February 20, 2008 - No. 25
- Supplement
The Case of the Five: Where We Go from
Here
- Roberto Gonzalez Sehwerert* -
The easiest way to understand it would be to make a
chronological list of the most important events starting with the
appellate proceedings and adding some complementary comments.
When Did the Appellate Proceedings Begin?
The first step of the appellate proceedings was taken in
the month of December 2001. The Five had been sentenced by Federal
Judge Joan A.Lenard, who had presided over the trial at the South
Florida District Federal Court, in Miami city.
The Rules of Appeal provide that an appellate process to
overturn the conviction of a District federal judge requires filing a
Notice of Appeal with the same court where the trial was originally
held. Such notice should be filed within ten days following the date
when the sentence was passed; it does
not require arguing the reasons but simply stating the disagreement of
the convicted. Five years and seven months have passed since the
appellate proceedings started to overturn the sentences given to the
Five.
What Court Should Decide on This?
Consistent with the United States legal system, it is
the Circuit Court that should review the cases tried at the district
courts. In this case, given the geographical division of the juridical
system, it is the Atlanta Eleventh Circuit Court of Appeals that should
review
the cases tried at the South Florida District federal court since the
cases tried in the federal courts of the states of Georgia, Alabama and
Florida fall under its jurisdiction.
Once the corresponding documents were received by the
Atlanta Court of Appeals, a three-judge panel was instituted made up by
Mr.Stanley Francis Birch, Jr., a federal judge appointed in 1990 to the
Eleventh Circuit Court by President George Bush; Judge Phyllis A.
Kravitch, a federal judge appointed
in 1979 by former President Carter, who is also a judge at the Eleventh
Circuit Court; and Judge James L.Oakes, who was invited into this case,
although he works as a judge in the Second Circuit Court of Appeals. It
is common practice to invite experienced judges from other circuits to
join panels in the Eleventh,
and such is the case of Mr. Oakes.
These were the three appellate federal judges
commissioned with reviewing the alleged breaches of the law occurred
during the Miami court trial presided over by South Florida District
federal judge Joan A. Lenard.
Reasons for the Appeal
Once instituted the panel set forth the deadline for the
defense attorneys to submit their bills of complaint and for the
government to respond.
At that moment, the U.S. government orchestrated one of
its numerous maneuvers aimed at obstructing the defense of the Five.
Unjustifiably, and under the pretext of the illegal Iraq invasion, the
defendants, who had been sent to different and distant prisons, were
placed in solitary confinement cells.
The argument was the much touted national security issue, as if it were
possible from those prisons and after five years of detention to
cooperate with the Iraqi resistance.
Under a special provision related to national defense,
they were taken to punishment cells in solitary confinement, each one
in his penitentiary center, and told that this measure would stand for
a year that could be indefinitely extended in the following years. They
were prevented from communicating
with their respective lawyers, with their families and with Cuba's
diplomatic officials in the United States; this action was taken at the
same time that the lawyers were finalizing their statements and
exchanging views with the defendants. The immediate solidarity
displayed both inside and outside the United States
had an impact on this situation that lasted only a month.
Then the panel learned of the legal reasons for the
appeal based on the violations of the law by the government and the
court during the Miami trial. Each and every one of the arguments would
deserve an extensive analysis but to save space they shall be summed up
as follows:
1) Wrongful action on the part of the Judge for holding
the trial with a Jury selected from the Miami community in violation of
the Sixth Amendment of the Constitution of the United States of
America. Said amendment provides that every defendant has the right to
be tried by an impartial jury. Impartiality
is defined as the absence of prejudice among the potential jurors
towards the defendant with the additional element that the jury should
be spared any external influence. From the very beginning, the defense
lawyers requested a change of venue and the selection of the jury in a
nearby city other than Miami where
strong adverse opinions on Cuba issues prevail, the same as an
extremely inflammatory press against the Five, all of which could
adversely affect impartiality given its influence on the jurors.
Despite all the arguments, the Judge rejected the petition submitted by
the defense.
2) Prosecutorial misconduct by the government
representatives, that is, the Prosecution during the presentation of
the case to the jury basically aimed at inflaming with passion the
political sentiments of the jurors and rekindling the community
prejudices against the defendants. The Prosecution made
inconvenient comments while intentionally misrepresenting the facts and
evidence introduced during the trial. At the same time, it led the
jurors to believe it was their patriotic duty to condemn the defendants
regardless of the evidence and the rigor of the sentences imposed.
