[NYTr] Cuban 5: Interview w/Atttoenwy w.attorney Lwonad Weinglass

[All the News That Doesn't Fit]

sent by Jane Franklin

Interview with Leonard Weinglass

August 6, 2007

Exclusive to www.freethefive.org

This interview with Leonard Weinglass, appeals attorney for Antonio
Guerrero was conducted by Gloria La Riva, coordinator of the National
Committee to Free the Cuban Five, on August 1, 2007.

Gloria La Riva: Mr. Weinglass, the oral argument hearing in the Cuban
Five appeals will take place before the 11th Circuit Court of Appeals
in Atlanta, on Aug. 20. Can you please explain the current stage of the
Cuban Five case? What are the issues which the defense will present?

Leonard Weinglass: The argument will be before a two-judge court.
Possibly that court will be increased to a three-judge court but we
won’t know that until a week before the argument. This is the same
court that initially heard the case and decided in Aug. of 2005 that
the Five did not receive a fair trial in Miami.

That 2005 decision was reversed by the entire 12 judge panel of the
11th circuit, voting 10 to 2, so the issue of venue is no longer
available to us. But the rest of the case—aside from the issue of fair
trial and venue—has been returned to the original court, now composed
of two judges with the possible addition of a third, for consideration
of all the remaining issues. The third judge retired from the bench
approximately two years ago. Now we have a two-judge panel. It is
possible that a third judge will be appointed to hear this case but we
will not know that until a week before the arguments.

GLR: What are the issues on appeal?

LW: There are a number of remaining issues, but I will highlight the
three most important ones most likely be addressed in the argument.

First is the issue of whether or not Count 3, alleging a conspiracy to 
commit murder against Gerardo Hernandez—arising out of the shoot-down
by Cuba of two aircraft in 1996—can be sustained on appeal.

The defense is arguing that the evidence on that alleged conspiracy is 
insufficient as a matter of law. The argument is strong because the 
government at one point in the litigation acknowledged that their
evidence was very weak and that they in fact could not prove that
count. It is also impacted by the fact that the appeals court, when we
originally argued the case in March of 2004 [first oral argument before
the three-judge panel], also expressed its opinion that the evidence on
that count was weak. So our initial focus is to remove Count 3.

I should also point out that this is the first time in history that an 
individual is being held liable for the action of a sovereign state in 
defending its airspace. Count 3 should never have been indicted in the
first place because Cuba had the right to defend its airspace in
shooting down these aircraft. But even assuming that it is legally
viable, it was never proven.

The second argument that will take a considerable amount of the court’s 
attention, is the question of prosecutorial misconduct, particularly
the misconduct of the prosecutor [U.S. Attorney John Kastrenakes] in
his final argument to the jury.

Closing argument is constrained by very precise rules of law that
prohibit counsel from arguing outside the scope of the evidence. In
other words, a prosecutor cannot make claims in the final argument that
are without any evidence or proof in the case. In this particular
instance the prosecutor went far beyond the bounds of proper argument.

For example he claimed at one point that the Five came to the United
States, not to monitor the activities of the terror network that had
been assaulting the Cuban people, but instead he argued that their
purpose in coming was to destroy the United States. That was mentioned
not once but three times in the course of his argument. The Five were
unarmed,  they carried no explosives, they committed no acts of
sabotage or arson, they threatened no one, and yet the prosecutor made
that claim.

We contend that that is outrageous prosecutorial misconduct and because
of that, both the count alleging conspiracy to commit murder and the
count alleging conspiracy to commit espionage, which were
closely-argued counts, must be set aside and a new trial ordered on
those counts.

The third argument that will have prominence is the question of the 
sentencing of the three of the Five who were accused of conspiracy to
commit espionage [Gerardo Hernández, Antonio Guerrero, Ramón Labañino].
Each of the three who were so accused received a life sentence. A life
sentence now means that you actually serve your entire life without
getting out of prison prior to your death. This case was the first case
in the history of the United States where there were no classified
documents involved. That is, there was nothing in the nature of a
national-security-published matter that was in this case.

The notorious cases related to espionage historically are cases
involving individuals who turned over to a foreign country, scores,
sometimes hundreds and thousands of state secrets. In those cases these
individuals—the most notorious of whom are people like Robert Hansen,
of the FBI, Aldrich Ames of the CIA, Robert Walker of the Navy, who
gave hundreds if not thousands of documents—each received life.

But in the case of the Five there were no such documents. Nonetheless
the three are serving the same life sentences as these most notorious
spies. So we are arguing that this sentence, given the facts of this
case, is oppressive, irrational and outside the bounds of the statutory
scheme. It was a sentence that obviously was reserved for Cuban
patriots who took up the responsibility of exposing and trying to
prevent the terror that emanates from the United States directed
against Cuba.

