The fourth victim, Pablo Morales, is not part of the case because he was not a U.S. citizen.

All four perished while flying aboard two unarmed Cessnas north of Cuba, the victims of air-to-air missiles fired by the Soviet-made MiGs. The fliers had been searching for rafters seeking to make their way to the United States across the treacherous Florida Straits. The fliers' bodies were never recovered after their planes crashed into the water, in full view of horrified passengers aboard a cruise liner.

``It was like shooting fish in a barrel,'' Miami aviation lawyer Aaron Podhurst said. ``It was murder.''

Each of the American victims' families filed a lawsuit in U.S. District Court last year against the Republic of Cuba and the Cuban air force. The cases have been consolidated.

Despite vehement denials that its air force acted improperly, the Cuban government will sit out the three-day, nonjury trial before Senior U.S. District Judge James Lawrence King.

``It's part of the show they try to keep against the Revolution,'' Luis Fernandez, spokesman for the Cuban Interests Section in Washington, said Wednesday. ``Those planes violated our sovereignty. We responded as a free country, according to our sovereignty.''

In a terse response through diplomatic channels last April, Havana insisted it could not be subjected to an American court's jurisdiction.

``No U.S. court is competent to judge either the Republic of Cuba or its institutions, much less the events of Feb. 24, 1996,'' the Castro government said.

Report rejected

Last year, Cuba rejected a report compiled by the International Civil Aviation Organization, a Montreal-based arm of the United Nations. The report, which will be introduced as evidence in the trial, concluded that the doomed planes were flying outside Cuba's territorial waters.

The trial is the first of its kind under a year-old exception to the Foreign Sovereign Immunity Act, which was amended by the Anti-Terrorism and Effective Death Penalty Act of 1996. Other wrongful-death suits have been filed under the revision, including one against Libya by families who lost relatives in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.

Among the criteria for such suits: The death has to be ``an extrajudicial killing''; it has to have been committed by a nation that the State Department has designated as a sponsor of terrorism; it has to have occurred outside the foreign state; and the victims must be U.S. nationals.

``We have all of that satisfied here,'' said Roberto Martinez, a former U.S. attorney now in private practice who is representing the families.

Two phases

The trial will be conducted in two phases: A liability phase to prove that the deaths and destruction of the two Brothers aircraft occurred over international waters, and a damage phase to determine how much families should recover.

Lawyers are seeking both compensatory and punitive damages, which they said could come from frozen Cuban assets in the United States, or from the proceeds of any legal economic activity that might involve Cuba in the future. An American-sponsored embargo prohibits most commerce between the two countries.

Last year, lawyers said, the U.S. government retrieved $300,000 from frozen Cuban bank accounts in the United States and turned the money over to the families. But they said the payouts will have no bearing on how much could be awarded at trial because the court proceeding is a separate issue.

The families have lined up a dozen witnesses to testify in the liability phase, including a passenger from the cruise ship Majesty of the Seas, which was sailing in the crash area. Richard Nuccio, a former special adviser on Cuba to President Clinton, will also testify.

For the damage phase, eight witnesses will appear on behalf of each family to tell the court about the emotional and financial impact of the deaths.

Copyright © 1997 The Miami Herald