3) Insufficient evidence to declare defendant Gerardo
Hernandez Nordelo guilty of the crime of conspiracy to commit first
degree murder. This charge is related to the shooting down of two small
planes owned by the Brothers to the Rescue organization. These had
repeatedly violated Cuba's airspace from
1994 until February 1996 thus interfering with communications between
the air traffic control towers and the commercial flights entering and
leaving Cuba while these aircrafts were landing or taking off.
Additionally, during their low-flights on densely populated areas of
the Cuban capital, they dropped objects in
violation of the aviation rules. After the leader of said organization
had announced that they would repeat these illegal actions on February
24, 1996, the Cuban government issued a public statement warning of its
decision to put an end to such violations. At the same time, a
diplomatic note was presented by the Cuban
government to the United States government advising it on said
decision. However, the latter failed to comply with its duty to prevent
the three small planes taking off from its territory with well
identified illegal purposes. The Cuban government then exercised its
sovereignty over its territory and shot down the two
planes that trespassed into its borders. The plane commanded by Mr.
Jose Basulto was not shot down as it remained on the border of the
international and Cuban waters taking to the north immediately after
the shooting of the other two. Although it is true that monitoring the
actions of this terrorist group was among
Gerardo Hernandez's duties, it was proven with evidence that he had no
relation whatsoever with the Cuban government's decision nor did he
conspire with it to bring death on any person in international waters,
as the crime requires. In an emergency motion addressed to the Atlanta
Court and intended to modify
the judge's instructions to the jury on the elements of the crime, the
government representatives, according to the law and legal precedents,
admitted it when in their document they stated that "in light of the
evidence submitted an insurmountable obstacle arises which could lead
to the acquittal of the defendant."
As to this charge, we are also appealing the jurisdiction of this court
to try this event under the Foreign
Sovereign Immunities Act, which
prevents putting on trial in this country the actions of the government
of a sovereign state, such as the case of the two planes shot down by
the Cuban air force in a legitimate
act of sovereign defense of its airspace, as proved by the evidence.
4) Insufficient evidence to sentence defendants Gerardo
Hernandez, Ramon Labañino and Antonio Guerrero for the crime of
conspiracy to communicate to Cuba information related to the United
States' national defense. The witnesses' depositions introduced in the
trial by both the prosecution and the
defense attorneys agree that Cuba never requested them to seek
information on U.S. national defense. On the other hand, no action led
any of the defendants to a position where they could obtain such
information, and they were not found in possession of any information
thus classified. According to the testimony
of intelligence experts all of the information requested and obtained
was public
5) Information which fails to typify the crime of
conspiracy to commit espionage. The instructions issued by Judge Lenard
to the Jury
explain that to commit this crime the following elements should be
present:
a. The information involved
must be related to national defense.
b. To be considered national
defense information, this must be protected by the government with
special efforts to prevent its disclosure to the public.
c. That the defendant acted
with intent or with the notion that the information might hurt the
United States or give another nation an advantage over the United
States.
d. The government must prove
that the information involved was specially protected.
e. If the information has
been made public, or if it can be found in sources legally available to
the general public, it is not related to national defense.
f. When the sources of
information are legally available to the public and the United States
has not made efforts to protect such information, this is not related
to national defense.
Still, the jury found them guilty ignoring all the
evidence and the provisions of the law.
6) Illegal use in this case of special legislation
applicable to trials where national security information is involved.
Following a government request, the court approved at an early stage of
the proceedings, the application of the
Classified Information Procedures Act (CIPA) which placed all
the evidence
in the hands of the government while limiting the defense lawyers'
access to it during the preparation of the trial. Likewise, through a
protective order, it prevented the defense lawyers from exchanging
views on the evidence that each of them had access to under government
authorization. The attorneys for the defense
required permission from the government to be a part of the trial.
Ramon Labañino went eight months without a lawyer, since Eric
Cohen, the public defender assigned to his case by the court on
September 1998, failed to receive the government's permission to have
access to the evidence. Therefore, on May 20,
1999 he submitted in writing his resignation, which was accepted by the
court. Cohen left the case without ever having as much as seen a piece
of evidence linked to the process. A few months later, on November, the
government admitted that in the profuse documentation of the case not a
shred of evidence had
been found in possession of the accused that was linked in any way to
national security. The application of this procedure was but a
government maneuver to influence the court first and then the jury, in
the sense that this was a case related to espionage.
