Gloria La Riva, Miami
On March 10, lawyers for five Cuban citizens who have been in prison in the US since 2001 on frame-up charges of conspiracy to commit espionage presented oral arguments to a three-judge federal appeals court in Miami.
The five prisoners appealing their convictions are Fernando Gonzalez, Rene Gonzalez, Antonio Guerrero, Gerardo Hernandez and Ramon Labanino. Prior to their arrests in June 1998 they were living in Miami, monitoring counter-revolutionary Cuban groups, trying to stop the ultra-right terrorist groups in Miami from carrying out violent actions against the people of Cuba.
The Cuban people have been victims of terror attacks by the Miami-based gangs, many of whose members came from the wealthy class that left Cuba after the popular overthrow in 1959 of US-supported dictator Fulgencio Batista.
The written briefs for each of the five, filed in the [northern] spring of 2003, are extensive, with numerous points of appeal. The hearing's aim was to emphasise certain issues and answer judges' questions.
The five attorneys — Phil Horowitz, Joaquin Mendez, Paul McKenna, Bill Norris and Leonard Weinglass — sat together, accompanied by Richard Klugh, deputy chief of appeals for the federal public defender's office in Miami.
A series of news conferences around the March 10 date, a New York meeting of 400 people, and a full-page ad in the New York Times, published on March 3, raised interest in the case.
Klugh began the defence arguments by focusing first on the murder conspiracy conviction against Hernandez. He has been falsely linked by the US government to the February 24, 1996, shooting down by the Cuban government of two Brothers to the Rescue (BTTR) planes from Miami.
Cuba's shooting down of the planes was an act of self-defence against BTTR's numerous incursions in previous months.
Before the incident, Cuba had publicly warned it would take direct action to stop any more invasions of its territory. The US government was warned by its own officials of BTTR's provocative plans. BTTR continually invaded Cuban airspace. US authorities did nothing to stop it.
The prosecutor's claim at the trial of the five was that Cuba had planned ahead of time with Hernandez to have the planes shot down over international waters, not in Cuban territorial airspace. But Cuba has provided radar evidence showing the planes were indeed shot down over Cuban waters.
Count 3, the murder conspiracy charge against Hernandez for the deaths of the four pilots, came eight months after the arrest of the five in 1998, even though Hernandez had nothing remotely to do with the incident.
US prosecutors concocted a bizarre theory — that Hernandez plotted, while living in Miami, to have the BTTR planes shot down in international waters. Why? Because, the US said, he followed Cuba's instructions to tell the pilots not to fly. There was no evidence that he received such messages.
This background into Count 3 is important in order to understand the irrationality of the charge.
At trial, even the prosecutors didn't believe they could win a conviction on Count 3. They went so far as to go before an appeals court to ask for a loosening of the judge's instructions (an "emergency writ of prohibition") in order to gain a conviction. The prosecutors lost the appeal. Still, the Miami jury convicted.
Klugh emphasised the insufficiency of evidence to convict on Count 3: "The government's burden is heavy. It would have to show that a Cuban field agent knew the Cuban government had concocted a plan to commit extra-territorial murder... Cuba would for the first time in its history exceed its sovereignty and murder US citizens."
He said it was unreasonable to believe that Cuba would deliberately plan to shoot a plane down outside its sovereign territory.
Klugh pointed out that former US official Richard Nuccio acknowledged 25 warnings given to the head of BTTR, Jose Basulto, "an admitted terrorist wanted in Cuba".
On Count 2, conspiracy to commit espionage, Klugh raised the issue of insufficiency of evidence, and excessive sentencing in the three life sentences given to Guerrero and Hernandez and Labanino.
The mandatory life sentences came from the US government's claim that the men were engaged in conspiracy to commit espionage, causing "exceptionally grave damage" to the US.
"The US government rested its case on the fact that two of the agents were at military bases in Florida to count airplanes and determine whether there would be a build-up", said Klugh. He said that the government at trial conceded that no top-secret evidence was gathered or sent to Cuba.
Weinglass addressed the important issue of venue and the failure to move the trial from the heavily biased atmosphere of Miami.
Speaking to reporters later, McKenna, Hernandez's attorney, described the government prosecutor as "on the ropes".
News coverage was extensive in Miami and southern Florida.
It is impossible to predict the court's decision, which may come in a few months. But the Cuban Five's supporters believe the hearing was definitely a step forward and showed the strength of their cause and the lawyers' arguments, and the weakness of the US government's position.
[Abridged from Workers World, weekly paper of the US Workers World Party. Visit <http://www.workers.org>.]
From Green Left Weekly, March 24, 2004.
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