April 13, 2018
Spotlight Feature: Clinic team help hold Bolivian ex-leaders responsible for killings in historic case
Posted by Cara Solomon
This post originally ran on the Harvard Law Today homepage under the title, “After a decade of tireless fighting, a measure of justice.”
When the verdict came down, most of the litigation team was in the second row of the courtroom, leaning forward, tense with the waiting, trembling at times. But Thomas Becker ’08, was in the front row beside the plaintiffs, his arm around the shoulders of Felicidad Rosa Huanca Quispe, whose father was shot dead in the street all those years ago.
There was no other place for him to be. He had spent the past decade on and off in Bolivia, working in partnership with the plaintiffs–attending victims’ association meetings, tracking down witnesses, investigating leads. They were not only his inspiration. They were also his friends.
When Mamani, et al. v. Sánchez de Lozada and Sánchez Berzaín reached Federal District Court last month, it had already made history: the first time a living former head of state faced his accusers in a human rights case in U.S. court. Now, as the judge read the verdict form, Becker found the words hard to believe.
Had the jury really just found two of the most powerful men in Bolivian history liable for the extrajudicial killings of eight indigenous people–and awarded the plaintiffs $10 million in damages?
With more than 25 witnesses and hundreds of pages of evidence, the case against Gonzalo Sánchez de Lozada and Carlos Sánchez Berzaín seemed clear—how they had deployed massive military force to quash protests, leading to scores of civilian deaths. Still, Becker turned around for reassurance from Susan Farbstein ’04 and Tyler Giannini, co-directors of the International Human Rights Clinic (IHRC), which was co-counsel in the litigation from the start.
“Susan was smiling with tears running down her face, and Tyler was nodding in his Zen-like way,” said Becker. “And I knew that after a decade of tireless fighting, the plaintiffs had gotten some form of justice.”
In the summer of 2006, Becker was a rising 2L, living in Bolivia, and immersed in the social justice movement around “Black October,” the military violence that killed more than 50 and injured more than 400 in the fall of 2003.
The fight for accountability was already well underway, and would later lead to the Trial of Responsibilities, which found five members of the Military High Command guilty for their role in the killings. But the men who had unleashed the military on civilians—Sánchez de Lozada and Sánchez Berzaín—had fled to the United States in the aftermath of the violence, and lived there ever since.
At some point, Becker remembered something he’d learned about in his 1L year. It was called the Alien Tort Statute (ATS), and it allowed people to sue in U.S. courts for human rights violations. What if lawyers in the United States could use it to help the victims’ associations here get some justice for their loved ones?
He reached out to experts in ATS litigation—Paul Hoffman, Judith Chomsky, and Giannini—to see what was feasible.
For Giannini, it felt reminiscent of another long-shot ATS case: Doe v. Unocal, brought by Burmese villagers against the company for human rights abuses related to a gas pipeline project. Back in 1995, when the organization he co-founded, EarthRights International, decided to sue a corporation for human rights violations, the reception was less than enthusiastic.
“People thought we were nuts,” he said.
But Giannini served as co-counsel on that case for a decade, right up until it settled. So when Becker called with the idea of suing the president of Bolivia, he had a receptive audience: this was not a litigator put off by long odds.
The Executive Director of the Human Rights Program at the time, James Cavallaro, also loved a good fight. Cavallaro had recruited Becker to HLS with the promise of exactly this kind of work—long-term, community-directed struggles that used the law as one tool among many. With his deep expertise in Latin America, he and Giannini supervised Becker and several students in their exploratory research.
Then Farbstein joined IHRC. An expert in the ATS and in transitional justice, this was precisely her kind of case. It was the theory of command responsibility that first pulled her in. It reminded her of the trials at Nuremberg–trials that had shaped her own consciousness of human rights, and animated her prior work.
“It was very exciting to think that this case was a continuation of that legacy,” said Farbstein.
Then, like every other member of the litigation team, she became deeply involved with the clients. She sat beside Etelvina Ramos Mamani and listened to her story, of how her eight-year-old daughter Marlene was killed when a single shot was fired through the window of their home. Of how the girl died in her mother’s arms. Of how Marlene kept saying the word “mother,” before she passed.
“Speaking with Etelvina in the bedroom where Marlene died, I felt such an immediate, deep sense of commitment to her,” said Farbstein. “I knew that we would see this case through to the end.”
After the lawsuit was filed, a strong litigation team formed: In addition to Becker, Giannini and Farbstein from IHRC, there was Chomsky and Beth Stephens, both cooperating attorneys with the Center for Constitutional Rights, and Steven Schulman, leading a team of pro bono attorneys from Akin Gump Strauss Hauer & Feld. Against all odds, that core team remained intact through two motions to dismiss, two appeals to the 11th circuit, one petition for cert to the U.S. Supreme Court, and finally, last month, the trial itself.
“People fixate on the law, but these cases are about the people involved,” said Giannini. “Can the plaintiffs stick with it? Can the lawyers stick with it?”
The answer, in Mamani, was yes.
Everyone agrees: The case could not have happened without the students.
Over the past decade, more than 50 of them have worked on it, researching and writing briefs; combing through source documents; interviewing witnesses; preparing for depositions; and acting as full members of the trial team.
“I’ve said it before and I’ll say it again: I don’t ever want to work on a case without the students of the International Human Rights Clinic,” said Chomsky.
In the chaos of trial team’s “war room” they were unflappable, drafting questions for cross-examinations, preparing exhibits for trial, researching arcane points of law, then texting the answers back to the lawyers in court.
