1) The indictments presented by the prosecution. In the first one the incident with the planes on the 24th of February 1996 is not mentioned. In the second one, seven months later, they add the infamous and blatant slander against Gerardo. Both indictments state that the FBI knew of Gerardo’s activities several years before that incident and, therefore, they knew that he had nothing to do with that matter. That vulgar hoax was incorporated arbitrarily at the specific request of the terrorists, who unleashed an intense smear campaign with the government-paid “journalists”. FORBIDDEN HEROES: INDICTMENT A LA CARTE; [Second Superseding Indictment]
2) The declarations and motions from the prosecution. Since its initial presentation at the opening of the trial until their requests on sentencing, and throughout the court sessions, the prosecution expressed many times their determination to protect the terrorists and harshly punish the defendants for their peaceful unarmed struggle against these groups. Gag Order on Witnesses during trial
3) Statements by the judge. On several occasions the judge acknowledged the existence of terrorist groups in Miami and that the “crime” of the accused was their action against these groups, and acceded to the government request, not only imposing the most severe penalties, but also imposing other special conditions so that, after serving their prison terms, the defendants could never attempt anything against the terrorists. Such an unusual condition was reiterated by the Judge to René González as he left prison in October 2011. FORBIDDEN HEROES: It Happened in Miami
4) Statements by witnesses and experts There were several witnesses and experts, some offered by the Government, who testified under oath that the defendants had done nothing against the national security of the United States, and that in this case there had been no attempted espionage. They were generals, admirals and other retired senior officers of the U.S. armed forces. One of them, Colonel Bruckner, proposed that the satellite images of the incident on the 24th of February 1996 be presented, which was vigorously rejected by the prosecution with the support of the judge. Another was General Clapper who is now, nothing more and nothing less than the Director of National Intelligence, the highest government authority in this regard.
5) Emergency Motion to amend Count Three. The Prosecution filed this in late May 2001 when the trial was coming to a conclusion, recognizing it was taking an unprecedented step in the U.S. jurisprudence. In essence they asked to substantially modify Count Three (“conspiracy to commit murder in the first degree”) because “in light of the evidence presented at the trial it is an insurmountable obstacle for the prosecution that may lead to its failure.” Despite that, Gerardo was convicted and given the maximum penalty possible for an alleged crime he did not commit, and for which he was not charged. This result is an irrefutable proof that he was already condemned and that it was impossible for him and his comrades to have a fair trial in Miami. [Writ of Prohibition] EMERGENCY PETITION FOR WRIT OF PROHIBITION Fragments
6) Decision by the panel of the Court of Appeal in 2005. It was a unanimous decision of the three judges. It contains extensive information on the terrorist activities against Cuba, and has a solid analysis of the atmosphere created by the local media in Miami that they described as “a perfect storm of prejudice and hostility” that led them to call a mistrial. Although, with pressure exerted by the W. Bush regime, this decision was cast aside in a split vote by the full court, it is an exceptionally important document that is being studied in several law schools of U.S. universities. BRIEF OF THE 11TH CIRCUIT COURT OF APPEALS’ OPINION June 4 Appeals Court decision
7) Decision of the Court of Appeals in 2008 annulling the sentencing with respect to Count Two (“Conspiracy to commit espionage”) and ordering the resentencing of Ramon, Antonio and Fernando. Although Gerardo was arbitrarily excluded, while recognizing that it was also applicable to him, this paper is important because it reiterates, on several occasions, that in this case there was nothing threatening the national security of the United States, that there was no attempt of espionage and that the original sentences were excessive and issued contrary to the law. June 4 Appeals Court decision ; Excerpts of the 11TH CIRCUIT COURT OF APPEALS’ OPINION ON THE CASE OF THE CUBAN FIVE, June 4, 2008
8) The prosecution’s requests of sentences. In addition to ask, in all cases, for disproportionate and illegal terms of imprisonment, as it was later determined by the Court of Appeals, the prosecution insisted on something they said was as important to them as the terms of imprisonment. This refers to the “incapacitation clause”, the measures to be imposed on defendants to ensure that on completion of their prison sentence, upon being free they cannot attempt anything to damage the terrorists. Such a clause was included in all sentences, including those who were sentenced to life imprisonment. In the case of Antonio and René, who were U.S. citizens by birth, the judge expressed it in these terms: “As a further special condition of supervised release the defendant is prohibited from associating with or visiting specific places where individuals or groups such as terrorists, members of organizations advocating violence, and organized crime figures are known to be or frequent.” As noted above, this amazing restriction was reiterated to Rene on his release from jail in October 2011. FORBIDDEN HEROES: IN THEIR OWN WORDS
9) The dissenting vote of Phillys Kravitch irrefutably argued against Count Three, insisting that the government presented no evidence to prove Gerardo had any connection with the incident of the 24th February, or anything like that. FORBIDDEN HEROES: PRYOR’S JUDGEMENT ; Excerpts of the 11TH CIRCUIT COURT OF APPEALS’ OPINION ON THE CASE OF THE CUBAN FIVE, June 4, 2008
10) The recent government motion to remove a substantial part of Gerardo’s habeas corpus. The prosecution intends to remove the declaration by its attorney, Martin Garbus, and the annexes with substantial information on government paid journalists. In its brief the Prosecution recognizes that its request is very unusual, but preferred to avoid a discussion on the merits of the defence approach. Affidavit of Martin Garbus in support of the motion to set aside the conviction and, in the alternative, in support of Gerardo Hernández’ motion for discovery and oral argument.