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Interview with Cuban Five attorney Richard Klugh

  • The petition to the Supreme Court is due Jan. 30, 2009.
  • Thomas Goldstein, "one of the most active and renowned U.S. Supreme Court practitioners, has agreed to participate in what we believe is a very meritorious and compelling case."
  • "It is very helpful to us to have amicus support at this time."

Lea la versión en español aqui

Dec. 21, 2008
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The following interview with Richard Klugh is an important update for all supporters of the Cuban Five. It includes the latest information on the upcoming Defense petition that will be filed before the U.S. Supreme Court, as well as an important appeal to law associations and other interested parties to file amicus briefs.

Richard Klugh, former deputy chief of appeals in the Miami office of the federal public defenders, has been on the Cuban Five defense teamsince their 1998 arrest. Gloria La Riva of the National Committee to Free the Cuban Five conducted the interview.

Richard Klugh

Q: Can you please review the June 4th decision this year by the three-judge panel of the 11th Circuit Court of Appeals, in the appeal of the Cuban Five?

A: The Court decided by a 2-1 decision to affirm all of the convictions in the case. The most significant conviction at issue is that of Gerardo Hernández for complicity in the shoot-down of the Brothers to the Rescue planes. In that conviction, the Court was very strongly divided. There were three different opinions by the three different judges on that question. One of the judges [Circuit Judge Phyllis Kravitch] thought the evidence was completely and totally lacking, completely absent any evidence of a conspiracy by Gerardo Hernández to take that action.

The second opinion [by Circuit Judge Stanley Birch] concluded that the evidence was very limited, but given the deferential standard under which the Court reviews convictions, the judge said he had no alternative but to affirm the conviction.

And the third opinion [by Circuit Judge William Pryor] found that under the government’s interpretation of what Gerardo Hernández could have believed about the risk of a shoot-down if Brothers to the Rescue continued to violate Cuban national sovereignty, the low threshold for finding sufficient evidence under conspiracy law was met.

The remaining convictions were also affirmed, again, based on this standard of review that provides that any view of the evidence that favors the Government is  enough for the Court to find sufficient evidence of conspiracy in this context. That is why the Court held that even though there was no evidence of any espionage in the years of the Five being here, the Court could still affirm a conviction for conspiracy to commit espionage.

The Court also held that it could not re-consider any part of the decision of the en banc Court. The Court concluded that it could not review the significant and continuing prosecutorial misconduct that the defendants had raised en banc.

Beyond that, the Court also held that the discovery limitations that were imposed—which prevented the defendants from learning so much of what they needed in order to prepare for trial—were permitted by a Federal statute. We do not believe that the Federal statute permits such limitations.

One other additional finding of note is that the Court held that even though the Government may have intentionally stricken members of the jury based on race, nevertheless under its precedent, the Court could not review such a discriminatory action by the Government as long as the Government allowed some members of the discriminated-against race to sit on the jury. We raised a strong objection to that part of the Court’s opinion.

Regarding the sentencing, the Court reversed the sentences of three of the Five. It affirmed the sentence of Gerardo Hernández and affirmed the sentence of René González. The Court decided that the district court did not have any restrictions in imposing sentence on René and thus could not reverse the sentence, even though the judge gave him the maximum.

The Appeals Court reversed the life sentences of Ramón Labañino and Antonio Guerrero for conspiracy to commit espionage because the Trial Court applied an unduly severe guideline, failing to recognize that there was no damage to national security. No top secret material was obtained. Finally the Appeals Court held that the Trial Court erred in sentencing Fernando González by attributing to him a major role when there was no evidence of that.

Those three defendants have been remanded for re-sentencing. The other two, Gerardo Hernández and René González, have not.

Q: What will the next step in the appeals process be?

A: The case is now scheduled to go before the U.S. Supreme Court. The Supreme Court has granted our motion to extend the time to file the petition for writ of certiorari. It is now due on January 30, 2009. The Government will have two or three months to respond. Then we will have a short period of time to reply. And the Court could decide by May 2009, whether to hear the case or any part of it.

