Interview with Cuban Five attorney Richard Klugh

Interview with Cuban Five attorney Richard Klugh

  • The petition to the Supreme Court is due Jan. 30, 2009.
  • Thomas Goldstein, “one of the most active and renowned U.S. Supreme Court practitioners, has agreed to participate in what we believe is a very meritorious and compelling case.”
  • “It is very helpful to us to have amicus support at this time.”

Lea la versión en español aqui

Dec. 21, 2008
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The following interview with Richard Klugh is an important update for all supporters of the Cuban Five. It includes the latest information on the upcoming Defense petition that will be filed before the U.S. Supreme Court, as well as an important appeal to law associations and other interested parties to file amicus briefs.

Richard Klugh, former deputy chief of appeals in the Miami office of the federal public defenders, has been on the Cuban Five defense teamsince their 1998 arrest. Gloria La Riva of the National Committee to Free the Cuban Five conducted the interview.

Richard Klugh

Q: Can you please review the June 4th decision this year by the three-judge panel of the 11th Circuit Court of Appeals, in the appeal of the Cuban Five?

A: The Court decided by a 2-1 decision to affirm all of the convictions in the case. The most significant conviction at issue is that of Gerardo Hernández for complicity in the shoot-down of the Brothers to the Rescue planes. In that conviction, the Court was very strongly divided. There were three different opinions by the three different judges on that question. One of the judges [Circuit Judge Phyllis Kravitch] thought the evidence was completely and totally lacking, completely absent any evidence of a conspiracy by Gerardo Hernández to take that action.

The second opinion [by Circuit Judge Stanley Birch] concluded that the evidence was very limited, but given the deferential standard under which the Court reviews convictions, the judge said he had no alternative but to affirm the conviction.

And the third opinion [by Circuit Judge William Pryor] found that under the government’s interpretation of what Gerardo Hernández could have believed about the risk of a shoot-down if Brothers to the Rescue continued to violate Cuban national sovereignty, the low threshold for finding sufficient evidence under conspiracy law was met.

The remaining convictions were also affirmed, again, based on this standard of review that provides that any view of the evidence that favors the Government is  enough for the Court to find sufficient evidence of conspiracy in this context. That is why the Court held that even though there was no evidence of any espionage in the years of the Five being here, the Court could still affirm a conviction for conspiracy to commit espionage.

The Court also held that it could not re-consider any part of the decision of the en banc Court. The Court concluded that it could not review the significant and continuing prosecutorial misconduct that the defendants had raised en banc.

Beyond that, the Court also held that the discovery limitations that were imposed—which prevented the defendants from learning so much of what they needed in order to prepare for trial—were permitted by a Federal statute. We do not believe that the Federal statute permits such limitations.

One other additional finding of note is that the Court held that even though the Government may have intentionally stricken members of the jury based on race, nevertheless under its precedent, the Court could not review such a discriminatory action by the Government as long as the Government allowed some members of the discriminated-against race to sit on the jury. We raised a strong objection to that part of the Court’s opinion.

Regarding the sentencing, the Court reversed the sentences of three of the Five. It affirmed the sentence of Gerardo Hernández and affirmed the sentence of René González. The Court decided that the district court did not have any restrictions in imposing sentence on René and thus could not reverse the sentence, even though the judge gave him the maximum.

The Appeals Court reversed the life sentences of Ramón Labañino and Antonio Guerrero for conspiracy to commit espionage because the Trial Court applied an unduly severe guideline, failing to recognize that there was no damage to national security. No top secret material was obtained. Finally the Appeals Court held that the Trial Court erred in sentencing Fernando González by attributing to him a major role when there was no evidence of that.

Those three defendants have been remanded for re-sentencing. The other two, Gerardo Hernández and René González, have not.

Q: What will the next step in the appeals process be?

A: The case is now scheduled to go before the U.S. Supreme Court. The Supreme Court has granted our motion to extend the time to file the petition for writ of certiorari. It is now due on January 30, 2009. The Government will have two or three months to respond. Then we will have a short period of time to reply. And the Court could decide by May 2009, whether to hear the case or any part of it.

