[Ppnews] Legal Update on the Cuban 5

Political Prisoner News ppnews at freedomarchives.org
Fri Jan 16 08:39:39 EST 2009

Interview with Cuban Five attorney Richard Klugh

The petition to the Supreme Court is due Jan. 30, 2009.

Thomas Goldstein, "one of the most active and renowned U.S. Supreme
Court practitioners, has agreed to participate in what we believe is
a very meritorious and compelling case."

"It is very helpful to us to have amicus support at this time."

Dec. 21, 2008
Exclusive to www.freethefive.org

The following interview with Richard Klugh is an important update for
all supporters of the Cuban Five. It includes the latest information
on the upcoming Defense petition that will be filed before the U.S.
Supreme Court, as well as an important appeal to law associations and
other interested parties to file amicus briefs.

Richard Klugh, former deputy chief of appeals in the Miami office of
the federal public defenders, has been on the Cuban Five defense
teamsince their 1998 arrest. Gloria La Riva of the National Committee
to Free the Cuban Five conducted the interview.

Richard Klugh

Q: Can you please review the June 4th decision this year by the three-
judge panel of the 11th Circuit Court of Appeals, in the appeal of
the Cuban Five?

A: The Court decided by a 2-1 decision to affirm all of the
convictions in the case. The most significant conviction at issue is
that of Gerardo Hernández for complicity in the shoot-down of the
Brothers to the Rescue planes. In that conviction, the Court was very
strongly divided. There were three different opinions by the three
different judges on that question. One of the judges [Circuit Judge
Phyllis Kravitch] thought the evidence was completely and totally
lacking, completely absent any evidence of a conspiracy by Gerardo
Hernández to take that action.

The second opinion [by Circuit Judge Stanley Birch] concluded that
the evidence was very limited, but given the deferential standard
under which the Court reviews convictions, the judge said he had no
alternative but to affirm the conviction.

And the third opinion [by Circuit Judge William Pryor] found that
under the governmentâ*™s interpretation of what Gerardo Hernández could
have believed about the risk of a shoot-down if Brothers to the
Rescue continued to violate Cuban national sovereignty, the low
threshold for finding sufficient evidence under conspiracy law was

The remaining convictions were also affirmed, again, based on this
standard of review that provides that any view of the evidence that
favors the Government is  enough for the Court to find sufficient
evidence of conspiracy in this context. That is why the Court held
that even though there was no evidence of any espionage in the years
of the Five being here, the Court could still affirm a conviction for
conspiracy to commit espionage.

The Court also held that it could not re-consider any part of the
decision of the en banc Court. The Court concluded that it could not
review the significant and continuing prosecutorial misconduct that
the defendants had raised en banc.

Beyond that, the Court also held that the discovery limitations that
were imposedâ*"which prevented the defendants from learning so much of
what they needed in order to prepare for trialâ*"were permitted by a
Federal statute. We do not believe that the Federal statute permits
such limitations.

One other additional finding of note is that the Court held that even
though the Government may have intentionally stricken members of the
jury based on race, nevertheless under its precedent, the Court could
not review such a discriminatory action by the Government as long as
the Government allowed some members of the discriminated-against race
to sit on the jury. We raised a strong objection to that part of the
Courtâ*™s opinion.

Regarding the sentencing, the Court reversed the sentences of three
of the Five. It affirmed the sentence of Gerardo Hernández and
affirmed the sentence of René González. The Court decided that the
district court did not have any restrictions in imposing sentence on
René and thus could not reverse the sentence, even though the judge
gave him the maximum.

The Appeals Court reversed the life sentences of RamÃ"n Labañino and
Antonio Guerrero for conspiracy to commit espionage because the Trial
Court applied an unduly severe guideline, failing to recognize that
there was no damage to national security. No top secret material was
obtained. Finally the Appeals Court held that the Trial Court erred
in sentencing Fernando González by attributing to him a major role
when there was no evidence of that.

Those three defendants have been remanded for re-sentencing. The
other two, Gerardo Hernández and René González, have not.

Q: What will the next step in the appeals process be?

