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An Analysis of the Case of the Cuban Five

UNITED STATES V. GERARDO HERNÁNDEZ NORDELO RAMÓN LABAÑINO SALAZAR ANTONIO GUERRERO RODRÍGUEZ FERNANDO GONZÁLEZ LLORT RENÉ GONZÁLEZ SEHWERERT

FIVE CUBAN POLITICAL PRISONERS: THE CASE FOR A FAIR TRIAL (now on appeal before the 11th Circuit Court, Atlanta)

Hostages to Miami politics In spite of all that, they were not only denied the right to bail, but also kept, for 17 months, in Gerardo Hernández Nordelo, Ramón Labañino solitary confinement cells used to punish prison- Salazar, Antonio Guerrero Rodríguez, Fernando ers guilty of assault and other violent behavior González Llort, and René González (not related) after being sentenced. They were completely cut are five young Cubans arrested in Florida in off from their families and young children, and not September 1998. They were tried and convicted of even able to communicate with each other. Even espionage conspiracy and related charges in the under these extreme conditions, however, the one place they could not get a fair trial: Miami. prosecution failed in its objective of making the Their case is typical of the political trials the arrested men so disoriented and desperate that United States criticizes as contrary to respect for one or more would falsely confess and implicate human rights when they occur in other countries. others in exchange for a promise of leniency. Unless overturned on appeal, it is also likely to be cited as precedent for denying a fair trial to other Rather, they went to trial with the truth as men and women tried in the United States. their defense, calling retired U.S. military officials and Miami-based leaders of plots to overthrow In what has become standard treatment for the government of Cuba to show that their only those whose political or religious beliefs or nation- offense was using false identities (with the excep- al origin are deemed suspicious by the United tion of Antonio Guerrero and René González who States, the five were held without bail for 33 were U.S. citizens and used their true identities) months between arrest and trial. The arrests were to enable them to help protect their country from all carried out without incident, and there was no violence perpetrated by US-based organizations suggestion that any had weapons, or had ever and to assess the likelihood of military attack by lived as anything other than peaceful members of the United States. the community. Two are US citizens, having been born in the United States to Cuban parents who Loyal Cubans, Yes; Spies, No fled the reign of corruption and terror of Cuban dictator Fulgencio Batista. All were well-regarded Espionage on behalf of Cuba and murder in the communities where they lived and worked. involving the shootdown of 2 aircraft over Cuban

1 waters, the most serious allegations, were not The five are now hostages to the irrational charged as crimes actually committed, but as hatred of the extraordinarily powerful enclave of conspiracies, together with other related lesser Cuban exiles who have made Miami the provi- offenses. As pointed out below, the use of "con- sional capital from which they work — with the spiracy" relieved the prosecution of the burden of support of federal, state and local government — proving that these offenses actually occurred. to overthrow the government of Cuba. This group has so dominated public opinion in Miami about Unique in the annals of American jurispru- anything even remotely related to Cuba that the dence was the charge of conspiracy to murder human rights organization Americas Watch pub- leveled against Gerardo Hernández. It became lished two reports titled “Dangerous Dialogue” the focal point of the trial and involved the (1992) and “Dangerous Dialogue Re v i s i t e d ” February 24, 1996 downing of 2 planes belonging (1994). Along with newspaper and other media to the Miami-based organization calling itself reports, they document the scores of assassina- “Brothers to the Rescue” by the Cuban Armed tions, and hundreds of bombings and arsons as Forces as they persisted in flying into Cuban air- well as threats and extortion used to control pub- space. The group was led by Miami-based Bay of lic opinion about Cuba in Miami. Pigs veteran, José Basulto. The Five were all in Miami at the time, and none was involved in mak- “An impossible place for justice” ing or executing the order to shoot down the planes after they ignored warnings not to proceed “When it comes to Cuba, Miami is an impossi- into Cuban airspace. ble place for justice,” Antonio Guerrero told the judge at his sentencing. By that time, the defense The Five were working with the Cuban had filed no less than five motions to move the Government to protect Cuba from invasion and trial to a more neutral site. It was obvious that terrorism organized, funded and launched from Miami was the last place in the world the five Miami and presented evidence to show the seri- Cubans could get a fair trial. Social science backs ous threat posed by Miami-based terrorism. They up Guerrero's observation. One of the nation's showed how they had infiltrated some of the foremost experts in the