From Elian's Saga. Published Tuesday, June 6, 2000, in the Miami Herald
Agents defend actions in raid
Elián lawyer disputes accounts
By Juan O. Tamayo. Herald Staff Writer
A Border Patrol agent says he never ''purposefully'' pointed his submachine gun at Elián González during the April raid to take the boy from his Miami relatives' home; and five other agents insist that none of them used pepper spray or foul language while they were inside the
house.
In debriefing reports released by the Justice Department Monday, three agents also said they put their submachine guns on ``safety'' after the raid began but before they entered the house, and one appears to report that the agent who knocked on the door did not give the agreed-upon signal to
force the entrance.
The reports give the official version of the raid from the perspective of each of the six Border Patrol Tactical Unit members who entered the Little Havana home of Elián's great-uncle Lázaro González to remove the child. People inside the house have accused the agents of
threatening to shoot people, swearing at them and breaking furniture needlessly during the raid.
A summary of the men's statements said none used profanity, threatened to shoot or used chemical irritants, and added that the three doors broken during the lightning raid had to be kicked open because they were locked.
``News footage of the operation clearly shows that the team members acted with discipline and restraint . . . as they entered the González home,'' said the summary. ``This report indicates that this same level of professionalism and control was maintained during the rest of the
operation.''
THEY `MISREPRESENT'
People inside the house called the reports ``spin'' and challenged their conclusions.
``They really are trying to misrepresent the whole thing,'' said Cuban-American businessman Carlos de la Cruz, who was in the house during the raid. ``They are making this sound as if this is a beginning of a cotillion.''
On the key dispute surrounding the raid -- the photograph of one helmeted and goggled agent pointing a submachine gun in the direction of Donato Dalrymple as he held Elián in his arms -- the agent said he was simply searching the room for the 6-year-old child.
``As I moved into the room, I was using the `third eye' search technique. This technique ensures that the muzzle of the weapon is pointed in the same general direction that the weapon handler is looking,'' the agent wrote. ``I never purposefully pointed my weapon'' at Elián or Dalrymple,
he added.
``Their report is flat wrong . . . Of course they were pointing the gun at him,'' said family lawyer Kendall Coffey, who was also in the house. ``It was a weapon of extraordinary force, a weapon used to deal with terrorists.''
The Associated Press photograph showed the agent's Heckler & Koch MP-5 submachine gun was on safety and could not have fired. But three of the agents' reports said they had switched their weapons to safety only as they waited outside the house, because of fear that jostling from crowd
members could trigger an accidental discharge.
INS CONFUSION
One agent also reported apparent confusion as an Immigration and Naturalization agent repeatedly knocked on the front door at the González home and received no reply. The agent was supposed to step off the steps in front of the door as a signal for a forced entry.
``The SSA fell from the porch. Observing how the SSA left the porch, I believed that he had been pushed or shoved or may have slipped. At that time I loudly shouted `Breach, Breach,' '' said the agent, giving the order to bust down the door.
All of the agents reported that as they entered they found a couch had been rolled in front of the door to block access. Almost all also stumbled over a cable that turned out to be connected to television camera of NBC News photographer Tony Zumbado.
The six agents say they never touched Zumbado, though one admitted he accidentally stepped on what he later learned was the camera. Zumbado and other witnesses say one agent punched and kicked Zumbado on the head and back.
``He got nailed. They whooped him,'' González family friend Roberto Curbelo told The Herald Monday.
Coffey also contradicted the claims that the agent never used pepper spray during the raid. ``It was clearly inside the house,'' he said. ``I saw a 5-year-old in convulsions from the spray,'' he added, referring to Elián's cousin Lazarito Martell.
Family friend Curbelo said he heard one of the agents shout at Marisleysis González, Elián's cousin, ``where is the f.....g boy'' as the Border Patrol team began searching the house. Dalrymple also claimed another agent used a profanity as the team left the bedroom.
GRAB ATTEMPT
One agent's description also confirmed previous Herald reports that a Cuban exile outside the house made a last minute effort to grab Elián away from the agents as they were leaving the house.
The man "took hold of the [agent holding Elián] and attempted to take Elián from her by pulling her toward him and into the bush,'' the agent's report said. ``I came to her aid with another Border Patrol agent . . . he immediately released his hold. I had no physical or verbal
contact with this man.'' The man remains officially unidentified.
One agent confirmed that a closet door broke and that part of Elián's bed came off as he searched a room for the Cuban shipwreck survivor, but said the damage was accidental.
