It was a Sept. 11 he will never forget. At 10 p.m. on that date in 1980, a factory worker named Francisco Calderon heard the sound of boots loudly kicking the door of his home in San Salvador, the capital city of El Salvador. When he looked out the window, he saw uniformed members of national police, clad in bulletproof vests, standing on his front porch. He opened the door. That’s when the police stepped back and let masked men carrying military-issued G3 rifles enter the home where Calderon lived with his sister and his father, Paco.
Paco Calderon, a school principal in the city of Ahuachapan and a member of the left-leaning National Association of Salvadoran Teachers, had been arrested at a military roadblock a few months before. His crime? Trying to dispose of a contraband stack of educational flyers about what to do in the event of a strike or natural disaster. Ever since his June arrest, the elder Calderon had lived with his adult son and daughter, worried that the military dictatorship’s security forces would be hunting for him. That night, they found their prey.
Paco walked into the living room and saw his son Francisco on the floor with a gun pointed at his back. He knew he had to intervene. “Not my son,” he pleaded. “I am Juan Francisco Calderon….” The masked men turned their attention to him, trying to carry him outside. He resisted. “It’s best that you kill me here, you sons of bitches,” he said. And so they fired five shots into his body and left, shooting their guns in the air as they went.
That’s how Francisco Calderon’s father Paco died. Gunned down in front of his children in the home where, moments earlier, they had been watching television. Killed under the supervision of a Salvadoran military government—supported, incidentally, by the United States—whose policies he had dared to question out loud, defiant even in his last breath.
His was one of tens of thousands of deaths, and countless more instances of rape and torture, that bloodied the tiny Central American nation of El Salvador in the late 1970s and 1980s. Ana Patricia Chavez’s mother and father—both members of the teachers’ union—and her common-law husband were assassinated on July 26, 1980, by a masked death squad. Later that year, just two weeks after Paco Calderon’s murder, Cecilia Santos was falsely accused of planting a bomb in a San Salvador shopping mall. She was taken to the national police headquarters, tortured and forced to sign a blank piece of paper before being imprisoned for 32 months.
Weeks later, at a November meeting of the Democratic Revolutionary Front political coalition, military authorities abruptly seized Erlinda Franco’s husband Manuel and five others. Later that day, the bodies of all six activists were found. They had been tortured and killed. Nearly three years after that, Daniel Alvarado was abducted by men with military rifles. He was tortured for four days, until he agreed to sign a statement confessing to the murder of a United States military advisor to El Salvador. In a development that led the NBC Nightly News, U.S. government agents soon determined that Alvarado had indeed been tortured and forced to sign a false confession. He was held in custody for a total of two years.
Francisco Calderon, Ana Patricia Chavez, Cecilia Santos, Erlinda Franco and Daniel Alvarado were victims of a breed of state repression so vicious and widespread that few U.S. citizens can imagine it. It was a state terror campaign that, in 1980 alone, claimed the lives of 10,000 civilians in a country one-fifth the size of Tennessee. Every night, Salvadorans turned out their lights with the knowledge that government death squads were rounding up, torturing and killing the political opposition. Every morning, they awoke to the sight of lifeless human bodies piled on street corners. Seeing these permanently silenced dissenters—and smelling the stench of rotting flesh—kept Salvadorans quiet and compliant. They lived terror.
At least one U.S. citizen, a polite, 73-year-old southwest Tennessee retiree, can imagine such grotesque horror. In fact, he knows exactly what these five people are talking about. His name is Nicolas Carranza. He is a naturalized U.S. citizen who relocated here from El Salvador, via Mexico, in 1985. In the 1990s, he was a security guard and eventually director of security for the Brooks Museum of Art in Memphis. Before that, he served as vice minister of El Salvador’s military and director of the Treasury Police. He was also a paid informant for the CIA. On his watch, thousands of innocent Salvadoran civilians were hunted down, tortured and murdered because they were suspected of opposing their country’s right-wing military dictatorship. In a Memphis courtroom last November, the world learned about Nicolas Carranza’s crimes against humanity.
