[Ppnews] Truth will Prevail in Favor of Gerardo Hernandez

Political Prisoner News ppnews at freedomarchives.org
Wed Feb 2 10:19:49 EST 2011


Truth will Prevail in Favor of Gerardo Hernandez
Jose Pertierra, Immigration attorney in 
Washington DC, and associate of the Pertierra & 
Toro, P.C law firm, receives us honest, friendly 
and uninhibited in Havana. He has more than a few 
websites on the case of Cuban Five open in his 
computer, and then starts pouring his reflections
on the progress of the process that seeks for 
justice for Gerardo Hernandez and his four other 
comrades unjustly imprisoned in the United Status.

by Miguel Maury

Being a typical Cuban he understands our 
intentions to clarify, as much as possible about 
the habeas corpus requested for Gerardo.


About the legal meaning of such legal action 
brought by Gerardo’s defense team and its 
purpose, the lawyer graduated from George 
Washington University reports that it is a writ 
that has existed for centuries in the Anglo 
jurisprudence and not simply in the U.S. one.

“The habeas corpus is requested by a defendant 
when he thinks his fundamental, constitutional 
rights, have been violated, and then he goes to 
court to have his sentence reviewed, in order to 
determine whether or not such rights have been broken”

Author of numerous articles on extradition, 
immigration and international law, Pertierra 
explains that Hernández Nordelo- who was denied 
the right to a re-sentencing process in late 2009 
and through which the sentences of three of his 
comrades were significantly reduced- has come 
before the courts to determine whether it is 
right for him to have effective assistance of his counsel.

“In October last year - he says - his lawyers 
filed an appeal before the Federal Court in 
Miami, headed by Judge (Joan) Lennard (who tried 
him in 2001) and now, in the coming days, the district attorney’s office”

Executive Clemency

A man of fast and confident answers, Pertierra 
speaks accurately when asked about what other 
resort the U.S. legal system would allow, if the 
petition of habeas corpus does not yield the desired result.

"The defense can continue appealing, he assures, 
and backed by his experience in legal practice, he says:

"These processes often take a long time; there 
are still several stages to go through, but I 
keep insisting that the most effective way to 
solve this case is through what the U.S. 
Constitution calls an executive clemency, that 
this time would correspond to President (Barack) Obama.”

Then he adds that the current President, if so he 
wishes, would not even have to pardon the Cuban 
Five, but simply keep the sentences, taking as 
served the 12 years they have been in prison and 
only pardons them of those that they have left.

According to Pertierra, at the end of each year, 
the occupant of the White House’s Oval Office 
reviews those files that deserve that kind of leniency
and allows inmates go free after considering 
their sentence, however long, as time already served.


With decades of experience in the US legal 
system, Pertierra goes to the legal background of 
the implementation of such legal figure in the United States.

He recalls that in times of Jimmy Carter 
Administration, when Washington asked Cuba to 
release several prisoners that were incarcerated 
for working for the Central Intelligence Agency 
(CIA), Cuba asked the U.S. government for the 
revision of long sentences imposed on a group of 
Puerto Rican patriots imprisoned in that country.

“That was how Carter, without the pardon, gave 
“executive clemency” to Lolita Lebron, Rafael 
Cancel Miranda, Irving Flores and Andrés Figueroa 
Cordero, separatists who remained imprisoned for 25 years," he said.
- Could it be that in the case of Gerardo can not 
aspire to anything other than the executive clemency?
- Only if you win the writ of habeas corpus ..., 
the defense focused with particular emphasis on 
the innocence of Gerardo in connection with the 
shooting down by the Cuban air force of two 
planes of Brothers to the Rescue, on February 24, 
1996, something put forward by the jury in the 
trial of 2001 to give him the two life sentences 
plus 15 years that he has today against him.”


Pertierra then voices his opinion on some 
articles published by news agencies in Miami, 
where they claim a contradiction arose between 
Gerardo and his defense team on where exactly the 
two planes were shot down in 1996: “The document 
written by lawyers Thomas C. Goldstein and 
Richard C. Kluhk, also says that the team member, 
Paul Mc Kenna, didn’t make an effective defense at the 2001 trial.

