Friday, March 6, 2009

Outpouring of Support Worldwide Urging the US Supreme Court to Review the Convictions of the Cuban 5


For Immediate Release
March 6, 2009

Contact: Thomas C. Goldstein, Esq.: 202-674-7594;
tgoldstein@akingump.com


OUTPOURING OF SUPPORT WORLDWIDE URGING THE U.S. SUPREME COURT TO REVIEW THE CONVICTIONS OF THE CUBAN FIVE

In a previously unheard of twelve separate briefs, array of supporters worldwide – including ten Nobel Prize winners who have championed human rights (including East Timor President Jose Ramos-Horta and Irish peacemaker Mairead Corrigan Maguire); the Mexican Senate; and Mary Robinson, the former UN High Commissioner for Human Rights and former President of Ireland – today filed amicus curiae (friend of the court) briefs imploring the U.S. Supreme Court to review the Miami convictions of five Cuban government agents, the so-called Cuban Five. Those participants in the briefs were joined by hundreds of parliamentarians from the European Parliament and other parliaments around the world, including two former Presidents and three current Vice-Presidents of the European Parliament, as well as numerous U.S. and foreign bar associations and human rights organizations.

This is the largest number of amicus briefs ever to have urged Supreme Court to review a criminal conviction.

This extraordinary support for the Cuban Five's case arises from widespread concern in the United States and around the world that their trial was conducted in an atmosphere tainted by prejudice against agents of the Cuban government and fear of retaliation, which amici say prevented the jury from fairly evaluating the charges against the Five. Among others, the United Nations Human Rights Commission has condemned the Miami trial of the Cuban agents, marking the first and only time in history that that body has condemned a U.S. judicial proceeding. Citing a "climate of bias and prejudice" in Miami, the Commission's Working Group on Arbitrary Detentions concluded that the "trial did not take place in the climate of objectivity and impartiality that is required to conform to the standards of a fair trial."

The amicus briefs filed today ask the Supreme Court to review the fairness of trying the Cuban agents to a Miami jury. "The trial and conviction of the Cuban 5 is a national embarrassment," explained Michael Ratner, President of the Center for Constitutional Rights, which represented the Nobelists in filing their amicus brief. "Our clients, ten Nobel Prize winners, acclaimed for their efforts to advance human rights, believe the trial was an international embarrassment as well. This was a trial that should have never occurred in Miami. There was no way a jury from that Miami, with is history of violence and intimidation against the Cuban government, could have reached a verdict free from retaliation by the anti-Castro community."

Several of the amicus briefs filed by U.S. organizations also ask the Supreme Court to review the prosecution's striking African-Americans from the jury. The prosecutor used seven of nine peremptory challenges (where no explanation need be given to strike a juror) to strike black jurors. The Court of Appeals ruled that no inquiry need be made into the prosecutor's motives because three other black jurors, a minority on the 12-person jury, were seated. Amici maintain that this is allows prosecutors to mask their manipulation of the racial make-up of a jury.

The U.S. government's brief in opposition is presently due April 6. The Court is likely to decide whether to grant review before its summer recess in June.

The amicus briefs, along with a complete list of the amici, will be posted on SCOTUSblog (
www.scotusblog.com) as electronic copies become available today.

Additional background on the case:

The United States indicted the five Cubans in Miami in 1998. The indictment focused on the charge that they were unregistered Cuban agents and had infiltrated various anti-Castro organizations in South Florida.

One of the Five, Gerardo Hernandez, was also charged with conspiracy to commit murder for providing information to Havana on flights in which the anti-Castro group Brothers to the Rescue would routinely invade Cuba airspace. On February 24, 1996, two BTTR planes were destroyed after both Cuban and American officials had repeatedly warned the Miami-based group to cease its illegal incursions into Cuban territory. Cuba maintains that it shot the planes down in its territory; the U.S. has maintained that the shoot down occurred a few miles into international airspace, after the planes entered and exited Cuban airspace.

The Cuban Five requested that the trial judge move the trial out of Miami, which is home to a massive Cuban-American exile community that, beyond its ordinary hostility towards the Castro regime, had been whipped into a frenzy of anti-Castro sentiment by the Elian Gonzales debacle that took place just as the Cuban Five's trial got underway. Judge Lenard refused that request to move the trial to a new venue some thirty miles away, and a Miami jury convicted Hernandez and the others of all charges. Judge Lenard imposed the maximum available sentences on the Five, including life imprisonment for Hernandez.

On appeal, a three-judge panel of the federal Court of Appeals for the Eleventh Circuit reversed the convictions and ordered a new trial because, the court held, a "perfect storm" of community prejudice and pre-trial publicity, exacerbated by the federal prosecutor's inflammatory statements to the jury, deprived Hernandez and the other Cubans of a fair trial.

The entire Court of Appeals, however, vacated the panel's decision, finding no error in the government trying the case to a Miami jury. It returned the case to a panel to evaluate the remaining issues in the appeal.

In another key ruling, two of the three judges on the panel refused to reverse the Miami jury's conviction of Hernandez. Judge Kravitch dissented, finding that there was no evidence at all that Hernandez knew there would be a shoot down, let alone an unlawful shoot down in international airspace.


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