Five Lawyer: 'The greatest moment of my life'

Campaign News | Friday, 12 August 2005

Radio Havana Cuba Interview with Paul McKenna, Gerardo Hernandez’s lawyer

10th August 2005

Paul McKenna, who was born in Chicago in 1955, is the state appointed lawyer for Cuban Gerardo Hernandez. McKenna, who has been practicing law for nearly 25 years, is a partner in the Miami law firm McKenna and Obrant

Gerardo Hernandez, along with a group of other Cubans, was arrested in Miami, Florida in September 1998 and after a 17 month spell in solitary confinement was tried and convicted of crimes against the security of the United States in a highly flawed legal process in the federal court in Miami. Hernandez was also accused of conspiracy to commit first degree murder for which he was serving a double life sentence plus fifteen years.

His co-defendants, Antonio Guerrero, Fernando Gonzalez, Ramon Labanino and René Gonzalez, were also subjected to the same legal mistreatment before, during and after the trial.

The whole legal process up until now has been seen a complete miscarriage of justice as both legally and morally the men were innocent of the charges against them The only reason they were in Miami was to infiltrate the anti-Cuban terrorist groups that were carrying out acts of sabotage against Cuba with the support of successive US administrations.

As a result of an appeal that was lodged by the defense team in March 2004 to the 11th Circuit court of Appeals, Atlanta, a land-mark decision was handed down, August 9th this year, ordering a complete re-trial in a different venue.

Paul McKenna spoke by telephone to Bernie Dwyer, Radio Havana Cuba, August 10, from his office in Miami about his and his client’s feelings after they heard the news about the appeal court’s opinion. According to McKenna his client is an innocent man again.

“He is presumed innocent. All his convictions are vacated. They don’t mean anything anymore”.

McKenna is now going to fight for the right of Gerardo’s wife, Adriana Perez, who has not seen her husband for seven year because of the US refusal to grant her a visa to enter the United States to make a prison visit, to come to Miami when Gerardo is moved back there to begin the legal process again.


[Bernie Dwyer (BD)]: This is really the most exciting news we have had about the case of the Five in seven years. How would you describe how you feel?

[Paul McKenna (PMK)]: Extremely excited and elated!! I have been a lawyer since 1982 and the greatest moment that I ever had was yesterday when I was able to call Gerardo Hernández at the prison where he is at and get him on the phone and tell him that we had won the appeal.

In my nearly 25 years of being an attorney that was my greatest moment.

[BD]: So you have actually spoken to Gerardo. Can you possibly get across to me his words and his reactions when he heard the news?

[PMK]: I have to tell you that he was very emotional. I have known him a long time and he never gets emotional but he was very emotional. It’s understandable that he would be emotional.

The first question he asked me when I told him that his case had been reversed and sent back for a new trial was: “what about the others” and I told him not to worry that everyone’s case has been reversed. As usual, the first thing that he thought about was other people and he told me that he was very much looking forward to talking to his wife, Adriana and telling her and talking to his mother and he thanked me. He asked me if I could mail him a copy of the decision. The final thing he said was “Paul, what next?” I said:” You know, we start all over again. Soon you will be coming back to Miami”.

It was a short conversation because they don’t normally allow conversations with lawyers like that and I had to call a counselor and make a special request. He was very, very emotional but very, very happy.

[BD]: Gerardo Hernandez has served seven years of his two life sentences plus fifteen years and during that time he has not been able to receive a visit from his wife Adriana. Is that going to change now?

[PMK]: I think the saddest part of Gerardo’s case is that he has not seen his beautiful wife, Adriana, in seven years. I don’t know a couple that is as devoted to each other or love each other as much as Gerardo and Adriana. They have a truly beautiful love. Adriana is such a strong person and she has been fighting for seven years to see her husband. She must be so happy with this news. And I am so happy for her.

