10 Aug Miami Bias Against Cuba On Appeal
The Eleventh Circuit sitting en banc rendered an interesting decision yesterday involving the conviction of five defendants who conspired in the Cuban government’s downing of the “Brothers To The Rescue” airplane. In United States v. Campa, five defendants who acted as unregistered Cuban intelligence agents were convicted of conspiring to commit murder. The defendants appealed their convinctions and argued that they could not receive a fair and impartial trial in Maimi given the bias against Cuba that prevails there. The Eleventh Circuit affirmed the convictions. Here is an excerpt:
The rare instances in which the Supreme Court has presumed prejudice to overturn a defendant’s conviction are far different from this case. In those cases, the “kangaroo court proceedings” in combination with the “circus atmosphere” generated by sensational pretrial publicity deprived the defendant of a fair trial. Here, the district court carefully and meticulously evaluated the defendants’ evidence of pretrial publicity and then made specific factual findings to discount that evidence. At trial, the court used numerous curative measures to prevent any publicity from affecting the jury’s deliberations. In sum, to establish a presumption of juror prejudice necessitating Rule 21 change of venue, a defendant must demonstrate that (1) widespread, pervasive prejudice and prejudicial pretrial publicity saturates the community, and (2) there is a reasonable certainty that the prejudice prevents the defendant from obtaining a fair trial. We find that the defendants in this case failed to meet this two-pronged test. They failed to show that so great a prejudice existed against them as to require a change of venue under Rule 21, in light of the court’s effective use of prophylactic measures to carefully manage individual voir dire examination of each and every panel member and its successful steps to isolate the jury from every extrinsic influence. Under these circumstances, we will not disturb the district court’s broad discretion in ruling that this is not one of those rare cases in which juror prejudice can be presumed.
The court concluded that, “Miami-Dade County is a widely diverse, multi-racial community of more than two million people. Nothing in the trial record suggests that twelve fair and impartial jurors could not be assembled by the trial judge to try the defendants impartially and fairly. The broad discretion the law reposes in the trial judge to make the complex calibrations necessary to determine whether an impartial jury can be drawn from a cross-section of the community to ensure a fair trial was not abused in this case.”
Two of the twelve judges (Judges Birch and Kravitch) dissented and argued that “this case is one of those rare, exceptional cases that warrants a change of venue because of pervasive community prejudice making it impossible to empanel an unbiased jury. The defendants, as admitted agents of the Cuban government of Fidel Castro, were unable to obtain a fair and impartial trial in a community of pervasive prejudice against agents of Castro’s Cuban government, whose prejudice was fueled by publicity regarding the trial and other local events.” The dissenting judges also argued more broadly that “in this media-driven environment in which we live, characterized by the ubiquitous electronic communications devices possessed by even children (e.g., the cell phone, the I-pod, the laptop, etc.), this case presents a timely opportunity for the Supreme Court to clarify the right of an accused to an impartial jury in the high-tech age. Given the multiple resources for almost instantaneous communication and the plethora of media extant today, the considerations embraced by the Court in earlier times fail to address these developments.”
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