New briefs have just been filed in the appeals of the convictions of the Cuban Five. What follows is an interview conducted by Gloria La Riva, Coordinator of the National Committee to Free the Cuban Five, with Leonard Weinglass, the attorney for one of the Five, Antonio Guerrero.

Gloria La Riva (GLR): Can you please explain where the appeals stand at this point, giving us an update since the Aug. 9 decision that denied the Cuban Five a new trial?

Leonard Weinglass (LW): On Aug. 9, 2006 we received the opinion of the en banc court in Atlanta. By a vote of 10 to 2, that court affirmed the trial court judge who denied venue change. There was a 53-page strong dissent by the two judges who are part of the three-judge panel that originally ruled in our favor on venue.

But the case was remanded back to our original panel—which now consists of two judges—with the direction that the panel consider the remaining nine issues that we originally argued in our appeal. The third judge on the panel retired.

We then heard on Oct. 17 from that panel of two judges. They wanted additional supplemental briefs filed by both sides, with our brief being due first on Nov. 20. We just filed on the eve of the 20th, and the government has until Dec. 17 to respond.

There are three briefs which we filed, addressing all nine issues, but we highlighted four of the nine issues. Those four issues are:

That Count 3, or conspiracy to commit murder, was not proven and should be dismissed. Secondly, the conspiracy to commit espionage was not proven and in any event, the life sentences that were meted out on the basis of that conviction were excessive and outside the range on which the judge could sentence the three to life.

Thirdly we argued that the prosecutors’ procedure during the trial violated prosecutorial norms, was prosecutorial misconduct, and particularly true on their final argument to the jury. The prosecutors pleaded with the jury to find the five guilty because, to use their words, “They came to the United States to destroy the United States.” That was mentioned not just once, but three times. That would reverse, if the court so found, both conspiracy charges, conspiracy to commit espionage and conspiracy to commit murder.

Lastly and forthly, we argued at length the way the trial judge handled the CIPA issues—Classified Information Procedures Act. In this case there were no classified documents. But what happened is the government classified each and every one of the defendants’ own documents top secret and then argued that because of that, the provisions of the CIPA applied. We were denied access to some of our own documents.

We argued those four issues in the new supplemental briefs. Those issues again are: Conspiracy to commit murder should be discharged; secondly the conspiracy to espionage should be reversed for insufficiency of evidence; third, the sentencing on the espionage charges were grossly out of line with existing law; and forthly, the prosecution committed misconduct. Finally the application of the CIPA provisions was wrong in this case.

As things now stand, we are waiting until Dec. 20 when we will receive the answering brief of the government. At that point we will decide whether or not to ask for the opportunity to file a reply brief and we will do that if it is necessary.

We also suggested to the panel that we are willing to participate in the re-argument of any or all of the nine issues if the court so wished.

GLR: Would those be oral arguments?

LW: Yes, if the court so wished, and we are waiting to hear from the court on that.  If we don’t hear further and a reply brief is not necessary, we will then wait for a decision of the panel.  We can’t tell when it will be forthcoming. Our best estimate we have is sometime probably between February to May, in that time frame. We can’t be sure. You have to bear in mind that this is the same panel that took 16 months to decide the issue of venue. It is very hard to predict.

GLR: You explain that two judges are reviewing the issues. If there were a dispute between the two, what happens then?

LW: If the two cannot agree, then the chief judge of the 11th Circuit will appoint a third judge and that judge will then participate in the decision-making. You must have two judges in agreement in order to have a valid decision by the appellate court. If these two judges agree, that’s the end of it. If they don’t it will require a third judge.

GLR: What are the next immediate steps legally if there is not a satisfactory outcome, or a partial victory in the upcoming decision?

LW: We can appeal any issue that this panel rules against us. It would first be to an en banc court of the 11th circuit which we have already visited on the issue of venue. Then we would ask, directly by petition to the United States Supreme Court, for a review of those issues, as well as the venue issue, which we can also bring to the Supreme Court. That is, if we fail before the panel.

GLR: If you are not successful at this level, what options do the attorneys then have?

