Comité Nacional por la Libertad de los Cinco Cubanos

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Worldwide support for Cuban Five grows

Third appeal brings hope, calls for justice

by Gloria La Riva
August 31, 2007
Reprinted from

“I have been a judge 36 years of my life; for 21 years I have been a judge in two courts of appeals. If I had to rule in this case, I would rule as fast as I can in order to not have these five Cubans one day more in prison.”

Chilean judge Juan Guzmán at the press conference following the Aug. 20 appeals hearing, Atlanta.
Photo: Silvio Rodrigues

Juan Guzmán, the Chilean judge who prosecuted dictator Augusto Pinochet, was one of many prominent attorneys and judges who filled the courtroom of the 11th Circuit Court of Appeals in Atlanta to witness the third oral argument of the five Cuban political prisoners held in U.S. prisons. Guzmán spoke at a press conference after the hearing.

International and U.S. jurists came to Atlanta to be observers in the Aug. 20 hearing. They represented thousands of other attorneys from their respective associations.

Case background

The Cuban Five—Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González—were prosecuted for defending Cuba from U.S.-backed terrorists. They were arrested in Miami Sept. 12, 1998 by the FBI and charged with espionage conspiracy, murder conspiracy and failure to register as foreign agents—a total of 26 counts.

They were in Miami to monitor and prevent the actions of anti-Cuba terrorist organizations operating there. They never engaged in any espionage on the U.S. government, nor did they conspire to do so.

A charge of conspiracy to commit murder against Gerardo Hernández came seven months after the Five’s arrest. The indictment falsely accused him of plotting with Cuba to shoot down two planes of the terrorist organization Brothers to the Rescue (BTTR) on Feb. 24, 1996.

BTTR, based in Miami, had invaded Cuban airspace numerous times in 1995 and 1996 despite repeated warnings from Cuba. Days before the shoot-down, on Jan. 13, 1996, BTTR leader José Basulto boasted publicly of his group’s role in dropping 500,000 leaflets over Havana.

He told the Miami Herald, "Let's just say we take responsibility for those leaflets. But I cannot give you any of the technical details of how we did it."

As BTTR prepared once again to invade Cuban airspace on Feb. 24, Basulto ignored warnings from various U.S. and Cuban authorities. The Cuban government called on the U.S. government to stop BTTR from flying into Cuban airspace to no avail. Two of the planes were shot down by Cuba’s air force as they entered Cuban airspace.

Gerardo Hernández was accused by the U.S. government of conspiring with Cuba to shoot down the planes in international waters, an outrageous claim since he had absolutely nothing to do with Cuba’s actions. Cuba’s act was a justified act of state, and yet Hernández was convicted of murder conspiracy. This was only possible because of a Miami jury trial.

He simply had received a message from Cuba to tell Cuban pilots who had infiltrated BTTR not to fly over a period of several days in February 1996. Even Richard Nuccio, advisor to President Clinton on Cuba matters, testified in the trial that he had warned Clinton on Feb. 23 that Cuba would take direct action against the invading aircraft.

The Miami trial

The trial of the Five began in December 2000. Despite numerous defense motions to move the trial out of Miami’s hostile, anti-Cuba environment, federal judge Joan Lenard denied a change of venue.

With a Miami jury, a conviction on all counts was guaranteed, despite the complete lack of evidence on the two conspiracy charges. The conviction came down on June 8, 2001. The Miami jury did not ask even one question in its deliberation, after a seven-month trial that generated 14,000 transcript pages.

Leonard Weinglass outside the Altanta courthouse, Aug. 20.
Photo: Guillermo Kuhl

In December 2001, three of the five, Labañino, Guerrero and Hernández, were sentenced to life in prison for the espionage conspiracy. Hernández was sentenced to a second life sentence for the murder conspiracy charge. Fernando González was sentenced to 19 years and René González to 15 years.

The Five won a major victory on Aug. 9, 2005, when a three-judge panel of the 11th Circuit Court of Appeals ruled unanimously to overturn their convictions and grant a new trial. The decision was based on the issue of venue in Miami.

But the U.S. government appealed to the court’s full panel and the court accepted the appeal. Exactly one year later, on Aug. 9, 2006, the panel reversed the Five’s victory and ruled to uphold the trial judge’s refusal to move trial out of Miami.

Third oral argument in Atlanta

The 11th Circuit covers the jurisdiction of three southern states: Florida, Alabama and Georgia. About 75 percent of appeals before the court are decided by written briefs alone. The remaining 25 percent of cases are decided by the inclusion of oral arguments.

Leonard Weinglass, attorney for Antonio Guerrero, said he is not aware of any other case having three oral arguments.

The basis for the Aug. 20 hearing was nine unresolved issues of appeal being returned to the original three-judge panel for a ruling.

As the hearing convened at 3:00 p.m. before the full courtroom in downtown Atlanta, supporters of the Five listened intently to hear defense and prosecution give 30-minute presentations.

Before the attorneys began, Judge Stanley Birch made an announcement that the panel rejected the prosecution’s contention that the defense issue of prosecutorial misconduct was not properly before the court. This was a victory for the defense, which cited 28 instances of sustained objections due to the prosecution’s misconduct during the trial.

Gloria La Riva, Aug. 20, Atlanta.
Photo: Silvio Rodrigues

If the panel were to find that the government exercised repeated instances of misconduct, it would change the standard of review on the convictions of murder conspiracy and espionage conspiracy. Evidence on those charges would then have to be “overwhelming” for the convictions to stand.

As defense attorneys Richard Klugh and Brenda Bryn stated in the hearing, the government never claimed “overwhelming” nor even “strong” evidence on those two charges, which brought four life sentences against three of the Cuban Five. In fact, they said, there is no evidence on either conspiracy charge that the government presented, only “inference after inference.”

Early in the hearing, Birch also called on the prosecution to submit transcripts of an ex parte hearing that took place between the judge and prosecution during trial, where they discussed documents related to the case that the government had labeled classified under the Classified Information Procedures Act (CIPA). The defense has never been allowed to see those documents nor know the contents of them.

Under the repressive CIPA, all the possessions of the Five were confiscated when they were arrested and classified “secret.” This denied the Five the right to use their own documents in their defense, to prove that they were not involved in any conspiracy.

The whole hearing lasted one hour and 15 minutes. It is an extremely short time to present oral arguments in such a substantial and complicated appeal.

While those present were encouraged by the defense arguments and strength of the Five’s case in the hearing, justice will not be won by simple court proceedings.

The Cuban Five have been entangled for years in the technicalities of a judicial system whose government has carried out almost 50 years of aggression against Cuba.

The Five have endured nine years of imprisonment for peacefully defending Cuba from terrorism that is launched in Miami and financed by Washington. It will take the continued efforts of the worldwide movement to keep up the pressure until the Five are free.

In the days surrounding the Atlanta hearing, there was substantial media coverage in Associated Press, BBC, Reuters, and almost 100 daily newspapers in the United States.


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