Ford ex rel. Estate of Ford v. Garcia

BARKETT, Circuit Judge,

concurring:

I concur in the majority’s decision.^ As to the command responsibility instruction, Appellants simply argue that the trial judge should have instructed the jury on the doctrine’s “shifting burdens of proof.” This argument is unavailing, as the majority holds, both because there is no existing law as to the appropriate allocation of burdens under the command responsibility doctrine and because, under our precedent, the jury is not instructed as to a shifting burden of production. Thus, there was no plain error regarding the command responsibility instruction.

In addition, although Appellants complain that the court erroneously failed to instruct the jury that the Generals had the burden of “affirmatively” establishing that they lacked the ability to control the perpetrators, such an “affirmative” defense would be aimed at disproving the existence of a superior-subordinate relationship, a component of the command responsibility doctrine that was not a contested issue at trial. As the majority notes, demonstrating a commander’s “effective control” over his subordinates is a component of proving the “superior-subordinate” relationship required under the first prong of the command responsibility doctrine. In this case, the Generals conceded that they were the commanders of, and had authority over, the troops who committed the crimes. The Generals’ defense was not directed at the first prong regarding commander status, but rather at the third prong of the doctrine requiring a showing that the commanders failed to take all necessary and reasonable measures to prevent or punish the commission of torture or extrajudicial killing. 1 The Generals proffered their testimony, the testimony of Ambassador Corr, supporting documentary evidence concerning the general state of affairs in El Salvador at the time of the murders, and the fact that the troops responsible for the murder were tried and convicted to rebut the existence of the third prong by demonstrating that the Generals had attempted to prevent, repress, and punish human rights violations. Given the fact that the Generals admitted their superior status in the command hierarchy, the Appellants’ argument regarding “effective control” as it relates to the first prong is misplaced, as it addresses a subject not at issue in this case. Thus, for this additional reason, I do not believe the Appellants’ argument in this regard has merit.

I also note that, although not at issue in this case, the district court’s definition of “effective command” does not precisely state the law with respect to officials deemed to hold de facto but not de jure authority. The court defined an official with “effective command” as one possessing both “the legal authority and the practical ability to exert control over his troops.” This “effective command” instruction is accurate insofar as it requires officials with de jure authority also to exercise “effective control.” The instruction does not accurately reflect the standard for de facto officials, however, because those officials can be held responsible without a showing of legal authority. A de facto superior is an official who exercises “powers of control over subordinates” that are “substantially similar” to those exer *1298 cised by de jure authorities. Prosecutor v. Delalic, ¶ 197 (Appeals Chamber ICTY, Feb. 20, 2001). As the majority clearly establishes, current international law provides that an official without legal authority may be held responsible for others’ violations of international law where that official exercised a degree of control sufficient to confer defacto authority.

As to the proximate cause instruction, I agree with the majority’s resolution of that issue because I believe a fair reading of our Circuit precedent holds that if error is invited, we may not review the error even if it is harmful. See, e.g., United States v. Fulford, 267 F.3d 1241, 1247 (11th Cir.2001); United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997). However, I believe we should reconsider that precedent and agree with the Sixth and Ninth Circuits, which have held that invited error may result in reversal in certain “exceptional situations.” 2 See, e.g., United States v. Sharpe, 996 F.2d 125, 129 (6th Cir.1993); United States v. Ahmad, 974 F.2d 1163, 1165 (9th Cir.1992) (“An invited error is only cause for reversal in the ‘exceptional situation’ in which it is ‘necessary to preserve the integrity of the judicial process or prevent a miscarriage of justice.’ ”) (internal citations omitted); United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991). In my opinion, one of these “exceptional situations” arises where there is no evidence that a party has “invited” error in bad faith and where substantial injustice is the result of that error. This case presents such a situation. There was no bad faith alleged on the part of the Appellants, the instruction requiring proof of proximate cause was legally erroneous, and the record reflects that the error had a clear impact on the jury’s determination. In my judgment, the proximate cause instruction calls into question the “integrity of the judicial process,” thereby warranting reversal.

First, the instruction was erroneous because the concept of proximate cause is not relevant to the assignment of liability under the command responsibility doctrine. The doctrine does not require a direct causal link between a plaintiff victim’s injuries and the acts or omissions of a commander. Once a plaintiff establishes a pri-ma facie case by proving the doctrine’s three prongs, the command responsibility doctrine requires no further showing to assign liability unless the commander presents a defense. In describing the scope of liability under the TVPA, the Senate Report urges that “[cjourts should look to ... interpretations of ‘actual or apparent authority’ derived from agency theory in order to give the fullest coverage possible.” S. Rep. No. 102-249, at 8 (1991). If a commander’s subordinates engage in a pattern of crimes about which that commander knew and failed to prevent or repress, then the commander bears responsibility for those acts absent a defense.

