Interview with Leonard Weinglass, attorney for Gerardo Hernández
by Gloria La Riva
June 15, 2010
Exclusive to freethefive.org
It was announced yesterday that a habeas corpus petition was filed on behalf of Gerardo Hernández. What is a habeas corpus petition and why it is also known as collateral?
Following his conviction Gerardo had a right to appeal it to the circuit court of appeals in Atlanta, which he did and then seek a review in the U.S. Supreme Court, which he also did. That process is the direct appeal. When that process is completed, which it is in Gerardo’s case, then one has the right to launch a collateral appeal or a collateral attack, which is a very limited form of appeal (only constitutional issues not previously litigated, plus a claim of actual innocence)), in what was previously known as “federal habeas corpus.” Now it is called a “Section 2255,” motion. And that is where we are now.
We filed the section 2255 motion on June 14, with our brief to follow within 30 days, indicating those constitutional violations which had not been part of the previous appeal, and a claim of actual innocence.
Why is this a final appeal for Gerardo? Isn’t a habeas corpus without time limit or restrictions?
There is definitely a time limit on habeas corpus. You must file within one year of the last litigation event. In Gerardo’s case, that was when the U.S. Supreme Court rejected our petition for review on June 15, 2009. That gave us one year to June 14, 2010, to file the collateral attack or the habeas corpus. However, if it should come to pass, that even after this deadline is over, new evidence that was not previously available should arise, you can still go back to court in a very narrow band of opportunity and argue for actual innocence, which is what we are also arguing in these papers we have filed.
Any evidence of actual innocence or grevious government misconduct could possibly be a basis for going back to court even though we have a one-year statue of limitation.
Why is there a one year limit?
It was set by Congress i believe in 1996, and signed by President Clinton. There used to be no limitations on federal habeas but in the 1996 reform they set a one-year limit for filing. Many people feel it is unfair because what happens in a number of cases is that evidence surfaces after the one year deadline. Now a defendant is presumptively barred – unless he or she can convince the court of the right to accept a late filing, not easily done.
What court was Gerardo’s filed in and what are the next steps if it is denied?
The case is filed in the federal district court in Miami, which is the southern district court of Florida. That is the same district that had the trial. And ordinarily it goes back to the same judge. However, in the Miami practice – as well as in a number of other federal districts – the sitting judge frequently refers the motion to a magistrate and the magistrate examines the papers preliminarily and holds a hearing if necessary.
In certain cases which are complex, the federal district court trial judge could actually keep the case and have a hearing before herself or himself. We don’t know yet whether Judge Lenard, who was the trial judge, will keep this case for herself or whether she will refer it to a magistrate.
If the magistrate or judge believes it has merit what will happen?
If either one believes it has merit, an opinion is written. And in that opinion the court will set forth the remedy. The remedy we’re seeking of course is a new trial for Gerardo. Then you have the regular course of appeals should we lose. You can go back to the 11th Circuit Court of Appeals and they will review the case if the trial court or the appellate court certifies issues for review. And if you lose there, you can once again may petition the U.S. Supreme Court to take the case.
One of the issues of the appeal, is that of the journalists who were being paid without the defense knowing, journalists who were supposedly independent but were receiving money from Radio and TV Martí.
This is a classic case of newly-discovered evidence of a constitutional dimension. The trial occurred in the period of 2000 and 2001. No one knew that these journalist were being paid by the government at that time. But in 2006 it was revealed that in fact some of the regular reporting journalists were also on the payroll of the federal government in connection with Radio and TV Martí. Since that was not revealed until 2006, it is newly-discovered evidence. Since it is evidence of the government’s manipulations of attitudes within the community, it is of a constitutional dimension since it violated Gerardo’s constitutional right to a fair trial.
And it is a violation of due process. So in our papers we are citing the 2006 revelation, and all the excellent work that has been done by the National Committee to give substance to these revelations and to also seek under the Freedom of Information Act, further information which is still forthcoming to buttress the claim.
There is still additional information, as the litigation under the Freedom of Information Act proceeds, to develop more and more information on these journalists, their agreements with the government, what they did, and under whose auspices.