Cuban exile phenomenon, Miami-based organizations, and how US law Dr. Lisandro Pérez, wrote, “the possibility of enforcement had failed to act on evidence turned selecting twelve citizens of Miami-Dade County over by Cuban authorities before their arrest. who can be impartial in a case involving acknowl- They also presented evidence to show that the edged agents of the Cuban government is virtual- only military information to which they had access ly zero.” was publicly available. Furthermore, they pre- sented testimony from high-ranking former U.S. Weighing against the defendant's right to a military and intelligence officials to the effect that fair trial before impartial jurors was intense local Cuba poses no military threat to the United pressure for revenge for the shoot-down. When States, but is only interested in knowing what it the defense pointed out that under the prevailing needs to know in order to defend against the law, the hostile climate of opinion in Miami result- threat of attack, either by the United States or ed in such a probability of unfairness as to US-based mercenaries. “require … a change of venue to assure a fair and impartial trial,” the prosecution responded indig- The passionate climate that surrounds every nantly that the defense was unfairly comparing issue even remotely related to Cuba in Miami the cosmopolitan Miami to the small Texas town made any objective evaluation of the evidence involved in the case upon which the defense impossible. Despite the fact that it heard 74 wit- relied. (Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir. nesses (43 for the prosecution and 31 for the 1966). defense) over a period of nearly seven months, a Miami jury only deliberated for short periods of In fact, as the chief U.S. Attorney for the time during 4 days without even submitting a sin- District was later to acknowledge when he repre- gle note or query to the court to find all five sented a client facing a civil trial in Miami, the defendants guilty as charged in each of the 26 similarities were more significant than the differ- counts of the indictment. It asked not a single ences. With respect to the trial of these five question about the complex principles of law Cubans, Miami was not a diverse cosmopolitan involved, and did not make a single request to area in which no single group or ideology con- review any of the testimony. trolled public opinion, but one in which embittered

2 Cuban exiles wielded political and economic the prestigious Latin Grammys had to be trans- power and, when that did not work, resorted to ferred out of Miami twice after violence and terrorism, to control public opinion on any issue threats of violence caused it to be moved to i n volving Cuba. News reporter Jim Mullin of another venue. Miami-Dade County is the only Miami, in a long news article which was present- jurisdiction that passed an unconstitutional ordi- ed to the Court as an exhibit on venue, decried nance requiring all who sought funds for the arts the “lawless violence and intimidation (which) swear that they had no dealings with Cuba for the have been hallmarks of el exilio for more than 30 past ten years. And it is the only jurisdiction with years” and then detailed scores of bombings, a monument to those downed in the incident assaults, murder attempts and even assassina- inside the County government building, and tions in Miami and elsewhere (such as Letelier- streets and a plaza that bear their names. Moffit in D.C.) by anti-Cuban terrorists. These facts reflect the extraordinary power of In no other district would the defendants face an exile community that has managed to domi- prospective jurors at least 20% of whom were nate local politics in Miami-Dade in a manner men and women who had left Cuba because they unique in the immigrant experience. Within two disagreed with the government the defendants generations, it has elected three adamantly anti- were trying to protect. Among those reporting for Castro Cubans to the United States Congress. jury service was a director of the Cuban-American One, Ileana Ros-Lehtinen, was tipped off National Foundation, which provided funding for about the defendant's arrest as a matter of pro- Basulto’s flights into Cuban airspace, as well as fessional courtesy. Her husband is the former more obviously terroristic ventures. He was elim- United States Attorney; her campaign manager inated only because of what even the judge char- was Jeb Bush. Six of the Miami-Dade County acterized as his “bizarre behavior.” In no other Commissioners are Cuban, as is the Mayor, the jurisdiction would the defendants be forced to use State Attorney, the county police chief, the fire nine of their 15 preemptory challenges just to chief, the superintendent of schools, and the head eliminate Cuban exiles, or their children, from the of the public university and community college jury. In no other jurisdiction would they face at systems. least 16 prospective jurors who personally knew someone identified in the indictment as a victim, Cubans are not the largest minority in Miami, or a family member. One told how Basulto was but the largest single ethnic group, period. Unlike afforded