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4 ex-judges from California in group appealing to Obama on Cuba

by Bob Egelko
Jan. 1, 2015
Reprinted from San Francisco Chronicle

When President Obama was secretly considering restoring U.S. relations with Cuba, among those urging him to release three Cubans convicted of spying in Florida — a key element in the eventual agreement — were nine former high-ranking state judges, four of them from California.


Cruz Reynoso

“It was a question of justice,” said Cruz Reynoso, the first Latino ever named to the California Supreme Court. When the Cubans were convicted in 2001 in Miami, a city teeming with Cuban exiles enraged at Fidel Castro’s government, “the whole atmosphere was such that it was impossible to have a fair jury,” Reynoso said.

He said he was also dismayed by post-trial disclosures that some Miami journalists — whose reports during the trial further inflamed the atmosphere, according to advocates for the defendants — were on the U.S. State Department payroll.

“These guys did not get a fair trial,” said Brian Kahn, a former California attorney who now practices law in Montana, hosts a weekly radio show and coordinated the former justices’ effort.

Kahn also served as president of the California Fish and Game Commission, and was a Sonoma County supervisor and a boxing coach at UC Berkeley before moving to Montana 25 years ago. Once he decided to take up the Cubans’ cause, he said, the most credible people he could think of were “retired appellate justices who have no ax to grind.”

Letter to Obama

Besides Reynoso, they included three former Bay Area appellate justices: Marc Poche, John Racanelli and William Newsom, the father of Lt. Gov. Gavin Newsom. All were appointed to the bench by Gov. Jerry Brown. The other five were former state Supreme Court justices in Montana, Washington and Iowa.

All nine signed a letter in February that was delivered to Obama, Secretary of State John Kerry and Attorney General Eric Holder by a “senior U.S. senator” whom Kahn declined to identify.

“I would not say that this tipped any scales, but I was told the (letter) was taken seriously by someone who was in a position to know,” Kahn said.

The three men released by Obama on Dec. 17 — Antonio Guerrero, Ramon Labañino and Gerardo Hernandez — were among five Cubans arrested on espionage charges in 1998. The five said they had been gathering intelligence about exiles in Florida who were plotting violence in Cuba and turning it over to the FBI.

A jury convicted them of spying on the United States. Hernandez was also found guilty of conspiring to murder four Cuban exiles whose planes were shot down by Cuban aircraft near the island in 1996.

Short-lived victory

One of the prisoners was released in 2011 and another in February 2014, both after completing their sentences. Obama freed the remaining three in exchange for a U.S. intelligence agent who had been held in Cuba for 20 years.

In what was officially described as a separate release on humanitarian grounds, Cuba also freed Alan Gross, a U.S. Agency for International Development contractor, imprisoned since 2009 for secretly distributing satellite phones and other communications equipment to Cuba’s small Jewish community.

Earlier, the five Cubans’ convictions had been briefly overturned in 2005 by a three-judge panel of the 11th U.S. Circuit Court of Appeals. The court said they had been denied a fair trial because of pervasive community hostility in Miami, the prosecutor’s incendiary references to “Cuban spies sent to ... destroy the United States” during arguments to the jury, and the trial judge’s refusal to transfer the case.

Prejudice, publicity

“Pervasive community prejudice, intense and inflammatory publicity — in part funded by the federal government — prosecutorial misconduct and denial of multiple motions for change of venue denied the defendants their constitutional right to a fair trial.”

But the full appeals court reinstated the convictions in 2006, finding flaws in a defense consultant’s survey of community attitudes and noting that the judge had instructed the jury to ignore news coverage and publicity about the case.

In their letter to Obama, the former state justices said they agreed with the initial ruling reversing the convictions.

“Pervasive community prejudice, intense and inflammatory publicity — in part funded by the federal government — prosecutorial misconduct and denial of multiple motions for change of venue denied the defendants their constitutional right to a fair trial,” the justices said.

The actions they said had been “funded by the federal government” were unknown to the courts and the public until 2006, when they were revealed by the Miami Herald.

The newspaper said the U.S. Office of Cuba Broadcasting had paid 10 journalists — including three reporters for the Herald’s Spanish-language affiliate, El Nuevo Herald — sums totaling tens of thousands of dollars to provide anti-Castro commentary on radio broadcasts aired in Miami.

Supporters of the five Cubans later obtained State Department documents showing extensive government payments to journalists during the 2001 trial, including writers of front-page articles that said Soviet leadership had advised Castro to send the men to Florida and that blamed the men for the fatal downing of the exiles’ planes in 1996.

Reynoso’s view

Defense lawyers cited the payments in a renewed attempt to overturn the convictions, which was dismissed when the men were released. Justice Department lawyers did not deny that the government had paid Miami journalists, but disputed links between the payments and any specific article or broadcast, and also noted that the trial judge had concluded the jury was unaffected by local news coverage.

Reynoso, who was ousted from the California Supreme Court by voters in 1986 and now teaches law at UC Davis, said in an interview that he was appalled to learn that the government had been paying journalists, “apparently (in) an effort to get these folks convicted.”

“It’s sad that our government, who has the duty to treat everybody equally ... ends up doing things that are really a discredit to American ideals of fairness and justice,” he said.

 

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