Cuban Five Get Another Day in Court
by Jonathan Springston
August 21, 2007
Reprinted from InterPress Service
ATLANTA, Aug 21 (IPS) - A federal appeals court here heard arguments Monday in a case that has sparked wide debate about the right of a country to defend itself against perceived "terrorists".
Known as the "Cuban Five", Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez and Rene Gonzalez are collectively serving four life sentences and 75 years in U.S. prison.
The men were arrested in 1998 and accused of espionage, conspiracy to commit murder, and other illegal activities committed in the United States. They were convicted of all charges in 2001.
One member, Gerardo Hernandez, had infiltrated the Miami-based anti-Castro group Brothers to the Rescue, which Cuba charges is a terrorist group whose planes have made dozens of incursions into Cuban territory.
The U.S. government claims Hernandez sent information back to Cuba that led to two of those planes being shot down by the Cuban air force in 1996, after repeated warnings to turn back.
But backers of the five argue that the men were simply involved in monitoring the actions of Miami-based exile groups, in order to prevent attacks on their country. A 2001 report submitted by Cuba to the United Nations documents 3,478 deaths as a result of "terrorism", "aggression", "acts of piracy and other actions" against the socialist island over the last 40 years.
This is the third time in three years the Eleventh Circuit in Atlanta has heard appeals in the case.
Observers from the United States, Cuba, Latin America and Europe, including notables like Chilean Jurist Juan Guzman and former U.S. Attorney-General Ramsey Clark, jammed the court to observe government and defence attorneys deliver arguments. Each side had only 30 minutes apiece to explain the most important points of a trial that lasted seven months.
Defence attorneys argued that the evidence brought by the government before a Miami jury was insufficient to sustain the five's convictions and final arguments made by the prosecution to the jury "were outside the evidence that were presented" and "outside the bounds of proper arguments," Leonard Weinglass, the attorney for Guerrero, said Sunday.
"Our trial was converted into a propaganda campaign by the prosecutors, stirring up prejudices against Cuba among the jurors, to achieve a conviction," Rene Gonzalez said after the original trial.
"Over-hyperbolic describes this prosecution," the defence argued Monday. "[Their case] doesn't add up."
Defence attorneys pointed out that the government admitted previously it never had enough evidence to support counts of conspiracy to commit murder and espionage. Authorities had seized at least 20,000 documents from the computers of the five men and not one of them was classified.
The Pentagon issued a statement at the time of the arrests that said national security was never in danger and the Justice Department issued a statement admitting the five obtained no secrets, Weinglass said Sunday.
At Monday's hearing, prosecutors insisted that the Cuban Five were sophisticated spies in the United States illegally to steal military secrets and overthrow the government. Pointing to volumes of documents on a table before the panel, U.S. Attorney Carolyn Miller said, "I ask this court to plunge into the record. There are examples supplied in those documents that show the defendants' hatred of the United States."
Miller argued the five were able to steal secrets by infiltrating military installations and that the men knew about and had a hand in the Feb. 24, 1996 shooting down of the two airplanes that killed four men.
However, Judge Stanley Birch raised questions about the right of Cuba to defend itself against aircraft entering its airspace. "A shoot down over sovereign airspace is not murder," he said.
Judges Birch and Phyllis Kravitch, who have heard arguments in this case before, peppered Miller with questions about what evidence the government had to support its claims.
Miller appeared to dodge these questions by continually discussing the differences between "reasonable" and "plausible." She argued the government only had to convince a jury of the "reasonableness", not the "plausibility", of the charges.
Charging "conspiracy" allows the prosecution to use more hearsay and circumstantial evidence to prove its case.
Defence attorneys also argued prosecutorial misconduct prevented the five men from receiving a fair trial. During the prosecution's final argument to the jury during the original trial, the defence registered 34 objections, which were sustained 28 times.
"I find that number troubling," Judge Kravitch said.
Not everyone in the courtroom Monday was there to support the Cuban Five.
Frank Calzon, executive director of the Washington-based Centre for a Free Cuba, believes the original trial was fair. "Advocates say the court is unfair... yet this is the third time at appeals," he said.
Those on hand to support the government's position included some relatives of the four men killed. There were no demonstrations, outbursts, or confrontations between the two sides before, during, or after the hearing.
It is up to the court now to decide who is right, even though the case has been at this point before.
The first three-judge panel to hear this case threw out the verdicts in August 2005 because of prosecutorial misconduct and the inability of the five to receive a fair trial in Miami, a hotbed of anti-Castro sentiment.
The Eleventh Circuit full panel reinstated the sentences and agreed to hear an appeal from U.S. prosecutors in October 2005. Judges Birch and Kravitch wrote dissenting opinions strongly in favour of the Cuban Five.
The Eleventh Circuit full panel, in an "en banc" hearing, affirmed in August 2006 the refusal of the U.S. district court in Miami to change venue (the defence filed motions for a change of venue five times during the original trial) and denied the five a new trial.
"This is an emotional case [for] both sides," Judge Birch said Monday. "We will look at this and do the best we can."
"There is no evidence linking any of the five men to the shoot down of those planes," Weinglass told reporters after the hearing. "The court is having difficulty with this."
Weinglass said if the court is convinced prosecutorial misconduct took place, the counts of conspiracy to commit espionage and murder could be set aside and there could even be a new trial.
But the court could also decide that evidence presented by the government is overwhelming enough to sustain convictions for these counts.
The defence is prepared to take the case to the Supreme Court if necessary, but they remain optimistic.
"I think this court is primed to do the right thing," Weinglass said. "I'm very hopeful and optimistic."
Judge Birch warned that it could take months before the panel issues a decision.
"We are not going to depend on this decision to decide whether we will continue the struggle for the five," Gloria La Riva, national coordinator for the San Francisco-based National Committee to Free the Cuban Five, said Sunday. "I know that we will all be committed to fighting for them until they are free."