The episode was recorded on March 4th, 2020.
MARTIN GARBUS: What you see now… namely the selection of prosecutors and manipulation of judges, you saw all that in this Cuban case.
MICHAEL WALDMAN: That’s Martin Garbus. He’s been one of country’s leading trial lawyers for the last 50 years. He’s been called “legendary” and “ferocious,” and he’s represented historic figures such as Cesar Chavez, Nelson Mandela, and Pentagon Papers whistleblower, Daniel Ellsberg. In his new book, North of Havana: The Untold Story of Dirty Politics, Secret Diplomacy, and the Trial of the Cuban Five, he recounts the wrongful conviction of five Cuban spies, and what this case reveals about the U.S. justice system then and now.
MARTIN GARBUS: The jury deliberated allegedly for 12 hours after a seven month trial… to get a decision in 12 hours after a seven month trial, shows that the jury walks in with a heavy predisposition.
MICHAEL WALDMAN: This is Brennan Center LIVE, a project of the Brennan Center for Justice at NYU School of Law. I’m Michael Waldman. This program was recorded in March 2020. Martin Garbus spoke with Victoria Bassetti, a Brennan Center fellow and author of Electoral Dysfunction: A Survival Manual for American Voters.
DISSOLVE TO CONVERSATION
Victoria Bassetti: I want to talk, if we can, about the case that was weighing on your mind before you took this case, and that was the Jane Doe case.
Martin Garbus: Jane Doe was a young Black woman, lesbian who was raped in Prospect Park 25 years ago. And the police came out — and this was in Brooklyn, Prospect Park — and claimed that she lied about the rape. And Mike McAlary of The Daily News and The Daily News itself and the rest of the press in New York called it a hoax and said that she had lied about it. We then filed a lawsuit against The Daily News and its then owner for libel. We lost the lawsuit. And for 25 years, we pressed the police on the whole question of her lying, and whether or not a rape had occurred.
Last year, they discovered the rapist — a man who was in prison for another rape, who then admitted the rape. So after 25 years, the woman was vindicated.
What the Jane Doe case deals with is the indifference of the police to violence against women.
Victoria Bassetti: This was weighing on your mind when you decided to take on the Cuba Five case, and what's interesting is that the Jane Doe case was about indifference, and this was almost the polar opposite.
It was a surfeit, an excess of government attention on potential —
Martin Garbus: Yes, what the Cuban Five case was about, just briefly — in the 1980s and 1990s, the Cuban right wing, as well as parts of the American government, were interested in having a provocation in Florida, interested in causing something which would cause the American government to come in and create war, do something hostile, do something destructive. So you had this base of right wing Cubans, sometimes supported by various rogue operations within the United States, who were killing not only sympathizers of the Left in Florida, but also destroying hotels, trying to blow up boats. And at one period of time, an aircraft was shot down, where about 70 people were killed by various terrorist groups who were trying to, again, create provocations. And what the book deals with is the involvement of the American government with some of those people.
Victoria Bassetti: You describe an incident as being worthy of a Puccini opera, and it sort of struck me that this book is sort of like an opera. There's the prologue, which is America's long and tortured relationship with Cuba dating back to the early 19th century, really. And then in act one, we have in 1996 the Cuban government shooting down a plane. Take it away from there, and that leads us up to the trial of the Cuba Five.
Martin Garbus: One of the attempted provocations was there was a group called Brothers to the Rescue, a right-wing group. And what this group did, it would constantly fly from Florida over Cuba and it would do a variety of things. It attempted to drop bombs. It dropped leaflets. It flew over Cuban airspace when it was not allowed to fly over Cuban airspace. Now, Clinton knew about it. The American government in Washington tried to stop it. Miami is a nation-state and a separate nation-state when it comes to Cuba, so that the federal government had very little ability to stop what the Cuban right wing and some rogue elements of the United States were doing in order to start this provocation.
This plane goes over Cuba. The American government tried to stop the plane. They lift the license of the guy who's flying the plane. He flies over Cuba with two other people. They intrude on the airspace. One … He sees Cuban MiGs coming up; he leaves. The other two planes that are up there don't leave. The other two planes get shot down. Four people get killed.
