The Cuban Five: "Not a word of Top Secret in Four Years of Wire Taps"
The Case of the Five Cubans Accused of Conspiracy to Commit Espionage
This is a report on the oral arguments of the appeal put to the US Court of Appeal of the 11th Circuit by the defense team in the names of Antonio Guerrero, Fernando Hernández, René González, Gerardo Hernández and Ramón Labanino at the James Lawrence King Courthouse in Miami, Wednesday 10th March 2004
Court 12 at the James Lawrence King Justice Center in Miami was packed from early Wednesday morning, 10th of March, with legal people, solidarity observers, local and Cuban press, family members of the five Cuban political prisoners, members of the families of the pilots of the Brothers to the Rescue planes that were shot down by the Cuban government after making 25 incursions into Cuban airspace in the 20 months before the shoot-down, and several FBI agents. Ironically the court is named after the former Chief Judge who presided over the civil case which granted a $140, 0000 compensation claim to the families of Bothers to the Rescue pilots shot down over Cuban territorial waters in 1997 after numerous warnings over many months to stop making illegal incursions into Cuban sovereign territory.
The case of the five was the fourth case of the morning and the one that generated the most interest as observers scrambled for seats. Court 12 holds about 50 people and it works on a first come, first served basis. As the court clerk announced: "When we are full, we're full".
After a recess, the court rose at approximately 10.40 am and the three judges entered. The presiding judge, Mr. Justice Oakes took the center seat flanked by Justice Kravith on his right and Justice Birch on his left. The court clerk explained that the court uses a traffic light system to indicate the time limit. She emphasized that when the red light showed, the speaker must stop.
The presiding judge stated that all three judges had read the written briefs and signaled for the hearing to begin.
Joint Defense Agreement
In the presence of all the defense attorneys for the five Cubans, the Assistant Federal Public Defender, from the federal Public Defenders Office for the Southern District of Florida, Richard Klugh, started the proceedings.
The attorneys for the five Cubans have had a joint defense agreement between them since early in the case. In that capacity, even though the Public Defenders Office is technically assigned to represent Fernando González, Richard Klugh has an attorney/client relationship with all the defendants. The attorneys separated out issues relating to venue which Mr. Weinglass had worked on and Joaquin Mendez had also worked on during the trial, so they handled that issue. The time was divided between Richard Klugh who took 60% of the time leaving Leonard Weinglass and Joaquin Mendez with 40% to present the venue and new trial issues which also encompassed the prejudicial events at trial.
Richard Klugh represented everybody else on everything else that could advanced at the oral argument. The most important concept to argue was the issue of count three: conspiracy to commit murder which permeated the trial as well as the prejudice that eventually came to bear with the venue denial.
Count 3: Conspiracy to Commit Murder
Richard Klugh began the argument by listing some of the major issues in the case: the venue issue, the discovery issues relating to the Classified Information Procedures Act, (CIPA), which prevented the defense team from having legitimate access to the evidence used by the prosecution against their clients, issues relating to witness outburst, and prosecutorial over-zealousness and other significant sentencing issues.
Then he went straight into the issue of the sufficiency of the evidence with regard to Count 3, which is the murder conspiracy and explained that the government really was speculatively imputing to Hernández a belief that Cuba would intentionally exceed the limits of its sovereignty, which the record simply does not support. The court did not immediately have any questions for him so he proceeded to make the full argument on that and went over the history of the incursions made over Cuba by Brothers to the Rescue, Cuba's responses, the United States' responses, the United States' understanding of the limits of its sovereignty and the beginnings of Cuba's sovereignty and the fact that they expressed that to Brothers to the Rescue.
At a certain point it became clear that the court was not going to ask Richard Klugh any questions so the presiding judge suggested that he proceed to other issues.
Count 2: Conspiracy to Commit Espionage
The Assistant Federal Defender proceeded to count 2, first with regard to the sufficiency of the evidence and the conspiracy to commit, what is colloquially called, espionage, although espionage is to obtain and transmit national defense information, which the five Cubans were not doing. He pointed out that in four years of US government wire taps; there was not a single piece of top secret information. He went from there into the related sentencing issue which resulted in life sentences for Antonio Guerrero, Gerardo Hernández and Ramón Labanino, which is the determination at sentencing that not only was it espionage but the purpose of the espionage was the actual transmission of matters that would be reasonably likely to cause exceptionally great damage to the national security of the United States.
