New York 4th May 2009
As we near the May 28th, the date the US government will file its papers opposing the Supreme Court taking the case of Gerardo Hernandez, Ramon Labañino, Antonio Guerrero, Fernando González and Rene Gonzalez, known worldwide as the Cuban Five, Leonard Wineglass, representing Antonio Guerrero and part of the defense team for the five Cubans, explains in detail the legal process facing the legal team in the present political climate in the US.
Bernie Dwyer (RHC): 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 papersasking the (US) Supreme Court to take the case on May 6th. Then we heard from the government a week ago and they asked for a third extension of time, which is somewhat unusual, to May 28th which the court granted. The next date is May 28th 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 22nd. We are getting very close to endourt’s term so we will most likely hear from the court on that date, June 22nd. If we do not, then the decision will probably go over until the Fall but we anticipate hearing from the court on the 22nd of June.
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% of all cases presented for review. Is that correct?
LW: It is actually slightly less than 2%. 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. Also, 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 its’ 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% 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 2000 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 2000 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 2000 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 whodisdain 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 withus 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 far 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 200 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 n. 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. Tom Goldstein, our chief counsel on the Supreme Court litigation, has written to the Solicitor General pointing out that in deciding the issue of the removal of African American jurors in this case, the 11th Circuit court in Atlanta used the rule that no other court in the United States has adopted, known as the ‘per se’ rule which permits the government to remove African American jurors just so long as there are still remaining African Americans on the jury of twelve people and so long as the government still has the power to remove those who remain but decides not to. Now that’s technical but it’s called the ‘per se’ rule.
Only in the 11th circuit which covers Georgia, Alabama, notorious Southernstates, as well as Florida, has that rule been applied and we have asked through Tom Goldstein’s letter, for the Solicitor General to consider the full impact of that rule and the fact that prosecutors under that rule are given the green light in a court room in the United States to exercise a bias, a prejudice, against an African American juror without having to explain the reasons for doing so.
For those of us who practice in these courts, that is a major step backwards and we question whether the United States wants to implement such a policy.
Clearly, such a policy would not be acceptable for job applicants, for those seeking housing or those who want to vote. The question is, will it be accepted in a court room, a federal court room of the United States? We hope that there is now some new sensitivity in the Solicitor General’s office that wasn’t there before. To allow such a process is unacceptable and so after Tom Goldstein wrote that letter asking the Solicitor General, who represents the United States, to reconsider that, the government came back without a response ut they asked for an extra two weeks to review the case.
Some are feeling optimistic about that, frankly I am not. I think the Solicitor General’s office, which is new, is organizing itself. Even now as we speak the Solicitor General, Dean Elena Kagan is being considered for the Supreme Court. That might add further to their internal turmoil. But I think it is attributed to the fact that the Solicitor General’s office is newly installed and needs more time to organize itself. I hope I’m wrong and I hope it is that Dean Kagan is considering the issue raised in Tom Goldstein’s letter but Tom Goldstein doesn’t think that’s the process. He thinks that it’s just the office needs more time.
BD: Obama now has a chance to appoint a new judge to Supreme Court as a vacancy has arisen. Do you feel that he might take this opportunity to put in somebody who might be progressive or is there such a thing as a progressive Supreme Court judge in the US?
LW: I don’t think there is such thing. For the first time in the last hundred years, out of nine sitting justices, there is not one who is opposed to capital punishment. We have always had one, sometimes we have had two and I believe once even once in the 60’s, reflecting the policy of the 60’s, we had three but this court has not even one who is opposed to capital punishment as a matter of principle.
Well, the New York Times has recently warned the people of the United States not to expect a liberal judge. That’s the word that’s out in most media because Barack Obama, on issues of constitutional law, may not be a liberal himself but is called a pragmatist, which is a gentle word for conservative.
So I’m not very hopeful. There are people who have liberal credentials but who buy in to the National Security State, and I think that might be the direction in which we are going. I might say that the departing justice, Justice Souter, a bachelor living on a farm in a rural area of New Hampshire, is a man with liberal credentials but he didn’t buy into the National Security State. He’s going and it could be that the one who replaces him, with perhaps liberal credentials, does buy into the National Security State. This case of the five Cubans impacts on the question of the National Security State so it is very hard to be optimistic but like everyone I am waiting and watching but I really don’t expect President Obama to reach across to a progressive and possibly not even a liberal . He has made it clear that he is not seeking an ideological choice which is unfortunate because the right-wing justices are strongly ideological. Unless there is a counter to their ideological stance, the right wing sway of the court will continue so I’m waiting and watching but I’m not optimistic.
BD: On what grounds do you think he will choose if he is not choosing on ideological grounds?
LW: He refers to it as ‘pragmatic’. Someone, as he puts it, who understands the temper and the mood of the American people. That is not the role of the Supreme Court. The role of the Supreme Court is to be a bulwark against the temper and attitudes of the American public and to protect the rights of the minority and the powerless. So there seems to be confusion here.
We do not need a justice who reflects the mood of the American public. The question is: should justice reflect attitudes in the community or should justice reflect the fundamental rights of those who are minorities and powerless in the community. I have always taken the position of the latter and so have my brethren in the National Lawyers Guild. It’s a fine line and I think it has to be understood because it is critical to this process we are
This interview was broadcast by Radio Havana Cuba’s English department in three parts beginning on Wednesday 13th May 2009