eyes and shock of dark hair, and Greathead, a Committee founder, for his trim, graying beard. Both tall and pale, they were clad in dark suits despite the 90-degree heat and humidity. Their staid, professional appearance was only slightly belied by the large, smelly buckets they carried of pollo campero, the local fast-food fried chicken that’s a favorite among inmates. They were escorted through the noisy, dingy prison halls, as young men called out to them in accented English. The musical score from the movie Titanic blasted from a cell. The lawyers reached the closet-sized interrogation room. The first of the convicted guardsmen was waiting. The Salvadoran government’s 1984 trial and conviction of five guardsmen had only come after years of pressure from the U.S. government, activists such as Varenik, now 40, and Greathead (now 54, he is a partner at New York’s Howe & Addington), and the families of the victims. Even then, many U.S. lawyers believed the Salvadoran prosecutors had intentionally skirted the sticky question of whether those guardsmen, part of El Salvador’s notoriously brutal security forces, had been acting under the orders of senior members of the military. As missionaries who worked with the poor, the women had been considered leftist subversives and therefore likely targets of the right-wing Salvadoran government. Between bites of the greasy chicken, Varenik and Greathead got some of what they came for. In separate interviews, each of the four guardsmen said that their superior, the only one of the five convicts who refused to meet with the lawyers, had received orders from an unnamed commander to detain and execute the four women. It was the first concrete evidence linking the crime to higher ranks in the military. Varenik and Greathead took their findings to the U.S. ambassador in El Salvador, Anne Patterson. Meeting in her San Salvador office, they mentioned that they wanted to question ex-generals Jose Guillermo Garcia and Carlos Eugenio Vides Casanova, the top military commanders in 1980, who were infamous among students of El Salvador’s civil war for having presided over the government security forces that killed tens of thousands of civilians. Patterson’s response: “I think they’re living in Florida now.” Greathead’s jaw dropped. “You could have knocked me over with a feather,” he recalls. Thus began the case of Ford v. Garcia. The generals’ legal residence in the United States became the hook that allowed the relatives of the slain churchwomen to use the Torture Victim Protection Act of 1992 to bring their 18-year pursuit of justice to a U.S. court. The case came to trial last October in the then still sleepy town of West Palm Beach. There, a pair of seasoned Florida plaintiffs lawyers, fresh off the state’s multibillion-dollar litigation against the tobacco industry, presented what appears to be the first case under the torture victim act in which the alleged torturers actually appeared in federal court and presented a defense. Under the best of circumstances, this would be a difficult case to make. It was complicated further because the plaintiffs lawyers had taken it on just four weeks before the filing deadline. The previous counsel, San Francisco’s Brobeck, Phleger & Harrison, had gotten cold feet, its policy committee worried about the economic — and perhaps political — costs involved, according to sources at the firm. Some 17 months after the case was filed, the retired Salvadoran generals, now in their sixties, sat in a federal courtroom while a jury listened to powerful but confusing claims that they were liable for four murders committed by five other men 20 years earlier. There would have been no trial without a quiet man named William Ford. He’s the older brother of slain Maryknoll nun Ita Ford and a partner at the Wall Street boutique Ford Marrin Esposito Witmeyer & Gleser. And he’s the lead plaintiff in the case, which represents the culmination of his personal crusade to find the highest-ranking military commanders responsible for the crimes. “Initially, we didn’t know we would sue,” says Ford, a commercial litigator who has organized the families of the victims into a cohesive group of plaintiffs. With a solemnity that masked his deep anxiety, Ford watched the trial from the front row of the federal courtroom each day, from October 10 until the jury returned its verdict on November 3. Over lunch in a West Palm Beach sandwich shop during a break from the trial, he explained how the case arose. Since the death of the three nuns and a lay missionary (Ita Ford and Maura Clarke were Maryknoll sisters, Dorothy Kazel was an Ursuline nun, and Jean Donovan was a Maryknoll lay missionary), Ford has been determined not only to seek redress for his sister’s murder but to expose both the brutality of the Salvadoran military during its 12-year civil war and the U.S. foreign policy