[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.
Wed 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 courts finding that
venue should not have been changed in Miami and
affirms the trial courts 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
factis 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 doesnt 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 prosecutors 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
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