Press Conference on the latest developments in the appeals of Gerardo Hernández and Antonio Guerrero

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"Gerardo Hernández - for the first time in his own words - gives irrefutable evidence of his innocence." - Attorney Richard Klugh

There was "a distinct, fundamental violation of the premises of a fair trial where the government secretly paid highly influential journalists." - from the Memorandum of Antonio Guerrero

Gloria La Riva, moderator: Today the National Committee to Free the Cuban Five is holding a very important press conference to make public the affidavit of Gerardo Hernandez, who for the first time declares the facts and irrefutable truth of his innocence with respect to the false charge and wrongful conviction for murder conspiracy. The document was submitted to federal court yesterday in Miami.

We will also hear presentations by the speakers on the memorandum in the latest habeas corpus appeal of another member of the Cuban Five, Antonio Guerrero. His memorandum, also available to the media and public today, speaks for all the Cuban Five regarding the US government’s illegal and secret payments to prominent and influential Miami journalists, who in concert with and in the employ of the U.S. government, worked to create a hostile and prejudicial environment in the city of Miami before and during the Five’s prosecution. We will hear from our speakers.

Before we begin the presentations I would like, on behalf of everyone who has been involved in the campaign to free the Five, to give special recognition and honor to Leonard Weinglass, who very sadly is in a grave health situation. Leonard has had a long and heroic history as a civil rights attorney and fighter for justice. He joined the Cuban Five case in the appeals phase and has been instrumental in their defense, including the current appeals for Antonio Guerrero and Gerardo Hernández. I will read a few words from Antonio Guerrero, for whom Leonard is his attorney of record.

“In the very critical moment in our process, March 19, 2003, when we Five were locked up in punishment cells, isolated from the general population by an arbitrary and unjust measure, Weinglass did not rest until he was able to visit some of us. I will never forget that March 19th after two weeks of not having contact with anybody, nor with the outside world. I was taken from my cell from the hole for a legal visit with him and there was Len. His reaction was very strong when he saw me chained up, and we were not permitted to have any contact, only through the window by telephone. Returning to my cell with a small pencil and a piece of paper which miraculously arrived in my hands, I wrote these verses:

We will begin the presentations in our press conference. I would like to first introduce Richard Klugh, who is a Miami attorney and one of the Cuban 5’s legal team. Richard is a renowned criminal defense attorney in Miami for more than 30 years. He has focused on constitutional and criminal litigation. He has represented the Cuban Five throughout their appellate and post conviction proceedings and is presently counsel for Gerardo Hernández in the United States district court.

Richard Klugh: I wanted to participate in the conference to make sure that any questions regarding the process that Gerardo has been through and any questions regarding his affidavit could be resolved at this time. It has been a long legal struggle with regard to his case and we feel that we are at the stage now where we can finally present all meaningful facts so that everyone can judge that he clearly had no involvement in the shoot-down of 1996. He had no foreknowledge of it, he had no role in it, he did not conceive of it happening, he did not promote its happening. While clearly there was a clamor for someone to take responsibility for it, Gerardo Hernández is not responsible for what happened, and he should not be saddled with the stigma of having that responsibility.

GLR: Would you like to speak about the issue Richard also, of the part of the appeals on the matter of the U.S.-paid journalists?

RK: Yes, in Len Weinglass’s stead, Len is very very ill and we wish the best for him, but he is not able to participate. He has filed a memorandum of law two weeks ago, in support of the evidence that is now overwhelming, of a tremendous number of local journalists in a matter that first began to be uncovered after the appellate process was concluded, by the Miami Herald.

There was a tainting of local journalists in the service of a campaign to undermine Cuba and Cuban interests at the very time and in the very same context as the trial. Just as the government was contending that the trial should go forward in Miami, the government was at the same time secretly paying journalists in Miami to help contribute to an atmosphere that made it very difficult for a juror to find any excuse or any justification for anything that the Cuban agents the five – had been doing.

So that, by, on the one hand advising the court that there was no reason to think that Miami was any different than any other community in terms of having a fair trial, and at the same time flooding the local media with money to fund anti-Cuba, anti-Castro, anti-Cuban Five messages, that was a fundamental denial of due process.