That fast pace is part of what attracted Lisandra Novo ’19, to the project. But it was also the focus on accountability, something she cares deeply about, as the daughter of Cuban immigrants who fled political persecution. And then, of course, the opportunity to go deep into the law.
“It was everything rolled into one,” said Novo, of the case.
This past fall, she spent weeks poring over the 1200-page transcript of the Trial of Responsibilities, looking for information that could prove helpful for the upcoming trial. Then, traveling to Bolivia, she took on a less comfortable task: Interviewing.
It was a challenge, learning to listen closely, take notes diligently, formulate follow-up questions—all the while managing the emotions that come with hearing the story of someone’s tragedy. But Becker was by her side, guiding her, as he has done for so many students before.
In his early years after graduation, Becker worked on the case through funding from an HRP Henigson Fellowship. Then he began to split his time, between a successful career as a musician, and the human rights work in Bolivia. When Mamani went into discovery, he turned down a lucrative record deal to work on the case full time.
For Julia Jonas-Day ’18, it was a wonder to watch him at work.
“What I’ve learned from him is a lesson about how to treat clients as equals, and make them a part of the process, and have respect for the skills that they bring,” she said.
On a case like Mamani, with so many moving pieces, some of the learning comes from doing—drafting an outline of a direct examination, preparing a plaintiff for cross, sitting beside a witness as she cries at the memories her testimony has brought back. At trial, the students did all of these things and more.
But they also learned by watching. Elisa Quiroz ’19, sat by Farbstein’s side for several hours as they interviewed a witness, Ela Trinidad Ortega, for a deposition. It was the kind of story no law class could prepare Quiroz to hear. Ortega had been beaten to the brink of death by some soldiers, before she was saved by others.
“Watching Susan really helped me understand what it means to be both human and be a lawyer,” said Quiroz. “Her empathy at all times, even when we were exhausted, working 18-hour days, was impressive.”
On another day, in another room, Amy Volz ’18, was sitting beside Giannini as he prepared a plaintiff, Gonzalo Mamani Aguilar, for trial. Mamani Aguilar was a teenager when he saw his father killed in the distance, and felt the blood spatter from another villager beside him, who had also been shot and killed.
Like all of the plaintiffs, Mamani Aguilar had waited more than a decade to tell his story. And he was nervous. So Giannini reminded Mamani Aguilar that he knew the story better than anyone—that all he needed to do was tell it.
“He re-centered the entire process around Gonzalo and his truth,” said Volz.
To hear Becker tell it, this is the thing that makes his former professors so unique. The keen intellect is a given. Their list of accomplishments on paper is long. But what makes Farbstein and Giannini stand out is the way they work with people.
“To be frank, lawyers often lack the openness and humility that are necessary in cross-cultural interviews and movement building,” said Becker. “Tyler and Susan are totally unassuming, and create a space where people from other communities feel open to sharing their experiences.”
Over the decade, there have been plenty of fascinating legal puzzles to explore: head of state immunity, political question doctrine, exhaustion of domestic remedies under the Torture Victim Protection Act, which happened to be a question of first impression. But in litigation, when so much feels up to chance, Giannini and Farbstein know the importance of small, meaningful wins.
So when Felicidad Rosa Huanca Quispe mentioned that she wanted to show the jury a photograph of her father, Farbstein encouraged her to do it. She came to court that day with a large, brightly colored cloth tied around her neck. Inside were two aged, framed photographs of her father, Raúl Ramón Huanca Márquez, taken before he was killed.
At Farbstein’s request, lead trial counsel Joseph Sorkin, of Akin Gump, had one of the images scanned into the computer and shown to the jury as Huanca Quispe was testifying.
The wait for the verdict lasted six long days. When the jury finally came back, Becker paced outside the courtroom, waiting for the plaintiffs to arrive and take their seats. Giannini texted the students, now all back in Cambridge, to let them know the verdict was coming. Farbstein took out a copy of the verdict form, her right hand shaking in anticipation.
The plaintiffs settled into the first row, waiting with their earphones for the Spanish words that would tell them whether they had won. When the words came, Becker turned back to look at Giannini and Farbstein. Then he began to sob.
“I looked to the plaintiffs to see if they had a better understanding than I did of what had just happened,” Becker recalled. “Unlike the rest of our team, which at this point had cascaded into a crying mess, they sat there with a quiet, powerful dignity that said to everyone in the courtroom that, despite the many obstacles inherent in litigation, they knew the truth was on their side the entire time.”
The team of students who worked on the case during the 2017-2018 academic year were: Nicole Antoine ’18, Lindsay Bailey ’19, Jonathan Flores ’19, Julia Jonas-Day ’18, Meghan Liu ’19, Valentina Montoya Robledo (S.J.D. Candidate), Lisandra Novo ’18, Natalie Trigo Reyes ’19, Elisa Quiroz ’19, and Amy Volz ’18.
The trial team included: Judith Chomsky and Beth Stephens of the Center for Constitutional Rights; Becker, Farbstein, Giannini, Kelsey Jost-Creegan, JD ’17, Lorena Perez and Gemma Canham of the International Human Rights Clinic at Harvard Law School; Steve Schulman, Joseph Sorkin, Christine Doniak, Ruben Munoz, Saurabh Sharad, Emony Robertson, Jason Weil, Jenny Woodson, Kareen Ejoh, Mike Greer, Jonathan Andron, and Matt Pinkney of Akin Gump Strauss Hauer & Feld; Paul Hoffman and John Washington of Schonbrun Seplow Harris & Hoffman, LLP; Ilana Tabacinic of Akerman, LLP; and Claret Vargas of DeJusticia (cooperating attorneys).