Attorneys spar over appeal of Cuban agents

Posted on Tue, Feb. 14, 2006

Attorneys spar over appeal of Cuban agents

GIOVANNA DELL'ORTO
Associated Press

ATLANTA - Government and defense lawyers sparred Tuesday over whether
five Cuban intelligence agents could have gotten a fair trial in Miami
at the same time that the politically charged Elian Gonzalez custody
case was topping the headlines.

The government argued that the 11th Circuit Court of Appeals should deny
the agents' request for a new trial because there was no evidence the
jurors had any prejudice about the guilt or innocence of the defendants.

"Nothing indicates that any member of the jury was influenced by
anything going on outside," said David Buckner, assistant U.S. attorney
for the Southern District of Florida.

But two defense lawyers said the events surrounding the Gonzalez case
inflamed the community, making it impossible to be impartial about any
case dealing with Cuban Americans.

The Cubans were convicted in 2001 of being unregistered foreign agents.
In addition, one was convicted of conspiracy to murder. All the
convictions were thrown out in August by a three-judge panel of the
appeals court, which found pretrial publicity combined with pervasive
anti-Castro feeling in Miami didn't allow for a fair trial there.

"I believe this court won't convert the 'perfect storm' of prejudice
into a bright and sunny day of neutrality," defense lawyer Leonard
Weinglass told reporters, quoting the panel's language.

While the five men - Gerardo Hernandez, Rene Gonzalez, Antonio Guerrero,
Fernando Gonzalez, a.k.a. Ruben Campa, and Ramon Labanino, a.k.a. Luis
Medina - have acknowledged being Cuban agents, they said they weren't
spying on the United States but on U.S.-based exile groups planning
"terrorist" actions against the Castro regime.

The defense's Richard Klugh suggested the jurors were afraid to return a
not-guilty verdict in a community that had just rioted over Elian's
return to his father in Cuba. The government's case inflamed that
passion because it focused on the agents' intent to disrupt the exile
community, he said.

"Nothing could be more offensive," Klugh told the court. "The case
played to themes other than crime and espionage."

He added that it might be possible to have a fair trial now, but the
defense would still ask for a new trial not to be in Miami.

Buckner insisted the trial was fair because the court took "vigorous and
ultimately successful steps" to select and isolate jurors - none of whom
were of Cuban descent. Just because they might have disliked Castro
didn't imply they couldn't judge the men impartially, he said.

"It comes down to the jury," Buckner told the 13 judges. "Not one
expressed an opinion to the defendants' guilt."

The five agents of the so-called Wasp Network remain in prison. Three of
them, who also were convicted of espionage conspiracy for efforts to
penetrate U.S. military bases, were sentenced to life. Hernandez was
also convicted of murder conspiracy in the deaths of four Miami-based
pilots whose planes were shot down by Cuban jets in 1996 off the
island's coast.

Some activists who think Cuba has the right to spy on exile groups to
protect itself held a press conference Tuesday afternoon to call for the
Cubans' release.

"They are called heroes because they stopped terror threats against
civilians and it's time to free them immediately," said Gloria LaRiva
with the San Francisco-based National Committee to Free the Cuban Five.

The men were celebrated as "five patriotic heroes jailed in the empire"
in Cuban newspapers Tuesday morning.

But anti-Castro Cuban-American organizations, including the
20,000-member Cuban American National Foundation in Miami, say they
don't advocate violent change in the island nation.

"I don't think there are groups out there promoting violent attacks,"
said the foundation's Camila Ruiz-Gallardo. "And even if they do exist,
they don't represent the Cuban-American community."

Miriam de la Pena, the mother of one of the pilots Hernandez is accused
of shooting down, was in court Tuesday. She said she trusted U.S.
justice would make the convictions stand.

"We're the victims of Castro's terrorism," she said.

Representatives of the Brothers to the Rescue group, to which the four
pilots belonged, also called the defense arguments absurd.

"If you accept their argument, you can't try any terrorist against
America in the United States," Sofia Powell-Cosio said.

http://www.miami.com/mld/miamiherald/13868668.htm