USA, June 5, 2008

Speakers at Press Conference:
•   Richard Klugh, Attorney for Fernando González (aka Ruben Campa), and Deputy Chief of Appeals for the Federal Public Defender's Office in Miami
•     Paul McKenna, Attorney for Gerardo Hernández
•     Marjorie Cohn, President, National Lawyers Guild
•  Andrés Gómez and Gloria La Riva, coordinators, National Committee to Free the Cuban Five

Transcript:

La Riva: We are going to begin the press conference now for the attorneys of the Cuban Five to speak to the press in response to yesterday's 11th Circuit Court decision on the case of the Cuban Five. We will have speakers Richard Klugh, who is the attorney for Fernando González and the Deputy Chief of Appeals for the Federal Public Defender's Office in Miami. We will have Paul McKenna, who is the attorney for Gerardo Hernández, Marjorie Cohn, President of the National Lawyers Guild, and Andrés Gómez and myself who are coordinators of the National Committee to Free the Cuban Five. We will also give information on the demonstrations taking place in the United States, Canada, and many other countries this week.

We want to emphasize first that the Cuban Five should never have been arrested. They were saving lives. They were peacefully opposing terrorism, and we are going to continue until they are free.

We will begin now with Richard Klugh, who is the attorney for Fernando González.

Klugh: Good afternoon. Mr. González is identified as Ruben Campa in the decision, the decision is titled United States vs. Campa. The court, two years after the en banc court, in a divided opinion, affirmed the District Court's rulings regarding the venue in Miami for the trial, has issued a new opinion, a new decision, this is the third decision in the case. In this decision the court has vacated the sentences of three of the defendants, two of the defendants who had life sentences and a third defendant, my client, who has a sentence of 19 years. The court affirmed the convictions of the defendants, however, with regard to the most prominent charge in the indictment, that accusing Gerardo Hernández of complicity in what is called the Brother to the Rescue shootdown, the court was sharply divided in its opinion yesterday.
In a lengthy dissent, Judge Kravitch concluded that there were, for several reasons, insufficient evidence, both factually and legally, to sustain a conviction for conspiracy to commit murder. The deciding vote on the court, Judge Birch, concluded that the issue presented a very close question, and was one that he acknowledged that what the defense had said was significant. The case basically came down to three major categories of issues raised by the defendants. One was that the trial process was unfair, given the governmental actions in setting up the venue for the case in Miami, and in engaging in arguments and presentation of evidence that was unduly prejudicial. The second category was that the sentencing result was excessive, with three of the defendants having received life sentences. And the third category was that the evidence with regard to the most serious offenses was insufficient. And even though the court did not reverse the the conspiracy convictions, the court did, in reversing the life sentences of two of the defendants, hold that they had in effect not done the severe damage would have called for such a life sentence, and in remanding to the District Court, directed that the court consider the defendants' arguments that they should in fact not only not receive the guideline sentence, which would be substantially lower than what they presently have, but that the court should also consider a downward departure for offenses involving no serious harm to the United States.

And so that is where we stand right now. After seven years of the appellate process, this is the first resolution of all of the appellate claims. Now that we have the first resolution, we are considering requesting review by the full 11th Circuit of these issues, and we are further continuing to prepare for the possibility of seeking relief in the United States Supreme Court, as two of the judges in this three-judge panel have strongly urged. Indeed, in one of the three opinions in yesterday's decision, the presiding judge reiterated his strong belief not only that the conviction with regard to the shootdown was in question, but that the issues relating to the trial process are so substantial and so important that the United States Supreme Court should hear them. And so that is where we stand right now, and I defer to the other speakers.

La Riva: Thank you Richard. We will now hear from Paul McKenna, who is the attorney for Gerardo Hernández.

McKenna: I'd be lying if I didn't say I was very disappointed by the opinion that I read yesterday by the Court of Appeals, but I'd also be lying if I didn't say that I still have a lot of hope, and I still have a lot of expectations in this case that we can do better. The dissent that was written by Judge Kravitch was, I thought, a very strong dissent. She came out and, as Richard said, stated that she didn't believe that there was sufficient evidence to sustain the murder conspiracy conviction, and the way that her opinion was written, it was almost as though she followed all the evidence that was presented by the defense, all the incursions by Mr. Basulto into Cuba, all the events that led up to the shootdown. And she put it in a full context, which wasn't done in the majority opinion. And I was grateful for that, and was very grateful for Judge Kravitch's very clear dissent. I think there is a legal issue in the conspiracy to commit murder charge that is very complex, and may well require an en banc review. The majority court, and this is sort of complex legal stuff, the majority court believed that the government did not have to prove that Hernández conspired to shoot aircraft down in international waters. And Judge Kravitch found that they did.

