From the National Committee to Free the Cuban Five
Dear Friends of the Cuban Five:
Wednesday, March 10 was an historic and hopeful day for the Cuban
Five, as the appeals attorneys presented their oral arguments to the
three-judge panel of the 11th Circuit Court in Miami.
When the Cuban 5 supporters left the courtroom, accompanying the
attorneys to an impromptu press conference outside, we felt like
we've turned the corner and that freedom is closer for the Cuban
Five. The attorneys made powerful and compelling presentations. On
several key issues the prosecutor's arguments were very weak. All
this gives us reason to hope that justice will prevail. A decision is
expected in several months.
The hearing started at 11:00 am and lasted 40 minutes, a little
longer than the original 15 minutes.
For several days before the hearing, the appeals attorneys and
assistants hammered out a strategy. With only 15 minutes allotted for
our side to speak, each second would count. So the attorneys decided
among themselves that three would speak.
They focused on the most severe charges that brought life sentences.
These were: the murder conspiracy charge against Gerardo Hernández,
and espionage conspiracy charge, against Hernández again, Ramón
Labañino and Antonio Guerrero.
The written briefs for each of the Five, filed in spring 2003, are
extensive, with numerous points of appeal. The hearing today was to
emphasize certain issues and answer judges' questions.
The five attorneys, Leonard Weinglass, Paul McKenna, Joaquin Mendez,
Phil Horowitz, and Bill Norris sat together, as well as 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.
Three judges chosen to hear the cases for the present session were
Stanley Birch and Phyllis Kravitch of the 11th Circuit, and James
Oakes of the 2nd Circuit Court in New York.
(It is very important that correspondence from Cuban 5 supporters not
be directed to the court during its deliberations.)
Before the hearing, a lot of media coverage was generated by the
March 2nd telephone press conference of the National Committee to
Free the Cuban Five. The conference denounced the government's
confiscation of funds designated for the New York Times ad
publication, from French and Spanish groups. It also was a great
opportunity to publicize the upcoming March 10 hearing.
Activities around the date of March 10 in the U.S. and abroad also
increased visibility of the Cuban Five. For example, a very
successful meeting in New York at Union Local 1199 drew almost 400
people, and a press conference in Los Angeles on the Five's oral
arguments received coverage.
The full-page ad in the New York Times, published on Wednesday, March
3, also raised more interest.
In Miami, as supporters of the Cuban 5 arrived from out of town,
several days before the hearing, it was clear from the talk in the
community that the ad's publication has raised much awareness about
the Five Cuban political prisoners.
The Nuevo Herald, Spanish edition of the Miami Herald, even printed a
small version of the ad in its editorial page, along with an opinion
piece by a right-wing Cuban journalist who wondered why their side
can't unite, get famous people and $50,000 for a similar ad, like we
did!
The Free the Five website traffic increased six-fold the day of the
ad, 12-fold the day after, and we're continuing to get a substantial
number of hits and petitions by e-mail.
International attorneys traveled to Miami to witness the hearing and
lend their support. Fabio Marcelli of Italy and the International
Association of Defense Lawyers; Eberhard Schultz of Germany, as a
delegate from the Berlin Bar Association; attorney Edith Flamand of
Belgium; Carlos Zamorano, Argentina, of the American Association of
Jurists, Puerto Rican attorney and consultant Rafael Anglada, and
English priest Geoff Bottoms attended the hearing. Roberto González,
René's brother, and a Cuban defense attorney, and René's daughter,
Irmita, were there to represent the family members of the Cuban Five.
From the U.S. in the hearing were National Lawyers Guild member Ian
Thompson, IADL representative Jeanne Mirer, National Committee
activists Jennifer Wager, Alicia Jrapko and Gloria La Riva, and
Philadelphia Free the Five activist Stephen Paulmier. Miami
progressive Cubans attended from the Antonio Maceo Brigade, la
Asociación Jose Martí, Alianza Martiana, and Alianza de Trabajadores
Cubanos. Radio Habana Cuba correspondent Bernie Dwyer, Granma
Internacional journalist Jean-Guy Allard, and Militant reporter Seth
Galinsky reported for the independent press.
