Hostage Nation

by Victoria Bruce

  The prosecution of Trinidad would turn out to be extremely difficult. Aside from the very real concern that the trial could have a negative effect on the hostage situation, there were grave safety concerns for the Colombians who would be called upon to testify. “It’s not that easy to persuade people, former FARC members, even Colombian National Police officers, to come to the U.S. to testify and then go back to their posts in Colombia where the FARC had such a presence.” Kohl knew that they had a reason to be concerned. Each day of the trial would be front-page news in Colombia, and every witness and each testimony was sure to be openly dissected by the media. Although Kohl was able to secure several Colombians to testify about Trinidad’s involvement in the FARC, the biggest challenge for the prosecutor was that for the actual kidnapping of Howes, Stansell, and Gonsalves there were no witnesses. Kohl would have to rely on journalist Jorge Enrique Botero’s video footage of the hostages as evidence and let the Americans tell the story of their kidnapping in their own words. Evidentiary rules mandated that to use the video in the trial, Kohl would have to supply an expert witness to validate the video’s authenticity. And the only person who could do that was Jorge Enrique Botero.

  When first asked to testify as a witness for the prosecution of Trinidad, Botero was concerned. “A Colombian prosecutor and an FBI agent told me that the only thing they would ask at the trial is that I certify that the video of the three Americans was authentic and that I recorded it. I asked if Trinidad’s lawyer would also be able to ask me questions. After assuring me that he would, I agreed to testify at the trial.” With his first visa to travel to the United States in fifteen years and a round-trip ticket from Bogotá to Washington, D.C., in hand, Botero became very nervous. “I was worried that some in the Colombian government or the paramilitaries would think that I was working for the defense of Trinidad, and the death threats would come again. I was also worried that the FARC would think that my testimony could do damage to Simón and I would lose access to my contacts and sources.” But there was one thing that couldn’t keep him from the trial no matter the risk: his curiosity as a journalist. After quickly landing a book deal to write a biography of Trinidad, he headed to the United States, content that he had the good fortune to be traveling on the U.S. government’s dime.

  Because Botero was a witness, he was not allowed to attend the trial on the days prior to his testimony. So he was not in the courtroom on October 16, 2006, when, after almost two years of solitary confinement in the D.C. Jail, Simón Trinidad emerged to stand trial in U.S. federal court. The guerrilla commander had looked haggard and unkempt in his orange cotton jumpsuit in the days prior to his trial. But by the day of opening arguments, he had transformed. In a stunning wood-paneled courtroom on the fourth floor of the courthouse, the defendant resembled a composed university professor. Had his mother been able to see him, she might have been very proud of how dignified he looked as he entered the courtroom and sat at the table along with his counsel, public defender Robert Tucker. Trinidad was pale from two years without any sunlight. His skin had almost a gray tint, and he was very thin. For many years, it had been reported that he suffered from cancer, and from the look of him, some thought it could be true. Trinidad wore a well-fitted navy blue suit and tie. He was clean-shaven, but short stubble sprouted from his balding head.

  With his hands folded, the defendant sat at a long table, along with Tucker and two other members of the defense team. Although Trinidad seemed comfortable with his public defender, Tucker could understand only a few words of Spanish, and Trinidad spoke almost no English. Over the past two years, Tucker had spent many Sunday mornings visiting Trinidad at the D.C. Jail. On those visits, Trinidad, shackled and handcuffed, was led to a small room to meet with his lawyer. Occasionally, the guards would remove one handcuff so that Trinidad could write. On some of those visits, Lara Quint, an assistant federal public defender, would accompany Tucker and translate for the men.