7) Undue denial by the court to instruct the jury --
despite a petition to the effect by the defense lawyers -- on the legal
doctrine of justification and necessity. This means that in due course
the defense lawyers intended to prove to the jury that the Five were in
the United States as a consequence of the
terrorist actions carried out against Cuba, and the deaths, injuries
and material damages caused by them, combined with the inaction on the
part of the U.S. authorities to put an end to such crimes as befits the
Neutrality Act --
a legal provision prohibiting the organization and
implementation of actions on another country on which war has not been
officially declared and the punishment of the
perpetrators. This doctrine provides that the defendant should present
evidence to the jury to prove the alleged justification or necessity of
his actions. From the beginning of the process, the Judge denied the
defense the possibility to present its
proofs and later failed to instruct the jury to analyze the case in the
light of this legal doctrine.
8) Wrongful application of the sentencing guidelines.
When the time came to pass sentence, the Judge ignored the federal
sentencing guidelines and imposed the maximum sentences even when she
was not entitled to do so. For example, in the case of the crime of
conspiracy to commit espionage she
sentenced to life imprisonment, which is the sentence corresponding to
someone who obtains information relative to national defense, passes it
unto a foreign government and brings serious damage on the United
States. The Judge imposed these disproportionate sentences despite the
fact that the evidence accepted
in court and the statements by the experts showed that no national
defense information was involved in this case.
9) The securing of evidence by the government prior to
the arrest, in violation of the law and through illegal searches in the
defendants' houses. The Judge denied the motions presented by the
defense to suppress such evidence.
10) During the selection of the jury, the government
applied a racial standard to allow it to leave out potential African
American jurors. The Judge denied the defense's motions to prevent
the government proceeding with this illegal practice known as Batson
Violation, in reference to a legal precedent
set in a previous trial.
The Panel's Decision
After holding an oral hearing on March 10, 2004, where
the parties involved responded the questions raised by the judges on
the main issues contained in the appeal, and reviewing the evidence and
documentation of the trial, the panel issued a ruling that was made
public on
August 9, 2005. With this decision they only responded to the first of
the issues raised by the defense, namely, the one related to the venue
of the trial.
They said that the strong prejudices of the Miami
community against Fidel Castro, the Cuban government and its agents,
the publicity surrounding the trial and other events in the community
(the case of Elian Gonzalez) combined gave rise to a situation that
made it impossible for the defendants to
be accorded a fair and impartial process. Therefore, they decided to
revoke the sentences and to return the case for a new trial.
It was the view of these judges that the trial was held
under what they defined as a 'perfect storm' made up by the community
prejudices against the defendants, the strong publicity before and
during the trial, and the manipulations by the government and some of
its witnesses who used inconvenient
expressions before the jury with a clear intent to rekindle such
prejudices. Additionally, they admitted that the defense lawyers had
presented enough proofs in their petitions for a change of venue, which
should have been granted by the judge.
They added that since they were revoking the sentences
and ordering a new trial, they needed not to respond to the other
issues raised in the appeal.
To sum up, of all the issues raised by the defense
lawyers of the Five, the three-judge panel made a decision only on that
related to the venue of the trial, whereas the main request of it
dealt with a constitutional violation.
An Exceptional Appeal
As pertaining to the Federal Rules on Criminal Procedure
in the United States, the revision of the decision by an appellate
panel is not favored, therefore, this should have been accepted by the
parties sending the files back to Miami in order to hold a new trial in
a venue
where hostility against the defendants was not present as in this city.
That is, the judges' mandate should have been respected.
However, despite all of this, the U.S. General
Attorney's Office addressed the Atlanta Court of Appeals full panel of
judges with a request for an exceptional new hearing that would
re-examine the panel's decision. The full panel consists of twelve
judges.
Exactly one year after the sentences were revoked, on
August 9, 2006, the full panel of judges of the Atlanta Court of
Appeals, by a majority decision of 10 to 2, declared the annulment of
the ruling by the three federal judge panel designed to examine the
appeal and decided that the proceedings be
returned to these for them to decide on the matters that remained
pending from August 9, 2005.