We are very happy to have the assistance of attorney Thomas Goldstein of the Akin Gump law firm, who is one of the most active and renowned Supreme Court practitioners. He has agreed to participate in what we believe is a very meritorious and compelling case. He argued a case this week in front of the United States Supreme Court and another case in November. He is scheduled for additional Supreme Court cases this term.

Q: What are the main issues that the defense will raise in the appeal?

A:      All of the convictions should be overturned based on the failure to grant a change of venue, prosecutorial misconduct, and improper and discriminatory selection of the jury. We will also argue that Gerardo Hernández’s conviction for conspiracy to commit murder should have been overturned, and his life sentence for espionage conspiracy should have been remanded.

Venue is one of the most fundamental issues that can exist under American law or really under any system of law. No matter how a system is devised, if you have a predisposed judge or jury, nothing else matters. If you have a judge or jury who is likely to be influenced by local passions and pressures, what you have is a mob rule and you don’t have justice in any sense.

We feel that issue is so fundamental to the fair operation of the judicial system, that it will be treated with interest by the Court. We feel the same about the remaining issues, the jury selection issue, the conviction of Gerardo Hernández for something he clearly had nothing to do with, as well as the failure to reconsider his life sentence.

Q:  Regarding the wrongful murder conspiracy conviction against Gerardo, I remember the three oral argument hearings that we attended, first in Miami, and then the second and third hearings in Atlanta. In the three hearings, Stanley Birch, the presiding judge of the panel, as well as judge Phyllis Kravitch, made remarks challenging the prosecution’s claim of conspiracy by Gerardo. Yet, in the latest Court decision on June 4, Birch voted with Judge William Pryor to convict, making the vote 2 to 1. What happened?

A: In the initial three-judge panel we felt that all of the judges recognized the insufficiency of the evidence. In the oral argument before the new panel, we again felt that the majority recognized that it just did not make sense to blame Gerardo for the shoot-down. Ultimately, even though the panel majority might well believe that Gerardo is innocent of the offense, the majority was convinced that under prior interpretations of federal law, the Eleventh Circuit’s standard for affirming convictions sets such a low bar for the government in conspiracy prosecutions that they could not overturn the conviction.

We plan to contest that holding in the Supreme Court. The panel majority was also convinced that a theory the prosecutors had been barred from using at trial could nevertheless be considered in the appeal as a way to affirm the conviction. We believe that also is a fundamental error, in effect changing the rules in the middle of the process, and not in accord with what we believe the law requires.

Q: And what was that theory that the prosecution had used?

A: The prosecution theory under which the conviction was affirmed was that Gerardo could be deemed guilty of conspiracy to commit a crime in American jurisdiction even if all he did was to support the right of a country to defend itself against a hostile and illegal violation of its territorial sovereignty. That theory, which the District Court had rejected entirely as beyond the scope of the criminal law, was revived in the most recent panel decision. This placed Gerardo in a procedurally disadvantaged position. We believe that that theory should not even have been available to the Government. But the two-member majority in June held otherwise.

Q: You speak about the standard of review by the 11th Circuit Court.

A:      In the context of a conspiracy-to-commit-murder charge, we believe the standard of proof is much higher than that applied on appeal. This is particularly true when we are dealing with a governmental action—the shoot-down of the Brothers to the Rescue planes—that has had principled legal and sovereign justification in historical terms and where Gerardo had no basis for prior knowledge of what his superior officers or superior governmental officials would ultimately do.

To impose liability on Gerardo violates due process in many ways, and along with the prejudicial venue and related issues that we’ve talked about, warrants reversal.

In the concurring opinion of one member of the panel majority, the judge re-iterated for the third time that he believes the jury was tainted by the venue and misconduct. The deciding judge’s view was, in effect, ‘We should not rely on this [Miami] jury but if I am forced to rely on the jury by 11th Circuit precedent, then I can’t overturn the decision under the standards required.’

It is our hope that if the case is accepted in the Supreme Court, that this question can be resolved favorably to Gerardo.

Q: There are a number of requests from U.S. and international law and human rights organizations concerned about the case of the Cuban Five, who would like to file amicus curiae briefs supporting the case. What do you recommend?