Another agent said he recognized a man in the house, whose name was blacked out of the report, as a member of the Latin Kings youth gang ``who was providing security inside the González home.'' But he did not say whether the suspect had done anything untoward.
One agent also said he had used no profanity and reported that when an unidentified woman outside the house asked him what he was doing, he replied ``We have come to get Elián and are taking him to his dad.''
Another agent reported twice kicking the door to the bedroom where Elián was found. The agent said his first ``mule kick'' did not open the door, though he said ``I felt as though my foot had penetrated the door.'' His second kick opened the door. ``I do not recall any debris in the
doorway area,'' he noted.
An AP photo of the agent entering the room showed the damaged door still hanging on its hinges. During a later tour of the house, the lower half of the door could be seen lying on the floor.
Miami relatives seek reunion with Elián
Family sends lawyer a letter
By Ana Acle And Jay Weaver. aacle@herald.com
An attorney for the Miami relatives of Elián González has asked -- once again -- for a private meeting with the Cuban boy and his father, this time directing the request to attorney Gregory Craig.
Reacting to comments Craig made on ABC's Nightline with Ted Koppel, suggesting that reunion requests go through him, the relatives' attorney, Linda Osberg-Braun, wrote Friday:
``As you know, the González family in the United States loves Elián deeply and wishes to see him and spend some time with him. Although they have their differences with Juan Miguel [González], he is certainly family, and it would be beneficial to Elián for the
families to meet and mend their problems.
``We have repeatedly requested a meeting in every way possible, and in our view, we have been rejected. Nonetheless, please consider this letter another formal request.''
Craig did not return a phone call and e-mail request for comment late Monday.
The Miami González family, believing that Elián's father is still under the coercion of Cuban officials, has always asked to speak to him in private. Even before the U.S. government raid April 22, great-uncle Lázaro González asked U.S. Attorney General Janet Reno for
a private meeting with Juan Miguel. And they had asked for a private meeting with Elián's grandmothers when they visited this year.
Osberg-Braun wrote in the letter: ``I think that the families should meet alone without any lawyers, government officials or unrelated people so that they can break the ice and move forward with their future relationship however they choose to define it.''
All of the family's previous requests were directed to immigration officials.
In the Nightline interview Thursday night, Koppel asked Craig whether there was ``any chance that he and the Miami relatives and Elián and the Miami relatives will have a last get-together before he goes back to Cuba, if indeed he does?''
Craig answered: ``Well, I would hope that that might be possible to work out. I must say, and I've said this before, I said this the day after the reunification took place, after Elián was rescued from Miami, that the best way to have this happen is not to hold national press conferences
and make demands. The way to deal with this is to contact the father or to contact the representative of the father and sort of express an idea and an invitation to do this.
``This is a matter for the father at the end of the day to decide.''
Family law experts say Elián's relatives -- whose case seeking temporary custody of the boy was dismissed in state court because they are such distant relations -- have practically no legal rights to visit him.
``They don't have any rights,'' Miami attorney Richard Milstein said. ``The father has control of the parental rights over his son. The only ability that the relatives as nonparents might have to see the boy is if the INS says it has some control over Elián.''
But the U.S. Immigration and Naturalization Service has said it cannot force the father if he does not want to meet. The agency has insisted that the relatives go through a screening by government-hired experts to ensure that the reunion would benefit Elián, not harm him.
In a May 16 letter, immigration litigation Deputy Director David Kline wrote to the Miami attorneys: ``The Miami relatives and Mr. González should resolve their differences prior to any contact between Elián and the Miami relatives. To that end, the purpose of the consultation
would be to discuss how the Miami relatives could best approach such a reconciliation.''
Elián protesters' charges are reduced
By Chris Gaither And Marika Lynch. mlynch@herald.com
One factor in the high dismissal rate: All of the felony arson cases were dropped, or re-charged as misdemeanors. Though more than 100 fires were set -- including dozens in trash bins and tires -- charges of arson are only applied when a fire is set to a structure, like a building or a boat.
Most of the serious criminal charges against protesters arrested after federal agents removed Elián González from his Miami relatives' home have been dropped or scaled down -- with just 15 people being charged with felonies.
More than 300 protesters were arrested during the Easter weekend disturbances, 64 of them for serious crimes, records from the Miami-Dade state attorney's office show. At least nine of those still being charged are accused of attacking police with rocks, fists and even a tear gas canister.
One is a schizophrenic man who wandered off a bus, his mother said, joined the protest and ended up slugging an officer. Another: a man who attacked police with a baseball bat after he watched them arrest -- and allegedly beat -- his two brothers. Awaiting trial on attempted murder charges,
Daniel Perez, 30, of 10730 SW 28 St. says he was merely defending his family, and doesn't regret it.
