Miami Eyewitness to Oral Arguments

From the National Committee to Free the Cuban Five

Dear Friends of the Cuban Five:

Wednesday, March 10, 2004, was an historic and hopeful day for the Cuban Five, as the appeals attorneys presented their oral arguments to the three-judge panel of the 11th Circuit Court in Miami.

When the Cuban 5 supporters left the courtroom, accompanying the attorneys to an impromptu press conference outside, we felt like we've turned the corner and that freedom is closer for the Cuban Five. The attorneys made powerful and compelling presentations. On several key issues the prosecutor's arguments were very weak. All this gives us reason to hope that justice will prevail. A decision is expected in several months.

The hearing started at 11:00 am and lasted 40 minutes, a little longer than the original 15 minutes.

For several days before the hearing, the appeals attorneys and assistants hammered out a strategy. With only 15 minutes allotted for our side to speak, each second would count. So the attorneys decided among themselves that three would speak.

They focused on the most severe charges that brought life sentences. These were: the murder conspiracy charge against Gerardo Hernández, and espionage conspiracy charge, against Hernández again, Ramón Labañino and Antonio Guerrero.

The written briefs for each of the Five, filed in spring 2003, are extensive, with numerous points of appeal. The hearing today was to emphasize certain issues and answer judges' questions.

The five attorneys, Leonard Weinglass, Paul McKenna, Joaquin Mendez, Phil Horowitz, and Bill Norris sat together, as well as Richard Klugh, deputy chief of appeals for the federal public defender's office in Miami. The three who presented oral arguments were Klugh, Weinglass and Méndez.

Three judges chosen to hear the cases for the present session were Stanley Birch and Phyllis Kravitch of the 11th Circuit, and James Oakes of the 2nd Circuit Court in New York.

(It is very important that correspondence from Cuban 5 supporters not be directed to the court during its deliberations.)

Before the hearing, a lot of media coverage was generated by the March 2nd telephone press conference of the National Committee to Free the Cuban Five. The conference denounced the government's confiscation of funds designated for the New York Times ad publication, from French and Spanish groups. It also was a great opportunity to publicize the upcoming March 10 hearing.

Activities around the date of March 10 in the U.S. and abroad also increased visibility of the Cuban Five. For example, a very successful meeting in New York at Union Local 1199 drew almost 400 people, and a press conference in Los Angeles on the Five's oral arguments received coverage.

The full-page ad in the New York Times, published on Wednesday, March 3, also raised more interest.

In Miami, as supporters of the Cuban 5 arrived from out of town, several days before the hearing, it was clear from the talk in the community that the ad's publication has raised much awareness about the Five Cuban political prisoners.

The Nuevo Herald, Spanish edition of the Miami Herald, even printed a small version of the ad in its editorial page, along with an opinion piece by a right-wing Cuban journalist who wondered why their side can't unite, get famous people and $50,000 for a similar ad, like we did!

The Free the Five website traffic increased six-fold the day of the ad, 12-fold the day after, and we're continuing to get a substantial number of hits and petitions by e-mail.

International attorneys traveled to Miami to witness the hearing and lend their support. Fabio Marcelli of Italy and the International Association of Defense Lawyers; Eberhard Schultz of Germany, as a delegate from the Berlin Bar Association; attorney Edith Flamand of Belgium; Carlos Zamorano, Argentina, of the American Association of Jurists, Puerto Rican attorney and consultant Rafael Anglada, and English priest Geoff Bottoms attended the hearing. Roberto González, René's brother, and a Cuban defense attorney, and René's daughter, Irmita, were there to represent the family members of the Cuban Five.

From the U.S. in the hearing were National Lawyers Guild member Ian Thompson, IADL representative Jeanne Mirer, National Committee activists Jennifer Wager, Alicia Jrapko and Gloria La Riva, and Philadelphia Free the Five activist Stephen Paulmier. Miami progressive Cubans attended from the Antonio Maceo Brigade, la Asociación Jose Martí, Alianza Martiana, and Alianza de Trabajadores Cubanos. Radio Habana Cuba correspondent Bernie Dwyer, Granma Internacional journalist Jean-Guy Allard, and Militant reporter Seth Galinsky reported for the independent press.

On the evening before the hearing, an inspiring meeting was held with the progressive Cuban community. The foreign guests and U.S. activists talked of their local work and shared many experiences. Max Lesnick, noted Cuban commentator, gave a moving talk about the heroic mission of the Cuban Five in defending their homeland. Andrés Gómez chaired, and proudly announced that Miami Cubans collected $10,500 for the New York Times ad (that amount is now $11,000, the largest collected anywhere!).

The last few weeks have seen an encouraging growth in coverage, interest and solidarity with the Cuban Five. We urge you to get involved if you're not already active, to get their struggle for freedom known to millions throughout the United States, and around the world. Please call or write us. There is a place for you to help win their freedom!

Below are some of the arguments presented, just to give you a feel for the hearing.