There is no question that in terms of reported case law, there has never, in the history of the United States, been a time when this has happened, other than this case. There has never been a situation in which, at the very time when the defendants are pleading for just an opportunity to have the trial take place other than Miami, that the government was secretly promoting the very atmosphere that diminished their chances of having a trial free of unfair prejudice.

We find further that as we uncovered this evidence of payment, that the very journalists that received the direct payment from the United States, the government, some of the journalists were presenting evidence that was deemed inadmissible because it was both distorted and because it was improper, that this very evidence was getting out, in through the media, through the very paid instruments of the United States government.

Again, the uniqueness of it makes it difficult for people to compare it to other incidents because it never has happened before. Frequently the press will be very much against defendants in criminal cases, and certainly in this context, that is not unusual. But for the government to pay the media to do that very thing, is absolutely wrong, and impermissible, and alone, should warrant a new trial.

GLR: Thank you Richard. Next we will hear from John Nichols. John Nichols is professor emeritus of communications and international affairs at Penn State University, recently retired. He has conducted research on Cuban communication issues for more than three decades, and he is the author of numerous works on Radio and TV Marti, including “US-Cuba propaganda, the case of TV Marti”. He has testified frequently regarding Radio and TV Marti before various congressional committees and sub-committees, beginning in 1982 and most recently 2009, and he will speak about that issue.

John Nichols: Thank you Gloria. I appreciate the invitation to participate. I think I probably ought to start with a disclaimer that I am not, I have no specialized knowledge in the case of the Cuban Five, and am not in any way involved in the case, but as Gloria mentioned in the introduction, I have been deeply involved in the dialogue about the creation of TV and Radio Marti and its performance since the two stations went on the air.

Probably most of you are aware that Radio and TV Martí were created for the express purpose of fostering regime change in Cuba. It’s got a very specific mission. But even within that mission, Radio and TV Marti are arguably the most politicized of the U.S. government international broadcasting stations. There have been at least a dozen, probably considerably more than a dozen US government reports, audits, investigations, internal studies of Radio and TV Marti, that have found that the stations have long been plagued by corruption, scandal, patronage, cronyism, mismanagement, violation of federal regulations, and some outright criminal activity.

These reports also have concluded that Radio and TV Marti do not, and have not, probably for their entire life, met minimum journalistic standards, even for government stations. I call your attention to what is probably the most recent and one of the more exhaustive reports in that long list. It is the 2009 General Accountability Office report that cited that Radio and TV Marti lacked balance and objectivity, and they noted numerous examples of the station’s broadcasting rumors and unsubstantiated reports, cases in which individual opinions were presented as news, and numerous cases of offensive and incendiary language on the stations.

When the U.S. government got into the business of overseas broadcast propaganda shortly after World War II, Congress sought to build a firewall, to prevent the government from using this propaganda arsenal as a weapon against its own citizens. The goal was to prevent the product of U.S. government tax-payer funded international propaganda stations from being heard by and directed at U.S. citizens.

If it were to be directed at U.S. citizens, it clearly would be undermining the core democratic principles that it is a government by the people, and they make their decisions untainted and not manipulated by the government that is supposed to be accountable to them.

In addition to this particular case, Radio and TV Marti have frequently evaded those federal laws, and have diluted the protection against its propaganda being heard directly by U.S. citizens. So there are clearly some significant issues there.

I am speaking as a longtime journalism professor and a specialist in Radio and TV Marti. And again, I don’t have a horse in this particular race, other than as a citizen of the United States and someone who is concerned about high journalistic standards, and corruption of basic democratic processes. It simply doesn’t pass the straight-face test that a Miami journalist could work for and be paid by Radio and TV Marti one moment and then another moment take off that hat and put on the hat as a Miami news media reporter or editorialist or commentator, and be able to report fairly and accurately about a trial in which the U.S. government has a stake. It simply does not pass the straight-face test.

So my concern here is that the process has been badly debased, our core principles are being undermined. The high journalist standards that are essential to democratic self-governance and a fair trial from an impartial jury have clearly been undermined by this situation.

I think that is probably the high points of my thoughts and will be happy to respond to your questions as appropriate. Thank you very much.