official VIP status at the local airport. most immigrants, they represent not the poor and oppressed, but the most wealthy and privileged Only in Miami would these defendants be tried sector of their homeland. In Miami, their right- by a jury drawn from a community permeated by wing power-brokers ensure that only the candi- what Dr. Pérez termed an “exile ideology” which dates who adopt the most hard line with respect favors US military intervention to topple Cuba's to Cuba progress to represent the community at government and supports armed invasions by the polls and in other seats of power. They are e x i l e s — attitudes confirmed by independent also among the main employees and the major polling unrelated to the case. So well-known are financial contributors to both political parties and these positions — and the consequences of control most of the local media. diverging from them — that prospective jurors readily admitted they would be afraid of retalia- According to Dr. Lisandro Pérez, two events in tion “if I didn't come back with a verdict in agree- recent years served to galvanize this community ment with what the Cuban community feels, how and reinforce its peculiar “exile ideology” charac- they feel the verdict should be.” terized by a “state of war” mentality. One was the controversy which inspired Miami's mayor to Miami stands alone as the only city in the announce that he would not authorize local police United States where Cuban musicians cannot per- to help carry out a federal order to return a child form and Cuban artists cannot display their art — Elián González — to his father. The other was without meeting riotous protest, and organizers the incident at the heart of the charges against of academic conferences require special protec- the Five: the February 24, 1996 decision to shoot tion because Cuban academics will be attending. down the planes. Miami is the only city in the United States that would prefer to cancel international sporting It was against this backdrop that the trial pro- events to having Cuban athletes present. Even ceeded in Miami.

3 Lacking Proof of Criminal Conduct, the access to sensitive areas.” Prosecution Charged Conspiracy, Controlled Rather, what the prosecution had was proof the Evidence the Jury was Allowed to that one of the five, Antonio Guerrero, had Consider, and Committed a Gross Act of worked in a metal shop on the Boca Chica Navy Misconduct in Addressing the Jury. training base in Southern Florida for five years. The indictment contained 26 separate counts, The base was completely open to the public, and each charging from one to five defendants with even had a special viewing area set aside to allow specific offenses. Most were minor charges relat- people to take photographs of planes on the run- ing to the use of false identification. The most ways. While working there, Guerrero had never serious charges, however, alleging espionage and applied for a security clearance, had no access to murder, carried life sentences. The indictment did restricted areas, and had never tried to get into not actually charge the defendants with those any. Despite intense intimidation from the prose- crimes, but rather, conspiracy to commit them. cution, some fellow-workers testified that he was This relieved the prosecution of actually having to an ordinary, hard-working, out-going person who prove that any defendant had actually engaged in showed no particular interest in secure areas. espionage or committed murder, or even that Indeed, while the FBI had him under surveillance these offenses had actually occurred. Conspiracy, for two years before the arrests, there was no called the “darling of the prosecutor's nursery,” testimony from any of the agents about a single “makes the agreement or meeting of the minds” act of wrongdoing on his part. a criminal offense if either the purpose or the And, while the government had seized thou- means to be used are illegal. It also makes the sands of pages of documents from the Five at the prosecution's job easier, as it permits much evi- time of their arrest, missing was the hallmark of dence that would otherwise be banished as all espionage cases in the past: there was not a hearsay. single page of classified material. This was not to be the only advantage given A key witness for the prosecution was General the prosecution. By invoking the highly contro- James R. Clapper, Jr., a man with 32 years of versial and secret provisions of the Classified experience in the military working exclusively on Information Procedures Act the prosecution was intelligence matters and who rose to become the able to control the evidence the jury was allowed Director of the Defense Intelligence Agency to see by denying the defense access to materials before his retirement. He had reviewed all the the prosecution had gathered during it's investi- documents the government had seized and was gation, some of it being documents taken from asked on cross examination if he had “come the defendants upon their arrest. across any secret national defense information With their case failing and in disarray, the that was transmitted (to Cuba)?” His response, prosecutor, in his last