[Ppnews] Cuban 5 press conference

[Political Prisoner News]

NATIONAL COMMITTEE TO FREE THE CUBAN FIVE
Comité Nacional por la Libertad de los Cinco Cubanos




Press Conference on the Appeals Court Decision
Audio and Transcript
June 5, 2008
Special to www.freethefive.org
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
Part 1 (main press conference):

Part 2 (question and anwer section):

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.

"I will tell you, the fight is definitely not over. The fight is far from over"

Paul McKenna, 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.

"The affirmance of the conviction and sentence on 
the conspiracy to commit murder is outrageous."
Marjorie Cohn, President, National Lawyers Guild

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.

"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...[The 
Cuban Five] 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."

Andrés Gómez, coordinator, National Committee to 
Free the Cuban Five and 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.





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