• THE best way of understanding the appeal process in the case of the five Cubans unjustly incarcerated in U.S. prisons might well be a chronological account of the most significant events from the beginning.

The first step in the appeals process took place in December 2001. The Five (Fernando González Llort, Antonio Guerrero Rodríguez, Rene González Sehwerert, Gerardo Hernández Nordelo and Ramón Labañino Salazar) were sentenced by Judge Joan A. Lenard, who presided over the trial in the Southern District Federal Court of Florida, in Miami.

Appeal Rules establish that in order to initiate an appeal against a sentence handed down by a federal district judge, a notification of appeal must be lodged in the same court where the trial took place. The time granted to present this notification is 10 days after sentencing and, at this stage, reasons do not have to be argued, just a clear statement of the convicted person’s disagreement. This appeal process against the sentences handed down to the Five was initiated 5 years and 7 months ago.

WHICH COURT RULES ON IT?

The organization of the justice system in the United States gives the circuit courts authority to review trials in district courts; thus, given the geographical division of the legal system, it is the responsibility of the 11th Circuit Appeals Court of Atlanta to review matters covered in the Southern District Federal Court of Florida, having under its appeal jurisdiction trials held in the federal courts of the states of Georgia, Alabama and Florida.

Once the documentation was presented to the Court of Appeals of Atlanta a panel of three judges was constituted. The three judges were Stanley Francis Birch, Jr., appointed a federal judge by President George W. Bush Sr. in 1990, who acted as an 11th Circuit judge; Phyllis A. Kravitch, appointed as a federal judge by President James Carter in 1979 and likewise an 11th Circuit judge; and James L. Oakes, invited in on this case although he was acting as a judge in the 2nd Circuit Court of Appeals. It is a common practice to invite experienced judges from other circuits to make up panels in the 11th Circuit.

These were the federal appeal judges appointed to review the alleged legal violations in the Miami court trial in the room of the Southern District Federal Court Judge Joan. A. Lenard.

GROUNDS FOR THE APPEAL

Once constituted, the panel established time lines for the defense to present its appeal briefs and the government to respond to them.

At that point one of the many U.S. government maneuvers to place obstacles in the way of the Five’s defense lawyers occurred. Without any justification, and under the pretext of the illegal invasion of Iraq, the accused, who were in different prisons far apart from each other, were taken into solitary confinement, alleging the well-worn protection of national security argument, as if it was possible that, from their prisons and after five years’ incarceration, they could have cooperated with the Iraqi resistance forces. Under a special defense-related ruling they were taken to the punishment blocks of their respective penitentiaries for a 12-month period that could be indefinitely prolonged. They were prohibited from any communication with their lawyers, family members or Cuban consular officials in the United States. That measure was taken at the precise moment when the lawyers were drafting the appeals and exchanging criteria with their clients. The immediate reaction of solidarity within and outside of the United States secured that that situation only lasted for one month.

At that time the panel had information on the legal grounds for the appeal, based on legal violations on the part of the government and the court during the trial in Miami. Each one of the arguments merited an extensive analysis, but for reasons of space they are summarized as follows:

1) The judge’s error in holding the trial with a jury selected from the Miami community in violation of the Sixth Amendment of the U.S. Constitution. The amendment lays down that any accused person has the right to be tried by an impartial jury. Impartiality is defined as the absence of prejudices on the part of potential jury members toward the accused, with the additional element of no external influence over the jury. Since the case opened the lawyers had asked for the trial venue to be changed and for a jury to be selected in a city close but distinct from Miami in relation to strong adverse opinions on issues related to Cuba, in addition to a press extremely inflammatory against the Five, given that all of that could affect impartiality because of its influence on jury members. Despite evidence presented in support of this request, the judge turned down the defense lawyers’ petition.

2). Misconduct by government representatives – understand the prosecution – during the presentation of the case to the jury, given that the prosecution lawyers basically directed their performance to inflaming the jury’s political sentiments and to fanning community prejudices against the accused, by making undue comments and intentionally misrepresenting the facts and the evidence presented during the trial, and indicated to jury members that it was their patriotic duty to find the accused guilty independently of what the evidence demonstrated, and the sentences imposed.

