United States: Outpouring of support for the Cuban Five

March 28, 2009

The United States authorities indicted five Cubans in Miami in 1998 for their role as agents of Cuban security, infiltrating right-wing Cuban terrorist groups. The Cuban Five requested that the trial judge move their trial out of Miami, arguing it was impossible to receive a fair trail in a city renowned for its fanatically anti-Castro Cuban exile community.

The judge refused and the five were found guilty on all charges against them. They received maximum sentences — life in the case of Gerardo Hernandez. On appeal, a three-judge panel of the federal Court of Appeals for the Eleventh Circuit reversed the convictions and ordered a new trial. However, this decision was subsequently overturned.

The five, who have helped warn Cuban authorities of planned terrorist acts that threatened Cuban lives and property, are viewed in Cuba as heroes and an international campaign is underway to win their freedom.

The article below is abridged from a March 6 statement by the Center for Constitutional Rights.

* * *

In a previously unheard-of 12 separate briefs, an array of supporters worldwide — including ten Nobel Prize winners who have championed human rights; the Mexican Senate; and Mary Robinson, the former UN High Commissioner for Human Rights and former Irish president — today filed amicus curiae (friend of the court) briefs imploring the US Supreme Court to review the Miami convictions of five Cuban government workers, the so-called Cuban Five.

Those participants in the briefs were joined by hundreds of parliamentarians from the European Parliament and other parliaments around the world, including two former presidents and three current vice-presidents of the European Parliament — as well as numerous US and foreign bar associations and human rights organisations.

This is the largest number of amicus briefs ever to have urged the Supreme Court to review a criminal conviction.

This extraordinary support for the Cuban Five's case arises from widespread concern, in the US and around the world, that their trial was conducted in an atmosphere tainted by prejudice against people working for the Cuban government and fear of retaliation, which amici say prevented the jury from fairly evaluating the charges against the five.

Among others, the United Nations Human Rights Commission has condemned the Miami trial of the Cubans, marking the first and only time in history that this body has condemned a US judicial proceeding.

Citing a "climate of bias and prejudice" in Miami, the commission's Working Group on Arbitrary Detentions concluded that the "trial did not take place in the climate of objectivity and impartiality that is required to conform to the standards of a fair trial".

The filed amicus briefs ask the Supreme Court to review the fairness of trying the Cuban government agents with a Miami jury.

"The trial and conviction of the Cuban 5 is a national embarrassment", explained Michael Ratner, president of the Center for Constitutional Rights, which represented the Nobelists in filing their amicus brief.

"Our clients, ten Nobel Prize winners, acclaimed for their efforts to advance human rights, believe the trial was an international embarrassment as well. This was a trial that should have never occurred in Miami.

"There was no way that a jury from Miami, with its history of violence and intimidation against the Cuban government, could have reached a verdict free from retaliation by the anti-Castro community."

Several of the amicus briefs filed by US organisations also ask the Supreme Court to review the prosecution's striking of African-Americans from the jury. The prosecutor used seven of nine "peremptory challenges" (where no explanation need be given to strike a juror) to strike Black jurors.

The Court of Appeals ruled that no inquiry need be made into the prosecutor's motives because three other Black jurors, a minority on the 12-person jury, were seated. Amici maintain that this allows prosecutors to mask their manipulation of the racial make-up of a jury.

The US government's brief in opposition is due April 6. The court is likely to decide whether to grant a review before its summer recess in June.

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