8-21-07, 9:41 am

(APN) ATLANTA – A three-judge panel at the Eleventh Circuit Court of Appeals in Atlanta heard oral arguments Monday relating to the case of the Cuban Five.

This is the third time in two years the Eleventh Circuit has heard appeals in the case of Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez, and Rene Gonzalez, who are serving a collective four life sentences and 75 years in prison.

International observers jammed the court to observe both US government and defense attorneys deliver their arguments. Observers came from many countries including Belgium, Brazil, Canada, Ecuador, England, Germany, Italy, Spain, and Ukraine.

Some observers included Dagoberto Rodriguez, Chief of the Cuban Interests Section of the Embassy of Switzerland; Roberto Gonzales, Cuban attorney and brother of Rene Gonzales; Judge Juan Guzman, Chilean Judge who directed the trial of US-supported dictator Augusto Pinochet; Ramsey Clark, former US Attorney General; former US Rep. Cynthia McKinney (D-GA); and Kathleen Cleaver, law professor at Emory University.

Each side had only 30 minutes apiece to explain the most important points of a trial that lasted seven months.

'Over-hyperbolic describes this prosecution,' the defense argued. '[Their case] doesn’t add up.'

The defense says evidence supplied by the government at the original trial to support counts of conspiracy to commit espionage and murder was not enough to convict the five.

Attorneys for the defense pointed out the government admitted previously it never had enough evidence to support these counts.

'What counsel is telling the court makes for a compelling tale,' US attorney Carolyn Miller said.

Pointing to volumes of documents on a table before the judges, Miller said, 'I ask this court to plunge into the record. There are examples supplied in those documents that show the defendants’ hatred of the United States.'

The US government maintains the Cuban Five were sophisticated spies here in the United States illegally to steal military secrets and overthrow the government.

Miller argued the Five were able to steal secrets by infiltrating military installations, and that the men knew about and had a hand in the shooting down of two airplanes which killed four people. The Cuban government shot the US planes down for illegally flying in Cuban airspace.

'The defendants could not have obtained security clearances that would have allowed them to obtain classified documents,' the defense countered. 'Hernandez couldn’t have known, couldn’t anticipate what was going to happen' to the planes.

Authorities seized at least 20,000 documents from the computers of the five men and not one of those is classified.

Judges Stanley Birch and Phyllis Kravitch, who sat on a three-judge panel in 2005 during the first appeal, peppered Miller about what evidence the government had to support its claims.

Miller appeared to dodge these questions by continually discussing the differences between “reasonable” and “plausible.” Because it was only conspiracy, Miller argued the government only had to convince a jury of the 'reasonableness,' not the plausibility, of the charges.

Birch also raised questions about the ability of Cuba to defend itself against aircraft entering its airspace. 'A shoot down over sovereign airspace is not murder.'

Defense attorneys argued prosecutorial misconduct prevented the five men from receiving a fair trial. During the prosecution’s final argument to the jury during the original trial, the defense registered 34 objections, which were sustained 28 times.

'I find that number troubling,' Kravitch told US attorney Carolyn Miller during her argument Monday. Miller maintained there was no misconduct.

Neither side had much time to discuss the sentences levied against the Cuban Five but Judge Birch said the panel will review legal briefs from both sides on that issue in addition to other materials relating to the case.

Birch commended both sides for supplying supplemental briefs in advance. 'This is an emotional case [for] both sides,' he said. 'We will look at this and do the best we can.'

It could take months before the panel issues a decision, Birch added.

Leonard Weinglass, an attorney for Guerrero, said his defense team hopes counts concerning conspiracy are thrown out.

'There is no evidence linking any of the five men to the [February 24, 1996] shoot down of [two] planes,' Weinglass told reporters after the hearing. 'The Court is having difficulty with this [lack of evidence].'

If the Court is convinced prosecutorial misconduct took place, those counts could be set aside and there could even be a new trial for the five, Weinglass said.

But the Court could also decide evidence presented by the government is overwhelming enough to sustain convictions for these counts.

'I think this Court is primed to do the right thing,' he said. 'I’m very hopeful and optimistic.'

While many in attendance Monday supported the Cuban Five, several did not.

'[The five] are paying the consequences of spying,' Miriam de La Pena said. 'It was a fair trial [and] the evidence was overwhelming.'

Frank Calzon, Executive Director of the Washington, DC-based, Center for a Free Cuba, agreed the original trial was fair. 'Advocates say the Court is unfair... yet this is the third time at appeals.'

Those on hand to support the US government position included some relatives of the four men killed in 1996. There were no demonstrations, outbursts, or confrontations between the two sides before, during, or after the hearing.

'I am considered a traitor as far as the Cuban government is concerned,' Calzon said. '[But] I believe some people who support the spies are not necessarily traitors [to the United States].'

'Today, the issues were very clear,' Juan Guzman, the Chilean judge who led the prosecution of dictator Augusto Pinochet, said. 'Defense lawyers made it clear there is no evidence of espionage.'

He added, 'If I had to rule, I would order these five not spend one more day in prison.'

'The task continues,' Andres Gomez, a member of the San Francisco-based The National Committee to Free the Cuban Five, said. 'But we must continue to fight on their behalf until justice is done.'

--About the author: Jonathan Springston is a Senior Staff Writer for The Atlanta Progressive News and may be reached at

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