Marjorie Cohn: The Perfect Storm

Here, 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.
- Eleventh Circuit US Court of Appeals, three-judge panel opinion reversing the convictions of the Cuban Five, August 9, 2005

Many of our leaders seem to view Florida's Cuban conservatives, including the assassins and terrorists among them, as People Who Vote.
- Alice Walker, introduction, The Sweet Abyss

Since September 11, 2001, George W. Bush has made "the war on terror" the centerpiece of his policy. He uses this mantra to justify his wars on Afghanistan and Iraq, his warrantless surveillance of American citizens, and his escalating threats against Iran.

But Bush defines "terrorist" selectively. When it comes to Cuba, the Bush administration harbors the terrorists and punishes the anti-terrorists. The 700,000 Cuban-Americans in Miami are "people who vote," as evidenced by their critical role in both the 2000 and 2004 US elections.

On June 8, 2001, five Cuban men known as the Cuban Five were convicted of criminal charges in US district court in Miami. Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González are serving four life sentences and 75 years collectively for crimes including conspiracy to commit espionage and conspiracy to commit murder.

In a 93-page decision, a three-judge panel of the 11th Circuit US Court of Appeals unanimously overturned their convictions on August 9, 2005, because the anti-Cuba atmosphere in Miami, extensive publicity, and misconduct by the prosecutor denied them the right to a fair trial.

Attorney General Alberto Gonzales appealed the panel's ruling. The case is now pending before the whole, or en banc, Court of Appeals. The court will decide whether the district court wrongly denied the defendants' motions to change venue and move the trial out of Miami because an impartial jury could not be selected there.

The three-judge panel said that its review of the evidence at trial was "more extensive than is typical for consideration of an appeal involving the denial of motion for change of venue ... because the trial evidence itself created safety concerns for the jury which implicate venue considerations."

For more than 40 years, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba and anyone who advocates the normalization of relations between the US and Cuba.

Terrorist groups including Alpha 66, Omega 7, Comandos F4, Cuban American National Foundation (CANF), Independent and Democratic Cuba (CID) and Brothers to the Rescue (BTTR), operate with impunity in the United States - with the knowledge and support of the FBI and CIA.

Ruben Dario Lopez-Castro, associated with a number of anti-Castro organizations, and Orlando Bosch, who planted a bomb on a Cubana airliner in 1976, killing all 73 persons aboard, "planned to ship weapons into Cuba for an assassination attempt on Castro," one witness testified at the trial.

The panel noted that "Bosch had a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-related activities in the United States and in other countries."

Neither Bosch nor Luis Posada Carriles, the other man responsible for downing the Cubana airliner, have been criminally prosecuted in the United States.

Percy Francisco Alvarado Godoy and Juan Francisco Fernandez Gomez described in depositions attempts between 1993 and 1997 by affiliates of CANF to recruit them to engage in violent activities against several Cuban targets. They both said they were asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction.

The panel found:

Alpha-66 ran a paramilitary camp training participants for an invasion of Cuba, had been involved in terrorist attacks on Cuban hotels in 1992, 1994, and 1995, had attempted to smuggle hand grenades into Cuba in March 1993, and had issued threats against Cuban tourists and installations in November 1993. Alpha-66 members were intercepted on their way to assassinate Castro in 1997. Brigade 2506 ran a youth paramilitary camp. BTTR flew into Cuban air space from 1994 to 1996 to drop messages and leaflets promoting the overthrow of Castro's government. CID was suspected of involvement with an assassination attempt against Castro. Comandos F4 was involved in an assassination attempt against Castro. Commandos L claimed responsibility for a terrorist attack in 1992 at a hotel in Havana. CANF planned to bomb a nightclub in Cuba. The Ex Club planned to bomb tourist hotels and a memorial. PUND planned to ship weapons for an assassination attempt on Castro.

Several terrorist acts in Havana were documented in the panel's decision, including explosions at eight hotels and the Cuban airport. An Italian tourist was killed, people were injured and all locations sustained property damage. Posada has twice publicly admitted responsibility for these bombings.

The panel characterized Posada as "a Cuban exile with a long history of violent acts against Cuba."

In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba. Former high-ranking US military and security officials testified that Cuba posed no military threat to the United States. Although none of the five men had any classified material in their possession or engaged in any acts to injure the United States, and there was no evidence linking any of them to Cuba's shooting down of two small aircraft flown by Cuban exiles, the Cuban Five were nonetheless convicted of all charges.

A survey conducted before trial showed that 69 percent of all respondents and 74 percent of Hispanic respondents were prejudiced against persons charged with engaging in the activities alleged in the indictment.

Legal psychologist Dr. Kendra Brennan characterized the results of a poll of Miami Cuban-Americans as reflecting "an attitude of a state of war ... against Cuba" which had a "substantial impact on the rest of the Miami-Dade community." She found that 49.7 percent of the local Cuban population strongly favored direct US military action to overthrow the Castro regime.

Dr. Lisandro Pérez, Director of the Cuban Research Institute, concluded that "the possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero ... even if the jury were composed entirely of non-Cubans, as it was in this case."

One prospective juror stated that he "would feel a little bit 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 [in Miami] feels, how they think the verdict should be."

A banker and senior vice president in charge of housing loans was "concern[ed] how ... public opinion might affect [his] ability to do his job" which could "affect his ability to generate loans."

David Buker stated 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." Buker became the foreperson of the jury.

During deliberations, "some of the jurors indicated that they felt pressured." They "expressed concern that they were filmed 'all the way to their cars and [that] their license plates had been filmed,'" according to the panel's opinion.

The change of venue motion occurred during the Elian Gonzalez matter. "It is uncontested," wrote the panel, "that the publicity concerning Elian Gonzalez continued during the trial, 'arousing and inflaming' passions within the Miami-Dade community." The panel noted "the various Cuban exile groups and their paramilitary camps that continue to operate within the Miami area." It concluded, "The perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable."

The panel found: "Despite the district court's numerous efforts to ensure an impartial jury in this case, we find that empaneling such a jury in this community was an unreasonable probability because of pervasive community prejudice."

Noted criminal defense attorney and long-time National Lawyers Guild member Leonard Weinglass represents Antonio Guerrero. Weinglass told me, "In seeking a review of the panel decision, the government has asked the en banc court to convert the finding of a 'perfect storm' of prejudice (reached unanimously after a 16-month scrupulous review of the record on venue) into a 'sunny day' of placid tolerance."

The US government's 47-year economic blockade of Cuba was mirrored by the US media's blockade of press coverage of the trial. In spite of the avalanche of coverage in Miami, it was hardly mentioned in the national media.

"It is inexplicable that the longest trial in the United States at the time it occurred, hearing scores of witnesses, including three retired generals and a retired admiral, as well as the President's Advisor on Cuban Affairs (all called by the defense) and a leading military expert from Cuba, all the while considering the dramatic and explosive 40-year history of US-Cuba relations, did not qualify for any media attention outside of Miami," Weinglass said.

The Cuban Five were placed in solitary confinement for 17 months, in tiny cells where they could barely stand, until the start of their trial. Two have been denied visits from their wives for the last seven years in violation of US laws and international norms.

Hopefully, the Court of Appeals will agree with its three-judge panel that the poisonous atmosphere surrounding the trial of the Cuban Five in Miami warrants a new trial.

Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists.

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