New Cuban Five legal briefs: Next stage in appeals process
News from Cuba | Tuesday, 13 March 2012
By Christopher Banks for Liberation News
The Miami Five: Ramón Labañino, Fernando González, René González, Gerardo Hernández, Antonio Guerrero
In their legal briefs filed in Miami federal court in February, two of the Cuban Five-Fernando González and Ramón Labañino-responded to U.S. prosecutors with powerful arguments for why their convictions-and those of their Cuban Five compatriots-must be reversed.
At the heart of their habeas corpus appeals is the stunning revelation that many Miami journalists who vilified the Five during their 2000-2001 trial were on the U.S. government payroll, the same government that was prosecuting the Five.
In the United States, after the direct appeals process is exhausted, habeas corpus allows prisoners to challenge their detention, particularly in light of exculpatory evidence that was not known during trial. However, because of Bill Clinton’s 1996 Anti-terrorism and Effective Death Penalty Act, defendants only have one chance confined to an arbitrary one-year window to exercise this right.
Secret government payments to Miami journalists revealed
In 2006, Miami Herald reporter Oscar Corral broke a front-page story exposing 10 Miami journalists who received regular payments from the U.S. government for programs on Radio Martí and TV Martí, multi-million-dollar propaganda vehicles of the government whose purpose is promoting counterrevolution in Cuba. None of the reporters, employed by Miami’s most notable and influential media outlets, disclosed to anyone that they were receiving thousands of dollars from the government.
The exposure of a covert government-media operation in Miami is vitally important. From the very beginning of their case, the Cuban Five defense team fought to have the trial moved out of Miami-even without knowing about the government's payments to journalists. Miami is a city so infected with anti-Cuba prejudice and hysteria that it was impossible for the Five to have a fair trial there. Of course, the Cuban Five should never have been arrested in the first place, as their mission was protecting Cuba from U.S.-backed Miami-based terrorism.
The prosecution, on the other hand, capitalizing on the tainted media environment, fought tooth-and-nail to make sure the Five were tried nowhere else except Miami for reasons that are now devastatingly obvious.
Just the tip of the iceberg
On the heels of Oscar Corral’s revelation, the National Committee to Free the Cuban Five conducted what is now a three-year struggle to further expose the connection between the U.S. government and Miami reporters in relation to the case of the Five.
Multiple Freedom of Information Act requests filed by the National Committee and Liberation newspaper-with the pro bono legal assistance of the Partnership for Civil Justice Fund-revealed a much wider and deeper connection than previously known. The directing agency of Radio and TV Martí is the Broadcasting Board of Governors, which is part of the U.S. State Department. Thousands of pages of released contracts proved that the BBG has employed an entire staff of right-wing Miami journalists. The contracts show government payments of nearly $1 million to 27 journalists.
Crucially, the contracts showed that the payments stretched back to 1999, one year before the Five’s trial. In other words, the same Miami journalists who led an unprecedented media campaign against the Five before and during their trial were secretly being paid by the plaintiff in the case, the U.S. government! There is strong reason to believe that the payments go back even further but the BBG is refusing to give full disclosure.
This explosive revelation, unknown at the time of the trial, is a core part of all of the Cuban Five’s habeas corpus appeals. If it had been known during trial, there can be no doubt that the trial could not have taken place in Miami.
Gerardo Hernández, who is serving an unjust two life sentences, one for the false charge of conspiracy to commit murder, focuses his habeas corpus appeal on ineffective counsel and his actual innocence in the 1996 shoot-down of two Brothers to the Rescue planes that invaded Cuban airspace. His appeal also refers to the U.S.-paid reporters.
Habeas corpus appeals and the government’s absurd evasions
The first step in the habeas corpus process was filing a writ, a formal notice of appeal. Then a memorandum filed by each of the Five’s appeals attorneys elaborated on the arguments.
The government's response to Fernando and Ramón’s memorandums was submitted to the court at the end of 2011.