3) Insufficient evidence to find Gerardo Hernández Nordelo guilty of the crime of conspiracy to murder in the first degree. This charge is related to the downing of the two Brothers to the Rescue light aircraft after repeated violations of Cuba’s airspace from 1994 to February 1996, thus interfering with communications from the air traffic control tower with commercial airlines entering and leaving Cuba at points of landing and taking off. Moreover, during their flights at very low altitude over central areas of the Cuban capital they dropped objects from the air in violation of aviation regulations.

After the chief of operations announced that he intended to repeat his illegal act on February 24, 1996, the Cuban government publicly stated its decision to put an end to these acts in violation of its airspace. The U.S. government received a diplomatic note informing it of the decision of the Cuban government and failed to prevent, as was its duty, three aircraft taking off from its territory with known illegal intentions. The Cuban government, exercising its sovereignty over its airspace, brought down the two planes that entered its territory. The aircraft piloted by Mr. José Basalto was not brought down as it remained within the international limit and headed north immediately after the other two aircraft were shot down.

While it is a fact that Gerardo Hernández’ tasks included keeping watch over the actions of this terrorist group, the evidence clearly demonstrated that he had no relation with the decision of the Cuban government and far less conspired with it to kill anyone in international waters, as this charge requires. An emergency motion sent by government representatives to the Atlanta Court with the aim of modifying the judge’s instructions to the jury on the aspects of the crime, in line with law and legal precedent, stated that "in the light of the evidence presented an insuperable obstacle has been imposed upon us that could result in the acquittal of the accused."

In relation to this charge, also under appeal is the lack of jurisdiction of the court to judge this act in the light of the Foreign Sovereignty Immunity Act which, in that country, does not allow for trying an action of the government of a sovereign state – in this case that of the downing of the light aircraft by the Cuban Air Force in the exercise of an act of sovereignty in defense of its airspace.

4) Insufficient evidence to find Gerardo Hernández, Ramón Labañino and Antonio Guerrero guilty of the crime of conspiring to transmit to Cuba information related to the national defense of the United States. Witness statements presented at the trial by the prosecution agree that there was no request whatsoever on the part of Cuba for any information on national defense; that the accused took no action that might have led them to a position where they could obtain such information; and no information of that nature was taken from them. According to the testimony of intelligence specialists all the information obtained or solicited was of a public nature and thus does not fit into the crime of conspiring to commit espionage.

Judge Lenard’s instructions to the jury stated that for this crime to be committed the following elements must be present:

a. The information involved must be related to national defense.

b. National defense information is that which the government makes a special effort to protect from public discovery.

c. That the accused acted with the intention or with reason to believe that the information could damage the United States or give another nation an advantage over the United States.

d. The government must prove that the information involved was specially protected.

e. If the information has been made public and can be found in sources legally available to the general public it is not related to national defense.

f. When the sources of information are legally available to the public

and the United States has made no effort to protect that information, it is not related to national defense.

However, the jury found them guilty and ignored the weight of the evidence and the legal provisions.

5) The illegal application to the case of special legislation for trials containing national security information. At the request of the government that legislation, known as the Classified Information Procedures Act (CIPA), was approved by the court at the start of the trial. It gave the government power over all the evidence by limiting the defense lawyers’ access to it in the preparation stage. Through a protective order from the court, the lawyers were forbidden to exchange ideas on the evidence to which each one had government authorized access. In order to participate in the trial the defense team had to be vetted by the government. Ramón Labañino was without a lawyer for eight months. Eric Cohen, who had been assigned to his defense by the court in September 1998, had still not received government authorization to have access to the evidence by May 1999, which prompted him to ask in writing on May 20 to be released from the case. His resignation was accepted by the court and he withdrew from the case without having seen any evidence whatsoever.

Months later, in November, the government acknowledged that in all the documentation of the case there was not a single piece of evidence taken from the accused that was related to national security. The application of this procedure was a maneuver by the government to make it seem, first in the court and then before the jury, that this was an espionage-related case.

