September 11-13, 2009
The Untold Story of the Cuban Five
By RICARDO ALARCÓN de QUESADA
W hen the historic unanimous decision was reversed at the urging of George W. Bush's Attorney General (Remember Elian? CounterPunch, August 11, 2009), the same 3-judge panel was to hear the remaining issues other than venue, which had been the one upon which they had expressed their landmark opinion. However, in the meantime, one jurist, the oldest and most liberal, had retired and somebody else was designated to substitute for him. The one chosen for that role was a Bush recess appointee, William H. Pryor, whose nomination, described as “one of the most contentious in recent history”, had provoked uproar in the Senate, which confirmed him over the opposition of 45 Senators. (For a detailed investigation into Pryor's legal career see Jeffrey St. Clair's Pryor Unrestraint, CounterPunch, June 14, 2003.)
Senator Kerry, claimed that the new judge “has been a constant advocate for scaling back constitutionally guaranteed rights” with his “consistent pursuit of extreme and incorrect legal views … as a result our Federal judiciary will have less ability to protect the constitutional rights we hold so dear” (Congressional record, Senate June 14, 2005).
Pryor was criticized by some major newspapers, and was described as a “right wing zealot not fit to judge”. In summing up his pedigree Jeffrey St. Clair writes: “he goes much, much farther than even many of the most extreme ideologues in his party” (“Pryor Unrestraint”, CounterPunch, June 14, 2003).
Mr. Pryor wrote the opinion for the Court rejecting the other issues presented by the defense in language that at times was closer to a slanderous anti-Cuban vulgar diatribe than to the balanced, sober style of the judiciary (even some well-known terrorists, rightly described as such by the previous panel, were now transmuted into patriotic freedom fighters). Interestingly the accusation of “spying” was so clumsily fabricated and the Miami trial included other wrongs so obvious that even Pryor had to agree with the other two judges in vacating the sentences of three of the defendants. (Spies Without Espionage, CounterPunch August 28-30, 2009).
This time the panel was divided on a very crucial point: Count 3, conspiracy to commit murder. One of the judges, J. Birch, while concurring with Pryor’s opinion recognized that “this issue presents a very close case” and reiterated “that the motion for change of venue should have been granted” adding that “the defendants were subjected to such a degree of harm based upon demonstrated pervasive community prejudice that their convictions should have been reversed” (US Court of Appeals for the Eleventh Circuit N. 01-17176, DC Docket No. 98- 00721 CR-JAL, Page 83).
Judge Phillys Kravitch, in an impressive 15-page dissent, demonstrated the terrible injustice committed by her colleagues against Gerardo Hernández.
She pointed out:
“A country cannot lawfully shoot down aircraft in international airspace, in contrast to a country shooting down foreign aircraft within its own territory when the pilots of those aircrafts are repeatedly warned to respect territorial boundaries, have dropped objects over the territory, and when the objective of the flights is to destabilize the country’s political system. Thus, the question of whether the Government provided sufficient evidence to support Hernández’s conviction turns on whether it presented sufficient evidence to prove that he entered into an agreement to shoot down the planes in international, as opposed to Cuban airspace” (Idem Pages 94-95) and in this regard “the Government cannot point to any evidence” (Idem Page 98).
But beyond the issue of the location of the incident “the Government failed to provide sufficient evidence that Hernández entered into an agreement to shoot down the planes at all. None of the intercepted communications the Government provided at trial show an agreement to shoot down the planes. At best, the evidence shows an agreement to 'confront' BTTR planes. But a 'confrontation' does not necessarily means a shoot down.”
To prove her point she referred to testimonies and videotapes presented at trial: “This evidence demonstrates the obvious: there are many ways a country could “confront” foreign aircraft. But the Government presented no evidence that when Hernandez agreed to help “confront” BTTR that he agreed confrontation would be a shoot down. To conclude that the evidence does show this goes beyond mere inferences to the realm of speculation … Because so much evidence points towards a “confrontation” other than a shoot down, I cannot say that a reasonable jury – given all the evidence – could conclude beyond a reasonable doubt that Hernandez agreed to a shoot down.” (Idem Pages 96-97)
It was so obvious that the Government itself had recognized the point in an “unprecedented” emergency petition to that very Court of Appeals: to demonstrate Gerardo’s invented guilt on such a fabricated crime constituted an “insurmountable obstacle” for the prosecution.
Such would have been the case with “a reasonable jury” in any other venue. But not in Miami, where the intimidated jurors where surrounded at the courtroom by a bunch of individuals who proclaimed their terrorist exploits and were able to kidnap Elian Gonzalez, always with total impunity, and joined the Government in demanding the worst punishment for Gerardo. That could have been understood by any reasonable jurist. But not by a “right wing zealot not fit to judge.”
Somebody at the White House was happy. His appointee served him well. Gerardo got his two life sentences confirmed with the reluctant and paradoxical vote of a judge, Birtch, who insisted that all of the Five “convictions should have been reversed” and a dignified lady who maintained her dissenting voice: “the Government presented no evidence” to sustain its accusation.
After Pryor’s shame judgement, the Five appealed to the en banc Court. This time they were not contesting an unanimous and well founded decision – as the Government did in 2005 – but one clearly unfair and prejudicial that had sharply divided the panel on Count Three, with Kravitch rejecting it with impeccable consistency and Birtch – after recognizing her arguments, but ignoring the presumption of innocence and his own “reasonable doubts” – strangely decided to join Pryor’s pro-Government stance and neocon logic.
But this time the Court of Appeals confirmed the disputable conclusions of the panel. The Atlanta judges even forgot that it was to them that the same Government had made an “emergency petition” admitting that it had failed to prove Gerardo’s guilt.
Ricardo Alarcón de Quesada is president of the Cuban National Assembly.