  Tucker liked Trinidad and would call him “a really nice guy” and “a total gentleman.” And although the two couldn’t communicate well, Tucker says, “we somehow managed to get along.” Tucker had been assigned to Trinidad’s case because several years earlier he’d defended another extradited Colombian, Nelson Vargas. Vargas had been accused of being a top FARC leader whose nickname was “El Marrano” (“the Pig”) and part of a group responsible for the 1999 kidnapping and killing of three Americans who were working with Colombian indigenous populations. Having met and defended many accused terrorists from all over the world, Tucker was not accustomed to wondering whether his clients were guilty of their crimes. “Most of the time these guys are caught coming off the airplane with a machine gun,” he says. But with Vargas, “something didn’t ring right,” according to Tucker. To him, Vargas hardly seemed the portrait of a murderous terrorist. The simple Colombian, whose leg had been amputated after he’d been shot while in a Colombian jail, expressed no bravado or revolutionary fervor. “After talking to him for about an hour, I asked him how he got into this mess.” Vargas looked at his gringo lawyer earnestly and replied with what would become one of Tucker’s favorite lines in any of his cases: “It all started with a woman.”

  Vargas had been discovered having an affair with a married woman by the woman’s husband. The scorned spouse went directly to authorities and said, “I know who El Marrano is. He is Nelson Vargas.” Because of the high-profile murder of the three Americans, El Marrano was one of the most wanted criminals in Colombia. The husband then told the police where to find Vargas. The hapless Vargas was captured and convicted of rebellion in a Colombian court with the help of two witnesses who were former FARC members allegedly on the payroll of the government. Then with a lot of fanfare, Álvaro Uribe signed the extradition order for what everyone said was the first FARC guerrilla to be sent to the United States. Vargas was shipped off to Washington to stand trial for the murders. Tucker, who knew nothing about Colombia or the FARC when he met Vargas, made four trips to research the case. His plan was to present Vargas as what Tucker knew he was, an innocent man, and to paint the FARC as an evil terrorist organization that Vargas certainly wouldn’t have belonged to. But Tucker never had to make the argument. Colombian prosecutors could no longer find the witness who could put Vargas at the scene of the crime. The case was dismissed before it went to trial, and Vargas was sent back to Colombia, where he was also exonerated of the murders and of being a member of the FARC. For Simón Trinidad’s trial two years later in Washington, D.C., Tucker would twist his argument about the FARC 180 degrees from the defense he’d planned for Vargas.

  As the trial began, the defense team spoke quietly as Trinidad slid on his translation headset and eyed the members of the jury, who were settling into their box. John Crabb, the assistant prosecutor working with Kohl, gave the opening arguments. The young, handsome, and very polished attorney looked straight out of a Hollywood movie as he argued that Trinidad was a terrorist, responsible for kidnapping the three Americans. He was responsible for their kidnapping because he was part of the FARC, a known terrorist organization that used kidnapping to further its terrorist agenda. “The FARC is led by a small group of men,” Crabb told the jury in a well-rehearsed speech. “One of their leaders, in fact one of the FARC’s most important leaders is here today.” Crabb pointed to the defendant. “It’s that man, Simón Trinidad. Now Simón Trinidad didn’t order that Marc, Keith and Tom be taken hostage. But this is what he did do. Once they were taken hostage by the FARC he tried to exploit the situation for the FARC’s benefit.… Ladies and gentlemen, Simón Trinidad tried to use Tom Howes, Keith Stansell and Marc Gonsalves as get-out-of-jail free cards for FARC criminals that are in Colombian jails. That’s why we’re here today, ladies and gentlemen. My name is John Crabb, along with my colleague, Ken Kohl. We’ll present the evidence of this crime to you.”

  The tall, balding public defender was the stark opposite of Crabb. During his opening arguments, Robert Tucker spoke so softly that three times the inter
preters said they couldn’t hear him and asked him to speak up or speak more directly into his lapel microphone. In a long and confusing speech to the jury, a laid-back Tucker waxed on about Colombia’s civil war, the history of the FARC, and the assassinations of Unión Patriótica members in the 1980s. The jury appeared lost. Tucker said that it was not part of his agenda to prove that Trinidad was not a member of the FARC, nor to argue that the FARC was not a brutal organization. What he would establish, Tucker said, was that the FARC was an army fighting a war against another brutal army—that of the established Colombian government. The American hostages were prisoners of that war. Trinidad was only a soldier in that army who was ordered by his commander to go to Ecuador and reestablish communication with United Nations representative James LeMoyne. All Trinidad did, Tucker told the jury, was follow orders. “I suggest to you, ladies and gentlemen, that you’ll find at the end that he had nothing to do with this. Nothing. And if you think about what the government [prosecution] said, what did they really tell you this man had to do about the three Americans? They didn’t tell you anything. He had nothing to do with it.”

