Appeals court voids Cuban spy decision, will rehear case

CURT ANDERSON

Associated Press

MIAMI - A federal appeals court has agreed to rehear arguments on whether five suspected Cuban spies got an unfair trial because of intense publicity, voiding an earlier decision by a panel of judges that the group deserved a new trial.
The Atlanta-based 11th U.S. Circuit Court of Appeals said in a brief one-page order issued Monday that all 12 active judges on the court would reconsider the case. "The previous panel's opinion is hereby vacated," the order said.
The three-judge panel on Aug. 9 tossed out the convictions and sentences of the Cubans because of heavy pretrial publicity, community prejudice in Miami and inflammatory remarks by prosecutors. That panel ordered a new trial to be held outside Miami.
Now, attorneys for the five Cubans will have to make those arguments again.
"I have to say I'm disappointed that the first opinion was stricken and we have to go before the full panel, but it's a long battle," said Paul McKenna, one of the Cubans' lawyers. "I don't look at is as a setback. I look at it merely that the court wants to hear more about the issue."
U.S. Attorney R. Alexander Acosta said in a statement he was "gratified" by the court's decision, which he said would "provide us with the opportunity to respectfully present our merits arguments to the full court."
Acosta had previously argued that the three-judge panel's decision was contrary to previous decisions in similar cases by both the appeals court and the U.S. Supreme Court.
The five Cubans were convicted in June 2001 of illegally acting as agents of a foreign government as part of the so-called Wasp Network. The five admitted being Cuban agents but said they were spying on U.S.-based exile groups opposed to Cuban President Fidel Castro, not on the United States.
The ringleader, Gerardo Hernandez, was also convicted of murder conspiracy for his role in the deaths of four Cuban exiles whose planes were shot down by Cuban MiGs in 1996.
Three of the five Cubans received life sentences in federal prison, one got 19 years and one got 15 years. They have become national heroes in Cuba, with Castro regularly calling for their release from prison.
There was no immediate word on when the 11th Circuit judges would hear oral arguments in the case. Only one judge on the three-judge panel that found for the Cubans - U.S. Circuit Judge Stanley F. Birch Jr. - is an active member of the full court. One of the other panel judges was visiting from another circuit and the other is a senior judge on part-time status.

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