Undue denial by the court of the defense request to instruct the jury on the legal doctrine of justification and need. This was in relation to the point when the defense lawyers attempted to demonstrate to the jury that the Five were in the United States as a consequence of acts of terrorism being committed against Cuba and the deaths, injuries and material damage that those acts had caused, linked to a lack of action by U.S. authorities to put an end to these criminal acts under the Neutrality Act, a legal disposition of that country that prohibits and punishes persons who, from U.S. territory, plan, organize or execute any act against another country with which war has not been officially declared.

This doctrine implies that the accused must present to the jury evidence that demonstrates the alleged justification or need for their action. From the beginning of the trial the judge refused to allow the defense the possibility of presenting evidence and, at the end, did not instruct the jury to evaluate the case in the light of this legal doctrine.

7) Error in the application of sentencing guidelines. At the point of pronouncing the sentences, she ignored federal guidelines by imposing the highest sentences without being legally authorized to do so. For example, the sentence she handed down for the crime of conspiracy to commit espionage was life imprisonment, a term in line with someone who obtains information related to national defense, transmits it to a foreign government and causes serious damage to the United States. She pronounced these disproportionate sentences despite the evidence accepted in court and statements from specialists that the case did not involve any breach of national defense security.

8) The obtaining by the government of evidence prior to arrest, in violation of legal regulations through illegal and unauthorized searches of the homes of the accused. The judge denied motions presented by the defense to suppress that evidence.

9) During the selection of the jury the government utilized a race register to eliminate potential members solely of the basis of being African Americans. The judge denied the defense motions to stop the government continuing that illegal practice known as Batson Violation, in reference to a legal precedent established in an earlier trial.

THE PANEL’S DECISION

After a hearing on March 10, 2004, where both sides responded to questions from the judges on the main issues of the appeal, and after the judges reviewed the evidence and documentation in the case, the panel issued its ruling, which was published on August 9, 2005. In that ruling, they only responded to the first issue raised by the defense, in relation to the venue or place where the trial was held.

The ruling says that the strong prejudices of the Miami community against Fidel Castro, the Cuban government and its agents, along with the publicity surrounding the trial and other events in the community (the case of the Cuban boy Elián González) combined in such a way as to create a situation where it was impossible for the defendants to receive an impartial trial. For that reason, they revoked their sentences and sent the case to a new trial.

According to the judges, the proceedings took place under what they called "a perfect storm," comprising community prejudice against the defendants, heavy publicity before and during the trial, and the manipulation of the government and some of its witnesses with inappropriate expressions before the jury, with the clear goal of fanning that prejudice. They also acknowledge that defense lawyers presented sufficient evidence in their requests for a change of venue for the judge to have moved the trial elsewhere.

In addition, they said that even with overturning the sentences and organizing a retrial, the other questions raised in the appeal would not be resolved.

In short, out of all of the questions raised by the defense for the Five, the three-judge panel ruled solely on the one related to the trial venue, which was the main issue, given it had to do with a violation of the Constitution.

AN EXCEPTIONAL APPEAL

According to U.S. federal criminal proceedings rules, it is not beneficial to review an appeals court panel ruling, and therefore it should have been received by both sides, with the case being sent once again to the Miami court so that a new trial could take place in a venue without conditions of hostility toward the defendants. The judges’ ruling should have been respected.

Notwithstanding that, the U.S. Attorney General’s office submitted a request for an exceptional hearing before a plenum of the Atlanta Appeals Court’s judges to review the ruling issued by the three-judge panel. The plenum is comprised of 12 judges in total.

Exactly one year after the sentences were overturned —August 9, 2006— the plenum of the judges in the Atlanta Appeals Court, in a majority decision of 10-2, rendered null and void the ruling of the three federal judges assigned to hear the appeal, and ruled that the case go back to the plenum to decide on questions that had not been resolved on August 9, 2005.

Despite the defendants’ dissatisfaction with this ruling, it was not possible at that time to take it to the U.S. Supreme Court, given that it is legally established that as long as long as there are issues pending in the Circuit Court of Appeals, a case cannot be taken to the Supreme Court.