And I think now that after seven years we have to re-dedicate ourselves to contact the highest people in the American government to just grant the basic humanitarian decency, the courtesy of allowing a wife to see her husband. That’s a universal principle. It doesn’t matter what country you are from, what religion or politics you have, that’s a fundamental human right; a man can see his wife if he is in prison and we have to be able to get Adriana to come to the US now.

He is an innocent man again. He is presumed innocent. All his convictions are vacated. They don’t mean anything anymore. As a free man, as an innocent man, as a man that is presumed not to have done any crime, he has a right to see his wife and we must contact the highest people in the US government to make this happen.

[BD]: Can you explain why it is that Adriana has not been able to go to visit Gerardo?

[PMK]: The government claims that at one point they thought that possibly Adriana might be linked to some of the acts charged. But she wasn’t and now so much time has passed that they couldn’t even charge her even if they wanted to.

In the United States, you can only be charged with a crime within five years of having committed it. And she didn’t commit any crime in the first place but they haven’t charged her with any crime either. They shouldn’t be using these accusations of denying her entry into the United States. I’m going to contact them and I’m going to suggest that she should be allowed to come to Miami when he has returned here.

She could stay with me if she wants to. I’ll take her to the jail. I’ll take her for her visits and when the visits are over I will take her to the airport. She is a perfectly decent honorable human being who only wants to see Gerardo after seven long years. I’m going to everything I can to make sure that happens.

[BD]: Do you think that the decision that came down from the UN Working Group on Arbitrary Detention and now this huge opinion from the 11th Circuit can make this fail-safe inasmuch as the US government will not overturn this decision.

[PMK]: The United States government could never overturn this decision. The only group that could is the US Court of Appeals and their opinion is so strong and so long and so full of detail that I don’t see any way that that decision will ever be changed. I’m not concerned about that.

I feel very strongly that the Court of Appeal’s decision reversing and remanding the case for a new trial will stand. I feel very confident about that. However, having said that, we still have a long road ahead of us. We have been given a fresh start. We have been given a clean slate but we still have a huge adversary that we must defeat.

We have a long way to go in this case and it’s going to take a lot of work, good lawyering, good strategies and we are going to have to rethink how we are going to do this case. I think that if we put our minds and our hearts to it, we can accomplish anything.

[BD]: And what about the role of the solidarity groups? How will they continue their campaign?

[PMK]: I think that what they have done has helped to keep the spirits of the Five alive, and whenever I see that, it spurs me on. That encourages me. Their contribution is enormous and I would ask them to keep doing what they are doing because it does have an impact. It has an impact on me.

It has an impact on my client to know that there are people who support us because I have got to tell you that there were a lot of dark and lonely days when it didn’t seem like we would get to where we got to yesterday. But those people were reason to keep going and those people that gave all that support are people who will keep fighting and I hope that they will keep doing it.

This interview is for broadcast on Radio Havana Cuba on Friday 12th August 2005

Cuban Five lawyer Weinglass interviewed on landmark decision

A federal appellate court in Atlanta overturned the convictions of the Cuba 5 and ordered a new trial on the basis that the men could not get a fair trial in the right-wing Cuban exile stronghold of Miami. The five were accused of spying for Cuba. We speak with Leonard Weinglass, one of the lawyers for the Cuba 5.


It is being called a historic decision in the case of the Cuba 5-five men hailed in Cuba as heroes and labeled spies by the US government. On Tuesday, a federal appellate court in Atlanta overturned their convictions and ordered a new trial. The five were accused of spying for Cuba. In its ruling, the Court said the men could not get a fair trial in the right-wing Cuban exile stronghold of Miami.

In 1998, Ruben Campa, Rene Gonzalez, Gerardo Hernandez, Luis Medina and Antonio Guerrero were arrested in Florida and were tried and convicted of espionage, conspiracy and related charges. They were accused of spying on Cuban-American exile leaders and U.S. military bases and convicted in December of 2001. Gerardo Hernandez was also convicted of conspiracy to commit murder for engineering the shootdown of two Brothers to the Rescue planes in 1996. Brothers to the Rescue is a violent anti-Castro, Cuban exile group that has regularly attacked the island nation.