Despite the defendants' disagreement with the decision
it is not possible to discuss it now at the United States Supreme Court
since the rules of procedure provide that no case can be taken to it
while there are pending matters in the Circuit Court of Appeals.
Conclusion: The documents were all returned to Birch,
Kravitch and Oakes for them to decide on the pending matters contained
in the appeal, that is, everything contained in the original appeal but
the change of venue.
Consequences: New statements addressed to the panel by
the defense and the government representatives, each defending his
position and the indication of a new oral hearing for last August 20,
2007.
On the other hand, time has passed and Judge Oakes is
now retired; his appointed replacement is Judge William H. Prior, Jr.,
a working judge from the Atlanta Appellate Circuit.
What Happened on the 20th?
An oral hearing works in the interest of the judges
rather than that of the parties involved in the trial. Although the
defendants' legal representatives and the government tried to present
their basic points, the judges decided which aspects in each point they
wanted to
listen to in order to clarify their doubts and take position as judges
after reading and studying the arguments exposed by the counselors in
their respective papers.
In this framework, the judges decided that the
discussion that day would focus, first, on everything related to the
government's willful misconduct during the trial and later, on those
aspects related to the lack of evidence to substantiate the charges of
conspiracy to commit murder and espionage. Likewise,
they ordered the government to submit to the court, within fifteen
days, the documents previously sealed under the CIPA provisions which
the defense had no access to from the beginning of the proceedings.
Each party had thirty minutes to present their case.
It was a difficult endeavor for the speakers, as a
color-changing clock in front of them indicated the unrelenting passing
of time. It was green at the start, then yellow towards the end, and
finally red. The judges kept interrupting the lawyers with questions on
any of the legal aspects in the appeal or
the evidence in the case and their interpretation. On occasions it was
like a professor questioning a student, and a minute later it was a
reflexive comment ironically made as if in passing; at times they
played
the devil's advocates or showed a marked incisiveness towards either of
the parties, which cannot be taken
as an indication of their final decision.
There was, however, a significant detail which marked
this oral hearing. Over seventy international and American observers,
convened by the solidarity campaign with the Five, attended the hearing
to listen directly to the arguments of both parties. Representatives of
international lawyers associations,
Latin American lawmakers, experts from Europe and other geographical
areas, and leaders of solidarity organizations witnessed how the
assistant U.S. Attorney Mrs. Caroline Keck Miller failed to answer the
judges' questions concerning the lack of evidence to sustain the main
charges for which the Five were condemned.
The absence of evidence to justify the charge of conspiracy to commit
murder was clear to all those present. At the same time, there is
hardly any action in the whole process pointing to the defendants'
intention to obtain information related to the national defense of the
United States during their stay in that country.
At the end of the intellectual exercise there were still
no decisions. Now, we can only wait, and the federal law sets no limits
to the judges for the release of their ruling. Anyone could think that
too many years of degrading imprisonment have already passed and
justice has not been served. On the
other hand, two members of that panel -- Birch and Kravitch-- showed
with
their previous ruling that they are committed to law, for they revoked
the sentences upon realization of the constitutional violation
committed against the Five by holding the trial in Miami, and later
vigorously opposed, as a minority, the unfair
decision of the majority in the full panel.
We are torn between the ideas of resistance and hope
expressed by two of our brothers in their defense statements during the
hearing where they were informed of the harsh sentences we keep
appealing.
Rene has said: "...And as these three sordid years go
down in history, and a mountain of arguments, motions and
technicalities come to bury a story of blackmail, power abuse and the
most absolute contempt for such a highly praised justice system,
polished to a shine it never had, we will continue
to appeal to those values, and to the American people's vocation for
truth. And we will do so with all the patience, faith and courage that
we draw from the crime of dignity."
And Gerardo has said: "I trust that if not at this
level, then at some other level of the system, reason and justice will
prevail over political prejudices and the desire for revenge, and it
will be understood that we have done no harm to this country that
deserves such a punishment. But if this were not
the case, I would then take the liberty of quoting one of this nation's
greatest patriots, Nathan Hale, when he said: "My only regret is that I
have but one life to give for my country."
Again, and for the third time on August 20, 2007, the
forceful arguments of the defense were presented to the judges in the
Atlanta 11th Circuit Court of Appeals. We hope the values referred to
by Rene will prevail and this judges' panel will resolve, once and for
all, to put an end to the sacrifice of
Five useful men and their valuable lives.
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