- Misión Calificada
2nd day of the David Castillo Trial for murder of Berta Cáceres
Updated: Apr 9, 2021
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Read our brief overview of the first week of trial here. Read our other detailed preliminary reports here.
Preliminary observations in the trial against David Castillo, accused in the murder of Berta Cáceres
Trial Day 2 - Wednesday, April 7, 2021
Recap of Day 1: On the 1st day of the trial, David Castillo's defense asked the Court to suspend the hearing because they had 3 writs of amparo before the Constitutional Chamber that have not yet been resolved. At the same time, an appeal is also pending resolution and they pointed out that several of their expert witnesses have had problems that have prevented them from completing their reports on time. The Court ruled that none of these reasons justified the suspension of the trial and ruled against the request. Read the details: https://www.observacionbertacaceres.org/post/1er-d%C3%ADa-juicio-oral-y-publico-de-david-castillo-por-el-asesinato-de-berta-c%C3%A1ceres
On the 2nd day of trial, April 7, David Castillo was transferred early to the Supreme Court of Justice and the hearing began at 9:30am with victims and observers connected through Jitsi. The hearing was transmitted through the social media of the Judiciary. Laura Zuniga, daughter of Berta Cáceres and a victim of the crime, sent a letter to the Tribunal requesting that the family be able to participate physically in the trial as she was barred entry into the courtroom the day before.
First procedural moment:
The hearing opened by giving the floor to the parties to express their views on the resolution from the day before which denied the request of the Defense to reschedule the hearing. Representatives of the Public Prosecutor's Office and the private accusations accepted the notification of the decision and their agreement to it.
The defense team expresses its disagreement with the resolution and notes that the law authorizes them to file an appeal of reconsideration to challenge it; however, they do not file said motion. The defense attorney proceeds to elaborate on a motion to recuse the tribunal that they tend to file based on article 83, numeral 11 of the Code of Criminal Procedure (CCP) which establishes as grounds for recusal of the Court the "...intimate friendship or manifest enmity with any of the parties" .
The defense was interrupted due to the absence of the emergent defense counsel, Tesla Sabrían, to which the defense also expressed its disagreement. With the arrival of the Ms. Sabrían, the Tribunal expresses to the technical defense that, since they do not intend to file an appeal for reconsideration, the appropriate procedural moment for the presentation of the recusal is during the Incidents Phase, in accordance with the procedural rules.
Pursuant to article 320 of the CCP, the parties may present Incidents that they consider pertinent with respect to the following possible aspects:
- Jurisdiction of the judicial body
- Recusal of the Court or some of its members.
- Causes of nullity
- Exclusion of evidence due to its unlawfulness.
- Proposition of new evidence (as long as it can be taken without suspending the trial hearings).
Incidents raised by the Prosecutor's Office
1. They present a copy of act 3-88-2017, the cadaveric survey with its photographs already attached to the file, in order to correct the previously established appointment of experts with other experts who will be the ones to ratify the act and photographs at trial.
2. Physical evidence consisting of two telephones that were used as data input for the Information Extraction Expert Reports carried out by the Prosecutor's Office in order to accredit the consistency between the physical search and seizure records and the objects seized, which is also to be presented at trial.
3. They proposed a copy of the report DIVINV-DNII0005-2016 on the extraction of information from an LG phone dated 5 April 2019, to demonstrate in court that the appropriate investigative measures were carried out with regard to another possible line of investigation that was developed by the Prosecutor's Office but was later dismissed due to manipulation of the information extracted. They also proposed Expert Witness Emerson Moisés, from the National Intelligence Directorate (DNI) for ratification of report.
4. The asked that José Eduardo Sierra be appointed as Technical Consultant to the Public Prosecutor's Office when Expert Witnesses Vodde and Langtong, proposed by the Defense, present their reports as well as when Expert Witness Jonathan Murillo presents his report on the extraction of information from the LG phone.Request for the issuance of edicts to call to testify the protected witness "AAA" and Mrs. Lilian Esperanza López since they could not be summoned by the Public Prosecutor's Office.
5. Request to issue a subpoena to compel attendance of protected witness "AAA" and Ms. Lilian Esperanza López to testify, since they were not successfully summoned by the Public Prosecutor's Office.
6. They proposed Óscar René Rodríguez, Technical Consultant of the Technical-Scientific Department of the ATIC, who is an expert in the custody of evidence and procedures related to the chain of custody of evidence for the extraction of information, as a technical advisor when the Expert Witnesses proposed by the Defense gives testimony regarding the handling of evidence in the case.
