Aiming to place the controversial killings in Cuban territory was a linchpin of the defense at the trial of five Cuban spies, one of whom was convicted of murder conspiracy.
But now, spymaster Gerardo Hernandez, serving a life sentence, has made a startling about-face: In a last-ditch appeal, he suddenly agrees that the Feb. 24, 1996, MiG assaults on two Brothers to the Rescue planes indeed happened over international waters.
With that argument, Hernandez is fundamentally contradicting the stand of the regime he has sworn his loyalty to, and which has declared him a modern-day hero of the revolution.
Brothers co-founder Jose Basulto finds the move ironic. Now, he said, Hernandez ``wants to distance himself from the Cuban government -- to save himself.''
In his appeal, Hernandez, 45, contends that his trial attorney, Paul McKenna, mishandled his defense at a 2001 Miami federal trial by focusing so much on the shoot-down location.
That strategy overshadowed evidence that Hernandez purportedly did not know in advance about the deadly Cuban plot over the Florida Straits, the appeal asserts. Evidence of his advance knowledge was crucial to proving his role in the murder conspiracy.
``In short, Hernandez's lawyer was his worst enemy in the courtroom,'' his appellate attorneys wrote in a habeas corpus petition filed in Miami federal court.
Maggie Khuly, whose brother Armando Alejandre Jr. was killed and who sat through the six-month spy trial, scoffed at the notion that McKenna was not an effective lawyer for Hernandez. She noted that McKenna traveled to Cuba several times to talk with government officials about the defense.
``The way I looked at it, McKenna was following what he was told to do,'' Khuly said. ``You could say this was the party line. And now Gerardo Hernandez has a different party line.''
Basulto, who escaped the shoot-down and testified at the espionage trial, said it seemed to him and others that McKenna did a ``good job.'' Given Hernandez's continued status as a hero in Cuba, Basulto is skeptical the appeal is news to the Castro brothers, even if it runs counter to their public pronouncements justifying the shoot-down.
``I'm sure the Cuban government has given him permission to pursue this new strategy,'' he said.
Hernandez's appellate lawyers, however, say his 180-degree turn should not be seen as representing the views of the Cuban government.
Hernandez and other members of the so-called Cuban Five were part of an intelligence network sent from Havana to spy on South Florida's exile community and military installations. Their stated mission: to thwart violent campaigns by exile militants to topple Cuban leader Fidel Castro.
They infiltrated the exile group Brothers to the Rescue, which regularly flew missions searching for Cuban rafters. They also tried to penetrate the Southern Command in Miami and the Boca Chica Naval Air Station in Key West.
The five have gained heroic status in their country and international support around the globe. Their faces are plastered on billboards and posters throughout Cuba. But Hernandez, who led La Red Avispa, or the Wasp Network, in Miami was the only agent convicted in connection with the shoot-down -- and the only one sentenced to life.
Hernandez's strategy seeking to throw out his conviction and sentence is not uncommon. After he lost his appeal to the U.S. Supreme Court last year, he was left with one hope for a new trial: Demonstrating that he was found guilty because his attorney was ineffective.
Hernandez's appellate attorneys said the overwhelming evidence showed that the shoot-down occurred outside Cuban airspace, raising serious questions about McKenna's overall strategy refuting that fact.
One key piece: A June 1996 report by the U.N.'s International Civil Aviation Organization in Montreal. The agency used the known coordinates of the U.S. cruise liner Majesty of the Seas and the fishing boat Tri-Liner, whose crews witnessed the attacks, to locate the incidents at 10.3 to 11.5 miles outside Cuba's 12-mile limit.
The U.N.'s finding jibed with radar data provided by the United States, but not information supplied by the Cuban government, which continues to insist that the Brothers planes provoked the attacks by invading sovereign territory.
Regarding Hernandez's knowledge of the shoot-down plot, Hernandez's appellate lawyers say that while trial evidence showed that Cuba's intelligence agency contacted Hernandez to warn his colleagues against flying with Brothers in February 1996, Cuban radio transmissions to Hernandez suggest he was not clued in to his government's specific military plan to shoot down the group's planes.
``He didn't know anything about the shoot-down,'' said Miami attorney Richard Klugh. ``This was a major injustice.''
The U.S. attorney's office, which plans to respond to Hernandez's petition by the end of January, declined comment. McKenna also declined to comment. He could end up as a witness in the appeal, filed with U.S. District Judge Joan Lenard, who presided over the trial.
Hernandez and other intelligence agents were indicted in 1998 on espionage conspiracy charges. Five of the original defendants pleaded guilty. Others disappeared and were presumed to have returned to Cuba. The remaining spies, who became known as the Cuban Five, were convicted.
Khuly said that Hernandez's new strategy is flawed in more ways than one.
She said his trial attorney indeed delved into evidence on the Cuban government's warnings to its spymaster to avoid certain Brothers' flights.
``He did spend a lot of time talking about the transcripts of the radio communications to try to prove there was no prior knowledge'' on Hernandez's part of the shoot-down, she said. ``It was not as if it was totally ignored.''
It will be up to Lenard to decide whether Hernandez deserves another shot at freedom.
The Miami Herald
