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Understanding the Appeals Court Ruling on the Cuban Five
by Cindy O'Hara
On August 9, 2005, the United States Court of Appeals for the Eleventh Circuit, based in Atlanta, Georgia, issued a 93-page decision reversing the convictions of Fernando González, René González, Antonio Guerrero, Gerardo Hernández and Ramón Labañino, aka “The Cuban Five.”
What did the Court of Appeals order?
The Court of Appeals’ decision reverses the convictions of the trial court (which means it is as if they never happened), and sends the case back to the trial court level for a new trial in a judicial district other than Miami.
What is the basis for the Court of Appeals’ decision?
The Court of Appeals’ decision grants the Five a new trial based on the trial court’s refusal to grant a “change of venue,” which the Five’s lawyers asked for at trial. If a “change of venue” had been granted, the trial would have taken place somewhere other than Miami. The Court of Appeals agreed with the Five’s arguments that “ the pervasive community prejudice against Fidel Castro and the Cuban government and its agents and the publicity surrounding the trial and other community events combined to create a situation where they were unable to obtain a fair and impartial trial.” [All quotes are from the Court of Appeals’ decision. -ed.] The Court of Appeals found that there was a “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.” Because of this combination of factors, the Court of Appeals ruled that there must be a new trial in a location other than Miami.
To what “pervasive community sentiment” was the Court of Appeals referring?
At trial, the Five’s attorneys had presented the results of polls taken in the Miami/Dade County community, which found that 57% of the Hispanics who responded, and 39.6 % of all who responded said that they “would find it difficult to be fair and impartial in a case against alleged Cuban spies.” 35.6% of the respondents said they would be worried about community reaction if they reached a “not guilty” verdict. When asked if anything could change these opinions, 91.4% of the Hispanics, and 84.1% of the total number said “No.” Showing the difference between Miami and the rest of the country, the polls found that while 49.7% of the local Cuban population and 26% of local non-Cubans favored direct US military action to overthrow the Cuban government, only 8.1% of the national US population favored such action. Similarly, 55.8% of the local Cuban population and 27.6 % of the local non-Cubans favored military action by the “Cuban exile community” to overthrow the Cuban government, while only 5.8% of the national US population favored such action.
These attitudes were reflected in the jury pool, where potential jurors stated the Cuban government was “a repressive regime that needs to be overturned,” and that Cuba has “perhaps one of the worst governments that exists on the planet.” During the jury selection, the only three members of the jury pool who did not express negative opinions about Cuba were dismissed from the jury by the prosecution.
What publicity concerned the Court of Appeals?
The Court of Appeals noted that there had been massive publicity before the trial, and that the publicity continued to intrude on the trial while it was going on. At the lunch break on the first day of the trial, the family of one of the “Brothers to the Rescue” pilots who had been shot down held a press conference on the courthouse steps and the press approached several of the jurors. A copy of a Miami Herald article on the case was found in the jury room, and at least one of the potential jurors was seen reading the article in the courtroom.
The media attention to the jurors continued throughout the trial. During deliberations, the jurors were filmed entering and leaving the courthouse, and the press requested their names. The Court of Appeals noted that the jurors expressed concern that they were filmed all the way to their cars, and that their license plates had been filmed.
What did the Court of Appeals mean by “improper prosecutorial references"?
During the trial, the prosecution did whatever it could to demonize the Five and the Cuban government. The prosecutors stated that the Five had joined a “hostile intelligence bureau” that saw “the United States as its prime and main enemy.” The prosecutors stated that jurors would be abandoning their community unless they convicted “the Cuban spies sent to . . . destroy the United States” and insisted that the Five were “bent on destroying the United States.” They asserted that the Cuban government used “‘goon squads’ to torture its critics” and that the assumed identities used by the Five while undercover were taken from “dead babies.”
What effect did the anti-Cuba community attitudes and the publicity have on the jurors?
The Court of Appeals extensively discussed the fears expressed by the jury pool. As one potential juror put it, if he was put on the jury “I would probably be a nervous wreck, if you want to know the honest truth. . . [and] have some fear, actual fear for my own safety if I didn’t come back with a verdict that was in agreement with the Cuban community at large.”
The Court of Appeals went to some length to show that the threat of violence was not illusory. It quoted a newspaper article which described the “scores of bomb threats and actual bombings “in Miami that had been attributed to “anti-Castro exile groups.” In addition, the Court of Appeals spent several pages of its opinion identifying the “Cuban exile groups of concern to the Cuban government” including Alpha 66, Brigade 2506, Brothers to the Rescue, Commandos F4, CANF and others, and their paramilitary training camps in the US and their terrorists attacks in Cuba including hotel bombings and assassination attempts.
The Court of Appeals concluded that:
"The evidence at trial validated the media’s publicity regarding the 'Spies Among Us' by disclosing the clandestine activities of not only the defendants, but also of the various Cuban exile groups and their paramilitary camps that continue to operate in the Miami area. The perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable. Further, the government witness’s reference to a defense counsel’s allegiance with Castro and the government’s arguments regarding the evils of Cuba and Cuba’s threat to the sanctity of American life only served to add fuel to the inflamed community passions."
What about the other issues that were appealed?
All the other grounds on which the case was appealed – the lack of evidence for the conspiracy to transmit national defense information to Cuba, the trial court’s failure to allow the jury to be instructed on the defenses of the necessity and justification for the Five’s actions, the lack of evidence for the conspiracy to commit murder charge against Gerardo (based on the Cuban military’s shoot down of two Brothers to the Rescue planes in 1996), misconduct by the prosecution, and errors regarding their sentences – were not decided by the Court of Appeals because it instead granted a new trial.
Finally, in its conclusion, the Court of Appeals apparently felt obligated to address the potential reaction to its decision in the Cuban expatriot community in Miami. The Court of Appeals specifically recognized that “the reversal of these convictions will be unpopular and even offensive to many citizens” but insisted that “we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be treated fairly. Our Constitution requires no less.”
Summary prepared by Cindy O’Hara
Casa Cuba Resource Center
6501 Telegraph Avenue
Oakland, CA 94601
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