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Transcript of Press Conference, Aug. 20, 2012, 11 AM, on New Affidavit for Discovery to be Filed by Martin Garbus for Cuban Five Defense Team

Aug. 23, 2012
Transcription by Brad Jones

GLORIA LA RIVA: Good morning to our listening audience. My name is Gloria La Riva. I'm coordinator of the National Committee to Free the Cuban Five.

Today's press conference will go right away to Mr. Garbus and Mr. Norris. It is about the affidavit which will be filed today. I'd like first to say that it was on September 8th, 2006 when the Miami Herald published an article by Oscar Corral which stated that at least 10 journalists were on the U.S. payroll working for Radio and TV Martí.

This was unknown before, and since then, that has provided the basis for the appeals of the Cuban Five, centered mainly on that issue, the fact that many of the journalists in Miami were being paid by the government, unknown to the defense.

We have uncovered millions of dollars worth of payments to these journalists and there is much more to be discovered. I would like to turn over the conference now to Mr. Martin Garbus, who has joined the legal team of the Cuban Five, in April of this year. Mr. Garbus?

MARTIN GARBUS: I'm here with Bill Norris, who has been with the case ever since the beginning. He has a very long perspective on what has been a very, very long struggle.

The documents that we will be submitting go into great detail about the way the American government — through Radio Martí — attempted to wrongfully influence the trial. Following up on what the Miami Herald investigations and the New York Times investigations uncovered, we uncovered through a variety of Freedom of Information Acts and our own investigation, information to show that over the 194-day period of the trial and over the nearly 2,000 days of the five-year period from 1996 to 2001, the jurors and the community in which they live were bombarded with documents that were paid for. The authors were paid by the American government some monies, and these documents — some appearing in the Miami Herald, El Nuevo Herald, and in other places but also on radio and on TV in Miami, the talk, the speeches, the images, the words, had American government money involved in it.

And it was part of a plan to influence the community and influence the jury to return a judgment of conviction against the defendants. The extent of it is being put together for the first time in this document.

As I said, it's the result of exhaustive research. The government claims amongst other things that these issues should have been raised before, but it's absolutely clear that they couldn't have been raised before because nobody knew about them.

At least the courts did not know about them, the defense counsel did not and could not know about it and the result was that even though the judge tried to insulate the jury from outside influences, neither she nor anyone else other than the government had any idea of the massive amounts of energy, money and time that was being used to influence this jury.

In the United States, the government is not allowed to pay money for what is called domestic propaganda. If the government wants to take a political position it's absolutely entitled to do it. What they can't do is hire somebody, not tell the American listening audience who that person is being paid by, and not tell the American listening audience that the person who is articulating a position is articulating a government position.

That violates the law and there is a whole series of cases that deal with that particular violation. Now the next question becomes, the government says “well, you can't prove that the jury is influenced by all this media.” And the answer is that it is the government which has been guilty of wrongdoing, that has the obligation to prove that the jury has not been influenced, which is an impossible task.

It seems to me that this is a case, now that we have all the information together, that should be resolved quickly. Gerardo Hernandez at this point has spent

13 years and 11 months in prison; September will be 14 years. The other defendants have also spent extraordinary amounts of time in prison, sometimes in solitary, sometimes not in solitary. And we believe that given all the information that we will present to the court, the convictions should be reversed. I have practiced law for a good many years; I have never seen a case where you have so much government influence attempting to get a jury to reach a verdict at the same time that the government is prosecuting a case.

Other government agencies, in this case particularly Radio Martí, was working to help the government get that conviction. What the document does, to the extent that we know about it, it gets into the monies involved. We have vouchers, we have budgets from Radio Martí. We understand about Radio Martí moving basically into Miami in 1996 which is when the shoot-down occurs, and the hiring of different staff personnel, those staff personnel having a commitment to a conviction. And what the document does, it goes into the backgrounds of some of the people that were hired by Radio Martí.

The document talks about the governments' actions through Radio Martí, and the bungling basically, in the hiring of people and allowing them to write propaganda lies at the hands of the government. The whole idea that the trial was going on at the same time is unprecedented: There's never been a case in American history where the American government is actually putting monies into an environment in order to influence a jury.

PETER ROMAN, CITY UNIVERSITY: Hi. How is this different from the motion for oral arguments that you presented in June and have you received any answer on that motion for oral arguments? And the second question is: you mentioned Radio Martí, but then previously you mentioned also the Miami Herald. Are you concentrating on Radio Martí or did these same journalists write for the Miami Herald and El Nuevo Herald?