GLR: Andrés Gómez is the coordinator and director of the Antonio Maceo Brigade, a longtime organization in Miami which has advocated for normalization of relations between both countries. Andrés Gómez from the very beginning of the campaign for the freedom of the Cuban five has been instrumental in their struggle, especially in the community of Miami.

Andrés Gómez: First, my thanks to both Richard and to John Nichols for their contribution to today’s conference call. I think how I’m able to contribute to today’s conference call is by stating the fact that we are very grateful for the Five to have been here performing the tasks that were given to them, to infiltrate terrorist organizations of the rightwing of the Cuban American community here in Miami and the United States. If the FBI and other federal authorities would have complied with the law and would have investigated and prosecuted for terrorist crimes these organizations that the Five were infiltrated in, there would have been no need for the Five to be here in the United States.

These terrorists belonging to these organizations throughout 30 to 40 years have perpetrated crimes against those of us who have oppose their points of view and their methods regarding Cuba. We have advocated for the end of the policy of aggression by the United States against the Cuban people. Involved in those policies of aggression are a policy of state terrorism that has allied the government of the United States with these terrorists throughout more than 3 decades. And there is ample evidence that this is so.

There is ample evidence that are documents declassified by the FBI for more then 30 years that prove that these individuals have used violence, acts of terrorism against the people of Cuba and against those here in the United States that have opposed their points of view. We have suffered all throughout these years the threat to our lives simply because of exercising our rights to speak on these issues that concern us deeply .We want a normalization of relations between the United States and Cuba. We want the people of Cuba to live peacefully and freely in order to be able to decide their present and their future.

They have not been able to live peacefully and free from the threat of violence performed against them.

Thousands of people have died as a result of the actions of these individuals and we ourselves in Miami are testimony to the truth of that fact, of the actions of these persons. That is the contribution I can make today to this press conference at this stage of the trial of the Cuban Five.

Yanet Silva: Buenos dias, Seminario Granma Internacional: Quisiera hacer una pregunta para Richard Klugh de los abogados. Este nuevo recurso legal a que se apele en este momento; ¿Se puede aplicar sin que se repite las manipulaciones que hace 12 años llevaron a Gerardo a una sentencia injusta?

Richard Klugh: Esta es la primera oportunidad que tenemos que abrir completamente el proceso porque los límites de un proceso inicial, del proceso criminal inicial, son muy rígidas y ahora podemos abrir la cosa. Podemos añadir afidávits, podemos añadir muchos hechos que no sabíamos antes. Con esta oportunidad podemos finalmente establecer todo lo necesario para exonerar a Gerardo.

YS, Granma: Tengo otra pregunta. ¿Que detalles nos podrían dar sobre el hecho de que el gobierno hace 12 años pagó a periodistas influyentes para que manipularan a la opinión pública?

RK: Como hemos dicho, esta es una cosa única en la historia de los Estados Unidos, una cosa que no hemos visto en ningún otro caso. Era completamente impropio, y también el hecho que era secreto es algo que tenemos que considerar, porque a la vez que el gobierno de los Estados Unidos estaba diciendo que no hay ningún problema con Miami, a la vez estaban pagando a los periodistas en Miami para perjudicar a los Cinco.

Jay Weaver, Miami Herald: I read through the affidavit moments ago, the affidavit by Gerardo Hernandez. He seems to be focusing on his innocence as far as his involvement or knowledge of the shoot-down of 1996. And at the same time he seems to be focusing on the fact that had he been able to seek or petition for a severance on the conspiracy murder charge, he would have done so and he would have testified on his own behalf.

That’s just a comment. Now the question is: It seems like his habeas corpus petition focuses on the ineffectiveness of counsel of his original trial lawyer, Paul McKenna, and on the failure of the government to turn over exculpatory evidence through these radio transmission between Cuba and him. And then lastly it seems to focus on the role of the journalists who were paid by the U.S. government who were covering the trial and the effect it had on his due process rights. I’m having a hard time understanding how the affidavit squares with his habeas corpus petition and I was hoping Richard could comment on that.

RK: The principal value of the testimony of Gerardo Hernandez is to put to rest the complete speculation that he might have known this, or he could have heard this, or he could have meant this, or he could have done that. It is the type of rank speculation that is used to convict an innocent person. Once you get to the point, and of course it was a very, very divided court of appeals that reluctantly found that under the standards applicable that they could not overrule his conviction, with one judge issuing a very lengthy dissent, indicating that it simply was legally untenable. But that is even without the benefit of having his own testimony.

What the affidavit offers is to place everything on the table. People shouldn’t be convicted on speculation; people shouldn’t be convicted on prejudice. This helps to get to that point, where we can see exactly what the entire story is. With regard to what the 2255 motion principally claims, it is a constitutional claim, a denial of 5th amendment and 6th amendment rights principally, that he is entitled to.

In regard to the issue of severance, the question becomes, why are two cases joined together for trial: a case that charges for the first time ever in the United States a conspiracy to commit espionage where the government concedes there was no espionage. And to join that with a conspiracy to commit murder, where there is no evidence that the defendant had any idea that there was going to be a murder. And where he couldn’t ultimately have known what was going to happen in terms of how Cuba would respond to aircraft.

And it should be no different for Gerardo Hernandez. And what this adds is further detail, a showing of, had he had the opportunity to have an independent trial on this conspiracy to commit murder charge, the full facts would have come out. And it would be unthinkable to convict.

Now, what is the legal theory that allows him to proceed on a habeas corpus in order to present this additional evidence? It does arise under both the 5th amendment and the 6th amendment. There is a doctrine in this country called actual innocence. It is an important factor in any proceeding ultimately. We still strongly believe in this country that actual innocence actually means something. It is my hope that that, in and of itself will be an important factor in this.

In addition, the fact that there was an absence of an explanation to the defendant that he had the right to testify regarding these murder accusations without having to reveal, to get on the stand and talk about his other charges, as to which he could not testify for other reasons.

But the fact that he was not given the opportunity to testify about a charge so heinous as murder, is in and of itself something that is worthy of consideration in a habeas corpus. The fact that he is actually innocent is also worthy of consideration. All of the other factors that you mention in terms of the petition are certainly important. The fact that in addition to being a unique case of a prosecution for conspiracy to commit espionage, where the government admitted that there was no espionage committed, where the government did not even charge an attempt to commit espionage, but rested on this high level of speculation, again, that the intent was to commit national security secret classified information capture, which was never established.

To join that case with another highly speculative case, absolutely impossible case of a conspiracy to commit murder, in regard to this international confrontation situation in Cuba, was such that he should have had at least the opportunity to understand what his rights were, and that he could have offered testimony with regard to his absolute and complete innocence of any involvement in anything to do with that shoot-down. And that is basically what we are about today.

We are also discussing the fact that this took place in a community that is known the world over for being the primary city in the world that is focused on the anti-Castro activity and anti-Castro information, adding to that fire the additional fuel of the US government paying journalists to focus on that very theme, to focus on that very form of prejudice. Failing to disclose that to the court at the same time that the government is telling the court that Miami is a perfectly fine place to have a trial, is a fundamental violation of due process.

For me as a criminal lawyer, every case is a case as if it were my own son. I treat every case that way. And I think everyone hopefully should think of criminal cases in that way. “What if it were my child that were charged with a crime? Would I want this to be occurring? Would I want the prosecution to be paying journalists in the community to stir up prejudice against my son? And I think the answer is simple. It is a simple answer. What makes it difficult is the US-Cuba strife. But we have to, for the purposes of our Constitution, put that out of play and think of fundamental fairness. And that is really what this affidavit and this memorandum is about.

JW: I just have a follow-up question, because I didn’t cover the trial. Richard, was there a motion to sever Gerardo Hernandez’s prosecution from the other four or any other kind of motion to sever any of the other defendants from each other? I don’t recall exactly what happened.

RK: There was discussion about severance of one defendant. But the subject of the benefits of severance was not explained to the defendants by anyone. And so there was no motion filed by Hernandez to sever.

RK: There were motions but they dealt with other issues and eventually they were resolved by going forward with a joint trial.

JW: I see. But there was no motion filed by Paul McKenna for Gerardo Hernández’s behalf regarding a motion for separate trial on the charges brought against him?

