Cuban Five ruling confirms climate of fear in Miami

By Teresa Gutierrez

The Aug. 9 ruling by the 11th Circuit Court of Appeals in the case of the Cuban Five was as surprising as it was groundbreaking.

The five are Antonio Guerrero, Ramón Labañino, Gerardo Hernández, Fernando González and René González. After monitoring the actions of right-wing Cuban groups in Florida that have a history of terrorist acts against Cuba, they were arrested in 1998 and charged with conspiracy to commit espionage and murder. They were tried in the highly politically charged atmosphere of Miami.

The new ruling, issued 16 months after their lawyers filed an appeal, was based on the lower court’s denial of their motion for a change of venue, as well as several other due process violations.

The convictions and sentences for all Five were overturned by this decision. The three-judge panel determined their trial had been unfair and unanimously ordered that any new trial not be held in the Miami area.

In the 93-page decision, the court states: “They [the five] appeal their convictions, sentences, and the denial of their motion for new trial arguing … that the pervasive community prejudice against Fidel Castro and the Cuban government and its agents and the publicity surrounding the trial and other community events combined to create a situation where they were unable to obtain a fair and impartial trial.

“We agree, and REVERSE their convictions and REMAND for a retrial.”

While the struggle to free the Cuban Five is far from over, the ruling is a historic decision that brings them one step closer to home. One of the most conservative courts in the country delivered a favorable ruling as a result of overwhelming evidence, as well as the international struggle to expose the truth about the case.

Ruling on venue
is unprecedented

Leonard Weinglass, noted civil rights attorney and the lawyer for Antonio Guerrero, said of the decision: “This is really an historic opinion. Never before in the history of the U.S. has a Federal Circuit of Appeals reversed a trial court’s finding with respect to venue. This is a first. This is a remarkable decision that will be studied in law schools and cited in future cases throughout the country.”

Weinglass told the press that he believes the decision will especially impact cases involving the rights of those accused in so-called war on terror cases.

In the decision the judges cited over 100 incidents showing that Miami was a hostile environment for the trial. The court determined the trial was not fair because of “community prejudice, extensive publicity and prosecutors’ inflammatory remarks.”

“The perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable,” it stated, after describing how evidence at trial disclosed “the clandestine activities of not only the defendants, but also of the various Cuban exile groups and their paramilitary camps that continue to operate in the Miami area.”

The attorneys for the Five had been subject to harassment. Even Paul McKenna, the court-appointed lawyer for Gerardo Hernández, was accused by Jose Basulto in the courtroom of being a communist spy and an agent of the Cuban intelligence service. Basulto was trained by the CIA for the 1961 Bay of Pigs invasion and other terrorist activities against Cuba. He is a leader of Brothers to the Rescue, an innocent-sounding name for a group that has provocatively flown its planes into Cuban air space.

The court wrote: “Our review of the evidence at trial is more extensive than is typical for consideration of an appeal involving the denial of a motion for change of venue. This is so because the trial evidence itself created safety concerns for the jury which implicate venue considerations. ...

“The evidence submitted in support of the motions for change of venue was massive,” the court wrote.

Studies reveal atmosphere
of intimidation

The decision cited a study conducted by Florida International University Professor Gary Patrick Moran. The Moran study illustrated the overwhelming anti-Cuba sentiment that exists in Florida.

It showed that 69 percent of all respondents and 74 percent of Latino respondents were prejudiced against persons “charged with engaging in the activities named in the indictment.” Over one third said they would be worried about “criticism by the community if they served on a jury that reached a not-guilty verdict in a Cuban spy case.”

One potential juror—David Cuevas—stated that he “would feel … intimidated and maybe a little fearful for my own safety if I didn’t come back with a verdict that was in agreement with what the Cuban community feels. I would probably be a nervous wreck, if you want to know the honest truth.”

Another potential juror, a banker in charge of housing loans, was “concerned how … public opinion might affect [his] ability to do his job.” Another stated that he believed that “Castro is a communist dictator and I am opposed to communism so I would like to see him gone and a democracy established in Cuba.”

In February of 2001, five months after the trial had begun, a demonstration against the Five was held outside the courthouse, adding to a tense climate.

The court noted that in March, cameras were focused on the jurors as they left the building. Jurors reported they felt pressure and were concerned they were being filmed “all the way to their cars and [that] their license plates had been filmed.”

