Persuasive evidence of prejudice in the Miami community against the Cuban government and its agents is set forth in the record and the Petition.

However, that prejudice, and whether local jurors could decide the case free from this bias, is not the only lens for determining whether Petitioners received a fair trial. Assuming some jurors were free from that prejudice, a crucial question remains about the role that fear and intimidation played. Even if a juror harbored no bias against the Cuban government or its agents, or even Petitioners who were so identified, he or she might have felt it was too risky to fail to support conviction. Fears would have ranged from shunning, to difficulties with Hispanic and Cuban friends, to workplace retaliation, to physical injury and possibly even death.

A number of objective factors show that jurors could not decide this case free from fear and intimidation and thus demonstrate that Petitioners did not receive a fair trial: (1) pervasive intimidation in the Miami community including violence against those deemed "sympathetic" to the Cuban government; (2) jurors’ voir dire testimony; (3) media focus on the jurors, ensuring that their identities and faces were widely recognized and that they could not escape the community’s eyes; (4) the fight over Elián González and the commemoration of the fifth anniversary of the shoot down of BTTR; and (5) the prosecutor’s summation, which reinforced juror fear and intimidation.

These factors also made it difficult for jurors to voice their fears since such articulation alone could lead to negative consequences. In the Miami-Dade venue, there was simply no way to protect the jury from being enveloped in a cloud of intimidation— intimidation that had followed the dominant narrative in Miami for decades and that continued through the trial. The fact that no Cuban-Americans served on the jury did not guarantee a fair and impartial trial. On the contrary, no member of the community could escape the dominant community ethos of punishing and ostracizing those perceived as sympathetic to the Cuban government. Jurors’ fears of such reprisal arose not only from the Miami community’s historical violence against and intimidation of those deemed not sufficiently hostile to the Castro regime, but also from contemporaneous acts of retaliation.

1. A demand for strict allegiance to an anti- Castro narrative has pervaded the Miami community for decades. The dream of returning to Cuba and overthrowing Castro had become an overriding community passion, and dissent from that vision was a punishable offense. See JOAN DIDION, MIAMI passim

(1987). In April of 2000, The New York Times reported, "In Miami, Cuban Americans who favour more open relations with Havana say that advocating an end to the American embargo of Cuba or closer ties to the island has always brought scorn and threats and, in some cases, violence." Juan Forero, The Elian Gonzales Case: The Cuban Americans; In Miami, Some Cuban Americans Takes Less Popular Views, N.Y. TIMES, Apr. 27, 2000, at A1. In 1992, Human Rights Watch released a report documenting harassment, intimidation, and violence (including bombings, beatings and death threats) against Miami residents because of their moderate political views toward Castro or Cuban relations. HUMAN RIGHTS WATCH, DANGEROUS DIALOGUE: ATTACKS ON FREEDOM OF EXPRESSION IN MIAMI’S CUBAN EXILE COMMUNITY (1992). A second report was issued in 1994 when Miami residents who attended a conference in Cuba were besieged by death threats, bomb threats, verbal assaults, and economic retaliation. (Pet. App. 296a.)

Appendix A to this brief entitled, "Chronology of News Accounts Concerning Cuba-Related Violence in the Miami Area" lists acts that occurred between 1987 and 2000. This chronology does not describe the myriad other forms of retaliation, short of physical violence, employed to intimidate dissenters. Acts of harassment and violence by anti-Castro exile groups date at least as far back to the 1974 bombings of a Spanish-language publication, Replica. (Pet. App. 171a.) Two years later, radio journalist Emilio Millan's legs were blown off in a car bomb after he spoke out against exile violence. (Id.) As set forth in Appendix A, such incidents have continued for more than twenty-five years. They include bombings and arson attacks against businesses involved in or promoting commerce with, travel to, or humanitarian aid to Cuba; bombings of radio stations and print news offices, and death threats against journalists advocating dialogue with Cuba; and harassment of and assaults against Cuban artists and musicians performing in Miami.

In his dissent from the Eleventh Circuit’s en banc decision, Judge Birch noted that trial evidence detailed the clandestine activities of "various Cuban exile groups and their paramilitary camps that continue to operate in the Miami area," such that "the perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable." (Pet. App. 312a.)

2. Voir dire testimony revealed that many prospective jurors feared for their safety or community standing if they voted to acquit Petitioners. When asked about a verdict’s potential impact, prospective juror David Cuevas stated, "I would feel a little bit intimidated and maybe a little fearful for my own safety if I didn't come back with a verdict that was in agreement with what the Cuban community feels, how they think the verdict should be," and that, "based on my own contact with other Cubans and how they feel about issues dealing with

Cuba—anything dealing with communism they are against," he believed "they would have a strong opinion" about the outcome. (Pet. App. 176a.)

