[Ppnews] New Trial Denied Cuban 5

Political Prisoner News ppnews at freedomarchives.org
Fri Aug 11 12:02:10 EDT 2006

Emergency Press Conference of Aug. 10, 2006
following the 11th Circuit Court en banc decision of Aug. 9
denying a new trial to the Cuban Five


Sponsors: National Committee to Free the Cuban Five, National Lawyers Guild

    * Leonard Weinglass, appeals attorney for Antonio Guerrero
    * Richard Klugh, appeals attorney for Fernando González
    * Bruce Nestor, immediate past president, 
National Lawyers Guild, Minneapolis attorney
    * Gloria La Riva, coordinator, National Committee to Free the Cuban Five
    * Peter Erlinder, NLG member and Minneapolis 
attorney who authored three amicus briefs for the Cuban Five's appeals

La Riva: Good afternoon. Yesterday the 12-judge 
panel issued its decision in the case of the 
Cuban Five appeals. Today we are holding an 
emergency press conference so that some of the 
attorneys can comment on the case.

We’d like to hear first from Leonard Weinglass, 
appeals attorney for Antonio Guerrero, who was 
sentenced to life, and is in Florence penitentiary in Colorado.

Weinglass: Yesterday afternoon we received word 
from the 11th Circuit that the court had decided 
the case of the U.S. v. Campa, the case of the 
Cuban Five. The decision is a 120-page opinion 
with a 68-page majority opinion by Judge Wilson 
and a 52-page dissent by Judge Birch. The 
decision affirms the trial court’s finding that 
venue should not have been changed in Miami and 
affirms the trial court’s finding that a new 
trial should not be ordered because of newly 
discovered evidence. Where this leaves the case 
now is that the nine issues which are still 
pending before a 3-judge panel before the court 
will now have to be addressed and decided.

This decision is not the end of the case, far 
from it. There are nine additional issues which 
are still pending in the 3-judge panel before the 
court. We can, if we decide to, take this case to 
the U.S. Supreme Court by petitioning the court, 
by writ of certiorari, to hear the case.

Whether or not we take that additional step will 
be decided in the week ahead of us, when the six 
lawyers who are working on the case, when we 
digest the 120-page opinion and make a decision 
whether or not to go to the U.S. Supreme Court. 
If we decide to go to the Supreme Court, we will 
have 90 days within which to perfect our appeal, 
that is, the request for the appeal to the court. 
The government may or may not respond, and we 
will have to wait for a decision of the court. 
Everything will be stayed pending that decision.

If we decide not to go to the Supreme Court, then 
the matter is back before the 3-judge panel, and 
we will await word from that panel as to how we 
should proceed on addressing those nine issues.

So there is still a long way to go on this case. 
In addressing the opinion of the court, we were 
of course very disappointed in the decision by 
Judge Wilson, a former U.S. attorney from 
Florida. We felt, as the dissent felt, that the 
majority opinion completely overlooked the 
question of the coercive atmosphere that existed 
and has existed for years in Miami against anyone 
associated with the government of Cuba.

And it was that atmosphere which interfered with 
and denied the defendants a fair trial. The 
dissent in this case repeated what was written by 
Judge Birch in his original 90-page opinion a 
year ago, on Aug. 9: that what this case record 
represents is a “perfect storm” of prejudice. The 
dissent yesterday once again used the phrase that 
these defendants were faced with a perfect storm 
of prejudice, and it said this case never should 
have proceeded in the Miami venue. That, of 
course, that position of the two judges in 
dissent, is the position we agree with.

The majority whitewashed the question of the 
coercive atmosphere of Miami. You can read the 68 
pages of their opinion and you will find no 
substantial reference to the pre-existing 
community prejudice in Miami against anyone 
associated with the government of Cuba. This 
curious­what the dissent calls, “omission of 
fact”­is something that we are very concerned 
about, and something which we might have to bring 
to the attention of the U.S. Supreme Court.