A: It’s very, very helpful to us to have amicus support at this critical time. There are so many fundamental issues in this case that are relevant to every person in this country and to people throughout the world. The legal and factual support that amicus briefs can provide is something that we welcome and seek.

Q: What is the deadline for the amicus? What legal documents can attorneys and organizations review for their preparation of the amicus?

A: One of the primary resources is the appellate documents. That is probably the simplest way to review the case. Those appellate briefs and Court decisions are on your Free the Five website. Regarding the deadline, we would welcome amicus support prior to the filing of the certiorari petition or within seven days of it.

Q: When will the re-sentencing in Miami take place for Ramón Labañino, Antonio Guerrero and Fernando González? Will it happen after the Supreme Court appeal?

A: That hasn’t been decided yet. It is possible that it will happen before the Supreme Court has decided, but most likely it will be after. It depends on how the proceedings go, both in the Supreme Court and otherwise.

Q: It is now over 10 years and the wheels of justice are grinding extremely slow. So much of the delay is based on the legal technicality that you have described.

A: It is certainly tough. It is tough to wait, particularly if we are found to be correct, which we believe we are. It is a long time.

Q: What can happen legally if the Supreme Court were to turn down the writ of certiorari?

A: The defendants would still have legal options, including a procedure for moving to vacate the convictions and sentences in the district court. And that would have to take place within a year after the Supreme Court decides. It would require a formalized type of a habeas corpus proceeding, called a motion to vacate judgment/conviction. It has a time limit of one year. Time limits have been imposed on almost all habeas and post-conviction litigation based on a federal law passed in 1996. We would have a one-year deadline after the conclusion of the Supreme Court process, to file an initial habeascorpus petition. There are subsequent habeas rights but the initial ones have to be filed within a year.

Q: Does that mean that all and any future issues, any remaining issues of appeal, have to be presented then?

A: That is correct.

Q: How much does public awareness of the case and support for the Cuban Five help in gaining their freedom?

A: The support has been unwavering for the Five but it has also been growing. Anyone who takes the time to look at the improprieties of prosecutions that are obviously politically related can clearly see some aspects of this case simply cry out for revision. I think it is a case that needs to be addressed by the Supreme Court. That has been my feeling personally since the beginning. I think the Supreme Court could set a set an important standard with respect to justice in the United States. This could help the U.S. image in the world as well as improve bilateral relations.

Q: You have visited Fernando González lately. Can you tell us about him?

A: I saw Fernando in July. He is very attentive to the issues and progress of the case, as well as the support actions for the Five. Fernando is a very strong and calm personality. He is extremely courteous and respectful, not only of the lawyers but of the prosecutors and the court system. He is certainly grateful for all the support he receives and he tries to return correspondence to the greatest extent possible. A gentleman is how I would describe him in one word.

Q: What message would you give to the people around the world who are involved in the political support for the Cuban Five?

A: My message would be one of gratitude. These legal situations take a great toll on the defendants, the attorneys, and their families. To know that there are people who care about justice and fairness is fundamental and has been a great sustaining aspect of this case. Even though we have not won a substantial part of the appeal yet, each of the Five has been sustained by the support.

We in the defense team have tried to live up to everything we have said about the case and I believe that we have. The case is what it was from the beginning. It was prosecuted in a local environment in which it was least likely to be viewed dispassionately, least likely to be resolved based just on what transpired in court. Extremely long sentences were imposed. Fundamental questions of law and justice are involved and the case merits attention and concern.

Q: Thank you so much, Richard. For everybody who is dedicated to fighting for the Five until they are all home, for the people who support Cuba’s right to be free, we thank you and all the attorneys who are working tirelessly in this effort.

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Can the capitalist society avoid it? News about this issue are far from encouraging. The project to be submitted for approval on December next year in Copenhagen, where the new Convention that will replace Kyoto’s will be discussed and approved, is being currently analyzed at Poznan.

The Commission in charge of the drafting of this project is presided over by Al Gore, ex presidential candidate of the United States, who was fraudulently defeated by Bush in the elections of 2001. Those who are drafting the project are pinning all their hopes on Barack Obama as if he could change the course of history.

