infor5 – 2012-07-05 : from René G.

Liebe Compañer@s,
hier sind noch Argumentationshilfen,  für die heutige E-Mail oder das Fax an das Weiße Haus, die Paul Evrard uns zukommen ließ

 

(wahrscheinlich ursprüngl. von René persönlich).

Allerdings überschreitet der gesamte Text die 2.000 dort zugelassenen Zeichen.
Wir haben das gerade wie folgt gekürzt.

Adresse: http://www.whitehouse.gov/contact/submit-questions-and-comments
Dear Mr. Obama,

Dear ladies and gentlemen,

 

As each 5th of month, we want to remind you of the unsolved case of the Cuban Five, please, see:

OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005

WORKING GROUP ON ARBITRARY DETENTIONS.

UNITED NATIONS HUMAN RIGHTS COMMISSION.

http://www.unhcr.org/refworld/category,REFERENCE,UNCHR,THEMREPORT,,45377af20,0.html

PAGES 60-65

 

5. The Working Group considered this case during its fortieth session and decided, in

accordance with paragraph 17 (c) of its revised methods of work, to request additional

information. It has received responses both from the Government and the source.

6. The Working Group believes that it is in a position to render an opinion on the facts and

circumstances of the cases, in the context of the allegations made and the response of the

Government thereto, as well as the observations by the source

 

8. It was reported that these five persons were arrested in September 1998 in Florida on

charges of spying for the Government of Cuba. They did not offer resistance at the time of their

arrest. It was also reported that they were denied the right to bail and were held for 17 months in

solitary confinement. During the 33 months they spent in preventive detention, they were unable

to communicate among themselves or with their families.

 

 

OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005

WORKING GROUP ON ARBITRARY DETENTIONS.

UNITED NATIONS HUMAN RIGHTS COMMISSION.

http://www.unhcr.org/refworld/category,REFERENCE,UNCHR,THEMREPORT,,45377af20,0.html

PAGES 60-65

Currently, another habeas corpus motion is filed at the District cour in Miami.

However, dear Mr. Obama, you could end their unjust suffering by only one strikeof your pen.

Please, do so.

 

