The Habeas Corpus Appeal of Gerardo Hernández

News from Cuba | Wednesday, 19 January 2011

No evidence exists that Hernández had any advance knowledge whatsoever regarding Cuban Air Force shoot down of Brothers to the Rescue planes - inferences made at trial were "tragically, utterly false"

“Gerardo Hernández never did receive due process of law either on the part of the prosecutors or his own defense.”

Leonard Weinglass, Defence Attorney

Attorneys for Gerardo Hernández, a Cuban citizen serving two consecutive life sentences plus 15 years in the maximum security wing of the US Federal Penitentiary at Victorville, California have filed his final appeal in the US legal system. The evidence supporting his right to a new trial is staggering.

Gerardo Hernández

Hernández is one of ten Cubans who, like the Russian agents arrested in the summer of 2010 in New York, New Jersey and Massachusetts, were arrested by the FBI in Miami in 1998 and charged with failing to register as agents of a foreign government, as well as conspiracy to commit espionage. Unlike the Russians, who were swiftly deported and never faced a trial, five of the arrested Cubans quickly pled guilty and were rewarded with reduced sentences and green cards, while the remaining five, including Hernández, were thrown into separate solitary confinement cells for nearly a year and a half to await their court date. All the evidence for, against, and irrelevant to their cases was locked away by federal authorities under cover of national security. The government’s manipulation of the evidence is one of the issues raised in the appeal.

During the 1990s, as rightwing Cuban Americans in Miami rejoiced at the toppling of Cuba’s principal sponsor, the Soviet Union, their actions against Cuba grew ever more provocative as they aimed for a similar result. Small Miami based boats and planes began buzzing in and out of Cuban seas and airspace, shooting at beachside hotels, dropping objects from the skies, and meanwhile, mercenaries were hired to plant bombs and bring weapons into the country, with tragic and lethal results. The Cuban agents were sent to Miami in order to report back to Cuba and thwart these actions, which Cuba quite understandably views as terrorist attacks.

Hernández was their leader.

As the trial date approached in 2000 for the “Cuban Five” (as they are known in the US), an additional count was suddenly added to the first two against Hernández. The third count was “conspiracy to commit murder by supporting and implementing a plan to shoot down United States civilian aircraft outside of Cuban and United States airspace.”

Nearly five years prior to the trial, on February 24, 1996, two planes belonging to one of the Miami paramilitary groups known as Brothers to the Rescue (BTTR) [Hermanos al Rescate] were shot down by Cuban fighter jets as they were flying toward Cuba, in restricted airspace they had violated many times before. BTTR was headed by José Basulto, an original member of the CIA-sponsored Bay of Pigs mercenary brigade, who in 1962 had inaugurated the practice of attacking Cuban beachside hotels from an offshore vessel, when he attacked a hotel in the Miramar district with a 20 mm cannon which he shot from a speedboat.

Four people were killed in the destruction of the planes, three of them US citizens and the fourth a Cuban with US residency. A third plane escaped that day, containing Basulto, and his three passengers. It was the government’s contention that Hernández knew in advance about a Cuban government plan to shoot down the planes, that the plan was an illegal one by virtue of the charge that Cuba intended to shoot the planes down in international airspace - not Cuban airspace - and that Hernández agreed to help with that plan.

After a seven month trial that was marked by a media frenzy unusual even by Miami standards, the Five were convicted on all counts.

The initial appeals process

Hernández’s case, along with those of his compatriots, was appealed. In 2005, a three judge appellate panel unanimously reversed all the convictions due to community prejudice and the failure of the trial court to move the trial out of Miami.

Judge Phyllis A. Kravitch, US Eleventh Circuit Court of Appeals

The government sought a review of that decision before the entire 11 members of the Eleventh Circuit Court, called the En Banc court. Despite the previous unanimous decision overturning the convictions, the En Banc court reversed that decision, reinstating the convictions and sending the remaining issues, aside from venue, back to a three judge panel. That panel, composed of Judges Birch, Pryor and Kravitch, affirmed the convictions on a 2 to 1 decision, but ordered three of the defendants to be re-sentenced.

As for Hernández, his two life sentences plus 15 years were upheld. But Judge Kravitch wrote a very clear dissent on the issue of Hernández’s conviction. And Judge Birch, speaking specifically about Hernández’s conviction, called it a “very close case.”

Leonard Weinglass, one of the attorneys involved in Hernández’s appeal, urges the reading of Kravitch’s dissent. “Here you have a well-respected senior judge on the Eleventh Circuit Court of Appeals, who wrote an eloquent dissent against Hernández’s conviction, saying that he ought not to have been convicted, had no knowledge of what was going to happen with the planes that day, and that Cuba had the right to self-defense. This is not something we made up,” said Weinglass.