On the evening before the hearing, an inspiring meeting was held with
the progressive Cuban community. The foreign guests and U.S.
activists talked of their local work and shared many experiences. Max
Lesnick, noted Cuban commentator, gave a moving talk about the heroic
mission of the Cuban Five in defending their homeland. Andrés Gómez
chaired, and proudly announced that Miami Cubans collected $10,500
for the New York Times ad (that amount is now $11,000, the largest
collected anywhere!).
The last few weeks have seen an encouraging growth in coverage,
interest and solidarity with the Cuban Five. We urge you to get
involved if you're not already active, to get their struggle for
freedom known to millions throughout the United States, and around
the world. Please call or write us. There is a place for you to help
win their freedom!
Below are some of the arguments presented, just to give you a feel
for the hearing.
BACKGROUND TO MURDER CONSPIRACY CHARGE
Richard Klugh began the defense arguments, by focusing first on the
murder conspiracy conviction against Gerardo Hernández. Hernandez 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.
The Cuban government's shootdown of the plane was an act of self-
defense against BTTR's numerous incursions in previous months.
To give an idea of how provocative and dangerous the BTTR flights
were to Cuba, we reprint the following excerpt from Gerardo
Hernández's appeals briefs, prepared by his counsel, Paul McKenna.
"Also, the defense presented evidence that earlier in the year, April
17, 1994, the same aircraft N-2506, once again piloted by Basulto,
flew into restricted airspace and transmitted the following message
to a MIG aircraft vectoring around the BTTR Cessna: "We wish to
Cuba, the Cuban people, the armed forces, that you can make freedom
for Cuba possible; and do everything you can to bring an end to
Castro's regime." GH-Ex. 16(C).
These provocative flights became more aggressive, including a
dangerous BTTR multi-aircraft, rooftop-level buzzing of Havana on
July 13, 1995, and culminated in two "missions" on January 9th and
13th, 1996, where BTTR dumped more than 500,000 propaganda leaflets
over Cuban territory. After the second flight, Basulto appeared on a
U.S. government-controlled and financed Radio Marti program that was
broadcast into Cuba where Basulto bragged about the January 13th
leaflet drop, proclaiming that Havana was the "target" and three
miles from the center of the city was the "drop point." GH-Ex. 37,
pages 1-8."
José Basulto is the head of Brothers to the Rescue. Although his
pilot's license was revoked after the shootdown, he has had it
restored by the FAA, and is threatening Cuba with flights anew!
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 Clinton's
National Security Advisor, Sandy Berger, to warn of BTTR's
provocative plans. BTTR continually invaded Cuban airspace. U.S.
authorities did nothing to stop it.
The prosecutor's claim at trial was that Cuba planned ahead of time
with Gerardo Hernández to have the planes shot down in INTERNATIONAL
WATERS, not in Cuban territorial airspace. Cuba has provided radar
evidence to show the planes were shot down in Cuban waters.
Count 3, the murder conspiracy charge against Hernández for the
deaths of the four pilots, came eight months after the Five's 1998
arrest, 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, because the U.S. said he followed Cuba's
instructions to tell pilots not to fly. There was no evidence that he
received such messages.
The only evidence the U.S. prosecutor showed in the Five's trial was
a memo from Cuba to agents inside the U.S. that was not even directed
to Hernández. The Cuban Five's attorneys showed that Hernández also
had no means to decrypt such message.
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 PRESENTS TO JUDGES
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 commit 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 of a man who worked on a
military base in Florida. His purpose was to count airplanes and
determine whether there would be a build-up," said Klugh.
He said 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. CIPA (Classified
Information Procedures Act) law greatly hampered the defendants'
ability to defend themselves properly, because the FBI had
confiscated all their personal papers, and declared classified. So
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."
WEINGLASS ARGUES VENUE ISSUE
Leonard Weinglass began, saying, "I will address the issue of venue
and the failure to change venue from Miami." He spoke for five
minutes and then was extended five minutes and 45 seconds.
He stated four reasons why the district court erred by refusing to
change venue. First was that the trial court used the incorrect
standard in saying that it had to be "virtually impossible to get a
fair trial," to change venue. This was too high a standard and
improper to apply in this case.
When asked to clarify, Weinglass said the proper standard is from
Moody and Tokars cases, the "reasonable probability or likelihood"
that defendant couldn't have a fair trial.