argument to the jury, false- “Not that I recognized, no.” ly and prejudicially escalated the government's Far from providing damning evidence for the rhetoric against The Five by declaiming, no less than three times, that the defendants had come prosecution, the documents seized from the defendants were used by the defense because to America “in order to destroy the United States.” they made clear the non-criminal nature of Guerrero's activity at the base. He was to “dis- No Espionage cover and report in a timely manner the informa- tion or indications that denote the preparation of While the headlines repeatedly screeched a military aggression against Cuba” on the basis “Spies Among Us,” when the prosecution had to of “what he could see” by observing “open public explain its legal position, it backed away from any activities." DGE141(E). This included information burden to actually prove that “any co-conspirator visible to any member of the public: the comings actually committed espionage, or actually gath- and goings of aircraft. He was also cutting news ered any information, public or non-public.” At the articles out of the local paper which reported on time of the arrests, spokesmen for the FBI reas- the military units stationed there. sured the country that military information was “ n e v er compromised,” while the Pe n t a g o n Former high-ranking US military and security spokesman added “there are no indications that officials testified that Cuba presents no military they had access to classified information or threat to the United States, that there is no use- 4 ful military information to be obtained from Boca infiltrating groups such as Brothers to the Rescue Chica, and that Cuba's interest in obtaining the and was alerting Cuba of its plans, was responsi- kind of information presented at trial was “to find ble for murder. out whether indeed we are preparing to attack There were a number of problems with this them’ (Major General Edward Breed Atkeson (U.S. theory. In the first place, it is not a crime for Cuba Army, instructor at U.S. Defense Intelligence to shoot down aircraft flying over its own territo- College). rial waters or land. Thus, the trial judge ruled that The law on espionage in the United States is In order to convict Hernández of this charge, the clear: information that is generally available to prosecution would have to prove that long before the public cannot form the basis of an espionage the planes even took off, there was a specific plan prosecution. Once again, General Clapper, when or agreement to shoot down them down before asked, “Would you agree that open source intelli- they reached Cuban territory. Otherwise, the gence is not espionage?” replied, “That is cor- United States would have no jurisdiction and rect.” So lacking in convincing evidence of espi- prosecution could not prove an essential element onage was the prosecution's case that after all the of the charge: that the critical events were to take evidence had been presented, it was compelled to place not in Cuban territory, but in what United argue to the jury that they should convict merely States claims as its “special maritime or territori- if they believed there was an agreement to com- al jurisdiction.” mit espionage at some unspecified time in the The prosecution conceded that it had no evi- future. Nonetheless, after hearing the prosecu- dence whatsoever regarding any agreement tion's highly improper argument, repeated 3 about where intruding planes might be stopped. times, that the five Cubans were in this country It thus filed an extraordinary appeal to the Court “for the purpose of destroying the United States,” of Appeals for the 11th Circuit, complaining that, the jury, more swayed by passion than the law given the evidence presented at trial, the ruling and evidence, convicted. This finding is being created an “insurmountable obstacle” for convic- appealed to the 11th Circuit Court of Appeals. tion. The appeal was rejected, and the jury was No Murder instructed that it must find beyond a reasonable doubt that there was a specific agreement to In addition to espionage, the other serious shoot down the planes in international waters. It charge—conspiracy to commit premeditated mur- hardly noticed the “insurmountable obstacle,” and der — was leveled against Gerardo Hernandez. It convicted in record time. was based upon the February 24 incident. The facts presented at trial made it obvious that The Real Problem: Hernández was not responsible for the fate of the Terrorists with Impunity men in the planes, it was not the result of any premeditated murder, and there was no agree- The defendants admitted using assumed iden- ment that if the plane was downed, it should be tities (except for Antonio and Renee, as previous- in international, rather than Cuban waters. All ly noted) and failing to formally register as agents three are required for conviction. of a foreign government. They argued that the latter requirement did not apply to them, and that The evidence showed that on February 24, their lives as well as their work would be jeopard- 1996, in what was by then a familiar scenario, ized by using their own identities. In