Weinglass also calls attention to the language in Birch’s opinion. Note, says Weinglass, “he did not say it was a ‘close’ question, but a ‘very close’ question.” Effectively, only Pryor, one of the most conservative judges in the entire country, did not express any doubts about Hernández’s conviction.

Habeas Corpus Appeal

A habeas corpus appeal cannot be filed until all other appeals are exhausted, and indeed, after the reconsideration by Birch, Pryor and Kravitch, the case of the Cuban Five traveled to the Supreme Court which, in June 2009, declined to hear it.

This is the kind of appeal that Hernández’s current legal team has now filed. With all its appendices, it is hundreds of pages long. It focuses at length on the errors made by Hernández’s public defender, Paul McKenna, which together with the violations by the prosecution, had the practical effect of denying him his constitutionally mandated right to due process. It also presents new evidence that has been discovered since the original trial, evidence which Weinglass calls “evidence of a constitutional dimension.”

Three actors perform in anti-Cuban sitcom produced by US Government funded TV Martí (Photo: Alan Díaz, Associated Press)

Much of that evidence involves the 2006 discovery that many of the journalists producing incendiary stories on the trial in 2000/2001 were simultaneously on the US government payroll, reporting for Radio and TV Martí, anti-Cuba propaganda stations funded and operated by the US government. The struggle to obtain information about the reporters involved in the media manipulation of community attitudes during the trial is another interesting story all by itself.

Some of the new evidence also comes from the classified information that the government improperly tried to conceal in order to better make its case while simultaneously denying Hernández the opportunity to defend himself. The appeal shows how Hernández’s rights to due process were violated when the government excluded Hernández and McKenna from a private ex parte hearing where materials which included high frequency messages from the Cuban government to its agents were reviewed and decisions taken on which would be admitted at trial.

“Had [Hernández] known of the existence of these high frequency messages (it was later known that the government disclosed only 44 out of approximately 350 intercepted messages) and the additional classified communications, he would have sought to introduce them into evidence to show that he had no knowledge that the government of Cuba intended to illegally shoot down the Brothers to the Rescue aircraft.”[1]

Media mischaracterization of the appeal

It is practically impossible to explain the countless and often extremely technical due process violations outlined in the appeal, through the economical technique of quickly helicoptering into the documents, extracting selected sensational quotes, and then contacting sources on both sides for comment. Not that this hasn’t been tried. The Miami Herald gave it a go on December 26, 2010, in a story filed by Jay Weaver emblazoned with the headline: “Cuban Spymaster now claims Brothers to the Rescue shooting was outside Cuban airspace.”

The story is a perfect illustration of why hasty and selective reading is no substitute for real investigative journalism, though it may have perfectly adequate results as propaganda. [Also note the loaded language in the headline: “Shooting” in lieu of “Shoot down” and “Spymaster” instead of, for instance, “Cuban Agent”.]

The case made by the Herald is quite different from the one actually being made by Hernández’s attorneys.

Defense errors

Hernández’s habeas corpus appeal explains that one of the most grievous errors made in his defense was the failure to advise him that he had the right to ask for a severance, in order to be tried separately on the third murder conspiracy count, rather than at the same trial on the espionage conspiracy and foreign agent counts. The practical effect of this failure was that all five Cubans were tried and sentenced in a climate of guilt by association, but also that McKenna was so busy trying to deal with the third murder conspiracy count that he essentially abandoned his client on the other two.

As well, by failing to sever the trial, other witnesses who might have been able to testify to Hernández’s lack of knowledge about any shoot down, such as the other five Cubans who quickly pled guilty, and specifically, Hernández’s co-defendant René González, who had infiltrated BTTR and could have testified that Hernández had no special knowledge about any shoot down, were unable to testify in his defense. The problem of González being unable to testify might have been resolved to some extent in an un-severed trial through a legal instrument called a Byrd Affidavit, but McKenna did not utilize it.

“Had counsel evaluated and investigated such issues and consulted with his client, he would have been able to obtain a Byrd affidavit from Rene Gonzalez to show that whatever knowledge Hernandez may have had or conveyed regarding an impending confrontation of BTTR with Cuba was of the same general understanding as that in the public domain, that Cuba might attempt to shoot down aircraft if they continued to violate Cuban airspace and that he understood Cuba to have the lawful right to do so within Cuban territory. Hernandez was unaware of any plan to act unlawfully or to act in a manner that could legitimately provoke military retaliation.”[2]

How the Miami Herald got it wrong

Another serious defense error, and one that is perhaps easier understood in hindsight, at least for non-lawyers, was the defense effort to revisit the decision made at the UN Security Council which pinned the location of the shoot down in international airspace rather than Cuban airspace.

