Advocates vow fight as Cuban Five lose ruling

Posted on Fri, Aug. 11, 2006

ESPIONAGE CASE
Advocates vow fight as Cuban Five lose ruling
Advocates for the Cuban Five criticized a court's ruling that the
defendants received a fair trial in Miami and vowed to fight, while
federal prosecutors praised the judge in the case.
BY JAY WEAVER AND CASEY WOODS
jweaver@MiamiHerald.com

Decades of community hatred toward Fidel Castro. Cuban military killings
of exile pilots. Bitter custody disputes over rafter Elián González.

None of these highly publicized issues ruined the right to a fair jury
trial in Miami for five Cuban men convicted of spying for the Castro
government, an appellate court in Atlanta has ruled.

''Miami-Dade County is a widely diverse, multiracial community of more
than two million people,'' the 11th U.S. Circuit Court of Appeals said
in a 10-2 decision released late Wednesday. ``Nothing in the trial
record suggests that 12 fair and impartial jurors could not be assembled
by the trial judge to try the defendants impartially and fairly.''

U.S. Attorney R. Alexander Acosta said Thursday his office was
''gratified'' with the ruling, citing Miami federal Judge Joan Lenard's
impaneling of an unbiased jury.

The so-called Cuban Five, accused of being part of an espionage network
that spied on U.S. military installations and Miami exile groups, were
convicted five years ago by a dozen federal jurors in one of South
Florida's most politically laden criminal cases. One defendant was also
convicted of conspiring with the Cuban government to murder four Cuban
exile pilots a decade ago.

The appellate court found that pretrial publicity -- stirred up by
anti-Castro sentiment, the Cuban air force's 1996 shoot-down of two
Brothers to the Rescue planes over the Florida Straits and Elián's
return to his father in Cuba -- did not make it impossible to impanel a
neutral jury in Miami.

The appellate judges overturned a smaller panel of the same court that
ruled the Cuban defendants were entitled to a new trial because of
overwhelming anti-Castro publicity that could poison a prospective jury
in Miami.

Although the Cuban Five lost this major appeal on the venue of their
trial, they could challenge the ruling to the U.S. Supreme Court. If
that fails, the defendants have a second opportunity to appeal their
convictions to the Atlanta court, claiming insufficient evidence. The
appellate court had postponed that matter until the venue issue was
resolved.

The Cuban Five are heroes in their former homeland. A report on
Wednesday's ruling in the island's state newspaper Granma described the
''unjust imprisonment'' of men who ``tried to save Cuba and the United
States from terrorism.''

Advocates for the defendants criticized the appellate court and vowed
Thursday that the ruling did not spell the end to their efforts to free
the five.

''The majority opinion completely overlooked the question of the
coercive atmosphere that exists in Miami,'' said Leonard Weinglass, the
appeals attorney for Antonio Guerrero, who was sentenced to life in
prison. ``This is not the end of the case, far from it.''

DEFENSE'S PLANS

Weinglass and the other defense lawyers have not yet decided whether to
appeal the ruling to the U.S. Supreme Court.

The defense team also plans to argue the Cuban Five's convictions should
be overturned for lack of evidence. Their lawyers claim misconduct by
prosecutors, mishandling of classified information and insufficient
instructions to the jury.

Weinglass attacked prosecutors' closing arguments at trial.

'The prosecution said not once but three times that the [Cuban Five] had
come to the United States `in order to destroy the United States,' '' he
said. ``This is an argument that the prosecutor made in a case in which
the five were found unarmed, were never armed, and were never accused of
committing an act of sabotage, an act of arson or of violence within the
United States.''

But former U.S. Attorney Guy Lewis, whose office prosecuted the case,
disagreed.

''I fully expect that the court of appeals will look at the evidence and
conclude there was overwhelming evidence of guilt,'' Lewis said, citing
voluminous testimony, documents and wiretaps.

''This wasn't one of those circumstantial cases,'' he said. ``This was a
case that the FBI investigated for years . . . The bottom line is, once
you get a verdict, it's hard to overturn.''

Before trial, the Cuban Five's defense lawyers argued that numerous
reports in The Miami Herald and other media proved that the community
atmosphere was ''so pervasively inflamed'' that it would prevent any
juror from reaching a fair verdict.

They also commissioned a court-approved poll -- conducted by Florida
International University psychology Professor Gary Moran -- of 300
Miami-Dade County residents. Moran, now retired, concluded that the
majority in the poll were ''prejudiced,'' saying the Cuban defendants
could only receive a fair trial outside Miami-Dade.

But the appellate court condemned Moran's survey sampling, questions and
conclusions, saying they did not ''establish pervasive community
prejudice.'' The court also praised the trial judge for conducting a
''model'' selection of jurors. No juror was of Cuban descent.

'In contrast to the generalized, prefabricated and sometimes leading
questions of Professor Moran's survey were the detailed and neutral
[jury selection] questions that the court carefully crafted with the
parties' assistance,'' the majority wrote.

PREVENT TERRORISM

Advocates for the Cuban Five insist the men were not spies -- they were
simply trying to infiltrate exile groups in Miami to prevent future
terrorist actions against Cuba.

At a news conference Thursday, the defense team pointed to recent
statements made by certain exiles about the stockpiling of weapons for
an invasion of Cuba. Among those cited: exile José Antonio Llama, known
as Toñín, who told El Nuevo Herald in June that exile groups created a
paramilitary organization to execute destabilizing acts in Cuba. He said
they were going to use an arsenal that included planes and explosives.
Other exiles denounced his statements as false.

The National Committee to Free the Cuban Five, a San Francisco-based
group, has organized a Sept. 23 march in Washington to protest their
imprisonment. The group will be highlighting the U.S. government's
refusal to grant visas to the wives of René González and Gerardo
Hernández so they can visit their husbands in prison.

''This is really a punitive punishment of the five and their families,''
said Gloria La Riva, head of the committee.

The Cuban Five have even made a foray in the recent headlines of Fidel
Castro's illness: Two days after the ruler temporarily ceded power to
his brother Raúl, a broadcaster on Cuban state-run television read a
get-well statement purportedly from the five men in prison.

Miami Herald staff writer David Ovalle contributed to this report.

http://www.miami.com/mld/miamiherald/news/breaking_news/15247709.htm