The decision cites another study that supported the motion for a new trial. Con ducted by a legal psychologist, it showed that “49.7 percent of the local Cuban population strongly favored direct United States military action to overthrow the Castro regime.” Ominously, 26 percent of the local non-Cuban population and 8.1 percent of the national population surveyed favored this action.

Another study conducted by Dr. Lis andro Perez of Florida International Uni versity concluded that “the possibility of selecting 12 citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero….”

Media contaminated the jury

The role of the media in contributing to an unfair trial was well documented. The media often would request names of jurors.

Copies of the Miami Herald covering the case were found in the jury assembly room.

The ruling cites the district judge in the case, Joan Lenard, who said she was “increasingly concerned” that various persons connected with the case were not following her order to refrain from giving out information or opinions, based on the “parade of articles appearing in the media….”

As the case continued, media attention grew. Anti-Cuba elements held a press conference outside the courthouse during a lunch break.

The decision points out that much of this case took place during the highly publicized struggle to get the Cuban right-wing in Miami to release Elián Gonzalez so he could be returned to his father in Cuba. Elián is the 6-year-old boy who was found alone, clinging to an inner tube, in the Straits of Florida after his mother had died at sea trying to reach the mainland on a makeshift raft.

It also points out other discrepancies during the trial, such as a lack of seating for the families of the Five, while there was ample seating for right wingers, who were put directly behind the prosecution. This added to the partisan and tense climate in the courtroom.

In July and August several of the Five had again appealed for a new trial and a change of venue. They pointed out that, after a seven-month and very complex trial, the jury had failed to ask questions and instead issued a quick verdict.

What next for the Cuban Five?

The next step in the case of the Five is to wait for the response of the U.S. Attorney in Miami, who can appeal the decision. Bail could be set or denied. The court has determined that the Five, who have been scattered in prisons across the country, can finally come together in Miami to discuss their case among themselves and with their lawyers. But the prosecutor may stall all this.

The Cuban government has rightly asked that the Five be sent back to Cuba immediately, since they have been determined to be innocent.

The work to free the Five must not only continue, it must intensify. The National Committee to Free the Cuban Five is encouraging supporters to contact members of Congress to help obtain visas so their families can visit them at this very critical time. Some family members have been denied visas for over seven years. This is inhumane and a violation of international law. Other educational and political work is necessary.

Why was this ruling made? “A fair trial in a fair tribunal is a basic requirement of due process,” states the decision.

It says that while the state “may prosecute with earnestness and vigor” and “strike hard blows,” it is not at liberty to “strike foul ones.”

Yet in case after case in courts throughout this country, innocent people are rushed to conviction after obviously biased trials.

One could argue that “foul blows” are the norm, not the exception.

So why did this court rule in favor of the Five? Why did it do such a thorough job of reviewing the evidence in an appeal involving the denial of a motion for change of venue?

What everyone on both sides will be weighing is how much this ruling may indicate a shift in the political situation with regard to U.S.-Cuba relations. Has the political influence of the right wing in southern Florida come down a notch? They are closely associated with the Bush dynasty. But are they being seen as a liability by other powerful capitalist interests?

After 45 years of trying and failing to destroy the Cuban Revolution, imperialism’s goal remains the same but its tactics may need to change.

A few months ago who would have thought that avowed terrorist Luis Posada Carriles would be held in custody by the Bush administration—even if only on immigration charges?

The political and legal work done by the Five themselves, their attorneys and all their many supporters, as well as the strenuous support for them from the Cuban government and people, has had a big impact internationally.

On May 27, the Working Group on Arbitrary Detentions of the UN Human Rights Commission passed a resolution concluding that their imprisonment and treatment was arbitrary and incompatible with international standards; it called on the U.S. government to rectify the situation.

The partial victory in the case of the Cuban Five should be used to open up a wider struggle in solidarity with Cuba.

Whatever the shift in climate, it is up to the solidarity movement in this country and around the world to create the conditions that will free the Cuban Five, end the U.S. blockade of Cuba and lift the travel ban. Extraditing Luis Posada Carriles to Venezuela for his crimes against Latin Americans, including his role in the mid-air bombing of a civilian Cuban airliner in 1976, is also in order.

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