UN Security Council

The decision was pushed through the Security Council by Madeleine Albright notwithstanding the fact that after months of investigation that were repeatedly extended when the US failed to meet deadlines for the submission of its evidence, the UN’s civil aviation arm - the International Civil Aviation Organization (ICAO) - had found that the US and Cuban radar data had “significant and irreconcilable differences.” As a result of these differences and other irregularities, the ICAO Council refused to endorse its own investigative report. This did not present Albright with a particularly significant obstacle, and she and her diplomatic colleagues set the location themselves.

McKenna erroneously opted to try to convince the Miami jury that the UN Security Council had erred, and endeavored to retry its decision in the Miami courtroom. By this time though, the Security Council decision had already been used in another Miami court proceeding as a basis to obtain access to frozen Cuban assets in order to compensate the families of the downed fliers and their attorneys. In trying to persuade the jury of twelve non-aviation experts to revisit the ICAO investigation and decide that Cuba was right and the US government was wrong - a hopeless proposition in a community where the downed BTTR fliers had been cast as heroes - McKenna was slogging uphill against not one but two legal precedents. The only thing this kind of defense managed was to harden the jury’s antagonism toward his client. But more importantly, it was not the case he was asked to defend.

It’s worth re-examining the third count of the indictment to fully grasp this point.

“Conspiracy to commit murder by supporting and implementing a plan to shoot down United States civilian aircraft outside of Cuban and United States airspace.” [Italics added.]

In other words, a plan to shoot down aircraft within Cuban airspace would have been no crime at all - this was where McKenna set off down a doomed road paved with good intentions, by seeking to free his client on the basis of the argument that no crime had actually been committed.

Historical questions

Despite the legal precedents, as a historical matter, the shoot down location does remain an open question as far as factual evidence is concerned. The final appendix in the appeal makes this clear: US satellite data would be the most objective and definitive way to resolve the location question once and for all, but despite a recommendation from his aviation expert witness, George Buchner, McKenna never requested that data, nor has it ever been released. Buchner says that the ICAO investigative team also tried and failed to obtain this data.

NASA satellite photo showing fires burning in Cuba and Florida on April 3, 2004

Another appendix in the appeal, the declaration by Professor John Quigley, an expert in international law, makes clear that some of the questions McKenna sought to argue at the Miami trial, such as whether BTTR’s planes were actually military or civilian, were erroneous and irrelevant in light of established international law: “?the relevant inquiry was whether the territorial state might reasonably perceive an imminent threat from the intrusion, rather than whether the aircraft was civil or military in character.”

This particular argument had truly devastating consequences for Hernández, “difficult to fathom and painful to contemplate,” when the jury was incorrectly instructed to “deliberate whether Cuba’s fighter jets properly identified BTTR’s light Cessna aircraft as ‘military’ planes under ICAO standards, and, if so, whether those BTTR planes were in fact shot down as a ‘last resort’?”[3] It was an issue a world apart from and totally irrelevant to the actual conspiracy charge faced by Hernández.

Through the looking glass

On the face of it, a shoot down outside of Cuban airspace makes no logical sense whatsoever. Cuba was certainly aggrieved by the constant air incursions by BTTR - one of the most interesting parts of the appeal is the appendix which includes the ICAO investigative report, a document that has never been publicly revealed until now (ICAO Report Part 1, Part 2). BTTR planes had roared “at rooftop level” through downtown Havana, tossing leaflets and religious medals out the windows six months prior to the downings, something as dangerous as it is illegal, not only in Cuba, but everywhere. The planes enjoyed unusual access to the US Naval Base in Guantánamo, and used that access to buzz whatever Cuban territory caught their fancy “on the spur of the moment.” Cuba’s right to defend itself against such intrusions is unquestionable.

But a shoot down outside of Cuban airspace would, and did, result in international condemnation of Cuba, open the door to the seizure of Cuban assets frozen since 1961, and most damaging, provide the impetus to set the US blockade of Cuba in stone, through the anti-Cuba legislation known as Helms-Burton that was creeping through the US Congress in the mid-1990s. Before the shoot down, Clinton had been threatening to veto the bill, if by some miracle it were to pass. After the shoot down, the law passed easily. It may have been something short of the confrontation hoped for by Basulto, the self-confessed terrorist who was continually looking for a Bay of Pigs do-over and still asks why US fighter jets were not launched in retaliation on the 24th, but Helms-Burton has been destructive enough all on its own.