That is our position on the opinion and the 
question of where we go from here is something 
that will be decided in the week ahead.

Klugh: We are of course disappointed in the 
decision and hope that it is not the last word on 
the issues of fundamental importance to 
constitutional justice. We note the invitation by 
the dissenting judges to seek further review and 
we certainly will study that. In every appeal 
there is a question of what the court will review 
and through what standard the court will review a case.

This case seems to have been decided, at this 
point, on a deference to local perspective. Our 
view from the beginning has been that this is one 
of the primary reasons, why other than a local 
perspective should be the primary and independent 
reviewer of the prejudice, or potential 
prejudice, in the community. This point was made 
extensively by the defense and we hope to pursue that.

Nestor: The National Lawyers Guild is an 
organization of over 5,000 attorneys, law 
professors and law students. Since our 
establishment in 1937 we have worked to defend 
many unpopular defendants and cases.

We filed an amicus brief in support of all five 
of the defendants in this case, precisely on the 
issue of venue because it is such an important 
issue. One of the things I want to emphasize is 
that this is not the end of the case. There are 
many very significant legal issues to be 
resolved, and there is also the ability to seek 
further review of this issue regarding the 
coercion and threats that exist in Miami, that denied a fair trial.

We are going to continue to organize support for 
the Cuban Five in the legal community. In 
particular this fall we will have a 
national-speaking tour in law schools, to build 
support and point out what is wrong with this 
decision. This decision not only denies justice 
to the five defendants in this case, but it also 
has very profound implications for any person 
seeking a fair trial, particularly a fair trial 
in the current political climate in this country.

The decision really gives tremendous power to the 
government to bring politically motivated 
prosecutions and to then select a favorable 
location where community prejudice will favor the 
government and allow the government to obtain a 
conviction where the evidence did not support a conviction.

That is precisely what we believe happened in 
this case and the decision of the en banc panel 
essentially deferring to the judgment of the 
trial court, really eliminates the potential for 
effective review of an individual trial judge and 
allows the judge in the location where that same 
judge may in fact be subject to the community 
prejudice and attitudes or at least to the 
pressure and the coercion that existed in this 
case. It doesn’t allow for effective review of 
that decision by an independent panel at the Circuit Court level.

I will emphasize that as an organization, as law 
professors, lawyers and law students we will 
continue to work within the legal community, to 
talk about this decision, about the justice it 
denies to the individual defendants, but also the 
implications it has for the broader system of justice in this country.

La Riva: The National Committee to Free the Cuban 
Five is one of over 250 organizations around the 
world, including a good number in the United 
States, which have been struggling for the 
freedom of the Cuban Five since their convictions 
in June 2001. Two days ago we announced we will 
be holding a national march in Washington from 
the Justice Department to the White House on 
September 23. We believe that the importance of 
the march and the forum which follows is more 
important than ever. As part of the march, we 
will present tens of thousands of petitions 
calling on George Bush to free the Five immediately.

The Five should never have been arrested. They 
were fighting terrorism. New terrorist plots have 
been revealed since their convictions in Miami 
which give further weight to the arguments that 
Miami was a place where they should never have been tried.

A forum at George Washington University featuring 
Leonard Weinglass and other speakers will address 
the 50 years of US-supported terrorism, and show 
why it is that the mission of the Cuban Five was 
a necessity, to protect the lives of people from 
Cuba and the U.S. and anyone who was traveling to 
Cuba, or simply boarding a plane, who could have 
been an innocent victim of these terrorists.

Erlinder: Although the finding by three judges 
that the trial was conducted in a "perfect storm" 
of bias has been formally reversed by a majority 
of the Court of Appeals, the moral victory has 
already been won. The Court of Appeals cannot 
change the fact that the "perfect storm" judicial 
opinion is now part of history and world now 
knows that the Cuban Five were convicted under 
conditions that even U.S. federal judges 
recognize as being fundamentally unfair. The 
Brief of the National Lawyers Guild informed the 
Court that reversing the original 93-page opinion 
[of Aug. 9, 2005] would only deepen the 
appearance of unfairness before the world. The 
struggle for the freedom of the Cuban Five is just beginning.


