December 4, 2000.
This Monday we came to the Court with the expectation as to whether the alert of El Nuevo Herald would modify the behavior of potential jurors. We do not take too long to discover that our worst predictions have been abundantly met. I write in my journal:
“It could be called the hatred parade. Out of the eleven people that answer the questionnaire, eight were Cuban, whose main concern seems to be whether to hang us or to put us in the electric chair. The oddest thing is that, by their ages and biography, they cannot even remember the neighborhood they lived in Cuba, but have learned to the letter the lessons that once and again repeats the “Cuban” Miami radio. The most original is one that says that they had to put us in a jail in Cuba. We almost jump in our seats (Yes, Yes, please Madam judge!). Another poor guy says to fear for his family in Cuba if a guilty verdict is given. Another: “All the way with the USA”. More “American” than a McDonalds and speaks of the Cuban people as if they were aliens. In short, a disaster. To make it worse among the four non-Cubans, a Venezuelan seems to want to take on us the rematch against Chavez, and a Lady from Georgia was surrounded by Cubans. Luckily there is a black Lady who seems to be fair and a Philippines’ guy.
The worst thing is that all Cubans seem influenced by the articles written by Rui Ferreira in the Miami Herald, warning them: “Cubans, stop the foolishness or you’ll fall out of the jury!” They began to make certain a cartoon that came up to Many days earlier, and all with tremendous confidence, “could be impartial”. In short, our apprehensions were fulfilled.
For its part the judge seems to give them a little help. One that had three uncles on the 2506 Brigade and “could be impartial” is not considered excludable by cause. It is just enough that someone mumble that he would be fair and the exclusion for cause does not take place.
The session ends at 2:00 p.m. with a rather bitter taste, because in just a few hours we have run out of peremptory challenges, against so many people that will never be fair to judge us. But we left for lunch with the tranquility of always, amid jokes and with the same desires of keep fighting that we had when we raised that day”.
Gerardo is inspired and the following cartoon is born. it is a recreation of the one he had created when this possibility was only a premonition, apropos of the insincerity of some of the first panelists:
In the afternoon things improve a little, after the hangover from the call to cut throats in the Herald subsides. The day ends with a group of twenty candidates approved, including those that in the morning had come rope and knife in hand to declare themselves “impartial”. The defense asks to extend by three its peremptory vetoes because of the hateful spectacle of the morning. Needless to say that the Prosecutor’s office opposes. Keeping the proportions that dictates the law the judge gives us three peremptory challenges, burned in advance, and increases those of the Prosecutor’s office in two, which they never needed anyway. the Prosecutors then introduce an element that will take some space in these lines: racism.
There is a black woman who’s been approved on the panel, but now the prosecution argues that she cannot serve as juror because: She takes migraine pills twice a month! The judge obliges and the prosecutors will already begin the process of peremptory challenges by invalidating the concession made to the defense minutes before. As if they needed that.
December 5, 2000.
The morning session begins with ten panelists, out of which five are accepted to form the final group from which the jury will come out. We have the forty nine needed so that each party applies their peremptory challenges and the remaining residue will be twelve jurors with four alternates.
But before we go for lunch the claw of racism from the prosecutors shows again: another black Lady, Bridgette Hanies, is the subject of the rancor by the prosecution because “she came late to the audience”. This time the maneuver is not succeeding and the prosecutors will have to use one of the peremptory challenges which they have plenty anyway to get rid of Mrs. Hanies.
The afternoon session will be devoted to the definitive selection of the jury which will judge us. I write on my journal:
“This process is interesting and although it seems that there are several ways to do it, I only know the one applied in our case which I describe below.
The judge is reading, one by one, the names of those who are on the list, and each party is saying whether they accept it or if vetoes it, which in official language is a “peremptory challenge” or a “challenge without cause”. The parties have the first word alternately, so that if the defence has the priority in each odd name, the Prosecutor’s office has it in each pair. People who are not vetoed by any of the parties are the remaining on the jury and the process ends when you have twelve, then repeating with the four alternates, on which each party has two peremptory vetoes.
It is an exercise in tactics and strategy which would be funny if there was not at stake the own “neck”. Because each party prepares the list of vetoes; and also that of those who seem dangerous, to apply on them the veto that is at their disposal, in the event that the other party has exercised that right on some name that already had been in our own list, which means that the opposite part saves you a veto.
