Cuban 5 Case Rejected by High Court

By Jonathan Springston

HAVANA TIMES, June 16 (IPS) — The U.S. Supreme Court on Monday denied taking up an appeal of a group of Cuban intelligence agents accused of conspiring to spy in the United States.

The justices declined, without comment, to review a 2008 decision from the Eleventh Circuit Court of Appeals that said the so-called “Cuban Five” had failed to prove they received an unfair trial in Miami, the centre of the Cuban-American community.

“Based on the experience that we have had, I am not surprised by the Supreme Court’s decision. I have no confidence at all in the justice system of the United States,” Gerardo Hernandez, one of the Five, said in a statement released through the National Committee to Free the Cuban Five.

“It is a case of critical importance regarding a constitutional right to a fair, impartial jury trial,” Gloria La Riva, national coordinator of the National Committee, told IPS. “This should have been a primary concern to the Supreme Court.”

In January, lawyers for Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez, and Rene Gonzalez (no relation to Fernando) filed a writ of certiorari with the Court.

The U.S. Department of Justice filed a brief in May recommending the Supreme Court deny the writ, arguing the trial and convictions were fair and the defendants had not provided enough evidence to prove otherwise.

In its response to the Justice Department brief, attorneys for the Five said, “This is a signal case in the international community regarding our nation’s commitment to the principle of due process. The petition seeks review of an en banc ruling upholding the only U.S. trial ever condemned by the U.N. Human Rights Commission.”

Ten Nobel Peace Prize winners as well as lawyers and legal groups from over a dozen countries filed amicus briefs urging the Court to intervene.

Political Case from Start to Finish

“There are no longer any doubts that our case has been, from the beginning, a political case, because not only did we have the necessary legal arguments for the Court to review it, we also have the growing international support as reflected in the amicus briefs presented to the Court in our favor,” Hernandez said.

The men, who are part of what Cuban intelligence calls “The Wasp Network”, have admitted that they are Cuban agents but denied spying on the United States or gathering and transmitting classified military secrets, and denied involvement in a 1996 shoot-down of two planes that resulted in the deaths of four men.

On Feb. 24, 1996, the Cuban Air Force shot down two of three planes flying away from Cuba in international airspace. The incident resulted in the deaths of two pilots and two passengers belonging to Miami-based Brothers to the Rescue, an anti-Castro group that worked to rescue those fleeing the island in rafts and which dropped pro-democracy pamphlets on Cuba.

In 2001, a Miami court sentenced the Five to four life sentences and a combined 75 years in prison for, among other charges, conspiracy to commit murder and conspiracy to commit espionage against the United States.

For their actions, the Five have been hailed as heroes in Cuba and elsewhere but anti-Castro and exile groups, especially in the United States, argue the punishment is justified.

“Their only mission in Miami was to prevent terrorist attacks,” La Riva said of the Five.

A three-judge panel of the Eleventh Circuit overturned all five’s convictions in 2005 on the grounds there should have been a change of venue from Miami, where the trial received negative coverage and prevented the men from receiving a fair trial, to another location.

La Riva told IPS “it is an indisputable fact” that the Five “could never hope to receive a fair trial” in Miami.

The full Eleventh Circuit reversed the 2005 decision a year later rejecting the claim the trial should have been moved from Miami.

The case again came before a three-judge panel of the Eleventh Circuit in 2007. In June 2008, the panel vacated three sentences – two of which were for life – and sent them back to a federal court in Miami for re-sentencing based on the panel’s opinion that none of the five men gathered classified military information while in the United States.

Judges vacated the life sentences of Rene Gonzalez and Guerrero, concurring with their argument that their sentences were improperly configured because they did not gather or transmit classified information.

The judges ruled Fernando Gonzalez’s 19-year sentence to be too harsh because he was not a supervisor of The Wasp Network.

However, the panel upheld the life sentence for conspiracy to commit murder for Hernandez. Judge Phyllis Kravitch, in a dissenting opinion, argued the United States does not have sufficient evidence to uphold his conviction.

In its January writ, attorneys for the Five asked the Supreme Court to specifically address Hernandez’s sentence as it “illustrates the manifest unfairness of petitioners’ trial.”

La Riva told IPS Monday while they “are extremely disappointed” over the Supreme Court’s decision, supporters of the Five are planning future actions, including a protest late Monday in front of the federal building in San Francisco where the committee is headquartered.

In the days leading up to Monday’s decision, other rallies, protests, and forums took place in Venezuela, Ukraine, Germany and Peru, as well as the U.S. cities of San Diego, Minneapolis and Atlanta.

La Riva said attorneys for the Five would move forward with other legal challenges, possibly filing a writ of habeas corpus with the Supreme Court in the near future. She also said supporters are calling on the Obama administration to free the Five.

“We continue to be inspired by the five brothers’ resistance,” La Riva said. “We pledge to continue the fight until they are home free.”

For more on the Supreme Court decision and the Cuban Five case see: http://www.thecuban5.org