8-20-07, 10:14 am

(APN) ATLANTA -- Lawyers, jurists and others from across the United States, Latin America, and Europe descended on Atlanta, Georgia, for a reception held Sunday, August 19, 2007, at the Candler Building downtown, to update the public on the legal battle being fought on behalf of the 'Cuban Five.'

In advance of court appearances tomorrow, Monday, August 20, 2007, the National Committee to Free the Cuban Five (NCFCF) thanked activists for the work they have done to help the five men who they believe have been wrongly imprisoned by the US.

'In the name of the family of the five…I thank you from my heart,' Roberto Gonzalez, brother of Rene Gonzalez, one of the five men, told the crowd.

Local activists including members of the International Action Center, Atlanta Cuban Solidarity, and others were in attendance.

Gerardo Hernandez, Antonio Guerrero, Ramon Labanino, Fernando Gonzalez, and Rene Gonzalez (no relation to Fernando), were convicted in 2001 of, among other charges, conspiracy to commit murder and conspiracy to commit espionage against the US, and sentenced to four life sentences and 75 years in jail collectively.

Now these men are hoping their attorneys can successfully argue Monday before a three-judge panel at the Eleventh Circuit Court of Appeals in Atlanta, that the evidence brought by the government before a Miami, Florida, jury was insufficient to sustain their convictions.

'We know there is no reason whatsoever for keeping those five anti-terrorist fighters in prison,' Dagoberto Rodriguez, head of the Cuban Interests Section at The Embassy of Switzerland, said. 'Their only crime was to be here for saving Cuban lives and American lives as well.'

The prosecution and defense will have 30 minutes apiece to make their case to the three judges. Many in attendance at the Sunday reception will observe the hearing.

'We want to obtain freedom and justice for our brothers who have fought terrorism,' Andres Gomez, a member of the NCFCF, said.

Two of the judges, Stanley Birch and Phyllis Kravitch, sat on a three-judge panel at the Eleventh Circuit which threw out the verdicts in August 2005.

The panel at that time ruled that because of prosecutorial misconduct and strong prejudices in Miami, the men could not have received a fair trial.

A jury with no Cuban-Americans heard what amounts to over 100 volumes of testimony and saw over 20,000 pages of exhibits for nearly seven months, yet only took four days to convict the men on all counts, in which time they did not ask questions or make one request to review any testimony.

Leonard Weinglass, one of several attorneys for the Cuban Five, said the prosecutor made a number of allegations to the jury during his final argument 'which were outside the evidence that were presented' and 'outside the bounds of proper arguments.'

'This case was an injustice to the five men,' he said.

'Our trial was converted into a propaganda campaign by the prosecutors, stirring up prejudices against Cuba among the jurors, to achieve a conviction,' Rene Gonzalez said in a statement on the NCFCF website.

The Eleventh Circuit full panel reinstated the sentences and agreed to hear an appeal from the US prosecutors in October 2005. Birch and Kravitch wrote dissenting opinions strongly in favor of the Cuban Five.

After hearing this appeal in an 'en banc' hearing, the Eleventh Circuit full panel affirmed in August 2006 the refusal of the US District Court in Miami to change venue, and denied a new trial. The defense filed motions for a change of venue five times during the original trial.

A third, new judge on the Eleventh Circuit Court of Appeals panel is William Pryor, a right-wing Bush appointee whose confirmation raised much controversy due to his comments on homosexuality and abortion. Bush first temporarily by-passed US Senate confirmation in 2004 by appointing Pryor during a recess appointment. The next Session, the US Senate then filibustered Pryor's nomination; Republicans then threatened to do away with filibusters; finally, a centrist coalition of Senators negotiated a deal to allow a vote on Pryor, who was then confirmed in 2005.

KEY DEFENSE ARGUMENTS

Defense attorneys will focus not only on alleged prosecutorial misconduct, but also on two key points which Weinglass believes could factor greatly in swaying the panel.

First, the defense wants the count of conspiracy to commit murder against Hernandez dismissed and his life sentence removed because of weak evidence.

The government conceded during the original trial that it could not prove Hernandez was in any way involved in the incident that resulted in the death of four members of Brothers to the Rescue, an anti-Castro, Miami-based organization.

Brothers to the Rescue had flown planes into Cuban airspace despite repeated warnings from Cuban authorities not to do so.

After flying three planes into Cuban airspace and after receiving warning from Cuban authorities, the Cuban Air Force shot down two of the three planes February 24, 1996.

'This is the first time in anyone’s memory that an individual person is being held accountable for what an Air Force of a sovereign state does in protecting its own airspace,' Weinglass said.

'They needed to blame somebody, and they chose me,' Hernandez recently told The New York Times newspaper.

Second, the defense will ask the court to set aside the convictions of conspiracy to commit espionage, a charge levied against three of the five men: Hernandez, Guerrero, and Labanino.

The US government admitted it did not have evidence to support this charge either. Using a claim of “conspiracy” lifted the burden of proof from the prosecution and allowed them to use more hearsay and circumstantial evidence.

Cuba sent the five men to Miami in the early 1990s to monitor organizations like Brothers to the Rescue which were allegedly planning terrorist attacks against Castro sympathizers. The Cuban Five successfully infiltrated some of these organizations and stopped several plots.

The US government argued at trial that these men were well-trained spies here illegally to steal military intelligence and to overthrow the US government.

Of the 20,000 documents seized from the computers of the five, not one was classified. This marks the first successful conviction of espionage in US history when no classified documents were involved.

The Pentagon issued a statement at the time of the arrest which said national security was never in danger; meanwhile, the Justice Department issued a statement admitting the five obtained no secrets, Weinglass said.

'Ours may be one of the most ridiculous accusations of espionage in the history of this country,' Hernandez said during the trial.

'If preventing the deaths of innocent human beings... and preventing a senseless invasion of Cuba is the reason I am being sentenced today, then let that sentence be welcomed,' Labanino said in 2001.

WHEN WILL THE COURT DECIDE?

When the defense argued its case before a three-judge panel in 2005, the Cuban Five had to wait 16 months for a decision from the court, according to Weinglass.

Weinglass believes the court will not take that long this time, although he did not rule out the possibility of several months passing before a decision is reached.

'We have the right to take their [Eleventh Circuit] reversal to the Supreme Court and we will do it if it is necessary,' Weinglass said.

'We are not going to depend on this decision to decide whether we will continue the struggle for the five,' Gloria La Riva, National Coordinator for the NCFCF, said. 'I know that we will all be committed to fighting for them until they are free.'

From Atlanta Progressive News

--About the author: Matthew Cardinale is the News Editor for The Atlanta Progressive News and may be reached at

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