Now Judge Kravitch's opinion is the same as the majority's in some respects, but it is very different in other respects. Just to sort of simplify it, Judge Kravitch looked at the statute which requires that there be an unlawful act for there to be any basis for a murder conspiracy conviction, and she found that what was happening in this case, Cuba trying to enforce its own borders and its own sovereignty, what they were doing, what Hernández believed they were doing, was not an unlawful act. And that's what I tried to present as evidence at our jury trial, and I was very encouraged by Judge Kravitch's opinion, the way she wrote it, the way she followed all the evidence, in almost the exact manner that I had presented it.
Now the key to this opinion on the murder conspiracy was Judge Birch. And Judge Birch, as Richard Klugh mentioned, stated that it was a very close issue. And I have to tell you that when you know that you are so close, and then you don't get there, that's very disappointing after seven years, and ten years actually, of working on this case on behalf of Gerardo. But I will tell you, the fight is definitely not over. The fight is far from over, and this may go on for years to come. Judge Birch, in his opinion, suggested that the Supreme Court of the United States review this case, because Judge Birch, even though he upheld the conviction, stated that he still believes the trial that all of these five men had was flawed, and it requires a reversal based on the fact that we had a poor venue for this case, which was Miami. We could have had a better venue by just going an hour outside of Miami, or 45 minutes outside of Miami. So I am disappointed, but I'm also ready to keep fighting. No one is going to give up. That's just sort of the mantra right now, it's "don't give up." And we're not going to give up. Thank you.

La Riva: Thank you very much, Paul. We will now hear from Marjorie Cohn, President of the National Lawyers Guild.

Cohn: I agree with the comments that have been made, and I think that it's very significant that in the one-page concurrence of Judge Birch, who said that it was such a close case on the sufficiency of the evidence of the conspiracy to commit murder, he actually would have reversed that except for the standards of review that he was bound to follow. He is the one who dissented in the change of venue case, and change of venue means that you move a case out of an area because the defendant wouldn't be able to get a fair trial. And what Judge Birch said, when he suggested in his concurrence here that the petition be made for certiori to the Supreme Court, to decide this change of venue issue, he said, and this is what he wrote: "The defendants were subjected to such a degree of harm based on pervasive community prejudice, that their convictions should have been reversed." And this is really significant, because during the trial, the Bush Administration paid journalists to write unfavorable stories about Cuba, and anti-Cuban extremists tried to intimidate jurors, and prospective jurors admitted that they would be afraid to return not guilty verdicts against the Cuban Five. And anti-Cuban sentiment has tainted all possibility of a fair trial for these five men since their original arrest and confinement.

So I think that while we really need to dissect and analyze the legal issues here, and I believe that this was a severe blow, although three of the sentences were reversed and remanded back to the District Court because they were excessive, two of them because there was no top secret information that was gathered or transmitted, and the other who was shown not to be a manager or supervisor, so they will be resentenced, and that is a small victory, it's actually a great victory, but certainly the affirmance of the conviction and sentence on the conspiracy to commit murder is outrageous. And keep in mind that prosecutors frequently charge conspiracy in political cases because they can actually throw a very wide net, and it gets very mushy, and they don't really have to prove exactly what was agreed to, or what acts were committed. They do need to, under the law, but oftentimes the jury is confused about this, and you can get the same sentence for conspiracy that you can for the actual crime.

So I think it's important to keep in mind that while we analyze these legal issues, we shouldn't forget that the political context, which is a nearly 50-year policy of the U.S. government to isolate and punish the Cuban people because our government doesn't like their government, and in fact, why were these five men in the United States? They weren't armed, they didn't have classified information, they were there to gather information about terrorist acts being planned against Cuba. And there have been a number of terrorist acts. There was the first in-air bombing on a commercial airline was done in 1976, a Cubana Airliner which killed 73 people. And in fact there are people who are walking free in Miami who have admitted responsibility for that, and yet the U.S. government refuses to prosecute them. And yet these five Cuban men, who come into the United States unarmed, don't get any classified information, and they are convicted and sentenced, many of them, to life sentences. So I think that we need to keep the political context in mind while we analyze the legal arguments in this case.