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I was able to follow the debates of the Caribbean leaders, the highest representatives of their nations at the meeting in Santiago de Cuba, capital of the former Oriente province and birthplace of the Revolution. In a few days we will be marking the 50th anniversary of its triumph, on January 1st, 1959.


The Order of the Caribbean Community is an immense and undeserved honour, which I deeply appreciate.


Each one of the leaders expressed their ideas with brilliant reasoning. Their knowledge of historic, economic and political issues, and their sincerity and courage was evident.


I humbly receive the noble idea of the decoration and will keep it in my mind, together with the thought of José Martí that “A free Antilles will safeguard the independence of Our Americas.”   


Fidel Castro Ruz

December 9, 2008

1:25 p.m.






                                                                                          December 8, 2008



Honourable Baldwin Spencer, Prime Minister of Antigua & Barbuda, and Chairman of CARICOM:


Honourable Prime Ministers and Presidents of the sister nations of CARICOM:


Honourable Edwin Carrington, Secretary General of CARICOM:


Distinguished heads of delegations, ministers, representatives of regional institutions and special guests:


It is an honour for me to extend to you an official welcome to the heroic city of Santiago de Cuba, a paradigm of rebelliousness for our people.


On behalf of the Cuban government and people we wish to express to the Caribbean nations our appreciation for the solidarity messages and the material assistance given to Cuba to face the damages caused by the three hurricanes which battered our country in recent months.


This meeting is held in compliance with the agreement reached at the Havana Summit of December 2002, where we commemorated the 30th anniversary of the establishment of diplomatic relations with Cuba by four Caribbean nations which acceded to their independence in 1972.


This is also a continuation of our second meeting held in Barbados on December 2005, where comrade Fidel said: “To the neoliberal and selfish globalization and to the anti-democratic international political and economic order we should respond with unity and with the globalization of solidarity, the promotion of dialogue and genuine integration and cooperation.”


Today, we can be proud of our contribution to greater exchanges and closer relations among our peoples as well as to the promotion of a more effective cooperation between Cuba and the Caribbean Community.


We are meeting at a time of uncertain economic realities. In previous occasions we had stated the enormous challenges faced by our peoples in their just endeavour to attain a sustainable development. Today, we are dealing with the failure of the neoliberal policies which have ruled international finances, credit relations, commercial and capital flows, payments and reimbursements and the value of hard currencies.


The entire system of the financial apparatus has collapsed. The rules and regulations imposed by the economic power centres to small countries  –such as the Caribbean nations–  are in a crisis, while waste by an aristocracy of financial speculators prevails combined with the voracious appetite of multinational corporations.

During this crisis, whose scope and depth can hardly be foreseen, the most vulnerable stand to pay the highest costs: In the developed nations it will be the poor; worldwide, the developing nations will have to carry the brunt of the burden. One way or another, the reckless disaster caused by speculation, individualism and greed will hurt the Caribbean economies.


Under these circumstances, the commitments we have made in recent years, turning cooperation and solidarity into the pillars of our relations, acquire additional relevance.


The projects we have fostered, and that we intend to continue strengthening, are not based on the rules of neoliberalism, which is collapsing today like a house of cards. They are not aimed at taking a comparative advantage or maximizing profits, but rather at promoting development, justice, equity and the welfare of human beings.


Despite the present conditions, these elements enable us to have confidence in the continuity and the strength of our bonds and in the possibility to continue developing our cooperation as an essential component of Caribbean integration. As we proceed with every project and programme, –with the exchange of skilled personnel and the transfer of technology, with the training of health professionals or the offering of health services– we are closer to the integrated region it is our aspiration to build.


Since we met in Barbados, 1,305 Caribbean students have graduated from our universities and technical schools in over 33 specialties; 567 of them are medical doctors. Today, 2,927 are being trained here; of which 1,478 are medical students.


The abovementioned economic realities and the additional difficulties brought about by the hurricanes notwithstanding, Cuba shall continue to carry forward this significant effort. By 2009, we shall be offering our Caribbean brothers and sisters 480 scholarships, including 150 to study medicine.