that implicitly endorsed it. Ford first approached the Lawyers Committee in 1981, when he asked Greathead (then an associate at the now-defunct Lord, Day & Lord) and executive director Michael Posner for help in getting Congress, the U.S. State Department, and ultimately the Salvadoran government to thoroughly investigate the case. Ford worked with the Lawyers Committee to obtain classified and other documents from the U.S. government about the Salvadoran reign of terror. He made nine trips to El Salvador, meeting with legal and military officials, pushing for an investigation. Although his efforts encouraged the trial and conviction in 1984 of the five guardsmen, Ford was not satisfied. He felt certain that the military had covered up evidence that higher officials had been involved. Substantial evidence supported that view. Much of it was contained in a report of the United Nations Commission on the Truth for El Salvador, which in 1993 investigated the succession of atrocities committed during the war. Regarding the churchwomen’s murders, the Truth Commission concluded that the guardsmen had acted on higher orders and that military leaders had obstructed the investigation. But the evidence was equivocal. An earlier report, prepared by former U.S. district judge Harold R. Tyler, Jr., in 1983 at the request of the State Department, noted evidence of involvement by military superiors but concluded it was insufficient to prove the allegations. Tyler did, however, find that high-ranking members of the national guard sought to impede the investigation and that Vides Casanova likely participated in a cover-up. Tyler, reached recently at New York’s Patterson, Belknap, Webb & Tyler, where he is now of counsel, stood by his conclusions. The case of Ford v. Garcia was supposed to resolve the question of ultimate responsibility. Any evidence of higher orders would help the plaintiffs connect the murder of the four churchwomen to Garcia and Vides Casanova. Back in New York, after Greathead and Varenik’s mission to El Salvador, Ford and the Lawyers Committee readied for battle. Ken Hurwitz of the Lawyers Committee handled most of the document work, while Greathead, Varenik, and Ford flew to Florida to confront the generals. Meeting with each in his own suburban living room, the lawyers questioned both of them about the churchwomen’s murders. In Garcia’s modest Plantation, Florida home, surrounded by family photographs and religious paraphernalia, the former military commander said he believed the guardsmen were, indeed, following orders of a superior, but said he couldn’t prove it. For the legal research, the team turned west, to Carolyn Patty Blum, director of the International Human Rights Law Clinic at University of California, Berkeley’s Boalt Hall School of Law. Blum, who has a long-standing relationship with Brobeck, Phleger & Harrison, one of the high-tech powerhouses in San Francisco, recruited the firm in September 1998 to work on the case. Posner flew from New York to San Francisco to meet with Blum and the Brobeck lawyers, and soon Brobeck associates Amanda Smith and Renee Machi were putting in hundreds of hours to research the legal options. By the end of 1998, in consultation with Blum and the Lawyers Committee, Smith and Machi had outlined a strategy to sue under the Torture Victim Protection Act, a little-tested law that allows victims of torture to sue the perpetrators for money damages in federal court. The Brobeck attorneys involved were enthusiastic about the project and hoped the firm would see the case to its conclusion. The Lawyers Committee was assuming it would. But in April, after seven months on the case and just one month before the team thought the ten-year statute of limitations was set to expire, Brobeck senior partners announced that it was ending its involvement. “It was outrageous,” says a senior adviser to the plaintiffs’ team who requested anonymity. “It’s one thing initially to say no, but don’t lead us on and then leave us in the lurch.” Larry Gornick, a Brobeck partner who heads the firm’s pro bono committee, denies that the firm ever pledged to try the case. He says that Brobeck agreed to do legal research, but that eventually the policy committee decided the trial would be too expensive to litigate in Florida: “We thought we’d be better served investing that kind of effort into a community where we have an office.” Gornick acknowledges, however, that political concerns were raised. Indeed, there was no way to get around the political implications of this case, since both defendants had received commendations from the U.S. secretary of State for their roles during El Salvador’s civil war, the same roles that were landing them as defendants in a case that charged them with murder. Says Gornick of the partners’ decision: “Someone may have raised, ‘Should we be weighing in on a case where we’re going to criticize the government?’ “ The Lawyers Committee’s Posner says he was “disappointed that [Brobeck] withdrew from the case.” Blum, whose clinic receives funding and pro bono help from Brobeck, is quick to defend the firm’s actions, although she admits their lawyers’ initial enthusiasm for the case might have been misleading: “Maybe Brobeck should have made it clearer earlier on that research was distinct from doing the litigation.” Brobeck’s withdrawal left the Lawyers Committee and its clients in a panic. Posner turned to several other firms, including Tampa’s Holland & Knight and Chicago’s Jenner & Block, but none would take it on with only a few weeks before the filing deadline. “Here we are, the case is 20 years in the making, and now no one will do it,” recalls Varenik, of the Lawyers Committee. “I can’t even tell you how miserable those days were.” But all was not lost. By chance, in April, Robert Kerrigan, a partner at Pensacola, Fla.’s Kerrigan, Estess, Rankin & McLeod, was meeting in New York with Varenik and Posner to discuss creating a human rights center at Florida State University. Kerrigan knew Varenik from a trip he’d taken with the Lawyers Committee to Cambodia and Malaysia in 1997, and was hoping for some assistance with the FSU project. When he heard Posner and Varenik lamenting that the firm that had originally taken the Ford case was now refusing to file it, Kerrigan volunteered. Posner was grateful, but he had concerns. Kerrigan had a reputation as a successful personal injury lawyer, particularly since he’d worked on Florida’s massive lawsuit against the tobacco industry with Robert Montgomery, Jr., a well-known Palm Beach trial attorney. But Posner knew little else about Kerrigan’s work or experience. Then again, his options were limited. “I was so nervous about it,” he recalls. It helped that Kerrigan promised to enlist Montgomery, known not only for his finesse with juries but also for being a multimillionaire who could help foot the bill. Nonetheless, Kerrigan and Montgomery were not the usual suspects for an organization like the Lawyers Committee. Normally the committee is able to enlist lawyers at well-endowed, big-city law firms for such human rights cases. Montgomery and Kerrigan were of a different stripe. Montgomery, one of two partners at the four-attorney firm of Montgomery & Larmoyeux, is a garrulous Palm Beach celebrity, a patron of the arts with a lavish mansion on the tip of the island where he hosts Democratic party candidate fund-raisers that feature such luminaries as James Carville. A renowned Florida plaintiffs lawyer and one of the principal attorneys in the state’s tobacco litigation (he was maneuvering to be lead trial counsel before the case settled), Montgomery is known for a courtroom presentation that’s smooth and elegant, with a flair for the dramatic. And he’s not shy about demanding his rewards: After the tobacco case settled, he was involved in a nasty dispute over his attorneys’ fees that included filing a lien against the state and suing both the tobacco companies and co-counsel over his share of the $11.3 billion settlement. Kerrigan, by contrast, keeps a lower profile. An intense man of 57 with close-set eyes and curly gray hair that encircles his bald pate, he has a reputation for a fierce tenacity. “He gets on to something, and he thinks about it all the time,” says Talbot “Sandy” D’Alemberte, president of Florida State University and former head of the American Bar Association, who has known both Montgomery and Kerrigan for many years. “When he represents someone, he does it in the most passionate way you can imagine.” Indeed, Kerrigan’s ruddy complexion flushed brighter as he talked about the Ford case in Montgomery’s law offices on a day off from trial. “I just wanted to see them,” he said of the generals, his brow furrowing as he launched into the litany of atrocities perpetrated in El Salvador during their tenure. It’s a complicated history he’s gleaned from his collection of about a dozen books on the subject. But perhaps the most significant difference between these two personal injury lawyers and traditional corporate litigators is that Montgomery and Kerrigan are willing to take risks that many big-firm lawyers are not. In the tobacco case, recalls D’Alemberte, “they put their own resources on the table. They ran a lot of risk, and not only of failure. They faced real possibilities of malpractice.” Although the Ford case would not require the kind of resources needed to go up against Big Tobacco, the lawyers did put up about $400,000 in costs alone, using pricey trial exhibits and high-tech projection and video equipment. And while they were asking for compensatory and punitive damages, they never expected the defendants, who live modest lives in middle-class Florida suburbs, to satisfy a large judgment. And failure was a real