Meet David Esquivel. He’s a balding, 35-year-old husband and father of two, an antitrust lawyer at the downtown corporate powerhouse law firm Bass Berry & Sims. He’s got a website biography that could cure insomnia. “Successful defense of a class action lawsuit alleging monopolization under state antitrust and consumer protection laws against a national waste management company,” it boasts. (Or so we’re told.) And who could forget his “representation of the defendant in federal court litigation involving claims of tortious interference and inducing breach of contract”? Great stuff.
The point is, the guy’s not your typical left-wing human rights crusader. In fact, most days you could say he gets paid to protect the big guys, often from the little guys. But somehow, back in 2003, he got roped into representing five plaintiffs, all former residents of El Salvador, in a human rights lawsuit against Col. Nicolas Carranza.
Despite his stuffy pedigree—Duke undergrad, Duke Law and then a couple of years in D.C.—the mild-mannered Esquivel brought a lifelong awareness of social justice and human rights to the Carranza case. His parents emigrated from Cuba to the U.S. as teenagers in the early 1960s. After growing up in the suburbs of Dallas, the political science and history double major developed a college interest in Latin America and traveled to Central America just as a civil war was ending in El Salvador.
After graduating from Duke, Esquivel took a job near tiny Hazard, Ky., as volunteer coordinator for the Appalachian Service Project. He may be the only person alive who calls Hazard a “great place to live.” “I miss a lot about that area,” he says. “I was an outsider in the truest sense: I’m Cuban, from Texas, and I graduated from Duke.” Esquivel jokes that his biggest burden of the three was being a Duke Blue Devil. After all, this was the era when Christian Laettner earned the everlasting ire of Kentucky fans by intentionally stepping on a Wildcat player. “But people could not have been more gracious to me,” he says.
Eventually, Esquivel headed back to Duke for law school, where he authored an essay, published in the Duke Law Review, on the need for meaningful conceptions of public interest law. But public interest practice wouldn’t be his full-time job. After clerkships, Washington work and a wedding, Esquivel and his wife Katherine—a Harvard-educated public interest lawyer—settled in Nashville in 2001, where he took a job at Bass Berry & Sims, a firm where he had previously interned. Like for so many others, Sept. 11, 2001, is a day they’ll never forget: at 9:50 that cloudless morning, their first child, Joshua, was born.
Two years later, a friend who was clerking in Nashville came to Esquivel with a wild proposition. A San Francisco-based nonprofit law firm, the Center for Justice and Accountability (CJA), had located Col. Nicolas Carranza in Memphis and found victims of the security forces he oversaw. CJA wanted to file a civil suit against him under a pair of federal laws that allow torture victims to seek restitution from their oppressors. Would Esquivel’s deep-pocketed firm be interested in partnering with CJA on this case—for no charge?
It was a tall order for a young lawyer, but the story was too compelling to ignore. Patty Blum, a former Berkeley law professor affiliated with CJA, and Matt Eisenbrandt, a young attorney with the human rights law group, flew to Nashville and met with Esquivel and Wally Dietz, the head of Bass Berry’s litigation department. Dietz was immediately supportive and took the proposal to the firm’s powerful executive committee, which agreed to take the case pro bono. A young associate who had never so much as stepped in front of a jury convinced his firm to take a risky and expensive civil case about human rights abuses for free.
“I’ll tell you, I didn’t encounter any obstacles,” says Esquivel, who laughs recalling the tremendous scope of his request. “Everybody pretty much immediately realized it was the right thing to do—because of the nature of the things we were talking about.” He says he “can’t say enough good things” about the firm and its unquestioning commitment to the project.
Bass Berry managing partner Keith Simmons says there was never any hesitancy on the firm’s part about taking the case. “This is the kind of pro bono thing that a law firm like ours can do and should do,” he says. “There are very few firms in this town and in Tennessee that have the capacity to do this. It’s just the kind of thing I want us to do as a law firm.” Simmons says that only in hindsight did he appreciate the full significance of the case his firm had taken on. “I didn’t really understand the extent of suffering and torture and loss that these people had undergone until the trial was over,” he says. “After I really was touched by that, it made it that much more meaningful that we did it.”
