FacebookTwitterGoogle+RedditEmail

Pryor’s Judgment

When the historic unanimous decision was reversed at the urging of George W. Bush’s Attorney General (Remember Elian? CounterPunch, August 11, 2009), the same 3-judge panel was to hear the remaining issues other than venue, which had been the one upon which they had expressed their landmark opinion. However, in the meantime, one jurist, the oldest and most liberal, had retired and somebody else was designated to substitute for him. The one chosen for that role was a Bush recess appointee, William H. Pryor, whose nomination, described as “one of the most contentious in recent history”, had provoked uproar in the Senate, which confirmed him over the opposition of 45 Senators. (For a detailed investigation into Pryor’s legal career see Jeffrey St. Clair’s Pryor Unrestraint, CounterPunch, June 14, 2003.)

Senator Kerry, claimed that the new judge “has been a constant advocate for scaling back constitutionally guaranteed rights” with his “consistent pursuit of extreme and incorrect legal views … as a result our Federal judiciary will have less ability to protect the constitutional rights we hold so dear” (Congressional record, Senate June 14, 2005).

Pryor was criticized by some major newspapers, and was described as a “right wing zealot not fit to judge”. In summing up his pedigree Jeffrey St. Clair writes: “he goes much, much farther than even many of the most extreme ideologues in his party” (“Pryor Unrestraint”, CounterPunch, June 14, 2003).

Mr. Pryor wrote the opinion for the Court rejecting the other issues presented by the defense in language that at times was closer to a slanderous anti-Cuban vulgar diatribe than to the balanced, sober style of the judiciary (even some well-known terrorists, rightly described as such by the previous panel, were now transmuted into patriotic freedom fighters). Interestingly the accusation of “spying” was so clumsily fabricated and the Miami trial included other wrongs so obvious that even Pryor had to agree with the other two judges in vacating the sentences of three of the defendants. (Spies Without Espionage, CounterPunch August 28-30, 2009).

This time the panel was divided on a very crucial point: Count 3, conspiracy to commit murder. One of the judges, J. Birch, while concurring with Pryor’s opinion recognized that “this issue presents a very close case” and reiterated “that the motion for change of venue should have been granted” adding that “the defendants were subjected to such a degree of harm based upon demonstrated pervasive community prejudice that their convictions should have been reversed” (US Court of Appeals for the Eleventh Circuit N. 01-17176, DC Docket No. 98- 00721 CR-JAL, Page 83).

Judge Phillys Kravitch, in an impressive 15-page dissent, demonstrated the terrible injustice committed by her colleagues against Gerardo Hernández.

She pointed out:

“A country cannot lawfully shoot down aircraft in international airspace, in contrast to a country shooting down foreign aircraft within its own territory when the pilots of those aircrafts are repeatedly warned to respect territorial boundaries, have dropped objects over the territory, and when the objective of the flights is to destabilize the country’s political system. Thus, the question of whether the Government provided sufficient evidence to support Hernández’s conviction turns on whether it presented sufficient evidence to prove that he entered into an agreement to shoot down the planes in international, as opposed to Cuban airspace” (Idem Pages 94-95) and in this regard “the Government cannot point to any evidence” (Idem Page 98).

But beyond the issue of the location of the incident “the Government failed to provide sufficient evidence that Hernández entered into an agreement to shoot down the planes at all. None of the intercepted communications the Government provided at trial show an agreement to shoot down the planes. At best, the evidence shows an agreement to ‘confront’ BTTR planes. But a ‘confrontation’ does not necessarily means a shoot down.”

To prove her point she referred to testimonies and videotapes presented at trial: “This evidence demonstrates the obvious: there are many ways a country could “confront” foreign aircraft. But the Government presented no evidence that when Hernandez agreed to help “confront” BTTR that he agreed confrontation would be a shoot down. To conclude that the evidence does show this goes beyond mere inferences to the realm of speculation … Because so much evidence points towards a “confrontation” other than a shoot down, I cannot say that a reasonable jury – given all the evidence – could conclude beyond a reasonable doubt that Hernandez agreed to a shoot down.” (Idem Pages 96-97)

It was so obvious that the Government itself had recognized the point in an “unprecedented” emergency petition to that very Court of Appeals: to demonstrate Gerardo’s invented guilt on such a fabricated crime constituted an “insurmountable obstacle” for the prosecution.

Such would have been the case with “a reasonable jury” in any other venue. But not in Miami, where the intimidated jurors where surrounded at the courtroom by a bunch of individuals who proclaimed their terrorist exploits and were able to kidnap Elian Gonzalez, always with total impunity, and joined the Government in demanding the worst punishment for Gerardo. That could have been understood by any reasonable jurist. But not by a “right wing zealot not fit to judge.”