La Riva: Thank you Marjorie. We'll now hear from Andrés Gómez from Miami and the National Committee to Free the Cuban Five and the Alianza Martiana.

Gómez: Good afternoon. I represent a number of Cuban-American organizations, six of them, that agree with the fact that these five men are innocent. That these five men were in the United States in order to protect the Cuban people from terrorist acts being planned in the United States with the full knowledge of the United States Government. I am encouraged by the legal analysis that both Mr. McKenna and Mr. Klugh gave, and I couldn't agree more with Marjorie in her statement that this is, above all, a political case. We have been subjected here in Miami to close to 200 terrorist acts in the past 40-some years. 70 others have been committed in the New York-New Jersey area, plus almost 30 in Puerto Rico. These terrorist activities have been organized by extreme right-wing organizations of the Cuban-American community. The United States have made this plainly evident in the classified governmental reports on these matters. There is no doubt in anyone's mind here in Miami, that the terrorists are guilty of crimes that have been committed against the Cuban people for the past 40-some years, resulting in thousands of deaths and other thousands of injuries.

These five men were here in order to try to stop these acts from continuing to happen. The United States is a partner in these crimes, and that is why it acted against these men. The information that is available in the classified U.S. government intelligence sources affirm what I have said. These five men are in prison and have been in prison for ten years now coming September, while well-known terrorists, as Marjorie stated, like Luis Posada Carriles, guilty of heinous crimes, walk free in Miami thanks to government protection. We will not give up. The lawyers will not give up. Those who support the lawyers, the cause of the Five, will not give up. And we will continue denouncing not only the injustice being committed against these five innocent men, but the protection that the United States government has given the terrorists, guilty of such horrible crimes. Thank you.

La Riva: Thank you, Andrés. The National Committee to Free the Cuban Five, along with more than 325 committees around the world, have been organizing on the struggle for their freedom since their conviction. Every day, more and more people hear about the Cuban Five, and the unjustness of their imprisonment. They should never have been arrested. They are heroes to people around the world. And as a result of their support, already demonstrations are being planned for tomorrow and the coming days, including today, in San Francisco, New York City, Los Angeles, Boston, Minneapolis, Detroit, Washington, Vancouver, Toronto, a press conference tomorrow in Miami, and more are joining in from around the world.
We will now take questions. Before that, I wish to say that we also demand, with supporters of the Cuban Five, for wives of two of the Cuban Five, Adriana Pérez, the wife of Gerardo Hernández, who has a double-life sentence, and Olga Salanueva, the wife of René González, who is in Mariana prison in Florida, the right for them to enter the United States to visit their husbands, and for the U.S. government to stop delaying the visas for the rest of the family members. It's a cruel punishment to the Five and to the Five's families to deny Olga and Adriana the right to enter and to see their husbands, and for the rest of the families to wait up to two years for visas.

We'll now take questions from the media.

Q&A:
Tiffany Roberts: What is the next step, as far as the legal process goes? Because the Appeals Court said that the sentence had been exxaggerated, so that they called on the judge to re-sentence? I'm not exactly sure legally what's the next step, what is going to happen?

McKenna: Three of the defendants are going to be remanded, that means sent back to the United States District Court Judge Lenard, and they are going to be resentenced. The Appellate Panel made a decision that she sentenced them using a guideline range that was too high, and she has to resentence because she imposed a life sentence on two of the defendants, and on a third defendant, Ruben Campa, that also has to be revisited, because she gave some type of an enhancement that was not justified. So three of the defendants will go back. Two of the defendants, Mr. González and my client, Gerardo Hernández, now have to sit down and decide whether we're going to seek an en banc review of the opinion, which is what the government did to us after we were victorious on the first go-around. We have to evaluate that, and I think that I read some things yesterday that indicated to me that we could do it. So that's the first order of business for those that are not going back to the District Court, that is, to decide whether or not we have to do an en banc appeal. And then, if that were not to be the case, or if we were not successful with an en banc appeal, then we would take an appeal to the U.S. Supreme Court, seek a write of certiori.