Sincerely,

——– Original-Nachricht ——–

Betreff: infor5 – 2012-07-05 : from René G.
Datum: Thu, 5 Jul 2012 14:17:23 +0200
Von: paul evrard 
An: undisclosed-recipients:;
Para escoger y enviar algunos fragmenticos a la Casa Blanca, en la jornada 5 por los 5.
To choose and e-mail some fragments to the White House, on the 5 for the 5 day.
1
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
……………
5. The Working Group considered this case during its fortieth session and decided, in
accordance with paragraph 17 (c) of its revised methods of work, to request additional
information. It has received responses both from the Government and the source.
6. The Working Group believes that it is in a position to render an opinion on the facts and
circumstances of the cases, in the context of the allegations made and the response of the
Government thereto, as well as the observations by the source.
……………
8. It was reported that these five persons were arrested in September 1998 in Florida on
charges of spying for the Government of Cuba. They did not offer resistance at the time of their
arrest. It was also reported that they were denied the right to bail and were held for 17 months in
solitary confinement. During the 33 months they spent in preventive detention, they were unable
to communicate among themselves or with their families.
2
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
…………..
9. In June 2001, these five persons were tried in Miami Dade County. Lawyers for the
defendants requested that the trial be conducted in another city in Broward County, because they
considered that impartiality could not be guaranteed in Miami. It was reported that several
anti-Cuban Government right-wing organizations are based in that city and that many people
there have biased, prejudiced and strongly held feelings against the Government of Cuba.
According to the source, these organizations have created in the city such feeling against the
Government of Cuba that it is impossible for artists and athletes from Cuba to perform or
compete in Miami.
E/CN.4/2006/7/Add.1
page 62
10. The lawyers’ request was, however, rejected. The District Attorney opposed the
application for a change of venue and argued that Miami has a heterogeneous and
non-monolithic population in which the bias and prejudice which could exist in the community
could be diffused.
3
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
………..
11. According to the source, the trial was conducted in an emotionally charged atmosphere of
media and public intimidation and in an environment virulently opposed to the defendants.
Unknown individuals appeared in the courthouse with paramilitary-style uniforms. Outside the
courtroom, noisy demonstrations were organized by Cuban-American organizations. Relatives
of the four persons killed during the incident of 24 February 1996, in which two civilian aircraft
were shot down by the Cuban Air Force, gave press conferences on the courthouse steps while
jurors were arriving for hearings.
4
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
………….
18. In a very extensive submission in reply, the source denounces arbitrary acts committed in
the course of the trial. It reiterates that the defendants did not enjoy a fair trial, pointing out
primarily that they were denied access to a lawyer during the first two days following their arrest
and that they were under pressure to confess their guilt. Subsequently, they were kept in solitary
confinement during the 17 months preceding the trial.
19. The source alleges that because the case has been declared to fall under the Classified
Information Procedures Act (CIPA), all the documents constituting the evidence against the
accused persons were classified as secret. Thereby, the effective exercise of the right to defence
was impaired.
5
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
……..
20. The source adds that all the documents in the case file seized from the defendants were
declared classified, including cooking recipes and family and other papers. Such classification
under CIPA allegedly had a negative impact on the right to defence, as the defendants were
thereby limited in the choice of their lawyers to lawyers approved by the Government, and both
lawyers’ and defendants’ access to the evidence was limited.
21. It is alleged that before and during the trial, all the evidence in the case file was kept in a
room under the court’s control, and that the defence lawyers could access this room only after
going through a bureaucratic procedure. The defence lawyers were also prohibited from making
copies of the documents in evidence and from taking notes about them in order to analyse them.
Moreover, the defence lawyers were prevented from taking part in the establishment of the
criteria for the selection of evidence, as they were excluded from an ex parte conference between
the prosecution and the court in which such criteria were defined.
22. According to the source, during the defence preparatory stage the documents presented
as evidence by the Government side were identified with a specific code, which was changed in
an arbitrary manner a few days before the start of the trial, damaging the work of defence
counsel.
23. The source insisted that holding the trial in an inappropriate place affected the partiality
of the jury because the jury members were under considerable pressure from the Miami
American-Cuban community. The source added that only a year after the sentencing of the
accused, the same United States Government, in another case where it was itself accused, asked
for a change of venue, presenting the argument that Miami was an inappropriate place for a trial
because it was almost impossible to empanel an impartial jury for a trial concerning Cuba, given
the prevailing strong opinions and feelings over this issue.
E/CN.4/2006/7/Add.1
6
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
page 64……
24. In accordance with its methods of work, the Working Group decided at its
fortieth session to address the Government of the United States and the petitioners on
three questions that would facilitate the work of the Group:
(a) How was the Classified Information Proceeding Act (CIPA) applied in this case?
(b) Did the eventual application of the Act affect the case in terms of access to
evidence?
(c) If a case is classified as a national security case, what are the criteria for selecting
evidence?
The Working Group has received information from both the Government and the source on these
questions.
7
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
……..
25. The Government indicated that CIPA provides for an appellate review of decisions made
by the trial court (as in this case) and that CIPA as such is only a procedural statute that neither
adds to nor detracts from the substantive rights of the defendant and the discovery of evidence
obligations of the Government. Rather, it balances the rights of a criminal defendant with the
right of the Government to know in advance of a potential threat, from a criminal prosecution, to
its national security. The CIPA provisions are designed to prevent unnecessary or inadvertent
disclosures of classified information and to advise the Government of the national security risk
in going forward with proceedings.
26. The source replied that it had never contested the validity of the law, but rather its
incorrect enforcement. It states that after collecting over 20,000 pages of documents
(non-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 Government
documents. Then the Government invoked the provisions of CIPA, which allowed the
Government to restrict the access of the defence to the defence’s own documents and thereby
control the evidence available at trial.
8
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
…………
27. The Working Group must decide, in the light of what precedes, if in this trial there has
been an adherence to the international norms of a fair trial. The competence of the Working
Group, therefore, does not imply either any pronouncement concerning the guilt of the
individuals deprived of their liberty or the validity of the evidence, and even less replacing the
Appellate Court that is handling the case. To have full information about the case, the Working
Group would have preferred to see the judgement of the Appellate Court; however, since the
appeals have been delayed the Working Group cannot postpone any longer the opinion that it has
been asked to issue within the terms of its mandate.
9
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
…………
28. From the information received, the Working Group observes the following:
(a) Following their arrest, and notwithstanding the fact that the detainees had been
informed of their right to remain silent and have their defence provided by the Government, they
were kept in solitary confinement for 17 months, during which communication with their
attorneys and access to evidence and, thus, possibilities of an adequate defence were weakened;
E/CN.4/2006/7/Add.1
page 65
(b) As the case was classified as a matter of national security, access by the detainees
to the documents that contained evidence was impaired. The Government has not contested the
fact that defence lawyers had very limited access to evidence because of this classification,
which affected their ability to present counter-evidence. This particular application of the legal
provisions of CIPA, as the information available to the Working Group reveals, has also
undermined the equal balance between the prosecution and the defence;
(c) The jury for the trial was selected following an examination process in which the
defence attorneys had the opportunity, and availed themselves of the procedural tools, to reject
potential jurors, and ensured that no Cuban-Americans served on the jury. Nevertheless, the
Government has not denied that, even so, the climate of bias and prejudice against the accused in
Miami persisted and helped to portray the accused as guilty from the beginning. It was not
contested by the Government that one year later it admitted that Miami was an unsuitable place
for a trial as it proved almost impossible to select an impartial jury in a case linked with Cuba.
10
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
…………..
29. The Working Group notes that it arises from the facts and circumstances in which the
trial took place and from the nature of the charges and the harsh sentences handed down to the
accused that the trial did not take place in the climate of objectivity and impartiality that is
required in order to conform to the standards of a fair trial as defined in article 14 of the
International Covenant on Civil and Political Rights, to which the United States of America is
a party.
30. This imbalance, taking into account the severe sentences received by the persons under
consideration in this case, is incompatible with the standards contained in article 14 of the
International Covenant on Civil and Political Rights which guarantee that each person accused of
a crime has the right, in full equality, to all the facilities adequately to prepare his/her defence.
11
OPINION NO.19.2005 (UNITED STATES OF AMERICA). MAY 27, 2005
WORKING GROUP ON ARBITRARY DETENTIONS.
UNITED NATIONS HUMAN RIGHTS COMMISSION.
PAGES 60-65
………
31. The Working Group concludes that the three elements enunciated above, combined
together, are of such gravity that they confer an arbitrary character on the deprivation of liberty
of these five persons.
32. In light of the preceding, the Working Group issues the following opinion:
The deprivation of liberty of Mr. Antonio Herreros Rodríguez, Mr. Fernando
González Llort, Mr. Gerardo Hernández Nordelo, Mr. Ramón Labaniño Salazar and
Mr. René González Schweret is arbitrary, being in contravention of article 14 of the
International Covenant on Civil and Political Rights and corresponds to category III of
the categories applicable to the examination of the cases submitted to the Working
Group.
33. Having issued this opinion, the Working Group requests the Government to adopt the
necessary steps to remedy the situation, in conformity with the principles stated in the
International Covenant on Civil and Political Rights.
Adopted on 27 May 2005
1
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Background and history of the case