addition to Basulto and his cohorts took off from Florida in 3 Basulto and “Brothers to the Rescue” they were planes and, once airborne, veered off their flight watching some of the most dangerous of all the plans and headed straight for Cuba. After being exiles who had amply demonstrated their willing- warned by Cuban air control that they were enter- ness and ability to use murder and terrorism in ing a prohibited area, they were intercepted, and pursuit of their objectives. One was Orlando two were shot down by the Cuban Air Force. Bosch, responsible for the 1976 bombing of a Miami residents died. In a recording played at Cuban civilian airplane which killed 73 civilians, trial, Basulto, who piloted one of the planes, could including Cuba's entire Olympic fencing team. be heard laughing as the planes deliberately vio- Once deemed by INS an undesirable alien lated the order to turn back. He returned safely to because of terrorist history, he was granted resi- Miami. Prosecutors used the law of conspiracy to dent status by George Bush, Sr., and now moves argue that Hernández, who had played a role in freely about Miami. The Five were also watching

5 other paramilitary organizations such as the one throughout the trial was, as a Miami Herald edito- headed by Luis Posada Carriles, who mastermind- rial put it, “Terrorism shall not win.” Indeed, stop- ed the plot to assassinate Fidel Castro at a meet- ping terrorism was precisely the objective of the ing of heads of state in Venezuela, and those defendants. As Gerardo Hernández told Judge responsible for the 1997 Havana hotel bombing Lenard at his sentencing, quoting words he had that killed an Italian tourist and wounded others. written before the September 11 attacks: Just months before the arrest of the Five, on “Cuba has the right to defend itself from the June 17, 1998, the Cuban government had turned terrorist acts that are prepared in Florida with over to US law-enforcement officials a memoran- total impunity, despite the fact that they have dum summarizing evidence gathered on the been consistently denounced by the Cuban Miami-based 40-year campaign of murder, bomb- authorities. This is the same right that the United ings, arson and other attacks against Cuba. At a States has to try to neutralize the plans of terror- historic meeting in Havana, the Cubans implored ist Osama Bin Laden's organization, which has U.S. law-enforcement officials to act on that evi- caused so much damage to this country and dence in order to end the cycle of terror. threatens to continue doing so. I am certain that the sons and daughters of this country who are The evidence turned over to the FBI — docu- carrying out this mission are considered patriots, ments, photos, surveillance and other evidence — and their objective is not that of threatening the showed several extreme right-wing organizations national security of any of the countries where based in Miami were desperate about signals that these people are being sheltered.” support for the US embargo against Cuba was dwindling, and that Cuba was recovering from the Cuba did not provoke the February 24 inci- collapse of the Soviet bloc. They hoped to pro- dent. Rather, it tried to prevent it. Those respon- voke a crisis that could be used to mobilize hos- sible are those “who did not relent in their efforts tility and provoke an attack or invasion by the to provoke an armed conflict between the United United States military. Cuban officials asked the States and Cuba” so that the US military “can do FBI to end the impunity of these right-wing ter- for them what they themselves have not man- rorists before any more blood was shed. aged to do in forty years: overthrow the govern- ment of Cuba, regardless of the cost in human The FBI should have had plenty of evidence life.” already. Over the past 43 years, hundreds of ter- The defense placed evidence before the jury rorist acts have been launched against Cuba and about the history leading up to the decision to Cubans, most from Miami. The FBI and local shoot down the planes on February 24, 1996. It police are aware of these incidents, including subpoenaed Basulto to testify. A bitter opponent assassinations and bombings, but rarely make of the Cuban government (and ally of Jeb Bush), arrests. An April 2000 Miami Times article titled he was one of the founders of “Brothers to the “The Burden of a Violent History” documented the Rescue,” which purported to be a “humanitarian “lawless violence and intimidation" which have organization” created to rescue those who left “have been the hallmarks of el exilio for more Cuba and attempted to enter the United States by than 30 years.” It listed scores of incidents. sea in violation of both Cuban and U.S. laws. The Shoot the Messengers organization lost its reason for being, however, in 1995, when the U.S. and Cuba entered into an The FBI promised the Cuban authorities it agreement which effectively stopped the practice would act on the information provided at the of luring people to take to sea and head for H a vana meeting within weeks. Luis Po s a d a Florida on the promise of riches. With no one left Carriles, for one, was not worried. On July 