``They were mistreating my family. They are animals,'' Perez said. ``Any human being would do the same.''
The state attorney's office doesn't track smaller, more common offenses like disorderly conduct. But prosecutors expect many arrested for misdemeanors over that weekend will have their charges dropped. Others will be offered a pre-trial diversion program that ultimately clears their record -- if
they don't have prior convictions, said David Maer, who oversees misdemeanor cases for the state attorney's office.
Prosecutors say the dismissals and scale-backs are typical after civil disturbances -- because police concentrate on keeping the streets calm, not on collecting evidence.
In such hectic situations, it's hard to round up witnesses and gather strong circumstantial evidence, said Christopher Slobogin, a University of Florida professor who specializes in criminal law.
'NOT WORTH IT'
``Quite often prosecutors dismiss the charge because it's just not worth the trouble or the time or the resources to prove the case,'' he said.
Prosecutors pored over facts and made decisions on a case-by-case basis, Don Ungurait, spokesman for the state attorney's office said.
One factor in the high dismissal rate: All of the felony arson cases were dropped, or re-charged as misdemeanors. Though more than 100 fires were set -- including dozens in trash bins and tires -- charges of arson are only applied when a fire is set to a structure, like a building or a boat.
Miami police weren't dismayed by the dismissals, said Angel Calzadilla, Chief Raul Martinez's senior executive assistant. The officers' job that weekend was to prevent a tense situation from exploding -- which they did, he says.
Critics maintain, though, that the high rate is a sign that too many people were arrested and charged in the first place.
CITIZEN COMPLAINTS
Miami police, who made most of the arrests, are looking into 16 citizen complaints against officers.
"I saw one case of some guy charged with inciting a riot for getting on top of his car and screaming, 'Freedom! Freedom!' And people were sort of encouraging him,'' said John de Leon, president of the Miami chapter of the American Civil Liberties Union. `"f getting on top of the hood
of your car and yelling 'Freedom' is felonious in this country, it's a very dangerous thing.''
As a result of the charges, some protesters had to shell out hundreds of dollars to make bail, and many couldn't afford that kind of fine, he said.
Eduardo Badell, accused of aggravated battery for allegedly throwing a rock and hitting a Miami police sergeant, was worried about something else. The construction sub-contractor who came to the United States from Cuba in 1992, is going to be sworn in as an American citizen this week. He was
concerned the charge could get in the way.
"Incredible!'' Badell, 30, said Monday after learning his charge had been dropped. He says he yelled unpleasant things at police, but never threw rocks.
Also among those who had their charges dropped: Los Angeles Times photographer Carolyn Cole, who police said threw two or three rocks at them while snapping pictures. The paper maintained Cole was innocent, and that police only arrested her to stop her from doing her job.
And charges have been reduced against the youngest offender, Christopher Quintana, 11 years old and 90 pounds, who originally was charged with inciting a riot after reportedly leading 200 people to block traffic. Christopher, who said he was arrested with his father and brother after stopping to
help a man whose car had broken down, now faces a disorderly conduct charge, his attorney, Ellis Rubin, said.
FELONY CHARGES
These people, among others, were charged with felonies:
Jose Artiles, a 21-year-old Miami-Dade Community College aviation student, was charged with possession of a firebomb after police caught him with a soda bottle filled with generator fuel. Artiles, of 3170 SW 8th St., allegedly swiped the fuel from a TV truck and considered using it to light a
fire. ``I made a mistake,'' he said.
Francisco Diego, who wandered off his bus, hit an officer in the face, a police report said. Diego, 24, of 3619 SW 114 Pl., may have hit the officer, his mother Maria Santos said, but her son was hit first by police. Diego, in jail for three weeks because his mother couldn't pay the $2,300 bond,
has already been sentenced to a year's probation.
Yonel Perez is charged with resisting arrest with violence and battery on a law enforcement officer. He is the brother of Daniel Perez, the man who allegedly wielded a bat at police and also is facing a felony charge. The brothers said early in the day they were at Elián's Little Havana
home. Their brother, Luis Alberto Perez, is married to a González cousin.
Two of the most noted misdemeanor cases have yet to be settled. Luis Penelas, brother of Miami-Dade Mayor Alex Penelas, still faces a disorderly conduct charge. And Grisel Ybarra, the well-known immigration attorney arrested while collecting bond money for jailed protesters, says she believes
she was wrongly arrested and is taking the case to trial.
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