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The Untold Story of the Cuban Five
It Happened in Miami
by RICARDO ALARCÓN De QUESADA

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?

RICARDO ALARCÓN de QUESADA is president of the Cuban National Assembly.