In a previously unheard-of twelve separate briefs, an array of supporters worldwide –including ten Nobel Prize winners who have championed human rights (including East Timor President Jose Ramos-Horta and Irish peacemaker Máiread Corrigan Maguire); the Mexican Senate; and Mary Robinson, the former U.N. High Commissioner for Human Rights and former President of Ireland – today filed amicus curiae (“friend of the court”) briefs imploring the U.S. Supreme Court to review the Miami convictions of five Cuban government agents, the so-called “Cuban Five.” Those participants in the briefs were joined by hundreds of parliamentarians from the European Parliament and other parliaments around the world, including two former Presidents and three current Vice-Presidents of the European Parliament, as well as numerous U.S. and foreign bar associations and human rights organizations.

This is the largest number of amicus briefs ever to have urged the Supreme Court to review a criminal conviction. This extraordinary support for the Cuban Five’s case arises from widespread concern in the United States and around the world that their trial was conducted in an atmosphere tainted by prejudice against agents of the Cuban government and fear of retaliation, which amici say prevented the jury from fairly evaluating the charges against the Five. Among others, the United Nations Human Rights Commission has condemned the Miami trial of the Cuban agents, marking the first and only time in history that that body has condemned a U.S. judicial proceeding. Citing a “climate of bias and prejudice” in Miami, the Commission’s Working Group on Arbitrary Detentions concluded that the “trial did not take place in the climate of objectivity and impartiality that is required to conform to the standards of a fair trial.”

The amicus briefs filed today ask the Supreme Court to review the fairness of trying the Cuban agents to a Miami jury.

“The trial and conviction of the Cuban 5 is a national embarrassment,” explained Michael Ratner, President of the Center for Constitutional Rights, which represented the Nobelists in filing their amicus brief. “Our clients, ten Nobel Prize winners, acclaimed for their efforts to advance human rights, believe the trial was an international embarrassment as well. This was a trial that should have never occurred in Miami. There was no way a jury from that Miami, with its history of violence and intimidation against supporters of the Cuban government, could have reached a verdict free from retaliation by the anti-Castro community.”

Several of the amicus briefs filed by U.S. organizations also ask the Supreme Court to review the prosecution’s striking of African-Americans from the jury. The prosecutor used seven of its eleven “peremptory challenges” (where no explanation need be given to strike a juror) to strike prospective Black jurors. The Court of Appeals ruled that no inquiry into the prosecutor’s motives was required because three other Black jurors, a minority on the twelve-person jury, were seated. Amici maintain that this holding allows prosecutors to mask their manipulation of the racial make-up of a jury.

The U.S. government’s brief in opposition is presently due April 6. The Court is likely to
decide whether to grant review before its summer recess in June. The amicus brief is attached below.

Additional background on the case:

The United States indicted the five Cubans in Miami in 1998. The indictment focused on the charge that they were unregistered Cuban agents and had infiltrated various anti-Castro organizations in South Florida.

One of the Five, Gerardo Hernandez, was also charged with conspiracy to commit murder for providing information to Havana on flights in which the anti-Castro group Brothers to the Rescue (“BTTR”) would routinely invade Cuban airspace. On February 24, 1996, two BTTR planes were destroyed after both Cuban and American officials had repeatedly warned the Miami-based group to cease its illegal incursions into Cuban territory. Cuba maintains that it shot the planes down in its territory; the U.S. has maintained that the shootdown occurred a few miles into international airspace, after the planes entered and exited Cuban airspace.

The Cuban Five asked the trial judge to move the trial out of Miami to a new venue some thirty miles away, which is home to a massive Cuban-American exile community that, beyond its ordinary hostility towards the Castro regime, had been whipped into a frenzy of anti-Castro sentiment by the Elian Gonzalez debacle that took place just as the Cuban Five’s trial got underway. Judge Lenard rejected that request, and a Miami jury convicted Hernandez and the others of all charges. Judge Lenard imposed the maximum possible sentences on the Five, including life imprisonment for Hernandez.

On appeal, a three-judge panel of the federal Court of Appeals for the Eleventh Circuit reversed the convictions and ordered a new trial because, the court held, a “perfect storm” of community prejudice and pre-trial publicity, exacerbated by the federal prosecutor’s inflammatory statements to the jury, deprived Hernandez and the other Cubans of a fair trial. The entire Court of Appeals, however, vacated the panel’s decision, finding no error in the government trying the case to a Miami jury. It returned the case to a panel to evaluate the remaining issues in the appeal.

In another key ruling, two of the three judges on the panel refused to reverse the Miami jury’s conviction of Hernandez. Judge Kravitch dissented, finding a complete absence of any evidence that Hernandez knew there would be a shootdown, let alone an unlawful shootdown in international airspace.