A three-judge panel of the 11th Circuit Court of Appeals of Atlanta upheld Wednesday the guilty verdicts of the Cuban Five, prisoners in the United States since 1998...
Attorney Leonard Weinglass:
"There are 40 pages of ideological prejudice in the
new ruling from Atlanta"
ARLEEN RODRIGUEZ DERIVET
A three-judge panel of the 11th Circuit Court of Appeals of Atlanta upheld Wednesday the guilty verdicts of the Cuban Five, prisoners in the United States since 1998. It also vacated the sentences of three of the men, ordering a new sentencing in Miami. The sentences of Rene Gonzalez (15 years) and Gerardo Hernandez (two life terms plus 15 years) were maintained. In the case of Hernandez, the panel voted 2-1. A 16-page [minority] opinion of Judge Phyllis Kravitch states that the government did not present sufficient evidence to prove Gerardo’s guilt in the charge of conspiracy to commit murder.
The cases of Ramon Labanino (life sentence plus 18 years), Fernando Gonzalez (19 years) and Antonio Guerrero (life sentence plus 10 years) were sent to the Florida Court for re-sentencing. It will be Judge Joan Lenard who will announce a hearing to issue the new sentencing. Lenard was the presiding judge who, in 2001, issued the harsh sentences to the Cuban Five. The 99-page ruling of the Appeals Court of Atlanta, which explicitly favors the government position, was drafted in a politically charged language unusual for legal texts. It states that the defense arguments in their appeal "are meritless."
On Thursday June 5 an interview by Arleen Rodriguez with attorney Leonard Weinglass was broadcast on the Round Table program. Weinglass represents Antonio Guerrero and is a member of the Cuban Five defense team. A translation of the text in Spanish follows (Weinglass’ answers were originally in English and translated into Spanish):
Arleen Rodriguez.— Weinglass, help us understand. Give us a summary of the 99-page ruling from the Court of Appeals of Atlanta.
Leonard Weinglass.— What it means in brief is that the life sentences of two, Antonio and Ramon, were removed and there is a program for their re-sentencing in Miami before Judge Lenard. The sentence of Fernando is going to be reduced.
AR.— But Ramon and Antonio have different charges than Fernando. What does it mean that the three be returned to Miami and what can we expect?
LW.— When the Cuban Five were arrested in 1998, the Pentagon and the Justice Department issued a statement saying that the national security of the United States was not affected. Now, after 10 years in prison, we have a statement from a high level court that there was no espionage and that no top secret information was obtained or transmitted. That was the court’s finding, but nonetheless they returned the cases for re-sentencing and we are not sure what the new sentence will be; but it won’t be, in this case, life imprisonment, and they could even return home.
AR.— Why isn’t Gerardo included in the revision?
LW.— All the lawyers coincide that Gerardo’s case was easier and could have been thrown out. However, even though the case is easy from a legal point of view, from a political viewpoint it’s the most difficult, because of the political climate that exists in Miami. The court didn’t have the nerve to drop a sentence for conspiracy to murder when four Miami residents were the victims.
AR.— Does the fact that the Court of Appeals of Atlanta decided to return the case of Ramon, Fernando and Antonio to Miami mean they were excessive in sentencing, which is evidence of poor conduct. Isn’t it absurd then that they return the case to the same judge that imposed the harsh sentences?
LW.— It’s unfortunate.
In this 99-page ruling, they find that Judge Lenard committed errors in sentencing Fernando; committed errors in sentencing Antonio; committed errors in sentencing Ramon; committed errors in the instructions to the jury about Gerardo and, according two of the three judges, committed errors in rejecting a change of venue.
Despite those six or seven serious errors, the court returns the case to Judge Lenard.
AR.— What legal recourse remains?
LW.— Yes, we still have options available. Firstly, we can immediately, on June 24, ask the three judges to reconsider their decision based on the errors they committed in their ruling, and we are going to do it.
If they don’t reconsider this reasoning then we have the right to go to the Supreme Court of the United States to reconsider all or some of the issues we have presented, including the venue, the misconduct of the prosecution, the insufficient evidence in the case of Gerardo and other matters that this court has ruled on, including the use of a secret procedure between the judge and prosecution against the Cuban Five and also having maintained secret evidence that could have been delivered to the defense.
AR.— This ruling comes at a time when the people of the United States are immersed in a presidential election campaign and perhaps are not paying attention to other matters, like the case of the Cuban Five or another, the possibly pardoning of Luis Posada Carriles, who is already free on the streets of Miami. I wonder if the defense team has taken into account the double standard of the US government in relation to terrorism, which is apparent in the handling of the Cuban Five case and the freeing of a confessed terrorist like Luis Posada Carriles. Do the lawyers take that into account in their appeals?
LW.— In reality, that contradiction, which is very clear in the facts you mention, is not available to us in the texts of the legal case. However, in the original ruling of the first panel that we appealed to, they signed a special footnote, in which they refer to Carriles and call him a terrorist. Unfortunately, in this 99-page opinion there are no such references.
