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Shameful Decision in Atlanta on Cuban Five Case

Havana, Aug 10 (ACN) Exactly a year after a three judge panel of the 11th Circuit Court of Appeals of Atlanta unanimously overturned the convictions in Miami of five Cuban anti-terrorist fighters, the full court ruled Wednesday on the prosecution's request to reconsider the August 9, 2005 decision, Granma daily reports.

In a 120-page document the full 12-magistrate court decided, with two judges dissenting, against the defense request for a change of venue and a new trial and sent the case back to the three judge panel for consideration of remaining issues.

In their ruling a year ago the judges had limited themselves to addressing the Cuban Five's contention that pervasive community prejudice against the Cuban government and publicity surrounding the case prevented them from receiving a fair trial.

In throwing out their convictions and sentences the three-judge panel had unanimously agreed that pretrial publicity combined with pervasive anti-Cuba feeling in Miami didn't allow for a fair trial. The US government then asked the full appeals court to reconsider, ending in yesterday's decision and a return to square one.

The ruling means a further dragging out of the case and continues the indefinite imprisonment of the five Cubans, who will reach eight years behind bars on Sept. 12.

The Cuban Five maintain their efforts were restricted to gathering information on violent Miami-based rightwing groups, some of whom have carried out terrorist actions against the island for over four decades.

The goal was to keep Cuban and US citizens from being the victims of terrorist acts promoted by individuals like Luis Posada Carriles, a confessed assassin accused of being behind the blowing up of a Cuban airliner killing 73 persons.

Posada Carriles is currently under US government protection and a hearing on his request for US citizenship is scheduled for consideration on August 14. Posada believes he deserves US citizenship for services rendered in the US army and with the CIA under George Bush Sr.

The news on the Atlanta court ruling came shortly after the nightly Cuban television Round Table program had updated viewers on the Cuban Five case. The panelists in the program noted that six months had gone by since the full court had listened to oral arguments from the defense and prosecution.

The full court's very acceptance to reconsider the original unanimous decision of the three judge panel overturning the Cuban Five's convictions was considered by many legal experts to be unprecedented in US law.

Cuba has repeatedly maintained that the bad faith demonstrated by the prosecution confirms the political nature of the case, filled from the beginning with hate and a desire for revenge against Cuba.

The ruling comes at a time of stepped up calls in Miami from Cuban-American extremists for a blood bath on the island, while advocating political assassination and genocide to destroy the Cuban Revolution once and for all.

[end]

The August 9 court decision is available online: http://www.ca11.uscourts.gov/opinions/weekops.php [click on USA v. Ruben Campa]

The following is the concluding paragraph of the 11th Circuit Court of Appeals ruling:

Based on our thorough review of this case, we rely on the trial judge’s judgment in assessing juror credibility and impartiality. The trial judge, as a member of the community, can better evaluate whether there is a reasonable certainty that prejudice against the defendant will prevent him from obtaining a fair trial. The judge brings to the courtroom her own perception of the depth and extent of community prejudice and pretrial publicity that might influence a juror. Miami-Dade County is a widely diverse, multi-racial community of more than two million people. Nothing in the trial record suggests that twelve fair and impartial jurors could not be assembled by the trial judge to try the defendants impartially and fairly. The broad discretion the law reposes in the trial judge to make the complex calibrations necessary to determine whether an impartial jury can be drawn from a cross-section of the community to ensure a fair trial was not abused in this case. Although it is conceivable that, under a certain set of facts, a court might have to change venue to ensure a fair trial, the threshold for such a change is rightfully a high one. The defendants have not satisfied it. For the reasons given, we AFFIRM the district court’s denial of the defendants’ motions for change of venue and for new trial. Having decided these issues upon which we granted en banc review, we REMAND this case to the panel for consideration of the remaining issues.

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