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August 21, 2007 | Latest 'Cuban 5' legal challenge heard

In a courtroom filled to the last seat, defense lawyers for five Cuban men argued Monday that U.S. prosecutors made improper statements during their 2001 trial, prejudicing the jury that convicted them of spying.

A panel of three judges at the 11th U.S. Circuit Court of Appeals heard arguments from lawyers for the so-called Cuban Five, who were convicted by a Miami jury in 2001 of infiltrating exile groups and passing along U.S. military secrets.

Defense lawyers also argued that the evidence that prosecutors presented was not strong enough to support the convictions. As an example of what he termed improper statements, Assistant Federal Public Defender Richard Klugh told the judges that prosecutors said the five men came over to destroy the United States.

"There's no evidence of any intention to destroy the United States, " he said.

Prosecutors countered that there was no misconduct on their part and that the evidence was enough to support the charges of conspiracy to commit espionage, for which three of the men were convicted.

"The government did not exploit red-baiting in this case, " said Assistant U.S. Attorney Caroline Heck Miller.

It could be months before the court rules in the case.

"I think we achieved what we came to do, " defense attorney Leonard Weinglass said in an interview. "I hope this case is nearing finality."

The five were arrested in 1998. After their 2001 convictions, Gerardo Hernández received a life sentence for espionage conspiracy and murder conspiracy. So did Ramón Labañino and Antonio Guerrero, both for espionage conspiracy. René González and Fernando González were sentenced for functioning as unregistered foreign agents, receiving 15 and 19 years, respectively.

During the trial, prosecutors linked some of the men's spying to the Cuban government's Feb. 24, 1996, shoot-down of two planes belonging to the exile organization Brothers to the Rescue. Three Cuban Americans and a Cuban exile died when Cuban fighter planes shot down two of the group's planes over international waters.

This was the third time the case has come before the appeals court. In 2005, a three-judge appeals panel ruled that the men did not get a fair trial in Miami. Last year, the full 12-judge court reviewed the decision again and upheld the sentences.

Two of the three judges who overturned the convictions in 2005, Stanley Birch and Phyllis Kravitch, heard the case again Monday. They were joined by a new judge, William Pryor.

"Two of the three judges sitting there have strongly expressed themselves that this case represents an injustice, " Weinglass said in a Sunday news conference. "It's reassuring to know that they begin with that feeling."

But former Assistant U.S. Attorney David Buckner, who prosecuted the five men's 2001 conviction, said judges will not easily accept claims that prosecutors' arguments were improper.

"If you don't object at the trial level, you've got to overcome a much higher hurdle on appeal, " Buckner said in an interview. "It's going to be a much more uphill battle."

Family members of the men killed in the plane shoot-down were present, as they have been at every hearing over the past six years.

"You don't know what way it goes, it's always a surprise, " said Mirta Costa Mendez, whose brother, Carlos Costa, was killed. "All I can hope is that justice prevails."

Defense lawyers have said that if this appeal fails, they would take the case to the Supreme Court. The government also could call for another full-panel review if judges overturn the convictions.

"This was the rubber match, " said Paul McKenna, a Miami-based lawyer who represents Gerardo Hernández. "They won one, we won one. We'll see what happens next."

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