At Hernández’s trial, establishing the location of the shoot down was simply not the question at hand, and the government could simply point to the Security Council decision in any case. In order to convict Hernández, the government needed to prove that there was an illegal plan to shoot down BTTR planes in international airspace, not Cuban airspace, that Hernández knew about this illegal plan and that he agreed to support it.

It couldn’t be done.

It depends on what the meaning of “or” is

To overcome the leap of logic necessary to believe, counter-intuitively, that Cuba deliberately planned to shoot BTTR planes down in international airspace rather than Cuban airspace, the government presented the tortured argument that what was really bothering Cuba about BTTR’s aerial invasions was not their dangerous low-level cowboy flights over congested areas, nor Basulto’s jamming of radio frequencies used by commercial airliners traveling through Cuba’s air corridor with extemporaneous speeches about his rights to violate anyone’s restricted airspace as a “free Cuban.”

According to the US government, what Cuba really wanted to accomplish through a planned shoot down in international airspace was to stop BTTR from dropping leaflets from a spot just outside Cuban airspace where wind currents might carry them ashore. The ICAO report clearly showed how the leaflets had actually been dropped inside Cuban airspace, and Basulto himself had said on the radio in Miami that he’d dropped them from inside Cuban airspace, but suddenly all that was forgotten (and never rebutted by the defense).

Document from ICAO Investigative Report which shows the flight path of BTTR planes on January 13, 1996, as they crossed into Cuban airspace to drop leaflets that would be carried over Havana and its southern outskirts (gray shading).

Finally, in an argument that only lawyers could possibly make, the government pointed to “an alleged message that asked agents who penetrated BTTR to report any planned ‘leaflet dropping missions or incursions into Cuban airspace.’” [Emphasis added.]

Government lawyers pointed to the word “or” as “proof that the Cuban plan included confrontation in international airspace to stop the leafleting.”[4]

It was an exquisitely technical legal argument, but as far as Hernández was concerned, there was still absolutely no evidence that he had any inside information about a shoot down planned to take place anywhere, either inside or outside of Cuban airspace.

“A confrontation does not necessarily mean a shootdown.”

In her dissent, Judge Kravitch pointed out that at best, the coded messages submitted by the government as evidence showed that Hernández (like everyone, including BTTR) knew that there would be a “confrontation” of some sort.

She added, “A confrontation does not necessarily mean a shoot down.” The evidence that BTTR itself expected nothing more than a confrontation possibly resulting in a forced landing was contained in a homemade video deliberately left behind at BTTR headquarters on February 24th. In it, flight participants said they would either blink furiously or try not to blink as some sort of coded message to Miami, should they be forced to confess on Cuban television.

Kravitch explained further:

“It is not enough for the Government to show that a shoot down merely occurred in international airspace: the Government must prove beyond a reasonable doubt that Hernandez agreed to a shoot down in international airspace. Although such an agreement may be proven with circumstantial evidence, here, the Government failed to provide either direct or circumstantial evidence that Hernandez agreed to a shoot down in international airspace. Instead, the evidence points toward a confrontation in Cuban airspace, thus negating the requirement that he agreed to commit an unlawful act.

?the fact that the intercepted communications after the shoot down show that Hernandez was congratulated for his role and that he acknowledged participation and called it a “success” does not clearly establish an agreement to a shoot down in international airspace. The Government cannot point to any evidence that indicates Hernandez agreed to a shoot down in international, as opposed to Cuban, airspace.”

Hernández has consistently maintained that the coded message he sent to Cuba after February 24th, where he said “the operation to which we contributed a grain of salt ended successfully”[5] was a reference not to the operation to confront BTTR planes, but to an entirely different one, that of returning another agent to Cuba. He says the government purposely created “a cloud?of confusion” about the two operations in order to use that particular message in its case against him. McKenna, beavering away at the shootdown location, failed to object to or counter the government’s cynical misappropriation of the message.

Even if one accepts the government’s mischaracterization of that particular message, Kravitch explained that this is still not sufficient for conviction - if Hernández had really referred to the shoot down of an enemy plane as a “success” that still does not mean he agreed to a plan to shoot it down in “international” rather than Cuban airspace.

Richard Gere’s Cuban double

Cuban agent and former military pilot Juan Pablo Roque

The agent whose return Hernández was referring to in the “grain of salt”[6] message was Juan Pablo Roque, an intriguing character in the case. Often referred to as someone who bears a striking resemblance to Richard Gere, Roque snorkeled his way to the US base at Guantánamo and soon found himself in Miami, where he captured the hearts of Basulto and his clan with the tale that he was a Cuban military pilot who’d been grounded and therefore become disillusioned. The Cuban American National Foundation (CANF) even facilitated a vanity press publication of his memoirs, while Roque began quietly moonlighting for the FBI, providing information about BTTR’s concealed, less savory, drug trafficking activities and weapons smuggling plans.

