THE CUBAN 5

Attorneys for the Cuban Five on case's perspectives

RHC

July 12th, 2009

Attorneys for the Cuban Five were in Havana the last weekend and answered some questions on the case's perpectives to Radio Havana Cuba. "The efforts on behalf of the Five have not concluded, indeed they haven't slowed down.  There are three efforts underway now: First, the legal team is preparing for the resentencing of three of them. The second does very much involve Gerardo: the post conviction legal filings.  Third, there is also a political effort, since this case has always been a principal concern of the Cuban government and the international community."


Question: Could you give us your perspective on where we stand in the case of the Cuban Five?

Thomas Goldstein (expert on Supreme Court litigation):


The direct appeals in the case of the Cuban Five have concluded with the severe disappointment of the U.S. Supreme Court not agreeing to review the case.  We obviously believe that the Supreme Court should have considered the serious flaws in the case and should have reversed the convictions of the Five.  But the efforts on behalf of the Five have not concluded, indeed they haven't slowed down. 

There are three efforts underway now.  First, the legal team in the United States previously won a victory regarding the sentences imposed on three of the five [Antonio, Ramón and Fernando].  And now the lawyers are preparing for the resentencing, which is likely to occur before the end of the year, and then we will learn the length of the terms of imprisonment.  We are optimistic that the judge will take into account the horrible effect that the long terms of imprisonment have had on the Five and their families, the recognition from the international community of all the flaws in the case, and will impose a sentence that is substantially shorter.  But this is a question that the judge will have to compare.


Question: So Gerardo (Hernández) is not involved in the re-sentencing?

GOLDSTEIN: For the resentencing, the first of these three efforts does not involve Gerardo.  The second does very much involve Gerardo.  In the U.S. Criminal Justice System, there is the direct appeal, which has just concluded.  Then there is the post conviction judicial process.  In cases in federal court, this is sometimes called 22-55.  That's the number of the statute.  And the legal team is now working very hard on the post conviction legal filings.  Those must be commenced by June of next year.  It can be sooner, but that is the time that it must be filed.  And the legal team intends to press the argument that the convictions are entirely invalid.  And one of the principal arguments will be the absurdity of the conviction of Gerardo for conspiracy to commit murder.  We believe that we will be able to show the court that there is new evidence that the court never considered that he had nothing to do with any plan to kill anyone in the U.S. jurisdiction or anywhere else, and the legal team and the families remain very focussed on correcting that injustice.

Third, there is also a political effort.  I'm not a diplomat and this is a question that arises between the governments, but we are aware that among the issues that will be discussed between the governments will be the case of the Five.  This has always been a principal concern of the Cuban government and the international community.  It's been raised by other nations, other governments, with the United States, and it is possible that there will be a political solution -- for a case that has obvious political overtones.  So we're hopeful there, as well, that as the relationships between the two governments can improve and that the case of the Five can be a part of that; that there can be a new beginning of sorts.  The lawyers can help, but this is again a question of diplomacy rather than what happens in a court. 


QUESTION: Does the work of the attorneys include a possible appeal to the President (Barack Obama)? 

GOLDSTEIN: The work of the attorneys absolutely does include making appeals to the U.S. government to take action in the case.  But we also recognize that this is part of the broader diplomatic discussions between the countries.  So it will involve both the lawyers and the families but also the governments. 


LEONARD WEINGLASS (attorney for Antonio):

René Gonzalez will not go back for re-sentencing, and neither will Gerardo.  The three who will go back for re-sentencing will face a new set of sentencing rules that are different than the rules of 2001.  Under these new rules, the life sentences we believe will go away and there will be new sentences that are less than life.  We will be asking for sharp reductions in their terms.  Of course Fernando's sentence will be reduced, probably down to approximately 15 years. 

For Antonio and Ramón, there will not be a life sentence any longer, but we don't know what range of years they will receive.  However, we're relatively sure that with this reduction in sentence, they will go to a different type of prison.  A prison that is not as severe as the prisons that they have been in.  So to answer your question, I cannot predict now what their sentences will be be, expect I can assure you that the sentences for the three will come down.  And there will not be life sentences.  But there will be a set term of years, which I cannot predict.  In short, we anticipate an improvement in the sentencing of the three.


QUESTION: In the re-sentencing, they forgot Gerardo.  Why is that, since he had two life sentences?

WEINGLASS: Gerardo should have been included.  We don't agree with the court's failure to send Gerardo back.  But if we succeed in eliminating the conspiracy to commit murder charge, which we are working on now, then Gerardo will be sent back for re-sentencing, the same as Ramón and Antonio.  So we first have to eliminate the conspiracy to commit murder charge which we hope we can do. 


PHIL HOROWITZ (attorney for René):

The actions that are going to be taken to eliminate that count (conspiracy to commit murder), speaking in general terms as René's attorney, efforts are going to be made to show that there is other evidence out there that was not produced at the trial.  This will show that Gerardo had no involvement in the allegations of Count Three.  And the efforts are continuing to absolve Gerardo of all responsibility as to Count Three.

As for René not being taken into consideration for resentencing, there is very little that can be done in his case.  I'm not saying that there is nothing that can be done, but there's little; not as much as the other four.  René's case is very different in that René was sentenced in 2001 to a term of imprisonment of 15 years.  As we sit here, almost 11 years after René's arrest, his sentence is due to expire in a little more than two years; approximately 27 months.  And at time, René looks forward to returning home, to his wife and his children.  And he has not been able to see his wife since 2001.  And he looks forward to the opportunity to come home. 
 
The remaining 27 months that he has is on his prison sentence and his prison sentence only.  His release date is October 11, 2011.  Barring any changes, he'll be in prison until that time.  So he won't be reporting to a parole officer or another officer.  He'll just remain in the same situation that he is now, barring any changes over the next two years.  Upon release, René will have three years of supervised release, which is the equivalent of probation.  We expect to ask the court, for obvious compassionate reasons, as a Cuban citizen, to be able to return home to his family. 


QUESTION:  For "compassion," he has not been able to see his wife..."

HOROWITZ: He has not been able to see his wife since approximately August of 2001.  And the U.S. government has consistently denied his wife Olga's desire to go see him.

I know continuing efforts are being made for visas, with the change in administration in Washington, the hope for the issuance of visas has increased.  And we hope to see some positive results in the near future.

BILL NORRIS (attorney for Ramón): 

The court has set October 13th as the date for the resentencing.  That's a preliminary date and there is much that we must do to prepare for that.  The first step, obviously, is to have the three who are to be resentenced return to Miami so that we meet with them for purposes of preparing to go to court.  The second thing is to obtain from the court the directives from the government to give us the additional information that we need to prepare to represent them adequately.  And the third thing is to discuss with the government the possibilities of narrowing the issues and agreeing to a result that is fair for the three.  And by fairness, of course, we mean their earliest return to Cuba.