It is the last week of October 2005. A squadron of attorneys has descended on Memphis—a few from Bass Berry and a few from CJA—where they are to spend the next month of their lives trying a federal civil case, spending nights in a Holiday Inn downtown. Most waking moments are spent in a de facto command center set up on the 10th floor of Bass Berry’s Memphis office: a conference room where plaintiffs and witnesses can gather and prepare themselves for trial, as well as some offices where attorneys can work. If they’re not in Judge Jon McCalla’s courtroom, they are here. If they’re not here, they’re asleep.
For months—two years, really—the team has been preparing for what is to be a three-week jury trial. The lead lawyers are Esquivel, Patty Blum in New York and Matt Eisenbrandt in San Francisco, but there are a host of others like Matt Sinback and Steve Jasper, young Bass Berry attorneys who together put a couple thousand hours into the case, and Jennifer Eberle, an associate based in Memphis, and Almudena Bernabeu, a CJA attorney from Spain. There have been weekly one-hour and two-hour conference calls. There have been investigative trips to El Salvador. Depositions in California and Memphis. Back in Nashville, over a conference room lunch one day, Esquivel had practiced his opening statement for a mock jury of his peers: lawyers, paralegals and secretaries. They gave good feedback.
“This was the first jury case that any of us”—Esquivel, Eisenbrandt or Blum—“had ever had,” says Esquivel. “I was eager to start but petrified.” His previous trial experience consisted of a one-day bench trial in Maury County with a “not all that favorable” outcome. “From that, there we were trying this three-week-long human rights case in federal court.”
After selecting a jury, which Esquivel describes as the most difficult part of the trial, it’s time for opening statements. On the morning of Nov. 1, the fresh-faced attorney with the calm demeanor arrives ready to paint a picture for the jury. But things get off to a bumpy start. First, a juror fails to show up, as it turns out her uncle has died. After a phone conversation, the judge excuses her from the trial. Then, finally, after all these months, it’s time for David Esquivel’s first-ever opening statement before a jury—in federal court, no less. Time to set the scene.
“I had this well-rehearsed, poignant picture I wanted to create for the jury,” he would later tell a group of colleagues in a legal seminar. “The judge said, ‘Is the plaintiff ready to proceed?’ and I stood up right in front of the jury box and started in with this thing that I had rehearsed in my mind four million times. ‘It’s a summer day in San Salvador. A young woman goes to a shopping mall to buy a birthday present....’ And I’m just now starting to feel it. And Judge McCalla says, ‘Counselor, would you please turn on your microphone?’ ”
But once he gets rolling, Esquivel begins to outline a story about five different people whose lives have been forever marred by torture. In graphic detail, he describes the torture of Cecilia Santos—the groping, the forcible rape with a metal object, the sulphuric acid stuck up her nose, the acid dripped onto her right hand, causing it to blister almost immediately. “Do you remember where you are?” her interrogator had said, after she screamed in pain. “This is the National Police Headquarters, and here we decide what is going on, what can…happen to you.” Later, the men administered electric shocks to her right hand, gums and breasts. They forced her to sign a blank piece of paper.
“Ladies and gentlemen, this is a case about courage and justice,” Esquivel tells the jury. “It will take courage for Cecilia Santos and the other plaintiffs to sit in that witness stand and tell you about the worst thing that ever happened in their lives. Stories of murder, stories of torture and stories of lives and families that were ripped apart. It will also take courage for them to seek justice against the man who had the ability to prevent what happened to them, who had the ability to investigate and punish those who were responsible, but not only the ability to investigate and punish and prevent what happened to the five of them, the ability to prevent the torture and murder of thousands and thousands of innocent civilians in El Salvador in the early 1980s. That man is in the courtroom. He is Nicolas Carranza, the defendant in this case.”