MARTIN GARBUS: With respect to your first question about this document. Yes, we filed a motion previously and then the government responded. And this is in response to that. This ought to be presumably the last document to be filed on the habeas corpus application, at least at this moment, the last documents that we will file. With respect to whom we're focusing on, we're focusing on government monies, wherever they went. So, government monies went to the Miami Herald, it went to El Nuevo Herald, it went to Radio Martí … and it also presumably went to other networks, other reporters.

The Miami Herald investigation, so far as I understand it, they did a good deal of research. The entire investigation by Oscar Corral and the investigative team of journalists that worked with him was not printed, it was edited down, and we don't know all yet, we don't yet know all the details of his investigation, so he may also have identified other people.

PETER ROMAN: Who are you referring to?

MARTIN GARBUS: The journalist who wrote the Miami Herald article.

PETER ROMAN: OK, good, thank you. What's his name?

MARTIN GARBUS: Oscar Corral. He conducted an investigation and he had a team of investigative journalists.

WALTER LIPPMANN, CUBA NEWS: Hi. I read the entire document and it's a terrific amount of research. I noticed, I follow these matters closely and I wanted to know: What has happened to Oscar Corral? Because after he wrote that article he vanished from the Miami Herald. Do you know what's become of him?

MARTIN GARBUS: I don't know what's become of him, we tried to find him and we were not successful, so I really don't know. I know that there was an article in the Sun-Sentinel a year later, looking at his life. It was an interview with him and in the interview, he discusses what happened to him after the Miami Herald's article and he talks about fearing for his family's safety. He talks about having to move out and go to a separate place from his home to do the investigation, and then he talks about the accusations that were made against him. He describes an awful, awful experience.

WALTER LIPPMANN: I remember that, thank you.

MARTIN GARBUS: Yeah. And I have not seen anything since then.

WALTER LIPPMANN: Yeah, he seems to have been removed from journalism as a result of what he wrote there.

MARTIN GARBUS: Well, I don't know if he was removed or if he voluntarily left because I think he felt that, he may have felt, as I look at it, that he was not as supported as he might have been.

WALDO, PRENSA LATINA: Mr. Garbus, thank you for this opportunity. I want to know please, the fruit of these affidavits and what do you expect from it, considering that the government rejected or dismissed the previous case.

MARTIN GARBUS: I think that these documents we've filed have a great deal more information and a great deal more specificity about who the paid journalists were, what they wrote, and why what they wrote was improper. It goes into both the facts far deeper, because we had more time to develop it. And it goes into the law much more deeply, again because we had time to develop it. So that I think it takes the entire argument, I wouldn't say just a different step away, it just makes it totally different.

In other words, the claim is, it's the volume of the material, the volume of the monies, the volume of the material and the volume of the people involved. There have not been any documents filed thus far in one place that tries to pull as much of this together as we can. I'm sure that if we had more time, we would be able to pull in more names. There comes a time when an investigation has to stop and you have to go before the court.

The court could do a number of things: The court could order a hearing based on the information that we're seeking. Or the court could decide — on the basis of the papers it has before it — either that the convictions should be vacated or that the motion to vacate the convictions should be denied. Those are basically the three options. It's my belief, and I think the belief of some others, that there's enough information here if not to require a vacating or a reversal of the conviction, then certainly at least a further investigation.

What we say very candidly, what we will say very candidly in all these documents is that we recognize that we don't have all the information. Over the years since 2006, since these stories first came out in the Miami Herald, in the New York Times, we recognize that there's a great deal more information and there are various places that the government has blocked not only us, but has blocked scholars, Congressmen, from finding out where all these Radio Martí funds went to.

Now, the Government Accountability Office each year, not each year but many years, issues a report about Radio Martí, and the reports are fairly extensive. If you go through those reports you will not find one mention of any funds that are going to private journalists who worked for places like the Miami Herald or CBS-TV. It's an extraordinary job to get this information that is deliberately buried, so that it avoids not just this case, but congressional and scholarly inquiry. Bill Norris is back and maybe he can say something.

BILL NORRIS: … I did want to add to what Mr. Garbus said, the point which I view as significant, and that is that the defense team had absolutely no knowledge that this was happening at all, and certainly no knowledge of the extensive, pervasive intrusion of the journalists being paid by Radio Martí in the Miami media environment.

And, as a consequence of not having that knowledge, we were not able to do anything that would have protected our clients from this, if there is anything that could have been done. And we were never able to raise the issue to the surface where the court could consider it. Of course, while the individual prosecutors may or may not have had any knowledge of this, certainly the government as an entity did, because it was the government who was paying these journalists.