There were several cases and rules he cited. This is all detailed in
his brief for Antonio Guerrero, which argues for the other four
Cubans as well. All the Five's legal briefs are available on
www.freethefive.org
The judges asked about the fact that not all preemptory challenges
were used, and that the defendants' attorneys didn't file motions to
change venue after jury selection, citing a case named Alvarez.
Weinglass said, "That is where there isn't a case of presumptive
prejudice. Once the presumption of prejudice is present, the law says
don't look at the voir dire (jury selection) anymore." He referred to
the case cited in the trial by the defendants, Pamplin v. Mason.
"Judge Wisdom [in Pamplin] said you look at the feelings in the
community and determine whether that would preclude a fair trial."
U.S. prosecutor Carolyn Heck Miller first spoke about venue. She
rebutted Weinglass' citing of the prosecution's contrary positions on
venue
Weinglass showed that the same U.S. attorney's office, which claimed
Miami was a homogenous population that could filter out prejudice in
the Cuban 5 trial and therefore a venue change was not necessary, one
year later, said that Miami was not the proper place to defend
Attorney General John Ashcroft in a civil case related to Elián
(Ramírez v. Ashcroft).
Heck Miller said that the Elián issue "received much more lurid
publicity than this case."
Judges Oakes asked, "Why doesn't the Elián González case carry over
to this one on change of venue?"
She responded that the Elián case is "factually unrelated," although
not convincingly.
Heck Miller next laid out the government's scenario on the murder
conspiracy charge. Her description of Hernández's role and Cuba's
intent in the plane shootdown were as incongruous as the original
charge.
She 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?"
Heck Miller said Hernández was "more knowledgeable, he knew more
things than others …"
Judge Kravitch asked, "What evidence is there that Hernández was
involved?"
Heck Miller claimed that Cuba was very upset that BTTR had flown in
international waters and dropped leaflets that had reached Havana and
an internal dissent group, "Concilio Cubano.
Birch asked, "How did this man know when a plane is going to make an
incursion and when it's going to be shot down?"
The prosecutor kept referencing a mid-February note sent by Cuba,
urging that pilots not fly on days leading up to the Feb. 24
shootdown, as supposed knowledge by Hernandez.
Judge Birch asked which way the message was transmitted, whether to
or from Hernández. When the prosecutor answered, from Cuba, Birch
said: "He had no control over the message."
Later, one of the judges asked, "Where is the inference that he knew
it would be a murderous act as opposed to violation of their
sovereignty?"
MENDEZ GIVES REBUTTAL
Joaquín Méndez, attorney for Fernando González, gave rebuttal for
three minutes. Méndez, a Cuban who grew up in Miami, gave strong
arguments on the venue issue, showing that the Elián struggle did
create increased hostility in Miami against Cuba and anyone related
to Cuba. (This all occurred at the same time that the Cuban Five were
in Miami prison, in solitary confinement.)
"The anti-Castro sentiment reached an all-time high during the time
of the Elián González case. One month before trial, over 100,000
marched in the streets of Miami to keep Elián here."
One judge asked, "Is it true that the defense did not renew its
change of venue motions?"
Méndez said, "I personally made seven motions for mistrial on behalf
of Campa (Fernando González) during the trial. We were not content
with the jury; we were not enamored with the jury, contrary to what
the government has represented."
Méndez pointed out that jurors were intimidated during the trial by
several incidents. For example, right-wing Cubans attended the trial
wearing camouflage, indicating membership in a paramilitary terrorist
organization.
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. The Free
the Five press conference was well attended by press.
It is of course impossible to predict the court's decision, which may
come in a few months. But we believe it was definitely a step
forward, by the strength of the Five's cause and the lawyers'
arguments, and weakness of the U.S. government's position.
We extend our sincerest gratitude to the attorneys for their great
defense. We thank all our Cuban friends in Miami who hosted us, and
who defend the cause of the Cuban Five so valiantly. We salute
Gerardo, René, Fernando, Antonio and Ramón, for their tremendous
courage in the most difficult of circumstances.
What is left now, is to step up the fight around the world and across
the U.S., until our brothers are freed and in their homeland.
Volverán! They will return!
National Committee to Free the Cuban Five
www.freethefive.org, 415-821-6545, freethefive@actionsf.org