Over the next 10 or so days, the jury learns that Carranza was a member of the high command—the top military officials in a military-run state—as operational commander of the security forces, and in 1983 he became director of the powerful Treasury Police. His whole adult life was spent in the military: born in the small town of El Triunfo, he first tried law school but then switched to the military academy, where he graduated first in his class in 1957. The next year, Carranza received a military scholarship that sent him to Fort Sill in Lawton, Okla., for artillery training. (Yes, the U.S. offered such scholarships to train Salvadoran soldiers.) Two years later, he was involved in a coup attempt in El Salvador. Then, in 1962, he went to Aberdeen, Md., for more weapons training. At some point along the way, he taught in the Salvadoran military academy. Eventually, Carranza was appointed manager of the national phone company—a government-run agency that routinely tapped citizens’ phone calls—and later, vice minister of defense.
Throughout the course of the trial, Esquivel and his colleagues argue that, according to the doctrine of command responsibility, Carranza was responsible for the widespread torture and killing of innocent civilians. After all, they say, his direct subordinates conducted it. The plaintiffs must prove three elements for Carranza to be held liable for each human rights abuse: one, that a superior-subordinate relationship existed between him and the perpetrators of the crime; two, that he knew, or should have known, that his subordinates had committed, were committing or planned to commit human rights abuses; and three, that he failed to take all necessary and reasonable measures to prevent or punish human rights abuses. This legal definition of “command responsibility” has been established in international law since the Nuremburg Tribunals after World War II.
How could they make a case against this sweet little old grandfather who’s been living in the U.S. since 1985? To most people, Nicolas Carranza is just a retired art museum security guard with an accent from somewhere south of the border. (Reached at his Memphis home, Carranza wouldn’t comment for this story but politely said, “Have a nice day.”) How do you convince a jury that not 25 years ago, he supervised a torture and murder machine that, had it been killing U.S. citizens on the same scale, would have wiped out 600,000 people in one year?
You might start by calling Robert White, former U.S. ambassador to El Salvador, to testify. A Carter appointee who lasted briefly in the Reagan era, White’s job was to know what was going on in El Salvador, and in 1980, he sent scores of classified cables to Washington telling the State Department that the CIA was undermining U.S. foreign policy. It was paying Nicolas Carranza to spy, and tacitly allowing him to continue his widespread killing.
“The real value of my testimony is that it was not something I was saying in reaction to a suit by people with whom I sympathize—people who had been tortured,” White says by phone from a Florida beach resort. “It’s that before this was an issue, we were characterizing Carranza as a key player in that unfolding bit of Salvadoran history. We were worried, concerned and even angry about the role of the Salvadoran military…. They were routinely violating human rights. They were torturing and killing people just on the mere suspicion of dissent.” White says now—as he did at the time—that the CIA was propping them up.
“There was nothing creative, really, about my testimony,” he says. “I was just citing the cables that I or other members of the embassy staff wrote that demonstrated that indeed, Carranza, far from being a bit player, was really a major player, one of the most powerful two or three or four in the military.” So when Carranza used the defense that he was just a paper pusher as vice minister and had no operational authority over Salvadoran security forces, White begged to differ—and had the old cables to back it up. “There is something of an Alice in Wonderland air to conversations with top military officers here,” White wrote in an October 1980 cable to the State Department, introduced as evidence at trial. “Garcia and Carranza know perfectly well that some middle- and low-level members of the military are involved in death squads and other right-wing violence.”
Terry Lynn Karl had plenty of first-hand evidence to support her testimony, too. Karl is an academic with a 30-page curriculum vitae—you know, the kind of crazily knowledge-hungry professor who reads five languages and taught at Harvard before accepting a job at Stanford. In the 1980s, Karl spent a great deal of time in El Salvador. She saw the piles of bodies. She met the death squad leaders. Based on extensive research, Karl testified that torture and killing were both widespread and systematic in El Salvador between 1979 and 1984.
She described the military and political command structure of the country in that period, and moreover, elaborated on a series of U.S. government documents and newspaper clippings that clearly associated Carranza with El Salvador’s repressive state security apparatus. Between 1980 and 1984, when Carranza was in positions of command, Karl testified that “not one single officer was ever held accountable for human rights abuses,” although they were punished for drinking too much or committing petty crimes. “That is what we call impunity,” she concluded, “and where impunity exists you effectively send a signal, you give a green light to murder and torture civilians.”