This report describes Amnesty International’s concerns about the fairness of the trial of five men imprisoned in the USA since 1998 on charges related to their activities as intelligence agents for the Cuban government. The men, known as the Cuban Five, are Cuban nationals Fernando González (aka Ruben Campa), Gerardo Hernández and Ramón Labañino (aka Luis Medina), and US nationals Antonio Guerrero and René González. All are serving long prison sentences in US federal prisons.
The five are reported to have been among a group of intelligence agents known as the Wasp Network (La Red Avispa), headed by Cuba’s Directorate of Intelligence, which infiltrated Cuban-American groups in Florida who support regime change in Cuba. They were arrested in September 1998 and charged with conspiring to act as unregistered agents of the Republic of Cuba, and related offences. At their trial, the US government alleged that, as well as monitoring anti-Castro groups, the Wasp network reported to Cuba about the operation of US military facilities, including the Key West Naval Air Station in Florida, where one of the five was employed as a labourer. Two of the five were alleged to have supervised attempts by other agents to penetrate the Miami facility of Southern Command, which oversees operations of US military forces in Latin America and the Caribbean.1
2
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Background and history of the case

This report describes Amnesty International’s concerns about the fairness of the trial of five men imprisoned in the USA since 1998 on charges related to their activities as intelligence agents for the Cuban government. The men, known as the Cuban Five, are Cuban nationals Fernando González (aka Ruben Campa), Gerardo Hernández and Ramón Labañino (aka Luis Medina), and US nationals Antonio Guerrero and René González. All are serving long prison sentences in US federal prisons……..
…… After a lengthy pre-trial detention, and a jury trial before the federal district court in Miami, Florida, lasting nearly seven months, the five were convicted in June 2001 on a combined total of 26 counts. These included acting and conspiring to act as unregistered agents of a foreign government; fraud and misuse of identity documents; and, in the case of three of the accused, conspiracy to gather and transmit national defence information. The men were sentenced in December 2001 to prison terms ranging from 15 years to life.
As well as being sentenced to life imprisonment for conspiracy to gather and transmit national defence information, Gerardo Hernández received a second life prison sentence for conspiracy to murder. This was based on his alleged role in the shooting down by Cuba of two planes operated by the US anti-Castro organization “Brothers to the Rescue” (BTTR), in 1996, in which four people died.
3
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Background and history of the case

This report describes Amnesty International’s concerns about the fairness of the trial of five men imprisoned in the USA since 1998 on charges related to their activities as intelligence agents for the Cuban government. The men, known as the Cuban Five, are Cuban nationals Fernando González (aka Ruben Campa), Gerardo Hernández and Ramón Labañino (aka Luis Medina), and US nationals Antonio Guerrero and René González. All are serving long prison sentences in US federal prisons……..
……….. The defendants have not denied acting as unregistered agents for the Cuban government. However, they have denied the most serious charges against them and contend that their role was to focus on Cuban exile groups responsible for hostile acts against Cuba, and visible signs of US military action towards Cuba, rather than to breach US national security.2No evidence was presented against them at trial to show that the accused had actually handled or transmitted a single classified document or piece of information, although the US government contended that this was their intention.
4
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Background and history of the case

This report describes Amnesty International’s concerns about the fairness of the trial of five men imprisoned in the USA since 1998 on charges related to their activities as intelligence agents for the Cuban government. The men, known as the Cuban Five, are Cuban nationals Fernando González (aka Ruben Campa), Gerardo Hernández and Ramón Labañino (aka Luis Medina), and US nationals Antonio Guerrero and René González. All are serving long prison sentences in US federal prisons……..
………. In August 2005, a three-judge panel of the US Court of Appeals for 11th Circuit unanimously overturned the convictions of the five on finding that pervasive community prejudice against the Castro government in the trial venire of Miami-Dade County merged with other factors to prejudice their right to a fair trial. The court ordered a new trial outside Miami. The decision was appealed by the US government and subsequently reversed in August 2006 by the full (en banc) Court of Appeal, by a 10-2 majority.
5
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Background and history of the case

This report describes Amnesty International’s concerns about the fairness of the trial of five men imprisoned in the USA since 1998 on charges related to their activities as intelligence agents for the Cuban government. The men, known as the Cuban Five, are Cuban nationals Fernando González (aka Ruben Campa), Gerardo Hernández and Ramón Labañino (aka Luis Medina), and US nationals Antonio Guerrero and René González. All are serving long prison sentences in US federal prisons……..
……… The June 2008 decision to uphold the convictions was not unanimous. One of the three judges, Judge Kravitz, dissented from the decision to uphold the conspiracy to murder conviction in the case of Gerardo Hernández on the ground that, in her view, the government had failed to prove beyond a reasonable doubt that he had entered into an agreement to shoot down the BTTR planes in international airspace and kill the occupants.
Judge Birch concurred with the court’s opinion on all matters before it, while admitting that the issue raised in the conspiracy to murder conviction “presents a very close case”. He also took the opportunity to reiterate his opinion (set out in his dissent to the en banc appeal court’s August 2006 decision on the trial venue) that “the motion for change of venue should have been granted”, stating that the defendants “were subjected to such a degree of harm based upon demonstrated pervasive community prejudice that their convictions should have been reversed”.5
6
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Background and history of the case

