Marjorie Cohn: The Perfect Storm

27 April 2006

The Perfect Storm By Marjorie Cohn t r u t h o u t | Perspective From: http://www.truthout.org/docs_2006/042606J.shtml Tuesday April 25 2006

Here, a new trial wasmandated by the perfect storm created when the surge ofpervasive community sentiment, and extensive publicity bothbefore and during the trial, merged with the improperprosecutorial references. - Eleventh Circuit US Courtof Appeals, three-judge panel opinion reversing theconvictions of the Cuban Five, August 9, 2005

Many ofour leaders seem to view Florida's Cuban conservatives,including the assassins and terrorists among them, as PeopleWho Vote. - Alice Walker, introduction, The SweetAbyss

Since September 11, 2001, GeorgeW. Bush has made "the war on terror" the centerpiece of hispolicy. He uses this mantra to justify his wars onAfghanistan and Iraq, his warrantless surveillance ofAmerican citizens, and his escalating threats againstIran.

But Bush defines "terrorist" selectively. Whenit comes to Cuba, the Bush administration harbors theterrorists and punishes the anti-terrorists. The 700,000Cuban-Americans in Miami are "people who vote," as evidencedby their critical role in both the 2000 and 2004 USelections.

On June 8, 2001, five Cuban men known asthe Cuban Five were convicted of criminal charges in USdistrict court in Miami. Gerardo Hernández, Ramón Labañino,Antonio Guerrero, Fernando González and René González areserving four life sentences and 75 years collectively forcrimes including conspiracy to commit espionage andconspiracy to commit murder.

In a 93-page decision, athree-judge panel of the 11th Circuit US Court of Appealsunanimously overturned their convictions on August 9, 2005,because the anti-Cuba atmosphere in Miami, extensivepublicity, and misconduct by the prosecutor denied them theright to a fair trial.

Attorney General AlbertoGonzales appealed the panel's ruling. The case is nowpending before the whole, or en banc, Court of Appeals. Thecourt will decide whether the district court wrongly deniedthe defendants' motions to change venue and move the trialout of Miami because an impartial jury could not be selectedthere.

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

For more than 40 years,anti-Cuba terrorist organizations based in Miami haveengaged in countless terrorist activities against Cuba andanyone who advocates the normalization of relations betweenthe US and Cuba.

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

Ruben Dario Lopez-Castro, associated with anumber of anti-Castro organizations, and Orlando Bosch, whoplanted a bomb on a Cubana airliner in 1976, killing all 73persons aboard, "planned to ship weapons into Cuba for anassassination attempt on Castro," one witness testified atthe trial.

The panel noted that "Bosch had a longhistory of terrorist acts against Cuba, and prosecutions andconvictions for terrorist-related activities in the UnitedStates and in other countries."

Neither Bosch nor LuisPosada Carriles, the other man responsible for downing theCubana airliner, have been criminally prosecuted in theUnited States.

Percy Francisco Alvarado Godoy and JuanFrancisco Fernandez Gomez described in depositions attemptsbetween 1993 and 1997 by affiliates of CANF to recruit themto engage in violent activities against several Cubantargets. They both said they were asked to place a bomb atthe Caberet Tropicana, a popular Havana nightclub andtourist attraction.

The panelfound:

Alpha-66 ran a paramilitarycamp training participants for an invasion of Cuba, had beeninvolved in terrorist attacks on Cuban hotels in 1992, 1994,and 1995, had attempted to smuggle hand grenades into Cubain March 1993, and had issued threats against Cuban touristsand installations in November 1993. Alpha-66 members wereintercepted on their way to assassinate Castro in 1997.Brigade 2506 ran a youth paramilitary camp. BTTR flew intoCuban air space from 1994 to 1996 to drop messages andleaflets promoting the overthrow of Castro's government. CIDwas suspected of involvement with an assassination attemptagainst Castro. Comandos F4 was involved in an assassinationattempt against Castro. Commandos L claimed responsibilityfor a terrorist attack in 1992 at a hotel in Havana. CANFplanned to bomb a nightclub in Cuba. The Ex Club planned tobomb tourist hotels and a memorial. PUND planned to shipweapons for an assassination attempt onCastro.

