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Posted November 02, 2005 by mattlawrence in Cuba Human Rights

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Miami’s Cuban spy case has taken another turn in the U.S. Court of Appeals, with a ruling reinstating the original convictions. A final ruling may take months.

FEDERAL COURT

BY JAY WEAVER
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A federal appeals court jolted Miami with another electrifying ruling in the case of five Cuban men accused of spying for Fidel Castro—reinstating their original convictions in the 2001 trial.

The 11th U.S. Circuit Court of Appeals late Monday threw out a ruling in August by a three-judge appellate panel that had overturned those convictions.

The decision pleased relatives of four Miami exile pilots who were fatally shot down over international waters in 1996 by the Cuban Air Force in an alleged plot linked to the espionage case.

Now the appeals process starts all over again. The Atlanta appellate court must decide whether the five Cuban defendants—convicted of infiltrating Miami’s exile community and trying to pass U.S. military secrets to Havana—received a fair trial in a community that despises Castro.

This time, a majority of the 12-member appellate court has agreed to rehear the so-called Cuban Five’s appeal, which leaves the case in limbo for several more months.

Maggie Alejandre Khuly, whose brother, Armando Alejandre Jr., was one of four Brothers to the Rescue pilots killed on Feb. 24, 1996, hopes the court upholds the convictions.

‘‘We said throughout the trial we believed in the U.S. justice system,’’ she said. ``We certainly hope this court agrees this was a just verdict.’‘

The other Brothers to the Rescue victims were Carlos Costa, Mario de la Peña and Pablo Morales. The exile organization conducted humanitarian missions over the Florida Straits and leafleted Cuba.

Prosecutors in the U.S. Attorney’s Office said they were ‘‘gratified’’ with the full court’s decision to rehear the appeal, which came in a brief response to their challenge in September.

PRETRIAL PUBLICITY

In August, the 11th Circuit’s three-judge panel found that pretrial publicity—from the community’s anti-Castro views and the heavy media coverage to the hangover from the Elián González custody battle—made it impossible for the defendants to receive a fair jury trial in Miami. Its 93-page decision meant the retrial would have to be conducted in a city outside of Miami.

But in a petition, Acting U.S. Attorney R. Alexander Acosta asked all 12 members of the appellate court to review the ruling.

Such requests are rarely granted, according to legal experts. They said the appellate panel cited so much overwhelming evidence—including a court-approved, pretrial survey showing widespread community prejudice toward the five Cuban defendants—that there was nothing factually for prosecutors to challenge.

But Acosta disagreed, saying the panel’s ruling ran contrary to legal precedents in that court and the Supreme Court.

Former U.S. Attorney Guy Lewis, whose office prosecuted the spy case during his tenure, said the panel’s opinion was flawed because not a single Cuban American was picked as a juror.

‘‘Any suggestion that a jury can’t sit in [Miami], especially under the extraordinary oversight that occurred with Judge Lenard, is wrong,’’ Lewis said.

Lewis said the 11th Circuit’s decision to rehear the appeal as a full court bodes well for the prosecution.

‘‘Why would the court inject itself into something so volatile if there wasn’t going to be a change at the end of the day?’’ he asked. ``My experience is, courts of appeals are very, very reluctant to throw out jury verdicts absent extraordinary circumstances.’‘

In July 2000, U.S. District Judge Joan Lenard, who presided over the trial, denied the motion by the five defendants to move their espionage trial outside Miami. The judge said she believed that an impartial, 12-person jury could be selected from the community.

Her ruling followed the federal government’s decision to send 6-year-old rafter Elián González back to Cuba to live with his father, raising a furor in Miami’s Cuban-American community.

The six-month spy trial ended with the five defendants’ convictions in June 2001. Gerardo Hernández, Ramon Labañino and Antonio Guerrero all received life sentences from Lenard. Hernández was convicted of conspiracy to commit murder for his alleged role in the 1996 shooting by Cuban fighters of two Brothers to the Rescue planes.

Rene González, a pilot accused of faking his defection to insinuate himself into Brothers to the Rescue, was sentenced to 15 years in prison. Fernando González, no relation, was sentenced to 19 years for trying to infiltrate the offices of Cuban-American politicians and shadowing prominent exiles.

`DISAPPOINTMENT’

Attorney Paul McKenna, who represented Hernández, said the latest court opinion was a ‘‘disappointment,’’ but not an indication of how the entire court might rule on the Cuban Five’s appeal.

‘‘The issue is not were these jurors on this [Miami] panel fair,’’ he said. ``The issue is whether this jury was tainted because of the community’s sentiment toward Castro and the Cuban government.’‘

Jose Basulto, founder of Brothers to the Rescue, praised the 11th Circuit’s decision to rehear the appeal, saying exile politics did not poison Miami jurors.

‘‘The Cuban-American population is open-minded enough not to exert any type of pressure on jurors,’’ he said.

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