Community Prejudice Against Anyone Associated With The Cuban Government

The only way to avoid finding that community bias against the Cuban government had so infected public debate that a change of venue was required for a fair and impartial jury, was to ignore the evidence.

This is precisely what the Eleventh Circuit and the trial court did. In evaluating the prejudice against Petitioners, the Eleventh Circuit refused to consider any evidence that did not directly name Petitioners or their alleged crimes. The district court refused to hear evidence "relate[d] to events other than the espionage activities in which the Defendants were allegedly involved." (Pet. App. 330a.) In other words, both courts refused to review or weigh any factual support for the seemingly self-evident proposition that anti-Castro prejudice pervades the Miami-Dade community. Not only did the Eleventh Circuit make "no findings regarding the prejudice within the community" (Pet. App. 211a), it also refused to consider the effect of contemporaneous occurrences such as the fate of Elián González. It found such evidence per se irrelevant to whether Petitioners could receive a fair trial in Miami. (Pet. App. 136a.)

The presence of the powerful anti-Castro sentiment in the Miami community was demonstrated in Petitioners’ motions for a change of venue. In his dissent from the Eleventh Circuit’s decision, Judge Birch noted that "the evidence submitted in support of the motion . . . was massive." (Pet. App. 164a.) In addition, the voir dire demonstrated that the community was virulently anti-Castro. Finally, the survey results submitted by Petitioners substantiated the "atmosphere of great hostility towards any person associated with the Castro regime." (Pet. App. 164a) The anti-Castro bias was so powerful that real or apparent deviation from it was avoided.

The fact that the crimes of militant exiles were treated with impunity reinforced the validity of the community’s anti-Castro sentiment. That militant exiles could possess illegal weapons and explosives yet not be charged with breaking the law served as government sanction of the harassment and intimidation practiced by the exile community.

For example, the jury was informed that a member of Alpha 66, Rodolfo Frometa, was stopped on October 19, 1993 while in a boat which had been towed to Marathon, Florida, and was questioned regarding weapons onboard. (Pet. App. 187a.) The weapons included seven semi-automatic Chinese AK assault rifles and one Ruger semi-automatic mini-14 rifle with a scope. (Id.) On October 23, 1993, he was again stopped while he and others were driving a truck that was pulling a boat toward the Florida Keys. (Pet. App. 188a.) Frometa explained that they were carrying semi-automatic assault rifles in order to conduct a military training exercise to prepare for political changes in Cuba or in the case of a Cuban attack on the United States. Then they were sent on their way. (Id.) At trial it was shown that Alpha 66 members were stopped and released on February 7, 1994 for having weapons onboard their boat. Because a subsequent photograph of the group was "published in the newspapers," "[e]verybody in Miami" knew that they had been released. (Id.)

On June 2, 1994 a member of F4 was arrested after attempting to purchase C4 explosives and a "Stinger antiaircraft missile" to kill Castro and his close associates in Cuba. (Id.)

The far-reach of the community bias was further reinforced to the jurors through trial evidence showing the United States government’s failure to respond to Cuba’s requests to investigate terrorist acts in Cuba perpetrated by persons from the United States between 1990 and 1998. The Cuban government provided FBI agents with documentation of these attacks. (Pet. App. 192a.) The acts included an explosion on April 12, 1997 which destroyed the bathroom and dance floor at the discotheque Ache in the Media Cohiba Hotel; a bombing on April 27, 1997 at the Cubanacan offices in Mexico; the April 30, 1997 explosive device found on the 15th floor of the Cohiba Hotel; the July 12, 1997 explosions at the Hotel Nacional and Hotel Capri, both of which created "craters" in the hotel lobbies; the August 4, 1997 explosion at the Cohiba Hotel which created a crater in the lobby ; explosions on September 4, 1997 at the Triton Hotel, the Copacabana Hotel, the Chateau Miramar Hotel, and the Bodequita del

Medio Restaurant; and the discovery of explosive devices at the San Jose Marti International Airport in a tourist van on October 19, 1997 and underneath a kiosk on October 30, 1997. (Id.) The explosions on September 4, 1997 killed an Italian tourist at the Copacabana Hotel, injured people at the Chateau

Miramar Hotel, the Copacabana Hotel, and at the Bodequita del Medio Restaurant, and caused property damage at all locations. (Id.)

The existence of bias against the Castro regime and the overwhelming support for exile groups, such as Brothers to the Rescue, is also illustrated by the treatment received by two of the most famous anti- Castro militants--Luis Posada and Orlando Bosch.

Posada and Bosch were implicated in the October 6, 1976 attack on a Cubana airliner that killed all 73persons aboard. David Binder, Some Exiles Are Still at War With Castro, N.Y. TIMES, Oct. 20, 1976, at 3.

Bosch and Posada had received extensive training from the Central Intelligence Agency. Id. After the bombing, Posada was jailed in Venezuela at a minimum-security prison and remained there until he escaped in 1985. Simon Romero & Damien Cave Weiner, Venezuela Will Push U.S. to Hand Over Man Tied to Plane Bombing, N.Y. TIMES, Jan. 23, 2009, at A5. He surfaced in Panama where he was arrested with 33 pounds of C-4 explosives. Tim Weiner, Cuban

Exile Could Test U.S. Definition of Terrorism N.Y. TIMES, May 9, 2005, at A1. In April 2004, he received an eight-year sentence in the U.S., but was pardoned in 2008. Id.

Bosch and his associates were linked to the assassinations of Cuban exiles who disagreed with them, various bombings, and an attack on Cuban fishing boats. Binder, supra. Bosch was also linked to a 1976 bombing that killed two Cuban officials at the Cuban Embassy in Lisbon, a bombing at the Cuban

United States Mission, a bomb explosion in a luggage cart in Jamaica, the bombings of Cuban airlines office in Barbados and Panama, and the kidnapping of two Cuban embassy officials in Argentina. Id. When Bosch surfaced in Miami in 1989, the Justice Department tried for a short time to deport him, saying that he "has repeatedly expressed and demonstrated a willingness to cause indiscriminate injury and death." Jeffrey Schmalz, Furor over Castro Foe’s Fate Puts Bush on the Spot in Miami, N.Y. TIMES, Aug. 16, 1989, at A1. But the Cuban exile community came to his defense, and the Bush Administration overruled the deportation. Abby Goodnough & Marc Lacey, Legal Victory by Militant Cuban Exile Brings Both Glee and Rage, N.Y. TIMES, May 10, 2007, at A20; Weiner, supra.

Posada, who snuck into the U.S. in March or April of 2004, admitted to plotting attacks that damaged tourist spots in Cuba and killed an Italian visitor in 1997. Ann Louise Bardach & Larry Rohter, A Bombers Tale: A Cuban Exile Details the ‘Horrendous Matter’ of a Bombing Campaign, N.Y. TIMES, July 12, 1998, at A10. The U.S. refused to charge him, although the Justice Department called him "an unrepentant criminal and admitted mastermind of terrorist plots and attack on tourist sites." Mark Lacey, Castro Foe With C.I.A. Ties Puts U.S. in an Awkward Spot, N.Y. TIMES, Oct. 8, 2008, at A14. Venezuela has sought to extradite him, but thus far the U.S. has refused. Romero & Weiner, supra; Goodnough & Marc Lacey, supra.