March 13: Latest from Miami Five Appeal
Campaign News | Saturday, 13 March 2004
CSC's Father Geoff Bottoms is heartened by the court case
A new Cuban exile group by the name of Cuba Democracy Advocates recently commissioned a controversial poll to survey 600 Cuban-American registered voters in Miami-Dade and Broward counties on their attitudes towards Fidel Castro and the US blockade of Cuba. The results were published on 11th March alongside news reports of the appeal hearing of the Miami Five in the 11th Circuit Court of Appeals just the day before.
Unsurprisingly 84% of the respondents wished to maintain sanctions and the prohibition of US tourism to Cuba "until the Castro government releases political prisoners, respects basic human rights, and schedules free elections". Yet only 16% of those questioned supported the feted Oswaldo Paya’s Varela Project petitioning for change on the island as it "accepts the continuation of the current Cuban Constitution and the Communist Party as the only political party in Cuba". Perhaps the most disturbing result was that nearly 46% of the respondents between 18 and 39 years old favoured US military action against Cuba.
All of which reinforced the main thrust of the argument of the defence lawyers in claiming that anti-Castro sentiment is so virulent and ingrained in Miami that it was impossible for Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez and Rene Gonzalez to receive a fair hearing. They were convicted in June 2001 of failing to register as foreign agents and conspiring to spy on US military installations and the Cuban exile community in South Florida following a seven-month federal trial.
Hernandez the leader was also convicted of murder-conspiracy in connection with the shooting down of two planes belonging to the Brothers to the Rescue by Cuban air force MiGs in 1996 when invading Cuban airspace killing four of the crew. All are presently serving sentences ranging from 15 years to double life in prisons scattered across the United States.
The irony of the appeal hearing by Judges Stanley Birch, Phyllis Kravitch and James Oakes on 10th March lay in the choice of venue. The James Lawrence King Justice Centre in Downtown Miami was named after the former Chief Judge who awarded $140 million in compensation to the families of those who were killed in the shoot-down of the planes on 24th February 1996. Needless to say they were present in court together with their FBI minders including Hector Pasquera responsible for pressurising Attorney General Janet Reno into authorising the original arrests.
Pointed questions were asked about the US government’s evidence underlying the murder conspiracy conviction of Gerardo Hernandez. Judge Kravitch noted that the conviction required a plot to down planes in international waters and not over the communist island. Her point was that the Cuban government had been warning the US and the rest of the international community that the Brothers group (which the Cuban agents had infiltrated) had made 25 incursions into Cuban airspace in the 20 months prior to the shoot-down.
Presiding Judge Birch asked what was the proof Hernandez "was going to know that it would be a murderous shoot-down as opposed to one justified by Cuban sovereignty". Federal prosecutor Caroline Heck-Miller responded that the Cuban government had told Hernandez in coded radio messages that a "confrontation" was imminent and to make sure his operatives stayed off the Brothers’ planes in the days before the fatal attack. By this time the court had the prosecution on the ropes as Birch shot back with the response, "But Hernandez had no control over what they told him".
If the appeals court overturns the murder conspiracy count then Hernandez, Labanino and Guerrero could face less time in prison at a re-sentencing hearing and perhaps a chance of returning to Cuba some day. All three were convicted of espionage conspiracy and their life sentences were based largely on the murder evidence. "There’s no way the US is even going to consider a trade as long as murder is hanging over this proceeding," defence lawyer Paul McKenna said after the hearing.
Federal public defender Richard Klugh argued that there was no evidence the espionage created an "exceptionally grave danger" to US national security interests. "It was nothing more than a flea on the pimple of the United States", he said. Judge Birch appeared to agree for if the murder conspiracy charge didn’t hold up then what were you left with? While acknowledging that no classified documents were obtained by the defendants Heck-Miller for the government maintained that it wasn’t for the want of trying but by this time she was well and truly out of her depth.
Attorney Leonard Weinglass said the trial should never have been permitted in a community with more than 500,000 residents "who have lost their homes, their businesses and their livelihood to the government that sent the Five to the US". Together with the prosecution he was given an additional 5 minutes 40 seconds to the allotted 15 minutes to make his argument. This drew on the precedent of the Pamplin v. Mason case and the US Attorney General’s request for a change of venue from Miami when sued in a civil case by immigration agent Rick Ramirez of the Cuban-American community.
Heck-Miller countered that Judge Joan Lenard had given ample chance to argue for a change of venue which had effectively removed all Cuban Americans from the jury. Yet Weinglass maintained that half a dozen jurors, all non-Cuban, were afraid to sit on the jury because of the reaction of their neighbours, colleagues and the community at large still reeling from the shoot-down of the planes and the custody battle over Elian Gonzalez. Defence lawyer Joaquim Mendez cited further prejudice when terrorist chief Jose Basulto called one of the defence team a "communist spy" and paramilitary figures were evident in court.
Present in the courtroom in support of the Miami Five were lawyers from Argentina, Belgium, Italy and Germany and members of the Free the Five Committees in the US and the UK together with Roberto Gonzalez, the brother of Rene Gonzalez, and Irmita the elder daughter representing the families. International solidarity is seen to be crucial to winning justice for the Miami Five in what Attorney Leonard Weinglass terms a political operation by the US against the Cuban government in using the law for its own ends. Certainly the recent advert in the New York Times placed by the US Free the Five Committee plus the media coverage generated by the appeal hearing has made a serious dent in the media’s wall of silence making solidarity work more effective in the struggle for the truth.
Meanwhile a decision is expected within the next two to three months. Although the oral arguments only touched on three of the main points of the appeal the questions asked by the judges and their obvious command of the case promises a new beginning in the campaign to win freedom for the Five. No-one can second guess the outcome and both defence and prosecution could appeal to all 16 to 18 judges of the 11th Circuit Court of Appeals if the case goes against them yet there was a definite positive feeling among those present that at last justice was in sight. There is still everything to play for and even in this election year in the US the chances of winning are at last beginning to look more hopeful.
Geoff Bottoms is Chair of the Cuba Solidarity Campaign Miami Five Campaign Group. For more information contact CSC.
