By Jesús Arboleya Cervera
Although some foreign media called it “vigorous,” little has been said about the legal defense given to American Alan Gross during the trial recently held in Cuba, in which he was sentenced to fifteen years in prison. Let us see what happened.
Leading a team of distinguished attorneys, the chief defense attorney was Dr. Nuris Piñero Sierra, director of the Bureau of Specialized Services that deals with legal processes involving foreigners or Cuban citizens living abroad.
Described as “very competent and reputable” by spokesmen for the United States Government, Piñero also represents, in an advisory capacity, the five young Cuban anti-terrorists who, for more than a decade, have been held in U.S. prisons. This is Cuba's most important legal case, which gives an idea of the value our country places on this lawyer.
Contrary to reports that say she was “appointed” by the Cuban government to defend Gross, the reality is that Piñero was freely employed by the defendant's family, most likely on the recommendation of the U.S. Interests Section in Havana. As usual, the defense was conducted by mutual agreement with Gross and the American lawyers who attended him.
The charges against Gross – “the illegal distribution of means for satellite communication for the purpose of creating clandestine information networks capable of circumventing the control of the Cuban State” – were irrefutable, inasmuch as it was demonstrated that he distributed these artifacts among opponents of the regime and that both their nature and destination are punishable under Cuban law.
Apparently, the defense followed the strategy of requesting a lighter penalty, primarily by attenuating the defendant's personal liability. That meant emphasizing the responsibility of the company that sent him to Cuba to perform these missions in the service of the U.S. Government.
No surprise, therefore, that Gross accused Development Alternatives Inc. (DAI) of “having endangered him and ruining the lives and economy of his family.” That had been predicted by a U.S. official who specializes in Cuban affairs, who, days before the trial, said that Gross would probably be portrayed as a “victim of U.S. intelligence.” It should be mentioned, since it could reflect a betrayal of the man's subconscious, that the term "intelligence" was not used by either party, before or during the process.
Secondly, the defense questioned the definition of the crime presented by the prosecution, which was based on the application of Article 91 of the Cuban Penal Code concerning crimes against state security.
Article 91 states: “Whoever, in the interest of a foreign state, commits an act with the aim of undermining the independence of the Cuban state or the integrity of its territory, shall be punished by imprisonment of ten to twenty years, or death.”
The defense argued that it was a very general statement, when there were other Cuban laws that accurately described the facts described by the prosecution in this case. It therefore asked that Gross be tried under the provisions of Law 88, called the Reaffirmation of Cuban Dignity and Sovereignty, adopted in December 1999 to serve as an antidote to the Helms-Burton Act.
This law provides much lesser penalties for crimes such as “soliciting, receiving, accepting, facilitating the distribution of, or benefiting in any way from, financial, material or other resources received from the United States Government or channeled by it through its representatives or by any other means, in connection with the Helms-Burton Act.”
Similar laws were adopted in many countries to counteract the extraterritorial reach of U.S. law on Cuba (Law 88 was ratified by the National Assembly of People with a high propaganda profile). But it had never before been proposed as a legal basis for trying a case in Cuban courts, so it was an unprecedented initiative by Gross' defense. It set a legal precedent that demonstrates the care and skill with which the case was studied.
Based on these arguments, the defense asked for a reduction of the penalty requested to seven years' imprisonment and to this end brought forth witnesses and experts and questioned the prosecution's witnesses. According to sources present at the trial, the defense even questioned the legal relevance of some evidence presented by the prosecutors, as revealed by information contained in the flash-drive or flash-memory devices taken from the accused.
The trial, therefore, was carried out in strict accordance with Cuban law and even though, as often happens, not all of the defense's arguments prospered, the defense acted in accord with the ethics required in these cases and very likely was able to influence a mitigation of the sentence imposed.
These arguments, moreover, will serve as a basis for the appeal that is sure to go to the Supreme Court of the Republic, continuing a process that is not yet complete.