possibility. Despite the sympathetic victims involved, this case was a gamble. Those charged with holding the smoking guns were already in prison. In this civil action, Kerrigan and Montgomery had to prove a more complicated claim: that the generals were liable for not controlling their forces. At trial, the case would turn on the concept of “command responsibility” — essentially, that military generals may be personally liable for acts of soldiers under their command. Kerrigan and Montgomery filed the complaint on May 11, 1999. From that point on, trial preparations were exhaustive. Although they had close to a year and a half to bring the case to trial, the lawyers — complete neophytes to the study of Latin American history — needed not only to learn the intricate details of El Salvador’s civil war and military leadership but to figure out the best way to explain it to an equally inexpert jury. To depose witnesses, retain experts, and obtain and review all the documents in 17 months, all while carrying full litigation caseloads, was a tight squeeze. But the plaintiffs had waited a long time; they thought they had a solid case; and they didn’t want to postpone the proceedings. From 5,000 documents received in discovery, the lawyers whittled the case down to an exhibit list of 192, of which they used about half at trial. Through cable transmissions, investigatory reports, and a string of witnesses that included former U.S. ambassador Robert White, the lawyers sought to prove that Garcia and Vides Casanova were responsible for the national guardsmen’s actions. To do that, the lawyers had to prove command responsibility, a doctrine that had been regularly applied successfully in war crimes prosecutions but less commonly used in civil cases and perhaps never before in a case where the defendants actually showed up in court and defended themselves. To show the generals were legally responsible, Kerrigan and Montgomery had to prove that they knew or should have known that their subordinates were routinely engaging in criminal activity but failed to take reasonable actions to stop them. The difficulty of that task was not going to keep Robert Montgomery, on a day off in the middle of the three-and-a-half-week Ford trial, from getting to his Friday afternoon golf game. Looking ready to board a yacht in cream-colored cottons and a golf belt on this sunny October morning, the 70-year-old lawyer leaned back in his West Palm Beach office, hands clasped behind his neck, and perched his white bucks up on a carved oak desk. With his wide smile and folksy Alabama drawl, Montgomery seemed almost to revel in his ignorance. “I didn’t know where El Salvador was,” he chuckled, when asked how he came to take on one of the first contested cases brought under the torture victim act. “I didn’t know the Torture Victim Protection Act from a fence post.” But in the “autumn” of his legal career, as he put it, Montgomery was feeling exhilarated by the chance to direct the trial of the men who presided over El Salvador’s military during its most brutal and repressive period in history. “These people don’t intimidate me,” he insisted, his feet returning to the ground as he leaned forward, a flash of anger replacing his usually blithe demeanor. “They’re pipsqueaks. I want to go slap them in the face.” Trial began on October 10, 2000, in Judge Daniel Hurley’s wood-paneled courtroom. With a Spanish-language interpreter between them, the two generals sat at the defense table with their attorney, Kurt Klaus, Jr. A mild-mannered man of 47, Klaus is a general practitioner from Miami who handles mostly family law. He had taken this case because his wife is a college friend of Vides Casanova’s daughter. Relatives and supporters of both sides filled the benches in the courtroom gallery. In the front row, watching impassively, was Ford. The plaintiffs’ case detailed the savagery of a civil war that had left 75,000 dead in a country smaller than the state of Massachusetts. It described the abduction of the four women from an El Salvador airport on December 2, 1980, how they were transported to a remote location, then raped and shot to death. Their bodies were discovered on an isolated roadside. The van they had been driving when they were stopped at a military checkpoint was found burned and gutted, 20 miles away. The churchwomen’s story was presented as part of a pattern of brutality against civilians perpetrated by El Salvador’s armed forces, a pattern that included the murders of the popular Salvadoran archbishop Oscar Romero eight months earlier, and of two Americans and a Salvadoran agrarian reform leader by national guardsmen just two weeks after the churchwomen’s killings. To prove the generals’ knowledge about the reports of atrocities, Montgomery and Kerrigan relied on cables between U.S. ambassador White and the State Department detailing White’s