This report describes Amnesty International’s concerns about the fairness of the trial of five men imprisoned in the USA since 1998 on charges related to their activities as intelligence agents for the Cuban government. The men, known as the Cuban Five, are Cuban nationals Fernando González (aka Ruben Campa), Gerardo Hernández and Ramón Labañino (aka Luis Medina), and US nationals Antonio Guerrero and René González. All are serving long prison sentences in US federal prisons……..
In June 2009 the US Supreme Court denied a petition for leave to appeal against the convictions of the five without giving reasons.
………In June 2010, lawyers for the five filed a further motion in the district (trial) court, seeking habeas corpus relief on the basis of new issues. These include a claim of ineffective assistance of counsel in the case of Gerardo Hernández, and new evidence of alleged government misconduct in the case. The latter claim is based on newly discovered evidence that journalists who had written prejudicial articles in Miami against Cuba at the time of the trial were paid employees of the US government as part of their work for anti-Castro media outlets, Radio Marti and TV Marti. A hearing on these issues had not yet taken place at the time of writing.
7
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

The United Nations (UN) Working Group on Arbitrary Detention

In May 2005, the UN Working Group on Arbitrary Detention adopted an opinion on the case in which it concluded that US government had failed to guarantee the Cuban five a fair trial under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), a treaty the USA has ratified. While noting that the case was still pending before the US appeal courts, The Working Group stated that its findings were made on the basis of the facts and circumstances described, the responses received from the US government and further comments by the complaint’s source.6
8
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

The United Nations (UN) Working Group on Arbitrary Detention

The Working Group based its opinion on three factors, including the prejudicial impact of holding the trial in Miami. It also found that keeping the defendants in solitary confinement for part of their lengthy pre-trial detention, during which they allegedly had limited access to their attorneys and to evidence, and classifying all documents in the case as “secret”, weakened the possibilities of an adequate defence and “undermined the equal balance between the prosecution and the defense”. Taking into account the severe sentences imposed, the Working Group concluded that the factors cited above, “combined together, are of such gravity that they confer the deprivation of liberty of these five persons an arbitrary character”.7 It called on the government to adopt the necessary steps to remedy the situation.
The US government responded to the opinion by letter dated 6 September 2005, expressing its disappointment that the Working Group had issued its opinion while the matter was under active judicial review and pending appeal in the United States at that time. In reporting on the response in its annual report, the Working Group noted that the doctrine of exhaustion of domestic remedy did not apply as a criterion for the admissibility of its communications to governments when investigating cases of alleged arbitrary deprivation of liberty.8
9
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Summary of Amnesty International’s concerns

Amnesty International takes no position on whether the Cuban Five are guilty or innocent of the charges for which they have been convicted. However, having reviewed the case extensively over a number of years, the organization believes that there are serious doubts about the fairness and impartiality of their trial which have not been resolved on appeal.
Amnesty International’s concerns are based on a combination of factors. A central, underlying concern relates to the fairness of holding the trial in Miami, given the pervasive community hostility toward the Cuban government in the area and media and other events which took place before and during the trial. There is evidence to suggest that these factors made it impossible to ensure a wholly impartial jury, despite the efforts of the trial judge in this regard.9The right to a trial by a competent, independent and impartial tribunal is guaranteed under Article 10 of the Universal Declaration of Human Rights (UDHR) and Article 14 of the ICCPR, and is fundamental to the right to a fair trial. In order for such a right to be guaranteed, every trial must not only be fair but be seen to be fair.10 As described in more detail below, there is serious doubt that this principle was fulfilled in this case.
10
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Summary of Amnesty International’s concerns

Amnesty International takes no position on whether the Cuban Five are guilty or innocent of the charges for which they have been convicted. However, having reviewed the case extensively over a number of years, the organization believes that there are serious doubts about the fairness and impartiality of their trial which have not been resolved on appeal……
…… Amnesty International is concerned that the Supreme Court declined to hear the appeal on this and several other key issues in the case, despite the fact that judicial opinion in the lower courts has been deeply divided.
Amnesty International also shares the concern of the Working Group against Arbitrary Detention that the conditions under which the defence attorneys were allowed access to their clients, and to evidence, during pre-trial investigations may have undermined the fundamental principle of “equality of arms” and the right of every defendant to have adequate facilities for the preparation of their defence. Although these issues were not grounds of appeal, 11 it is one factor among others which raises concern about the overall fairness with which the defendants have been treated.
11
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Summary of Amnesty International’s concerns

Amnesty International is further concerned about the strength of the evidence on which Gerardo Hernández was convicted of conspiracy to murder: an issue which was a ground of appeal to the US Supreme Court and which the court declined to review. Although Amnesty International is not in a position to second-guess the facts on which the jury reached its verdict, it believes that there are questions as to whether the government discharged its burden of proof that Hernández planned a shoot-down of BTTR planes in international airspace, and thus within US jurisdiction, which was a necessary element of the charge against him. One essential guarantee of a fair trial is that a person charged with a criminal offence must be presumed innocent until the charge has been proved beyond a reasonable doubt. The UN Human Rights Committee (the ICCPR treaty monitoring body) has noted that, “Deviating from fundamental principles of fair trial, including the presumption of innocence, is prohibited at all times.”12
12
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Summary of Amnesty International’s concerns

Given these concerns, and the lengthy sentences imposed, should further legal appeals on these issues be exhausted or carry little prospect of relief, Amnesty International calls on the US government to review the case and to take appropriate action to remedy any injustice.
13
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Ban on visits with wives of two of the prisoners

