Cuban spy case nears crucial point

Posted on Mon, Feb. 13, 2006

SPY-CASE APPEAL
Cuban spy case nears crucial point
The long-running legal drama involving the convictions of five Cuban men
accused of spying for Fidel Castro's government may be close to its end
in an Atlanta courtroom.
By JAY WEAVER
jweaver@MiamiHerald.com

To many Cuban exiles, the five Cubans accused of spying for the Castro
government were convicted in 2001 by a fair and impartial federal jury
in Miami.

But to Cuban government supporters in the United States and around the
world, the men are political prisoners who were merely defending their
country against attacks by U.S.-based exile groups opposed to Cuban
leader Fidel Castro.

Now lawyers for the accused Cuban spies will argue before 12 federal
appellate court judges in Atlanta on Tuesday that their clients did not
receive a fair trial five years ago in Miami because the community was
saturated with anti-Castro sentiment.

The appeals court has issued mixed opinions. In August, a three-judge
panel overturned the original convictions, ruling in favor of the Cuban
defendants. Two months later, the full court threw out that decision and
agreed to hear the appeals case all over again.

Tuesday's oral arguments are being held just 10 days before the 10th
anniversary of the Cuban government's shootdown of two Brothers to the
Rescue planes over international waters -- killing three Cuban Americans
and one Cuban exile. One of the accused spies was convicted of
conspiring to commit murder for his alleged role in the 1996 attack by
Cuban Air Force fighters.

Relatives of the shootdown victims plan to attend Tuesday's hearing
before the entire 11th U.S. Circuit Court of Appeals in Atlanta to show
their support for the 2001 convictions of the five Cubans, now serving
lengthy federal prison sentences.

''We felt this is something we should do,'' said Maggie Alejandre Khuly,
whose brother, Armando Alejandre Jr., was one of the four Brothers
pilots killed on Feb. 24, 1996. ``It's something that matters very much
to us.''

The other Brothers to the Rescue victims were Carlos Costa, Mario de la
Peña and Pablo Morales. The exile organization conducted humanitarian
missions over the Florida Straits and leafleted Cuba.

Since last summer, Khuly and other victims' relatives have been on an
emotional yo-yo, thanks to the Atlanta appellate court's two rulings in
the highly publicized case.

In August, a three-judge panel of that court tossed out the convictions
of the five accused Cuban spies, finding that the volatile mix of
Miami's anti-Castro political climate and intense media coverage made a
fair trial an impossibility in the city. In its 93-page opinion, the
court found the six-month trial was inundated with news coverage and
public protests from jury selection through the verdict -- all in the
aftermath of the U.S. government's controversial decision to return
6-year-old rafter Elián González to Cuba.

`PERFECT STORM'

''A new trial was mandated by the perfect storm created when the surge
of pervasive community sentiment and extensive publicity both before and
during the trial merged with the improper prosecutorial references,''
the three-judge panel said.

Suddenly, the Cuban Five convictions were overturned, suggesting a new
trial would have to be held outside Miami.

But then in November -- after Miami federal prosecutors challenged that
decision -- a majority of the appellate court issued another jolt. They
reinstated the convictions, setting the stage for Tuesday's hearing
before the entire 12-member court.

The appeal revolves around a handful of legal matters, but the dispute
essentially boils down to one question: Did U.S. District Judge Joan
Lenard conduct a fair trial after denying the defendants' request that
the case be held outside Miami?

On Tuesday, the defendants' lawyers and federal prosecutors will have 20
minutes each to answer that question.

They will likely focus on a few key issues -- zeroing in on a
court-approved, pretrial survey of 300 Miami-Dade voters by Florida
International University professor Gary Moran. It showed widespread
community prejudice toward the five Cuban defendants.

''[T]he Moran survey was clear support for the intuitively expected
premise that a community heavily affected by a massive exile population
would be hostile to agents of the very government from which the
population was in exile,'' argued one of the Cuban Five's lawyers,
Philip Horowitz, in an appellate brief.

``Moran's survey -- with the support of substantial underlying data and
additional comparative polling studies -- showed that the entirety of
the Miami community, both exile and non-exile, was affected by abiding
anti-Castro animus.''

But the U.S. Attorney's Office sharply disagreed with that view.

''The government urged [before trial] that little weight be given to
Moran's conclusions,'' according to an appellate brief filed by Miami
federal prosecutors. ``It noted Moran's stereotyping and sweeping
prejudgment of the community.''

Former U.S. Attorney Guy Lewis, whose office prosecuted the so-called
''Wasp Network'' spy case during his tenure, defended Lenard's handling
of jury selection. He noted that none of the 12 jurors was of Cuban descent.

''She allowed extensive questioning during jury selection; she allowed
the defense to have additional strikes of potential jurors; she
questioned the jury constantly about any contacts with the media,''
Lewis said. ``The [Atlanta] appellate panel, unwisely, superjudged the
way she conducted the trial.''

The six-month trial ended with the five defendants' convictions in June
2001.

Gerardo Hernández, Ramón Labañino and Antonio Guerrero all received life
sentences from Lenard. Hernández was convicted of conspiracy to commit
murder stemming from the 1996 shootdown of the Brothers to the Rescue's
planes.

René González, a pilot accused of faking his defection to insinuate
himself into the Brothers' exile organization, was sentenced to 15 years
in prison. Fernando González, no relation, was sentenced to 19 years for
trying to infiltrate the offices of Cuban-American politicians and
shadowing prominent exiles.

The defendants have drawn support from around the globe with the help of
the National Committee to Free the Cuban Five, a San Francisco-based
advocacy group. It manages a website, www.freethecubanfive.org, and
organized a worldwide letter-writing campaign.

The group has championed several causes -- from immediate release of the
incarcerated men to a protest of the U.S. government's denial of visas
for the wives of two prisoners, Gerardo Hernández and René González.

SEEKING PUBLICITY

After Tuesday's oral arguments, the committee plans a press conference
near the courthouse in Atlanta to attract attention to its global
campaign to ``Free the Five.''

''We believe they will never be able to get a fair trial in Miami
because they are accused of being agents for the Cuban government,''
said Alicia Jrapko, spokeswoman for the committee.

''We believe the government never proved its case at trial,'' she said.
``We believe they were trying to defend their country against terrorist
attacks. They were not spies. They were infiltrating those [exile]
groups to prevent future terrorist actions.''

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