AR.— The ruling came on June 4, Gerardo’s birthday. The fact that the Appeals Court upheld the sentence of one of the weakest charges in the case, that of conspiracy to commit murder, and in general the charges against Gerardo, appears to be a deliberate act of cruelty against this young anti-terrorist fighter. How do you see it?
LW.— Perhaps this wasn’t an accident. People see it as an insensitive intent against a man who honorably served his country. However, when you read the entire ruling they issued, in particular the first 40 pages, it is very clear to us attorneys that there is an ideological prejudice in the writing. And the fact they issued the ruling on Gerardo’s birthday could be seen, as you suggest, as intentional.
AR.— What reasons could a lawyer like yourself give us so we can continue believing that there is a possibility that justice will triumph in the US legal system in the case of the Cuban Five?
LW.— Unfortunately, this case is one of those situations where I believe that the US government is using the justice system to achieve a foreign policy objective. That’s the difference with the case of Posada Carriles, between the case of Posada Carriles and this case.
Historically, when this has happened and a political prejudice is revealed, the US people feel a great sense of embarrassment in the laws and the trust they place in their legal system, in the courts.
AR.— How would you summarize in one sentence the ruling issued on June 4?
LW.— Gerardo should have been freed of all charges and the rest of the life sentences reversed as an absolute minimum.
So, we won a small part of the case at this moment, but the matter of the venue is still alive and we are going to present it again before the Supreme Court, and fortunately, we are going to begin the initial work so that the Cuban Five can return home.
We are prepared to continue the struggle and, with luck we will achieve it, like we did before, and like we are going to do and must do in the future.
We won the revocation of the life sentences, and that is a significant victory; but we are very disappointed that we didn’t win on the prosecution’s weakest case, and we should have won it.
AR.— Which is charge three?
LW.— Yes, charge three.
Any attorney studying the charge, including prosecutors, have concluded that a sentence should not have been issued on the base of the evidence presented. One of the judges wrote a 16-page opinion and very clearly, and in a very strong way, said that Gerardo was innocent of those charges. That’s a strong statement and quite unusual for an 85-year-old judge who has been a federal appeals magistrate for nearly a quarter of a century.
That was a historic action by the judge, including on the charge of conspiracy to commit murder. Her position is just below the Supreme Court and she is one of the most recognized leaders of the US justice system.
AR.— Your talking about Judge Kravitch.
LW.— Yes, Kravitch.
She was appointed by [former US President] Carter, a man who believes more in human rights than most of the other national leaders. He choose her from a very small court in Georgia where she practiced law, despite having graduated at the top of her class at one of the most prestigious law schools in the United States. But she wasn’t working in any law firm because she was a woman. Therefore, she clearly understands the price that people have to pay when they are victims of prejudice, and I believe that she contributes this in her work as a judge.
AR.— Thank you for speaking with our Round Table.
Response to Court Ruling on Cuban Five Appeal
June 5, 2008
Reprinted from Daily Granma
On Wednesday June 4th, the 11th U.S. Circuit Court of Appeals announced its ruling in the appeal case for the Cuban Five.
In the 99-page opinion, the three-judge panel unanimously upheld the convictions against the Five Cuban Patriots. The court also upheld the sentences given to René González (15 years) and Gerardo Hernández (two life sentences plus 15 years).
The court’s ruling on Gerardo’s sentence, however, was not unanimous: 2 to 1. On page 16 of the written opinion, Judge Phyllis Kravitch states that the government did not present sufficient evidence to convict Gerardo of conspiracy to commit murder.
The sentences of Ramón Labañino (life plus 18 years); Fernando González (19 years) and Antonio Guerrero (life plus 10 years) were returned to Judge Joan Lenard’s Florida court for re-sentencing. Lenard will need to call for a hearing to issue the new ruling — this is the same judge who imposed the excessive and unjust sentences in 2001.
The Atlanta Appeals Court’s written opinion, which employs startling political rhetoric, states that the defense’s arguments lacked merit and clearly favors the government.
The court’s ruling exposes various contradictions between the opinions of two of the justices and the author of the opinion, Judge William H. Pryor, an ultraconservative appointed to the bench with the help of Republican John McCain despite opposition from the Senate.
The defense attorneys, Weinglass, MacKenna and Horowitz, ensured they will continue the legal battle that began in December 2001 when they were unjustly sentences. There are still some legal avenues open.
Given the United States’ governments’ legal ploys to expand the sentences of our Five Brothers, we are not surprised by the judicial ruling. On the contrary, it reaffirms our need to continue fighting tirelessly to denounce this colossal injustice.
Exposed once again is the contempt of the United States government, which yesterday, in another U.S. city, defended the criminal Luis Posada Carriles. A man who, rather than fittingly declaring him a terrorist for his crimes against humanity and extraditing him to Venezuela where the government has declared Carriles a fugitive and repeatedly demanded his extradition, the U.S. government has granted him full liberty.