The case then that ultimately comes out of it is this particular case, the case of the Cuban Five, where there are allegations of, that these various Cubans were involved in the murder. Now who are these various Cubans? There's a dialogue between Clinton and Castro. Marquez is kind of the communicator, and that's a whole separate story, where Cuban agents come over from Cuba because the American government cannot infiltrate into the Cuban right wing.
Basically, the government of Miami — as I said, a separate state government, whether it be the federal government involved there or the state government itself — has very little inclination to do anything with respect to these acts of terror, which are being done by the right wing. So there's an arrangement made whereby members of the Cuban government — spies — come into Miami, work out an arrangement with the FBI and try and infiltrate into the Cuban right wing. After the shoot down, the same Cubans are blamed for the killing. They had nothing to do with it. In other words, they don't have the ability to order MiGs from Havana to shoot down a plane, but nonetheless, they get, over a period of time, indicted, and ultimately there are convictions. And ultimately, the men spend, some of them spent 16, 17 years in jail. And that's what the case is about.
Victoria Bassetti: So after the 1996 shoot down where four Cuban Americans from Miami are killed, there's a kind of a hunt for finding someone to kind of be responsible for it. And Miami is a, it's a kind of a hothouse climate, isn't it? The FBI, the prosecutor's office, the U.S. Attorney — it seems very just kind of, just intent on finding someone to blame for these killings. And they roll up the Cuba Five, right?
Martin Garbus: Right. Let me just put it in a certain kind of perspective. I think the case moves at three levels: It moves at the level of the criminal case, which is on the ground. It moves on the level of the politics between Cuba and the United States. And it moves at the level of the justice system, and the effect of the federal government to manipulate the justice system. And what you see now clearly with Trump — namely the selection of prosecutors and manipulation of judges — you saw all that in this Cuban case. So the Cuban case is really … it shows you that much of what we see today and is very visible today has also gone on in the United States in a variety of cases for a long, long period of time.
Victoria Bassetti: Just to go back to the original case, was the trial in 2001? Is that when it was?
Martin Garbus: Yes.
Victoria Bassetti: It was pre 9/11.
Martin Garbus: Yes.
Victoria Bassetti: And the initial defense tried to get the prosecution out of Miami. They argued to the judge that the environment was too hot for the defendants to get a fair trial.
Tell us about what change of venue means —
Martin Garbus: In this case, “change of venue” means you go from one jurisdiction to another on the grounds that you can't get a fair trial in that particular jurisdiction. So the motions and change of venue is extraordinarily significant. If you look at cases in America, like say, for example, O.J. Simpson, where the prosecutor had his own political ambitions and he wanted to keep the case in Los Angeles, although had they moved the case out, they would have gotten a conviction easily. So the whole question of change of venue becomes significant.
They tried to move the case out of Miami, and then they failed ultimately. Now, one of the things that happened in the case is that you had relatively young defense lawyers trying the cases and after the jury fight, one of the defense lawyers says, "We're satisfied with the jury. And we can go on." Four of the other defense lawyers were dissatisfied with the jury, but the fact that one defense lawyer said that, of course, had significance. In any event, there's a conviction. And after the conviction in the case, the motion for change of venue is denied. It's tried in Miami.
The book deals with various degrees of prejudice. One of the significant things is the amount of money that the American government pours in to Miami to influence the media. There is something called Radio Martí which got $15 million a year. And a lot of that money was diverted to pay reporters at the Miami Herald, to pay people at CBS, to pay people at NBC, governmental monies. And these people wrote articles or did broadcasts and radios that were horrifically skewed. Most of that information that I'm now telling you, we learned long after the conviction — we learned about it basically in 2006; conviction's 2001.
Victoria Bassetti: So the jury that was picked was essentially because the government was paying for it, in part. The government was paying for media coverage. And the jury was sort of swimming awash in incredibly hostile coverage towards the defendants, and the government was affirmatively paying —
Martin Garbus: Stoking that fire.
Victoria Bassetti: Stoking that fire, and so maybe no surprise that the jury convicted.
Martin Garbus: It was a seven-month trial. The jury deliberated allegedly for 12 hours after a seven months trial. To get a decision in 12 hours after a seven-month trial shows that the jury walks in with a heavy predisposition. It was a complicated case. Seven months means a lot of testimony. The defense put in a case. [snaps fingers] The jury decided the case like that.
Victoria Bassetti: And then the Cuba Five were sentenced.