12 and to “rescue,” Basulto steered the group toward 13, he boasted to the New York Times that “the more aggressive action, repeatedly flying into FBI and the CIA don't bother me, and I'm neutral Cuban airspace, dropping propaganda leaflets, with them. Whenever I can help them, I do.” medals and other objects over Havana, and oth- Rather than going after Posada Carriles, Bosch, erwise invading Cuban airspace, hara s s i n g , Basulto, or those who funded their terrorist activ- endangering and threatening tourists, govern- ities, the FBI arrested the source of the informa- ment agencies and Cuban civilians, all in violation tion: the five Cubans. of U.S. laws and F.A.A. regulations. The theme of the prosecution and the press René González, himself a pilot, had infiltrated 6 the organization to learn of its plans and warn the continual provocations, responsibility might be Cuban authorities. Among other things, he learned laid at the feet of an agency of the United States that the organization attempted to test bombs, government: acquire more sophisticated aircraft, and eve n “…this latest overflight can only be seen as fur- planed to use remote aircraft to crash into a pub- ther taunting of the Cuban Government. State is lic gathering in Cuba. Taken for a regular member increasingly concerned about Cuban reactions to of the group, he was also asked to smuggle drugs. these flagrant violations... worst case scenario, is He promptly reported the incident to the FBI. that one of these days the Cubans will shoot down The propaganda drops and other overflights one of these planes and the FAA better have all its were indispensable to the success of the group's ducks in a row.” more ambitious—and dangerous projects. Cuba The Cubans, from the very highest level of their repeatedly protested to the United States about military, warned their American counterparts that the overflights and violations of US laws. The the policy of restraint only seemed to encourage protests were largely ignored. In the 20 months the aviation outlaws. The Cubans could no longer just before February 24, 1996, there were at least abide the wholesale violations of their sovereignty 25 deliberate illegal flights into Cuban airspace. As and security, and spoke openly of taking defensive their frequency increased, the Cubans urgently measures against the overflights. sought American assistance in preventing an inci- dent that could make relations between the two U.S. Admiral Eugene Carroll, retired, testified nations even worse—one of the goals of Basulto. for the defense. Just three weeks before the February 24 incident, while attending a military As 1996 began, there were two more flights conference in Havana, he was taken aside by the over Cuba, one on January 9th and the other on chief of the Cuban Air Force and told “very point- the 13th, dropping over a half million leaflets call- edly” that the Cubans had the ability to shoot down ing on the Cuban people to revolt. The last flight these aircraft, referring specifically to recent over- was followed by an appearance by Basulto on TV flights and Basulto's televised boasting. Admiral Martí — a virulently anti-Castro program paid for Carroll immediately advised the State Department by US tax dollars funneled through the Cuban and Defense Intelligence Agency officials of the American National Foundation. He triumphantly warning. announced that the Castro regime “isn't invulnera- ble," and urged his "compatriots on the island … to According to another memo presented at trial, take personal risks … and to consider all the things one day before the fatal flight, on February 23rd, that can be done.” the State Department received word of “…an unau- thorized flight into Cuban air space tomorrow.” It When, pushed by right-wing Cubans and decried the fact that the FAA was powerless to pre- Florida politicians, the U.S. Congress passed the vent “flights such as this potential one” and pes- draconian “Helms-Burton” Act in response to the simistically, but prophetically, concluded, that in shoot-down, Basulto gloated at the success of his the face of repeated and increasingly frequent and efforts to make US-Cuba relations even more brazen overflights “… the government of Cuba strained — and to make living conditions in Cuba would be less likely to show restraint in an unau- even more difficult. thorized flight scenario this time around.” Still, nothing was done to stop Basulto. In addition to Basulto and a number of former military and intelligence officials, the defense also On February 24th 3 aircraft took off from subpoenaed Richard Nuncio, who testified that he Florida and headed toward Cuba. The FAA, not the “made Cuba policy on behalf of the President.” He defendant Hernandez, notified the authorities in testified that he was concerned when he received Cuba of their flight plan after it was filed. As they Cuba's protests about the incursions, but found he were approaching Cuban waters the planes were could do little to stop them. He recalled his alarm warned by Cuban flight control "We inform you as he watched Basulto's provocative announce- that the area North of Havana is activated. You are ment. He read to the jury a memo penned by an putting yourself in danger by flying below 24 assistant in the State Department which reflected North." Basulto, in the lead plane, the only one to not only a decision not to interfere with Basulto's survive the mission, laughed and continued ahead. clearly illegal activities, but also some concern that On the basis of this evidence, the jury convicted when the Cuban government finally responded to Gerardo Hernandez, who had no contact with the

