Hernandez was indicted for conspiracy to commit murder, a conspiracy that applies only to an "unlawful killing." To constitute an "unlawful killing" the jury had to find beyond a reasonable doubt that Hernandez had agreed to shoot down the plane in international airspace and not in Cuban airspace, as the latter would not have been unlawful. (Pet. App. 453-65a, 350a.) To say the evidence was thin on this point would be a gross exaggeration.

On appeal, the Eleventh Circuit upheld Hernandez’s conviction in a divided opinion, with two judges affirming the conviction and one judge dissenting. The dissenting judge found insufficient evidence that an agreement to shoot down the plane existed, much less one to shoot it in international airspace: "At best, the evidence shows an agreement to ‘confront’ BTTR planes." (Pet. App. 85a.) But the dissent went even further. It pointed out that even if "confront" somehow meant to shoot down the planes, it was not proof that Hernandez had agreed to a shooting in international, not Cuban, airspace. In fact, as the dissent noted, "the evidence point[ed] toward a confrontation in Cuban airspace, thus negating the requirement that he agreed to commit an unlawful act." (Pet. App. 87a.)

The majority’s conclusion that there was evidence to support the existence of the requisite agreement relies on two inferences. First, the majority relies on evidence that Hernandez was told not to let Cuban agents fly with BTTR on certain days. Even if this was somehow sufficient for the jury to infer that Hernandez had agreed to shoot the plane (although other equally possible inferences could be drawn, such as the possibility Hernandez agreed to a forced landing), it is insufficient to prove beyond a reasonable doubt that an agreement existed. Second, the majority says that because Hernandez said the operation was successful and the Cuban government issued a commendation shows agreement. However, these facts cut against the existence of any agreement. The Cuban government has consistently maintained that the shooting took place in Cuban airspace. That Hernandez deemed the operation successful and received a commendation demonstrates, if anything, that if an agreement existed it concerned a confrontation in Cuban airspace. Again, as the dissent says, "the evidence points toward a confrontation in Cuban airspace, thus negating the requirement that he agreed to commit an unlawful act." (Pet. App. 83a-6a.)

Judge Birch, who voted to uphold Hernandez’s conviction on the conspiracy to commit murder charge, wrote a special concurrence saying that, "this issue presents a very close case." (Pet. App. 71a.)

However, because of the appellate court’s "standards of review with regard to Hernandez’s conviction," Judge Birch affirmed it. (Id.) He had dissented in the en banc decision on the grounds that the request to change venue should have been granted. Read in this light, Judge Birch’s concurrence upholding

Hernandez’s verdict appears illogical. It is difficult to understand, as it should be, how he could uphold a jury verdict in a "very close case," where he previously concluded that the jury had been unfair and biased. (Id.)

While Judge Birch felt compelled to point out that the case was "close," the dissenting judge believed there was no evidence to uphold the guilty verdict. Cases fitting such a description cry out for a jury that is unblemished by even a perception of intimidation or partiality. That is not the jury that was impaneled in this case. Instead, Petitioner Hernandez was tried by a jury so tainted by the community’s bias against anyone remotely aligned with the Cuban government, that in the absence of sufficient evidence, they still found him guilty.

Petitioners’ motion for a change of venue should have been granted in the first instance, and Hernandez’s conviction for conspiracy should be reversed.

Amici are acclaimed internationally for their efforts to advance human rights in many parts of the world. They view the trial in this case as inimical to basic legal standards. It is well known that anti-

Castro forces in Miami enforce their ethos with impunity--instilling fear through acts of violence and intimidation. If fear of retribution is permitted to infect jury deliberations in a United States courtroom, the world has become a less safe place for the protection of individual rights.

For the foregoing reasons and those set forth in the Petition, the petition for a writ of certiorari should be granted.

Respectfully submitted,

Michael Ratner

Margaret Ratner Kunstler Anjana Samant

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway, New York, NY 10012

(212) 614-6464