conversations with Garcia and Vides Casanova about the violence. They introduced pieces of the U.N. Truth Commission and other investigative reports to offer strong evidence of the military’s role in the carnage. The more difficult part of the case was proving that Garcia and Vides Casanova had made little or no attempt to stop them. To do that, Montgomery and Kerrigan called White. The former ambassador testified to his frustration with Garcia for not taking actions to rein in the death squads, and said that the Salvadoran commission appointed to investigate the churchwomen’s killings “never did anything.” Roberto Alvarez, former investigator for the Inter-American Commission on Human Rights, part of the Organization of American States, testified about how he stumbled upon secret confinement cells in a national guard building, a discovery he wrote about in a 1978 OAS report on human rights abuses in El Salvador. The testimony was used to establish the generals’ knowledge that the security forces were engaging in torture and other human rights abuses even before the defendants assumed office in October 1979. The plaintiffs also introduced numerous declassified documents in which U.S. embassy officials reported on abuses committed by Salvadoran troops. Included was a memo written by White’s successor, then-U.S. ambassador to El Salvador Deane Hinton, in 1982 that read: “While Garcia talks a good game, I no longer trust him or believe him,” and that “Garcia should be read the riot act” about human rights abuses. Portions of the Truth Commission and Tyler reports were also used to prove that Vides Casanova tried to thwart the investigation of the churchwomen’s murders. The defense, for its part, did not deny that violence and torture were rampant in El Salvador at the time, that the armed forces were involved, or that Garcia and Vides Casanova were aware that atrocities were occurring. What they denied was that the generals could do anything about it. To defend themselves, the generals took the witness stand. Responding to occasional, vaguely worded questions by Klaus, a man of medium height and build who speaks slowly and without affectation, they, too, testified to history, to the chaos and mayhem that had engulfed El Salvador after a military coup in 1979 failed to establish order. Although Kerrigan and Montgomery tried to show that the government security forces were responsible for the majority of the violence, Garcia and Vides Casanova claimed it was mostly the fault of right-wing paramilitary forces and left-wing guerrillas, insisting that they did everything they could to restore order. In one portion of his testimony, to establish that he tried to control his forces, Garcia pointed with pride to a grainy video clip, projected on a large screen in the courtroom, showing Salvadoran soldiers goose-stepping under his command. To prove that Garcia supported democracy, Klaus showed further shots of him in military uniform commanding Salvadorans to vote in the 1982 elections. With no sign of irony, he had assured the public that the armed forces had withdrawn from politics. But the most dramatic moments came when Garcia, a small man with a stony face, made an emphatic plea directly to the jurors. Garcia (through an intepreter) lamented the plight of a wartime commander and urged the jury to conclude that it was time to move on: “The Salvadorans now try to forgive, because that sense of always wanting to recall that violence brings a lot of pain.” His former government, he insisted, had investigated these murders. “We did all that was possible to find the truth. I tell you with all my heart that we’re not guilty of this crime.” To bolster that argument, Garcia and Vides Casanova testified to receiving Legion of Merit awards from the State Department in the 1980s for their work in El Salvador. Indeed, the awards — Garcia’s, signed by then-secretary of Defense Caspar Weinberger, was accompanied by a certificate that described him as “a sterling example of a military leader in a representative government” — were troubling hurdles for Montgomery and Kerrigan, who were wary of presenting evidence critical of the United States that could strike a jury as unpatriotic. That Garcia had been granted political asylum in 1991 only made the plaintiffs’ case against him more difficult. Vides Casanova had obtained residency status through his wife, whose parents are U.S. citizens. This may have been precisely the sort of situation that Brobeck, for its own reasons, had wanted to avoid. When it came to closing arguments, Montgomery and Kerrigan needed to directly counter the accolades of the U.S. government and establish that Garcia and Vides Casanova had failed to take reasonable measures to halt the violence perpetrated by their forces. But they found it was not so simple to establish an omission. Evading the issue of