Those are the two main charges of the 26 counts, and third, the 
prosecutorial misconduct of the prosecutor.

If we prevail on those issues, that will go a long way toward bringing
the three who are serving life sentences, and all five men, back home
to their families and compatriots in Cuba.

GLR: You mentioned that the prosecution did not present evidence to
prove their charge of murder conspiracy against Gerardo Hernández. This
is an extremely unusual and irregular charge given that even the
prosecution during the trial went to the 11th Circuit to appeal, with
a “writ of prohibition” on the judge’s instructions, because the
prosecution said they didn’t have the evidence to convict. Specifically
what was required for a conviction which the prosecution failed to
prove?

GLR: What was required for a conviction under U.S. law was proof beyond
a reasonable doubt that Gerardo Hernández had entered into an agreement
whose objective was to bring about the deaths of four individuals who
died when their planes were shot down. There is no evidence whatsoever
that Hernández had any knowledge the shoot-down was to occur. And
therefore the case failed in terms of its evidence.

Beyond that, there should not even have been a charge of that nature.
That charge was unprecedented because Cuba, a sovereign state, was
seeking to protect its own airspace, and in so doing, its military
aircraft brought down intruding aircraft. That activity has never
before resulted in an indictment against an individual who was in no
way involved in the military action.

GLR: Didn’t the prosecution also claim that Gerardo Hernández knew the 
planes would be shot down in international waters? Yet, Gerardo was not
part of any plan for the shoot-down, although it was a justified and
legal act by Cuba.

LW: That is correct. There is no evidence that he knew that there was
going to be a shoot-down. The only evidence at trial was that he
received a message from Cuba that his compatriots were not to fly in
the Brothers to the Rescue aircraft during that period of time.

[Note: BTTR had invaded Cuban airspace numerous times in 1995 and 1996 
despite repeated warnings from Cuba. BTTR’s leader, convicted terrorist
José Basulto, had boasted publicly to the Miami press that on Feb. 24,
1996, his organization would fly planes over Cuba, and he persisted in
ignoring the warnings from various U.S. and Cuban authorities. The
Cuban government, the U.S. State Department and the U.S. Federal
Aviation Administration all notified Basulto that Cuba was prepared to
take direct action to stop further unauthorized incursions into Cuban
airspace.]

Where the planes were shot down was not directly relevant, although the 
prosecution’s argument was that Hernández was allegedly a part of an 
agreement to shoot down the planes in international waters.

Hernández was not told why his compatriots who infiltrated BTTR were
not to fly, and he was not informed of what was to happen. He was
simply told that his compatriots who were there with him were not to
fly. That was far from saying that he had knowledge that there was
going to be a shoot-down.

GLR: With regard to the life sentences, you have explained that there
is no possibility in federal prison for parole or early release except
when the prisoner dies. Has this doctrine of life without parole always
existed, and if not, when did it change?

LW: Parole has been abolished in the federal system in the United
States and I believe that change occurred in approximately 1994. The
case of the Five arose in 1998, it arose after the change, therefore
the Five were sentenced under the new rule which abolished parole.

GLR: Prisoners who were sentenced to life before 1994, are they
eligible for parole?

LW: Yes. I believe they begin to be eligible when they have served 
approximately 32 or 34 years.

GLR: How does this case affect the guarantees to legal justice that
most people have come to expect in the courts? And what more can be
done for the Five in court with regard to the venue?

LW: The ruling on venue—which we could appeal at a subsequent time to
the U.S. Supreme Court—affects everyone who is brought before the bar
of justice in America. The venue rules prior to this decision are rules
designed to protect a defendant against being brought to trial before a
community that is impassioned as a result of prejudice against the
accused. This fundamental and hallmark part of the criminal justice
system was undermined by the decision of the 11th Circuit sitting en
banc in August of 2006.

If we lose before this panel, we will then have the right to raise the
venue issue before the United States Supreme Court. So it affects
everyone who is forced to trial in America.

The question of sentencing will also affect everyone who is charged
with conspiracies to commit espionage, because of the draconian nature
of the Five’s sentence.

The murder conspiracy charge against Gerardo Hernández will be a
first-time precedent, charging a person within the United States with a
conspiracy to commit murder for an outside sovereign’s right to protect
its own airspace. So this case in many ways will have impacts on the
state of the law in the United States.

GLR: Despite the obstacles imposed by the trial judge, the attorneys
for the Five tried to show the long history of terrorism in Miami and
the sole reason for the Five’s mission in Miami, to stop that
terrorism. Since their convictions there have been discoveries,
revelations of continued plots against the Cuban people by the
Miami-based terrorists. And of course, in May, one of the most
notorious, Luis Posada Carriles, was freed to join his accomplices in
Miami.

What role could these developments play in the struggle for the Five’s 
freedom?

