On May 25, 2001, when the trial of Gerardo Hernandez in Miami was nearing its end, the prosecution filed an Emergency Petition for Writ of Prohibition with the 11th Circuit Court of Appeals in Atlanta. The first surprise was the speed – no more than a couple of hours – with which the government prepared this document containing more than forty pages. Here is how it described what had taken place:
“Sometime during the morning hours of May 25, 2001, following six days of argument, the trial court finalized the instructions to be given to the jury in this matter. After 1 pm that same day, the United States received a draft copy of those instructions from the District Court. The United States objected to several of these instructions.” (Emergency Petition, page 3)
That same afternoon, the prosecution took “the unprecedented step of petitioning this Court for a writ of prohibition” (Idem, Pages 4 and 5)
What was the prosecution seeking to prohibit? Let’s read the Emergency Petition:
“That the district court be ordered to instruct the jury that it is not necessary for the jury to find that defendant Hernandez 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.
“That the district court be prohibited from giving a theory of defense instruction to the jury as to Count Three that includes provisions of the ICAO conventions and annexes.” (Idem, Pages 39 and 40)
But it just so happened that, upon drafting her instructions to the jury, the judge simply followed the accusation that the prosecution had formulated in May of 1999:
“the defendant Gerardo Hernandez did knowingly, willfully and unlawfully combine, conspire, confederate and agree with persons known and unknown to the Grand Jury, to perpetrate murder, that is the unlawful killing of human beings with malice aforethought, in the special maritime and territorial jurisdiction of the United States, in violation of Title 18, United States Code, Section 1111.” (Second Superseding Indictment, page 14)
One need only compare this government accusation with the judge’s instruction in order to comprehend that the two are identical:
“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, pages 14587-14588
Consequently, Judge Lenard instructed that Gerardo:
“[C]an be found guilty of that offense 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)
How could the government object to an instruction that followed its own allegation to the letter?
Two years had passed since the government had launched its unfounded slander against Gerardo Hernández Nordelo, and during that time it had organized and financed a fierce propaganda campaign with which the jury and witnesses were subjected to countless pressures, despite repeated complaints from the judge herself. Since May of 1999, Gerardo had been declared guilty not only by the local press but by all Miami’s authorities and leading public figures.
Within the courtroom, however, the clumsily fabricated pretext unraveled against the arguments from the defense and the testimony from specialists on both sides. Aware of its fiasco, the prosecution felt itself forced to object to the judge’s instructions or, in what amounts to the same thing, negate its own accusation: “In light of the evidence presented in this trial, this 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, page 21).
The prosecution, finally, acknowledged its failure. It was an “unprecedented” action, according to its own words.
The Court of Appeals did not accept the petition. Nor did it grant the temporary stay of the trial that the prosecutors had also requested. The case returned to Miami. It was time for the jury to give its verdict.
And it did so with unusual speed. The jurors asked no questions, nor did they express the slightest doubt. It did not even occur to any of them to request clarification about the Emergency Petition for Writ of Prohibition. Judge Lenard had spoken. They were afraid. That’s why, confronted with those threatening faces, approached one last time by the cameras and microphones that had besieged them throughout those many months, they gave the guilty verdict that had been demanded of them.
Gerardo Hernández Nordelo was condemned to die in prison for a crime that did not exist; for an event with which he had no relationship whatsoever; for a fabricated accusation that the prosecutors themselves admitted they could not prove and had tried to withdraw.
Despite their defeat, the prosecution won, achieving that which it had sought: punishing an innocent man and robbing him of his life. At the end of the day, it happened in Miami.
Ricardo Alarcón is the president of the Cuban National Assembly.