Cuban Five Case to U.S. Supreme Court: An Opportunity for Justice

By István Ojeda Bello

It is very likely that US Supreme Court judges, John Roberts, John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer and Samuel Alito, are ?as no other judges have been before? so near to showing how just they can be. They might not even be aware that what lies before them is a lifetime chance to prove if the judicial system they represent really works.

The judges might even credit Montesquieu's theory on the separation of powers if they act independently, disregarding misleading information on and prejudices against Cuba. They might be able to achieve this once they accept the appeal filed by the Cuban Five's attorneys.

The petition for a writ of certiorari is based on a defining aspect for the jurisprudence of any society, especially the American one: the right of the accused to have a fair trial.

No wonder the first argument given by the team of attorneys for the Cuban Five, led by prominent lawyer Thomas C. Goldstein and made up of other distinguished attorneys like Leonard Weinglass, is that the right to be judged by an impartial jury was breached twice during the judicial proceeding against the five Cuban antiterrorist fighters.

The first time was in Miami when they were not allowed to have a trial outside Dade County. And the second was when the panel of the 11th Circuit of Appeals in Atlanta disagreed with the ruling by a three-judge panel of that Court of Appeals, revoking the sentences and calling for a new trial given the anti-Cuban environment in Miami.

Another strong argument is the conflict created by the Atlanta Court of Appeals regarding the legal precedents set up by other courts in regard to the jury's membership and integrity.

The appeal also stresses the lack of evidence to prove the charge of conspiracy to commit murder against Gerardo Hernandez. In this respect, the certiorari says that "the fact that the generalized hostility against Cuba and the publicity on the shooting down of the Brothers to the Rescue planes put at risk the neutral decision the jury might have taken on the alleged charges can clearly be seen in the charge brought against Gerardo
Hernandez of conspiracy to commit murder, despite the lack of evidence supporting such a serious charge, for which he was given a life sentence."

They also quote the emergency request made by the District Attorney's Office on May 25, 2001, in which the government acknowledges that "[i]n light of the evidence presented in this trial, [such a requirement] presents an insurmountable hurdle for the United States in this case, and will likely result in the failure of the prosecution on this count." In other words, Gerardo was convicted for a charge the prosecutor himself admits not to have evidence of.

Experts warn that there are no guarantees that the Supreme Court will act according to reason or the law, given the evident turn to the right over the last 20 years. The judges appointed are very close to the neoconservative offensive by presidents Reagan and Bush, both father and son.

The defense waited until the change of administration maybe to avoid the unfavorable environment of an outgoing president, although legally speaking it has no implications since the president can not modify the decisions made by the Supreme Court.

This is more than a legal issue. It is a political case because the reasons for the American administration to arrest the Cuban Five, who were on a mission that also safeguarded the security of the American people, were political.

Not being over hopeful though, the political scenario in the United States has changed after January 20. Besides, there has been more pressure on the new administration to take sides on the matter.

Recently, the International Longshore and Warehouse Union asked President Barack Obama to free the five Cuban anti-terrorists held in U S prisons since 1998.

Actions like this one are needed to tip the balance in favor of these innocent young men showing the judges that public opinion is actively involved.

If the Supreme Court decides to hear the case, it will make a judgment in June or July.

However, it is worth reminding the nine judges of the opportunity they have of being just.