“It adds that Mc Kenna diminished Gerardo’s the 
constitutional, since he made too much emphasis 
on the place where the shoot-down took place, 
rather than focus on whether Gerardo knew it or not.

“The facts show that he did not know what would 
happen to these pilots, whether in international 
waters or in Cuban ones, and that should really 
be the “heart” of the defense,” he says.

Pertierra recalls that in the 2001 trial, the 
prosecution itself admitted not having the 
evidence to prove the defendant's participation 
in a conspiracy to kill anyone, least of all 
those guys, and asked the judge, even, to 
withdraw that charge, to which she objected.

We remind him on how flawed was the venue chosen 
for the trial, something that the defense has 
always stressed- even requested a transfer of 
venue - the attorney places that act as an 
indisputable violation of the provisions of the 
U.S. jurisprudence on that regard.


But Pertierra not only has legal grounds to speak 
of the Five, but also of the other side of the 
coin, ie, against who they fought: monitor 
possible terrorist actions against Cuba and even the U.S. itself.
Recently threatened with death in the hotel where 
he was staying in El Paso, the Cuban lawyer also 
represents the government of Venezuela in the 
extradition case of Luis Posada Carriles, who is 
being tried in that city of Texas, for immigration offenses.

“This murderer is not charged for murder or 
terrorism, but for lying, so it would not 
astonish me they found him guilty of lying. This 
is a relatively minor offense,” he says wryly.

Pertierra explains that while Posada Carriles was 
in prison for a year and a half on suspicion of 
lying, the judge who is examining his case has 
advanced that if convicted on charges of perjury, 
he probably would not go to jail because what 
corresponds to that crime in that state, is 
precisely that time and he already served it.

With the calculation of the odds on the future of 
the ongoing process of El Paso against Posada 
Carriles, he stresses the lack of willingness by 
the U.S. government to prosecute and convict “that annoying host.”

Pertierra alludes to the past as a terrorist and 
a torturer, under the auspices of the CIA, of the 
famous character in more than a Latin American 
nation and especially Venezuela.

He says it is precisely because of that annoying 
past, that “Washington does not want to really judge him.”

“There are many skeletons in the closet," he says 
in reference to how much the notorious murderer 
of 73 people during the bombing of the Cubana 
airliner near Barbados in 1976, and the main 
culprit behind the explosions in hotels Havana in 1997 and 1998 knows.

Pertierra is now in El Paso, following closely 
the trial of Posada Carriles and writing daily, 
El Diario de El Paso (www.cubadebate.cu) on the events in court.

"I keep thinking that the U.S. should be 
processing an extradition case against Posada in 
El Paso for 73 counts of murder and not for 11 
counts of lying, but to Washington the Cuban 
victims are second class and the CIA terrorists 
are good terrorists ", he said. "Terrorism, 
however, you can not fight it a la carte. There 
are no good terrorists and bad terrorists.

All are equal. There are no victims of first and 
second category, "he said. At the insistence on 
the likely future of the process and given the 
apparent moves by Washington to extend it, 
Pertierra is blunt: "The U.S. government is aware 
that at the advanced age of its protégée and 
natural logic he doesn’t have many years to live, 
they play to the delay in waiting for a death for 
them that would be opportune.”

I insist on the perjury charge being ridiculous...

“Imagine that they capture Osama Bin Laden in 
Pakistan, the United States requests his 
extradition and the Pakistani government responds 
that, rather than extradite him for all the 
murders he committed in the Twin Towers and the 
Pentagon, they just want to prosecute him for 
lying. “How would the United States react to 
something like that?, It is not difficult to imagine!”

However, Pertierra remains hopeful that justice 
can break through, in the case of Posada 
Carriles, as in case against Gerardo and his 
companions Antonio Guerrero, René González, Ramón 
Labañino and Fernando González.

“If President Obama wants to leave behind the 
Cold War and move in a more decent and healthy 
way, to heal the wounds of many years of warfare 
against Cuba, he should start to do real justice 
in the case of the Five and particularly with 
Gerardo , where the truth will eventually prevail.”

Freedom Archives
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