  In the trial’s opening days, there were testimonies from James Hollaway, the program manager of California Microwave Systems, and Derek Harvey, an administrative coordinator for the SOUTHCOM Reconnaissance System program at the U.S. Embassy in Bogotá, who described the type of work that Stansell, Gonsalves, and Howes had performed. The Colombian colonel Gustavo Enrique Avendaño and the Colombian National Police officer Juan Carlos Sánchez discussed the crash and the attempted rescue by Colombian forces, and expounded on the horrors of the FARC’s grip on Colombia. On the trial’s fourth day, Jorge Enrique Botero took the witness stand. It was clear that Botero felt friendly toward the guerrilla commander, whom he’d spent many hours interviewing in Colombia’s DMZ and during the large hostage exchange in 2001. He winked and smiled at Trinidad as he settled into the witness chair. When Kohl asked Botero if he could identify Trinidad in the courtroom, Botero pointed at Trinidad. “He’s seated next to the defense attorney. He is wearing an elegant tie and a dark suit.” Over the course of his testimony, Botero became irritated when he felt that Kohl was trying to paint him as a guerrilla sympathizer, maybe even a FARC member. And Kohl seemed unnerved by Botero, who refused to condemn the FARC or Trinidad. Botero testified that the only time he had met Trinidad was during the very public and political negotiation period when the FARC had the DMZ, and that Trinidad was never in any of the hostage camps that he had visited.

  After Botero’s testimony, Kohl was free to present the proof-of-life video of Stansell, Gonsalves, and Howes to the jury. Although Kohl had tried to rally support for prosecuting Trinidad from the families of the hostages, none of them attended the trial except Jo Rosano. While distrustful of the government’s motives, Rosano once again used the opportunity to try to bring attention to her son’s kidnapping. Rosano sat in the front row of the courtroom gallery, flanked by her husband, Mike, and a young FBI agent who had been given the job of keeping tabs on the outspoken Rosano. The video had been strategically edited by the prosecutor’s office, and the very first clip was of Marc Gonsalves speaking directly to the camera and sending a message to his mother and family:

  Mom, I got your message, and I thank you for doing what you had to, to get that message sent to me. I love you, too, and I want you to know that I am being strong. I’m not being hurt or tortured. I’m just waiting to come home. I really, Shane, I love you, and I’ve been waiting to tell you that I think about you every day. And just wait for me, baby. Joey, Cody, and Destiney, I love you guys. And I’m just waiting to come home. So just wait for me. And I’m waiting to get back to you. I love you guys so much. That’s it.

  The jurors could hear Rosano choke back tears as her son’s face appeared on the wide-screen monitor. The U.S. attorney general’s office had paid for her travel to Washington, D.C., and FBI agent Chris Voss had spent an hour going over a written script she was to recite when speaking to the media, which amounted to how glad she was that they were trying a Colombian terrorist for her son’s kidnapping and how important the work was for the war on drugs. True to character, Rosano didn’t follow the script. “The script I was supposed to read said, ‘I am just a simple-minded woman.… I went onto the FARC’s Web site, and it says they oppose drug trafficking, so why are they holding my son, who was helping them?’ I thought they must be joking. I said, ‘I’m not going to say that.’ Instead, I said, ‘What are they doing trying him here? Why isn’t he being tried in Colombia?’” For these comments and many others condemning the Uribe and Bush administrations’ handling of the crisis, Rosano had unknowingly earned the respect of Marulanda and the top FARC commanders, who, the following year, would begin to consider releasing some of the hostages.