Richard Klugh began the defense arguments, by focusing first on the murder conspiracy conviction against Gerardo Hernández. Hernandez has been falsely linked by the U.S. government to the Feb. 24, 1996 shootdown by the Cuban government of two Brothers to the Rescue (BTTR) airplanes.

The Cuban government's shootdown of the plane was an act of self-defense against BTTR's numerous incursions in previous months.

To give an idea of how provocative and dangerous the BTTR flights were to Cuba, we reprint the following excerpt from Gerardo Hernández's appeals briefs, prepared by his counsel, Paul McKenna.

"Also, the defense presented evidence that earlier in the year, April 17, 1994, the same aircraft N-2506, once again piloted by Basulto, flew into restricted airspace and transmitted the following message to a MIG aircraft vectoring around the BTTR Cessna: "We wish to Cuba, the Cuban people, the armed forces, that you can make freedom for Cuba possible; and do everything you can to bring an end to Castro's regime." GH-Ex. 16(C).

These provocative flights became more aggressive, including a dangerous BTTR multi-aircraft, rooftop-level buzzing of Havana on July 13, 1995, and culminated in two "missions" on January 9th and 13th, 1996, where BTTR dumped more than 500,000 propaganda leaflets over Cuban territory. After the second flight, Basulto appeared on a U.S. government-controlled and financed Radio Marti program that was broadcast into Cuba where Basulto bragged about the January 13th leaflet drop, proclaiming that Havana was the "target" and three miles from the center of the city was the "drop point." GH-Ex. 37, pages 1-8."

José Basulto is the head of Brothers to the Rescue. Although his pilot's license was revoked after the shootdown, he has had it restored by the FAA, and is threatening Cuba with flights anew!

Before the shootdown, Cuba had publicly warned it would take direct action to stop any more invasions of Cuban territory. The U.S. government was warned by its own officials, including Richard Nuccio, who frantically tried to convey messages to President Clinton's National Security Advisor, Sandy Berger, to warn of BTTR's provocative plans. BTTR continually invaded Cuban airspace. U.S. authorities did nothing to stop it.

The prosecutor's claim at trial was that Cuba planned ahead of time with Gerardo Hernández to have the planes shot down in INTERNATIONAL WATERS, not in Cuban territorial airspace. Cuba has provided radar evidence to show the planes were shot down in Cuban waters.

Count 3, the murder conspiracy charge against Hernández for the deaths of the four pilots, came eight months after the Five's 1998 arrest, even though Hernández had nothing remotely to do with the shootdown.

U.S. prosecutors concocted a bizarre theory: That Hernández plotted, while living in Miami, to have the BTTR planes shot down in international waters, because the U.S. said he followed Cuba's instructions to tell pilots not to fly. There was no evidence that he received such messages.

The only evidence the U.S. prosecutor showed in the Five's trial was a memo from Cuba to agents inside the U.S. that was not even directed to Hernández. The Cuban Five's attorneys showed that Hernández also had no means to decrypt such message.

This background into Count Three is important in order to understand the irrationality of the charge.

At trial, even the prosecutors didn't believe they could win a conviction on Count Three. They went so far as to go before the 11th Circuit Court to appeal for a loosening of the judge's instructions (an "emergency writ of prohibition") in order to gain a conviction. The prosecutors lost the appeal. Still the Miami jury convicted.


Klugh emphasized the insufficiency of evidence to convict on Count Three.

"The government's burden is heavy. It would have to show that a Cuban field agent knew the Cuban government had concocted a plan to commit extra-territorial murder … Cuba would for the first time in its history exceed its sovereignty and murder U.S. citizens."

He said it was unreasonable to believe that Cuba would deliberately plan to shoot a plane down outside its sovereign territory.

Klugh pointed out that former U.S. official Richard Nuccio acknowledged 25 warnings given to the head of BTTR, José Basulto, "an admitted terrorist wanted in Cuba."

Then, on Count Two, conspiracy to commit espionage, Klugh raised the issue of insufficiency of evidence, and excessive sentencing in the three life sentences given to Labañino, Guerrero and Hernández.

The mandatory life sentences came from the U.S. government's claim that the men were engaged in conspiracy to commit espionage, causing "exceptionally grave damage" to the United States.

"The U.S. government rested its case of a man who worked on a military base in Florida. His purpose was to count airplanes and determine whether there would be a build-up," said Klugh.

He said the government at trial conceded that no top secret evidence was gathered or sent to Cuba.

In his third point, Klugh said that the U.S. CIPA (Classified Information Procedures Act) law greatly hampered the defendants' ability to defend themselves properly, because the FBI had confiscated all their personal papers, and declared classified. So they were not able to use their own possessions and documents to show they were not involved in espionage conspiracy against the U.S.

"What was taken from the defendants was significant to provide the whole picture of what they were doing. The question is how could they be sentenced to mandatory life terms when they did not collect any top secret evidence."


