11th Circuit court denies Cuban Five a new trial

• Leonard Weinglass, appeals attorney for Antonio Guerrero
  
  
• Richard Klugh, appeals attorney for Fernando González
  
  
• Bruce Nestor, immediate past president, National Lawyers Guild, attorney in Minneapolis
  
  
• Gloria La Riva, coordinator, National Committee to Free the Cuban Five
  
  
• Peter Erlinder, NLG member and Minneapolis attorney who authored three Amicus briefs for the Cuban Five’s appeals

Gloria La Riva: Good afternoon. As you know, yesterday the 12 judge panel issued its decision in the case of the Cuban Five appeals. Today we are holding an emergency press conference so that two of the attorneys can comments on the case.

We’d like to hear from Leonard Weinglass, appeals attorney for Antonio Guerrero, who was sentenced to life, and is in Florence penitentiary in Colorado.

Leonard Weinglass: Yesterday afternoon we received word from the 11th Circuit that the court had decided the case of the U.S. v. Campa, the case of the Cuban Five. The opinion is a 120-page opinion with a 68-page majority opinion by Judge Wilson and a 52-page dissent by Judge Birch. The decision affirms the trial court’s finding that venue should not have been changed in Miami and affirms the trial court’s finding that a new trial should not be ordered because of newly-discovered evidence. Where this leaves the case now is that the nine issues which are still pending before a three-judge panel before the court will now have to be addressed and decided.

This decision is not the end of the case, far from it. There are nine additional issues which are still pending in the three-judge panel before the court. We can, if we decide to, take this case to the U.S. Supreme Court by petitioning the court, by writ of certiorari, to hear the case.

Whether or not we take that additional step will be decided in the week ahead of us, when the six lawyers who are working on the case, when we digest the 120-page opinion and make a decision whether or not to go to the U.S. Supreme Court. If we decide to go to the Supreme Court, we will have 90 days within which to perfect our appeal, that is, the request for the appeal to the court. The government may or may not respond, and we will have to wait for a decision of the court. Everything will be stayed pending that decision.

If we decide not to go to the Supreme Court, then the matter is back before the three-judge panel, and we will await word from that panel as to how we should proceed on addressing those nine issues.

So, there is still a long way to go on this case. In addressing the opinion of the court, we were of course very

And it was that atmosphere which interfered with and denied the defendants a fair trial. The dissent in this case repeated what was written by Judge Birch in his original 90-page opinion a year ago, on Aug. 9: that what this case record represents is a “perfect storm” of prejudice. The dissent yesterday once again used the phrase that these defendants were faced with a perfect storm of prejudice, and it said this case never should have proceeded in the Miami venue. That, of course, that position of the two judges in dissent, is the position we agree with.

The majority whitewashed the question of the coercive atmosphere of Miami. You can read the 68 pages of their opinion and you will find no substantial reference to the pre-existing community prejudice in Miami against anyone associated with the government of Cuba. This curious–what the dissent calls, “omission of fact”–is something that we are very concerned about, and something which we might have to bring to the attention of the U.S. Supreme Court.

That is our position on the opinion and the question of where we go from here is something that will be decided in the week ahead.

Richard Klugh: We are of course disappointed in the decision and hope that it is not the last word on the issues of fundamental importance to constitutional justice. We note the invitation by the dissenting judges to seek further review and we certainly will study that. In every appeal there is a question of what the court will review and through what standard the court will review a case.

This case seems to have been decided, at this point, on a deference to local perspective. Our view from the beginning has been that this is one of the primary reasons, why other than a local perspective should be the primary and independent reviewer of the prejudice, or potential prejudice, in the community. This point was made extensively by the defense, we hope to pursue that.

Bruce Nestor: The National Lawyers Guild is an organization of over 5,000 attorneys, law professors and law students, since our establishment in 1937 we has worked to defend many unpopular defendants and cases.

We filed an amicus brief in support of all five of the defendants in this case, precisely on the issue of venue because it is such an important issue. One of the things I want to emphasize is that this is not the end of the case. There are many very significant legal issues to be resolved, and there is also the ability to seek further review of this issue regarding the coercion and threats that exist in Miami, that denied a fair trial.

We are going to continue to organize support for the Cuban Five, in the legal community. In particular this fall we have a national-speaking tour in law schools, to build support and point out what is wrong with this decision. This decision not only denies justice to the Five defendants in this case, but it also has very profound implications for any person seeking a fair trial, particularly a fair trial in the current political climate in this country.

The decision really gives tremendous power to the government to bring politically motivated prosecutions and to then select a favorable location where community prejudice will favor the government and allow the government to obtain a conviction where the evidence did not support a conviction.