We expect the case will be in the district court for at least six months, probably longer. So as we get new information it can be added to the papers we’ll be filing this and next month.
You have a long history defending people who were prosecuted for being involved in social justice issues. How do you see the case of the Cuban five in the context of your history defending political prisoners?
This case is very similar to those cases. Once you have a prosecution where the government has a political interest in the outcome, there’s always a strong likelihood that steps will taken that were improper in initiating and prosecuting the case.. And steps were taken here that were not known at the time of the trial but became known later.
We are going to be finding additional information that the government withheld, that they didn’t provide, that they used to manipulate this process in order to gain a conviction. As has happened in past cases, this is going to be a revelatory process where we’re going to find out things that were not known at the time of the trial and which only became known later through additional prodding and pressure.
What attorneys are involved in the appeals?
Most of the attorneys have remained in the case, and others have joined.
That is a typical process. Frequently, as in the case of Tom Goldstein, you need the special expertise of an attorney who practices before a particular court. Goldstein of course is an expert in U.S. Supreme Court litigation. He teaches seminars at both Harvard and Stanford on supreme court litigation.
When we got to the level of the Supreme Court we turned to Tom Goldstein and we used all of his expertise to good advantage, although we were not successful there.
With respect to myself, I came into the case in 2003, seven years ago, at the point was about to be heard on appeal. My work injury selection and venue was needed at that time and I became an appellate lawyer arguing the issue of venue and jury selection, which virtually succeeded, in the first go-around, but it was reversed by the en banc court a year later.
As the case moves up through various stages, there are various requirements and certain lawyers have certain skill sets that meet those requirements.
Some people have asked if there is any relief after the final appeal, is there any relief, any courts in the international arena available to the Five?
In May of 2005 a subcommittee of the Human Rights Committee of the UN the sub on arbitrary detention did issue an opinion by five judges that the venue violated international norms of due process, and they urged the US to move the case to another venue The us of course did not respond. There are other venues, in other courts, the inter-American court on human rights, after all of our appeals have been exhausted and we no longer have any rights to go into any American court.
We can then appeal to international courts. The Int’l Court on Human Rights in Latin America is the one we would probably go to.
No actual enforcement of courts. They have ruled in the past with respect to Mexican American men who are on death row and have not been given their rights to counsel under the Warsaw Pact.
We are talking about law and legal issues. What other means do you think there is to win justice for the Cuban Five?
The filing on June 14 was behalf of Gerardo Hernandez. His case now is exemplary in terms of the need for intervention by international bodies, organizations and individuals, because he is serving two life sentences plus 15 years, in a situation where most would acknowledge he is innocent of the charges. Also he is the first person in U.S. history to be charged for the shootdown of an aircraft by the armed forces of another country.
This has never happened before. And I would say with respect to him being actually innocent: This is also an unprecedented case in that the United States prosecutors acknowledged at the end of the trial in an emergency appeal to the appellate courts that they did not have sufficient evidence, they called it an “unsurmountable obstacle” to gaining a conviction in his case. That appeal was rejected by the Circuit Court. The case was submitted of course to a Miami Jury and evidence was not apparently necessary for that jury to convict.
So under ordinary U.S. law, Gerardo is clearly demonstrably innocent of these charges but it is also an unprecedented case internationally where an individual has been singled out for prosecution as a result of a sovereign country using its military force tot protect its borders.
Gerardo’s case is really one that calls for interventions by non-judicial, non-legal bodies and people interested in human rights around the globe.
What message do you have for Gerardo and for the movement?
I spoke to Gerardo two days ago, he called me from his maximum security prison in California. He wanted an update on where the case stood right now. He is a very strong, firm person who believes in his own innocence, his country, who believes he has done nothing wrong to violate any laws. He has been an exemplary prison, not a single violation in his 12 years living under the rigors of maximum-security confinement. He is hopeful that ultimately his case will see justice. And he looks to people outside to raise their voices, to make known their concern about his plight. He feels extraordinarily confident that ultimately, he will be vindicated.