That information was never brought to the court's attention, the court did everything that it could under the circumstances to insulate the jury that we had from this kind of outside influence, but of course the court couldn't do anything to protect against an influence that it had no knowledge of. That, I think, is one of the critical significances of what Mr. Garbus has prepared and what he will be filing is to bring all of that to the court's attention.

ED NEWMAN, RADIO HAVANA CUBA: We know that the judge in Miami, Judge Joan Lenard, will be seeing this appeal. What would happen if, is there another process if she refuses to consider this 82-page document for discovery? Do you go to the appeals process, to a court of appeals, or ultimately to the U.S. Supreme Court, what happens if it's not heard in Miami?

BILL NORRIS: Yes, the question is a straightforward question, but it goes into a broader process. This matter is before the court on what's called "collateral review," or a petition for writ of habeas corpus, and the papers that Mr. Garbus is filing are part of the submission to the court. So the court has to, as an initial matter, decide what to consider in making her decision.

The question of what she chooses to consider or not consider is not initially appealable. When she makes her decision, then the matter can be appealed to the 11th Circuit Court of Appeals in Atlanta, if she refuses to consider the matters that Mr. Garbus has brought forward or refuses to allow additional discovery. But you know the threshold question is what does she consider, and that's the stage that we're at now.

TRACY EATON, FREELANCE JOURNALIST: Hi, I'm wondering if you have any evidence that there was collusion between such agencies as Radio Martí and the prosecution team? In other words, can you connect more closely the prosecution with the media agencies responsible for the domestic propaganda issue described here? Thank you.

MARTIN GARBUS: I think there's no direct proof that we know of at the moment between the people who worked as journalists and the prosecution team. That would be the subject of discovery. And we have asked in our documents, for an opportunity to see if there was that kind of contact that existed between the government, the Radio Martí and the prosecution team if any. There was a new set of directives issued by Attorney General Eric Holder, Jr. in April 2010, where he talks about the responsibility of government prosecutors to disclose information.

Those guidelines were issued after the government was castigated for some of its failed prosecutions of Senator Ted Stevens in Alaska and others, and it talks to the need for the government to be forthcoming, forthcoming when it talks about inter-agency relationships, let's assume between Radio Martí and the prosecution, and it also requires the government to talk about interrelationships between it and state and local agencies, due to the fact that state and local agencies and the federal government have collaborated in the past on prosecutions and on events.

The question is what kind of cooperation, if any, was here? It may be that the Martí people spoke to state and local agencies and then transferred that information in one form or another to the government; it may be that the federal government, the prosecutor, got information that it did not even know came from Radio Martí and the other paid journalists. So the question you just asked is a good question, it's a question that we don't have all the answers to; it's a question that we say we're entitled to have answers to.

TOYA MILENO, LIBERATION NEWS: Thank you. My question is for Mr. Norris. You are representing Ramón Labañino. How will his case and that of the rest of the Cuban Five being affected by the appeals document of Gerardo Hernández? Thank you.

BILL NORRIS: That is correct, I represent Ramón Labañino. He is serving a sentence of 30 years. As Mr. Garbus mentioned in his opening remarks, he has now served 14 of that 30 years, which leaves 16 years left on his sentence. And, he has raised this issue in his initial papers, and the issue is tremendously significant to the environment in which he was convicted.

The general attitude that was sponsored by the government operation of Radio Martí generally, and the payments specifically to journalists who then repeated their comments both in the print media and the radio media and the television media, created an atmosphere that was absolutely inconsistent with our concept of ordered justice and fair presentation of proof that leads to a conviction.

In other words, the entire public opinion and atmosphere was polluted and Mr. Labañino did not receive a fair trial. So, he very much is interested, very much has reason to look forward to a full airing of these issues.

WALTER LIPPMANN, CUBA NEWS: My question is: what is the past, to have something, a basis to compare? What is the previous experience in raising questions of the storm of media prejudice on the outcome of cases in the legal system? It's an extraordinary situation. Thank you.

MARTIN GARBUS: Well I think that Bill Norris or I could go into a long disposition about that, but I think the significant thing is there is no body of case law that deals with the government affecting the media this way in a case that it is prosecuting. There are many, many cases that deal with publicity in cases and how publicity can jeopardize a grand jury. You have motions for a change of venue, you have a whole variety of things. But this is totally different than any case in recorded American legal history and it's different not because Bill or I say it's different, but it's different because you simply have not had a case where you have seen so much government involvement in trying to influence a jury. It is as we lawyers say "sui generis": it stands by itself. So you don't have to get into long and lengthy legal briefs about “what has the Supreme Court done in this publicity case or that change of venue case?”

