The New York Review of Books - USA (2020-09-24)

68 The New York Review

to change the venue of the trial,

without success. During voir dire,

many prospective jurors said that they

would have difficulty remaining im-

partial or that they feared reprisals

from the Cuban- American commu-

nity if the spies were not convicted.

Though the jury didn’t include a sin-

gle Cuban- American member, most

jurors expressed strong disapproval of

the Cuban government. David Buker,

the foreman of the jury, testified to the

judge, “Castro is a communist dictator

and I am opposed to communism so I

would like to see him gone and democ-

racy established in Cuba.”

Garbus, who did not attend the initial

trial, says that he has read the 20,000-

page court record twice. A lawyer with

vast experience—in his sixty-year ca-

reer, he has represented Daniel Ells-

berg, Cesar Chavez, and Leonard

Peltier, among others—he argues that

many things had gone wrong from the

beginning. “The prosecutor’s opening

statement was a blatant misstatement

of the facts of the case,” he contends.

“Cuban intelligence operations were

described as ‘an intelligence pyramid’

with Fidel Castro at the top.” It did

not help that “mentions of Cuba were

often accompanied by one adjective:

‘repressive.’” At one point, “the prose-

cutors showed photographs of the dead

pilots and had a Brothers pilot choke

back tears as he read their death cer-

tificates. It’s hard to counter that kind

of appeal.”

Garbus also believes that the Five

were unlucky in drawing Judge Joan

A. Lenard, who “had never tried a fed-

eral case of this duration with these

legal complexities.” Though the trial

lasted seven months (Garbus notes that

Timothy McVeigh’s trial lasted only

six weeks), “less than 10 percent of

the nearly 20,000 documents collected

in the government raids on the defen-

dants’ apartments were presented as

evidence.” A more experienced judge,

he argues, would likely have prevented

the tearful reading of the Brothers’

death certificates. Garbus writes that

Lenard “showed the highest integrity,

she tried hard and worked hard,” but

he concludes that the “justice system

required far more than she could do.”

“The prosecution strategy was sim-

ple,” Garbus writes: “show that the

Brothers were devoted American pa-

triots, that the Cuban Five were kill-

ers, and that their leader, Gerardo

Hernández, was directly responsible

for the death of four pilots” because

he had provided information to the

Cuban government. The defense, by

contrast, focused “on an argument [it]

could not win.” Instead of arguing that

the Cuban government didn’t need any

information from Hernández to learn

of Basulto’s plans for his flight on Feb-

ruary 24, 1996, which Basulto himself

had broadcast on Radio Martí, “the de-

fense... spent much of the trial parsing

the logistical details of the shoot down,

because it was crucial to their argument

that it occurred in Cuban airspace and

was, therefore, legally justified.”

After closing arguments were given

in June 2001, “the jury deliberated for

five days, a very short time for a trial

of this length and complexity,” Garbus

writes. The accused were found guilty

of the twenty-three acts with which they

had been charged. Hernández received

two life terms plus fifteen years. The

other four received sentences ranging

between fifteen years and life in prison.

Years later, Hernández’s defense at-

torney, Paul McKenna, admitted to

Garbus, “I made a lot of bad decisions.

These guys should not be in jail.”

The ruling was political, the prison

terms disproportionate to the crimes.

The verdict received strong condem-

nation from Amnesty International,

which raised “serious doubts about

the fairness of the proceedings leading

to [the] conviction, in particular the

prejudicial impact of publicity about

the case on a jury in Miami.” Castro

launched a tireless international cam-

paign on behalf of the imprisoned men

that lasted more than sixteen years. In

2001 he established the National Com-

mittee to Free the Cuban Five, which

organized hundreds of public events,

collected signatures worldwide in sup-

port of the prisoners, and paid for large

billboards in San Francisco and Los

Angeles. The Cuban Five gained sup-

port from celebrities such as the actor

Danny Glover. The prima ballerina

assoluta of the Cuban National Ballet,

Alicia Alonso, took out full-page ad-

vertisements in The New York Times,

The Nation, and The Washington Post.

One hundred members of British Par-

liament signed a petition demanding

the Five’s release, as did Nobel Prize–

winning activists and writers including

Rigoberta Menchu, José Saramago,

Wole Soyinka, Zhores Alferov, Nadine

Gordimer, Günter Grass, and Dario Fo.

The efforts to free the Cuban Five

dominated Cuban political life for

years. The streets and public spaces of

the island were inundated with their

pictures and slogans demanding their

release. The Cuban Parliament gave

the Five the honorific title of Héroe de

la República de Cuba, or Heroes of the

Republic of Cuba, and, in the revolu-

tionary style of naming years, decided

to call 2002 the Año de los Héroes Pri-

sioneros del Imperio, or “Year of the

Hero-Prisoners of the Empire.” State

television broadcast endless round ta-

bles in which experts from all over the

world were invited to discuss the details

of the case. The government went so far

as to ask a well-known artist to make a

replica of the fifteen-by-seven-foot cell

in which Hernández spent seventeen

months in solitary confinement in fla-

grant violation of the law. The peculiar

installation was exhibited in the Palace

of Fine Arts, the Cuban museum of

modern art in downtown Havana.

In 2002 Leonard Weinglass became

the Cuban Five’s attorney and ap-

pealed the initial decision. On August

9, 2005, the defense scored a victory

when a three-judge panel of the Elev-

enth Circuit Court of Appeals ruled

that a fair trial had been impossible

in Miami. The original conviction was

overturned, and the appeals court or-

dered a new trial in a new location.

But in June 2008 Judge William Pryor

upheld Hernández’s original sentence,

even while reducing the sentences for

three of the condemned. “When the

planes were shot down,” Pryor wrote,

“everything, including the unjusti-

fied killing in the jurisdiction of the

United States, went according to plan.

Hernández’s conviction for conspiracy

to murder is affirmed.” In June 2009

the Supreme Court denied review.

After Weinglass’s death in 2011, the

Cuban government contacted Gar-

bus to ask if he would agree to defend

Hernández. Before making a decision,

Garbus traveled to Cuba to interview

Ricardo Alarcón, then president of the

Cuban Parliament. Alarcón told him,

“I have spent more time on the Cuban

Five case than I did at the parliament,”

adding that “sometimes it was my main

job.”

Alarcón asked Garbus whether it

would be possible to reverse the initial

verdict. At that point, Garbus writes,

“the defendants had only one remedy

left.... Habeas corpus relief allows

the court to review the entire trial and

appellate record in light of newly dis-

covered evidence.” The new evidence

included reports that “Miami journal-

ists [took] US pay” when covering the

trial and advocating for conviction. But

even if Hernández were granted habeas

corpus relief, the chances that the ver-

dict would be overturned were small.

Nevertheless, Garbus took on the

case:

I believed that Gerardo and his

co-defendants were innocent. The

legal issues in the case involved

a dramatic clash between First

Amendment rights to... a fair trial

and due process and raised ques-

tions about a prejudiced media

that are among the most important

issues in American jurisprudence.

I believed the prosecution was po-

litically motivated.

At the end of Garbus’s Havana trip,

Alarcón took him to meet Fidel

A billboard showing the Cuban Five and reading ‘They Will Return,’

Cienfuegos, Cuba, December 2010

Charles O. Cecil /Alamy

A NEW BOOK OF POETRY FROM

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For many years, Melissa Monroe has

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Her subject is both the strangeness of

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The poems collected here include

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sequence of haikus composed in the

criminal argot of 1940s America;

“Frequently Asked Questions About

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“Like Wallace Stevens, Monroe can be

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MELISSA MONROE

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