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The Case

The Collateral Appeal (Habeas Corpus)

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On June 14, 2010, a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (also known as habeas corpus) was filed in Miami Federal Court in the name of Gerardo Hernandez. This is the last legal recourse for him within the U.S. system.

The appeal challenges all aspects of Hernandez’s conviction and sentence. It focuses principally on two points.

First, the most serious charge against Hernandez – conspiracy to commit murder – lacks any factual basis. The charge relates to Cuba’s shootdown of two BTTR planes. The evidence is overwhelming that Hernandez had nothing to do with the shootdown and that Cuba’s intention to address unlawful overflights of its territory was consistent with international law.

Second, the trial – held in Miami, the U.S. city that is the most hostile to the Cuban government – was fundamentally unfair because the jury pool was tainted by U.S.-funded propaganda. Subsequent to the trial, it was discovered that the United States paid reporters located in Miami to give ample daily coverage of the trial and write many articles in the local print, radio and TV media asserting the guilt of the Cuban Five and promoting fear and prejudice in the community. These journalists also harassed members of the jury prompting several protests by them and by the judge.

Also included in the appeal will be the violations committed by the government with the handling and falsification of evidence and, in many cases, its concealment to obstruct justice.

On April 25, 2011, the US Government asked to the Court to deny Gerardo Hernandez’s Motion and also to deny him a hearing to analyze his arguments and the so-called evidences presented against him.

The US Government also asked to the Court to deny similar motions submitted in the name of Antonio Guerrero and Rene Gonzalez.

On August 16, 2011 it was filed the Gerardo’s reply to the Government’s response, in which were answered all the arguments made by the government and also were filed further an  affidavit from Gerardo, an additional affidavit from his former attorney Paul McKenna which supports the fundamental allegations that were made in the habeas corpus application, an affidavit from Mara Verheyden-Hilliard, Executive Director of the Partnership for Civil Justice Fund, an organization that has extensive experience litigating civil rights issues in the federal courts with an emphasis on the intersection between First and Fourth Amendment issues and also pursues issues of government transparency, and finally, the Appendix Overview of Relevant Paid Propaganda Journalist, based on the information obtained in FOIA requests.

As for Antonio, on August he also filed his reply to the government’s response in which he is focusing, as did Gerardo, on the use of paid Radio Marti and TV Marti employees to publish articles prejudicial to the Five at trial in Miami.

Now is up to the District Court to accept these motions.

The documents that have been filed for Gerardo and Antonio also apply to Rene. Ramon and Fernando have not yet had the opportunity to request habeas corpus relief. They will be filing their motions on September 2011 and they will be raising some of the exact same grounds in support of their claim.

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