MORNING STAR ARTICLE ON THE APPEAL HEARING IN ATLANTA REGARDING THE CASE OF THE MIAMI FIVE BY GEOFF BOTTOMS.

“WEATHERING A PERFECT STORM OF PREJUDICE”

 Nestling among the shimmering corporate skyline of downtown Atlanta, Georgia sits the majestic stone courthouse of an earlier age named after Judge Elbert P. Tuttle where cases are heard by the twelve judges of the 11^th Circuit Court of Appeals.

 On Tuesday, 14^th February the courtroom with its dark stained wooden paneled walls and brass window frames was packed for the oral hearing of the next stage in the appeal process of the case of the Miami Five that lasted for just one hour in which both the defence and the prosecution were given an equal minimum amount of time to present their arguments.

 Such en banc hearings before the full panel of appeal judges in the 11^th Circuit are highly unusual yet this is no ordinary case, with Gerardo Hernandez, Antonio Guerrero, Ramon Labanino, Rene Gonzalez and Fernando Gonzalez serving sentences in prisons scattered across the US that range from fifteen years to double life on charges that include conspiracy to commit espionage and even murder among others of a less serious nature.

 Following an earlier appeal that lasted over two years the three judge panel of the Court unanimously overturned the convictions and sentences of the Five on 9^th August 2005 on the grounds that they could not have received a fair and impartial hearing in the hostile climate of Miami during the original flawed trial that lasted seven months from November 2000 until June 2001. They argued that under the 6^th Amendment of the US Constitution all persons are guaranteed an impartial trial as a constitutional right.

 In their Opinion covering ninety-three pages the three judges came to the conclusion that “in this case a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references”.

 Yet on 28^th September the District Attorney in Miami asked for a rehearing of the case following consultation with Washington that was granted by a majority of the twelve appeal judges just a month later on 31^st October.  This time the new appeals process would focus on the two questions of major concern: the right of the Federal District Court of Miami to deny the original motions for a change of venue and the process during the trial for the selection of an impartial jury.

 Valentine’s Day may have a hint of irony about it as the day chosen for the oral hearing, with family members of the Five present in court together with international observers and supporters, alongside representatives of the anti-Cuban terrorist groups from Miami. Yet Presiding Judge J.L. Edmondson ensured a fair hearing by assuming a minimum role and allowing the rest of the panel of judges, especially Judge Stanley Birch who presided over the original appeal, to ask rapid-fire questions that put the prosecution on the ropes enabling the defence to take swift advantage of its strong position.

 All of which made Leonard Weinglass, representing Antonio Guerrero, hopeful and optimistic that finally after seven years the convictions of the Five would be reversed in spite of the fact that the 11^th Circuit Court had never found in favour of the defence throughout its entire history. As he pointed out rather ruefully, even if the case were successful and made history, “this Court will not convert the storm of prejudice (in Miami) into the bright sunny day of neutrality”.

 For the defence this is the crux of the issue. Yet Assistant US Attorney, David Buckner, arguing to leave the convictions intact, said that US District Judge Joan Lenard took sufficient precautions when selecting jurors and was able to insulate them from the passions that swirled around the six-month trial. He called her management of the trial “a model” and said there was no evidence that jurors felt any intimidation – a point that is contested by Paul McKenna, lawyer for Gerardo Hernandez, who maintains that throughout the trial jurors were followed to their cars and had their licence numbers both photographed and televised.

 Richard Klugh, Assistant Federal Public Defender, argued that no-one could have been kept totally in the dark about the hostility generated by the case which began shortly after the US government decided to send the then six years-old Elian Gonzalez back to Cuba with his father. As he explained “This case played to themes other than traditional law”.

 Judge Stanley Marcus, a former US District Court judge in Miami, asked Klugh if they were saying that “people acting as Cuban agents simply cannot get a fair trial in Miami-Dade County – not then, not now, and not as far into the future as we can reasonably see; is that correct?”

 Before he could answer the loaded question the subject quickly turned to a court-approved pretrial survey of 300 Miami-Dade County voters conducted by retired Florida International University Professor Gary P. Moran which concluded that the city was so contaminated by anti-Cuban sentiment that the men could not have received a fair trial in the community. Subsequently no jurors chosen for the case were of Cuban descent although Presiding Judge Edmondson wondered why they were not sequestered.

 According to Weinglass there were no surprises as far as the oral hearing was concerned because the questions in this case were more important than the answers. In short, the worst that could be expected simply did not happen. While remaining cautiously optimistic about the outcome he warned nevertheless that nothing could be taken for granted in a case that was political in nature. A decision is expected in two months.

 With five UN inspectors, UN Secretary-General Kofi Annan, Archbishop Desmond Tutu and Northern Ireland Secretary Peter Hain recently calling for the closure of Camp Delta at US-occupied Guantanamo Bay in Cuba the spotlight is now on the way the Bush administration treats its political prisoners. Describing the US as “a society that is heading towards George Orwell’s Animal Farm “ the Archbishop of York, Dr. John Sentamu, voices the concerns of all those defending the rule of law especially in the area of civil rights and international relations. Perhaps the media silence surrounding the Miami Five is about to be broken at last.

 At the conclusion of the Selma to Montgomery March to press for a voting rights bill in 1965 that great son of Atlanta and leader of the US civil rights movement, Dr Martin Luther King Jr., spoke in words that resonate with hope for all those involved in the case of the Miami Five.

 “However difficult the moment, however frustrating the hour, it will not be long before truth crushed to earth will rise again. How long? Not long because no lie can live forever. How long? Not long because you shall reap what you sow. How long? Not long, because the arc of the moral universe is long, but it bends toward justice.”