Court weighs fairness of spying trial

Posted on Wed, Feb. 15, 2006

THE CUBAN FIVE
Court weighs fairness of spying trial
A rare appellate hearing examines the Cuban Five spy case again, amid
questions over whether the defendants received a fair trial.
BY AMY DRISCOLL
adriscoll@MiamiHerald.com

ATLANTA - The case of ''the Cuban Five'' -- five men accused of spying
in Miami for Fidel Castro's regime -- boiled down to one major issue in
an appellate court hearing Tuesday: Did the Cubans receive a fair trial
in a community that has considered Castro its Enemy No. 1 for more than
40 years?

A panel of 12 judges at the 11th U.S. Circuit Court of Appeals in
Atlanta took up that question and others in the latest round of appeals
that have dogged the emotion-laden case since the 2001 convictions.

Lawyers for the government, arguing to leave the convictions intact,
said U.S. District Judge Joan Lenard took sufficient precautions when
selecting jurors and was able to insulate them from the passions that
swirled around the six-month trial.

But lawyers for the five men say no one could have been kept totally in
the dark about the hostility generated by the case, which began shortly
after the U.S. government decided to send then-6-year-old Elián González
back to Cuba with his father.

''The trial began on the one-year anniversary of Elián's rescue from the
sea,'' said Assistant Federal Public Defender Richard Klugh, chief of
the appellate division. ``This case played to themes other than
traditional criminal law.''

Bomb threats, unrest and demonstrations on Elián's behalf contributed to
the atmosphere faced by jurors, he noted. Judge Lenard should have
agreed to the defense's request to move the trial out of Miami, even if
only to Fort Lauderdale, Klugh said.

''We were just trying to get the prejudice down to a manageable level,''
he argued during the rare en banc session of the appellate court.

Assistant U.S. Attorney David Buckner urged the judges not to
second-guess the original trial court: ``The district court here is the
judge on the ground. She is in the best position to answer questions of
fact.''

He called her management of the trial ''a model'' and said there was no
evidence that jurors felt any intimidation.

ROLLER COASTER

The case has been a judicial roller coaster: The 2001 conviction was
overturned in August after three judges on the appellate court found the
volatile mix of anti-Castro feelings and intense media coverage made a
fair trial impossible. Three months later, in November, a majority of
the appellate court issued a new opinion reinstating the convictions and
agreeing to hear the case as a 12-member panel that met Tuesday.

The judges asked rapid-fire questions on a few key issues during an
intense one-hour hearing, mostly focusing on what the standard should be
for moving a trial.

Judge Stanley Marcus -- a former U.S. District Court judge in Miami --
asked the defense lawyers if they were saying that ``people acting as
Cuban agents simply cannot get a fair trial in Miami-Dade County -- not
then, not now, and not as far into the future as we can reasonably see;
is that correct?''

Before Klugh could fully explain, the subject switched to a study
conducted by retired Florida International University Professor Gary P.
Moran that helped temporarily overturn the convictions. Moran told The
Miami Herald last week that he has sympathy for Castro in his struggle
against the U.S. government -- ``this great Satan.''

Moran's court-approved, pretrial survey of 300 Miami-Dade County voters
concluded that the city was so contaminated by anti-Castro sentiment
that the men could not have received a fair trial in the community. None
of the 12 jurors eventually chosen for the case was of Cuban descent.

Tuesday's hearing was held 10 days before the 10th anniversary of the
Cuban government's shootdown of two Brothers-to-the-Rescue planes over
international waters, an alleged plot linked to the Cuban Five case in
which four Cuban-Americans were killed.

The five Cuban defendants were convicted of Cold War-style charges:
infiltrating Miami's exile community and trying to pass U.S. military
secrets to Havana.

Gerardo Hernández, Ramón Labañino and Antonio Guerrero all received life
sentences. Hernández was convicted of conspiring to commit murder for
his alleged role in the 1996 shootdown by Cuban Air Force fighters.

René González, a pilot accused of faking his defection to insinuate
himself into Brothers to the Rescue, was sentenced to 15 years in
prison. Fernando González was sentenced to 19 years for trying to
infiltrate the offices of Cuban-American politicians, among other charges.

The case reopened old wounds, especially for the families of those
killed in the exile-pilot shootdown.

''The timing wasn't good for us,'' said Maggie Alejandre Khuly, whose
brother, pilot Armando Alejandre Jr., was killed on Feb. 24, 1996.

She stood outside the federal appeals court in Atlanta where she had
flown to see the arguments first-hand.

''I had to be here,'' she said. ``We believe in the U.S. justice system
-- it's one of the reasons we live in the United States and not Cuba.''

WORLD SUPPORT

The defendants have drawn support from around the world through the work
of the National Committee to Free the Cuban Five, a San Francisco-based
advocacy group.

After Tuesday's arguments, the group held a press conference a few
blocks from the federal courthouse in Atlanta, blasting the government's
case and calling for a speedy decision freeing the men. They also asked
for visas so that the wives of two of the men could visit them in U.S.
prisons.

Gloria La Riva, president of the group, said the men could not receive a
fair trial because of ``the existence of terrorist organizations that
operate in Miami with impunity.''

But for the families of those slain in the shootdown, the only justice
would be keeping the five Cubans behind bars.

Mirta Costa, the mother of pilot Carlos Costa who died in the shootdown,
said she felt positive about the amount of attention that the judges
gave the case.

''I had a very strong day today. We don't know what's going to happen
but we have faith in God and expect that everything will be OK,'' she said.

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