The untold story of the Cuban Five
Forbidden Heroes -Part 4
Ricardo Alarcón de Quesada President of the National
Assembly of People’s Power
Continued from last week
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 US.” (Idem pages 14598 - 14599).
She elaborated added: “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
Cars drive by a banner referring to five Cuban agents held in
prison in the United States for over ten years. The banner reads
“liberty for truth and justice in the United States.” Pictures
courtesy GETTY images |
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 US”. (Idem pages 14599 - 14600).
Beyond a reasonable doubt
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).
Court of Appeals
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 US, 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?
Concluded |