U.S. policy, Montgomery, standing directly before the jury in a sober gray suit, spoke grandly and theatrically, his voice rising as he pointed to the generals and blamed them for the murders, and dropping as he instructed the jury on the gravity of their role. Montgomery argued that the defendants knew about the ongoing atrocities, and even implied that they were aware of orders to murder the churchwomen: “Do you think the troops would dare defy a superior? It would never have happened if they had lived up to their responsibility,” said Montgomery. “You have to protect the people. You have to put a lid on [the violence]. And when these defendants failed to do that, they invited what happened to these churchwomen.” Montgomery added: “Their approval invited the deaths of the churchwomen just as if they had taken a rifle and killed them.” He asked the jury to award $25 million per plaintiff, plus punitive damages. Klaus, by contrast, described his clients as heroes, akin to the founding fathers of the United States struggling to give birth to a democracy. In the slow, flat manner of speech he used throughout the trial, he told the jury that it was impossible to link his clients to the death of the churchwomen, particularly after 20 years had elapsed: “What they’re asking you to do is to find these men [guilty] and hold them responsible for something they didn’t do.” On Friday, November 3, the 10-person jury responded: Garcia and Vides Casanova were not liable for the torture, rape, and murder of Ita Ford, Maura Clarke, Dorothy Kazel, and Jean Donovan. In the end, the jury decided that the generals did not have the necessary “command responsibility.” Judge Hurley had instructed the jurors that to find such responsibility, they had to conclude that the defendants had “effective command” over their troops — that “the commanders had legal authority and practical ability to exert control over [their] troops” — a phrase the plaintiffs’ lawyers originally wrangled over but ultimately agreed to. The jurors stumbled on the phrase “effective command”; they could not render that judgment. Did the verdict result from a faulty jury instruction, the jurors’ misunderstanding, or a gap in the evidence presented? Was the claim just too tenuous? Or would a phalanx of Brobeck associates, poring over every element of the claims, the evidence, and the jury instructions, have made a difference? “The plaintiffs did a beautiful job of painting what a horrible mess this country was,” says a remorseful jury foreman, Bruce Schnirel, a 50-year-old postal worker. “How divided the military was, how they were all working independently of each other. So we get back there, and this was the discussion for over three days: ‘How can you have control over chaos? If it was all these things going on, how can you have control over all these different factions?’ “ The jurors, says Schnirel, did not believe they had enough evidence that the generals were able to exercise authority over the security forces below them. Experts in international law are befuddled. “A commander has responsibility even when they’re not directly there for the actions of their subordinates,” says Naomi Roht-Arriaza, a professor at University of California, Hastings College of the Law in San Francisco, who teaches international human rights law. Citing the Nuremberg trials and cases before the International Criminal Tribunal for the Former Yugoslavia in which commanders were convicted under parallel circumstances, she added: “That’s an accepted principle of international law.” Perhaps, but it was not made evident to the jury. Says Schnirel plaintively: “If Kerrigan or Montgomery had presented some chain of orders that showed that [the generals] were commanding, to show that on such and such a date they gave an order and did this — if we had heard some structure … “ Looking back, lawyers on the plaintiffs’ side acknowledge the gap. Part of the problem was that several witnesses originally scheduled to testify about military command structure did not. Two witnesses who Kerrigan had hoped would come from El Salvador were in the end unable or unwilling to make the trip. Kerrigan believes at least one — a former member of the military government who resigned in protest — was threatened. And Montgomery says they had intended to call an expert from Argentina on command structure, but Montgomery says he was dissuaded by the judge. There was also a scheduling conflict, and the plaintiffs did not want to postpone the trial. But Montgomery insists that he did not make a mistake: “I did everything that I thought was appropriate in regard to presentation.” Others disagree. “We really needed that kind of expert,” says Greathead. Even Kerrigan acknowledges the problem: “I don’t know that we had anybody testify as to the chain of command. I did not think it was an issue. It was so evident. It was all just