Miami Five: Weathering a "perfect storm"

Campaign News | Tuesday, 21 February 2006

Father Geoffrey Bottoms writes from Atlanta on the Miami Five appeal hearing

From the UK daily newspaper The Morning Star

Nestling among the shimmering corporate skyline of downtown Atlanta, Georgia sits the majestic stone courthouse of an earlier age named after Judge Elbert P. Tuttle where cases are heard by the twelve judges of the 11th Circuit Court of Appeals.

On Tuesday, 14th February the courtroom with its dark stained wooden paneled walls and brass window frames was packed for the oral hearing of the next stage in the appeal process of the case of the Miami Five that lasted for just one hour in which both the defence and the prosecution were given an equal minimum amount of time to present their arguments.

Such en banc hearings before the full panel of appeal judges in the 11th Circuit are highly unusual yet this is no ordinary case, with Gerardo Hernandez, Antonio Guerrero, Ramon Labanino, Rene Gonzalez and Fernando Gonzalez serving sentences in prisons scattered across the US that range from fifteen years to double life on charges that include conspiracy to commit espionage and even murder among others of a less serious nature.

Following an earlier appeal that lasted over two years the three judge panel of the Court unanimously overturned the convictions and sentences of the Five on 9th August 2005 on the grounds that they could not have received a fair and impartial hearing in the hostile climate of Miami during the original flawed trial that lasted seven months from November 2000 until June 2001. They argued that under the 6th Amendment of the US Constitution all persons are guaranteed an impartial trial as a constitutional right.

In their Opinion covering ninety-three pages the three judges came to the conclusion that “in this case a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references”.

Yet on 28th September the District Attorney in Miami asked for a rehearing of the case following consultation with Washington that was granted by a majority of the twelve appeal judges just a month later on 31st October. This time the new appeals process would focus on the two questions of major concern: the right of the Federal District Court of Miami to deny the original motions for a change of venue and the process during the trial for the selection of an impartial jury.

Valentine’s Day may have a hint of irony about it as the day chosen for the oral hearing, with family members of the Five present in court together with international observers and supporters, alongside representatives of the anti-Cuban terrorist groups from Miami. Yet Presiding Judge J.L. Edmondson ensured a fair hearing by assuming a minimum role and allowing the rest of the panel of judges, especially Judge Stanley Birch who presided over the original appeal, to ask rapid-fire questions that put the prosecution on the ropes enabling the defence to take swift advantage of its strong position.

All of which made Leonard Weinglass, representing Antonio Guerrero, hopeful and optimistic that finally after seven years the convictions of the Five would be reversed in spite of the fact that the 11th Circuit Court had never found in favour of the defence throughout its entire history. As he pointed out rather ruefully, even if the case were successful and made history, “this Court will not convert the storm of prejudice (in Miami) into the bright sunny day of neutrality”.

For the defence this is the crux of the issue. Yet Assistant US Attorney, David Buckner, arguing to leave the convictions intact, said that US District Judge Joan Lenard took sufficient precautions when selecting jurors and was able to insulate them from the passions that swirled around the six-month trial. He called her management of the trial “a model” and said there was no evidence that jurors felt any intimidation - a point that is contested by Paul McKenna, lawyer for Gerardo Hernandez, who maintains that throughout the trial jurors were followed to their cars and had their licence numbers both photographed and televised.

Richard Klugh, Assistant Federal Public Defender, argued that no-one could have been kept totally in the dark about the hostility generated by the case which began shortly after the US government decided to send the then six years-old Elian Gonzalez back to Cuba with his father. As he explained “This case played to themes other than traditional law”.

Judge Stanley Marcus, a former US District Court judge in Miami, asked Klugh if they were saying that “people acting as Cuban agents simply cannot get a fair trial in Miami-Dade County - not then, not now, and not as far into the future as we can reasonably see; is that correct?”

Before he could answer the loaded question the subject quickly turned to a court-approved pretrial survey of 300 Miami-Dade County voters conducted by retired Florida International University Professor Gary P. Moran which concluded that the city was so contaminated by anti-Cuban sentiment that the men could not have received a fair trial in the community. Subsequently no jurors chosen for the case were of Cuban descent although Presiding Judge Edmondson wondered why they were not sequestered.

According to Weinglass there were no surprises as far as the oral hearing was concerned because the questions in this case were more important than the answers. In short, the worst that could be expected simply did not happen. While remaining cautiously optimistic about the outcome he warned nevertheless that nothing could be taken for granted in a case that was political in nature. A decision is expected in two months.

With five UN inspectors, UN Secretary-General Kofi Annan, Archbishop Desmond Tutu and Northern Ireland Secretary Peter Hain recently calling for the closure of Camp Delta at US-occupied Guantanamo Bay in Cuba the spotlight is now on the way the Bush administration treats its political prisoners. Describing the US as “a society that is heading towards George Orwell’s Animal Farm “ the Archbishop of York, Dr. John Sentamu, voices the concerns of all those defending the rule of law especially in the area of civil rights and international relations. Perhaps the media silence surrounding the Miami Five is about to be broken at last.