For several years, Amnesty International has raised concern about the US government’s denial of visas to allow the Cuban wives of Gerardo Hernández and René Gonzáles to visit them in prison. Adriana Pérez has not seen her husband, Gerardo Hernández, since his arrest in 1998. Olga Salanueva, the wife of René González, has not seen her husband since the eve of his trial in November 2000……..
……… The US government has denied the visits on foreign policy and national security grounds, including, reportedly, on the alleged ground that the women were associated with the Wasp Network. Neither of the women has been charged with any crime in the USA and Olga Salanueva, who was a lawful permanent resident in the USA at the time of her husband’s arrest, continued to live legally in the USA for two and a half years during pre-trial proceedings against her husband. She alleges that he was offered a plea bargain in which she would have been allowed to remain in the USA if he pleaded guilty; he refused and she was deported in November 2000 and is now deemed permanently ineligible to enter the USA.
14
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Ban on visits with wives of two of the prisoners

For several years, Amnesty International has raised concern about the US government’s denial of visas to allow the Cuban wives of Gerardo Hernández and René Gonzáles to visit them in prison. Adriana Pérez has not seen her husband, Gerardo Hernández, since his arrest in 1998. Olga Salanueva, the wife of René González, has not seen her husband since the eve of his trial in November 2000……
…….. Both women have made repeated applications to the US government for temporary visas to allow them to visit their husbands, with undertakings to abide by any security conditions deemed necessary. Their applications have been turned down, with the US authorities at times giving different grounds for the refusal of visas, citing various sections of immigration, national security and border protection legislation. No detailed reasons have been provided to either of the women for the continued denial of visas. At one point, in 2002, Adriana Pérez was actually granted a visa but was detained for 11 hours at Houston airport, after which her visa was revoked and she was refused entry to the USA.
15
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Ban on visits with wives of two of the prisoners

Amnesty International has repeatedly expressed concern to the US government that the blanket, and apparently permanent, bar on the men receiving visits from their wives, without due consideration of any conditions that might make such visits possible, is unnecessarily punitive and contrary to standards for the humane treatment of prisoners and states’ obligation to protect family life. This is of special concern given the long prison sentences imposed, including the double life sentence in the case of Gerardo Hernández. Amnesty International continues to urge the government to grant the wives temporary visas on humanitarian grounds, under conditions that would meet security concerns. Visas have been granted for other relatives in Cuba to visit the five prisoners occasionally, although there have reportedly been delays or difficulties at times. According to court documents, all of the five men have exemplary behavioral records in prison.
16
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Concerns raised by other organizations

The petition for a Writ of Certiorari (leave to appeal) to the US Supreme Court was supported by amicus curiae briefs submitted on behalf of numerous organizations and individuals, including 10 Nobel prize winners, the bar associations of various countries and other legal bodies, including the International Association of Democratic Lawyers, the Ibero-American Federation of Ombudsmen, the International Federation of Human Rights and the National Jury Project offices of California, Minnesota, New Jersey and New York. Most of the amicus briefs focused their concerns on the right of criminal defendants to an impartial jury and the prejudicial impact of the trial venue in this regard. Several of the briefs made specific mention of the operation of anti-Castro groups in Miami in the decade before the trial and the numerous hostile actions and attacks on individuals and organizations seen as pro-Cuban, and to pressures experienced by members of the jury at certain points during the proceedings (see panel decision, below).
17
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Trial Venue

Miami is home to the largest Cuban exile population in the USA and there is no doubt that the trial took place in a venire where there was substantial, even uniquely extensive, community hostility to the Cuban government, then led by Fidel Castro. There were also strong local connections to the Brothers to the Rescue organization, the deaths of four of whose members formed a key part of the prosecution’s case.13 Both before, during and after the trial, the defendants sought to have the trial moved to Fort Lauderdale, less than 30 miles away, in motions which were denied by the district court.
18
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Motions for change of venue
The first motion for a change of venue, filed before trial in January 2000, introduced evidence from a poll showing bias in the venire, not only among Hispanic respondents but also the wider community, against anyone allegedly associated with the Cuban government. The motion also introduced evidence of the wealth of pre-trial publicity about the case as well as numerous articles documenting decades of general anti-Castro sentiment in Miami. The latter described a history of violence and threats by anti-Castro groups based in Miami against businesses and others perceived to be pro-Cuban, which, it was argued, along with general community sentiment, could put pressure on jurors and make them nervous about entering a not-guilty verdict. It also cited the impact on the community of the Elián González case, which had led to massive anti-Cuba protests in the months leading to the trial.14The US government responded that the Miami community was diverse and heterogeneous, and immune from the influences that would preclude a fair trial.15 The trial court dismissed the motions for change of venue, stating that it could explore any potential bias at voir dire 16examination and carefully instruct jurors during the trial
19
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Motions for change of venue
During the voir dire, the defence used their peremptory challenges to remove all Cuban Americans from the jury and the final jury was empanelled without objection. However, motions for a mistrial and change of venue were renewed twice during the trial, based on community events and further publicity about the case after the trial opened (see 11thcircuit panel decision, below). Although the motions were denied, the trial judge had to take action to protect the jurors from unwarranted media scrutiny on several occasions. During the voir dire and the main trial, jurors were filmed or approached by the media and some complained of feeling pressurized, causing the judge to modify their arrangements for leaving and entering the courthouse. During deliberations, jurors again complained about media intrusion, including being photographed walking to their cars and having their license plates filmed; further arrangements were made by the judge to protect their privacy by arranging private entrance to the court and transportation to their vehicles.
20
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Motions for change of venue
In August 2001, two months after their convictions, the defendants moved for a new trial and change of venue in the interests of justice, arguing that fears of presumed prejudice remained despite the district court’s efforts to empanel a neutral jury. It was asserted that the jury’s failure to ask a single question and its relatively speedy verdicts after only five days of deliberation following a lengthy, complex trial, also suggested that it was subject to pressure and prejudice. The district court again denied the motions, citing the measures it had taken to ensure a fair trial.1
21
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Motions for change of venue