It was decided that the Government exercised first with odd and defense with pairs:
The first candidate, Gil Page, accepted by both parties.
The second candidate, David Bucker, accepted by both parties.
The third candidate, Steven Gair, vetoed by the prosecution.
The fourth candidate, María González, vetoed by the defense.
The fifth candidate, Diana Barnes, accepted by both parties.
The sixth candidate, Marco Barahona, eliminated by the Prosecutor’s office.
The seventh candidate, Joseph Paolercio, eliminated by the Prosecutor’s office.
The eighth candidate, Laverne Greene, eliminated by the Prosecutor’s office.
The ninth candidate, Ileana Briganti, vetoed by the defense.
The tenth candidate, John Gómez, vetoed by the defense.
The eleventh candidate, Sonia Portalatín, accepted by both parties. The twelfth candidate, Lázaro Barreiro, vetoed by the defense.
The thirteenth candidate, Belkis Briceño, vetoed by the defense.
The 14th candidate, Omaira García, accepted by both parties.
The 15th candidate, Michelle Peterson, vetoed by the prosecution. The sixteenth candidate, Elthea Peeples, accepted by both parties. The seventeenth candidate, Louise Cromartie, vetoed by the prosecution.
The defense attorneys realize that the Prosecutor’s office is following a racial pattern, trying to get rid of the largest number of blacks; and McKenna, speaking on behalf of the five lawyers, calls for a break to confer with them. They apparently decide not to object for now, and wait to see if the pattern holds.
The eighteenth candidate, Wilfred Loperena, accepted by both parties. The nineteenth candidate, Kenneth McCollum, vetoed by the prosecution.
…Another black one, in this case a corrections officer, who, in any case, could be expected to be concern of Defense. McKenna explained to the judge that the prosecution is following a racial pattern, taking out four of six blacks, and asked the Prosecutor’s office to give a non-racial explanation of why they have excluded the last two: an elderly lady of impeccable credentials and an officer of corrections, also without a negative element for the prosecution.
The prosecutors object, but the judge decides to hear the claim of McKenna, giving rise to a quite prolonged talking at the prosecution table.
After much discussion, they explain that Mrs Cromartie traveled to Cuba in the 1960s, that she disagrees with the immigration policy of the United States that favors Cubans over other ethnic groups, and when she responded to the questionnaires of the judge he crossed her arms and didn’t look at her.
Paul responds by saying that other potential jurors with stronger objections to immigration policy, as Mr Paolercio, had not been challenged by the prosecution, but the judge finds that reason to be racially neutral and excuses the Prosecutor’s office.
For its part, the prosecution explains the veto to Mr McCollum saying that as it was a prison officer he had relations with prisoners, so they didn’t want it in the jury.
Paul argues that in the earlier days, when a prison officer, who even had contact with us, explained this relationship, the Prosecutor’s office had opposed strongly that he be excused, which contradicted what was now happening against McCollum. Anyway, the judge again excuses the Prosecutor’s office, and accepts his explanation as a racially neutral.
And the play goes on…
The twentieth candidate, Morton Lucoff, vetoed by the prosecution. The twenty first candidate, Florentine McKain, vetoed by the defense. The twenty-second candidate, John McGlamery, vetoed by the defense. The twenty third candidate, Richard Campbell, accepted.
The twenty fourth candidate, Queen Lawyer, vetoed by the prosecution. Another black person and McKenna does not forgive, he stands up and requests that the Prosecutor’s office gives a racially neutral explanation for the veto.
The Prosecutor’s office has a somewhat more plausible reason in this case: the Lady has a nephew who was convicted, and she does not believe that he was treated fairly by the legal system. The judge accepted the explanation and we continue:
The twenty fifth candidate, Jesse Lawhorn, vetoed by the defense.
The twenty-sixth candidate, Bárbara Pereira, vetoed by the defense. The twenty seventh candidate, Angel de la O, vetoed by the defense. The twenty-eighth candidate, Lilliam López, vetoed by the defense. The twenty ninth candidate, Juanito Millado, accepted.
The thirty candidate, Migdalia Cento, accepted.
The thirty-first candidate, Miguel Hernández, vetoed by the defense. The thirty second candidate, Hugo Arroyo, vetoed by the Government. The thirty-third candidate, Leilani Triana, vetoed by the defense.
