[News] Cuban Five Appeal for Justice: One Year Later

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Sent: Friday, March 11, 2005 12:18 PM
Subject: Cuban Five Appeal for Justice: One Year Later


(From the Cuban National Assembly President's office,
this commentary contains the best simple description
yet given of the importance of the U.S. Supreme Court
decision in "Blakeley" and its importance to the Five.)
======================================================

The Cuban Five Appeal for Justice: One Year Later

March 9, 2005

A year has gone by since the March 10 hearing on the case
of the Cuban Five before judges of the Eleventh Circuit
Court of Appeals in Atlanta. It was an opportunity to
appeal the unjust sentences dictated by a Miami federal
court against five men who had fought against terrorism to
safeguard their country.

The federal court of appeals system does not establish a
term by which a ruling needs to be made, so we must
continue to hope that the judges will soon conclude their
analysis and render their ruling.

Meanwhile, with this appeal process open and the judges
studying the case, an important precedent has been set down
by the United States Supreme Court in the case of "Blakely
vs. Washington" limiting the power of judges to increase a
sentence beyond that indicated by a jury's verdict. In
other words, it establishes that a judge should only impose
a sentence within the established limits for the crime and
the circumstances evaluated by the jury.

For some experts, the recent decision of the Supreme Court
questions the validity of the sentencing guidelines that
have been in force since 1987, and could affect thousands
of cases. However, what is certain is that since last
October the Supreme Court has agreed to hear two cases in
an attempt to clarify the confusion relating to sentence
guidelines.

In the case of the Cuban Five, as Antonio Guerrero's
defense attorney Leonard Weinglass has explained, after the
jury found Gerardo, Ramón and Antonio guilty, the presiding
judge, Joan Lenard, should have looked at federal
sentencing alternatives. The maximum for their case,
corresponding to the verdict of the jury, was 26 years.
Nevertheless, the judge increased this limit, using factors
that were not presented to the jury and which have still to
be pronounced, condemning them to serve life terms. This
decision was based on the supposed power to make such a
pronouncement by the judge, but is being contested in
"Blakely vs Washingtong" that categorically says that the
judge doesn't have such power.

The decision of the Supreme Court constitutes a new
precedent in that with a case still open federal sentencing
guidelines should be taken into account in the appeals
process given the consequences of the arbitrary action
carried out by a federal court. In the United States a
legal precedent becomes "law" since the "Common Law" system
that governs the administration of justice is based on the
doctrine of the "Stare Decisis" (that which is decided).
This consists of previous judicial decisions in similar
cases becoming legal guidelines known as "precedents".

Aside from this new precedent that now requires
consideration, another legal fact that exposes the
notorious injustice made in Miami against the five Cubans,
is the case heard in a federal district court in Los
Angeles, California, against Katrina M. Leung, an American
citizen, of Chinese origin. According to an affidavit
presented by FBI Special Agent Randall Thomas, Leung was
accused of espionage for violation of Title 18 of the
United States penal code, Section 793 (b) ("Non-authorized
use of national defense information to benefit a foreign
nation") who, according to the charge, was recruited by
former FBI agent James Smith, the principle defendant in
the case.

Beyond the debate over the guilt or innocence of Leung, and
without commenting on the decision of the court in her
case, it is illustrative to briefly compare the treatment
given to Ms Leung to that offered the Five, as much in
terms of the administration of justice in the United States
as in the mainstream media coverage.

Ms. Leung began a relationship with a former FBI special
agent linked to the national security of the United States.
The Five didn't have any relationship with members of
official intelligence investigation agencies of the United
States, but with extreme right-wing Cuban-American
organizations of a private character dedicated to carrying
out terrorist actions against the Cuban Revolution.

According to the FBI affidavit, Leung was provided
documents classified as "Top Secret" relative to the
national security of the United States. The Five were not
given a single classified document, and no witness at their
trial testified that they had compromised the national
security or defense of the United States.

For lack of evidence, Ms. Leung was exonerated of all
charges by presiding judge Florence M Coper. The Five were
condemned by Judge Joan Lenard of the Miami Dade Federal
District Court, to the most severe and unjust penalties,
including life imprisonment for three of them (Gerardo,
Ramón and Antonio) - another reason why the trial should
never have been heard in Miami.

The case of Ms. Leung had wide media coverage in the United
States, including the Washington Post, the New York Time,
USA Today, and others. Around the case of the Five a wall
of silence arose, with only the local Miami press covering
their trial, and always in a manner that reviled them and
stirred up local hatred and prejudice against them in a
community already ridden with prejudice.

We don't doubt the innocence of Ms. Leung who returned to
the life of a wealthy businesswoman, and, incidentally,
that of an important activist for the Republican Party.
What we know is the innocence of these five men - humble,
honest, simple professionals, who fought against terrorism
and who should be returned to their homeland without
anything other than the satisfaction and honor that they
fulfilled their duty to the eternal gratitude of their
people.

The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
(415) 863-9977
www.freedomarchives.org 
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