Somebody at the White House was happy. His appointee served him well. Gerardo got his two life sentences confirmed with the reluctant and paradoxical vote of a judge, Birtch, who insisted that all of the Five “convictions should have been reversed” and a dignified lady who maintained her dissenting voice: “the Government presented no evidence” to sustain its accusation.

After Pryor’s shame judgement, the Five appealed to the en banc Court. This time they were not contesting an unanimous and well founded decision – as the Government did in 2005 – but one clearly unfair and prejudicial that had sharply divided the panel on Count Three, with Kravitch rejecting it with impeccable consistency and Birtch – after recognizing her arguments, but ignoring the presumption of innocence and his own “reasonable doubts” – strangely decided to join Pryor’s pro-Government stance and neocon logic.

But this time the Court of Appeals confirmed the disputable conclusions of the panel. The Atlanta judges even forgot that it was to them that the same Government had made an “emergency petition” admitting that it had failed to prove Gerardo’s guilt.

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

 

Ricardo Alarcón de Quesada has served as Cuba’s UN ambassador, Foreign Minister and president of the National Assembly.

July 18, 2018
Bruce E. Levine
Politics and Psychiatry: the Cost of the Trauma Cover-Up
Frank Stricker
The Crummy Good Economy and the New Serfdom
Linda Ford
Red Fawn Fallis and the Felony of Being Attacked by Cops
David Mattson
Entrusting Grizzlies to a Basket of Deplorables?
Stephen F. Eisenman
Want Gun Control? Arm the Left (It Worked Before)
CJ Hopkins
Trump’s Treasonous Traitor Summit or: How Liberals Learned to Stop Worrying and Love the New McCarthyism
Patrick Bond
State of the BRICS class struggle: Repression, Austerity and Worker Militancy
Dan Corjescu
The USA and Russia: Two Sides of the Same Criminal Corporate Coin
The Hudson Report
How Argentina Got the Biggest Loan in the History of the IMF
Kenn Orphan
You Call This Treason?
Max Parry
Ukraine’s Anti-Roma Pogroms Ignored as Russia is Blamed for Global Far Right Resurgence
Ed Meek
Acts of Resistance
July 17, 2018
Conn Hallinan
Trump & The Big Bad Bugs
Robert Hunziker
Trump Kills Science, Nature Strikes Back
John Grant
The Politics of Cruelty
Kenneth Surin
Calculated Buffoonery: Trump in the UK
Binoy Kampmark
Helsinki Theatrics: Trump Meets Putin
Patrick Bond
BRICS From Above, Seen Critically From Below
Jim Kavanagh
Fighting Fake Stories: The New Yorker, Israel and Obama
Daniel Falcone
Chomsky on the Trump NATO Ruse
W. T. Whitney
Oil Underground in Neuquén, Argentina – and a New US Military Base There
Doug Rawlings
Ken Burns’ “The Vietnam War” was Nominated for an Emmy, Does It Deserve It?
Rajan Menon
The United States of Inequality
Thomas Knapp
Have Mueller and Rosenstein Finally Gone Too Far?
Cesar Chelala
An Insatiable Salesman
Dean Baker
Truth, Trump and the Washington Post
Mel Gurtov
Human Rights Trumped
Binoy Kampmark
Putin’s Football Gambit: How the World Cup Paid Off
July 16, 2018
Sheldon Richman
Trump Turns to Gaza as Middle East Deal of the Century Collapses
Charles Pierson
Kirstjen Nielsen Just Wants to Protect You
Brett Wilkins
The Lydda Death March and the Israeli State of Denial
Patrick Cockburn
Trump Knows That the US Can Exercise More Power in a UK Weakened by Brexit
Robert Fisk
The Fisherman of Sarajevo Told Tales Past Wars and Wars to Come
Gary Leupp
When Did Russia Become an Adversary?
Uri Avnery
“Not Enough!”
Dave Lindorff
Undermining Trump-Putin Summit Means Promoting War
Manuel E. Yepe
World Trade War Has Begun
Binoy Kampmark
Trump Stomps Britain
Wim Laven
The Best Deals are the Deals that Develop Peace
Kary Love
Can We Learn from Heinrich Himmler’s Daughter? Should We?
Jeffrey St. Clair
Franklin Lamb, Requiescat in Pace
Weekend Edition
July 13, 2018
Friday - Sunday
Brian Cloughley
Lessons That Should Have Been Learned From NATO’s Destruction of Libya
Paul Street
Time to Stop Playing “Simon Says” with James Madison and Alexander Hamilton
Jeffrey St. Clair
Roaming Charges: In the Land of Formula and Honey
Aidan O'Brien
Ireland’s Intellectuals Bow to the Queen of Chaos 
FacebookTwitterGoogle+RedditEmail