Karen Lee Wald
Gerardo Hernández is one of five Cuban revolutionaries held in U.S. prisons for more than 13 years who have filed habeas corpus motions in federal court to vacate their 2001 convictions and sentences on trumped-up conspiracy charges. With the Supreme Court two years ago having refused to hear all appeals by Hernández and his four compañeros, the habeas motions are the remaining legal option in the fight to reverse the frame-up and win their freedom.
Hernández, together with Ramón Labañino, Antonio Guerrero, Fernando González, and René González, are known internationally as the Cuban Five. They were arrested by the FBI in Florida in 1998 and in 2001 were convicted, among other charges, of conspiracy to commit espionage. Hernández was convicted of conspiracy to commit murder as well. The five have been serving prison sentences ranging from 15 years for René González to double-life plus 15 years for Hernández.
The five had been living and working in Florida in order to gather information for the Cuban government on activities of U.S.-based Cuban counterrevolutionary groups with a long history of violent attacks against Cuba, and tacit support from Washington. An international campaign to win their release has gained broad and growing international support.
Conspiracy murder charge
Hernández’s conviction on murder conspiracy charges stems from the U.S. government’s effort to connect him to the Feb. 24, 1996, action by the Cuban air force shooting down two planes that had entered Cuban air space. The four pilots died. The flights were staged from U.S. soil by Brothers to the Rescue, a Miami-based counterrevolutionary organization that had repeatedly violated Cuban air space despite Havana’s formal protests to Washington and warnings about the consequences.
In his Oct. 12, 2010, habeas corpus petition, Hernández argues that his conviction and sentence should be vacated, among other reasons, because he did not receive a proper defense at his trial.
In an April 25, 2011, response, Washington’s attorneys opposed Hernández’s habeas motion and request for an evidentiary hearing where he could present new information. They argued that the court at the time of the trial had “appointed experienced criminal counsel, Paul McKenna, who ably defended [Hernández] with great energy, loyalty, diligence, and professional skill, easily surpassing the minimal threshold for effective assistance of counsel.”
This is not McKenna’s opinion, however, as he explained in an Aug. 15, 2011, affidavit in support of Hernández’s habeas motion. “Hernández’s trial was more complicated than any other case I have ever tried,” wrote McKenna, “involving unusual facts, novel questions of law, and very high profile proceedings.”
McKenna went on to explain why Hernández’s conviction and sentence should be overturned. “I never considered,” he wrote, nor discussed with his client, “the possibility of filing a motion on Hernández’s behalf to sever [the conspiracy to commit murder charge] from the remaining allegations against him.”
A separate trial, explained Hernández in a March 16, 2011, affidavit, would have allowed him to testify on his own behalf without being compelled to present testimony regarding the other charges he and his codefendants faced. Hernández would also have been able to call on one or more of his codefendants to testify in a separate trial, without foregoing their Fifth Amendment protection against self-incrimination.
“Had I known that, I would have insisted that my lawyer make every effort to secure a separate trial on that count,” Hernández emphasizes in his affidavit. He goes on to describe in detail how he would have testified to rebut evidence used against him by prosecutors.
Undermined the defense
McKenna says in his affidavit that at the time of the trial he acted on the belief “that if I could show that the shootdown had occurred in Cuban airspace, my client would have a viable defense” to the conspiracy to commit murder charge because it was “a justifiable act by the Cuban government.”
“I now believe that my decision to pursue this line of argument—which was impossible to prove as a factual matter, and of questionable relevance as a legal matter—resulted in my client’s conviction, as our presentation undermined our credibility and focused the jury on the actions of the Government of Cuba,” McKenna wrote.
In fact, as Hernández’s current lawyer, Richard Klugh, explained at a September 12 press conference, McKenna never pursued the line of defense that could have led to an acquittal—simply that “Gerardo was never involved” in the downing of the planes.
Finally, McKenna wrote in his affidavit that during the trial he had acted on the belief that “the Court was going to issue an instruction stating that the Government was required to prove that my client had intended for the shooting to occur over international waters, a burden of proof that the Government acknowledged was ‘insurmountable.’” But McKenna wrote in his affidavit that while the trial was under way he did not catch the fact that the judge did not issue such an instruction, and instead instructed the jury only regarding the murder and conspiracy charges.
“My errors at, before, and during the trial,” McKenna wrote, “allowed the Government to convict my client even though it had no direct evidence of criminal intent on his part.”
At the September 12 press conference, Klugh stated that McKenna’s “very candid recognition” that Hernández did not receive the competent defense he had a right to provides a strong argument for setting aside his conviction and life sentence.