CUBAN FIVE
Appeal hearing shows strength of defense case
By Gloria La Riva
Miami
March 10 was an historic day for the Cuban
Five as appeals attorneys presented their oral arguments in a
hearing before a three-judge panel of the 11th Circuit Court
here in Miami.
Cuban Five supporters accompanied the attorneys at an
impromptu press conference outside the courtroom. They said
they were optimistic about the possibility of winning freedom
for the Cuban Five and that the attorneys had made powerful and
compelling presentations.
A decision is expected in several months.
The five prisoners appealing their convictions are Cuban
nationals Gerardo Hernández, Antonio Guerrero,
Ramón Labañino, René González and
Fernando González. They were living in Miami, monitoring
counter-revolutionary Cuban groups, trying to stop the
ultra-right terrorist groups in Miami from carrying out violent
actions against the people of Cuba.
The Cuban people have been victims of terror attacks by the
Miami-based gangs, many of whom came from the wealthy class
that left Cuba after the popular overthrow in 1959 of
U.S.-supported dictator Fulgencio Batista.
The five Cubans are in prison because they were framed up in
a political witch hunt and railroaded by the U.S. in a
seven-month trial in Miami, where it was impossible for them to
have an impartial and fair trial.
The written briefs for each of the five, filed in spring
2003, are extensive, with numerous points of appeal. The
hearing's aim was to emphasize certain issues and answer
judges' questions.
The five attorneys--Leonard Wein glass, Paul McKenna,
Joaquin Méndez, Phil Horowitz and Bill Norris--sat
together, accompanied by Richard Klugh, deputy chief of appeals
for the federal public defender's office in Miami. The three
who presented oral arguments were Klugh, Weinglass and
Méndez.
The three federal judges chosen to hear the cases were
Stanley Birch and Phyllis Kravitch of the 11th Circuit, and
James Oakes of the 2nd Circuit Court in New York.
A series of news conferences around the March 10 date, a New
York meeting of 400 people, and a full-page ad in the New York
Times, published on March 3, raised interest in the case.
Murder conspiracy charge
Richard Klugh began the defense arguments by focusing first
on the murder conspiracy conviction against Gerardo
Hernández. Hernández has been falsely linked by
the U.S. government to the Feb. 24, 1996, shootdown by the
Cuban government of two Brothers to the Rescue (BTTR) airplanes
from Miami.
The Cuban government's shootdown of the planes was an act of
self-defense against BTTR's numerous incursions in previous
months.
Before the shootdown, Cuba had publicly warned it would take
direct action to stop any more invasions of Cuban territory.
The U.S. government was warned by its own officials, including
Richard Nuccio, who frantically tried to convey messages to
President Bill Clinton's national security advisor, Sandy
Berger, alerting him of BTTR's provocative plans. BTTR
continually invaded Cuban airspace. U.S. authorities did
nothing to stop it.
The prosecutor's claim at the trial was that Cuba had
planned ahead of time with Gerardo Hernández to have the
planes shot down over international waters, not in Cuban
territorial airspace. But Cuba has provided radar evidence
showing the planes were indeed shot down over Cuban waters.
Count 3, the murder conspiracy charge against
Hernández for the deaths of the four pilots, came eight
months after the arrest of the Five in 1998, even though
Hernández had nothing remotely to do with the
shootdown.
U.S. prosecutors concocted a bizarre theory: that
Hernández plotted, while living in Miami, to have the
BTTR planes shot down in international waters. Why? Because,
the U.S. said, he followed Cuba's instructions to tell the
pilots NOT to fly. There was no evidence that he received such
messages.
This background into Count Three is important in order to
understand the irrationality of the charge.
At trial, even the prosecutors didn't believe they could win
a conviction on Count Three. They went so far as to go before
the 11th Circuit Court to appeal for a loosening of the judge's
instructions (an "emergency writ of prohibition") in order to
gain a conviction. The prosecutors lost the appeal. Still, the
Miami jury convicted.
Klugh emphasized the insufficiency of evidence to convict on
Count Three.
"The government's burden is heavy. It would have to show
that a Cuban field agent knew the Cuban government had
concocted a plan to commit extra-territorial murder. ... Cuba
would for the first time in its history exceed its sovereignty
and murder U.S. citizens."
He said it was unreasonable to believe that Cuba would
deliberately plan to shoot a plane down outside its sovereign
territory.
Klugh pointed out that former U.S. official Richard Nuccio
acknowledged 25 warnings given to the head of BTTR, José
Basulto, "an admitted terrorist wanted in Cuba."
Then, on Count Two, conspiracy to com mit espionage, Klugh
raised the issue of insufficiency of evidence, and excessive
sentencing in the three life sentences given to
Labañino, Guerrero and Hernández.
The mandatory life sentences came from the U.S. government's
claim that the men were engaged in conspiracy to commit
espionage, causing "exceptionally grave damage" to the United
States.
"The U.S. government rested its case on the fact that two of
the agents were at military bases in Florida to count airplanes
and determine whether there would be a build-up," said
Klugh.
He said that the government at trial conceded that no
top-secret evidence was gathered or sent to Cuba.
In his third point, Klugh said that the U.S. Classified
Information Procedures Act greatly hampered the defendants'
ability to defend themselves properly, because all their
personal papers had been confiscated by the FBI and declared
classified. They were not able to use their own possessions and
documents to show they were not involved in espionage
conspiracy against the U.S.
"What was taken from the defendants was significant to
provide the whole picture of what they were doing. The question
is how could they be sentenced to mandatory life terms when
they did not collect any top-secret evidence," Klugh asked.
Leonard Weinglass addressed the important issue of venue and
the failure to move the trial from the heavily biased
atmosphere of Miami.
Prosecution story weak
U.S. Attorney Heck Miller next laid out the government's
scenario on the murder conspiracy charge. Her descriptions of
Hernández's role and Cuba's intent in the plane
shootdown were as incongruous as the original charge.
Miller said he was more than a Cuban field agent, and
described him as an officer and able to make policy
decisions.
Judge Birch asked in response: "What is the importance of
all that vis-à-vis murder?"
Miller said Hernández was "more knowledgeable, he
knew more things than others."
Judge Kravitch asked, "What evidence is there that
Hernández was involved?"
As the attorneys walked out of the courtroom into the
Florida sunshine, they spoke confidently to the bank of
television cameras.
Paul McKenna, Hernández's attorney, described the
prosecutor as "on the ropes."
News coverage was extensive in Miami and southern Florida. A
press conference by the Five's supporters was well
attended.
It is impossible to predict the court's decision, which may
come in a few months. But their supporters believe the hearing
was definitely a step forward and showed the strength of the
Five's cause and the lawyers' arguments, and the weakness of
the U.S. government's position.
The Committee to Free the Five plans to step up the fight
around the world, until the Five are freed and in their
homeland.
Reprinted from the March 25, 2004, issue of
Workers World newspaper
This article is copyright under a Creative
Commons License.
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