The Miami Herald
Dec. 04, 2003
Slip could bring Cuban hijack mistrial

The judge in the case of an alleged hijacking of a Cuban plane considers whether the testimony of a U.S. Border Patrol agent is grounds for a mistrial.


KEY WEST - A seemingly innocuous slip in the testimony of a U.S. Border Patrol agent could result in the mistrial of three of six Cuban men on trial in Key West for allegedly hijacking an airplane from Cuba last March.

The potential grounds for a mistrial stem from agreements made between prosecutors and the defense regarding how to deal with statements made about three defendants who were not read their Miranda rights, and as a result had their confessions thrown out.

One of the men, Yainer Olivares Samon, was repeatedly identified in court Wednesday by passengers and crew members who said Samon body slammed the plane's cockpit door off its hinges.

Lawyers on both sides agreed that any statements made by some defendants that implicated any of the three defendants who were not ''Mirandized'' could not be read in court. But while on the stand Wednesday, Border Patrol agent Kerry Heck uttered two words that defense lawyers claim violated those principles.

Heck was recounting a statement she took from Alexis Norneilla Morales, the incident's purported ringleader, after the redirected DC-3 flight touched down in Key West on March 19. Heck testified that Norneilla stated that he started planning to take an airplane by force to the United States a year prior to the alleged act. Heck then started to say that Norneilla said he had recruited ''these five'' -- prompting defense lawyers to spring out of their seats, crying foul.

Defense lawyers claimed the words ''these five'' implicated the non-Mirandized defendants, violating both sides' agreement.

U.S. District Judge James Lawrence King, describing the matter as ''very serious,'' recessed the trial earlier than usual Wednesday and will resume at midmorning today to give both sides time to prepare their legal arguments.

Should the judge agree to the defense's motion for a mistrial, the three affected defendants -- Samon, Neudis Infante Hernandez and Alvenis Arias-Izquierdo -- would be retried at a later date.

The trial of the remaining three, Norneilla, Eduardo Javier Mejias Morales and Miakel Guerra Morales, would continue.

The twist followed a day of testimony from two crew members, both still living in Cuba, as well as an Italian who happened to be on the diverted plane and two Cuban passengers who opted to remain in the United States.


The crew members said their hands were tied behind their backs, and the flight steward said a knife was held to his throat as he was pushed face down on the floor.

The defense tried repeatedly to show that the Cuban government played a role in the hijacking by pressuring crew members to lie under oath.

Defense lawyer Reemberto Diaz showed that while the plane's technician and flight steward both said in court that the hijackers threatened to kill them, neither man made such statements to the FBI immediately after the incident occurred.

Diaz argued that the crew members also met personally with Cuban President Fidel Castro on their return, which compelled them to deny their role in staging the act.


King steadfastly refused to allow any mention of the Cuban government to be brought into the case, claiming it had no relevance in the trial.

Three passengers also recounted the midair drama: a Cuban mother who vomited from airsickness with her young son beside her, a Cuban man who knew one of the hijackers, and the Italian tourist, who said he moved to stop Samon from hurling himself against the cabin door, but stopped when he learned there were others with knives.

The two Cubans now living in the United States said they were never mistreated on the flight and that the suspects offered them water, coffee and candy. They also testified that the knives were largely hidden from their view.

A Key West police officer also testified that the suspects threw out their knives willingly upon landing.