The five spent almost three years in jail between their arrest and the beginning of their trial. Three of the men were given life sentences while the other two were sentenced to up to 20 years in prison. Yesterday, the 11th Circuit Court of Appeals overturned the convictions and essentially agreed with the defense that bias in Miami against Cuban President Fidel Castro and the Cuban revolution stopped the defendants from getting a fair trial. In its ninety-three page opinion, the court wrote, "The entire community is sensitive to and permeated by concerns for the Cuban exile population in Miami. A new trial was mandated by the perfect storm created when the surge of pervasive community sentiment and extensive publicity both before and during the trial merged with the improper prosecutorial references."

Leonard Weinglass, long time civil-rights attorney and one of the lawyers for the Cuba 5.


AMY GOODMAN: We're joined now by Leonard Weinglass. He’s a long-time civil rights attorney and one of the lawyers for the Cuba 5. Welcome to Democracy Now!

LEONARD WEINGLASS: Good morning, Amy.

AMY GOODMAN: It’s good to have you with us. Well, are you surprised by this verdict?

LEONARD WEINGLASS: We were surprised. Clearly, the facts and the evidence were in our favor, but in the climate of the courts today, we weren't sure that those facts and the law would be applied, but they were, and they were vigorously applied in this decision.

AMY GOODMAN: So, this is a decision by the Federal Appeals Court in Atlanta that reverses the convictions of the five men. Can you talk about what's in these 93 pages, and what happens to the men now?

LEONARD WEINGLASS: Yes. First I'd like to say that this opinion is a first time that an appellate court has reversed a federal judge on the question of venue. It never happened before in our history. And what they did in this 93-page opinion is they analyzed completely the answers given by the 168 jurors who were questioned. They analyzed the history in Miami. They pointed to the report by Human Watch.

AMY GOODMAN: Human Rights Watch.

LEONARD WEINGLASS: Yeah. Human Rights Watch, which ordinarily examines human rights issues in foreign countries, but looked at one city in the United States, the city of Miami, and found it wanting in terms of civil liberties, particularly towards those who harbor even neutral opinions on Cuba. And so, they analyzed the community. They analyzed the jury. They analyzed the way the prosecutors handled this case, telling the jurors over again, three times, that they came here to destroy the United States, when there was no evidence of that whatsoever. They came here to monitor the activities of groups that were attacking Cuba. So, in a complete comprehensive analysis, they looked at the dynamics of prejudice and bias in Miami directed at the five. And they found in the first time the federal court has so found that the federal judge was wrong in not changing the venue.

AMY GOODMAN: What about some of the questions of the jurors that they analyzed, the jurors that ended up in this jury, that convicted the five men?

LEONARD WEINGLASS: Well, of course, they selected 12, and these were 12 of the 168 who indicated that they could be the most fair, and to give you an example of what happened, the lead juror, the foreman of the jury, said that he felt that Fidel Castro was a communist dictator and that he would be pleased the day that he would be removed. That is about as neutral a statement as they could get from these 168 jurors. The number two juror agreed with that. His daughter happened to be an F.B.I. agent and had been for ten years. The number three juror was married to an I.N.S. agent. The number four juror was married to a fellow who left Cuba after the revolution and came to live in the United States, and so on down through the list of 12. But these were the fairest of the 168. I must say that just three jurors said that they felt that there was some good and some bad about Cuba, and that they could be neutral. Those three jurors were removed by the government.

AMY GOODMAN: We're talking to Leonard Weinglass, one of the attorneys for the Cuba 5. We have been following the militant Cuban exile, Luis Posada Carriles, who is now being held in a Texas jail. They mentioned Posada in this decision.

