One of the Cuban Five doing time in US prisons requests new trial

Charge of conspiracy to commit murder must be dismissed, he argues.

By David Brooks, Correspondent
Tuesday, January 4, 2011

A CubaNews translation. Edited by Walter Lippmann.

New York, January 3. Gerardo Hernández, one of the so-called Cuban Five convicted of espionage and conspiracy in 2001 after infiltrating Miami-based anti-Castro groups to protect Cuba from their terrorist acts, has filed an appeal before the Judiciary for dismissal of the charge of conspiracy to commit murder brought against him on grounds that he knew about the plot to shoot down two airplanes flown by the exile group Brothers to the Rescue.

The charge of conspiracy to commit murder centered on the downing of the planes by the Cuban government on February 24, 1996 over what the U.S. assures were international waters and Havana claims was its national airspace. Hernández’s first trial attorney based his case on the fact that since the planes were shot down over Cuban waters it was not homicide but a justified act of defense. His current attorneys, however, hold that the shoot-down location was not as paramount to the case as the argument that Hernández was not privy to the Cuban MiG assaults and therefore could not be convicted of murder conspiracy. In his appeal, Hernández contends that he was denied the right to an effective defense and the due process of law.

At any rate, Hernández’s move was seen in Miami as an admission that the airplanes were shot down over international waters, which amounts to breaking ranks with the Cuban government, as remarked by The Miami Herald in an article tagging the Cuban spy’s appeal as a startling about-face that fundamentally contradicts the stand of the regime he has sworn his loyalty to and which has declared him a modern-day hero of the Revolution.

Hernández was the only one of the five members of the Cuban anti-terrorist cell convicted in connection with the shoot-down. They were all tried for acting as unregistered agents of a foreign government and conspiracy to commit espionage. If his court accepts his petition, he will receive a new trial on charges of conspiracy to commit murder.

“There’s no evidence that Gerardo is guilty of murder conspiracy or that he knew about his government’s plan to shoot down the planes (…) Consequently, there’s no evidence that he conspired to bring them down,” attorney José Pertierra, who has followed the case since the beginning, told La Jornada.

Actually, at their first trial, Pertierra recalls, the prosecutors themselves considered this charge so lame that they asked the court to drop it, but the judge refused. He also scoffed at the notion making the rounds of Miami that the appeal reveals a breakup between Hernández and Cuba, calling it simply a legal argument regarding the charge of murder conspiracy.

Pertierra, whose office in Washington represents the Venezuelan government in Luis Posada Carriles’s extradition case, emphasized that the United States is fully aware that the Cuban agents went to that country to thwart violent campaigns by exile militants in Miami whose terrorist acts have claimed thousands of innocent lives in the island. A major mastermind behind anti-Cuban terrorism is Luis Posada Carriles, who lives safely in the U.S. under the government’s protection against Venezuela’s request for his extradition while the Cuban Five serve harsh and unfair sentences in U.S. prisons. Gerardo is not a murderer, but an anti-terrorist now serving two unjustly served life terms in a California federal prison. The real murderer is Posada Carriles, who in 1976 bombed a civilian plane out of the sky, killing all the 73 passengers and crew members and nevertheless walks freely around Miami, where parties are even held in his honor.

Pertierra believes it’s high time that President Barack Obama thought about normalizing relations with Cuba and lifting the blockade. He could start by granting the Cuban Five a pardon so that they can return to Cuba and extraditing Posada Carriles to Venezuela, where he has been charged with 73 counts of homicide.