Leonard Weinglass began, saying, "I will address the issue of venue and the failure to change venue from Miami." He spoke for five minutes and then was extended five minutes and 45 seconds.

He stated four reasons why the district court erred by refusing to change venue. First was that the trial court used the incorrect standard in saying that it had to be "virtually impossible to get a fair trial," to change venue. This was too high a standard and improper to apply in this case.

When asked to clarify, Weinglass said the proper standard is from Moody and Tokars cases, the "reasonable probability or likelihood" that defendant couldn't have a fair trial.

There were several cases and rules he cited. This is all detailed in his brief for Antonio Guerrero, which argues for the other four Cubans as well. All the Five's legal briefs are available on

The judges asked about the fact that not all preemptory challenges were used, and that the defendants' attorneys didn't file motions to change venue after jury selection, citing a case named Alvarez.

Weinglass said, "That is where there isn't a case of presumptive prejudice. Once the presumption of prejudice is present, the law says don't look at the voir dire (jury selection) anymore." He referred to the case cited in the trial by the defendants, Pamplin v. Mason.

"Judge Wisdom [in Pamplin] said you look at the feelings in the community and determine whether that would preclude a fair trial."

U.S. prosecutor Carolyn Heck Miller first spoke about venue. She rebutted Weinglass' citing of the prosecution's contrary positions on venue

Weinglass showed that the same U.S. attorney's office, which claimed Miami was a homogenous population that could filter out prejudice in the Cuban 5 trial and therefore a venue change was not necessary, one year later, said that Miami was not the proper place to defend Attorney General John Ashcroft in a civil case related to Elián (Ramírez v. Ashcroft).

Heck Miller said that the Elián issue "received much more lurid publicity than this case."

Judges Oakes asked, "Why doesn't the Elián González case carry over to this one on change of venue?"

She responded that the Elián case is "factually unrelated," although not convincingly.

Heck Miller next laid out the government's scenario on the murder conspiracy charge. Her description of Hernández's role and Cuba's intent in the plane shootdown were as incongruous as the original charge.

She said he was more than a Cuban field agent, and described him as an officer and able to make policy decisions.

Judge Birch asked in response: "What is the importance of all that vis-à-vis murder?"

Heck Miller said Hernández was "more knowledgeable, he knew more things than others …"

Judge Kravitch asked, "What evidence is there that Hernández was involved?"

Heck Miller claimed that Cuba was very upset that BTTR had flown in international waters and dropped leaflets that had reached Havana and an internal dissent group, "Concilio Cubano.

Birch asked, "How did this man know when a plane is going to make an incursion and when it's going to be shot down?"

The prosecutor kept referencing a mid-February note sent by Cuba, urging that pilots not fly on days leading up to the Feb. 24 shootdown, as supposed knowledge by Hernandez.

Judge Birch asked which way the message was transmitted, whether to or from Hernández. When the prosecutor answered, from Cuba, Birch said: "He had no control over the message."

Later, one of the judges asked, "Where is the inference that he knew it would be a murderous act as opposed to violation of their sovereignty?"


Joaquín Méndez, attorney for Fernando González, gave rebuttal for three minutes. Méndez, a Cuban who grew up in Miami, gave strong arguments on the venue issue, showing that the Elián struggle did create increased hostility in Miami against Cuba and anyone related to Cuba. (This all occurred at the same time that the Cuban Five were in Miami prison, in solitary confinement.)

"The anti-Castro sentiment reached an all-time high during the time of the Elián González case. One month before trial, over 100,000 marched in the streets of Miami to keep Elián here."

One judge asked, "Is it true that the defense did not renew its change of venue motions?"

Méndez said, "I personally made seven motions for mistrial on behalf of Campa (Fernando González) during the trial. We were not content with the jury; we were not enamored with the jury, contrary to what the government has represented."

Méndez pointed out that jurors were intimidated during the trial by several incidents. For example, right-wing Cubans attended the trial wearing camouflage, indicating membership in a paramilitary terrorist organization.

As the attorneys walked out of the courtroom into the Florida sunshine, they spoke confidently to the bank of television cameras.

Paul McKenna, Hernández's attorney, described the prosecutor as "on the ropes."

News coverage was extensive in Miami and southern Florida. The Free the Five press conference was well attended by press.

It is of course impossible to predict the court's decision, which may come in a few months. But we believe it was definitely a step forward, by the strength of the Five's cause and the lawyers' arguments, and weakness of the U.S. government's position.

We extend our sincerest gratitude to the attorneys for their great defense. We thank all our Cuban friends in Miami who hosted us, and who defend the cause of the Cuban Five so valiantly. We salute Gerardo, René, Fernando, Antonio and Ramón, for their tremendous courage in the most difficult of circumstances.

What is left now, is to step up the fight around the world and across the U.S., until our brothers are freed and in their homeland. Volverán! They will return!

National Committee to Free the Cuban Five, 415-821-6545,  


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