The Supreme Court refused Monday to hear their appeal. Their lawyers had
argued they couldn't receive a fair trial in Miami.
By Warren Richey | Staff writer of The Christian Science Monitor
from the June 15, 2009 edition
Washington - Five Cuban intelligence agents convicted of spying on US
military bases and anti-Castro exile groups in south Florida have lost
their bid for a new trial outside Miami.
The US Supreme Court on Monday refused to hear their appeal.
Lawyers for the so-called "Cuban Five" had argued that as intelligence
agents charged with working for the government of Fidel Castro, their
clients could never receive a fair trial in Miami, a city dominated by
anti-Castro Cuban exiles.
In addition to spying on military bases and exile groups, the men were
charged with having helped the Cuban military shoot down and kill
Cuban-American pilots flying two unarmed planes over the Florida Straits
in 1996.
The shootdown sent waves of outrage through south Florida. In addition,
the men were put on trial five months after 6-year-old Elian Gonzalez
was sent back to Cuba, an episode that sparked large protests in Miami.
Lawyers for the Cuban agents had asked the Supreme Court to use the case
to establish broader circumstances justifying a change-of-venue order by
a trial judge. "It is hard to imagine a stronger case for a change of
venue than this case," wrote Washington lawyer Thomas Goldstein in his
brief to the court.
He noted that the trial had been criticized by Nobel laureates, national
parliaments, and human rights experts. "No criminal trial in modern
American history has been condemned in such a fashion," Mr. Goldstein wrote.
Courts have generally focused on the corrupting influence of pretrial
publicity as justification to move a trial. When a community has been
saturated with accounts of the alleged crime, judges must decide how
best to ensure the accused receives a fair trial before an unbiased jury.
In most cases, the judge questions potential jurors and excuses those
who are incapable of putting aside prejudices. In extreme circumstances,
judges have ordered trials to be moved to a different city or region
beyond the taint of pretrial publicity.
In this case, the high court was being asked to consider a different
rationale justifying a change of venue. Lawyers for the Cuban Five
defendants said strong anti-Castro feelings in Miami required a change
of venue. They said the trial judge erred by keeping the trial in Miami.
Even though none of the seated jurors in the Cuban Five case were
Cuban-Americans, the jurors may have been fearful of personal and
community-wide consequences should they acquit the defendants, the
lawyers said.
All five men were convicted and sentenced to prison terms ranging from
life to 15 years. On appeal, a three-judge panel of the 11th US Circuit
Court of Appeals reversed the convictions, but the full court of appeals
later reinstated the convictions and upheld the judge's refusal to move
the trial out of Miami.
"The Eleventh Circuit's cramped conception of community prejudice not
only defies common sense,... but also conflicts with decisions of other
circuits," Goldstein said.
He said his clients "could not receive a fair trial as admitted agents
of a hated government sent to infiltrate the very organizations lionized
by the community in a case in which they were alleged to have
contributed to the deaths of ... pro-democracy activists."
Solicitor General Elena Kagan urged the high court to reject the appeal.
She said the trial judge and appeals court reached the correct result.
Lawyers for the convicted agents "failed to show that pervasive
community prejudice against the Cuban government and its agents and the
pretrial publicity ... warranted a presumption that any jury empanelled
would not be fair and impartial," she said in her brief.
Ms. Kagan added that "nothing in the trial record suggests that twelve
fair and impartial jurors could not be assembled by the trial judge to
try the defendants impartially and fairly."
Convicted 'Cuban Five' spies lose bid for new trial | csmonitor.com (15
June 2009)
http://www.csmonitor.com/2009/0615/p02s01-usju.html
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