crystal clear.” Apparently not to the jurors. “The links that in your mind are so completely obvious may not have been made for the jury,” says Boalt Hall’s Blum, reflecting on the case. “You have to break down each piece of it.” Of course, no one can be sure why the plaintiffs lost. Even jurors’ attitudes toward the lawyers may have played a role. Betraying his concern on that point at the close of trial, Kerrigan began his portion of the summation by apologizing to the jury for any offense by the lawyers. Schnirel, the jury foreman, confirms Kerrigan’s suspicions. Some of the jurors were “put off” by what they perceived as Montgomery’s arrogance, he says: “There were some off-handed comments during the discussion.” Montgomery’s trial demeanor was, he adds, “somewhat put on. It’s pretty easy to see through him.” The plaintiffs have moved for a new trial, claiming that the jury charge on command responsibility — particularly the requirement that they had to find the generals had “effective command,” i.e., the actual ability to exercise control over their troops — was incorrect. The instruction, the plaintiffs argue, wrongly saddled them with the burden of proving the omission — the generals’ failure to take reasonable actions to rein in their troops; the generals should have had to prove what actions they took. Notably, despite some discussion about the wording beforehand, neither Kerrigan nor Montgomery objected when that charge was given. Although the judge could still grant a new trial if the instruction was a clear misapplication of the law, the lawyers’ failure to note an objection on the record raises the hurdle. The plaintiffs have also claimed the verdict was against the weight of the evidence. Which leads to another concern of human rights advocates: Can an American jury unschooled in Latin American history ever truly comprehend the role El Salvador’s top military generals were playing while their forces were slaughtering close to 1,000 civilians a month to repress a popular insurgency? “It may be hard for us as U.S. citizens to imagine that a government could behave in that fashion,” says Beth Van Schaack, an associate in the Palo Alto office of San Francisco’s Morrison & Foerster. She is working on a similar case with Blum and The Center for Justice and Accountability, a San Francisco-based nonprofit organization created with support from Amnesty International USA and the United Nations Voluntary Fund for Victims of Torture. Van Schaack and co-counsel will have their chance to find out. The group expects to go to trial in May. A second torture victim act case against these same two generals will be brought on behalf of four Salvadoran torture victims now living in the United States. With the Center, Boalt Hall’s human rights clinic, and five lawyers with ample resources from Morrison & Foerster (some of whom sat through portions of the Ford trial), plaintiffs counsel seem prepared and determined to win this second round. “We need to be clearer about specific lines of responsibility that existed within the military,” says Van Schaack. “We need to show that the defendants occupied positions at the apex of the military complex.” Klaus, who will be representing Garcia and Vides Casanova again in the second trial, is clearly concerned. “They have five or six lawyers that sign every pleading,” he laments. “I’m already dreaming about it.” Robert Montgomery isn’t losing any sleep over the Ford case. Soon after the verdict, he became embroiled in the presidential election fiasco, representing Palm Beach County’s supervisor of elections in 15 lawsuits filed against her. In a rare free moment recently, he was quick to put a positive spin on his recent defeat. “This was pro bono,” he says. “We treated it really like a substantial case. We spent a few hundred thousand dollars to do it, but the truth is out.” Ford is grateful the story came out, but stunned and frustrated by the verdict. “It was put before the jury wrongly,” he insists, mulling over the trial and jury instructions in his mind. The next case, he says, “should be more like a court-martial. Instead of talking generally about violence, it should be narrowed to the troops under their command. What the generals knew, and what they didn’t do.” For Ford, the quest continues. On December 2, the 20th anniversary of his sister’s murder, he joined about a thousand others who crammed into San Salvador’s main cathedral to commemorate the tragedy. Another service followed that evening in a chapel built at the site where the bodies were discovered. The next day, Ford went home, his practice waiting in Manhattan and the generals awaiting another round in Florida. Ford is still negotiating with the CIA to obtain confidential documents that pertain to the churchwomen’s murders. And he plans to attend the next trial.

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