Le he pedido a LJC en este 12 de septiembre, poder aportar un texto sencillo, personal, que tan solo trata de mostrar una muy pequeña parte de la enorme solidaridad internacional con Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González y René González que se vive desde hace muchos años en todo el mundo. En mi primera visita a Cuba, en 1992 no llegué a sentir la frustración, el dolor, el sufrimiento del pueblo cubano respecto a la agresión que desde treinta y tres años antes , venía desarrollando los EEUU contra Cuba. Si comprobé personalmente los efectos del criminal Bloqueo, las medidas para recaudar divisas de extranjeros y nacionales, me hablaron de la preparación militar de toda la población ante posibles nuevos intentos de invasión militar, etc. Pero, la vida en ese 1992 era tan normal, aparentemente, como la que yo vivía en las tierras y mares de Miguel Hernández Gilabert.
Por: Osvaldo Manuel Álvarez Torres (Master en Filosofía del Derecho)
Se cumplen el12 de septiembre, 15 años del arresto, que derivó en amañado proceso judicial, en injusto encarcelamiento, en ilegal secuestro, de cinco luchadores cubanos contra el terrorismo: Gerardo Hernández, Ramón Labañino, Fernando González, Antonio Guerrero y René González. Cuatro de ellos, siguen, después de 15 largos años, diseminados en cárceles de la geografía norteamericanas.
René, ya en Cuba, luego de extinguir íntegramente la pena impuesta, es hoy el abanderado de sus hermanos, que como bien ha dicho Gerardo, han sido y seguirán siendo LOS CINCO, para cientos de miles de personas que en el mundo, claman por su regreso ya, a la Patria.
Como se conoce, LOS CINCO fueron sentenciados a penas que oscilaron desde 15 años de prisión hasta dos cadenas perpetuas más 15 años, por monitorear y alertar a Cuba, sobre actividades violentas planeadas por grupos extremistas anticubanos asentados en el sur de la Florida.
The case was appealed to the 11thCircuit Court of Appeal, and in August 2005 a three-judge panel ruled unanimously that the defendants were denied a fair trial, based on the convergence of publicity before and during the trial, pervasive community prejudice and improper remarks by the prosecution in its closing arguments. The government appealed and, despite this being unusual in a case where a panel decision is unanimous, the full en banc appeals court decided to rehear the appeal.
In a 10-2 majority decision given in August 2006, the en banccourt reversed the panel’s decision, affirming the district court’s denial of the defendants’ motions for a change of venue and for a new trial.22The en banc majority held that the trial court’s efforts to empanel a neutral jury through an extensive voir dire and to protect jurors from media intrusion, as well as its instructions to the jury (including on the presumption of innocence), sufficiently addressed all claims of presumed prejudice.
However, the en banc court applied a narrower standard of review than the panel, largely disregarding events outside the courtroom and assessing for evidentiary value only publicity relating directly to the case against the five. It disregarded entirely the evidence of general anti-Castro sentiment in the Miami area, finding that the test of prejudice in this case was more thoroughly evaluated through the voir dire, and deferring to the trial judge’s judgment in assessing juror credibility and impartiality. The panel, in contrast, took into account the “totality of the circumstances” surrounding the case, including events both inside and outside the court-room. While acknowledging the trial judge’s efforts to ensure an impartial jury in the case, it found that empanelling such a jury in Miami was an “unreasonable probability”.
In November 2002, the defendants filed a further motion for a new trial in the interests of justice, citing newly discovered evidence. The motion argued, among other things, that the government’s position opposing a change of venue was contradicted by the position it had subsequently taken in Ramirez v Ashcroft…….
………The motion also presented evidence from Human Rights Watch reports of harassment and intimidation of Miami Cuban exiles expressing moderate political views about Cuba, and information from two further independent surveys supporting the earlier poll finding of entrenched community bias against Cuba.20One study’s author concluded that “the possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero … even if the jury were composed entirely of non-Cubans, as it was in this case.”21
The district court denied the motion, finding that the situation in Ramirezdiffered from the facts in the case of the Cuban five and was not new evidence; it declined to consider the exhibits in support of the original poll and other evidence of anti-Cuban bias in the venire because it found that this had not been filed on a timely basis.
In November 2002, the defendants filed a further motion for a new trial in the interests of justice, citing newly discovered evidence. The motion argued, among other things, that the government’s position opposing a change of venue was contradicted by the position it had subsequently taken in Ramirez v Ashcroft. This was an action brought against the US government by a Hispanic employee of the US immigration service, alleging that he had been subjected to retaliation and intimidation by colleagues due to the government’s removal of Elián González to Cuba. In court documents, the government stated that “it will be virtually impossible to ensure that the defendants will receive a fair trial if the trial is held in Miami-Dade County.”18It submitted that a move to the Fort Lauderdale division courthouse would be sufficient, noting that all the demonstrations which took place around the Elián González affair took place in Miami and that “as you move the case out of Miami Dade you have less likelihood there are going to be deep-seated … prejudices in the case”.19
In August 2001, two months after their convictions, the defendants moved for a new trial and change of venue in the interests of justice, arguing that fears of presumed prejudice remained despite the district court’s efforts to empanel a neutral jury. It was asserted that the jury’s failure to ask a single question and its relatively speedy verdicts after only five days of deliberation following a lengthy, complex trial, also suggested that it was subject to pressure and prejudice. The district court again denied the motions, citing the measures it had taken to ensure a fair trial.1
During the voir dire, the defence used their peremptory challenges to remove all Cuban Americans from the jury and the final jury was empanelled without objection. However, motions for a mistrial and change of venue were renewed twice during the trial, based on community events and further publicity about the case after the trial opened (see 11thcircuit panel decision, below). Although the motions were denied, the trial judge had to take action to protect the jurors from unwarranted media scrutiny on several occasions. During the voir dire and the main trial, jurors were filmed or approached by the media and some complained of feeling pressurized, causing the judge to modify their arrangements for leaving and entering the courthouse.