Martin Garbus: Cuba Five were sentenced. Hernandez, who was the leader of the Cuban Five, who ultimately was my client, got a double life sentence. Then the case goes up on appeal and the motion for change of venue was argued. At the first appellate level, which is a three-judge court, the three-judge court reverses the conviction and says, more or less, that the case should have been moved out of Miami. You can go from a three-judge court to something we call an unbound court. You can take an appeal. So you go up to the entire court. The entire court — 16 judges — reversed the lower court. And ultimately, the conviction is affirmed. The Supreme Court denies review.
Victoria Bassetti: Let's go back quickly to what he was given two life sentences for. What had Hernandez actually done in Miami?
Martin Garbus: He did nothing with respect to the murders. He had been one of the people who the FBI, the American government, and the Cuban government knew was trying to infiltrate into the Cuban right wing. And as a matter of fact, because of that infiltration, information was given to the federal government, which stopped some terrorist acts against Cuba. And what happened is, there were four prosecutors. First three prosecutors in the case refused to bring any criminal proceedings against the defendants. Ultimately, a Reagan appointee is appointed as the prosecutor and he brings the prosecution, as I remember now that's about three, four years after the event. So someone like Hernandez, if he had done anything, could have gone and left the country in a minute. He didn't. They all stayed there because they knew that had nothing to do with it.
So part of the story has to do with the judges that they face in Miami and as they go up, and ultimately the judge who makes the decision is a judge who had said that, I have the exact quotes in the book, "Roe against Wade was the worst case ever decided by the United States Supreme Court." And then he says that Miranda, the case involving giving warnings, was the second worst case ever decided by the United States Supreme Court. He had been nominated by Bush. Even the Republican Congress did not affirm him. He ultimately becomes a recess appointment. And if you look at the judges in this case, they're Southern federal judges. You see what the success had been of the Federalist Society and Republicans who have been so clearly focused on judgeships, in a way, horrifically, that the Democrats have not.
Victoria Bassetti: So when you took over the case, it might have seemed hopeless. More than a decade had passed. It had gone all the way up to an en banc decision in the 11th Circuit. The Supreme Court had denied cert. The Cuban Five were to a man languishing in prison, and Marty Garbus decides to represent them. So why did Marty Garbus decide to step in?
Martin Garbus: We were going to argue many of the old issues. Also we learned in 2006, which was after the conviction, of the massive amount of federal money that went into paying the press. And our claim was that it was impermissible to use roughly $15 million a month, which went into Florida, a large portion of which was used to convict. Now, what happened in the case ultimately was a miracle.
Victoria Bassetti: So you filed the brief and during this time, the Cuba Five became, if you will, a kind of a cause célèbre in Cuba, in Havana.
Martin Garbus: They certainly did.
Victoria Bassetti: So tell us about what the Cuba Five meant to the people of Cuba.
Martin Garbus: It was clear that these men were patriotic, committed people who had done nothing violent, who had just tried to stop the violence that was being committed against the Cuban people, and that the charges were trumped up. They became the American, you know, the equivalent of Patrick Henry, Nathan Hale, whatever. They were great heroic figures and they were people who had not committed any criminal acts, and they were in jail for life.
Victoria Bassetti: So the Cuban five had become kind of a cause célèbre in Havana, and kind of the reverse of it, obviously, was happening in Miami, where the Cuban Five were the kind of, the evil doers.
Martin Garbus: Right, and the Cuban Five were, as I said, in jail for a long period of time. In prison, you can get an infraction for looking the wrong way at a guard. To avoid infractions is impossible. The Cuban Five altogether — if you added up the years for all the various guys is probably 75 years — they were so disciplined, they never got one infraction. Now that's an extraordinary sense of discipline because you get an infraction for anything, anything.
Now what they did with the Cuban Five is they kept them in solitary for a long time. The solitary was ghastly. The guards, each time there was a national incident, the blame was put on the Cubans, so that the Cubans were specifically punished when 9/11 comes about, when the Iraq War comes about. Hernandez, for example, is put in a basement — you know, there's no light, three cells on each side of him of people who are extraordinarily disturbed, who were screaming all day long.
He's then tied by … to a bunk where he lies on the floor and he doesn't change his clothes for a month. I did a piece in The New York Review of Books, some of which is in this book, just discussing what solitary really means. It's not this idyllic thing, which is terrible in itself — you’re sitting alone in a cell. There are endless variations on solitary, which can really break a person apart. These guys never broke. And these guys never, as I said, committed an infraction. I represented other people who break under those conditions. The best of men break. These guys did not.
