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The
Untold Story of the Cuban Five (Part VII)
By Ricardo Alarcón, president of the
National Assembly of People's Power
The
Court of the Southern District of Florida is not an
international tribunal, neither is it a UN body
having jurisdiction on matters affecting relations
between countries. It has a very specific duty,
which is to determine if a particular defendant is
guilty or not of a concrete charge. In instructing
the jury in the case of Gerardo Hernandez, the Court
recalled the language of the Government’s indictment:
“Count 3 charges
that defendant Gerardo Hernandez conspired with
other persons to perpetrate murder, that is, the
unlawful killing of human beings with malice
aforethought and premeditated intent in the
special maritime and territorial jurisdiction of
the United States.” (Transcript of Trial before
the Honorable Joan A. Lenard, June 4, 2001,
pages 14587 – 14588)
Judge Lenard
pointed out that Gerardo:
“can be found
guilty of that offence only if all of the
following facts are proved beyond a reasonable
doubt.
First. That the
victims named in the indictment are dead.
Second. That the
defendant caused the death of the victims with
malice aforethought.
Third. That the
defendant did so with premeditated intent.
Fourth. That the
killing occurred within the special maritime or
territorial jurisdiction of the United States.”
(Idem pages 14598 – 14599).
She elaborated
further:
“To kill with
malice aforethought means to kill another person
deliberately and intentionally … Killing with
premeditated intent is required in addition to
proof of malice aforethought in order to
establish the offence of first degree murder.
Premeditation is typically associated with
killing in cold blood and requires a period of
time in which the accused deliberates or thinks
the matter over before acting.
It must be long
enough for the killer after the intent to kill,
to be fully conscious of the intent. You are
instructed that the location of the alleged
murder, as described in the indictment, if you
find beyond a reasonable doubt that such offence
occurred there, would be within the special
maritime or territorial jurisdiction of the
United States.” (Idem pages 14599 – 14600).
Such a crime had
never occurred. During seven months of trial the
prosecutors failed to provide any piece of evidence
implicating Gerardo in the tragic event of February
24, 1996, nor could they demonstrate, “beyond a
reasonable doubt”, the exact location of the
incident--something that ICAO experts had already
failed to determine.
It should be noted,
however, that Cuban radars showed clearly the
shoot-down taking place well inside our territory,
that the only remnants were found very close to
Havana waterfront and that the US coast guard,
having failed to find anything in the international
area, asked on February 25th officially through the
State Department for Cuba’s permission to search
within our territorial waters. The local media – the
same government-paid “journalists” that had
fabricated the accusation in Count 3 – became
nervous and even announced an imminent defeat.
A few days earlier,
as soon as the judge made it known to the parties
her instructions to the jury, the prosecutors took
what they described as “the unprecedented step of
petitioning” – to the Court of Appeals – “for a writ
of prohibition” because “in light of the evidence
presented in this trial, this [the instructions to
the jury] presents an insurmountable hurdle for the
United States in this case, and will likely, result
in the failure of the prosecution on this count.”
(Emergency Petition for Writ of Prohibition, May 30,
2001, pages 4 and 21).
After recognizing
again that the instruction “imposes an
insurmountable barrier to this prosecution” the
government asked the Court of Appeals to urgently
decide:
“That the
district court be ordered to instruct the jury
that it is not necessary for the jury to find
that defendant Hernández or his co-conspirators
in Count Three of the indictment agreed that the
murders would occur in the special maritime and
territorial jurisdiction of the United States.”
“That the
district court be prohibited from giving the
pattern jury instruction on first degree murder
and from instructing the jury that it must find
that defendant Hernandez conspired to commit
premeditated murder.” (Idem, page 39)
The Court of Appeals
denied the emergency petition and accordingly the
district judge maintained her instructions as quoted
above.
Some on the defense
team were jubilantly celebrating a victory that was
anticipated even by the prosecutors.
But it took the
jurors a few minutes, without asking any questions,
to find Gerardo guilty of conspiracy to commit
murder in the first degree in the special maritime
and territorial jurisdiction of the United States, a
“crime” that he did not commit and which the
prosecutors had desperately tried to withdraw.
That happened in
Miami. In Miami, it is normal to kidnap with
impunity a six-year-old boy, so why should it be
difficult to condemn a young man for a “crime” that
didn’t occur?
Taken from
Counterpunch |