Solange Reyner (Miami Herald): How long do you anticipate the time frame for that to happen?

Klugh: We're hearing that the petition will be filed within three weeks, then it's up to the court how long it will take to handle the rehearing petition. Once that is resolved, if we still need to go to the Supreme Court, we would file that petition within 90 days of the resolution of the case in the Court of Appeals. The Supreme Court would hopefully resolve the case sometime within this coming term, prior to June of next year.

Tiffany Roberts: You said the three defendants will have to be remanded. Do they physically appear before the Judge, and also, when you do the en banc, are you just going to do it for González and Hernández, or are you going to do it for all five of them?

McKenna: That's a good question, but the first thing that has to happen with three of the defendants, right now their sentences are vacated, which means that they have to be resentenced before they can take further appeals. And that does require their physical appearance in front of the judge in Miami. They'll have to be sent back from their jails, and appear, and it will be the same rights that they had the first time they were sentenced. They must be physically there, they have a right to be facing the court when they are sentenced. The issue of whether they can all take an en banc review before that remand, I defer to Richard Klugh on that one.

Klugh: The attorneys will further discuss that. There are a number of issues. Almost every issue in this case was in some sense a first impression issue. Those are the types of issues that are frequently handled by an en banc court. So given the variety and number of the issues, there is certainly every reason to believe that each of the five will consider seeking rehearing and probably a rehearing en banc of some aspect of the case.
Andrés Gómez: What are the specific charges that their sentences were sent back to review or resentence by the District Court?

Klugh: The conspiracy to obtain national defense information, the court held that as to those counts, for which life sentences were imposed, that the fact that there was no classified information obtained, required a resentencing. In addition, Fernando González (Ruben Campa), his sentence was based on a violation of immigration laws.

Tiffany Roberts: Are there any guidelines for the new sentence, since the sentence was vacated, and the Judge will have to sentence them again? Is there any sentence guidelines, what are they facing now? Or is it still to the discretion of the judge?

McKenna: Correct me if I'm wrong, but after the Supreme Court decision in Booker, the rule across the United States right now is that the sentencing guidelines are not mandatory, they are advisory and judges consult them, but they're not bound by them. So I think that when these three defendants go back for resentencing, the court could sentence however she felt she wanted to.

Klugh: Certainly the guidelines are so substantially lower as a result of this decision, the base guideline range for the conviction would be 17 years. You have such a marked deviation. When the original sentence was imposed, the guideline range was no guideline range at all, it required a life sentence, so that on remand it would be a substantial reduction. There's certainly every reason to believe that the sentence should be lower.

Unknown questioner: Like for example Mr. (René) González, who was sentenced to 15 years?

Klugh: His sentence was not vacated.

Unknown questioner: Fernando González was 19 years. So if it goes down to like 10 years, is it possible it would be time served, and he could go free?

Klugh: It's always possible. The guideline reduction for him would be a two-level reduction, and it could be approaching time served, but again, those types of issues would have to be more fully briefed and litigated.

Solange Reyner: What do expecting at the trial for the three who were remanded?

Klugh: It's too early to predict. We'll prepare our sentencing arguments, and hopefully we'll have an opportunity to fully present our arguments for why substantially lower sentences should be imposed. It's difficult to predict exactly at this point.

Steve Patt: Although the decision remanded two of the three convicted of espionage conspiracy for resentencing, it didn't do so for Gerardo Hernández on the grounds that he's serving another life sentence for murder conspiracy. But that seems strange, since he's murder conspiracy conviction could well be reversed, so why didn't they remand his espionage conspiracy sentencing as well?

McKenna: That's the way that they look at it. Until another court does that, there's no reason to remand it, if he's already serving a life sentence. In their view, it doesn't make any difference. There's no reason to have a court resentence him on the espionage count. Of course, if one day we get to that point, it will be automatic. They'll have to go back for resentencing. What we have to do is what we were talking about at the beginning of the program, we have to continue to stress an en banc court and possibly the Supreme Court regarding this murder conviction. Because clearly, as Judge Kravitch analyzed, and as we presented it, what Cuba did was not an unlawful act. They never intended to shoot down a plane in international waters, nor did Mr. Hernández. That's that Judge Kravitch focused on.

Minrex 05-06-2008