CUBAN FIVE
Dear friends:
As the year 2004 dawns, we want to update you on the struggle
to free the Cuban Five.
Wednesday, March 10 has been set by the 11th Circuit Court of
Appeals to hear oral arguments by attorneys for the Cuban Five.
The hearing will be in Miami. As the date for the oral arguments
approaches, we will advise supporters of the feasibility of
attending the hearing, after discussions with the attorneys, with
plenty of time to make travel arrangements. The Cuban Five will
not be present at the hearing. For more information on the
hearing, an interview with Paul McKenna, attorney for Gerardo
Hernandez, conducted by Bernie Dwyer of Radio Havana Cuba,
is available on the website: www.antiterroristas.cu and on our
website: www.freethefive.org
A report on the 2003 Cuban Five activities that were organized by
supporters across the U.S. is accessible on our website. The
2003 activities report gives an idea of the many actions that were
organized. If you have more to add, please write us at:
freethefive@actionsf.org
There is also an important declaration from the National
Assembly of Cuba, acknowledging support from various
Parliaments around the world, for the Cuban Five, and urging
more parliamentary actions. It is at the end of this message.
Our priority for January and February is to raise the necessary
funds and publish the full-page ad in the New York Times. We
are aiming for a mid-February publication date. An exact date is
not possible, because by giving the newspaper the choice of
date, it greatly lowers the cost of the ad. Please give generously
to this vital campaign to help break through the media blockade
in the U.S. You can make a credit card donation at
www.freethefive.org. Already, committees in Germany, England,
Australia, Argentina, Spain, and in U.S. cities like New York,
Miami, Los Angeles, Chicago, San Francisco, and Milwaukee,
have pledged thousand of dollars. But much more is needed.
On the legal front: The defense attorneys filed briefs with the 11th
Circuit Court, in April and May. Then the prosecutors handed in
their response to the defense briefs. Then, on November 17, the
court received the final papers from the Cuban Five's attorneys.
The briefs and reply from the defense total between 600 and 700
pages. The government has filed 100 to 150 pages.
The court informed the Cuban Five attorneys that they will hear
oral arguments in Miami on Wednesday, March 10. It will
probably be in the morning. The time is limited to 15 minutes,
which narrows to 3 minutes per lawyer arguing. The attorneys for
the Five intend to file a motion to the 11th Circuit Court, asking for
additional time. Whether it will be granted is not known. At the
time the trial took place, it was the longest trial being conducted
in the United States. The record is extensive, and certainly this
case merits more time for oral arguments.
The three-judge panel from the 11th Circuit who will decide the
case is to be announced around February 24. They will be
chosen from a panel of 14 to 16 judges. The briefs, as well as
the motion for a new trial (filed by Leonard Weinglass in the
Miami federal district court on November 13, 2002, and denied
by Judge Lenard, available on our website:
http://www.freethefive.org/pdf/MotionforNewTrial111202[1].pdf)
were consolidated into one case by the appeals court, for the
purposes of the appeal. Thus, the motion and the appeal will be
heard at the same time. This is important, because the Nov.
2002 motion for a new trial expands the court record and
strengthens the venue argument, one of the main points of
appeal.
The courtroom is open to the public during the oral arguments.
Ordinarily these courtrooms are small, because appellate
procedures usually involve only the lawyers, so the courtroom is
often only large enough to seat the lawyers that day. But to the
extent that supporters of the Cuban Five are able to be present
after considerations of lawyers and family members, we will let
all their supporters know the feasibility of coming to Miami, with
time for travel arrangements. In addition, please organize
support actions in your own city around that date.
Regarding the prosecutors' response to the appeals briefs: It is
weak; the prosecutors did in their appellate briefs what they did
in the trial, they tried to impress upon whoever reads it that the
actions of the Cuban Five were harmful to the U.S., which is
absolutely false. As the Cuban Five's attorneys point out, when
the prosecutors have to argue the points of law in their response
to the defense briefs, particularly on venue, they don't spend one
sentence, for example, defending the city of Miami and the exile
community.
There are many points of appeal in the briefs. Venue is a major
point. The Cuban Five's attorneys also argue that on count 2
(conspiracy to commit espionage) and count 3 (murder
conspiracy against Gerardo Hernandez), evidence is
inadequate. The murder conspiracy charge is an unprecedented
act by the government. The act of a sovereign country in
defending its territory has never resulted before in a prosecution.