If White was the eyewitness and Karl the expert witness, the plaintiffs in this case grounded it in real human experience. Each one took the stand to testify about the circumstances surrounding their torture, or the torture and killing of their loved ones. Ana Patricia Chavez, for one, testified through an interpreter about the morning armed men wearing masks barged into her home and killed her mother, father and common-law husband. Before shots rang out, they put Ana Patricia and her baby in another room, where she sat, praying and crying, waiting for the men to leave. When they left, her family was dead.
It took the jury four days to return four $1.5 million verdicts against Nicolas Carranza, although circumstantial evidence suggests that they were quickly convinced of his liability on four of the five plaintiffs’ claims. In the case of Ana Patricia Chavez, the deadlocked jury couldn’t find enough proof that her mother, father and husband’s killers were affiliated with Salvadoran security forces. Chavez’s case was declared a mistrial. In her case, the state apparatus had disguised itself well enough to go unpunished.
An old man in Memphis was found civilly liable for four instances of torture and/or murder that occurred 25 years ago in a tiny Latin American country. He will probably never pay the $6 million judgment levied against him and may die like many can only hope: of old age, as an American citizen. (There is, however, a movement afoot to have him deported.) It’s easy to see this long, expensive, painful ordeal as a meaningless exercise, a futile effort to bring back the dead. Was it worth it for these plaintiffs to dig up the emotional anguish of their long-ago losses? Or was it a Pyrrhic victory?
Among participants in the case, there is little doubt. “These cases are about memory, and keeping the memory alive. These memories are very much there for the victims,” says attorney Patty Blum. “One has burn marks on her fingers, somebody has memory of seeing their parents brains blown out, Daniel Alvarado still has stiffness from where he was hung from the ceiling and tortured. These memories are burned into their memory, and it’s the perpetrators who always want to bury it. [The victims’] point is, ‘We’d love to be able to bury it, but we can’t.’ ”
The trial of Nicolas Carranza was in many ways a reckoning—with history and pain and personal responsibility, with the militarized leadership of both El Salvador and the United States, with our reluctance to bear witness to the nearby slaughter of so many. For White, the former ambassador over whose objections Carranza was funded, it is a “righting of history,” his testimony, a small form of atonement. “It’s in a sense a completion of mission,” he says. “I had an obligation not only to protect American citizens but also to maintain a certain amount of decency in a government that wouldn’t exist if we didn’t support it…. I take satisfaction from seeing that in some small way, the law of the United States is used against these people instead of in favor of them.”
For Esquivel, talking by phone from Manhattan, where he’s back to normal life—providing legal advice to the New York Stock Exchange—his foray into human rights law was uncommonly satisfying. It was, he says, a chance to bring “some measure of truth, some measure of justice,” however small and symbolic, to a situation that badly needed it. It was a privilege, he says, and if that call ever comes again, it would be a privilege to do it again.
After the verdict, all the attorneys, witnesses, translators and clients celebrated together. They took turns, in Spanish and English, writing notes on a poster-sized map of El Salvador that Esquivel, the Tennessee Bar Association’s “pro bono attorney of the year,” keeps in his downtown office. Here is what the plaintiffs and their family members wrote:
This is a triumph for all of those who were killed, who were disappeared and for political prisoners in El Salvador.Papa, wherever you are, you are happy because today justice was done.After 25 years, justice was done in Memphis for the assassination of my father, Professor Jose Francisco Calderon.Papa, you live in the hearts of those who remember you. Thanks to our friends from CJA and to the Memphis team.My husband, your crime was not left with impunity. From your children, Manuel, Omar, Dax and Fran. Thank you CJA.The hour of justice has reached the colonel. Nov. 18, 2005. He cannot hide any longer. Thank you David and all of the team, and thank you also to CJA. The world now knows who he is.
“I will keep that forever,” Esquivel says of the poster. “To know that we were able to help them bring some justice or vindication to the unjustified murder or torture of their family—I can never appreciate that. That’s something I can never come to terms with.”