Convicted 'Cuban Five' spies lose bid for new trial

The Supreme Court refused Monday to hear their appeal. Their lawyers had argued they couldn't receive a fair trial in Miami.

Enrique De La Osa/Reuters
Members of Cuba's Communist Youth League hold flags outside the US diplomatic mission in Havana, Cuba, on May 12 calling for the release of five Cuban agents arrested by the US a decade ago. On Monday, the 'Cuban Five,' as they are known, agents convicted of spying on US military bases and anti-Castro exile groups in south Florida lost their bid for a new trial outside Miami.

Five Cuban intelligence agents convicted of spying on US military bases and anti-Castro exile groups in south Florida have lost their bid for a new trial outside Miami.

The US Supreme Court on Monday refused to hear their appeal.

Lawyers for the so-called "Cuban Five" had argued that as intelligence agents charged with working for the government of Fidel Castro, their clients could never receive a fair trial in Miami, a city dominated by anti-Castro Cuban exiles.

In addition to spying on military bases and exile groups, the men were charged with having helped the Cuban military shoot down and kill Cuban-American pilots flying two unarmed planes over the Florida Straits in 1996.

The shootdown sent waves of outrage through south Florida. In addition, the men were put on trial five months after 6-year-old Elian Gonzalez was sent back to Cuba, an episode that sparked large protests in Miami.

Lawyers for the Cuban agents had asked the Supreme Court to use the case to establish broader circumstances justifying a change-of-venue order by a trial judge. "It is hard to imagine a stronger case for a change of venue than this case," wrote Washington lawyer Thomas Goldstein in his brief to the court.

He noted that the trial had been criticized by Nobel laureates, national parliaments, and human rights experts. "No criminal trial in modern American history has been condemned in such a fashion," Mr. Goldstein wrote.

Courts have generally focused on the corrupting influence of pretrial publicity as justification to move a trial. When a community has been saturated with accounts of the alleged crime, judges must decide how best to ensure the accused receives a fair trial before an unbiased jury.

In most cases, the judge questions potential jurors and excuses those who are incapable of putting aside prejudices. In extreme circumstances, judges have ordered trials to be moved to a different city or region beyond the taint of pretrial publicity.

In this case, the high court was being asked to consider a different rationale justifying a change of venue. Lawyers for the Cuban Five defendants said strong anti-Castro feelings in Miami required a change of venue. They said the trial judge erred by keeping the trial in Miami.

Even though none of the seated jurors in the Cuban Five case were Cuban-Americans, the jurors may have been fearful of personal and community-wide consequences should they acquit the defendants, the lawyers said.

All five men were convicted and sentenced to prison terms ranging from life to 15 years. On appeal, a three-judge panel of the 11th US Circuit Court of Appeals reversed the convictions, but the full court of appeals later reinstated the convictions and upheld the judge's refusal to move the trial out of Miami.

"The Eleventh Circuit's cramped conception of community prejudice not only defies common sense,... but also conflicts with decisions of other circuits," Goldstein said.

He said his clients "could not receive a fair trial as admitted agents of a hated government sent to infiltrate the very organizations lionized by the community in a case in which they were alleged to have contributed to the deaths of ... pro-democracy activists."

Solicitor General Elena Kagan urged the high court to reject the appeal. She said the trial judge and appeals court reached the correct result. Lawyers for the convicted agents "failed to show that pervasive community prejudice against the Cuban government and its agents and the pretrial publicity ... warranted a presumption that any jury empanelled would not be fair and impartial," she said in her brief.

Ms. Kagan added that "nothing in the trial record suggests that twelve fair and impartial jurors could not be assembled by the trial judge to try the defendants impartially and fairly."

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