LEONARD WEINGLASS: Yes. They did. In reviewing the evidence of the case, out of the 93 pages, 20 pages were involved in a review of the evidence, and in footnote 170, they reviewed the fact that in the course of the trial, it was pointed out that one of the operatives of the paramilitary groups had met with Carriles, who was a known terrorist, and that's in the official record now of the opinion of the case. And so, they did talk about the evidence that the defendants brought up in the case, evidence which showed the necessity -- and they used that defense -- the necessity of their coming to the United States in order to protect their country from these attacks.

AMY GOODMAN: What about Orlando Bosch? How does he fit in?

LEONARD WEINGLASS: Orlando Bosch is not mentioned, but the Orlando Bosch case is a model of the hypocrisy of the American policy toward terrorism. Orlando Bosch, the Department of Justice said, is a leading terrorist in the western hemisphere. He now lives in Cuba. He walks his dog every morning --


LEONARD WEINGLASS: In Miami. I'm sorry. He walks his dog every morning near to the courthouse, where the case was tried. He was a man who was convicted in Miami of firing a bazooka at a Polish freighter in the harbor. He is a man who’s implicated in the shoot down of the commercial aircraft, the Cuban commercial aircraft, and he applied to have permanent residency in the United States. Department of Justice ruled that he was not qualified, because he's a known terrorist. The President of the United States overruled the Department of Justice at the insistence of his son, who was Jeb Bush, and the President was Bush, Sr. But Mr. Bosch was given permanent residency in the United States where he currently lives.

AMY GOODMAN: Hasn't he admitted to trying to kill Castro.

LEONARD WEINGLASS: He has admitted on television, actually, that he has made several attempts to kill Castro.

AMY GOODMAN: We're talking to Leonard Weinglass, one of the attorneys for the Cuba 5. So explain now the significance of this decision, The convictions of the five men have been reversed. They have been in jail for some, what, seven years now?


AMY GOODMAN: But they don't -- they're not just freed. Now this case has to be retried?

LEONARD WEINGLASS: Well, there's a demand being made that they be freed. They have served seven years in maximum security prisons.


LEONARD WEINGLASS: Spread out throughout the United States. They're not together. One is in California, one is in Colorado, one is in Wisconsin, one is in Georgia, and one is in Texas. They're as far as removed as you possibly can be. Two have not been allowed to see their wives, in violation of international human rights law. And we are asking that they be freed immediately, since they were now wrongfully convicted, and they have already served seven years.

AMY GOODMAN: So, they were tried -- convicted of serving as unregistered agents of a foreign government, namely, Cuba?

LEONARD WEINGLASS: That's one count, and that count carries a five-year penalty. If they're guilty of that count, they should all be freed immediately, since they have already served more than five years.

AMY GOODMAN: So, what is Cuba -- how is Cuba responding now? Certainly, they have made this a major case. There are groups all over the country that have been fighting to free the Cuba 5. What's been the response from Havana?

LEONARD WEINGLASS: Well, first, Havana is elated about the result. They were elated when a month ago the U.N. working group on arbitrary detentions also called for the release of the five, pointing to the fact that they were tried in an unfair atmosphere in Miami, a position that has now been validated by the 11th Circuit Court of Appeals. So the Cubans are actively calling for the release of the five, and they are very gratified and pleased with the result in the 11th Circuit Court of Appeals.

AMY GOODMAN: Have you spoken to any of the men, the imprisoned men?

LEONARD WEINGLASS: I spoke to my client, Antonio Guerrero. He is in a maximum security prison, serving life in Colorado. And I have to say, when I mention their sentences, these sentences were extraordinary. These five men came to the United States unarmed, without guns, without explosives. During the period of time that they were here they committed no acts of sabotage. There was no property damage. Nobody was injured. They took no secrets of the United States. This is the first conspiracy to commit espionage trial in our history where not a single page of classified information was involved. These five men were focused on the paramilitary groups that function in the United States and attack their country.

AMY GOODMAN: Who decides whether these men will now go free?

