Editor's Note: After this story was published in the print magazine, Judge Walton granted Roxanna Altholz's request to apply the Crime Victims' Rights Act to her clients in the Hernán Giraldo Serna case.
When Rodrigo Tovar Pupo appeared last November for his sentencing in Judge Reggie Walton's courtroom in a United States District Court a few blocks from Capitol Hill, he looked small in his oversized orange prison coveralls and rubber clogs. Bald, with a full graying beard and glasses, his appearance belied his reputation as one of Colombia's most feared paramilitary commanders: Jorge 40, as he was known, had allegedly planned hundreds of killings in Colombia and trafficked many tons of cocaine to fund his operations.
In 2008, Tovar and 13 other paramilitary leaders were extradited to face drug charges in American courts. Tovar and his colleagues have spent the last seven years out of the public eye, as their legal cases chugged quietly along. In fact, for five years his case and several others were entirely hidden from the American public, effectively sealed by Walton. Facing mounting legal and public pressure, he unsealed the case in April.
Tovar had joined the right-wing paramilitaries to fight against leftist guerrillas. By 2003, he commanded 5,000 troops in the Northern Bloc contingent of the main paramilitary group, United Self-Defense Forces of Colombia. Like the guerillas, the paramilitaries funded their operations through drug trafficking, one of the most profitable enterprises in the country. From 2002 to 2005, each go-fast boat carrying cocaine away from the Caribbean coast, near Santa Marta, paid Tovar a "tax" of $25,000 per 2,000-pound shipment.
To understand his reign of terror, consider just one massacre. In February 2000, hundreds of his troops gathered in the small town of El Salado, in the steamy lowlands of northern Colombia, drinking liquor and playing drums as they brutally raped, tortured, and executed the villagers. Colombian journalists referred to the ritual as the "blood party" and "the paramilitary death dance." They cut off a man's ear, held up pieces of another man's brain, impaled a woman's vagina with a stick, and assigned execution lottery numbers. When the killing was done, at least 38 people were dead (the actual toll may have been far higher). It was all part of a campaign to instill fear in locals suspected of collaborating with leftist guerrillas.
Among many other atrocities the Colombian government investigated, Tovar was convicted of ordering the death and dismemberment of seven government investigators working in the northeastern municipality of La Paz. Even during a demobilization period when he was in peace talks with the government, Tovar's troops committed more than 500 murders, according to an analysis by the Office of the Attorney General of Colombia. The details were logged on a laptop Colombian officials found in 2006.
At the sentencing, Department of Justice prosecutor Paul Laymon said Tovar "was one of the world's largest drug traffickers," causing Tovar—listening to a Spanish translation through headphones—to grimace and shake his head. But Laymon did not mention the killings. He requested a sentence of only 30 years. After defense attorney Barry Coburn effectively cast Tovar as a patriot fighting a communist insurgency, Walton settled on 16 and a half years for taxing cocaine shipments. With credit for time served, Tovar could be released after doing just five years, in 2020, at the age of 60.
It is hard to know why the prosecutor did not mention the murders. The Department of Justice declined to comment on this strategy. In its press release about Tovar's sentencing, the department points out the parallel legal process in Colombia, where Tovar and other paras are being prosecuted in absentia: "Today's sentence for violations of U.S. drug trafficking laws does not account for any violations of Colombian human rights-related laws allegedly committed by Tovar Pupo in Colombia, which are being addressed in Colombia through the Justice and Peace process—a legal framework enacted in Colombia in 2005 to facilitate the demobilization of its paramilitary organizations—and the Colombian criminal justice system."
Roxanna Altholz, the associate director of the International Human Rights Law Clinic at Berkeley Law, thinks the omission of any human rights crimes from the Department of Justice prosecution may have to do with the cooperation agreement of the plea deal Tovar signed in 2009. Whatever the case, his light sentence fits a larger pattern.
Altholz is very familiar with the judicial records of some of the most feared Latin American warlords—she recently won an award for her work on behalf of families of victims of state-sponsored disappearances in Guatemala. But the Colombian American attorney says the paras are as bad as they come. "These are the worst war criminals in the Western Hemisphere, arguably," Altholz says.
In another paramilitary case before Walton, Altholz represents the family of Julio Henríquez, a demobilized guerilla who led the environmental organization Madre Tierra. He taught farmers in northern Colombia to grow legal crops like cacao, as alternatives to coca, until he was kidnapped from a community meeting in 2001; his body was discovered years later. Paramilitary leader Hernán Giraldo Serna later admitted responsibility for the killing and was convicted of the crime in Colombia.
Giraldo is another member of the group of paramilitary leaders extradited to the U.S. in 2008. He had worked closely with Tovar to control northern Colombia. His noms de guerre were El Patrón and El Viejo (The Boss and The Old Man), but he was also known as El Taladro, or The Drill, reportedly due to his fondness for raping young girls. A human rights unit of a Colombian district attorney's office found that he had sexual relations with girls as young as 12, and had fathered children by at least 19 minors.
Altholz believes the men should not have been extradited in the first place. In Colombia, they were required to testify in the Justice and Peace process, which allowed victims and their families to confront the criminals, and find out, in some cases, where the bodies of loved ones were buried. Once they were extradited, the criminals had no incentive to continue to cooperate with Colombian officials. And once they were brought into American courtrooms, Altholz believes, the U.S. government should have taken into account the full range of their crimes, not the sanitized version it has presented.
In a novel legal strategy, Altholz is now attempting to influence Giraldo's sentencing through the application of the Crime Victims' Rights Act. The act, passed by Congress in 2004, guarantees crime victims the right to be heard at sentencing and other court proceedings. If successful in her effort, victims of Giraldo's crimes, such as the Henríquez family, would be able to testify at their sentencing hearings.
"I struggle to understand how a mass murderer and serial rapist, like Hernán Giraldo Serna, or someone accused of hundreds of killings, like Jorge 40, can face less time than a street-level crack dealer in the U.S.," Altholz says.
The prosecutor in Tovar's case, Altholz believes, failed to provide the judge with key context. "He was running drugs—huge amounts of drugs—and in order to run drugs he had to maintain territorial control, and the way that he did that was by massacring civilians," Altholz says. "It's not a 'but' or an 'and.' It's a part of the story."
None of Tovar's victims testified at his sentencing—the courtroom held only a half-dozen Spanish-language journalists, a few lawyers, and a Department of Justice spokesperson. After Walton read the sentence, the paramilitary leader smiled and hugged one of his attorneys. If Altholz's efforts successfully bring victims into the courtroom, Giraldo's sentencing may be different.
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