Gerardo is not surprised by the ruling. "This is the same system that has unjustly incarcerated Mumia for more than 20 years along with Leonard Peltier and the Puerto Rican political prisoners," he said today. "We will endure as many years as necessary, 30, 40, whatever it takes. As long as one of you is resisting, we will also resist until there is justice."
Gerardo has asked that we communicate his confidence to all of you, "For anyone who asks, tell them I am fine, strong and always looking forward."
Along with all of our friends around the world we call for mobilizations beginning on the morning of June 6, in front of all headquarters of the terrorist U.S. government —in Europe, Latin America and the U.S. — which holds our Five Brothers imprisoned.
Only solidarity, constant condemnation and international mobilization will secure freedom for the Five.
International Committee for the Freedom of the Cuban Five
National Lawyers Guild Says Politics Motivated Decision In Cuban Five Case
Two Judges on Three-Judge Panel Uphold Conspiracy to Commit Murder Conviction Despite Government’s Lack of Evidence
June 5, 2008
Reprinted from National Lawyers Guild
New York. The National Lawyers Guild (NLG) believes that politics influenced yesterday’s federal appeals court decision upholding the convictions of five Cuban patriots accused of spying in the United States. The so-called Cuban Five were gathering information on U.S.-based exile groups planning terrorist actions against their island nation.
The court did, however, vacate the sentences of three of the Five, including two serving life terms. A three-judge panel of the 11th U.S. Circuit Court of Appeals returned the three cases to a federal judge in Miami for re-sentencing based on findings that the three men had gathered no classified information.
The full 11th Circuit court in August 2006 upheld the convictions of the Five: Gerardo Hernández , Fernando González , René González , Ramon Labañino, and Antonio Guerrero. It rejected claims that their federal trial should have been moved out of Miami because widespread opposition to the Cuban government among Cuban-Americans would make it impossible to get a fair and impartial jury.
In the appeal ruled on yesterday, the Five challenged rulings on the suppression of evidence from searches conducted under the Foreign Intelligence Surveillance Act, sovereign immunity, discovery procedures, jury selection, prosecutorial and witness misconduct, jury instructions, sufficiency of the evidence to support their convictions, and sentencing.
In this latest decision, the panel voted 2-1 to affirm the life sentence for Gerardo Hernández, who was convicted of conspiracy to commit murder in the deaths of four Miami-based pilots shot down by Cuban jets in 1996. In her 16-page dissent, Judge Phyllis Kravich wrote that the government failed to present evidence sufficient to prove beyond a reasonable doubt that Hernández agreed to participate in a conspiracy to shoot down planes over international airspace, resulting in the deaths of four pilots from an anti-Castro organization, Brothers to the Rescue. The panel also affirmed Rene González's 15-year sentence for acting as a non-registered foreign agent and conspiracy to act as a non- registered foreign agent.
The panel vacated the life terms of Labañino and Guerrero, agreeing with their contentions that their sentences were improperly configured because no "top secret information was gathered or transmitted." The judges also vacated Fernando González's 19-year sentence because he was not a manager or supervisor of the network. The panel remanded these cases to the district court for re-sentencing.
After a trial that lasted six months, the Five were convicted in 2001 of acting as unregistered Cuban agents in the United States and of conspiracy to commit espionage for attempting to penetrate U.S. military bases. A three-judge panel of the 11th Circuit overturned the convictions in 2005, saying there should have been a change of venue. But the full court reversed that decision, 10-2.
"Conspiracy has always been the charge used by the prosecution in political cases," said NLG attorney Leonard Weinglass, who represents Guerrero. "In the case of the Five, the Miami jury was asked to find that there was an agreement to commit espionage. The government never had to prove that espionage actually happened. It could not have proven that espionage occurred. None of the Five sought or possessed any top secret information or US national defense secrets," Weinglass added. "The sentence for the conspiracy charge is the same as if espionage were actually committed and proven. That is how three got life sentences. The major charges in this case were all conspiracy related, the most serious being conspiracy to commit murder levied against Gerardo Hernández."
"Anti-Cuba sentiment has tainted all possibility of a fair trial for the Five since their original arrest and confinement, which the UN Rapporteur on Torture described as violating the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment," said NLG Executive Director Heidi Boghosian. "During the original trial, the Bush administration paid journalists to write unfavorable stories about Cuba. Anti-Cuban extremists tried to intimidate the jurors, and even prospective jurors admitted that they would be afraid to return not-guilty verdicts against the Five."
"For nearly 50 years, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba," said NLG President Marjorie Cohn. "In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba."
Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.
- Press Conference on the Appeals Court Decision:
- Press Conference demanding extradition of Luis Posada Carriles:
-CUBA proves links of U.S. Diplomats with Terrorists:
- CUBA: Posada Carriles, un asesino en serie:
In Great Britain and Ireland: