Summary of the memorandum in support of Antonio Guerrero’s collateral appeal
On March 3, 2011, was filed with the District Court Southern District of Florida a MEMORANDUM IN SUPPORT OF MOTION TO VACATE, SET ASIDE, OR CORRECT JUDGMENT AND SENTENCE UNDER 28 U.S.C. § 2255 in the name of Antonio Guerrero.
Excerpts of the Memorandum:
“The “theory of [US] system” of justice is that a criminal conviction “will be induced only by evidence and argument in open court, and not by any outside influence.”
The very notion of a fair trial assumes convictions will rest solely upon its proceedings; protections accorded a defendant at trial are without meaning if he is also to face the government beyond the courtroom without those protections.”
[This memorandum] “has alleged a distinct, fundamental violation of the premises of a fair trial where:
(A) the government secretly paid highly influential journalists in the trial venue—indeed, journalists selected based on their proven effectiveness in communicating the desired message—to deliver, in the guise of objective journalism, a message supporting components of the government’s trial arguments;
(B) government-funded media inculpated the defendants by, among other things, purporting to link the defendants to myriad Cuban conspiracies—fictitious and otherwise—and highlighting and/or misrepresenting purported evidence against the defendants;
(C) government funded media published prejudicial evidence that the district court ruled was inadmissible and addressed jury selection issues, including strategic avoidance of cause challenges;
(D) the government’s propaganda campaign was both prejudicial and inflammatory;
(E) the government’s misconduct undermined the fundamental structure of petitioner’s trial and petitioner’s convictions must thus be vacated; and
(F) the government’s misconduct created an unconstitutional probability that the petitioner was deprived of a fair trial.”
“Even evidence excluded at trial made its way to the community through the media. For example, in a piece run during the trial entitled “Cuban Spies,” a news station broadcast a Brothers to the Rescue video the defendants successfully excluded in court earlier that day. Videotape: Noticias 23 (WLTV-23 Local News Jan.31; Feb. 1, 2001).”
“The Office of Cuba Broadcasting is responsible for directing the operations of Radio and TV Martí, both of which broadcast anti-Castro programming to Cuba and parts of the U.S., including South Florida. During the defendants’ trials, the U.S. government was funneling $37 million to Radio/TV Martí each year, on top of numerous other anti-Castro efforts. Id. at 7.”
“Despite adamant efforts by the defendants, much remains unknown about the full extent of the government’s media program. Yet the information thus far uncovered shows the defendants faced a government-stacked deck.”
· Ariel Remos of Diario las Americas earned around $25,000 from the U.S. government.
· Wilfredo Cancio Isla, a Miami Herald reporter for El Nuevo Herald, earned approximately $22,000 to promote the government’s message. He also publicly advertised information about the trial to which the jury was not privy.
· Helen Ferre, the opinión page editor for Diario las Americas, earned at least $5,800 in total from the U.S. government
· Enrique Encinosa, a popular radio host on Radio Mambí, [he was keynote speaker at terrorist organization Alpha 66’s 35th anniversary meeting to inaugurate a new military training camp in 1996] has received over $10,000 from the government since the start of the defendants’ trial.
· Carlos Alberto Montaner, a famous exiled Cuban author and journalist with a weekly column in The Miami Herald, has received over $40,000 since the beginning of the trial.
“Given the government’s failure to make candid disclosures—despite its obligation to do so– the defendants have no way of knowing where this list ends. Lest these few examples leave any doubt as to the impact of such coverage, the government itself described what was affirmatively at stake when it sought enforcement of a gag order for witnesses involved in the trial.”
[Two years ago], “once it came to light that the government had been paying prominent Miami journalists to participate in anti-Cuba reporting, [the Partnership for Civil Justice and] the National Committee to Free the Cuban Five launched an impressive yet ultimately thwarted FOIA [The Freedom of Information Act] effort on behalf of the defendants.
The resulting FOIA request process has been an arduous, unproductive and unending one. To date, the Broadcasting Board of Governors has refused or ignored most of the components of the FOIA requests made on behalf of the Cuban Five on January 23, 2009.”
[Another argument of this memorandum is based on] “the government’s withholding of material evidence in relation to claims of national security and using CIPA [The Classified Information Procedures Act] process to skew the totality of the evidentiary presentation. Because the government was able to exclude the defense from determinative stages of the CIPA process, and the Court was placed in the position of relying on the government’s good faith, the defendants were deprived of the constitutional right to present a defense in that they were denied the opportunity to identify and seek to introduce classified materials that were favorable to the defense at trial and at sentencing.”