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<a href="http://www.counterpunch.org/alarcon09112009.html" eudora="autourl">
http://www.counterpunch.org/alarcon09112009.html<br><br>
</a></font><font face="Verdana" size=2 color="#990000">September 11-13,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>The Untold Story
of the Cuban Five <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">
Pryor's Judgment
</b></font></h1><font face="Times New Roman, Times" size=4>By RICARDO
ALARCÓN de QUESADA <br><br>
</font><font face="Verdana" size=6 color="#990000">W</font>
<font face="Verdana" size=2>hen the historic unanimous decision was
reversed at the urging of George W. Bush's Attorney General
(<a href="http://www.counterpunch.org/alarcon08112009.html">Remember
Elian?</a> 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.</font><font size=3>
</font><font face="Verdana" size=2>(For a detailed investigation into
Pryor's legal career see Jeffrey St. Clair's
<a href="http://www.counterpunch.org/stclair06142003.html">Pryor
Unrestraint</a>, CounterPunch, June 14, 2003.) <br><br>
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).<br><br>
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).<br><br>
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.
(<a href="http://www.counterpunch.org/alarcon08282009.html">Spies Without
Espionage</a>, CounterPunch August 28-30, 2009).<br><br>
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).<br><br>
Judge Phillys Kravitch, in an impressive 15-page dissent, demonstrated
the terrible injustice committed by her colleagues against Gerardo
Hernández. <br><br>
She pointed out: <br><br>
</font>
<dl>
<dd>“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” </i>(Idem Page 98).<br><br>
</dl>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.” <br><br>
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)<br><br>
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.<br><br>
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.” <br><br>
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. <br><br>
After Pryor’s shame judgement, the Five appealed to the en banc
</i>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”</i> – strangely decided to join Pryor’s
pro-Government stance and neocon logic. <br><br>
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.<br><br>
Ricardo Alarcón de Quesada</b> is president of the Cuban National
Assembly.<br><br>
<br><br>
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