This is totally different, it is not a change of venue situation, this is a situation basically dealing with the government's wrongful attempt to try and influence a jury. Now, the government has every right, as I've said before, to have a propaganda machine directed overseas, the Voice of America or whatever. There is no right of the government to take that propaganda machine and turn it on the citizens of Miami while a trial is going on.

The propaganda machine was allegedly built for reasons of foreign policy, for national security. The integrity of the domestic American trial process cannot be destroyed by any kind of propaganda machine. And there are no cases that deal with it because it is so clear and un-contradicted and unarguable. Once you accept the facts of this case, what happens is, basically the argument that we're making, is fact-based.

Once you accept the fact that the number of journalists, the amount of money, the amount of time that was spent bombarding the jury with a certain version of the facts of the case and a certain version of Cuban-American relationships and the history of the Cold War; once you look at all of those different disparate elements weaved into documents that are coming out as the trial is going on, that are coming out just as the jury is getting the trial — then there has been nothing like that before. And the timing of the articles that came out, when they came out, let's say during the trial period, is remarkable.

The day the jury gets the case there's an article by someone who's a paid journalist who says that drugs were fed to Castro's agents, including the defendants in this case. Now, the sourcing to the article is fundamentally non-existent, it's based on pseudonyms, it refers to unnamed people, and it comes out the day the jury gets the case. So a question is: When was the article written, why was it written, what is the basis for the article, and is it a clear attempt to influence the jury? Now you can do that with hundreds and hundreds of articles. We have done it with some of them, and that's what we submitted to the court. That's the end of my response.

GLORIA LA RIVA: I'd like to make a comment about this. My name is Gloria La Riva. And following with what Mr. Garbus said, the affidavit includes details of many of these articles, and new discoveries since what was presented months ago, in the recent affidavit and motions by the other attorneys and the other of the Cuban Five.

And there's one example that's truly astounding, which is new and that's why we hope for the wide distribution in the media and public forums and protests around the world even beyond the courtroom, to expose the government's operation in Miami.

And one, for example, which is in the affidavit, detailed, is that of Luis Aguilar León who was not known by us, or the court, or the defense, to have been on the Radio Martí payroll for many years, from the very beginning, 1985. Luis Aguilar León was the editor of the editorial page of El Nuevo Herald at the same time that he was receiving government money.

And yet the payments to him are not evident in any of the documents that the government has given to us, which is really limited, or in the federal data base which is available which shows who received payments from the government in general. And yet he was a long-time employee of Radio Martí.

Now what was the deal in Miami? In Miami, as the editorial page editor of El Nuevo Herald. One month before the shoot-down of Brothers To The Rescue, in January, there is an article that appears, and this is in the documents that you have received today, an article appears that announces that the government is forming a panel of four prominent journalists to examine the “integrity” of Radio Martí given the complaints about bias.

And this was January, 1996. That panel was composed of Ben Bradlee, the famed editor of the Washington Post, the director of the School of Journalism in Columbia University, the ex-director of NBC news national, and the fourth person was Luis Aguilar Leon. And he is described in the media as the editorial page editor of El Nuevo Herald. But it doesn't say to the public that he also was working for Radio Martí, at the time he's supposed to examine its integrity.

Then one month later, three days after the shoot-down of the Brothers to the Rescue planes, which is the charge, the false charge that Gerardo Hernandez is serving life for today. That editorial that appears in Miami said, I'm paraphrasing, but the document is in the affidavit, in which this man says "I wish I had three armed jets to menace the people of Cuba and I wish that I could shoot the people who are on Varadero beach as they flee across the sands." That is an open call for violence, for terrorism. And this is the man who was being portrayed as an independent journalist. He was on the payroll since 1985.

This is why the defense, why Mr. Garbus and the attorneys are demanding discovery and the full exposure of the government's operation in Miami. For the National Committee to Free the Cuban Five and the hundreds of organizations around the world who have been working arduously for the freedom of the Five in the political and public realms, in conjunction with the legal struggle, we see the affidavits and the whole issue of the paid journalists in Miami as critical, in exposing to the world, to human rights organizations and especially to the people of the United States, this absolute abuse and violation of the rights of five men who were fighting terrorism and trying to save the lives of people.

MARTIN GARBUS: Thank you, I think that you have finished it wonderfully. Thank you very much.


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