Mr. Klugh focused on that both in terms of the argument that because the government had conceded that they had not obtained anything, much less serious information that would be classified, that the guidelines should not apply in this case. The guidelines should only apply if actual harm occurred or was likely to occur as a result of the transmission of information and as no information was transmitted here, the guidelines should not apply.
The second component of his argument was that assuming if you read the guidelines to apply if no such transmission of information occurred realistically there is just no way you could look at what the Cubans were doing and what they were about was likely to cause exceptionally grave damage to the national security of the United States or really any damage of any kind to the national security of the United States.
He received a couple of questions on that, specifically with respect to the structure of the argument he was making, the sufficiency argument, the guideline argument and the guideline sufficiency argument so there were really three arguments to be made. Then with time running out, the judge gave an additional period of time to address the classified information procedures act (CIPA) issue. Mr. Klugh advised the court that because of the nature of the case, the government was trying to characterize the actions of the defendants in as negative and harmful a light as possible and that it was critical for the defense team to have all the relevant information on what they had obtained, what they thought they had obtained or what Cuba was interested in, what messages Cuba gave them, what directions Cuba gave them and any other information relevant to the case to really get the full picture of the case at the stage we were at.
He then explained that this issue is not just limited to a question of guilt or innocence but also comes back to that issue whether anything they were doing was really likely to cause exceptionally grave damage to the national security of the United States. Even though the attorneys for the defendants didn't have the burden of disproving guilt, it would be really difficult for them to disprove that without having all of the relevant material available.
Judges Error to Deny Change of Venue
At that point Mr. Klugh was well over his time and Mr. Weinglass began his argument. The argument Mr. Weinglass made was to go to the source of their complaint with regard to venue, which is that at trial Judge Joan Lenard had made an error in denying a motion for change of venue. There are several levels of argument, one is that she made an error at that time; the other is that she made an error at later times in the course the trial, that she erred in denying a motion for a new trial and then a change of venue arguments.
He went first to the heart of it, which is that she had gone about the matter from the beginning from a stand point that was too stringent, that was very, very difficult for a defendant to meet even in the face of obvious community hostility. He engaged in a legal discussion of the distinctions between the standards of review for district court actions in the pre-trial context or in the standards of appeals and the standards of review that might be applicable after an appeal process had been concluded when somebody is seeking habeas corpus. Direct appeal is a chance to closely look at what the judge did, not simply look for horrendous and grievous errors, just look for errors, look for things that are just not right and he also asserted that a test could be met but she had applied a test that would not applicable to a district court but would be applicable to a reviewing court at a very much later stage in the process.
He explained that the government had later admitted community prejudice in Miami when the voirdire (interview of prospective jurors) had demonstrated not only prejudice and fixed opinions but also fear by prospective jurors of reaching an opinion not consistent with prevailing community attitudes. He analyzed the multiplicity of the problem both in terms of prejudice and in terms of error. He was given additional time to go over that argument and he explained what the position of the defense was, how the defense had tried to be reasonable. They renewed the motion for change of venue many times, particularly during trial when prejudicial events took place, and given the way the case was tried.
At that point they concluded the initial argument and the case was turned over to the federal prosecutor to argue: Caroline Heck Millar.
The Case for the Prosecution
Before she began her argument, the presiding judge directed Caroline Heck Miller, for continuity purposes, to go direct to the venue issue because that had just been addressed, the sufficiency of evidence in count 3 and then whatever else she wanted to talk about. Although she ran out of time, the presiding judge gave her a great deal of additional time. He even said to her that he felt he had given her more time than the defense, giving her every opportunity, but she didn't address any other issue. She didn't have argument with any other issue. They were the only two she managed to address.
With respect to venue, her principle point was that because the defense had gone ahead and selected a jury, they had not taken advantage of all peremptory strikes* open to them. In other words they had accepted a jury and had even expressed their satisfaction with it. But the defense said that some of these people may well be better than others. She said that because the defense took that position, they had waived their argument with regard to change of venue. She tried to cite two instances on the record where she claimed the defense was happy with the jury.
The argument then turned to what some of the judges considered very important: the government had taken the exact opposite position in the Ramirez civil litigation case and she was asked to explain that litigation, her position and why the government had changed its position. She argued that that had more to do with the attorney for the plaintiff in that case who was talking to the press a lot and trying to make prejudice in the press. She also tried to distinguish that case as having more to do with the Elián González matter than the present case saying that the Elián González matter was more divisive than this case.