That is precisely what we believe happened in this case and the decision of the en banc panel essentially deferring to the judgment of the trial court, really eliminates the potential for effective review of an individual trial judge and allows the judge in the location where that same judge may in fact be subject to the community prejudice and attitudes or at least to the pressure and the coercion that existed in this case. It doesn’t allow for effective review of that decision by an independent panel at the Circuit Court level.

I will emphasize that as an organization, as law professors, lawyers and law students we will continue to work within the legal community, to talk about this decision, about the justice it denies to the individual defendants, but also the implications it has for the broader system of justice in this country.

Gloria La Riva: The National Committee to Free the Cuban Five is one of over 250 organizations around the world and a good number of groups in the United States, which has been struggling for the freedom of the Cuban Five since their convictions in June 2001. We announced two days ago a national march in Washington from the Justice Department to the White House and we believe that the importance of the march and forum is more important than ever. In the march we will present tens of thousands of petitions calling on George Bush free the Five immediately.

They should never have been arrested. They were fighting terrorism, which plots of terrorism have been revealed since

A forum in GWU featuring Leonard Weinglass, and other speakers will address the 50 years of US-supported terrorism, and show why it is that the mission of the Cuban Five was a necessity, to protect the lives of people from Cuba and the U.S. and anyone who was traveling there, or simply boarding a plane who could have been an innocent victim of these terrorists.

Peter Erlinder: Athough the finding by three judges that the trial was conducted in a “perfect storm” of bias has been formally reversed by a majority of the Court of Appeals, the moral victory has already been won. The Court of Appeals cannot change the fact that the “perfect storm” judicial opinion is now part of history and world now knows that the Cuban Five were convicted under conditions that even U.S. federal judges recognize as being fundamentally unfair. The brief of the NLG informed the court that reversing the original 93-page opinion [of Aug. 9, 2005] would only deepen the appearance of unfairness before the world. The struggle for the freedom of the Cuban Five is just beginning.

Case Woods, Miami Herald: You say there are nine issues remaining that are still to be resolved. Can you talk about strategy on what arguments you will use to exonerate them as the case moves forward?

Leonard Weinglass: We have already made those arguments to the panel of the 9th circuit but those arguments include prosecutorial misconduct regarding the prosecutor’s arguments to the jury, which was objected to, strenuously. Those objections were sustained and resulted in a comment by the judge to disregard those objections. But those comments were so prejudicial and so outside the bounds of propriety that we believe the case should be reversed on the final arguments alone.

There are a number of other issues, eight others dealing with various problems that occurred during the trial and pre-trial, the use of a process called CIPA by the government which is a highly controversial process. Another process is called FISA, the Foreign Intelligence Surveillance Court, which has recently been in the news, that was used in this case. There are other things that came up during the trial, but finally we also argue that the evidence was insufficient as a matter of law, both as to the conspiracy to commit espionage and the conspiracy to commit murder.

The full panoply of appeals is still before the panel of the 11th Circuit, and we intend to press all of them vigorously.

Carol Williams, Los Angeles Times: I want to know whether the 11th Circuit was aware of the new evidence that you have collected about plots against Cuba concocted in California and here in southern Florida, or has this information not been able to be presented yet to the judges who are deciding this appeal.

Leonard Weinglass: The California case and the Florida case, the Santiago Alvarez case, both involving the storing of arsenals which were allegedly to be used to violently and militarily overthrow the government of Cuba, were not presented to the 11th circuit court of appeals, but they are additional newly-discovered evidence which at some point might be put in play.

We also have the very sensational revelation of an individual named Llama, which some people mispronounced Lama, but this individual, a resident of Florida, still there, openly confessed to a very serious plot of a military nature against the Cuban government. That has not been presented to the 11th Circuit.

Jorge, Radio Havana Cuba: With all this evidence that has been raised recently, with Roberto Ferro, do you think that with this demonstration of the necessity to protect people n Cuba and the United States, will that somehow sustain the real reason why these men had to be there infiltrating these groups?

Richard Klugh: It is imperative, the dissenting judges pointed out that particularly when you are dealing with questions of potential prejudice, potential risk of hostility by the community, the question largely before the court was how much of what the community feels or may fear or may be concerned about, will the court consider and how much will the court restrict its review to, such as particular press articles, or particular documented events.

At issue with respect to the factual matters in the case: What was the actual situation in Miami that motivated the actions of the defendants? What were the defendants actually, as they repeatedly said, focusing their attention on, the illegal risks facing Cuba, that is, the terrorism of bombings, of matters that Cuba had been subjected to continuously. Today we have a major arrest and terrorism investigation, a multinational terrorism investigation. This sort of international, cross-border terrorism is clearly a real issue faced by Cuba. The difficulty that we have is that at this point, in bringing new evidence, it is difficult to convince the Court of Appeals to consider a lot of new evidence.

Some of this may ultimately have to be presented in another forum.