There are a number of other issues, such as excessive
sentencing. Then there are the issues of the defense being
precluded from preparing a proper defense, the mistreatment of
the defendants -- being in the hole for 17 months, and having
their documents confiscated and not returned to them, by the
government's use of the Classified Information Procedures Act,
etc.
Other points of appeal are issues that arose during the trial, for
example, the misconduct of the prosecutors, particularly in their
final argument. There is the issue of necessity defense: After
seeing the evidence of 31 documents on the violence
perpetrated against Cuba, the court refused to give the
instruction for necessity defense. In the trial, a number of
witnesses detailed the history of the terrorist actions, to explain
the justified actions of the Five Cubans in monitoring and
preventing possible terrorist attacks on Cuba. Judge Lenard
limited the necessity defense, allowing only evidence of terrorist
attacks on Cuba from 1992 forward, even though the history of
terrorism against Cuba goes back decades. Then after hearing
the evidence from 1992 forward, she took away the right of the
defense attorneys to raise the necessity defense. This is all part
of the appeal.
Then, when the Cuban Association of Criminal Sciences
(Sociedad Cubana de Ciencias Penales) sought to file an
"amicus curiae" brief in resolving the necessity defense issue
(on April 9, 2003), the court struck the brief [the brief is
available on our website by clicking:
http://www.freethefive.org/AmicusSociedadCubana.cfmin]
This is a summary sketch of the main points of appeal.
If any part of the appeal is denied, the attorneys will apply for an
"en banc" hearing, asking the entire court, the 14 or 16 judges in
the 11th circuit, to review the case. If the defense loses that, they
could ask for a petition for the Supreme Court to take the case.
Besides the legal efforts, the most important of all, for a positive
and successful outcome for the Cuban Five, is what we activists
in the progressive movement do, to mobilize, and raise public
awareness and support. This is key for us.
The attorneys for the Cuban Five have done an excellent job on
the appeals.
The rest is up to us.
The year 2004 will be critical for our brothers, who remain
steadfast while imprisoned in the United States, and whose sole
mission while in the U.S. was to struggle for peace and the
safety of their people. We urge everyone who is in support of
their fight for freedom to dedicate the coming days, weeks and
months on behalf of Antonio, Rene, Fernando, Gerardo and
Ramon to assure their return home.
FREE THE CUBAN FIVE!
National Committee to Free the Five Cuban Political Prisoners
Unjustly Held in the U.S.
From the Cuban National Assembly:
TO THE WORLD'S PARLIAMENTS AND PARLIAMENTARIANS,
TO THE LEGISLATORS AND THE PEOPLE OF THE UNITED
STATES The National Assembly of People's Power of the
Republic of Cuba has reviewed the development of international
solidarity - and parliamentary efforts especially - seeking to end
the enormous injustice committed against five young Cubans
who heroically risked their lives in the fight against terrorism and
in denouncing the cruel violation of their human rights, and those
of their families, perpetrated by American authorities. The
Assembly wishes to express its recognition and appreciation to
the numerous parliaments and members of parliament that, with
other organizations and peoples of the world, have joined this
noble effort.
The Assembly extended an especially warm salute to the State
Duma of The Russian Federation and the Chamber of Deputies
of Mexico, to the Women's Forum of the ACP-EU Joint
Parliamentary Assembly, the members of the Parliamentary
Conference of the Americas, and to the British, Irish, Argentine
and other parliaments for the agreements that they have reached
and the steps they have taken in this regard.
Gerardo Hernández, Ramón Labañino, Antonio Guerrero,
Fernando González and René González not only are victims of
terrorism, but they were unjustly punished for fighting against it.
To protect the terrorist groups that operate with impunity on US
soil, as numerous official documents attest to, was the objective
of American authorities, accusing and condemning these five
Cuban young men in a reprehensible trial that contradicts the
avowed "war on terrorism" and represents an insult to the
memory of the victims of 9-11.
As we approach the date when the Court of Appeals reviewing
this case must pass judgment, the National Assembly urge all
parliaments and parliamentarians to step up their efforts of
solidarity, and calls on U.S. legislators, and on all men and
women of good will in the United States &Mac246; for whom our five
fellow countrymen also sacrificed themselves &Mac246; to add their
voices to a demand that has an ever-growing support across the
world: the freedom of the Cuban Five.
Havana, December 23, 2003 "Year of Glorious Anniversaries of
Martí and Moncada"