N E W S

Havana. October 14, 2003

BY JEAN-GUY ALLARD -Special for Granma International-

GERARDO Hernández, one of the Miami Five, was sentenced to life imprisonment by virtue of a charge linking him to the shooting-down of two light aircraft, even though the District Attorney’s office acknowledged that there was no evidence whatsoever - to the point of asking the Appeals Court in Atlanta to drop the charge. Even more absurdly, Cuba was actually advised of the arrival of those planes in its airspace, not by Gerardo but by the U.S. Federal Aviation Agency itself.

Addressing a packed public meeting held recently in Miami on the fifth anniversary of the Five’s imprisonment, New York lawyer Leonard Weinglass - the well-known civil rights expert - analyzed various aspects of the Cubans’ case, showing how a jury led by an individual hostile to Cuba arrived at such a senseless decision.

Weinglass recalled: “The evidence was so lean on the conspiracy to commit murder that at the end of the trial the government went to the court of appeals on an emergency writ and said: We have no case against Gerardo Hernández if the judge is going to instruct the jury as she says she will, because we have no evidence that the conspiracy was a conspiracy to shoot down two aircraft in international waters.

“That’s the literal meaning of the indictment that the judge charged the jury to read. And although she did charge them to read that if the government conceded it had no evidence of an agreement to shoot down the aircraft in international waters (then there was no case), the jury spent one day on this charge to condemn Gerardo Hernández to a second life sentence. “

In the 20 months that preceded the downing of the planes, recalled Weinglass,

“There were 25 over-flights of Cuba without the Cuban government taking any measures against them. No country would tolerate this. No less a country that had endured a history that Cuba had endured coming from the United States.”

He recounted how, in January 1996, Cuba invited Admiral Carroll of the U.S. Navy to visit the country.

“During his stay he met with the chief of the Cuban air force who said: ‘Admiral Carroll, we are not going to take this any more. We can’t. We’re getting information that there are plans afoot to arm these planes that are over-flying us with pipe-bombs and with explosives and we have to defend ourselves.’ He asked Admiral Carroll to meet with the State Department and the Pentagon and put an end to those over-flights.”

On February 24, 1996, the Brothers to the Rescue planes ignored the warnings. They were warned before taking off from the U.S. base and then once again in Cuba by the Cuban authorities.

“Do you think it was Gerardo Hernández who tipped the Cubans off?” asked the lawyer.

“That was what he was charged with as part of this conspiracy to commit murder. It wasn’t Gerardo Hernández. It turns out to have been the United States FAA that notified the Cubans that the planes were coming. Gerardo Hernández had nothing to do with it.”

That day, despite the warnings, the aircraft continued on their way towards Cuban territory, explained Weinglass. “The Cubans scrambled their MIGs; Basulto turned around; and the MIGs shot down the other two planes. Basulto had his tape recorder on in his cockpit for this “successful” mission over Cuba. The tape was running as the MIGs approached and you hear him laughing as the other two planes are under attack…”

Weinglass said that this was the first time in U.S. history “that even murder charges are laid when two aircraft of a sovereign country are involved in the shooting down of a plane on the protection of their territorial integrity. There’s never been a murder case in that context. And there’s never been a murder case on such thin evidence even if this was viable. It was a justifiable act of State in the defense of sovereign territory.”

The New York lawyer - who achieved fame representing the Chicago Eight - showed how David Bucker, “the jury foreman who judged these five Cuban agents said that he was against the communist dictatorship of Fidel Castro and looked forward to the day when he would be removed. Juror number two - a retired banker from Illinois - said that his son has been a marine for 21 years and his daughter had been with the FBI for 15 years and is still with the FBI. Juror number three worked for the Attorney General of the State of Florida in the criminal division. And so it went down through the twelve. That was the jury they were left with in the Southern District of Florida.”

Weinglass also recalled how the jury, after hearing more than 92 witnesses, “took only one day to decide the espionage part of the case which imposed life sentences, and they didn’t ask a single question, or have any of the testimony read back, or have any of the exhibits given to them to read - they resolved a seven-month trial in a day.”

The case against Gerardo, based on those charges, “will not stand as we hope the Eleventh Circuit Court will see so far,” affirmed Weinglass.

The question that comes to mind is: When will the Court of Appeal in Atlanta make its decision? Here is an explanation from, whom better than Leonard Weinglass:

“After they were sentenced they filed a notice of appeal. The appeal is to the Eleventh Circuit Court of Appeals that sits in Atlanta, Georgia. The case will be heard by three judges of that court. We filed our written arguments or briefs by June 2003. The government was given 90 days to respond to those written arguments - the answers are due tomorrow. But we found out that the government…has asked for more time to prepare its case.

“The defendants hope to file their reply by on or about November 1st 2003, and the case will then be sent for an oral argument before the three-judge panel of the Eleventh Circuit Court.

“When that will happen I don’t know, but it will probably be after the first of the year - taking the case into 2004.

“I will have 3 minutes (15 minutes divided among the five lawyers) to argue an enormous record on behalf of my client who is serving life in prison.

“ We’ve asked for more time and I’m told we might get it, for the Court - in a particularly generous move - may give me five minutes,” he concluded.