7 Cuban Air Force or other authorities about the what the Court of Appeals called “a government decision to shoot down the plane, of conspiracy to dedicated to fairness and equal justice for all,” to commit premeditated murder. safeguard the rights of defendants. United States v. Wilson, 149 F.3d 1298, 1303 (1998). Taking one A New Trial: Necessary to Avoid position at one moment and its opposite at anoth- a Mockery of Justice er, depending on which position is most advanta- geous in the particular case, has been specifically The swift verdict was not the result of a careful condemned by that Court, which reviews all analysis of the facts presented at trial and dispas- appeals from Miami and thus that same United sionate application of the law. Rather, it was the States Attorney, is making “a mockery of the jus- virtually inevitable result of the refusal to move the tice system.” (Salomen Smith Barney v. Harvey, trial to a district less saturated with community 260 F.3d 1302, 1304 (2001). prejudice and passion about issues relating to Cuba. It was also the product of the prosecution's The discovery of the prosecution's about-face decision to pretend that justice could be done in has led attorneys for The Five to file a motion for this case in Miami. a new trial that fully documents the impossibility of holding a fair trial in Miami. Then, a year after the defendants' conviction, the same United States Attorney who had argued The Appeal that the five accused of conspiring to spy for the Cuban government could get a fair trial in Miami While the Motion for a New Trial is pending in did a complete about face. He took the extraordi- the trial court in Miami, the appeal to the United nary step of himself asking for a change of venue States Court of Appeals for the 11th Circuit is in a civil case, arguing that his client — the underway in Atlanta, Georgia. It will not be heard, Attorney General of the United States — could not however, until mid to late Spring. get a fair trial there. In a case charging the INS with employment discrimination against Latinos, The Defendants he cited many of the same factors the Cubans had Meanwhile the five defendants, cruelly separat- argued showed the kind of community prejudice ed by hundreds of miles, remain, for the most part, that made a fair trial impossible for them. In the in maximum security custody in some of the worst case of the Cubans, he ignored the possibility of prisons in the United States, with two even being community prejudice altogether, and insisted that denied visits from their spouses. they were not the victims of overwhelming pretri- al publicity. But when it came to his own client, he The Gathering Protest in Response pointed to events such as the furor over the deci- The Motion for a New Trial has been joined and sion to return Elián González as evidence of com- supported by some of the most prestigious associ- munity bias. The furor over Elián González peaked ations of lawyers and jury experts in the United just six months before the trial of The Five, and States and abroad. The National Jury Project, eighteen months before the U.S. Attorney cited it made up of the leading experts on the jury system as proof of bias in his employment case. in the United States, has filed a brief with the trial court urging a new trial. In addition, the National Not only did the prosecutor rely upon the same Lawyers Guild, representing nearly 5,000 attor- facts he had previously rejected as insignificant, neys in the United States, has also filed a formal but he also did a complete about-face with regard pleading with the court, arguing for a new trial in to the law as well. In the Cubans' case, he argued a fair venue. That pleading was joined in by the that because Miami was an “extremely heteroge- International Association of Democratic Lawyers, neous, diverse and politically non-monolithic met- with members in 90 countries and consultative ropolitan area,” the leading case relied upon by status at the United Nations. them was completely irrelevant. In his own brief, he cited it as the controlling law. Both in the United States and throughout Europe, Asia, Africa and South America groups of By assuming these two absolutely contradicto- concerned citizens are forming support networks in ry positions with regard to the possibility of getting an effort to overturn the injustice of the case and a fair trial in Miami in cases that would inevitably return the Five to their country and families. stir up the passions manifested in regard to the Elián case, the prosecutor ignored the responsibil- By Linda Backiel, Esq., Puerto Rico, ity of the public prosecutor as a representative of and Leonard Weinglass, Esq., New York, 2003 8