We are very happy to have the assistance of attorney Thomas Goldstein of the Akin Gump law firm, who is one of the most active and renowned Supreme Court practitioners. He has agreed to participate in what we believe is a very meritorious and compelling case. He argued a case this week in front of the United States Supreme Court and another case in November. He is scheduled for additional Supreme Court cases this term.

Q: What are the main issues that the defense will raise in the appeal?

A:      All of the convictions should be overturned based on the failure to grant a change of venue, prosecutorial misconduct, and improper and discriminatory selection of the jury. We will also argue that Gerardo Hernández’s conviction for conspiracy to commit murder should have been overturned, and his life sentence for espionage conspiracy should have been remanded.

Venue is one of the most fundamental issues that can exist under American law or really under any system of law. No matter how a system is devised, if you have a predisposed judge or jury, nothing else matters. If you have a judge or jury who is likely to be influenced by local passions and pressures, what you have is a mob rule and you don’t have justice in any sense.

We feel that issue is so fundamental to the fair operation of the judicial system, that it will be treated with interest by the Court. We feel the same about the remaining issues, the jury selection issue, the conviction of Gerardo Hernández for something he clearly had nothing to do with, as well as the failure to reconsider his life sentence.

Q:  Regarding the wrongful murder conspiracy conviction against Gerardo, I remember the three oral argument hearings that we attended, first in Miami, and then the second and third hearings in Atlanta. In the three hearings, Stanley Birch, the presiding judge of the panel, as well as judge Phyllis Kravitch, made remarks challenging the prosecution’s claim of conspiracy by Gerardo. Yet, in the latest Court decision on June 4, Birch voted with Judge William Pryor to convict, making the vote 2 to 1. What happened?

A: In the initial three-judge panel we felt that all of the judges recognized the insufficiency of the evidence. In the oral argument before the new panel, we again felt that the majority recognized that it just did not make sense to blame Gerardo for the shoot-down. Ultimately, even though the panel majority might well believe that Gerardo is innocent of the offense, the majority was convinced that under prior interpretations of federal law, the Eleventh Circuit’s standard for affirming convictions sets such a low bar for the government in conspiracy prosecutions that they could not overturn the conviction.

We plan to contest that holding in the Supreme Court. The panel majority was also convinced that a theory the prosecutors had been barred from using at trial could nevertheless be considered in the appeal as a way to affirm the conviction. We believe that also is a fundamental error, in effect changing the rules in the middle of the process, and not in accord with what we believe the law requires.

Q: And what was that theory that the prosecution had used?

A: The prosecution theory under which the conviction was affirmed was that Gerardo could be deemed guilty of conspiracy to commit a crime in American jurisdiction even if all he did was to support the right of a country to defend itself against a hostile and illegal violation of its territorial sovereignty. That theory, which the District Court had rejected entirely as beyond the scope of the criminal law, was revived in the most recent panel decision. This placed Gerardo in a procedurally disadvantaged position. We believe that that theory should not even have been available to the Government. But the two-member majority in June held otherwise.

Q: You speak about the standard of review by the 11th Circuit Court.

A:      In the context of a conspiracy-to-commit-murder charge, we believe the standard of proof is much higher than that applied on appeal. This is particularly true when we are dealing with a governmental action—the shoot-down of the Brothers to the Rescue planes—that has had principled legal and sovereign justification in historical terms and where Gerardo had no basis for prior knowledge of what his superior officers or superior governmental officials would ultimately do.

To impose liability on Gerardo violates due process in many ways, and along with the prejudicial venue and related issues that we’ve talked about, warrants reversal.

In the concurring opinion of one member of the panel majority, the judge re-iterated for the third time that he believes the jury was tainted by the venue and misconduct. The deciding judge’s view was, in effect, ‘We should not rely on this [Miami] jury but if I am forced to rely on the jury by 11th Circuit precedent, then I can’t overturn the decision under the standards required.’

