This interview with Leonard Weinglass, appeals attorney for Antonio Guerrero, was conducted on Aug. 1 by Gloria La Riva, coordinator of the National Committee to Free the Cuban Five and member of the Party for Socialism and Liberation. For more information on the case of the Cuban Five visit freethefive.org.
The oral argument in the Cuban Five’s case will take place before the 11th Circuit Court of Appeals in Atlanta on Aug. 20. What issues will the defense present?
I will highlight the three most important issues most likely to 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. Our initial focus is to remove Count 3.
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 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 to destroy the United States. That was mentioned 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 and Ramón Labañino].
Each of the three 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 [espionage] case in the history of the United States where there were no classified documents involved.
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 each received life.
But in the case of the Five, there were no such documents. We are arguing that this sentence 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 trying to prevent the terror that emanates from the United States directed against Cuba.
If we prevail on those issues, that will go a long way toward bringing all five men back home to their families in Cuba.
You mentioned that the prosecution did not present evidence to prove their charge of murder conspiracy against Gerardo Hernández. What is required for a conviction that the prosecution failed to prove?
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.
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.
Didn’t the prosecution also claim that Hernández knew the planes would be shot down in international waters? Yet, Hernández was not part of any plan for the shoot-down, although it was a justified and legal act by Cuba.
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.
[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 Federal Aviation Administration all notified Basulto that Cuba was prepared to take direct action to stop further unauthorized incursions into Cuban airspace.—Ed.]
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.
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—to stop that terrorism.
Since their convictions, there have been discoveries, revelations of continued plots against the Cuban people by Miami-based terrorists. In May, 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?
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.
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. We claim that that was [an] 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.
Look at the revelations involving Posada Carriles and Orlando Bosch and others, who 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.
You have a long history of defending political activists since the 1960s. How do you see the importance of the political support in this case?
This case is the first case in our memory that will be argued a third time on appeal. 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.