Conclusion: All of the documentation was returned to the hands of Birch, Kravitch and Oakes so that they could settle the pending questions in the appeal, which are those raised in the original documents, except for the one related to a change of venue.

Consequence: New documents from the defense and government representatives addressed to the panel, defending their respective positions and the indication of a new hearing to be held on August 20, 2007.

Meanwhile, with the passing of time, Judge Oakes was retired, and in his place, Judge William H. Prior Jr., an active judge on the Atlanta Circuit of Appeals, was appointed.

WHAT HAPPENED ON AUGUST 20, 2007?

An oral hearing was held, more for the benefit of the judges than of the two sides in the case. While the legal representatives of the defendants and the government attempted to present their main points of view, the judges decided on which aspects of each issue they wanted to address, with the aim of clarifying their questions and taking positions after having read and studied the reasons presented by the attorneys in their respective documents.

In that context, the judges decided that the factors that would be discussed prior to that day would be, in the first place, those related to the poor conduct of the government during the trial and subsequently relating to the lack of evidence for the convictions on charges of conspiracy to commit murder and to commit espionage. Likewise, they ordered the government to present in court within 15 days the documents sealed under CIPA regulations, to which the defense never had access to since the beginning of the proceedings.

Each side had 30 minutes to present its arguments. It was a difficult task for the speakers. In front of them, a clock marked the minutes, and changed color as time went by: green at the beginning, yellow close to the end and red when time was up. The judges interrupted the lawyers at any time, asking any question about any legal aspect of the appeal or evidence in the case and their interpretation. Sometimes they asked questions the way a professor does of his student; at others, they made ironic comments on their thinking. Also, in assuming the role of devil’s advocate, they were incisive with both sides without anything signifying any indication of what decision they would make later.

One significant and important detail marked this hearing. More than 70 observers from the United States and from other countries, organized by the solidarity campaign with the Five, attended the hearing to hear the arguments of both sides at first hand. Representatives of international lawyers’ organizations, Latin American deputies, experts from Europe and elsewhere and leaders of solidarity organizations were witness to the lack of response on the part of Assistant U.S. Attorney Caroline Heck Millar in response to questions from the judges related to the lack of evidence for the main charges that the Five were sentenced on. It was clear to everybody that there was no evidence to justify an accusation of conspiracy to commit murder, and that in all of the trial documents, there was not one action indicating intention to obtain information related to the national defense of the United States during the defendants’ stay in that country.

Once the intellectual exercise was over, there were no rulings. It is a matter of waiting, and federal law does not establish terms for judges to issue their ruling. Anybody would be right to believe that there have been too many years of degrading imprisonment for justice to be done. On the other hand, two members of this panel (Birch and Kravitch) demonstrated to us with their previous ruling that they are committed to the law, when they overturned the sentences after realizing that the Five’s Constitutional rights had been violated by holding the trial in Miami, and subsequently vigorously opposed, even as minority, the majority decision of the plenum.

We are debating between two ideas of resistance and hope expressed by two of our brothers in their defense arguments during the hearings where the cruel sentences we are now appealing were handed down.

One, from René González: "...And while these sordid years are becoming history and after a mountain of arguments, motions and technicalities, a history of blackmail, abuse of power and the most absolute disregard for such a powerful system of justice is being buried; in order to polish it and make it shine like it never did, we will continue to appeal to the values of Washington, Jefferson and Lincoln and the vocation for truth of the U.S. people, with all of the patience, faith and courage that can be inspired by the crime of being honorable."

The other, from Gerardo: "...I trust that if not on this one, then on some other level of the system, reason and justice will prevail over political prejudice and the desire for revenge and it will be understood that we have done no harm to this country to deserve such convictions. But even if that were not so, I would ask to repeat the words of one of the greatest patriots of this nation, Nathan Hale, when he said, ‘I regret that I have but one life to give for my country.’"

On August 20, 2007, once again and for the third time, the resounding arguments of the defense were presented to the judges of the 11th Circuit Court of Appeals in Atlanta. We hope that values prevail, and that this panel of judges, once and for all, put an end to the sacrifice of five useful men and their valuable lives. •