LEONARD WEINGLASS: The next move is up to the Department of Justice. And they're going to have to make their decision as to what they do. They have 21 days to decide whether or not to appeal this decision to the entire 11th Circuit. And then they could attempt to appeal it to the United States Supreme Court. Given the way the decision came down, the way it's written -- by the way, it's the most extensive decision in the history of the United States on the question of venue. It is a landmark historic document. It will be cited by lawyers from here on in in all the terror trials that are being committed. It will be used by law schools as a study vehicle. This is an amazing opinion, which analyzes the dynamic of prejudice that an accused faces in a courtroom in the United States.

AMY GOODMAN: Leonard Weinglass, I want to thank you very much for being with us.


AMY GOODMAN: And we'll certainly continue to follow this case and what happens to these five men who currently remain in prison

Landmark Decision Overturns Cuba 5 Convictions

MIAMI 9 AUG: A US appeals court on Tuesday overturned the convictions of five men found guilty of spying for Cuba and said pervasive prejudice against the government of President Fidel Castro had prevented them from getting a fair trial in Miami.

The U.S. 11th Circuit Court of Appeals in Atlanta ordered new trials for the "Cuban five," who were convicted in 2001 on conspiracy and espionage charges.

Three had been sentenced to life in prison and the others to 15- and 19-year terms, sentences that a United Nations human rights body condemned last month as arbitrary and unduly harsh for the men hailed in Cuba as national heroes.

The appeals court in Atlanta acknowledged in its ruling that reversing the convictions would be unpopular and offensive to many U.S. citizens.

"However the court is equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba," the court said. "One of our most sacred freedoms is the right to be tried fairly in a noncoercive atmosphere."

The five men were part of a ring that infiltrated U.S. military bases and Cuban exile groups and fed information to Havana, prosecutors said. The defendants said they caused no harm to the United States and gathered information solely to defend their homeland from attacks by Cuban exiles in America.

One defendant, Gerardo Hernandez, was convicted of conspiring to commit murder in a 1996 incident in which Cuban MiGs shot down two small planes flown by Cuban exiles over the Florida Straits. Four men died.

Hernandez admitted feeding information about the exile group to Havana but had no role in ordering the shootdown, his lawyer has said.

Defense attorneys argued that pervasive prejudice against Castro and the Cuban government and publicity surrounding the trial made it impossible for them to obtain a fair trial in Miami, which has a large Cuban exile population.

The trial began eight months after federal agents removed shipwreck survivor Elian Gonzalez from his Miami relatives, a heart-wrenching and divisive saga that received wide attention. The boy was returned to his father, who took him home to Cuba.

The jury that convicted the men did not include any Cuban Americans. But 16 of the 160 members of the jury pool knew the victims of the shootdown or knew trial witnesses who had flown with them.

Nearly all the jury candidates expressed negative views of Cuba and the only three who said they had mixed views of the island were dismissed, defense attorneys said.

Announcement from the National Committee to Free the Cuban Five

TODAY, August 9, after more than one year of weighing the evidence, the 11th Circuit Court of Appeals vacated the trial court's ruling against the Cuban Five and ordered a new trial with a change of venue. This is a sensational victory for the Five, the Cuban people, and the international people's movement that supports them! The Five will now receive a new trial in a place other than Miami.

This blow to the U.S. government undeniably was made possible by the hard work and growing support of progressive, justice-loving people in the U.S. and all over the world.

The National Committee to Free the Cuban Five is holding a telephone press conference today with the Five's attorney, Leonard Weinglass, the coordinator of the National Committee to Free the Cuban Five, Gloria La Riva, A.N.S.W.E.R. Coalition Coordinator, Brian Becker, and other activists and legal experts to discuss this landmark victory. We will send more information as soon as we have it. In the meantime, call 323-464-1636 with questions. A.N.S.W.E.R. has been a leading supporter of the Cuban Five since the beginning of the case.

The Five are one big step closer to freedom. Let's continue the struggle and ensure total victory. Free the Cuban Five! U.S. Hands Off Cuba!

Volverán! They will return!

National Committee to Free the Cuban Five

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