In the government’s response, rather than refute that a government agency was giving large sums of money to Miami journalists, U.S. Assistant Attorney Carolyn Heck-Miller simply claimed that the journalists were unaffected by the payments. “[Defendant’s] speculative inference that the BBG payments for services to Radio Marti must have also influenced and shaped the journalists’ non-governmental publications is without any proffered evidentiary foundation.”
In Ramón Labañino’s Feb. 19 response to Heck-Miller, his attorney William M. Norris wrote: “The Government’s response to petitioner’s due process argument is, frankly, shocking. At no point does the Government ever acknowledge that it would be improper or inconsistent with basic norms of fair play for it to secretly pay journalists in the trial venue to publish articles asserting the guilt of an accused foreign agent. ?
"But every objective observer-from the United Nations Working Group on Arbitration Detentions to former U.S. Presidents to Amnesty International-has declared that the verdict in this case raises serious due process concerns for precisely this reason."
Heck-Miller went on to claim that the payments were “modest” and therefore not capable of influencing the journalists’ views. Norris reminds Heck-Miller that “the payments were anything but modest-one journalist, Pablo Alfonso, received $58,600 during the trial alone from the Government (a total of more than $250,000 altogether), and he published articles directly about the trial, alleging the defendants’ likely guilt.”
In a particularly absurd argument of the government, Heck-Miller argued that the prosecutors and Justice Department could not have known of the State Department's payments to Miami reporters. Norris’s reply once again refutes the prosecutor: “[I]t is likely that in a case of this profile, involving such complex foreign policy issues, the State Department (which oversees the Office of Cuba Broadcasting) was at least consulted prior to the Indictment being sought.”
Joaquin Méndez, Jr., counsel for Fernando González, went even further in his response to Heck-Miller, filed on Feb. 17: “This case was approved at the highest levels of the national government, not merely by a local prosecutor. And this case concerned not some discrete criminal incident, but merely one aspect of a particularly important national objective with regard to the Cuban government, dealing with matters that included ? a purported espionage conspiracy; the agencies at issue [the BBG, the State Department, the Justice Department, etc.] were not mere ‘components of the same government,’ but were working toward the same end.”
In a case dealing with false charges of espionage conspiracy, for anyone to believe the U.S. prosecution’s claim that the State Department was not involved would also require a suspension of reality.
Government argues the impossible
After Heck-Miller argued that government prosecutors had no knowledge-and no responsibility to know-about government-paid Miami journalists, she illogically asserted that the Cuban Five and their attorneys should have known about it (!) and since they failed to raise the relevant facts during direct appeal, cannot raise that evidence now. This can be considered the grand finale of Heck-Miller’s jaw-dropping absurdity.
Fernando and Ramón’s attorneys took turns skewering Heck-Miller’s contradictory claim:
Joaquin Mendez said, “?to imagine that the defense would have known in 1999 or 2000 what the Miami Herald published as front page news about its own reporters in 2006 exceeds anything remotely addressed in the case law on which the government relies.”
William Norris, Jr. added: “The relevant information, i.e. that the government had paid these journalists, was not publicly available-the Miami Herald obtained it only through Freedom of Information Act requests-and when it was revealed [in 2006], it ‘unleashed a firestorm of protest from Cuban-Americans and others in greater Miami.’ The author of the original Miami Herald article received numerous death threats from anti-Castro activists, and had to be moved from his home. Clearly, the facts at issue were not mundane realities waiting to be cited.”
A new evidentiary hearing?
Whether the Five’s authoritative legal arguments, in correlation with mounting public support worldwide, will result in the granting of an evidentiary hearing where the issue of a government-media connection can be brought into fuller light is yet to be seen. The defense attorneys are waiting to hear whether Judge Joan Lenard will grant a hearing or not. Lenard was also the judge during the trial.
This is a long process. It has already robbed the Five of 13-1/2 years of their lives and time with their families, for the “crime” of saving lives.
It will take the continued and determined effort of the thousands of active supporters, the Five’s attorneys and the Cuban people to win their freedom.
In the meantime, the National Committee, Liberation newspaper and the Partnership for Civil Justice Fund will continue digging up more information and mobilizing the public, along with the worldwide movement, to fight for the Five’s freedom.