Lawyer: “Gerardo is being punished for something for which he is absolutely innocent”
by Bernie Dwyer
Aug. 29, 2011
Reprinted from CubaDebate
Interview with Richard Klugh by telephone to his office 23rd August 2011
Gerardo Hernandez, one of the Cuban Five submitted his request for a habeas corpus relief in March based on new evidence. He received the US reply on 25th April this year opposing his request. He has now submitted a reply with additional information.
Radio Havana Cuba spoke to Richard Klugh, a member of the defence team for the Five by telephone to his office in Miami 23rd August 2011 for an up-date on Gerardo’s legal situation:
Bernie Dwyer (BD): What is happening now with Gerardo’s habeas corpus petition?
Richard Klugh (RK): Where we stand right now is that the legal team for Gerardo has filed a comprehensive reply as well as additional memoranda and affidavits in response to the (US) government’s opposition to Gerardo’s petition for Habeas Corpus relief.
The response was filed just last week and we believe we have responded to all the arguments made by the government and we filed further an affidavit from Gerardo and an additional affidavit from his former attorney Paul McKenna which supports the fundamental allegations that we have made in the habeas corpus application. We really feel that we have made many strides towards proving everything we have said and proving Gerardo’s innocence in this matter.
As for Antonio, last week he also filed his reply to the government’s response in which he is also focusing, as did Gerardo, on the use of paid Radio Marti and TV Marti employees to publish articles prejudicial to the Five at trial here in Miami. And that is what his document is focused on with affidavits, as we did in Gerardo’s case, indicating how the evidence has gradually come out as to exactly the extent to which the United States tried to prejudice the Five during their trial by publishing articles that were intended to stir up anger and hostility towards Cuba and Cuban agents.
Both of these documents present compelling reasons for relief for all of the Five, particularly for Gerardo and the fact that his own attorney has supported the allegations that we have made is a tremendously important development in the case.
BD: Does the application for habeas corpus apply to Fernando, Rene’s and Ramon?
RK: The documents that have been filed for Gerardo and Antonio also apply to Rene. Ramon and Fernando have not yet had the opportunity to request habeas corpus relief. They will be filing their motions within a week or two and we will be raising some of the exact same grounds in support of their claim.
We feel that we have reached a point now where the evidence is overwhelming and establishes the actually hostile and intentionally hostile environment in which the trial was held and that the government’s failure to admit what they had done to poison the atmosphere against the Five is a fundamental violation of their rights. We also believe that the grounds that we allege, specifically in regard to Gerardo establishes his innocence and we believe that it establishes the unfairness of the convictions of all of the Five.
This has reached a point where there is a compelling level of evidence that cannot be ignored, it simply cannot be ignored. It’s very unusual when the attorney himself will come forward with an affidavit that sustains the very claims made as to his being hampered in his ability to fully and adequately defend Gerardo. But that has now happened in the case of Gerardo and we are very pleased and very grateful that the attorney has come forward and bravely set forth the very facts that we believe will show that the convictions were unjust.
BD: What are the issues in Gerardo’s Habeas Corpus that don’t apply to the other four?
RK: One of the principal factors in the case was the law that we were operating under. The (US) government has never tried to prosecute someone as they prosecuted Gerardo, not just for the conspiracy to commit espionage, which was a unique charge, where they had conceded that he had not even attempted to commit espionage or never planned to attempt to commit espionage, that nevertheless, that somehow they could sustain a conspiracy.
But apart from the charge which we believe was fundamentally defective, with regard to the claim of attributing to a conspiracy to commit murder is just an incredible charge. One of the problems with that accusation is that the government had never tried to prosecute somebody under that theory before. When the judge tried to restrict their ability to prosecute on a bad theory, the prosecutors admitted in an emergency filing in the court of appeals, that it would be impossible for them to prove Gerardo guilty under the law as found by the judge.
What happened then was a very unusual thing. Even though the judge had agreed to correctly instruct that the jury was limited to one theory under the law, the court of appeals held that the judge didn’t successfully instruct the jury of that limitation, that the jury was left to pursue other theories and so even though the defense attorney didn’t realize it, Gerardo was being convicted on theories that he didn’t even know were before the jury.
So the procedures created a situation where the lawyer really felt that he had not defended the case because he thought that the theory on which the case was sustainable was not even before the jury.
So that’s the origin of the realization that we had on our part that the lawyer was unable effectively to defend because he didn’t even have the opportunity to know even what the jury was considering as a theory. And it is truly a unique theory the government tries to rely on to attribute to Gerardo something for which he had no responsibility whatsoever.
But beyond that so much additional evidence has come forward with regard to Gerardo’s actual innocence and had a lawyer known how the court of appeals would limit his ability to defend the case, then clearly he would have presented more evidence of Gerardo’s innocence. He (Paul McKenna) readily acknowledges these mistakes, readily acknowledges that had he understood the law completely he would have been able to fully present and take on a more affirmative responsibility to prove Gerardo’s innocence and which is what he was left with the responsibility of doing even if he didn’t know it.
And that’s largely where we are right now. He admits that had he understood where the case was going, this novel prosecution, this unheard of prosecution, he would have been able to easily establish Gerardo’s actual innocence and how strongly he feels about the steps he could have taken to do that including Gerardo’s own testimony. And so his willingness to admit how he was foreclosed from presenting fundamental evidence is really a striking testament to his honesty and integrity in coming forward but what you can seen that too is the lawyer’s and all our absolute belief that Gerardo is being punished for something that he is absolutely innocent of and we all await the day, and may it come very soon, when Gerardo is completely exonerated of the false charge.
BD: Is the US government still refusing to release documentary evidence to Gerardo to build his case?
RK: The US government is still resisting the presentation of documentary evidence that shows so much more clearly than we ever could have with the types of evidence that we had exactly what was going on with these airplanes and what was going on with some of the transmissions back and forth that show that he neither intended to do any harm to the United States nor did he intend to do any harm to anybody else. And the government’s documents, including satellite evidence for example, would have shown the way towards a proper defense for Gerardo but the government never produced it.
BD: So the next step in the Habeas Corpus petition is up to the court?
RK: We are waiting the setting of a hearing at which we can further establish all of these facts, further establish Gerardo’s actual innocence-show the evidence that should have been presented at the trial, show the evidence that would have been presented had the attorney not been placed in the position of being unable to defend Gerardo because of a misunderstandings as to the law and what the burdens of proof were. We readily await the opportunity for a hearing in which we can do that.
BD: When is the response due from the US court?
RK: There is no particular time frame. It’s up to the district court to set a stay hearing and we hope that it happens soon.
We want production of evidence and we want a hearing. That’s what we have asked for and we wait an opportunity to go forward with that.
This interview was broadcast by Radio Havana Cuba on Saturday 27th August 2011