CUBAN 5 FILE WRIT OF CERTIORARI

Ruben Campa, Rene Gonzalez, Antonio Guerrero, Geraldo Hernandez, and Luis Medina were charged in Federal Court in Miami with being Cuban agents and infiltrating anti-Castro organizations in Miami.

One of the organizations they were charged with infiltrating was Brothers to the Rescue (BTTR.) BTTR flew planes over Cuba violating Cuban airspace. On February 24, 1996 BTTR flew three planes over Cuban territory, violating a clear warning from the Cuban government. The Cuban military shot down two of the planes. Cuba claims the planes violated Cuban territory. BTTR claims the planes were over international water just outside of Cuban territory when they were shot down.

The men were brought to trial in a very tense environment in Miami. It was at the time that people were struggling in the streets over Elian Gonzalez. Gonzalez, a young child, with his mother came on a boat from Cuba. But his mother died when the boat capsized. Gonzalez lived. The Federal government rightly decided to send him back to Cuba to live with his father. The Cuban community in Miami revolted in the streets over this decision which they saw as a cruel act to force the kid to grow up in a Communist country.

The five men were convicted in the District Court in Miami. The decision was reversed by a panel of the Eleventh Circuit in Miami. The conviction was reinstated by an en banc panel of the Eleventh Circuit. Now the attorneys for the five have filed a writ of certiorari with the Supreme Court.

The writ raises several important questions. First, due to the tremendous amount of opposition to the Cuban government in Miami
trial counsel moved to change the venue to nearby Fort Lauderdale since they did not feel they could get a fair trial in Miami. The trial court and the en banc panel denied the motion to change the venue saying that the defendants did not show that it was virtually impossible to get a fair trial in Miami. Other jurisdictions use a reasonably probability standard which is more reasonable and achievable than the virtual impossibility standard used by the en banc panel. In considering the change of venue motion the
Eleventh Circuit, unlike some of the other circuits only considers the press’ reaction to the particular charges. It did not consider the reputation of Fidel Castro and the Cuban government in Miami or the effect that the Elian Gonzales uprising may have had upon a jury despite the fact that these incidents may have affected the ability of the defendants to get a fair trial.

Second, in Batson v. Kentucky the Supreme Court ruled that in picking a jury a party cannot use race as a criteria. The procedure mandated by the Supreme Court is that the defense must first make a prima facie case that the prosecution used race as a factor in excluding a juror. Then the prosecution is given a chance to give a non-racial reason for the exclusion. The prosecution in the Miami case used nine of its eleven peremptory challenges to exclude African Americans from serving as jurors. but since three African Americans sat on the jury and an alternate was also an African American the en banc panel ruled that since the prosecution did not use all of its peremptory challenges, it could have excluded more African Americans and therefore the defense failed to make a prima facie case. However, this reasoning violates the spirit of Batson by allowing race to be a factor in jury selection as long as the prosecution allows at least one minority to sit on the jury.

Finally, there is the case of Geraldo Hernandez who was charged and convicted of conspiring with the Cuban government to kill BTTR pilots. over international waters. All agree that any conspiracy to kill the pilots over Cuban territory is not illegal since Cuba being a sovereign nation can shoot down invading aircraft if it so desires. While there may be some disagreement over whether the BTTR pilots were shot down over international waters or over Cuba, the evidence, according to the defendants does not allow any interpretation other that Hernandez, if he entered into an agreement, it was to commit a legal act, ie. shooting down airplanes after they entered Cuban airspace. But the mood was so tense in Miami that the jury convicted him despite the fact that all of the evidence pointed to a not guilty verdict on the count.