The Militant Oct. 18, 2010
Interview with lawyer on plans for defense effort
Below are major excerpts of an interview with Leonard Weinglass, one of the attorneys on the legal defense team of the Cuban Five. The September 15 phone interview was conducted for the English-language broadcast of Radio Havana Cuba by Bernie Dwyer, an Irish journalist and filmmaker.
The Cuban Five—Gerardo Hernández, Antonio Guerrero, Ramón Labañino, Fernando González, and René González—were arrested by the U.S. government in 1998 while living in the United States monitoring the activities of counterrevolutionary groups in Miami that have a long history of armed assaults and sabotage against Cuba.
The five were convicted on trumped-up charges ranging from failure to register as foreign agents to “conspiracy to commit espionage.” In addition, Hernández was falsely convicted of “conspiracy to commit murder.”
The five were refused a change in trial venue from Miami, the center of counterrevolutionary Cuban-American groups, where an atmosphere of prejudice and intimidation ensured the most biased trial possible.
Hernández received a double life sentence plus 15 years. The U.S. government claimed he was complicit in the deaths of the crews of two planes flown by Brothers to the Rescue, one of the right-wing groups the five had been monitoring. The plane was shot down by the Cuban air force on Feb. 24, 1996, after Brothers to the Rescue had repeatedly and provocatively violated Cuban airspace, despite numerous warnings from Havana.
Under growing international pressure, a federal appeals court ruled in June 2008 that the sentences for three of the five were excessive. Labañino’s life sentence plus 18 years was reduced to 30 years. Fernando González’s sentence of 19 years was reduced to 17 years and 9 months. Guerrero’s life plus 10 years sentence was reduced to 21 years and 10 months. The court refused to reduce Hernández’s sentence or the 15-year sentence given to René González.
Leonard Weinglass: The five should have been returned to Cuba shortly after their arrest, as is the custom when foreigners are arrested in the United States on missions for their home countries and their activities here caused no harm.
There are numerous examples, most recently the Russian agents who were sent home this year after being held in custody for less than 30 days. Instead they [the Cuban Five] were subjected to cruel conditions of confinement, unjustly prosecuted in a venue that could not afford them a fair trial, victimized by the misconduct of their prosecutors, and excessively and illegally punished with life sentences….
Following the Supreme Court’s rejection of their appeal in 2009—despite an unprecedented outpouring of support, including 10 Nobel prize winners, the bar associations of many countries, the entire Mexican Senate, two former presidents of the European Union—we are now, in 2010, filing what is called the collateral attack or habeas corpus review for Gerardo on his conviction.
We filed on June 14, 2010, and will be filing a Memorandum of Law on October 11. The government will be given 60 days to respond and then presumably at the end of this year or in early 2011, we will have a hearing on Gerardo’s claims in Miami. If we lose there we go to the 11th Circuit Court on appeal. And if we lose there, we then, once again will ask the Supreme Court to review the case. So we still have legal avenues to pursue.
Bernie Dwyer: Could you give more detail on what is the basis of the ongoing legal process on behalf of Gerardo Hernández?
Weinglass: There are essentially three claims that we are making. One is that the United States government engaged in misconduct by paying a certain number of high-profile reporters in Miami to write articles of a propagandist nature against the government of Cuba for Radio and TV Martí, and at the same time these reporters during the day were also writing articles and speaking about the five in the local media. Those articles and commentary were amongst the most prejudicial and inflamed the hostility of that community.
The government, which has a legal obligation to assure all accused a fair trial in a fair venue, was actually paying reporters who were reporting the most scurrilous material that prejudiced the case. To anyone’s knowledge this has never happened before. That, we argue, is a violation of due process and we are asking the court to overturn the conviction and to once again either free Gerardo or remove his case to another venue to receive a fair trial.
There is even a strong argument that, if what happened is demonstrated, Gerardo cannot be retried, but must be freed outright since he was wrongly put in jeopardy through government wrongdoing the first time.
The second claim is rather technical. The government has a strict obligation to turn over anything in its records that could have helped Gerardo defend his case. This it did not do. Instead, they withheld evidence that would have demonstrated his innocence. They also withheld, and we are making this claim, satellite imagery which would have shown that the shoot down on February 24, 1996, occurred in Cuban airspace and not in international airspace. The key agency of the United States government that maintains satellite data has, up to now, refused to admit or deny that they are holding such data.
Lastly we are claiming that there was a misperception on the part of Gerardo’s attorney about the principles of international law that should have governed the case and a failure to take effective measures to assure Gerardo a fair trial. This was the first case in history where an individual residing at the time in the United States was charged with a so-called conspiracy with pilots of another country’s air force who were doing their duty in defending their country’s airspace. Such a prosecution was outside the realm of anything any trial lawyer in the U.S. had ever faced.
There should have been a complete and thorough examination of the principles of international law, which could have afforded Gerardo a clear-cut defense to the charge of conspiracy to commit murder. We are now providing the Court with a 15-page declaration by an eminent international law professor who explains in detail precisely how the court and the defense should have approached this unprecedented case. Even beyond that, as Judge Kravitch found, the government’s case failed to establish that Gerardo had anything to do with what occurred on that day; and under any scenario, he should have been found not guilty.
Dwyer: Let’s now move to the cases of the other four and where they stand legally. Could we begin with Antonio, who was serving a life sentence plus 15 years?
Weinglass: Antonio is serving a 21-year sentence which means that he should be free to return home in approximately seven years and maybe even sooner. However, Antonio was also the victim, as was Gerardo, of the fact that the government committed misconduct by paying reporters who were writing the most prejudicial articles against all of the five.
So Antonio has the same claims on that issue as Gerardo and so have Ramón and Fernando. Antonio will be filing his habeas papers in the first week of November, making the same arguments as well as the arguments on the wrongful withholding of information. I assume that Ramón and Fernando will do the same.
René is so close to being released in 2011 that it remains to be seen whether he will even have to file.
Dwyer: What would be the result if this process is successful? Could they be freed?
Weinglass: Unfortunately, it will go to a trial judge in Miami—the same judge who sat on the original case. However, the interesting aspect is it might be that, if it is found that the U.S. government committed misconduct by paying these reporters, the five could not be tried again because under the doctrine of what’s called double jeopardy, their rights were wrongfully violated by the government in the first instance. Since the government put them in jeopardy the government cannot come back now and seek a second trial. That’s an issue we will be arguing and I personally feel that we will be successful, assuming a finding of government misconduct.
Dwyer: And all these cases are going to take place in the courts in Miami toward the end of this year?
Weinglass: Yes, it will either be toward the end of this year or possibly over into next year, 2011. And it will take place in Miami initially and if we lose there, then we will return to Atlanta before the 11th Circuit Court of Appeals, where we have the right of appeal.
Dwyer: Do you think that the campaigns that are being run worldwide for the release of the five are having any effect?
Weinglass: Absolutely, it should be continued and if anything increased….