The Appellees justify the proximate cause instruction by arguing that a suit brought under the TVPA is a tort action, and, as such, requires proof of causation. This assertion misconceives the point at which causation must be shown. Causation must be demonstrated between the *1299 victims’ injuries and the armed forces that committed the crimes. Causation, therefore, was undisputedly established in this case: the troops raped and murdered the nuns. Upon proof of its three prongs, the command responsibility doctrine assigns responsibility for those crimes to the commander of the troops, absent any defense.

In Hilao v. Estate of Marcos, 103 F.3d 767, 774 (9th Cir.1996), the Ninth Circuit expressly held that proximate cause is not an element of command responsibility. 103 F.3d at 776-779 . No federal court considering a case brought under the TVPA has required plaintiffs to show proximate cause between their injuries and the acts or omissions of an executive commander. The ICTY has treated the issue in a manner similar to the Hilao Court. The Trial Chamber in Prosecutor v. Delalic held that proof of causation is not an independent requirement for the imposition of command culpability. The Trial Chamber noted that there is no causal connection “between an offense committed by a subordinate and the subsequent failure of a superior to punish the offense,” and concluded that this demonstrates the absence of causality as an element of the command responsibility doctrine. See Prosecutor v. Delalic, Judgment (Trial Chamber ICTY, Nov. 16, 1998) ¶¶ 398-400.

Indeed, a proximate cause requirement practically eviscerates the command responsibility doctrine’s theory of liability. It is not surprising, therefore, that no opinion addressing the doctrine includes proximate cause as a required element of proof. Instead, case law consistently asserts that commanders with executive responsibility who know or should know of a pattern or practice of abuse face a high presumption of liability, and causation is presumed to be the result of their failure to prevent those individual crimes.

Second, it is clear that the proximate cause instruction in this case confused the jurors, a fact demonstrated by four of the five questions of the jury to the court. Question 2 inquired: “Our obligation as jurors is to determine the guilt or innocence based on the three questions under command responsibility only?” Similarly, Question 3 asked: “Are there any other criteria other than command responsibility that we have to concern our decision with?” Question 4 pondered whether liability turned on the General’s responsibility for the “crimes against the people of El Salvador as a whole” or just the crimes against the nuns. And finally, Question 5 asked for reassurance of the jury’s understanding of the importance of proximate cause: “[I]t seems that proximate cause ... becomes a logical element, number four [in addition to the three prongs of the command responsibility doctrine] if and only if 1[,] 2[J and three [sic] have been clearly established.” These questions show that the jury may have found the Generals responsible for the crimes against the nuns but for the court’s erroneous proximate cause instruction. The questions also make clear that the jury instructions left “the jury to speculate as to an essential point of the law,” an error “sufficiently fundamental to warrant a new trial despite a party’s failure to state a proper objection.” Pate v. Seaboard R.R., Inc., 819 F.2d 1074, 1083 (11th Cir.1987) (quotation omitted). The erroneous proximate cause instruction thus led to “substantial injustice” warranting reversal of this judgment because the juror questions offer strong evidence of confusion and suggest that the jury’s determination was significantly influenced by a legally erroneous instruction.

I believe that the requirements of justice would be served in this ease by a rule *1300 that would permit us to review an “invited” but erroneous jury instruction where there is no evidence that counsel for the objecting party permitted the error in bad faith, and where it is clear that the jury misper-ceived the law and based its determination on this misperception.

. The evidence required to prove the first and third prongs is somewhat related, as the first prong requires demonstrating that the commander had the authority or could prevent or punish the crimes and the third prong requires demonstrating that the commander failed to take all necessary and reasonable measures to prevent or punish the crimes.

. Only the en banc court or the Supreme Court may overrule the precedent established by a prior panel holding. See, e.g., Smith v. GTE Corp., 236 F.3d 1292 , 1300 n. 8, 1302-03 (11th Cir.2001); Turner v. Beneficial Corp., 236 F.3d 643 , 648-50 (11th Cir.2000), vacated by 242 F.3d 1023 (11th Cir.2001) (en banc); United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993).