Our healthcare programmes will still be a priority. Up to the present, over 4,000 doctors and healthcare technical personnel have provided services to the Caribbean nations. Today, 1,115 of them are working in the region and this figure will grow with the opening of new services.


As of July 2005, over 56,000 people from 13 CARICOM member countries have either improved or recovered their sight, under the auspices of Operation Miracle. In order to secure the continuation of this programme, and in addition to the two already operational centres in Haiti, we confirm our pledge to accomplish, –together with the Caribbean authorities– the opening of three new centres in Guyana, Saint Lucia and Jamaica. These will provide the Caribbean region with an extensive cover of ophthalmology services and create the capacity to operate on 215 patients a day.


Dear colleagues:


This hurricane season has confirmed with ravaging eloquence the inescapable duty to prepare ourselves. We should boost our forecast capacity and timely adopt the necessary measures to protect the population, the economy and the natural milieu. We should also try to recover from the damages in the shortest time possible.

Haiti has been the most complex case and its population has sustained the worst ravages.   


The energy sector has raised equally urgent challenges. The energy crisis is essentially the result of the unsustainable consumerist and squandering model imposed by the rich countries.


The first step to take in order to tackle this crisis should be to save as much oil as possible while simultaneously looking for clean and renewable sources.


We do not think that using food for fuel production can be the solution in our world where more than 900 million people are going hungry.


We, Cubans, are proud of our Caribbean roots and of our relations with the nations in the region. We shall always be grateful for the support and solidarity received from your governments and peoples. At the same time, we feel deeply committed to those with whom we share these warm waters and a dramatic Antillean history.


But our region is larger; we are all part of the great geographic and social layout extending south of the Bravo River, with its population of over 500 million, its enormous resources and its rich culture. Today, the opportunity exists to advance towards a greater integration of this vast region whose success, including its survival, depends on the work of every country and people, be they big or small, rich or poor; this, without relinquishing our national or Caribbean features.


We have the possibility to take active part in the construction of a wide and diverse regional model, which recognizes the right to the special and differentiated treatment deserved by the smallest economies, one which is based on solidarity and aimed at establishing a common defence of the huge Latin American and Caribbean natural and cultural heritage to be enjoyed by our peoples. Cuba intends to work steadily towards this major goal.


Your Excellencies:


You have come to our country at an especially complex time when the impact of the genocidal economic blockade imposed by the U.S. administration combines with the unavoidable effects of the world economic crisis and the devastating consequences of the three hurricanes which hit our country barely two months ago. But, adversity will not break our people or make it renounce its commitments to our sister nations.


As we open this 3rd Summit of Cuba and the nations of the Caribbean Community, allow me to extend to you a fraternal welcome on behalf of all Cubans, particularly the “Santiagueros” and the people from the other eastern provinces who are receiving you in this indomitable land, –the most Caribbean of the island– with their well known hospitality and affection, and especially on behalf of comrade Fidel, a resolute promoter of unity among our peoples.


Thank you, very much.





Following Obama’s speech, on May 23 this year, to the Cuban American National Foundation established by Ronald Reagan, I wrote a reflection entitled “The Empire’s Hypocritical Policy”. It was dated on the 25th of the same month.

In that Reflection I quoted his exact words to the Miami annexationists: “[…] together we will stand up for freedom in Cuba; this is my word and my commitment […] It’s time to let Cuban American money make their families less dependent upon the Castro regime. […] I will maintain the embargo.”

I then offered several arguments and unethical examples of the general behavior of the Presidents who preceded the one who would be elected to that position on the November 4 elections. I literally wrote:

“I find myself forced to raise various sensitive questions:

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In the past few weeks, I had watched him in numerous functions as President of the Russian Federation, following the aggravation of the financial crisis battering the world. The Russian Federation is one of the most powerful States in the international community despite de dismemberment of the USSR.

The Russian President’s addresses are clear and precise and he tends to be brief. He does not avoid any issue and he responds every question. He is knowledgeable and persuasive, and he is respected even by those who disagree with him.

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