Monday, December 27, 2010

Cuban agent continues to fight life sentence

An imprisoned Cuban agent's 2001 conviction should be thrown out because his trial attorney "failed to present a legally relevant case," his lawyers say.
A Miami jury convicted Gerardo Hernandez of conspiracy to commit murder for supplying information to the Cuban government that led to the Feb. 24, 1996, shootdown of two civilian planes.
Cuban fighter jets shot down the planes over international waters, killing four U.S. citizens, members of the group Brothers to the Rescue.
Hernandez' lawyers - Thomas Goldstein, of Washington, D.C., and Richard Klugh, of Miami - contend that trial attorney Paul McKenna tried to prove the shootdown was lawful, a legal strategy that made it impossible for him to defend his client.
In an Oct. 12 document filed in U.S. District Court in Miami, Goldstein and Klugh say:
The government was required to prove beyond a reasonable doubt that Hernandez conspired with Cuba with the knowing intention of advancing a plan to commit murder—an unlawful killing with malice aforethought — regardless of whether a substantive offense ultimately occurred. In other words, Hernandez was on trial for what he purportedly agreed to do. But Hernandez’s lawyer mistakenly believed that Hernandez’s freedom instead rested upon demonstrating that the shootdown that occurred was in fact lawful.
In other words, counsel endeavored to prove that the actions of others were in fact lawful. This fundamental misconception influenced counsel’s every effort, and prevented him from taking essential steps in defense of his client. In short, Hernandez’s lawyer was his worst enemy in the courtroom. Because the Constitution cannot tolerate a conviction obtained under such circumstances, Hernandez’s conviction and sentence must be vacated.
The lawyers argue that Hernandez should not have been convicted unless prosecutors proved that:
  • There was a conspiratorial Cuban plan to shoot down the planes in an unjustified, unlawful manner
  • Hernandez knew of the unlawfulness of the plan
  • He willfully agreed to the commission of such an unlawful killing as something that he specifically intended to bring about, with substantial certainty that murder would occur.
Prosecutors have until Jan. 31 to respond to the lawyers' motion. Hernandez, 45, is serving a life prison term at Victorville federal prison, 85 miles northeast of Los Angeles.
For more information about the case, see The Miami Herald's Dec. 26 story.

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