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FIVE CUBAN POLITICAL PRISONERS IN THE U.S.: THE CASE FOR A FAIR TRIAL

Gerardo Hernández Nordelo, Ramón Labañino Salazar, Antonio Guerrero Rodríguez, Fernando González Llort, and René González (not related) are five young Cubans arrested in Florida in September 1998. They were tried and convicted of espionage and related charges in the one place they could not get a fair trial: Miami.

Their case is typical of the political trials the United States criticizes as contrary to respect for human rights when they occur in other countries.

Brief Synopsis of the Abuses of the Process Which Occurred in the Prosecution of Their Case (this list is not all-inclusive, but contains the most egregious abuses).

1. The investigation was constitutionally flawed. Agents of the FBI entered the residences of the Five without informing the occupants, and downloaded their computers pursuant to warrants issues by a secret court, the Foreign Intelligence Surveillance Court, which functions outside the parameters of the U.S. constitution and is highly controversial in the civil liberties community in the U.S.

2. The discovery process prior to trial and the handling of evidence during trial was constitutionally flawed. After seizing over 20,000 pages of documents (none classified) through the above process, all of which were documents of the defendants, the government classified each and every page “Top Secret” as if they were secret documents of the government, and then invoked the provisions of the Classified Information Procedures Act, which allowed the government to restrict access of the defense to their own documents and control the available evidence at trial.

3. Placing the trial venue in Miami, Florida violated the fundamental and constitutional  rights of the defendants to be tried in an atmosphere free of bias and prejudice against them. Miami is home to over 600,000 Cuban exiles who harbor a “state of war” mentality against the Cuban government. Even the U.S. government, in a pretrial motion in another case one year later, argued to the Court that it was “virtually impossible” for a fair trial to be held in Miami in a case that touched upon Cuban issues. Nonetheless, and despite overwhelming evidence, the court ordered the trial be held in Miami. The resulting verdict of the jury, guilty on all 26 counts, was fore-ordained.

4. The conduct of the prosecuting attorneys denied the defendants a fair trial. Through a pattern of objections which denied the defense the opportunity to present its evidence bearing on the need for Cuba to protect itself against a four-decade aggression against their country, the prosecutors succeeded in keeping from the jury evidence which bore upon a key defense of the accused. Moreover, in flagrant disregard of the evidence demonstrating that the Five came to the United States in order to infiltrate and monitor the activities of terrorist groups operating against their country, the prosecutor in his closing argument claimed, not once but three times, that their purpose in coming  was “to destroy the United States of America.”

5. The unprecedented nature of the major charges which brought life sentences. Three of the Five are serving life sentences and one is serving two life sentences. The life sentences resulted from their having been convicted of conspiracy charges, not substantive offenses. The prosecution did not have to prove that the crimes of espionage and murder had actually occurred. All it was required to prove to a Miami jury was the nebulous charge that these five Cuban men had “agreed” to commit such acts, and that the agreement itself was the crime. In this case the prosecution conceded at the outset that no classified documents of the U.S. government had been obtained or transmitted by the Five.

The conspiracy to commit murder charged against Gerardo Hernandez was based upon the shoot down of two aircraft by the Cuban Air Force which were about to enter,  or were in,  Cuban airspace. Never before had a criminal charge been based upon the act of a sovereign state defending its own territory. Mr. Hernandez was not involved in any way in  the shoot down. The government even conceded it could not prove the case against him, but the matter was submitted to the jury nonetheless, which promptly found him guilty.

6. Prison conditions.   Between arrest and trial  the five were held without bail for 33 months and also kept, for 17 months, in solitary confinement cells. They were completely cut off from their families and young children, and not even able to communicate with each other. Just as their cases were being readied for appeal in March of 2003 all Five were summarily cast into isolation punishment cells again “on orders from Washington” according to the local prison administrators who were perplexed by this directive since all had been behaving in an exemplary fashion.

7. Refusal to allow visits by the spouse and children of two of the Five. The Five have been in custody for over seven years. During that time Gerardo Hernandez’ wife, Adrianna, has not been granted a visa so she could visit her husband. Nor has Renee Gonzalez’ wife, Olga, as well as their young daughter, been permitted to visit Renee. In a letter to the U.S. State Department, Amnesty International has decried these acts as violations of international law. Moreover, they are violations of the most basic rights enshrined in the U.S. constitution which prohibits the government from taking any action which interferes with keeping a family intact, absent proof that family members would otherwise suffer..

On May 27, 2005,the UN Working Group on Arbitrary Detentions (Human Rights Commission) declared that the deprivation of liberty of Antonio Guerrero Rodriguez, Fernando González Llort, Gerardo Hernández Nordelo, Ramón Labañino Salazar and René González Sehweret is arbitrary and requested the Government of the United States to adopt the necessary steps to remedy this situation.

The Group adopted that decision following a request made by the families of the five Cubans after evaluating arguments put by both the families and the US government.

As is evident from the decision, the arguments on which the Working Group relied to arrive at that conclusion were:

- That “the trial did not take place in a climate of objectivity and impartiality which is required”and that“the Government [of the United States] has not denied that the climate of bias and prejudice against the accused in Miami persisted and helped to present the accused as guilty from the beginning.” “It was not contested by the Government [of the United States] that one year later it admitted that Miami was an unsuitable place for a trial where it proved almost impossible to select an impartial jury in a case linked with Cuba.”

- That “The Government [of the United States] has not contested the fact that defense lawyers had very limited access to evidence because of the classification of the case by the Government as one of national security”,  which "undermined the equal balance between the prosecution and the defense and negatively affected the ability [of the defense] to present counter evidence”.

- That the fact that the accused “were kept in solitary confinement for 17 months”determined thatcommunication with their attorneys, and access to evidence and thus, possibilities to an adequate defense were weakened”.

- That these “three elements, combined together, are of such gravity that they confer the deprivation of liberty of these five persons an arbitrary character.”

This declaration confirms the essential arguments put forth by the defense in an appeal filed with the Eleventh Circuit Court of Appeals in Atlanta in May of 2003.

On August 9, 2005, the three magistrates mandated by the 11th Circuit Court of Appeals to hear the case of the Five released their decision, unanimously ruling to reverse their convictions and order a new trial.

The Court of Appeals recognized the right of the Five to be tried fairly in a non coercive atmosphere and to have a fair trial as contemplated in the US Constitution and alleged that:

  • In this case the necessity of a new trial “was mandated by the perfect storm created when the surge of pervasive community [Miami] sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references.”
  • “The evidence submitted [in the Miami Court] in support of the motions for change of venue [presented by the Defense] was massive.”
  • “…empanelling such [impartial] jury in this community [Miami] was an unreasonable probability because of pervasive community prejudice” … “thus, a change of venue was required.”
  • The newly discovered evidence in which was based the November 2002 motion for a new trial “is of such a nature that a new trial would reasonably produce a new result.”

The Attorney General of the United States, Albert Gonzalez, took the unusual step of ordering the filing of an appeal to all 12 judges of the Eleventh Circuit, calling on them to review the August 9th decision of the 3 judge panel. The judges of the 11th Circuit agreed on October 31st  to review the decision of the panel.  That process is now ongoing.

 

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