LW: Of the nine issues that will be argued before the two-judge panel,
I only mentioned the three main issues that we will be arguing. There
are six additional issues. One of them is the issue of justification.
Under American law, a person who is accused of a crime could
acknowledge committing that crime, and then argue that committing the
crime was justified out of necessity to avoid a greater harm. It is a
form of self-defense, extended to acts which will protect other
parties. This was argued in the original trial. But the trial judge
[Joan Lenard] took that issue away from the jury, so it was never
considered by the jury. We claim that that was error. We will be
arguing that the “defense of necessity” claim should have been
submitted to the jury, because the Five came to the United States in
order to prevent additional violence, injury and harm to others.

The reason why I didn’t mention it initially is that the courts in the 
United States have a tendency to discredit that defense, particularly
in the political context in which it was raised in this case. However,
look at the revelations involving Posada Carriles and Orlando Bosch and
others, whom the government has conceded were involved in acts of
terrorism.

The Five came here to curb their activities. This case presents a
stronger record, than any case I am aware of, for the argument that the
Five’s activities were justified and necessary in order to save lives.

GLR: Do you have an example of how the defense of necessity has been
used?

LW: I used it successfully in the defense of President Carter’s
daughter, Amy. She occupied a building, with other students, at the
University of Massachusetts, in opposition to the CIA agents who came
to the campus to recruit students into the CIA. She acknowledged that
her occupation of the building was a crime but she argued that that was
justified by the doctrine of necessity because the CIA was then engaged
in an illegal war in Nicaragua.

It was argued to the jury and Amy Carter and her sixteen other student 
defendants were all acquitted.

GLR: If sufficient relief for the Five is not won in this appeal, is
there any possibility of an appeal, on the basis of the original
argument of their anti-terrorist mission?

LW: Well, the trial lawyers did a very good job in bringing before the
court and jury 35 exhibits demonstrating a long history of terrorist
violence directed against Cuba from the southern Florida area. They
also produced live witnesses who were involved in those actions, for
the jury to see and hear. In fact, our original panel of three judges,
when they wrote a 93-page opinion reversing the case because of the
prejudice in Miami, cite in footnotes the evidence that was produced in
court, and refer to Posada Carriles as a terrorist. I think it is the
first judicial finding that those activities directed against Cuba were
in fact terrorist activities. [The Aug. 9, 2005 93-page opinion is
accessible on our website.]

That was all before the judge in the original trial, but the judge took
that issue away from the jury. Now, if we lose this appeal, can we file
a new appeal under habeas corpus, incorporating some this new
information which has come to light since the end of the trial? The
answer is probably yes, and it is something that we will definitely
look into because we are keeping records of all the new information,
once this argument is concluded and once we have a decision.

GLR: The defense is focusing on three main issues in the oral argument.
Is that because of the defense team’s time limit of 30 minutes or the
limits you have overall in the appeal?

LW: The appeal comprises a trial record of 119 volumes of transcripts, 
20,000 pages of exhibits. We have been given a total of 30 minutes to
argue all nine issues. If you spread that out, it gives us three
minutes per issue. As happens with respect to all appeals, the lawyers
have to make a judgment as to which issues they will be arguing. After
meeting with all counsel, we have focused on three issues that we will
feel will bring about a reversal of the major charges, and set the path
for the release of the Five.

But it still only gives us 5 or 6 minutes for issues that we are trying
to argue. The 30 minute limit does dictate the issues we will be able
to argue and how much time we can  spend on each issue.

GLR: Are you able to address all issues in the written briefs?

LW: They are all addressed comprehensively. There is also a limitation
on the number of words you can put in a written brief, and we have used
all the space that has been allocated to us in arguing all nine issues.

GLR: Have you been in recent communication with any of the Cuban Five?

LW: I am in most frequent communication with Antonio Guerrero. And I
just received a letter from him dated July 19. His spirits as usual are
very high. He is fully aware of what is happening in court, and the
arguments we are about to make. He remains strong and optimistic.

GLR: You have a long history of defending political activists since the 
1960s. In this case, with the worldwide and U.S. movement of support
for the Five’s freedom, how do you see the importance of the political
support in regards to this case?

LW: This case is the first case in our memory that it will be argued a
third time on appeal. To all of our collective memories, this has never
happened before. Why is it happening in this case? We believe it is
because of the international and domestic attention that this case has
received. As lawyers we know we have the right to argument and we have
the right to written appeals. But we also know from experience that
whether or not the arguments are heard or the appeals are taken
seriously frequently depends upon how extensive the support is, and how
broad the interest is in the case.

It is a tribute to all those supporters who have worked diligently to
bring the case of the Cuban Five to the public’s attention, that we
have the opportunity to present oral argument a third time. We cannot
rest until Gerardo Hernández, Antonio Guerrero, Ramón Labañino, René
González and Fernando González are home in Cuba with their families.

Thank you very much.