[Ppnews] The Cuban Five - Pryor's Judgment

[Political Prisoner News]

http://www.counterpunch.org/alarcon09112009.html

September 11-13, 2009


The Untold Story of the Cuban Five


Pryor's Judgment

By RICARDO ALARCÓN de QUESADA

When the historic unanimous decision was reversed 
at the urging of George W. Bush's Attorney 
General 
(<http://www.counterpunch.org/alarcon08112009.html>Remember 
Elian? CounterPunch, August 11, 2009), the same 
3-judge panel was to hear the remaining issues 
other than venue, which had been the one upon 
which they had expressed their landmark opinion. 
However, in the meantime, one jurist, the oldest 
and most liberal, had retired and somebody else 
was designated to substitute for him. The one 
chosen for that role was a Bush recess appointee, 
William H. Pryor, whose nomination, described as 
“one of the most contentious in recent history”, 
had provoked uproar in the Senate, which 
confirmed him over the opposition of 45 Senators. 
(For a detailed investigation into Pryor's legal 
career see Jeffrey St. Clair's 
<http://www.counterpunch.org/stclair06142003.html>Pryor 
Unrestraint, CounterPunch, June 14, 2003.)

Senator Kerry, claimed that the new judge “has 
been a constant advocate for scaling back 
constitutionally guaranteed rights” with his 
“consistent pursuit of extreme and incorrect 
legal views 
 as a result our Federal judiciary 
will have less ability to protect the 
constitutional rights we hold so dear” 
(Congressional record, Senate June 14, 2005).

Pryor was criticized by some major newspapers, 
and was described as a “right wing zealot not fit 
to judge”. In summing up his pedigree Jeffrey St. 
Clair writes: “he goes much, much farther than 
even many of the most extreme ideologues in his 
party” (“Pryor Unrestraint”, CounterPunch, June 14, 2003).

Mr. Pryor wrote the opinion for the Court 
rejecting the other issues presented by the 
defense in language that at times was closer to a 
slanderous anti-Cuban vulgar diatribe than to the 
balanced, sober style of the judiciary (even some 
well-known terrorists, rightly described as such 
by the previous panel, were now transmuted into 
patriotic freedom fighters). Interestingly the 
accusation of “spying” was so clumsily fabricated 
and the Miami trial included other wrongs so 
obvious that even Pryor had to agree with the 
other two judges in vacating the sentences of 
three of the defendants. 
(<http://www.counterpunch.org/alarcon08282009.html>Spies 
Without Espionage, CounterPunch August 28-30, 2009).

This time the panel was divided on a very crucial 
point: Count 3, conspiracy to commit murder. One 
of the judges, J. Birch, while concurring with 
Pryor’s opinion recognized that “this issue 
presents a very close case” and reiterated “that 
the motion for change of venue should have been 
granted” adding that “the defendants were 
subjected to such a degree of harm based upon 
demonstrated pervasive community prejudice that 
their convictions should have been reversed” (US 
Court of Appeals for the Eleventh Circuit N. 
01-17176, DC Docket No. 98- 00721 CR-JAL, Page 83).

Judge Phillys Kravitch, in an impressive 15-page 
dissent, demonstrated the terrible injustice 
committed by her colleagues against Gerardo Hernández.

She pointed out:

“A country cannot lawfully shoot down aircraft in 
international airspace, in contrast to a country 
shooting down foreign aircraft within its own 
territory when the pilots of those aircrafts are 
repeatedly warned to respect territorial 
boundaries, have dropped objects over the 
territory, and when the objective of the flights 
is to destabilize the country’s political system. 
Thus, the question of whether the Government 
provided sufficient evidence to support 
Hernández’s conviction turns on whether it 
presented sufficient evidence to prove that he 
entered into an agreement to shoot down the 
planes in international, as opposed to Cuban 
airspace” (Idem Pages 94-95) and in this regard 
“the Government cannot point to any evidence” (Idem Page 98).

But beyond the issue of the location of the 
incident “the Government failed to provide 
sufficient evidence that Hernández entered into 
an agreement to shoot down the planes at all. 
None of the intercepted communications the 
Government provided at trial show an agreement to 
shoot down the planes. At best, the evidence 
shows an agreement to 'confront' BTTR planes. But 
a 'confrontation' does not necessarily means a shoot down.”

To prove her point she referred to testimonies 
and videotapes presented at trial: “This evidence 
demonstrates the obvious: there are many ways a 
country could “confront” foreign aircraft. But 
the Government presented no evidence that when 
Hernandez agreed to help “confront” BTTR that he 
agreed confrontation would be a shoot down. To 
conclude that the evidence does show this goes 
beyond mere inferences to the realm of 
speculation 
 Because so much evidence points 
towards a “confrontation” other than a shoot 
down, I cannot say that a reasonable jury – given 
all the evidence – could conclude beyond a 
reasonable doubt that Hernandez agreed to a shoot down.” (Idem Pages 96-97)

It was so obvious that the Government itself had 
recognized the point in an “unprecedented” 
emergency petition to that very Court of Appeals: 
to demonstrate Gerardo’s invented guilt on such a 
fabricated crime constituted an “insurmountable obstacle” for the prosecution.

Such would have been the case with “a reasonable 
jury” in any other venue. But not in Miami, where 
the intimidated jurors where surrounded at the 
courtroom by a bunch of individuals who 
proclaimed their terrorist exploits and were able 
to kidnap Elian Gonzalez, always with total 
impunity, and joined the Government in demanding 
the worst punishment for Gerardo. That could have 
been understood by any reasonable jurist. But not 
by a “right wing zealot not fit to judge.”

Somebody at the White House was happy. His 
appointee served him well. Gerardo got his two 
life sentences confirmed with the reluctant and 
paradoxical vote of a judge, Birtch, who insisted 
that all of the Five “convictions should have 
been reversed” and a dignified lady who 
maintained her dissenting voice: “the Government 
presented no evidence” to sustain its accusation.

After Pryor’s shame judgement, the Five appealed 
to the en banc Court. This time they were not 
contesting an unanimous and well founded decision 
– as the Government did in 2005 – but one clearly 
unfair and prejudicial that had sharply divided 
the panel on Count Three, with Kravitch rejecting 
it with impeccable consistency and Birtch – after 
recognizing her arguments, but ignoring the 
presumption of innocence and his own “reasonable 
doubts” – strangely decided to join Pryor’s 
pro-Government stance and neocon logic.

But this time the Court of Appeals confirmed the 
disputable conclusions of the panel. The Atlanta 
judges even forgot that it was to them that the 
same Government had made an “emergency petition” 
admitting that it had failed to prove Gerardo’s guilt.

Ricardo Alarcón de Quesada is president of the Cuban National Assembly.




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