Miami 5 appeal to the US Supreme Court

Campaign News | Friday, 20 March 2009

On January 30, 2009 legal team of the Cuban Five filed writ of certiorari with the US Supreme Court, asking the Court to examine the case.

Defense lawyers argued the petition with the legal conflicts created by the Eleventh Circuit's rulings, demonstrate the urgent need for this Court's intervention.

The Eleventh Circuit's holding that petitioners were not entitled to a change of venue despite the pervasive hostility in Miami to the Castro Government-a factor the court of appeals deemed irrelevant as a matter of law-equally merits this Court's review, as Judge Birch recognized in urging that certiorari be granted.

As Judge Birch's dissenting opinion recognized, "this case presents a timely opportunity for the Supreme Court to clarify the right of an accused to an impartial jury in the high-tech age . . . [and] to clarify circuit law to conform with Supreme Court precedent."

They claim that the trial judge's refusal to grant a change of venue from Miami to Ft. Lauderdale subjected the defendants to an unfairly hostile climate and jury pool in Miami, with its large anti-Castro population.

"The pervasive and violent anti-Castro struggle of the Miami community would not only infect the jury with hostility but would cause jurors to fear for their (and their families') safety, livelihoods, and community standing if they acquitted," the petition said.

Other arguments, according to the lawyers, that merit the examination of the case by the Supreme Court are the Eleventh Circuit's decision conflicts with this Court's precedents relating to the jury selection, its integrity and the lack of evidence to probe the charge of conspiracy to commit murder against Gerardo Hernández.

"The fact that pervasive anti-Castro hostility in Miami and publicity regarding the shootdowns created a substantial risk that the jury would not neutrally decide the charges against petitioners is illustrated perfectly by the conviction of petitioner Hernandez for conspiracy to commit murder despite the absence of any actual evidence to support such a grave charge, for which the district court sentenced him to life in prison," stated the document.

The Cuban Five were convicted in Miami, Florida, on charges relating to conspiracy to commit espionage for the government of Cuba monitoring terrorist organizations in that city. The trial along with the charges and convictions have generated a storm of protest over the world and has been the only judicial proceeding in U.S. history condemned by the U.N. Human Rights Commission.

"As the Working Group on Arbitrary Detention of the U.N. Human Rights Commission concluded on May, 2005, [in this case] the "climate of bias and prejudice against the accused" was so extreme that the proceedings failed to meet the "objectivity and impartiality that is required in order to conform to the standards of a fair trial" and "confer[red] an arbitrary character on the deprivation of liberty."

"Dozens of organizations and individuals around the world- including, for example, numerous Nobel Laureates, national parliaments, and parliamentary committees on human rights-harshly criticized the proceedings." "No criminal trial in modern American history has been condemned in such a fashion."

The legal team of the Cuban Five offered a phone conference with the media before having filled the writ of certiorari. The legal action is headed by lawyer Thomas C. Goldstein, who co-chairs the Supreme Court practice at Akin Gump Strauss Hauer & Feld LLP and teaches Supreme Court Litigation at both Stanford Law School and Harvard Law School. He is recognized as one of the 100 most influential lawyers in America and has argued 20 Supreme Court cases. Mr. Goldstein will be joined by several of his co-counsel, including Len Weinglass, Richard Klugh and Michael Krinsky.

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