Taking Terror to Trial
Friday, August 9, 1991
A sense of justice keeps Honolulu attorney Broder fighting for the underdog
Between the whiplash and faulty wiring cases that are her bread and butter, Honolulu attorney Sherry Broder is prosecuting the largest human rights case ever certified in U.S. courts.
The Estate of Ferdinand Marcos Human Rights Litigation is a unique case: the first to seek damages for a "class" of aliens -- 10,000 victims of torture and "disappearance" -- from another alien -- the deceased Philippines president.
It's cost Broder more than five years of unpaid work. Her glassy offices embracing views of Honolulu Harbor indicate she isn't hurting. But ambling to the elevator in a knock-off Frieze, she says almost plaintively: "I still need a rear-end collision." Born in Bangor, Maine, Broder studied human rights at Boalt Law School in Berkeley, under one of the field's founding experts, Frank Newman.
"It didn't seem fair that somebody could be tortured and disappeared," she says.
When Broder says "it didn't seem fair" or "tortured," she can sound like an ingenue just cut from the high school basketball team.
But she's had some tough clients: After law school she worked for Charles Garry, representing members of the Black Panthers. Then she moved here to work with prisoners.
She married a man with similar interests -- Jon Van Dyke, who teaches international law at Richardson Law School and has headed the University of Hawaii Peace Institute.
But son Jesse, the eldest of three offspring and a clerk in Broder's firm, says dinner conversations aren't all foreign affairs talk. And Broder herself tends to downplay the high-brow sound of her human rights case, saying it's a natural evolution of her day job.
"I'm a personal injury lawyer. Our system enables us to compensate victims. This is the classic case the system was designed to handle."
And it may be no more difficult: Proving a Dalkon shield or a blown tire defective takes strenuous combat preparedness.
"The manufacturers fight those cases tooth and nail," she says.
The also bring out a certain competitive glee in the demure Maine reserve.
"Look at this!" she says, waving a newspaper to a friend at a restaurant.
"(David) Schutter's going to ‘kick butts!'" she reads aloud, referring to the locally renowned litigator's comment after failing to win sizable awards for 1987 flood victims.
Broder has kicked a few that other attorney's have ignored. It was her idea to go after the dairies that sold milk contaminated by the pesticide heptachlor with a class-action suit representing 850,000 people, or everyone who drank milk during 1981-82.
The suit ended with a $4 million settlement from Meadow Gold and Foremost, which was used to set up a unique private foundation to research the relationship between heptachlor and cancer, and to monitor children still at risk from milk they drank 10 years ago.
Personal-injury cases like these, she says, "are on the cutting edge of law. Now we're looking for a means for people to have justice after torture."
The Marcos case arrived in her office in 1986 -- shortly after the exiled president landed here -- with a bereaved and angry mother.
Archimedes Trajano, a student and former boyfriend of Marcos daughter Imee, was tortured and killed, allegedly by Marcos security forces, after challenging Imee at a public forum in 1972.
"I had a mission," recalls Agapita Trajano, who moved to Oahu in 1982. "I wanted to bring my children here so I could go back to the Philippines and find the killer of my son.
"But in 1986 when Marcos came here, I asked a priest whether I could file a claim against the Marcoses. He said, ‘Why not? If you have the evidence.'"
Even though human rights law was a barely tested field when Broder met Trajano, "there was not question in my mind the she had a case."
Besides Dozens of affidavits from other Filipino students, Agapita had her son's battered skull, which she dug up after seven years in the ground, and which Broder unveiled to the courtroom last March, the day Judge Manuel Real awarded the family $4 million in damages.
Meanwhile, Pennsylvania attorney Robert Swift had also been gathering Filipino torture victims and envisioned a class-action suit that would "put human rights on a different footing."
Broder read about the case in the New York Times, called Swift and joined as co-counsel.
Other attorneys with similar clients consolidated their cases. Now Jon Van Dyke, San Francisco's infamous Melvin Belli, Ellen Lutz of the ACLU of southern California and Lillian Ramirez-Uy of Manila are on the victims legal team.
Eventually Honolulu was determined the appropriate jurisdiction for a trial: Broder served Marcos before he died last year and she's been tracking down his closest cohorts who live in the islands.
Recently the witnesses, who include former Marcos aide Arturo Aruiza, Marcos' sister Fortuna Barbar and two sons of former General Fabian Ver, tried to avoid testimony by claiming they needed Fifth Amendment protection.
"Their lawyers told the judge they couldn't testify because they might know something about murder! We weren't even alleging that!" Broder said, again sounding more like a Girl Scouts leader discovering a rat than a tough litigator who takes on foreign despots and Fortune 500 companies while running for State Bar president.
"‘Why don't you stop and smell the flowers?'" a lawyer friend asked her last week.
"I am," Broder said later, thinking about the question. "I have my own business. I have interesting cases. I have a family. I lucked out."
On her own dime, Broder has flown to New York to depose Imelda Marcos, and to the Philippines to hear the stories of victims and their families.
Asked about those interviews, she answers with one word: "Difficult."
Encouraged to elaborate she is typically low-key, guarding what could be emotion.
"We were listening to peoples' stories of how they were tortured. The military played Russian roulette. Took them to safe houses. They beat people. Electric shock treatment. Put them on air conditioning units after they had tuberculosis. A mother would go to military camps for public law violators and her son wouldn't be there anymore, and she'd been waiting since 1978.
"It was very draining. I found it to be very difficult."
Although Agapita Trajano hasn't seen any money -- the case is on appeal -- she feels Broder helped her get what she wanted.
"Sometimes my only consolidation is all these people who were killed, tortured, executed, missing can now file their claims," she says. "Maybe that's why my son sacrificed so much."