At the conclusion of the Selma to Montgomery March to press for a voting rights bill in 1965 that great son of Atlanta and leader of the US civil rights movement, Dr Martin Luther King Jr., spoke in words that resonate with hope for all those involved in the case of the Miami Five.

“However difficult the moment, however frustrating the hour, it will not be long before truth crushed to earth will rise again. How long? Not long because no lie can live forever. How long? Not long because you shall reap what you sow. How long? Not long, because the arc of the moral universe is long, but it bends toward justice.”

Miami Five case goes to appeal again

Atlanta Feb 15: Attorneys for the five Cubans held prisoners in the United State for fighting anti-Cuban terrorism, reiterated the men?s case as they again took the floor in Atlanta's Federal Appeals Court, according Tuesday's broadcast in Cuba of the "Round Table" news-commentary program.

Several experts on the program commented about the hearing that took place in the US state of Georgia, where 12 magistrates (one was absent) heard the appeal arguments made by both the defense and the prosecution in the case of anti-terrorist fighters.

The five men (Rene Gonzalez, Gerardo Hernandez, Ramon Labanino, Fernando Gonzalez and Antonio Guerrero) were taken into custody by US authorities in 1998 after having infiltrated anti-Cuban right wing extremist groups that operate with Washington?s protection in South Florida. After being subjected to a highly politicized trial in Miami that concluded in 2001, extremely harsh sentences were meted out.

Collectively, the "Cuban Five" were given a total four life sentences plus an additional 77 years in prison.

Following a first appeal of those verdicts, the sentences were overturned in August 2005 by a three-judge panel that ordered a new trial take place in an appropriate venue.

Richard Klugh, the defense attorney for Fernando Gonzalez, explained via a telephone interview that the Court had many doubts about the prosecution allegations, and that the prosecution?s representative couldn?t answer some of the questions asked by the judges.

Klugh said that the judges gave indications of being in greater agreement with the defense?s arguments during the hearing.

On the Round Table broadcast, University of Havana Law Professor Rodolfo Davalos voiced his assessment that the prosecution continues to lie by attempting to put the process into a legal aspect. He also highlighted the fact that two of three judges who were part of the panel that handed down the previous decision to overturn the men?s sentences participated in Tuesday?s hearing; Davalos suggested that those jurists are likely to uphold their previous landmark decision.

Professor Davalos, who has followed the case of the Five from its very beginning, also underscored the importance of the presented to the court of two amicus briefs with judicial analysis conducted by important US legal associations supporting men. This was contrasted to the prosecution?s hurried presentation of a brief prepared by a discredited group of Miami-based lawyers who are the anti-Cuban Mafia based in South Florida.

Davalos reminded to the audience that during the previous appeal in Atlanta "real justice was done" and although he advised that this legal process be watched with caution, he expects that in the end, the entire court will ratify the previous decision which overturned the men?s convictions.

Roberto Gonzalez, himself a lawyer and the brother of imprisoned Rene Gonzalez, was present during the hearing in Atlanta today and told the Round Table audience via telephone, that what occurred in Atlanta was positive for the defense, which centered its presentation in the issue of the first trial?s venue and therefore how principles of impartiality were violated.

Several law experts have already criticized the political motivated actions of the US government to extend the incarceration of the anti-terrorist fighters through delaying tactics such as the unprecedented appeal for a full court re-review of the case.

The appeals court requested that the attorneys concentrate into three main areas: if during the Miami trial there was a mistake by denying the change of venue; if a mistake was made by determining that the accused could not demonstrate that there was a prejudicial attitude against them, and if a mistake was made by denying them a new process.

The decision of the appeals court will be handed down at an undetermined date.

Journalist Arleen Rodriguez, one of the broadcast?s panelists, reminded the audience that relevant experts belonging to several international organizations attended Tuesday?s hearing in Atlanta and later gave a press conference. Other actions related to the case of the Cuban patriots are being planned, she said.

Rodriguez also highlighted the importance of the documentary film "Mission Against Terror" which was recently shown at a US university after being introduced by the distinguished American scholar Noam Chomsky. The film exposes the history of terrorism against Cuba and demonstrates the work of hundreds of "Free the Five" committees around the world.

Radio Havana Cuba reporter Bernie Dwyer also participated on Tuesday?s Round Table by telephone link-up to speak about how her film "Mission Against Terror" is been shown across American cities. Dwyer said the documentary is being received favorably by US audiences.

Estela Calloni, a well known Argentinean journalist, gave testimony to the growing interest developing in South America about the situation of the Five.

The Round Table also broadcast an interview given to Cable News Network (CNN) by Andres Gomez, the national coordinator of the Antonio Maceo Brigade, a Cuban-American organization which has advocated the release of the five men. Gomez explained in detail the real mission of the Five in Miami and gave information about the legal violations committed during their trial.

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