  The following week, other witnesses who would take the stand were clearly less friendly to the defendant than Botero had been. Trinidad’s former university colleague Elías Ochoa and his wife, Carmen Alicia Medina, had come to Washington, D.C., to testify about Trinidad’s involvement in Elías’s and his brother’s kidnapping in 1998. Human rights attorney Paul Wolf was critical of Kohl’s tactic of using the Ochoa kidnapping to help convict Trinidad for the kidnapping of Stansell, Gonsalves, and Howes. After Medina’s dramatic testimony about her husband’s kidnapping, Wolf wrote in his daily e-mail analysis:

  To prove that Trinidad is a kidnapper, the prosecutor wants to introduce evidence of other kidnappings. This is a prohibited use of character evidence, but never mind that.… Although none of [the kidnappings] are related to the Cessna incident, the judge is allowing the jury to hear about them to prove Trinidad’s “state of mind” and knowledge of FARC’s activities.… This “trial within a trial” was really unnecessary because if Trinidad went to Ecuador to arrange for a prisoner exchange, then obviously he knew that the FARC took prisoners. This was the purported reason the judge allowed all of this in, is to prove that Trinidad knew that the FARC took hostages. Although I think Trinidad’s chances are slim anyway, the introduction of this evidence was hugely prejudicial, unnecessary, and unfair.

  While Kohl’s goal was to keep FARC politics out of the courtroom, the fact that Trinidad testified in his own defense made this completely impossible. Trinidad proved to be a skilled and evasive debater. Kohl was visibly frustrated as he examined Trinidad in a lengthy back-and-forth, in which Trinidad said that he agreed with stopping drug traffic but disagreed with U.S. methods, which were destroying humans, animals, rivers, and crops. When Kohl continued to press the guerrilla to admit that Americans flying drug-reconnaissance planes were targets of the FARC, Trinidad evaded the question and responded, “The thing is that the war against drugs is a façade. And behind it is a war against guerrilla organizations among which the FARC is one in the country.”

  During closing arguments, Botero sat in the gallery and watched Kohl give a powerful summary of the prosecution’s case. The prosecutor detailed the copious and horrific acts of terrorism by the FARC and tied Trinidad into it all through guilt by association. Then, to Botero’s horror, Kohl stated that the proof-of-life video of Stansell, Gonsalves, and Howes had been made by the FARC to further their hostage-taking conspiracy. “If this were true,” wrote attorney Paul Wolf, “Botero would have been more involved in the kidnapping than the defendant himself.… Botero clearly had his own reasons for making the video—it was made into a CBS documentary—but the waters are treacherous. The prosecutors accuse their own witness of a serious crime, on the record.” Botero was stunned by Kohl’s accusation. “The first thing I thought was that Kohl wanted revenge because I was not helpful to him during my testimony.” If Kohl’s comments about the video were reported in the Colombian media, Botero was sure he would arrive home to death threats. Botero implored his Colombian journalist friends covering the trial not to report the dangerous allegations about him.

  When Kohl was through, Tucker delivered a rambling and disjointed closing argument. Wolf wrote of the summat
ion:

  If Tucker presented an alternative theory, or a defense, I do not know what it was. He mainly focused on Trinidad’s [lack of] knowledge of the FARC’s demands for the release of the three North Americans. This was unconvincing, because we had seen so many pictures of Trinidad with the FARC Secretariat and with European diplomats. It was hard to believe Trinidad didn’t understand what he was doing, or know that the FARC takes prisoners and exchanges them. Tucker also made comparisons to Malcolm X … quoted from the U.S. Declaration of Independence, and finally from Shakespeare’s Hamlet.… I don’t think it was effective. The defense did not present any clear idea that the jury could use.

  Many court observers seconded Wolf’s comments and believed that the jury would hurriedly return a guilty verdict. Especially confident that Trinidad would be found guilty was the prosecution team. So Ken Kohl was in red-faced disbelief on November 21, 2006, when the jury foreman returned a third note to the judge, claiming that the jury could not reach a unanimous decision on whether Simón Trinidad was guilty of conspiring to kidnap the three Americans. The result was a mistrial. “Obviously, we were disappointed,” says Kohl. “The vast majority of the jurors felt that he was guilty. It was ten to two for conviction.” The trial had cost millions, and Kohl immediately announced a retrial. “We were concerned, because we knew that we’d have to bring all these witnesses back. Retrials are never fun for a prosecutor, but it’s part of how the process works. You have to proceed.”