Victoria Bassetti: Even as your legal representation was picking up ahead of steam and your investigation of the media, kind of in tandem, an effort to normalize relationships between the United States and Cuba was also kind of growing, and the Cuba Five became a very important part of that effort. They were … Were they the, one of the top hang-ups that was preventing it?
Martin Garbus: The Cuban government took the position that there would not be any kind of rapprochement, as ultimately worked out, unless the Cuban Five were released. And that was a sticking point for the American government. When Obama came in, he and Senator Leahy tried to resolve some of these issues.
Victoria Bassetti: It's interesting how much the kind of effort to normalize Cuban-American relationships began to hinge upon individuals, not big policy questions. I'm sure there were big policy questions, but probably those were kind of coolly or rationally discussed. But when it came down to these particular people, it became … it became much more fraught.
Martin Garbus: It did. One of the things that I … well, I learned a great deal after the book was written that related to some of this in a peculiar way. In other words, who shot down the planes? Clearly, the … our clients, the Cuban Five, did not have the power to do that. About a year ago, I went to dinner with Rose Styron, and she told me that there had been a with Castro, where Castro said — quoting the Greek historian Heroditus — said that every great general makes one mistake. And he says, "My mistake was ordering the shoot down." So that he had a personal involvement and he took responsibility and acknowledged that responsibility to the Cuban people, that he had ordered the shoot down.
So it's clear that the people in prison were there as a result of an action that he had taken. And he thought in retrospect — although it was never made public — he thought he had made a mistake. So that awareness made it a very personal issue for him. But it's hard to believe for some people that something as complex as the rapprochement with Cuba hinged so much on the Cuban Five, but it did.
Victoria Bassetti: Is there something about this case that … it's so unique. Can we look at this as just a singular unique case or does it tell us something broader about the American justice system?
Martin Garbus: Oh, I think it tells you something very, very much broader. The manipulation of prosecutor's offices — so here you have three prosecutors who refused to prosecute. Finally enough pressure is put on the fourth prosecutor so he does prosecute.
So I think that the case goes far beyond … It’s, as I said, I think it moves on three levels. It moves on the political level, it moves on the events of those times, but it really says something much larger about the judicial system. If I was down south, let's say, in the 60s and 70s, manipulation of judges, prosecutors, illegal evidence, people being charged for political reasons — I mean, that's part of the American culture.
Victoria Bassetti: As I mentioned, the bulk of the case occurs before 9/11. And it involves this sort of climate of fear that is developed in a kind of a symbiosis between the prosecutors, the judges, the FBI, the media, the general public at large in Miami. And I was sort of thinking about the extent to which that has been kind of replicated in miniature throughout cities all over the United States.
Martin Garbus: Oh, absolutely. I mean, one of the things that happened in this case — one of the lawyers, Joaquin Menendez, had his house bombed and had to move out of it as he was trying the case. The whole question of a community being hostile to certain kinds of lawyers is tradition in the United States.
Victoria Bassetti: After you've entered the case, you file your habeas petition and you write about your odds. You write, Justice William Brennan — at the Brennan Center, we always like quoting Justice William Brennan …
Martin Garbus: You should.
… said of the American legal system that (quote) "A fear of too much justice" (close quote) quickly shut down the rights of convicted defendants to challenge even legal convictions years later. And I wondered if you could talk about that fear of too much justice. What…
Martin Garbus: I think that some of us are misled by the achievements of Justice Brennan and the Warren Court. Too many of us, myself included, thought that social change would be ensured — I'm not sure that's the word — by the Supreme Court, now and forever. That was an illusion. And what Brennan is saying, he had an awareness that that was an illusion. The Warren Court ends about 1970.
And since then, the Supreme Court has been pulling back on so many of the achievements and so much of the hope.
Michael Waldman: Thank you for listening to this episode of Brennan Center LIVE with Martin Garbus and Victoria Bassetti.
Please look out for Brennan Center events, follow us on social media, and sign up for my weekly newsletter, “The Briefing,” at BRENNANCENTER DOT ORG. The Brennan Center LIVE podcast is available on our website and wherever you get your podcasts.