A: The case is now scheduled to go before the U.S. Supreme Court. The
Supreme Court has granted our motion to extend the time to file the
petition for writ of certiorari. It is now due on January 30, 2009.
The Government will have two or three months to respond. Then we will
have a short period of time to reply. And the Court could decide by
May 2009, whether to hear the case or any part of it.

We are very happy to have the assistance of attorney Thomas Goldstein
of the Akin Gump law firm, who is one of the most active and renowned
Supreme Court practitioners. He has agreed to participate in what we
believe is a very meritorious and compelling case. He argued a case
this week in front of the United States Supreme Court and another
case in November. He is scheduled for additional Supreme Court cases
this term.

Q: What are the main issues that the defense will raise in the appeal?

A:      All of the convictions should be overturned based on the
failure to grant a change of venue, prosecutorial misconduct, and
improper and discriminatory selection of the jury. We will also argue
that Gerardo Hernándezâ*™s conviction for conspiracy to commit murder
should have been overturned, and his life sentence for espionage
conspiracy should have been remanded.

Venue is one of the most fundamental issues that can exist under
American law or really under any system of law. No matter how a
system is devised, if you have a predisposed judge or jury, nothing
else matters. If you have a judge or jury who is likely to be
influenced by local passions and pressures, what you have is a mob
rule and you donâ*™t have justice in any sense.

We feel that issue is so fundamental to the fair operation of the
judicial system, that it will be treated with interest by the Court.
We feel the same about the remaining issues, the jury selection
issue, the conviction of Gerardo Hernández for something he clearly
had nothing to do with, as well as the failure to reconsider his life

Q:  Regarding the wrongful murder conspiracy conviction against
Gerardo, I remember the three oral argument hearings that we
attended, first in Miami, and then the second and third hearings in
Atlanta. In the three hearings, Stanley Birch, the presiding judge of
the panel, as well as judge Phyllis Kravitch, made remarks
challenging the prosecutionâ*™s claim of conspiracy by Gerardo. Yet, in
the latest Court decision on June 4, Birch voted with Judge William
Pryor to convict, making the vote 2 to 1. What happened?

A: In the initial three-judge panel we felt that all of the judges
recognized the insufficiency of the evidence. In the oral argument
before the new panel, we again felt that the majority recognized that
it just did not make sense to blame Gerardo for the shoot-down.
Ultimately, even though the panel majority might well believe that
Gerardo is innocent of the offense, the majority was convinced that
under prior interpretations of federal law, the Eleventh Circuitâ*™s
standard for affirming convictions sets such a low bar for the
government in conspiracy prosecutions that they could not overturn
the conviction.

We plan to contest that holding in the Supreme Court. The panel
majority was also convinced that a theory the prosecutors had been
barred from using at trial could nevertheless be considered in the
appeal as a way to affirm the conviction. We believe that also is a
fundamental error, in effect changing the rules in the middle of the
process, and not in accord with what we believe the law requires.

Q: And what was that theory that the prosecution had used?

A: The prosecution theory under which the conviction was affirmed was
that Gerardo could be deemed guilty of conspiracy to commit a crime
in American jurisdiction even if all he did was to support the right
of a country to defend itself against a hostile and illegal violation
of its territorial sovereignty. That theory, which the District Court
had rejected entirely as beyond the scope of the criminal law, was
revived in the most recent panel decision. This placed Gerardo in a
procedurally disadvantaged position. We believe that that theory
should not even have been available to the Government. But the two-
member majority in June held otherwise.

Q: You speak about the standard of review by the 11th Circuit Court.

A:      In the context of a conspiracy-to-commit-murder charge, we
believe the standard of proof is much higher than that applied on
appeal. This is particularly true when we are dealing with a
governmental actionâ*"the shoot-down of the Brothers to the Rescue
planesâ*"that has had principled legal and sovereign justification in
historical terms and where Gerardo had no basis for prior knowledge
of what his superior officers or superior governmental officials
would ultimately do.

To impose liability on Gerardo violates due process in many ways, and
along with the prejudicial venue and related issues that weâ*™ve talked
about, warrants reversal.

In the concurring opinion of one member of the panel majority, the
judge re-iterated for the third time that he believes the jury was
tainted by the venue and misconduct. The deciding judgeâ*™s view was,
in effect, â*˜We should not rely on this [Miami] jury but if I am
forced to rely on the jury by 11th Circuit precedent, then I canâ*™t
overturn the decision under the standards required.â*™

It is our hope that if the case is accepted in the Supreme Court,
that this question can be resolved favorably to Gerardo.

