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Issue # 1413      03 June 2009

Tense wait for justice in the case of the Cuban Five

The number of legal avenues available to achieve justice for the Cuban Five has narrowed to just one. On June 15 the US Supreme Court is expected to issue a decision on whether or not they will hear the appeal of the five Cuban anti-terrorist heroes imprisoned in US penitentiaries. Last week, the Obama administration filed a brief urging the Court to deny the Five a hearing. The next day, the Five’s attorneys filed their response regarding the case of Gerardo Hernandez, Ramon Labañino, Antonio Guerrero, Fernando Gonzalez and Rene Gonzalez, known worldwide as the Cuban Five.

In this earlier interview with Radio Havana, world-famous civil rights lawyer Leonard Weinglass – representing Antonio Guerrero and part of the defence team for the five Cubans – explains in detail the legal process that has led to the present stage in the case. His doubts about the intentions of the Obama administration have proven well founded so far.

Bernie Dwyer (Radio Havana Cuba): Can you tell us the pertinent dates that we need to look out for in the next step in the long drawn-out legal process involving the five Cubans currently serving sentences in US prisons?

Leonard Weinglass: Initially the government was to respond to our papers asking the (US) Supreme Court to take the case on May 6. Then we heard from the government a week ago and they asked for a third extension of time, which is somewhat unusual, to May 28 which the court granted. The next date is May 28 when the government files its papers in opposing the Supreme Court taking the case. Then we have 10 days to file a reply and we now anticipate a decision by the Supreme Court on June 22. We are getting very close to end of court’s term so we will most likely hear from the court on that date, June 22 If we do not, then the decision will probably go over until the Fall [US autumn commencing September] but we anticipate hearing from the court on the 22 of June [now anticipated to be on June 15].

BD: If they reply in the affirmative, how long do you think it might be before the case is actually heard?

LW: The case would be then heard after briefs are filed and we would go through another round of briefing in the early Fall. The case would probably be heard in November. These are all surmises. Then we would be getting the decision of the Supreme Court in January or February 2010.

BD: Apparently the US Supreme Court hears only about 2 percent of all cases presented for review. Is that correct?

LW: It is actually slightly less than 2 percent. We are in a group of approx 2,000 cases that are asking the court to review the decision and of those 2,000 the court will probably take approximately seventy. And we are all competing against each other to become one of the seventy cases.

BD: So these 2,000 cases are seeking reviews of decisions on cases that have already been heard in the high court?

LW: They are seeking, in the main, to have a review of a decision by the Circuit Court of Appeals. There are 12 circuits in the Unites States and we are in the 11th. But each circuit issues a decision like the one we got from the Atlanta court and then you have the right to request the Supreme Court to review that decision, which is what we are doing. The Supreme Court also takes cases from the state court system, which is separate and apart from the highest state court in each of the respective states. So it’s a mix – some are from the state court side and some, like us, are from the federal court side.

BD: What sorts of cases go for review to the Supreme Court?

LW: All kinds of cases. Many are commercial, some are corporate, and some involve decisions of the bureaucracy in the United States such as the Environmental Protection Agency or the interior department. So you are talking about a very diverse group of cases that involve issues of patent rights, commercial and environmental issues. It’s a mix and a small percentage of that number are criminal issues such as ours. A tiny number are death penalty cases so they have a priority claim on the courts time. So we are really pushed down into a very small percentage of the less than 2 percent that come to the court seeking review.

BD: Are there other issues that can influence the Supreme Court here in the US?

LW: One of the other issues is the question of the amicus briefs. The amicus briefs are briefs that are filed by third parties who are not involved in the litigation but who want to inform the court of their view of the importance of the litigation in so far as it impacts on the US or themselves. And of the 2,000 cases, probably one or two hundred will have an amicus brief filed. Usually there’s one or two. In an unusual case, there might be three or possibly four. In our case we filed eleven from international and domestic groups and associations, poet laureates, lawyers and judges who feel the court should review this case because of its international as well as its domestic implications.

I can tell you that of the 2,000 cases, there are none with eleven amicus except us and there are lawyers who observe the courts who are claiming that our case has more amici (plural of amicus) than have ever been filed in any other case. I am not sure of that but at least that’s the thinking. However I can assure you that of the 2,000 cases we have more third parties, particularly high profile international parties, expressing an interest in our case than any other case.

BD: What kind of influence do you honestly think such high profile parties can have?

LW: It’s very difficult to assess the strength of influence. It might vary from judge to judge. There are some judges on that court who have openly expressed their interest in international opinion. There are other judges who disdain that interest. So it might impact some more than others. But one thing I think we can say without question, without stressing how strong the influence is, it does matter. It has at least some influence and on certain judges more than others. So there is no negative here. There is no downside, I believe. It does aid our case a great deal that there are amici standing with us and saying, in effect, to the court that the world is watching. And in the American justice system, the worst thing that can happen to you is to be alone and the Five are certainly not alone. They probably have more support internationally than any case that has come before the court.

BD: Is there a fine line here where this could be seen as interference with the judicial system of the United States?

LW: The amicus briefs that were filed were very aware of that problem and no one is suggesting that they would wish to intrude on the prerogatives of the American justice system; quite the opposite. So I think the modest posture of these amicus briefs and the serious nature of the way they are written will impress the court with the fact that no one is attempting to politically or in any other way interfere with the court’s process. They just wish to make known to the court that the international community is, firstly, aware of this case and secondly, are concerned about its potential impact if the court refuses to review the decision.

BD: Are these amicus briefs part of the actual court case itself? Will they be heard during the hearing?

LW: They definitely become part of the official record. If the court accepts the amicus, there will be an order issued accepting the amicus and we anticipate the court will do that no matter what the outcome. So it does become part of the record. Does it impact the decision-making process aside from any influence? There are known instances, most recently in some of the torture decisions, where there is an acknowledgement of the international response to the court’s process.

BD: You mention eleven amicus briefs. Are the points being made all the same or do they differ significantly?

LW: They do differ. Most of them address the question of the fundamental issue of fair trial and whether or not the trial of five Cuban agents in the Miami venue satisfies the international standards accepted in all jurisdictions for a fair trial. A lot of them address that issue and some cite to the fact that a sub-committee of the UN Human Rights Commission in May 2000 after examining the record found that in this case the standard was violated and that a fair tribunal was not available in the Miami district to the five Cubans. That’s the focus on what I would say most of the briefs that have been filed.

BD: A certain amount of optimism has being expressed by those in solidarity with the Five that the new president of the United States seems to be slowly making changes and moving in what looks like in a different direction to his predecessor. Do you think there is a better chance for justice for the Five under the Democrats and under Barack Obama?

LW: It’s very difficult to assess that issue. The next move by the US government will be by the Solicitor General of the United States in responding to our papers. We anticipate that the response of the US government will be the same in the Obama administration as under the Bush administration. They will resist, with all the powers that they have, any question of the Supreme Court taking this case for review. We don’t anticipate any change in that position. It will be wonderful if it happens but the lawyers in this case, and some of them have more experience than myself, do not anticipate that change.

For the full backgound to the case of the Cuban Five and to find out what you can do, go to www.freethefive.org.

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