It is our hope that if the case is accepted in the Supreme Court, that this question can be resolved favorably to Gerardo.

Q: There are a number of requests from U.S. and international law and human rights organizations concerned about the case of the Cuban Five, who would like to file amicus curiae briefs supporting the case. What do you recommend?

A: It’s very, very helpful to us to have amicus support at this critical time. There are so many fundamental issues in this case that are relevant to every person in this country and to people throughout the world. The legal and factual support that amicus briefs can provide is something that we welcome and seek.

Q: What is the deadline for the amicus? What legal documents can attorneys and organizations review for their preparation of the amicus?

A: One of the primary resources is the appellate documents. That is probably the simplest way to review the case. Those appellate briefs and Court decisions are on your Free the Five website. Regarding the deadline, we would welcome amicus support prior to the filing of the certiorari petition or within seven days of it.

Q: When will the re-sentencing in Miami take place for Ramón Labañino, Antonio Guerrero and Fernando González? Will it happen after the Supreme Court appeal?

A: That hasn’t been decided yet. It is possible that it will happen before the Supreme Court has decided, but most likely it will be after. It depends on how the proceedings go, both in the Supreme Court and otherwise.

Q: It is now over 10 years and the wheels of justice are grinding extremely slow. So much of the delay is based on the legal technicality that you have described.

A: It is certainly tough. It is tough to wait, particularly if we are found to be correct, which we believe we are. It is a long time.

Q: What can happen legally if the Supreme Court were to turn down the writ of certiorari?

A: The defendants would still have legal options, including a procedure for moving to vacate the convictions and sentences in the district court. And that would have to take place within a year after the Supreme Court decides. It would require a formalized type of a habeas corpus proceeding, called a motion to vacate judgment/conviction. It has a time limit of one year. Time limits have been imposed on almost all habeas and post-conviction litigation based on a federal law passed in 1996. We would have a one-year deadline after the conclusion of the Supreme Court process, to file an initial habeascorpus petition. There are subsequent habeas rights but the initial ones have to be filed within a year.

Q: Does that mean that all and any future issues, any remaining issues of appeal, have to be presented then?

A: That is correct.

Q: How much does public awareness of the case and support for the Cuban Five help in gaining their freedom?

A: The support has been unwavering for the Five but it has also been growing. Anyone who takes the time to look at the improprieties of prosecutions that are obviously politically related can clearly see some aspects of this case simply cry out for revision. I think it is a case that needs to be addressed by the Supreme Court. That has been my feeling personally since the beginning. I think the Supreme Court could set a set an important standard with respect to justice in the United States. This could help the U.S. image in the world as well as improve bilateral relations.

Q: You have visited Fernando González lately. Can you tell us about him?

A: I saw Fernando in July. He is very attentive to the issues and progress of the case, as well as the support actions for the Five. Fernando is a very strong and calm personality. He is extremely courteous and respectful, not only of the lawyers but of the prosecutors and the court system. He is certainly grateful for all the support he receives and he tries to return correspondence to the greatest extent possible. A gentleman is how I would describe him in one word.

Q: What message would you give to the people around the world who are involved in the political support for the Cuban Five?

A: My message would be one of gratitude. These legal situations take a great toll on the defendants, the attorneys, and their families. To know that there are people who care about justice and fairness is fundamental and has been a great sustaining aspect of this case. Even though we have not won a substantial part of the appeal yet, each of the Five has been sustained by the support.

We in the defense team have tried to live up to everything we have said about the case and I believe that we have. The case is what it was from the beginning. It was prosecuted in a local environment in which it was least likely to be viewed dispassionately, least likely to be resolved based just on what transpired in court. Extremely long sentences were imposed. Fundamental questions of law and justice are involved and the case merits attention and concern.

Q: Thank you so much, Richard. For everybody who is dedicated to fighting for the Five until they are all home, for the people who support Cuba’s right to be free, we thank you and all the attorneys who are working tirelessly in this effort.


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