Saturday, October 16, 2010

Amnesty International: Cuban Five didn't get fair trial

Signs of support for Cuban Five

Amnesty International said it has "serious doubts about the fairness of the proceedings" leading to the conviction of five Cuban agents serving prison terms in the United States.
AI said it is concerned about "the prejudicial impact of publicity about the case" on the jury in Miami.
If the courts can't consider these concerns, then the Obama administration ought to review the case "through the clemency process or other appropriate means."

The AI's carefully worded 22-page report said:
Amnesty International takes no position on whether the Cuban Five are guilty or
innocent of the charges for which they have been convicted. However, having
reviewed the case extensively over a number of years, the organization believes that
there are serious doubts about the fairness and impartiality of their trial which have
not been resolved on appeal.
Amnesty International’s concerns are based on a combination of factors. A central, underlying concern relates to the fairness of holding the trial in Miami, given the pervasive community hostility toward the Cuban government in the area and media and other events which took place before and during the trial. There is evidence to suggest that these factors made it impossible to ensure a wholly impartial jury,
despite the efforts of the trial judge in this regard.
The report - written in British English, which uses such spellings as defence, not defense - also questions whether Gerardo Hernández should have been convicted of conspiracy to murder. AI said:
Although Amnesty International is not in a position to second-guess the facts on which the jury reached its verdict, it believes that there are questions as to whether the government discharged its burden of proof that Hernández planned a shoot-down of BTTR planes in international airspace, and thus within US jurisdiction, which was a necessary element of the charge against him.
The report also has some useful background in the case:
  • In May 2005, the UN Working Group on Arbitrary Detention adopted an opinion on the case in which it concluded that US government had failed to guarantee the Cuban five a fair trial under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), a treaty the USA has ratified.
  • The Working Group based its opinion on three factors, including the prejudicial impact of holding the trial in Miami. It also found that keeping the defendants in solitary confinement for part of their lengthy pre-trial detention, during which they allegedly had limited access to their attorneys and to evidence, and classifying all documents in the case as “secret”, weakened the possibilities of an adequate defence and “undermined the equal balance between the prosecution and the defense”. 
  • In June 2009 the US Supreme Court denied a petition for leave to appeal against the convictions of the five without giving reasons.
  • In June 2010, lawyers for the five filed a further motion in the district (trial) court, seeking habeas corpus relief on the basis of new issues. These include a claim of ineffective assistance of counsel in the case of Gerardo Hernández, and new evidence of alleged government misconduct in the case. The latter claim is based on newly discovered evidence that journalists who had written prejudicial articles in Miami against Cuba at the time of the trial were paid employees of the US government as part of their work for anti-Castro media outlets, Radio Marti and TV Marti. A hearing on these issues had not yet taken place at the time of writing.

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