But practically as soon as he arrived in Miami, Roque suffered from unbearable homesickness and asked to be transferred back. Hernández was tasked with arranging the defector’s re-defection. “Operation Venezia” was planned as a way to get Roque back to Cuba and simultaneously capitalize on the intelligence Roque had gathered, through planned press conferences where he would reveal much the same information as he had given the FBI.

José Basulto, left, with Cuban agents Juan Pablo Roque, right, and René González, front. The 2506 numbers on the plane refer to the CIA-sponsored Bay of Pigs brigade, to which both Basulto and Luis Posada Carriles belonged.

A top secret Cuban document contained in the appeal confirms that this denunciation was the main thrust behind Operation Venezia, and that Roque’s return was approved by Cuban intelligence headquarters for “either the end of February or beginning of March, 1996”[7] depending on commercial flight availabilities.

At the time of the trial, much was made of the fact that Roque had slipped away on February 23rd and arrived in Cuba either the day of the shoot down or the day after. But the timing was coincidental, based largely on Roque’s insistence that he be back in time for his son’s birthday on the 26th. Also, the shoot down on the 24th was demonstrably at odds with Operation Venezia’s objectives. Although Roque appeared on CNN with Lucia Newman on the 27th and again in an interview with the Cuban newspaper Juventud Rebelde on March 3rd, still maintaining his cover in order to protect the agents remaining in Miami, the tsunami of negative press about the shoot down largely overshadowed the negative information he revealed about BTTR in the interview.

Too little too late

Toward the end of the trial, Hernández’s defender seemed to have realized he’d been chasing a red herring. After six long months of painstaking efforts to convince the jury that the shoot down location had been erroneously decided, he suddenly changed course and told the jury that all the evidence he had presented to them over the previous six months was irrelevant. This surely did not endear him or his client to jury members anxious to get on with their lives.

What mattered, he said, was that the government could not prove that Hernández knew anything at all about an illegal shoot down plan. But it was too late. The damage had been done.

The appeal says that “to his credit” McKenna has recognized his errors in the original trial and agreed to testify at a habeas corpus hearing in order to provide evidence as to why Hernández should receive a new trial.

That evidentiary hearing is likely to be held once all the replies have been submitted in the case, sometime between March and June of this year, although according to Weinglass, it is still unknown whether Judge Lenard will hold onto the case and hold that hearing herself, or refer it to a magistrate, as frequently occurs in Miami.

An invisible force

In the meantime, in the desolate high desert of California, Hernández continues to be an active advocate in his own case and that of rest of the Five. This sometimes leads to peculiar resentments on the part of his jailers. “You get too much mail,” he is told, and in the upside-down logic of the federal prison system, the solution is to hold his mail captive on occasion until the excess becomes an avalanche. He continues to endure extra-judicial punishments such as the denial of a visa, 13 years running, for his wife to visit him. He is denied email access which, in contrast, is granted to hardened, proven violent offenders incarcerated in the same facility. Last summer he was suddenly, inexplicably, thrown into the prison “hole” and some weeks later, following an international outcry, released.

Regardless of whether Hernández is ultimately granted his right to due process through a new trial, he guards an undiminished sense of optimism, tempered with realism. Of the multitude of efforts to obtain his freedom he says, “It’s like water on a rock.” And even the hardest rocks give way over time.

Billboards like this one are found throughout Cuba, where the Cuban Five are known as the Five Heroes. Volverán means “They will return.” (Photo: Bill Hackwell)

I would like to thank Nelson Valdés, Manuel Cedeño Berrueta and Manuel Talens for their assistance in the preparation and translation of this report.


[1] Gerardo Hernández, Movant, vs. United States of America, Respondent - Memorandum in Support of Motion to Vacate, Set Aside, or Correct Judgment and Sentence under 28 U.SC. ? 2255, p. 79

[2] Ibid, p. 19

[3] Ibid, p. 37

[4] Ibid, p. 31

[5] Ibid, p. 83

[6] “Grain of salt” is likely to be a mistranslation of Hernández’s original Spanish language message. It is extremely improbable that Hernández would have written “granito de sal,” instead of “granito de arena,” which means “grain of sand.” The transcription of the Spanish language interview conducted with Hernández by Saul Landau confirms this.

[7] Ibid, Appendix B

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