Several terrorist actsin Havana were documented in the panel's decision, includingexplosions at eight hotels and the Cuban airport. An Italiantourist was killed, people were injured and all locationssustained property damage. Posada has twice publiclyadmitted responsibility for these bombings.

The panelcharacterized Posada as "a Cuban exile with a long historyof violent acts against Cuba."

In the face of thisterrorism, the Cuban Five were gathering intelligence inMiami in order to prevent future terrorist acts againstCuba. Former high-ranking US military and security officialstestified that Cuba posed no military threat to the UnitedStates. Although none of the five men had any classifiedmaterial in their possession or engaged in any acts toinjure the United States, and there was no evidence linkingany of them to Cuba's shooting down of two small aircraftflown by Cuban exiles, the Cuban Five were nonethelessconvicted of all charges.

A survey conducted beforetrial showed that 69 percent of all respondents and 74percent of Hispanic respondents were prejudiced againstpersons charged with engaging in the activities alleged inthe indictment.

Legal psychologist Dr. Kendra Brennancharacterized the results of a poll of Miami Cuban-Americansas reflecting "an attitude of a state of war ... againstCuba" which had a "substantial impact on the rest of theMiami-Dade community." She found that 49.7 percent of thelocal Cuban population strongly favored direct US militaryaction to overthrow the Castro regime.

Dr. LisandroPérez, Director of the Cuban Research Institute, concludedthat "the possibility of selecting twelve citizens ofMiami-Dade County who can be impartial in a case involvingacknowledged agents of the Cuban government is virtuallyzero ... even if the jury were composed entirely ofnon-Cubans, as it was in this case."

One prospectivejuror stated that he "would feel a little bit intimidatedand maybe a little fearful for my own safety if I didn'tcome back with a verdict that was in agreement with what theCuban community [in Miami] feels, how they think the verdictshould be."

A banker and senior vice president incharge of housing loans was "concern[ed] how ... publicopinion might affect [his] ability to do his job" whichcould "affect his ability to generate loans."

DavidBuker stated he believed that "Castro is a communistdictator and I am opposed to communism so I would like tosee him gone and a democracy established in Cuba." Bukerbecame the foreperson of the jury.

Duringdeliberations, "some of the jurors indicated that they feltpressured." They "expressed concern that they were filmed'all the way to their cars and [that] their license plateshad been filmed,'" according to the panel's opinion.

The change of venue motion occurred during the ElianGonzalez matter. "It is uncontested," wrote the panel, "thatthe publicity concerning Elian Gonzalez continued during thetrial, 'arousing and inflaming' passions within theMiami-Dade community." The panel noted "the various Cubanexile groups and their paramilitary camps that continue tooperate within the Miami area." It concluded, "Theperception that these groups could harm jurors that rendereda verdict unfavorable to their views was palpable."

The panel found: "Despite the district court's numerousefforts to ensure an impartial jury in this case, we findthat empaneling such a jury in this community was anunreasonable probability because of pervasive communityprejudice."

Noted criminal defense attorney andlong-time National Lawyers Guild member Leonard Weinglassrepresents Antonio Guerrero. Weinglass told me, "In seekinga review of the panel decision, the government has asked theen banc court to convert the finding of a 'perfect storm' ofprejudice (reached unanimously after a 16-month scrupulousreview of the record on venue) into a 'sunny day' of placidtolerance."

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

"It is inexplicable that the longest trial inthe United States at the time it occurred, hearing scores ofwitnesses, including three retired generals and a retiredadmiral, as well as the President's Advisor on Cuban Affairs(all called by the defense) and a leading military expertfrom Cuba, all the while considering the dramatic andexplosive 40-year history of US-Cuba relations, did notqualify for any media attention outside of Miami," Weinglasssaid.

The Cuban Five were placed in solitaryconfinement for 17 months, in tiny cells where they couldbarely stand, until the start of their trial. Two have beendenied visits from their wives for the last seven years inviolation of US laws and international norms.

Hopefully, the Court of Appeals will agree with itsthree-judge panel that the poisonous atmosphere surroundingthe 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, isa professor at Thomas Jefferson School of Law, executivevice president of the National Lawyers Guild, and the USrepresentative to the executive committee of the AmericanAssociation ofJurists.

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