The thirty-fourth candidate, Sergio Herrán, accepted.
The thirty-fifth candidate, Rosa Hernández, vetoed by the defense.
The thirty-sixth candidate – a black Lady – is accepted by the defense; the prosecutors ask for a moment to deliberate, but realize that they have spent their peremptory challenges: “We accept Ms. Vernon”. And Mrs. Debra Vernon becomes the 12th member of the jury that will judge us, which is ratified by the parties and the judge. Now begins the selection of the four alternate:
The thirty seventh candidate, Haydee Duarte, vetoed by the Defense (This is the one which had three uncles who were at Bay of Pigs, but still declared herself impartial).
The thirty eighth candidate, Wanda Thomas, vetoed by the prosecution.
McKenna to the attack. Another black person has been vetoed by the Prosecutor’s office and Paul asks that they explain the reason. The prosecution says that the Lady had her arms crossed during the questionnaire and answered with monosyllabic the questions from judge; they add that he was born in Panama and that the defendant Antonio Guerrero has a son of Panamanian women. The judge accepts the explanation of the prosecution and Wanda Thomas is excluded from the jury because of lack of verbosity and being from Panama.
This is a curious phenomenon and shows how underlying racism endures in this society. Everybody knows in the room that the motivations of the Prosecutor’s office are racist, but the judge has to maintain a balance and is in a compromising situation. It is not easy to expose the trial to racial issues, and to openly accept what is hidden behind the vetoes of the Prosecutor’s office; on the other hand, depriving each of the parties of a right such as the peremptory challenge would lead to chaos. Although her decisions could in this case be detrimental to us, I feel like recognizing that they seem to bring the Salomonic goal of preventing a greater evil.
We continue by selecting alternate jurors:
The thirty ninth candidate, Eugene Yagle, accepted.
The forty-candidate, Luis Fernández, vetoed by the defense.
Now the Prosecutor’s office to the revenge; all the juries of Cuban origin have been banned by the defense and the prosecution wants an explanation of the reason for the veto to this young man, who has hardly expressed to have opinions about something.
Blumenfield returns the play to the public prosecutor and argues that the boy expressed doubts about believing a witness who would be official of the Cuban government or a member of the Communist Party. And adding irony to the move, he says that the young man was wearing a baseball cap and didn’t seat straight, which indicated little attention to the case.
McKenna adds that at the same time he sees a credibility problem, because being Cuban, he says not to have any opinion about Cuba, and that seems strange.
Judge ends up accepting the reasons from the defense.
Everyone in the room knows that, indeed, the juries of Cuban origin have been excluded, because they have overwhelmingly expressed prejudices against us, and because, in addition, the Cuban nationality plays really a specific role in this case, unlike the race. The judge continues:
The forty-first candidate, Odornia Homuska, vetoed by the prosecution.
Another black woman and Mrs McKenna on foot once again. The prosecution adduces reasons for language and, again, that the lady is monosyllabic. To be honest, I think that the reasons for language are valid. The Judge accepts and Mrs. Odornia is free from serving on the jury.
After exhausting every part his peremptory vetoes in the alternate jury, the following three candidates passed to the final panel. They are Miguel Torroba, Marjorie Hahn and Beverly Holland, who turn out every other two, three and four respectively.
It’s 1:30 in the afternoon when we have a jury for real, as in the movies. The judge thanks everyone for their efforts in the recent, long days; she mentions the lawyers on both sides, the court staff, court reporter and the translators; in short, everyone except those who wake up earlier, i.e. the federal marshals and we the defendants, who leave the room sharing in brotherhood the common misfortune of the forgetfulness by the judge. Although we’re exhausted, we are informed that we have to wait in the cells-dogcages until the court orders. We are told that while they do not locate the sixteen people from the jury we can’t go”.
Back to court, we learned that there are personal problems for two jurors and an adjustment is essential. The judge proposes to empty the two spaces and give each part a peremptory challenge, which the Defense accepts. The problem is that the prosecution has another black guy to linch… sorry, get rid of. A man with a really respectable appearance named Louis Harrel. As there is no agreement the judge decides that she will interview the jurors who have problems before we begin the initial arguments, and then she will make a decision.
Soy un espía, dicen