LW: All we have been talking about at this point in time, is what is called a direct appeal. That is a straight appeal up from the conviction. If we lose everywhere, including in the Supreme Court, we then have a right to start a collateral appeal. It would be an appeal by way of habeas corpus on constitutional grounds, not repeating issues already raised and decided, but based on new issues that have not been raised and are available to us.

GLR: The defense team has worked very diligently in the appeals. Do you have a message to people involved in the support movement in the United States and around the world?

LW: The efforts of the supporters are a great help, that is a lesson of history. It has happened in every major case, and it has even happened in this case. We are convinced that the victory we had, which was an unprecedented victory in August of 2005, was in response to the showing of support that happened domestically and internationally.

The court that overruled that 2005 decision is a court that has never ruled on behalf of any defendant in the last quarter century. We were up against an insurmountable obstacle in that court. But the support historically has mattered.

We have a long way to go, but the current context is very critical. The two judges we are before now and the issues that are being presented, give us at this moment probably our greatest opportunity to free the Five. This is a critical time and it is very essential that the support network be actively engaged in the case.

GLR: You have spoken in recent weeks about the Cuban Five to a number of different audiences, in the forum on September 23 in Washington, DC, during the Salim Lamrani book tour in New York City, at the William Mitchell College of Law on Oct. 16 in Minneapolis to hundreds of law students and professors, as well as the National Lawyers Guild national convention in Austin Texas. What has been the response of the people to your presentation on the Five, hearing about the case for the first time?

LW: I think there is a lot of shock and disbelief, first, that the people have not heard of this case, which was the longest trial in the United States at the time it occurred. It was a trial involving major issues of foreign policy, with the president’s advisor on Cuba testifying under oath, two retired generals and an admiral, plus high-ranking officials of the government of Cuba, who testified.

All of this, the matters of great substance and consequence, were never the subject of major news coverage. And that shocks people. But beyond that, it is the substance of what occurred, the history of Cuba and the United States, of terrorism launched from these shores against a country with whom we are at peace and a fellow member of the United Nations.

All of this is of great shock and disbelief to people who hear about it. I think it would be fair to say that it raises in people’s minds and their feelings, a revulsion against this history of what happened, and a great sense of sympathy for the five who are doing extraordinarily long sentences, for doing the heroic work for their country.

GLR: There were a number of media interviews with you this summer after the reversal of the Five’s victory. Did you get a sense of some of those reporters’ attitudes and feeling about this case, compared for example to the U.S. government’s treatment of the terrorist Luis Posada Carriles?

LW: First, it reminds me of the recently changed attitude of the media towards the Iraq war, where they are now writing a lot about, ‘Where were we when we had the opportunity to expose the lies that got us into this war? Why weren’t we more astute, more aggressive?’ The media’s reaction to the Posada Carriles and newer developments were, ‘Why didn’t we follow this case more closely when it happened?’ There is a lot of mea culpa, There is a lot of blaming themselves and feeling of unworthiness for not paying closer attention. There is a feeling that the Posada case has to be closely reported and implicated together with the case of the Five.

I am pleased to see that, not only with respect to the support network but the media itself, it is reporting the two cases—the Five anti-terrorists and the terrorists like Posada—together, in a single story, exposing the U.S. hypocrisy.

GLR: You recently visited Antonio Guerrero in Florence prison, Colorado. Have you visited the other brothers?  How are they?

LW: I visited Antonio in mid-October, who is as productive as ever. He has a new book coming out, on his poetry, calligraphy and artwork. It includes a portrait of Nelson Mandela, who autographed it and sent it back to Antonio, which I have a copy of.

I have also visited René González in Florida and I visited Gerardo Hernández in California, both of them with respect to the denial of the U.S. government to allow the wives to visit. I introduced them to a new lawyer who will be taking up the cases of Adriana Pérez and Olga Salanueva.

GLR: How are their spirits?

LW: All of them are very high energy, very inspirational to be with, very clear, optimistic, but realistic of what they face and why. These are men who have devoted their lives to fighting for a noble and a just cause and they reflect that in their spirit and attitude.

GLR: On behalf of everyone in the Cuban Five solidarity movement, we thank you Leonard, Richard Klugh and all the defense team for everything you are doing for the five Cuban heroes.

LW: Thank you. 

(freethefive.org) 20-11-2006