A high-profile U.S. criminal prosecution of intelligence agents of the Cuban government, at a trial in the midst of the large community of Cuban-Americans in Miami, reached the Supreme Court on Friday as the center of a broad new test of the right to a fair trial.  The fate of the so-called “Cuban 5” has drawn widespread interest — and  considerable  protest – around the globe since the trial of the case opened in Miami nearly eight years ago.  (The petition to review Eleventh Circuit Court rulings in the case is available here.  The appendix to the petition is available here.  The most recent Circuit Court decision at issue is here.)

The Constitution’s Sixth Amendment guarantees a fair trial by an impartial jury.  The new case of Campa, et al., v. U.S., asks the Court to clarify the standard for judging when that right has been violated — an issue the Justices have not ruled upon since 1984 (in Patton v. Yount).

Directly at issue is the constitutionality of the standard the Eleventh Circuit uses to weigh pleas to change the site of a trial because of strong community sentiment — a trial will not be moved, that Circuit has held, unless a fair trial is “virtually impossible” in the place where it is scheduled to go forward.

The petition by the “Cuban Five” — two U.S. citizens, and three others, all of whom were living in Miami when arrested on federal charges in 1998 — argues that the Eleventh Circuit’s standard is the minority view among federal and state courts, and that the majority among those courts apply a more easily-met gauge: whether it is “reasonably likely” that a fair trial can be held.

The petition also challenges the Eleventh Circuit view that, in judging whether publicity about a case threatens to undermine a trial’s fairness, a court may look only at evidence of community attitudes on the guilt of those on trial, and thus cannot consider the rampant and vociferous anti-Castro sentiment prevailed in Miami. The latter evidence, the Circuit Court said, was legally irrelevant.

The Cuban agents, members of the “Wasp Network” of the government of Cuba’s Intelligence Directorate, were convicted of espionage charges against the U.S. military and Cuban exiles in southern Florida.

The key incident at the center of the case was the shooting down of two private planes by Cuban military jets in 1996.  The private planes were operated by an anti-Castro organization, Brothers to the Rescue. and their downing led to four deaths.  The incident further stirred up anti-Cuban sentiment that, the petition contends, was still pervasive in Miami as the Cuban Five went on trial.

In a trial lasting more than six months, each of the five accused men was convicted of espionage charges, and one — Gerardo Hernandez — was also convicted of conspiracy to commit murder.  Hernandez was sentenced to two life sentences; Ruben Campa was sentenced to 228 months in prison; Rene Gonzalez (a U.S. citizen) was sentenced to 15 years; Antonio Guerrero (another U.S. citizen) was sentenced to life in prison, and Luis Medina was sentenced to a life term.

Before the trial, defense lawyers sought to have it moved to Fort Lauderdale, offering evidence of what their Supreme Court petition describes as “the pervasive and violent anti-Castro struggle of the Miami community.”  The challenge argued that this sentiment would not only make jurors hostile, but would cause them to fear if they voted to acquit those accused of murdering opponents of the Castro government.

The trial judge refused to move the trial, finding that a fair trial was not “virtually impossible.”  The Eleventh Circuit agreed.

The Cuban Five appeal to the Supreme Court notes that, at the time of their trial, “there were more than 700,000 Cuban-Americans living in Miami.  Of those, 500,000 remembered leaving their homeland, 10,000 claimed to have had a relative who was murdered in Cuba, 50,0000 reported having a relative who was tortured in Cuba, and thousands were former political prisoners.”  The judge who tried the case, the petition said, referred to “the impassioned Cuban exile community residing within this venue” during the trial.

Regarding the international reaction to the trial in Miami, the Cuban Five’s apeal said that “the trial was the only judicial proceeding in U.S. history to be condemned by the U.N. Human Rights Commission.”  (An initial panel of the Eleventh Circuit ruled that the trial should have been moved, but that was overturned by the en banc Circuit Court.)

Beyond testing the standard for changing the venue of a criminal trial, the petition challenges the Eleventh Circuit’s conclusion that claims of race-based selection of jurors are not allowed if prosecutors did not use all of their “peremptory” strikes of potential jurors against minority members of a panel, and some minorities wind up on the jury.  That approach, the petition contends, “represents a serious threat” to the requirement, imposed by the Supreme Court in the

Finally, the appeal contends that the conviction of Gerardo Hernandez for conspiracy to commit murder was based on flawed evidence about the nature of the shootdown incident.

(NOTE TO READERS:  The Cuban Five’s counsel of record in the case is Thomas C. Goldstein of Akin Gump.  The writer of this post operates independently of the firm’s law practice.)

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