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The 11th U.S. Circuit Court of Appeals has reversed the spy convictions of five Cubans, and ordered a new trial outside of South Florida, finding that the defendants could not have received a fair trial in Miami. U.S. v. Campa, nos. 01-17176 and 03-11087. In an unsigned opinion, the three-judge panel vacated the 2001 espionage convictions of Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez and Rene Gonzalez on charges that the admitted secret agents spied for the government of Cuban leader Fidel Castro. Their sentences ranged from 15 years to life. The panel, including judges Stanley F. Birch Jr. and Phyllis A. Kravitch and 2nd Circuit Senior Judge James L. Oakes of Vermont, sitting by designation, found that U.S. District Judge Joan Lenard was wrong to deny the defendants’ requests for a change of venue. There was no way, the panel said, that Miami could provide an impartial jury pool for the trial because of passionate anti-Castro sentiment, the community rift over the removal of young Elian Gonzalez and the outrage over the downing of the four Brothers to the Rescue pilots who died after being shot down by the Cuban air force. “Here, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references,” the panel said. In the most politically charged portion of the case, Hernandez, leader of the spy ring, was convicted of murder conspiracy in the deaths of four Brothers to the Rescue fliers on two small planes shot down by the Cuban air force in international airspace off the northern Cuban coast in 1996. The 11th Circuit’s allusion to “improper prosecutorial references” pointed to closing argument statements. The prosecutors asserted that the defendants had been “sent to . . . destroy the United States” on behalf of a regime repeatedly described as terroristic. The court noted the ideological divide in Miami during the international custody fight over whether Elian Gonzalez’s Miami relatives should be allowed to raise him after his mother drowned in a boat crossing from Cuba. However, the judges wrote, “The community’s displeasure with the Elian Gonzalez controversy paled in comparison with its revulsion toward the [Brothers to the Rescue] shootdown.” Taking all these factors into account, the court held that there was no way that the defendants could have received a fair trial in Miami. “The court is equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba,” the panel wrote. “One of our most sacred freedoms is the right to be tried fairly in a non-coercive atmosphere. The court is cognizant that its judgment today will be received by those citizens with grave disappointment but is equally confident of our shared commitment to scrupulously protect our freedoms. “The Cuban-American community is a bastion of the traditional values that make America great,” the panel added. “Included in those values are the rights of the accused criminal that ensure a fair trial. Thus, in the final analysis, we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be treated fairly.”

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