Before their September 1998 arrests in widely publicized FBI raids, the five—including Gerardo Hernández, René González and Antonio Guerrero—had been living and working in southern Florida monitoring the activities of counterrevolutionary groups with a long history of violent and deadly assaults against Cuba and supporters of the Cuban Revolution.
The revolutionaries were convicted in June 2001 of trumped-up charges, including “conspiracy to commit espionage” and, in the case of Hernández, of “conspiracy to commit murder.” Their sentences ranged from 15 years in jail for René González to double life plus 15 years for Hernández.
Labañino is serving 30 years in prison followed by five years of supervised release; Fernando González is serving 17 years and nine months followed by three years of supervised release.
Hernández and Guerrero filed their own motions, generally known as habeas corpus motions, in June 2010 and March 2011, respectively. Both motions were also challenged by the government.
René González, whose prison term ended Oct. 7, is now serving three years supervised release in Florida.
Habeas corpus motions can be made by defendants after regular appeals have been exhausted. Culminating three rounds of appeals court decisions in 2005, 2006 and 2008, the Supreme Court refused in June 2009 to hear all appeals by the five.
Gov’t paid journalistsFernando González’s and Labañino’s motions argue that their right not to be “deprived of life, liberty, or property without due process of law” as guaranteed by the Fifth Amendment of the U.S. Constitution was denied by the fact, unknown to them at the time, that 10 journalists who were writing inflammatory articles about the five in Miami newspapers during their trial were simultaneously being paid by the U.S. government for work with Radio and TV Martí, Washington’s counterrevolutionary propaganda stations that broadcast to Cuba, with transmissions reaching throughout southern Florida.
Lawyers for the five filed seven motions with the court for the 2001 trial to be moved somewhere outside Miami-Dade County because of the particularly hostile atmosphere whipped up against the five by the media and opponents of the Cuban Revolution there. Washington strongly opposed any change in venue, which was repeatedly denied by the court.
In 2005 a three-judge panel of the 11th Circuit Court of Appeals in Atlanta threw out the 2001 convictions and ordered a new trial for all five on grounds that the “pretrial publicity surrounding this case” denied them due process. This ruling was reversed the following year by the full 12-judge panel of the same court.
“A new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the prosecutor’s improper prosecutorial references and position regarding the change of venue,” wrote Stanley Birch, one of two dissenting judges in the 2006 decision. “Moreover, the evidence at trial strongly suggested not only adverse economic consequences for jurors voting for acquittal, but the prospect of violence for an already impassioned and emotional community possessed of firearms and bombs.”
The main argument of the Barack Obama administration against the habeas motions by González and Labañino is that the 2006 appeals court decision settled that due process had not been abridged during the Miami trial and that the two defendants fail to prove the jury was exposed to or influenced by the cited articles. In any case, they say, it is procedurally too late to raise these arguments.
The articles, prosecutors contend, were known to the defendants and their attorneys at the time of the trial and therefore cannot be introduced as new evidence in a habeas motion. Even if knowledge that journalists disseminating the propaganda hostile to the Cuban Revolution were being paid by the government was not publicly available until González’s and Labañino’s appeals were exhausted, it is irrelevant, they argue. At most that information might have “supported or strengthened” arguments that either were or could have been made on direct appeal, they claim.
The government did not challenge defense arguments that Radio and TV Martí receive millions of dollars in government funds each year “to effect regime change” in Cuba, broadcast to southern Florida, and don’t meet basic journalistic standards. Instead they said these facts are irrelevant in the habeas motions because the articles cited were published in private newspapers and only happen to be written by journalists who also worked for the U.S. government’s Office of Cuba Broadcasting, which produces Radio and TV Martí. They insist that all government payments to these journalists were only for “defined and discrete services to Radio and TV Martí,” dismissing the fact that the government refuses to disclose the names of all the journalists on its payrolls and the amounts paid.
That the Miami Herald fired two of the journalists after a 2006 article in that paper exposed their paid government propaganda work is also not relevant, the government asserts, because they were later rehired.
‘Wrongfully enhanced’ sentencesWashington’s response also opposes González’s and Labañino’s motions that their sentences be revised because they were “wrongfully enhanced” with charges of obstructing justice for supposedly providing false names at their first pretrial hearing in 1998.
In providing the names they had used in the U.S. and were charged under, they did not deny they were the defendants sought by the FBI and therefore there was no obstruction or intent to obstruct justice, Richard Klugh, who is part of the Cuban Five’s legal defense team, told the Militant. “No one in their position,” he said, “has ever been given an enhanced sentence for such conduct.”
Based on their convictions for the false charge of obstruction of justice, according to Klugh, Labañino received four additional years, and González, two.
The two revolutionaries are each expected to file a reply to the government’s response Feb. 15. Hernández and Guerrero filed their replies in August. A final ruling is in the hands of Judge Joan Lenard, who presided over the 2001 frame-up trial.
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