Jess Lawhorn, Jr., a banker and senior vice president in charge of housing loans, was "concern[ed] how ... public opinion might affect [his] ability to do his job" because he dealt with developers in the Hispanic community and knew that the case was "high profile enough that there may be strong opinions" which could "affect his ability to generate loans." (Pet. App. 176a-77a.) The trial judge also referred to the "impassioned Cuban exile community residing within this venue." (Pet. App. 126a.)

The fear reflected by these voir dire responses is confirmed in the results of a survey conducted by Professor Gary Patrick Moran on behalf of Petitioners. Over one-third of those polled said they would be worried about community criticism if they served on a jury that reached a not-guilty verdict in a Cuban spy case. (Pet. App. 236a.)

3. The media’s attention to the trial and broad dissemination of jurors’ names and identities meant that they could not escape community scrutiny. The jurors could not help but consider how the community might respond to a vote that contradicted the dominant community narrative. On the first day of voir dire, potential jurors were exposed to a press conference held by the victims’ families on the courthouse steps. At that time, members of the press approached some of the prospective jurors. (Pet. App.175a.) During the second week of jury selection, one prospective juror complained of media harassment as he left the courthouse. (Pet. App. 253a.) As late as March 13, nearly four months into the trial, the court noted on the record that jurors were still being harassed by media. (Pet. App. 290a.)

On the first day of deliberations, jurors complained of feeling intimidated because television cameras were following them. The court responded by modifying the path of their entry to the courthouse. Despite this, the jurors were filmed again entering and leaving the courthouse "all the way to their cars."

(Pet. App. 291a.) Well into the second week of jury selection, a prospective juror complained of media harassment as he left the courthouse. (Pet. App.

253a.) The district court commented on the "tremendous number of requests" for disclosure of jurors’ voir dire questionnaires (Pet. App. 412a) and requests for the names of deliberating jurors once deliberations began (Pet. App. 124a). As late as March 13, nearly four months into the trial, the Court noted on the record that jurors were still being harassed by media. (Pet. App. 290a.) The district court repeatedly expressed concern about the media’s intrusiveness and the futility of attempting to insulate the jury, but took no remedial action.

As Judge Birch noted in his dissent, "The electronic eyes of the community were focused upon them and the jury could not help but understand that focus." (Pet. App. 201a.) See also HUMAN RIGHTS WATCH, DANGEROUS DIALOGUE: ATTACKS ON FREEDOM OF EXPRESSION IN MIAMI’S CUBAN EXILE COMMUNITY (1992) (describing historic role of the Spanish language media in identifying and warning those who expressed opinions that differed from the anti- Castro community).

4. Two contemporaneous events reinforced jurors’ fears of violence against them should they support a verdict favoring Petitioners. First, the case of Elián González stoked the exile community’s fervor against the Cuban government and perceived sympathizers.The media focus on the Elián González matter was continuous and pervasive, persisting from November 1999 to at least June 2002. It was impossible to insulate the jury from these volatile sentiments.

Published interviews of Cuban-Americans reveal the passions aroused by the matter. Dr. Max Castro, a senior research associate at the University of Miami who studies the exile community, said "I’ve never seen it so polarized." Forero, supra, at A1. Hilda Cossio Cohen said she was disheartened by what she heard after coverage of the Elián case began. "I think this thing has set us back 40 years," she said. "It’s driven a wedge in the Cuban community." Id.

Second, the fifth anniversary of the shooting of the BTTR planes occurred during the trial. Over the February 24, 2001 weekend, commemorative flights, demonstrations, and public ceremonies marked the anniversary and the deaths of the people on the flights. Television interviews and newspaper articles amply covered those events. (Pet. App. 121a-2a, 194a-5a, 242a-3a.)

Petitioners asked the trial court to declare a mistrial because the commemoration "received a great deal of publicity, all of which was biased against the defendants and consistent with the government's position at trial." (Pet. App. 122a.) They maintained that "[n]o amount of voir dire or instructions to the jury [could] cure the taint, whose ripple effects are difficult to measure." (Id.) They also requested a mistrial so that a fair trial could be held "in a venue where community prejudices against the defendants [were] not so deeply embedded and fanned by the local media." (Id.) Within the context of such actions by Miami exile community, it is difficult to imagine that a jury could have acted free from fear of harm or repercussion if the trial resulted in an outcome favorable to Petitioners.

5. The prosecutor’s trial summation fed on the dominant narrative to opposition to the Castro regime, which was literally enforced by the exile Miami community. The prosecutor argued that the jurors had to choose between a verdict for the Cuban government and a verdict for the community. He said that "the Cuban government" had a "huge" stake in the outcome of the case and that the jurors would be abandoning their community unless they found