Some of the judges didn't appear to agree with that distinction indicating that the prejudice of Elián seems to carry over across a broad spectrum and in fact the Elian events were much closer to this trial than they were to this much later civil litigation that Miami could not be a fair venue.
Approximately ten minutes into her argument, she began a review of the sufficiency of evidence in Count 3. There were a number of questions by the court indicating that a higher standard of proof that had yet been met would be required to attribute to an agent of the Cuban government a belief and an intent that his country in taking sovereign actions exceeds the limits of its sovereignty intentionally. She spent the better part of her argument trying to explain that there were somehow nuances in the record that don't appear in the transcripts that if you look at them would somehow she could justify that making Gerardo Hernandez responsible for what happened in the issue of downing the aircraft. Judge Kravich then asked Caroline Heck Millar several questions underlining that Gerardo Hernández can't be guilty of conspiracy to murder without the desire for a criminal act to take place. It is a great and unwarranted leap of inference for the law to make to have that kind of malice and aforethought that really is required for this crime.
She was also asked where was the evidence that Hernández knew that a murderous act would occur. The public prosecutor was clearly under duress to give a satisfactory answer to these questions but she didn't address the law on it.
Rebuttal Arguments: No New Reasons to Answer Doubts
After about twenty minutes Richard Klugh began his rebuttal argument. The judge asked how they wanted to proceed. To maintain the continuity Mr. Klugh started with count 3. His argument basically was that the government had not provided any new reasons to answer the doubts that the court had already raised, that they had provided no legal support for their theories and in fact had taken no legal analysis on what the law in the circuit court was required to prove the murder conspiracy. He argued that essentially Caroline Heck Miller was asking the court to make an extraordinary inferential leap from an agent, an attribution from one to the other as in this case.
At some point as he was making that argument, the court interrupted and the chief judge asked if they simply reversed on count 3 how would that affect the situation for Mr. Hernandez. Frequently judges ask what are the sentencing consequences and Mr. Klugh said that the judge would need to go to count 2 and see what would happen to count 2 and hopefully that count would also be reversed for lack of evidence and even if it weren't you would have to look at the sentencing question again. He returned again to the government's failure to at any time, at sentencing or on appeal, to express or make any way intelligible the concept how these men could in any way cause grave national damage. The cliché is used is that it is like a flea on the pimple of the United States.
There is no possibility that anything seriously bad is going to happen as a result. Mr. Klugh then explained the further prejudice during sentencing. He returned to the denial of information with regard to the classified information act. He explained that just as they had their hands tied behind their backs during trial, they had their other hand tied behind their back during sentencing when it became effectively their burden to show that there was no reasonable possibility of harm to the national security so the CIPA issue was doubly prejudicial to them.
At that point he concluded his argument and Joaquin Mendez stood up to give the final rebuttal.
Joaquin Mendez proceeded to answer some of the claims made by Ms Miller with regard to the defense's attitude toward the jury as selected, the reasons for the jury being selected in the way it was, the fact that the defense team renewed the motion for the change of venue nine times. He explained further just how the pressure is in Miami. The reason so many jurors said they didn't want to serve from fear was that they are pretty violent individuals that respond very stridently to any pro-Cuba reaction. The very fact that one of the witnesses at one point in the trial accused the defense attorney of being an agent for the Castro government, a charge the jurors would fear if they did not render an anti-Castro view. He elucidated those points the best he could and tried to give it some real flavor of what it was going to be like at trial. That was it.
Legal appeals are taken by defense teams if it seems to them and their clients that a fair trial and sentencing did not take place. Before the oral hearing the defense team submits their written briefs in which they make their argument for a re-trial. If the defendants do not have private lawyer, as in the case of four of the Five Cubans, the Public Defenders Office takes the case using public defense lawyers.
The law allows the defense to strike ten prospective jurors without any reason at all, just because they would prefer other jurors. The defense team used all ten of those. They asked for additional peremptories and asked for more additional peremptoriness. They received the final additional peremptories but didn't use every single one of them. The government is trying to argue that means the jury is fine and the defense team are trying to argue that that doesn't make sense. What you are trying to do when you are picking a jury is to try to get the best of the worst. That doesn't make the best of the worst good. It just makes them the best of the worst.