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Let Cuba Live
May 2009 Cuba Update
Bernie Dwyer Interviews Leonard Weinglass
Weinglass: "The Cuban Five probably have more support internationally than any case that has come before the court."As we near 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 Gonzalez 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: 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 papers asking 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 end of court’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.
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.
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 Southern states, 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 but 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.
This interview was broadcast by Radio Havana Cuba’s English department in three parts beginning on Wednesday 13th May 2009.