In November 2002, the defendants filed a further motion for a new trial in the interests of justice, citing newly discovered evidence. The motion argued, among other things, that the government’s position opposing a change of venue was contradicted by the position it had subsequently taken in Ramirez v Ashcroft. This was an action brought against the US government by a Hispanic employee of the US immigration service, alleging that he had been subjected to retaliation and intimidation by colleagues due to the government’s removal of Elián González to Cuba. In court documents, the government stated that “it will be virtually impossible to ensure that the defendants will receive a fair trial if the trial is held in Miami-Dade County.”18It submitted that a move to the Fort Lauderdale division courthouse would be sufficient, noting that all the demonstrations which took place around the Elián González affair took place in Miami and that “as you move the case out of Miami Dade you have less likelihood there are going to be deep-seated … prejudices in the case”.19

22
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Motions for change of venue
In November 2002, the defendants filed a further motion for a new trial in the interests of justice, citing newly discovered evidence. The motion argued, among other things, that the government’s position opposing a change of venue was contradicted by the position it had subsequently taken in Ramirez v Ashcroft…….
………The motion also presented evidence from Human Rights Watch reports of harassment and intimidation of Miami Cuban exiles expressing moderate political views about Cuba, and information from two further independent surveys supporting the earlier poll finding of entrenched community bias against Cuba.20One study’s author 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.”21
The district court denied the motion, finding that the situation in Ramirezdiffered from the facts in the case of the Cuban five and was not new evidence; it declined to consider the exhibits in support of the original poll and other evidence of anti-Cuban bias in the venire because it found that this had not been filed on a timely basis.
23
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Appeals on trial venue issue and related concerns

The case was appealed to the 11thCircuit Court of Appeal, and in August 2005 a three-judge panel ruled unanimously that the defendants were denied a fair trial, based on the convergence of publicity before and during the trial, pervasive community prejudice and improper remarks by the prosecution in its closing arguments. The government appealed and, despite this being unusual in a case where a panel decision is unanimous, the full en banc appeals court decided to rehear the appeal.
In a 10-2 majority decision given in August 2006, the en banccourt reversed the panel’s decision, affirming the district court’s denial of the defendants’ motions for a change of venue and for a new trial.22The en banc majority held that the trial court’s efforts to empanel a neutral jury through an extensive voir dire and to protect jurors from media intrusion, as well as its instructions to the jury (including on the presumption of innocence), sufficiently addressed all claims of presumed prejudice.
However, the en banc court applied a narrower standard of review than the panel, largely disregarding events outside the courtroom and assessing for evidentiary value only publicity relating directly to the case against the five. It disregarded entirely the evidence of general anti-Castro sentiment in the Miami area, finding that the test of prejudice in this case was more thoroughly evaluated through the voir dire, and deferring to the trial judge’s judgment in assessing juror credibility and impartiality. The panel, in contrast, took into account the “totality of the circumstances” surrounding the case, including events both inside and outside the court-room. While acknowledging the trial judge’s efforts to ensure an impartial jury in the case, it found that empanelling such a jury in Miami was an “unreasonable probability”.
24
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Appeals on trial venue issue and related concerns

Amnesty International has reviewed the appeal court judgements and briefs of both parties. The organization believes that the wider issues considered by the 11th Circuit panel raise disturbing questions about the fairness of holding the trial in Miami which, in Amnesty International’s view, are not dispelled by the en banc ruling.
The panel took into account evidence of pre-trial publicity and general anti-Castro feeling among the wider community within the venire. It found the evidence submitted in support of the motions for change of venue on this ground to be “massive”.23It also noted that the voir direshowed the extent of potential bias among the venire-persons. Many of the potential jurors had personal contact with the BTTR victims and two had attended funerals of the victims; some were excused through clear bias and many because they expressed fear for their safety or standing in the community if they acquitted. Others said they held negative beliefs about Castro and the Cuban regime, but could set these aside; as the petition for certiorari to the US Supreme Court subsequently noted, three of the latter ended up on the jury, with one the foreman.
The panel decision also considered media events before and during the trial, including the impact of the publicity surrounding the Elián González case in the months preceding the trial; a press conference on the first day of the voir dire by BTTR victims’ families on the steps of the court-house; and “commemorative flights” and public ceremonies which took place during the trial itself, on 24 February 2001, to mark the fifth anniversary of the downing of the BTTR planes, along with media reporting of these events. Although the trial judge repeatedly admonished the jurors – who went home every night – not to read or watch the news or discuss the case, they were not completely insulated from events.24As noted above, some jurors complained about pressure as television cameras were focused on them at key stages during the proceedings, including at the start of deliberations.
The appeals panel then widened its consideration to look at whether the combined effect of the publicity with the prosecution’s closing arguments “operating together deprived the [defendants] of a fair trial”. The panel noted the many improper and misleading statements by the prosecution throughout the trial, and in particular during closing arguments, which could have influenced the jury and led them to fear that acquitting the defendants would harm the US and/or support Cuba. These included statements that the defendants were “bent on destroying the United States”; that the Cuban government had a “huge stake” in the outcome; unsubstantiated references to the defendants sponsoring book bombs; misquoting the defence counsel as stating that the downing of the BTTR plane was the “final solution”; and emphasizing that the defendants were arguing their case at the expense of the American taxpayer. Although the judge sustained most of the defence objections during the prosecution’s closing arguments – a factor the en banc court took into account in ruling that the defendants had failed to prove prejudicial effect – she did not issue specific instructions but reminded the jury only in general terms in her summing up that the statements by the attorneys were not evidence to be considered. The defence claimed that this was insufficient to undo any damage.25
The panel agreed and concluded that 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”.26
25
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Appeals on trial venue issue and related concerns