Case Woods, Miami Herald: You say there are nine 
issues remaining that are still to be resolved. 
Can you talk about strategy on what arguments you 
will use to exonerate them as the case moves forward?

Weinglass: We have already made those arguments 
to the panel of the 9th circuit but those 
arguments include prosecutorial misconduct 
regarding the prosecutor’s arguments to the jury, 
which was objected to, strenuously. Those 
objections were sustained and resulted in a 
comment by the judge to disregard those 
objections. But those comments were so 
prejudicial and so outside the bounds of 
propriety that we believe the case should be 
reversed on the final arguments alone. There are 
a number of other issues, eight others dealing 
with various problems that occurred during the 
trial and pre-trial, including the use of a 
process called CIPA by the government, which is a 
highly controversial process. Another process is 
called FISA, the Foreign Intelligence 
Surveillance Act, which has recently been in the 
news, which was used in this case. There are 
other things that came up during the trial, but 
finally we also argue that the evidence was 
insufficient as a matter of law, both as to the 
conspiracy to commit espionage and the conspiracy to commit murder.

The full panoply of appeals is still before the 
panel of the 11th Circuit, and we intend to press all of them vigorously.

Carol Williams, Los Angeles Times: I want to know 
whether the 11th Circuit was aware of the new 
evidence that you have collected about plots 
against Cuba concocted in California and here in 
southern Florida, or has this information not 
been able to be presented yet to the judges who are deciding this appeal.

Weinglass: The California case and the Florida 
case, the Santiago Alvarez case, both involving 
the storing of arsenals which were allegedly to 
be used to violently and militarily overthrow the 
government of Cuba, were not presented to the 
11th Circuit Court of Appeals, but they are 
additional newly-discovered evidence which at some point might be put in play.

We also have the very sensational revelation of 
an individual named Llama, which some people 
mispronounced Lama, but this individual, a 
resident of Florida, still there, openly 
confessed to a very serious plot of a military 
nature against the Cuban government. That has not 
been presented to the 11th Circuit.

Jorge, Radio Habana Cuba: With all this evidence 
that has been raised recently, with Roberto 
Ferro, do you think that with this demonstration 
of the necessity to protect people n Cuba and the 
United States, will that somehow sustain the real 
reason why these men had to be there infiltrating these groups?

Klugh: It is imperative, the dissenting judges 
pointed out that particularly when you are 
dealing with questions of potential prejudice, 
potential risk of hostility by the community, the 
question largely before the court was how much of 
what the community feels or may fear or may be 
concerned about, will the court consider and how 
much will the court restrict its review to, such 
as particular press articles, or particular documented events.

At issue with respect to the factual matters in 
the case: What was the actual situation in Miami 
that motivated the actions of the defendants? 
Were the defendants actually, as they repeatedly 
said, focusing their attention on the illegal 
risks facing Cuba, that is, the terrorism of 
bombings, of matters that Cuba had been subjected 
to continuously. Today we have a major arrest [in 
London] and terrorism investigation, a 
multinational terrorism investigation. This sort 
of international, cross-border terrorism is 
clearly a real issue faced by Cuba. The 
difficulty that we have is that at this point, in 
bringing new evidence, is that it is difficult to 
convince the Court of Appeals to consider a lot 
of new evidence. Some of this may ultimately have 
to be presented in another forum.

The audio recording of the press conference will 
be available on the website soon.

The decision that preceded this press conference 
can be read 

A March on the White House will be held on 
<http://www.freethefive.org/>September 23 to continue to press forward with
efforts to free the Cuban Five. We urge all 
supporters to make every possible effort to join us
on that march. A public demonstration of support 
for the Five, and outrage against their continued
imprisonment, has never been more vital. Join us 
in Washington on September 23!

The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
(415) 863-9977
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