“THE REASON FOR SOOTHES IN THE CASE OF THE 5 SPIES: PERFECT STORM OR HETEROGENOUS COMMUNITY�.
Lic. Ernesto Antonio Side Rodriguez
After finished the saga of the boy Elián González, Fidel Castro chose by a new entertainment that continued giving life to its “battle of ideas�. He touched the turn to 5 confesos, imprisoned spies in the United States, that declared agents of the regime Castro, and sentenced the 8 of June of the 2001.
During years, the televising spaces controlled by the Cuban Government have gone it lying to the town, adulterating the facts and giving the image of originating an implacable and brutal system of the north.
A system where they do not exist or the procedural guarantees of the defendant are not fulfilled. A country that has a called community Miami, that is incapable to judge with impartiality the Cubans that they act like spies of the Cuban dictatorship.
Those that we know the reality Cuban, because we lived day to day and we are part of her, we know that these assertions, rather they belong to the Cuban legal system, where not even the authorities respect their own laws.
During the judgment and after the same, in the successive appeals, the lawyers of the Defense have reiterated the same arguments: the violence history that showed the city of Miami indicated that their citizens did not have capacity to separate their feelings against the Cuban Government and to emit a verdict fit to Right; that the survey realized by professor Mora'n concluded that the change of jurisdiction of the division of the Federal District of the South of Florida was the unique form so that the 5 defendant had a right judgment, since the County of Miami - Dade was saturated of a deep prejudice against everything what it was related to the Cuban Government; they reviewed some articles published before and after the judgment.
Nevertheless, after a detailed analysis of the case, the Plenary session of the Cut of Atlanta decided in a voting of 10 votes against 2, that Gerald, Fernando, Antonio, René and Ramon (5 of the members of the Network Wasp), had received a right judgment and that nothing in the File of the case, indicates that an impartial jury could not be chosen within the County Miami - Dade.
However, this Sentencia adopted by the Plenary session, in date 9 of August of 2006, adjusts to which they stipulate the norms in the United States, or was a colossal injustice as it comes repeating the regime from Castro?
The operating judges considered the formal sources of the right of their country, that is to say: the written norm or federal Rules and the judicial precedents.
According to Federal Rule 21, the defendant to obtain a new judgment or a change of it soothes must demonstrate that a deep prejudice against them within the Community exists in which they will be judged. The defendant presented/displayed as he demonstrates a Survey realized by the psychologist Patrick Mora'n. Nevertheless, it is necessary to indicate that this Survey lacked scientist strictly speaking: he did not measure the prejudice accurately, the taken sample he was insufficient, one did not handle the neutral terminology correctly, for example, he asked himself to him the survey one if he agreed or in which the agents of I castrate they had not tried to interrupt the pacific manifestations of the flotillas of the Movement Democracy that rendered tribute to the fallen companions; the majority of the realized questions was prefabricated, generalized and very few had to do with the case that struggled.
On the other hand it was within the prerogative of judge Joan Lenard rejecting the Survey categorically. However, the file reveals that to make that decision the judge analyzed with much depth the conclusions of the expert.
The spokesmen of the regime have said time and time again that a right judgment did not exist and that the spirits of the community were heated to such point which they influenced in the decision of the jury. Nevertheless when you review all the file of the case as well as the sentences imposed by the judge and the failure of the appeals before the Plenary session, she notices that it happened quite the opposite.
Judge Joan Lenard took very effective measures so that the jury was not contaminated, emitted an order jaw to all the parts and their lawyers, ordering to them to abstain to offer information or opinions that any reasonable person could present by means of public communication, in relation to an imminent litigation, where such diffusion could harm the due development of the judgment; the judge never gave to the press the names of the twelve members of the jury and avoided the access of mass media to the questions that would be realized in “voir dire� to the candidates who would integrate the jury. When he even gets himself to conform the jury the lawyers of “the five� affirmed that very they were satisfied with the selection of the jury, praising the work of the judge.
Another one of the lies that repeat the regime of Castro and the lawyers and relatives of the 5 spies is that the Courts did not consider the judicial precedents. However, we review which are those judicial precedents supposedly violated in this case:
1 - Irvin versus Dowd: Here one was a rural community of very few inhabitants that was put under a very detrimental publicity in which revealed the antecedents of the defendant, and his criminal records; in this case eight of the twelve juries they thought that the defendant was guilty before beginning the judgment.
2 - Rideau versus Lousiana: in this case the agents of the police obtained from illegal and arbitrary way the confession of the defendant, apart from which she allowed herself the television to film the premises where she had committed the crime and the place where the judgment would be carried out.
3 - Sheppard versus Maxwell: here the judge did not instruct properly to the members of the jury, turning to these into victims of mass media.
4 - Estes versus Texas: the defendant did not receive a right judgment, since the Room of the Court was full of cables and cameras of television.
As we can see, no of the precedents mentioned by the Defense is adjusted to the case of the 5 spies. In those rare and very few cases in that Cortes granted a new judgment protecting itself in the deep prejudice of the Community, one was towns with very few inhabitants or judgments realized without the most mini procedural guarantees, where the mass media had a too evident protagonism. It is not enough with arguing that a deep prejudice exists, is needed to demonstrate it, to demonstrate that to that prejudice deep gypsy dialect in the members of the jury, something that the lawyers of the Defense did not manage to try. The fact is not if the jury read or saw something on the case in the television, the subject is if the jury became of a condemnatory or absolving criterion after the sight or the read thing.
The Court did not find either that the five defendant had right in a new opinion on the basis of Federal Rule no. 33, since impropia had not existed on the part of the Office of the public prosecutor an inconsequential conduct or, every time the position assumed by the representatives of the government during the case of Ramirez, happened later and not before its position in the case of the five spies, reason why the judicial evidence is not applied because the argument maintained by the Defense is chronological incongruous. On the other hand, the case of Ramirez turned rather of use discrimination, where the own plaintiff tried to operate for his personal benefit the cover of press, being given conferences and issuing declarations propagating therefore the points of his demand.
Miami Dade is a county of more than 2 million inhabitants, is a heterogenous, multiracial community, where there is diversity of criteria in the politician, and on the other hand the previous publicity in the opinion was not detrimental, we compared if it with the rare cases in that Cortes has ordered a new judgment.
As we can see the “5� they had a right judgment, and with all the procedural guarantees that can have a defendant in the United States, unlike those Cubans that in their own earth is sentenced to long prison sentences by only made express opinions that differ from the official line of the regime.
The “5� had a judgment with all the guarantees, where their lawyers counted in good time to propose tests demonstrates, it the fact that this judgment lasted more of a year, unlike the celebrated judicial farces to the 75 Cuban dissidents during the Black Spring of year 2003, field court martials without procedural guarantees, without a truly effective defense.
It sounds ironic that the dictatorship speaks of “deep prejudice�, when the prejudice has been present in these 51 years; prejudice towards the homosexuals, prejudice towards the Christians and other people medical instructors of all type of religion.
The international community and all that we fought by the freedom we must demand Raul to him I castrate that it realizes a new judgment, not only to the 75 dissidents condemned in the 2003, but to the hundreds of thousands of people who have undergone the discrimination and the prejudice throughout these 51 years of tyranny.
Perhaps perhaps it has mistaken the number, are million.
Santiago of Cuba, 28 of June of 2010.
Lic. Ernesto Antonio Side Rodriguez
Lawyer and independent Librarian
Member of the agramontista Current of independent lawyers of Cuba
    