Amnesty International believes that the circumstances outlined above raise serious doubts whether the international standard requiring that a trial should not only be fair, but be seen to be fair, was met. Article 14(1) of the International Covenant on Civil and Political Rights, which the USA has ratified, states that, in the determination of any criminal charge against an individual “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. The Human Rights Committee has stressed that this is “an absolute right that is not subject to any exception”.27The Committee has noted that the requirement of impartiality has two aspects, that judges must not be influenced by bias or improperly promote the interests of one side over another and, secondly, “the tribunal must also appear to a reasonable observer to be impartial”.28
Amnesty International notes that the request by the defendants for a change of venue was a modest one: to move the trial to a location (Fort Lauderdale) only 24 miles away. The organization is not aware of any obstacles that would have prevented moving the trial, adding to concern that more could have been done to ensure a fair trial by an impartial jury.29 As the US government noted in its petition for a change of venue in Ramirez v Ashcroft(cited above), there was a significantly greater level of community prejudice surrounding the Elián González case, and the Castro government, in Miami than in Fort Lauderdale. This distinction would seem to be equally relevant in the case of the Cuban Five, given the nature of the charges against the defendants, with their direct links with the Castro government, and the Miami connection to the BTTR victims.
26
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Appeals on trial venue issue and related concerns

In reversing the panel’s decision, the en banccourt of appeals addressed the prosecution’s prejudicial statements only briefly, holding that they were of minor significance and were in any event neutralized by the judge’s instructions to disregard them. However, Amnesty International believes that this remains an issue of concern, given the general nature of the judge’s instructions in this regard and the potential effect on the jury of the other factors cited above. The potential for a jury to be swayed by inflammatory or prejudicial statements in a case involving alleged breaches of national security is arguably greater where, as in this case, no evidence was presented of any top secret information being collected or transmitted.
The petition for certiorari to the US Supreme Court asked the court to reconsider what it called the “exceptionally high barriers to change of venue” erected by the 11thCircuit en banc court of appeals in its August 2006 ruling. It noted that, while the 11thCircuit majority had applied a test requiring the defendants to demonstrate that a fair trial was “impossible”, four other circuits had applied the more lenient test of “reasonable likelihood” that the defendant could not receive a fair trial. The petition also drew attention to the dissenting opinion of Judge Birch to the en banc ruling, which stated that “This case presents a timely opportunity for the Supreme Court to clarify the right of an accused to an impartial jury in the high-tech age … and to clarify circuit law to conform with Supreme Court precedent”. 30
Amnesty International is concerned that the US Supreme Court chose not to consider this issue, in view of the fundamental importance of the fair trial principle involved.
27
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Equality of arms

As noted above, the UN Working Group on Arbitrary Detention found that the limitations placed on access of the defendants to their lawyers and to evidence during their pre-trial detention “undermined the equal balance between the prosecution and the defence” and thus the fundamental fair trial principle of “equality of arms”.
Following their arrest in September 1998 the defendants were denied access to their attorneys for the first two days in police custody. They were refused bail and spent 26 months in pre-trial detention, isolated from other pre-trial inmates in the Security Housing Unit (SHU) of the Federal Detention Centre in Miami. They spent the first five months in total solitary confinement in the SHU, after which four of them were held two to a single cell for 12 months. One of the defendants (Ramón Labañino) spent 17 months of his pre-trial detention in solitary confinement. The circumstances of their pre-trial detention meant that they had limited opportunity to consult with each other at least in the initial stages of detention and access to their attorneys was also restricted.
During pre-trial investigation, the prosecution seized as potential evidence thousands of documents from the defendants’ homes, including personal papers, and it stamped every document, regardless of its content, as “top secret”. The government invoked the provisions of the Classified Information Procedures Act (CIPA), which allowed it to restrict access of the defence to the documents.31All the documents were stored in a basement in the court-house and defence lawyers had to make appointments to see them, were not allowed to remove them and could take notes only.
28
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Further discussion of fair trial concerns

Equality of arms

As noted above, the UN Working Group on Arbitrary Detention found that the limitations placed on access of the defendants to their lawyers and to evidence during their pre-trial detention “undermined the equal balance between the prosecution and the defence” and thus the fundamental fair trial principle of “equality of arms”.
…….. A senior defence counsel in the case told Amnesty International that, although the government ultimately declassified all the materials they requested, and no classified information was introduced as evidence at trial, “no-one was confident they had everything they needed” and they had “trouble getting to see their clients and documents” during their pre-trial detention, which he believed impaired their ability to construct a defence. Article 14(3) of the ICCPR states that “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his choosing”. These minimum guarantees for a fair trial apply at every stage of the proceedings.
Amnesty International shares the concern of the UN Working Group that the circumstances described above undermined the principle of “equality of arms” and may have impacted upon the defendants’ ability to prepare their defence. Although not a ground of appeal before the US Supreme Court, these circumstances add to concern that the defendants’ right to a fair trial was not fully respected.
29
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Conspiracy to murder conviction in the case of Gerardo Hernández