Incidents raised by the private prosecutions
1. Request to exclude Expert Opinion of Rubén Chapa, proposed by the defense of David Castillo, for having been proposed in contravention of procedural norms.
2. Proposal of new evidence: Certificate 1057, dated February 6, 2019, of the official record of the minutes of the extraordinary shareholder's meeting of PEMSA, held on February 5, 2019, which establishes that the defendant David Castillo is the legal representative of PEMSA.
3. New evidence was proposed revealing a transaction date February 29, 2016 of $1,254,000 USD from Daniel Atala, DESA's Chief Financial Officer, to PEMSA (Panama), a company Directed by David Castillo, which coincides with conversations that took place two days before the murder within the structure coordinating the assassination. This also includes a separate document, dated September 11, 2012, which sets out the legal powers granted to David Castillo in his capacity as Director of PEMSA, including the ability to request loans, sign contracts, make deposits, etc. They state that this new evidence should be linked to the following elements:Chat messages and conversations extracted as evidence, between Douglas Bustillo and David Castillo discussing a plan to assassinate Berta Cáceres. Castillo refers to his ability to provide loans to Bustillo in a meeting held in person in Tegucigalpa. These conversations occurred on or around the date of the wire transfer to Pemsa. Castillo confirmed the money transaction by speaking with Bustillo, and Castillo subsequently delivered money to Bustillo at least one day before Berta was murdered.
a. Chat messages and conversations extracted as evidence, between Douglas Bustillo and David Castillo discussing a plan to assassinate Berta Cáceres. Castillo refers to his ability to provide loans to Bustillo in a meeting held in person in Tegucigalpa. These conversations occurred on or around the date of the wire transfer to Pemsa. Castillo confirmed the money transaction by speaking with Bustillo, and Castillo subsequently delivered money to Bustillo at least one day before Berta was murdered.
b. The defendant's status as a legal representative of PEMSA, with sufficient powers to dispose of financial transactions of that holding company, as well as his status as Director of DESA, a company principally linked to the criminal act. Furthermore, the transaction contained Daniel Atala's institutional email address (firstname.lastname@example.org).
c. There is certainty that Douglas Bustillo, convicted as the perpetrator of the murder, met with David Castillo the day before the events, who, according to the conversations described above, were meeting to make a payment.Se solicita al tribunal que confirme la citación de Daniel Atala, propuesto como testigo por los acusadores privados y aceptado por el tribunal para declarar. El secretario del tribunal confirma que Daniel Atala fue notificado el 24 de marzo de 2021 y que su representante legal confirmó que declararía en el debate.
4. They requested that the Tribunal confirm the subpoena of Daniel Atala, proposed as a witness by the private prosecutors, and accepted by the Court to testify. The clerk of the court confirms that Daniel Atala was notified on 24 March 2021 and that his legal representative confirmed that he would testify at the trial.
5. Expert reports by Gladys Tzul, Harald Waxenecker and Andrés Arrieta, were proposed for ratification. These reports, admitted for completion under jurisdictional control, have been included to the file.
Incidents raised by the private defense
1. Formalise a motion to recuse the Sentencing Tribunal due to the Court's alleged manifest enmity towards their defence, based on the same arguments raised in the 3 previous recusals.
The court determined that according to article 90 of the Code of Criminal Procedure they could not continue with the trial as long as the recusal presented by the defence is being considered. Therefore, they ruled to suspend the hearing until they are made aware of the Court of Appeal's decision on the matter. This also suspended a ruling by the Tribunal related to what was presented during the incident phases.
 Letter from Laura Zúniga to Tribunal: https://www.observacionbertacaceres.org/post/2nd-day-of-the-david-castillo-trial  See Day 1 Observations: https://www.observacionbertacaceres.org/post/1er-d%C3%ADa-juicio-oral-y-publico-de-david-castillo-por-el-asesinato-de-berta-c%C3%A1ceres  See SECTION SIX OF THE RECUSALS AND EXCUSES, beginning in Article 83 of the Code of Criminal Procedure. http://www.poderjudicial.gob.hn/CEDIJ/Leyes/Documents/CPP-RefDPI.pdf  Read more about the appointment of the emergent council in our reports: February 10, 2020: https://www.observacionbertacaceres.org/post/observaciones-preliminares-audiencia-de-proposici%C3%B3n-de-pruebas-10-de-febrero-de-2021; November 22, 2020: https://www.observacionbertacaceres.org/post/observaciones-preliminares-de-la-audiencia-del-22-de-noviembre  Read our guide to understand the procedures: https://www.observacionbertacaceres.org/post/juicio-por-el-asesinato-de-berta-c%C3%A1ceres-como-entender-los-procedimientos