More Cuban Spy news and the Grinch

The Cuban spy case continues to get lots of coverage. The Sun-Sentinel explains why Miami-Cubans are angry; The Miami Herald has an op-ed defending the 11th Circuit's decision, an article about the future of the case, and an article describing how one groups is asking for their release. The Herald opinion:

At first glance, a federal appellate court's decision requiring a new trial for five Cubans accused of spying appears to be a harsh and unwarranted censure of Miami and the prevailing anti-Castro sentiment in this community. The court remanded the case for a new trial -- elsewhere -- because ''pervasive community prejudice'' precluded the probability of a fair trial in Miami for the defendants.
Principle of fairness
No community would find this a welcome message. However, a close reading of the court's 93-page decision suggests that this is not so much a slap at the community as reaffirmation of the principle that fairness is the paramount ingredient of the American system of justice. To understand this decision, it's important to point out what the court did not say, as well as what it said:

• It did not say that the jury was biased. In fact, the court cited an applicable ruling to the effect that the law does not require proof ''that local prejudice actually entered the jury box.'' Where community sentiment is strong (Who can deny that here?) and other factors such as pre-trial publicity come into play, a change of venue is necessary in the interest of fairness, the court said.

• It did not suggest that the defendants should have been acquitted on the basis of the evidence. Indeed, in reviewing the evidence matter-of-factly, the court referred to the defendants as ''agents'' and ''Wasp Network members.'' However, it noted that guilt or innocence based on evidence is not a determining factor when an appellate court reviews whether a change of venue was needed in order to ensure a fair trial.

• No single factor led the court to decide that only a change of venue could suit the interests of justice. Rather, it cited pre-trial publicity; a variety of other Cuba-related news stories around the same time, most prominently the Elián González controversy, that incited community passions; and ''improper prosecutorial references,'' including a statement that the ''jurors would be abandoning their community'' -- in the court's words -- if they did not convict.
Community passions
All of this, in the court's decision, amounted to a ''perfect storm'' of inflammatory conditions mandating a change of venue. It also noted that, in another legal action around that time, the government itself argued for a change of venue out of Miami on the theory that community passions were not ideal for rendering an impartial verdict in a case involving Cuba.
We do not endorse the notion that an impartial jury cannot be found in Miami to judge a case with Cuban connections. Neither did the appellate court. The court simply found that the interests of fairness would best have been served at the time by moving the spy trial elsewhere before the trial began. In the interest of fairness, we agree.

In other news, seven years the Grinch received. Teach him, it will. I'm not sure if that's Yoda or Seuss speak... sorry.

More on the Cuban Five

Howard Bashman does his typical wonderful job covering all the press about this case:
The Miami Herald contains this article today. The South Florida Sun-Sentinel reports today that "Court discards convictions of 5 Cubans accused of spying." The Chicago Tribune reports that "U.S. dealt setback on spies; Appellate court rules 5 Cuban agents were unfairly tried in Miami." In The New York Sun, Josh Gerstein reports that "Court Orders New Trial For 'Cuban Five.'"
And BBC News reports that "Havana hails US Cuban spy retrial; The Cuban government has welcomed a US appeal court decision to retry five Cubans convicted of spying."

Now that I've read the opinion a couple of interesting points:

1. Professor Gary Moran (from Florida International University's psychology department) did a venue survey pre-trial. He concluded that it would be impossible to receive a fair trial in Miami. The district court did not credit the survey, but the 11th Circuit quotes from it at length. I've used Gary Moran as a jury consultant and he (and his brother Bill) do great work.

2. The 11th Circuit relies not just on the publicity surrounding this case (of which there was a ton), but also relies on the Elian case, the government's admission in a civil case that there was community prejudice on this issue, witnsses during trial who baited the defense lawyers (even asking them if they were doing Fidel's bidding), and the government's comments throughout the trial (especially during rebuttal closing) mixing references to the Holocaust and Pearl Harbor and complaining to the jury that these "spies sent to destroy" this community had a legal defense "paid for by American taxpayers. "

3. A couple people have mentioned to me that this is the first reported decision of a federal criminal conviction reversed based on the denial of a motion for change of venue.

4. The venue motions were prepared by Joaquin Mendez (who, along with Richard Klugh, argued the issue on appeal) and Bill Norris, which relied on the survey by Moran.

5. Many have criticized the 11th Circuit and its opinion as being "liberal" or supporting "communism." It's an interesting criticism of a court that many would call the most conservative appellate court in the country. It's a recent and troubling trend of criticizing judges and courts when there is disagreement with a decision.

Cuban Spy case reversed!

Huge news today from the U.S. Court of Appeals for the Eleventh Circuit. The Court, in a 93 page opinion, reverses the convictions for the "Cuban Five" based on venue grounds. This case received quite a bit of press in Miami and was tried in front of Judge Lenard. The appeal has been pending for some time and many were starting to wonder what was going on. The defense lawyers were: Richard Klugh, Kathy Williams, Joaquin Mendez, Orlando do Campo, Phil Horowitz, Paul McKenna, William Norris, Leonard Weinglass, and Jack Blumenfeld. Richard Klugh argued the case to the 11th Circuit. Some have said this this is the first federal case to be reversed on venue grounds. I don't know if that is that case... Anyone? I haven't digested the entire opinion yet, but the last paragraph was interesting:

The court is aware that, for many of the same reasons discussed above, the reversal of these convictions will be unpopular and even offensive to many citizens. However, the court is equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba. One of our most sacred freedoms is the right to be tried fairly in a noncoercive atmosphere. The court is cognizant that its judgment today will be received by those citizens with grave disappointment, but is equally confident of our shared commitment to scrupulously protect our freedoms. The Cuban-American community is a bastion of the traditional values that make America great. Included in those values are the rights of the accused criminal that insure fair trial. Thus, in the final analysis, we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be
treated fairly. Our Constitution requires no less.

Please use the comments to express your thoughts on the case. Read coverage here, here and here.

ABA awards Albert Krieger

On August 5, 2005, at the 85th annual meeting of the ABA Criminal Justice Section, Albert Krieger received the Charles R. English Award. The citation read: "Miami defense attorney Albert Krieger isrecognized for providing exceptional service to the Criminal Justice Section while exercising exemplary ethical and professional conduct. In his practice and in his bar-related activities, he has increased the stature and professionalism of lawyers practicing in the criminal justice system, and has enhanced the relationship between prosecutors and the defense bar by promoting fairness and justice over parochial defense and prosecution views." The award was presented by Neal Sonnett, a previous recipient of the award.

Metrorail riders face searches

Larry Lebowitz has this article in the Miami Herald telling us that Metrorail riders will now be subject to searches. Put aside the constitutional issues for a sec -- what a waste of resources! If a terrorist chooses Miami as a target, it seems that the rail would be low on the list of possible strikes... In any event, Milton Hirsch and I debated the profiling issue in the Champion a couple years ago. Milt takes the position that profiling is constitutional while I say that it isn't.