Q: There are a number of requests from U.S. and international law and
human rights organizations concerned about the case of the Cuban
Five, who would like to file amicus curiae briefs supporting the
case. What do you recommend?

A: Itâ*™s very, very helpful to us to have amicus support at this
critical time. There are so many fundamental issues in this case that
are relevant to every person in this country and to people throughout
the world. The legal and factual support that amicus briefs can
provide is something that we welcome and seek.

Q: What is the deadline for the amicus? What legal documents can
attorneys and organizations review for their preparation of the

A: One of the primary resources is the appellate documents. That is
probably the simplest way to review the case. Those appellate briefs
and Court decisions are on your Free the Five website. Regarding the
deadline, we would welcome amicus support prior to the filing of the
certiorari petition or within seven days of it.

Q: When will the re-sentencing in Miami take place for RamÃ"n
Labañino, Antonio Guerrero and Fernando González? Will it happen
after the Supreme Court appeal?

A: That hasnâ*™t been decided yet. It is possible that it will happen
before the Supreme Court has decided, but most likely it will be
after. It depends on how the proceedings go, both in the Supreme
Court and otherwise.

Q: It is now over 10 years and the wheels of justice are grinding
extremely slow. So much of the delay is based on the legal
technicality that you have described.

A: It is certainly tough. It is tough to wait, particularly if we are
found to be correct, which we believe we are. It is a long time.

Q: What can happen legally if the Supreme Court were to turn down the
writ of certiorari?

A: The defendants would still have legal options, including a
procedure for moving to vacate the convictions and sentences in the
district court. And that would have to take place within a year after
the Supreme Court decides. It would require a formalized type of a
habeas corpus proceeding, called a motion to vacate
judgment/conviction. It has a time limit of one year. Time limits
have been imposed on almost all habeas and post-conviction litigation
based on a federal law passed in 1996. We would have a one-year
deadline after the conclusion of the Supreme Court process, to file
an initial habeascorpus petition. There are subsequent habeas rights
but the initial ones have to be filed within a year.

Q: Does that mean that all and any future issues, any remaining
issues of appeal, have to be presented then?

A: That is correct.

Q: How much does public awareness of the case and support for the
Cuban Five help in gaining their freedom?

A: The support has been unwavering for the Five but it has also been
growing. Anyone who takes the time to look at the improprieties of
prosecutions that are obviously politically related can clearly see
some aspects of this case simply cry out for revision. I think it is
a case that needs to be addressed by the Supreme Court. That has been
my feeling personally since the beginning. I think the Supreme Court
could set a set an important standard with respect to justice in the
United States. This could help the U.S. image in the world as well as
improve bilateral relations.

Q: You have visited Fernando González lately. Can you tell us about

A: I saw Fernando in July. He is very attentive to the issues and
progress of the case, as well as the support actions for the Five.
Fernando is a very strong and calm personality. He is extremely
courteous and respectful, not only of the lawyers but of the
prosecutors and the court system. He is certainly grateful for all
the support he receives and he tries to return correspondence to the
greatest extent possible. A gentleman is how I would describe him in
one word.

Q: What message would you give to the people around the world who are
involved in the political support for the Cuban Five?

A: My message would be one of gratitude. These legal situations take
a great toll on the defendants, the attorneys, and their families. To
know that there are people who care about justice and fairness is
fundamental and has been a great sustaining aspect of this case. Even
though we have not won a substantial part of the appeal yet, each of
the Five has been sustained by the support.

We in the defense team have tried to live up to everything we have
said about the case and I believe that we have. The case is what it
was from the beginning. It was prosecuted in a local environment in
which it was least likely to be viewed dispassionately, least likely
to be resolved based just on what transpired in court. Extremely long
sentences were imposed. Fundamental questions of law and justice are
involved and the case merits attention and concern.

Q: Thank you so much, Richard. For everybody who is dedicated to
fighting for the Five until they are all home, for the people who
support Cubaâ*™s right to be free, we thank you and all the attorneys
who are working tirelessly in this effort.

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