Gerardo Hernández, was sentenced to two life prison terms, one for conspiracy to transmit national defence information and the second for conspiracy to murder. The conspiracy to murder charge arose from his alleged role in the shooting down by Cuba of two planes flown by members of the Brothers to the Rescue (BTTR) organization in February 1996. He was the only one of the five to be charged with this offence and was tried on this count along with the other charges against him.
BTTR was one of the Miami based anti-Castro organizations monitored and infiltrated by members of the Wasp network. It was initially set up to rescue “rafters” fleeing Cuba who faced difficulties in the high seas, and to transport them to the USA. Between 1994 and February 1996, BTTR planes also made repeated incursions into Cuban airspace where they dropped leaflets with messages quoting from the Universal Declaration of Human Rights (UDHR) and calling on Cubans to “fight for” their rights. According to the US prosecution in the case against the Cuban five, after a leafleting incursion over Havana in January 1996, the Cuban government set up a special mission to confront the BTTR. On 24 February 1996, three BTTR planes flew toward Cuba and two of the planes were shot down by Cuban fighter planes, killing the pilot and passenger in each plane.
30
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.
Conspiracy to murder conviction in the case of Gerardo Hernández
In June 2008, by a majority of two to one, the 11th Circuit appeals panel rejected Hernández’s argument that his conviction should be reversed because the government had failed to prove that he intended to commit murder within the jurisdiction of the USA, failed to prove that he knew the object of the conspiracy, and failed to prove that he had acted with malice aforethought. In his majority opinion, Judge Pryor wrote that, while the statute required proof of pre-meditated attempt to commit murder, no separate test of mens rea (intent) was required with regard to jurisdiction, a position which was strongly disputed as a matter of law by dissenting Judge Kravitz. 35
In his ruling, Judge Pryor held that, even assuming that specific proof of intent was required for both the shoot-down and where it occurred, there was “ample evidence” of this from the messages cited above.36 However, Judge Birch, in concurring with Judge Pryor’s majority opinion, wrote that it “presents a very close case”. Judge Kravitch entered a strong dissent, stating her view that “the Government failed to provide sufficient evidence that Hernández entered into an agreement to shoot down the planes at all”, noting the nonspecific nature of the messages the prosecution had entered as key evidence. She also agreed with the petitioners that any evidence that was presented pointed to a plan for the shoot-down to occur in Cuban rather than international airspace, referring to the repeated BTTR incursions into Cuban airspace, messages encouraging Cubans (including the pilots of Cuban fighter planes) to bring an end to the Castro regime, repeated verbal warnings by Cuba to the US government and Federal Aviation Authority (FAA) not to allow unauthorized planes to fly into its airspace, and the absence of any prior threats or attacks by Cuban fighter planes on BTTR planes during approximately 2000 earlier flights in international airspace.
31
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.
Conspiracy to murder conviction in the case of Gerardo Hernández
The 11th Circuit majority held that a reasonable jury could infer the necessary intent to commit an unlawful act under the statute from Hernández’s statement that the operation had ended successfully, as well as the commendation from Cuba post the event. The petition for certiorari to the US Supreme Court disputes that these two isolated statements satisfied the necessary burden of proof, noting that Cuba had maintained throughout that the shoot-down had occurred over its own airspace, and stating that “…to the extent that any relevant inference can be drawn from the evidence … it is that the planes were intended to be shot down in Cuban territory, not US jurisdiction”. It submitted that the jury’s inference was not reasonable in the face of all the evidence and that, in dismissing the appeal, the 11th Circuit majority had failed to heed the US Supreme Court’s admonition that courts must “scrutinize the record … with special care in a conspiracy case”.37
The petition for certiorari also noted that the district court had agreed with the petitioners that the charge of conspiracy to commit murder (which applies only to an “unlawful killing”), required the government to prove beyond a reasonable doubt that the conspirators planned to shoot down the planes in US jurisdiction. The government had submitted that such a requirement presented an “insurmountable hurdle” which would “likely result in the failure of the prosecution on this count”.38 Despite the fact that the prosecution was unable to present any direct evidence of such an agreement, the jury nonetheless convicted on this and all other counts. The petition for certiorari suggested that the verdict was further indication of the “fear and hostility that inevitably influenced the jury’s deliberations”.
32
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.
Conspiracy to murder conviction in the case of Gerardo Hernández
On the basis of the evidence presented, Amnesty International believes there are serious questions as to whether the government discharged its burden of proof beyond a reasonable doubt that Hernández planned for a shoot-down to occur, or for such a confrontation to take place in international, as opposed to Cuban, airspace which, in the latter case, would not have been a crime as charged under US law. 39 This raises a concern as to whether the presumption of innocence – an essential component of the right to a fair trial – was preserved in this case. The jury’s unanimous conviction on the charge, despite the lack of conclusive evidence, raises further questions about the prejudicial impact of the trial venue and other pressures cited above.
33
AMNESTY INTERNATIONAL:
ON THE CASE OF FIVE CUBANS IMPRISONED IN THE US FOR PROTECTING CUBA AGAINST TERRORISM
DOCUMENT – USA: THE CASE OF THE CUBAN FIVE.

Conclusion

Amnesty International recognizes that the case brought against the five Cuban men is a complex case in which the defendants were charged with serious crimes. They were afforded independent counsel and were tried before a jury in a US criminal court following rules of criminal procedure which do not on their face violate international fair trial norms, and with full rights of appeal. However, the organization believes that the concerns outlined above combine to raise serious doubts about the fairness of the proceedings leading to their conviction, in particular the prejudicial impact of publicity about the case on a jury in Miami. Amnesty International hopes that these concerns can still be given due consideration by the appropriate appeal channels. Should the legal appeals process not provide a timely remedy, and given the long prison terms imposed and length of time the prisoners have already served, Amnesty International is supporting calls for a review of the case by the US executive authorities through the clemency process or other appropriate means.
– INFOCUBA
+ Comité Internacional por la Libertad de los Cinco Cubanos

 

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