RK: No, and I think it is important to recognize the difficulty that an individual lawyer, a sole practitioner, essentially, with regard to this matter, has in trying to defend an unprecedented conspiracy to commit espionage charge, and at the same time an unprecedented conspiracy to commit murder charge, in the same trial, the trial going on for seven months, in order to accommodate all of these prosecution prongs.

RK: It was an extremely challenging task and this legal avenue was overlooked. It is something that we feel is something that merits attention. But it was overlooked.

JW: Are you arguing that he should at least have been allowed to petition the court for a separate trial from the other four, on the conspiracy charge, the unregistered agent charge, along with the murder conspiracy charge?

RK: Our position is this, both his own testimony and the testimony of others who could have been made available had there been a severance, would have afforded a sound basis for a severance, and that would have allowed the truth to come out with regard to his complete absence of any involvement in this thing. Now, it’s not just his testimony then, it is the testimony of others.

The motion would have been to sever the count of which he alone was charged, this conspiracy to commit murder from the rest of the case in which everyone else was involved.

RK: This count was added about a year into the case. The case had proceeded for a year, under the theory of what the papers called “Cuban spies.” And then late in the process a new case is appended to this case. So it was a natural step to say, “These are two different cases being plugged together and moreover, in order to effectuate the defendant’s right to testify, his fundamental 5th amendment right to testify, the severance should be admitted.

Curt Anderson, Associated Press: Mr. Klugh, I wanted to follow up on something that Jay had asked you about. In terms of Gerardo’s decision not to testify in the trial that was held, I am assuming you are saying that if he had testified to the facts that are in the affidavit, he would have had to admit that he was an agent of the Cuban government in the United States. Because his defense in many cases has to do very much with that. Do I have that correct? Although he was not admitting to the charge, he would have been admitting that. Is that the issue there?

RK: It’s not just, that is certainly true. If you are in a joint trial with other individuals, you don’t have the right to call the other witnesses in your own case. He did not have that opportunity because the trials were joined. Certainly, if you present truthful testimony he would have truthfully testified he was an agent of the Cuban government.

CA: Just not an agent engaged in the level of activity that the government would have charged him with, which was to try to steal classified information, or actually stealing it.

RK: Exactly. I think it is so fundamental to recognize that the government cites that these agents were in the United States for years, for years, and never once did the government allege that they even attempted to attain classified information.

CA: Just another similar question. In the affidavit, there are a number of factual statements that he makes. I won’t go through all of them. Was none of this aired at all in argument or in any other kind of way of introducing evidence at the trial itself or is this the first time that we are hearing his explanations for some of the pieces of evidence that the government used against him?

RK: Much of the piecing together of the government argument did not become clear until the rebuttal presentation by the government and closing arguments to some extent. And the case proceeded in an unusual fashion in that the government took an emergency appeal immediately prior to closing arguments beginning, in order to try to redefine the scope of the charge. That appeal was denied. However, as we raise in our 2255 motion, the jury was not given clarifying instructions with regard to how that resolution resulted.

For Hernandez personally as an individual, a Cuban on trial for the first time, it was difficult for him personally to understand exactly, in what way his testimony factored into these things. He did not personally understand the significance of what seemed to him to be completely irrelevant material, such as the fact that, months after the shoot-down, he along with everyone else who was in a period of rotation, for promotion, gets an ordinary promotion. The government in rebuttal argues that that was a blood promotion.

And his affidavit shows, if he had had the opportunity to testify about it, if he had the opportunity to call other defendants about it, it could be completely refuted. The sort of misuse of speculative theories that have been corrected.

Pablo Tonini, Notimex: Buenas tardes, Básicamente, mi pregunta es en español. El abogado que me diga, básicamente qué es lo que están presentando en español en este affidávit. ¿Y cuándo piensan presentar esta apelación para Gerardo Hernández?

RK: Hemos presentado el afidávit ayer. Y el affidávit en términos generales, explica que cualquier acto que cometió Hernández, en términos de servir como agente de Cuba, no tenía nada que ver con una conspiración para cometer homicidio. No tenía conocimiento de antemano, ni tenía participación, ni tenía ganas de eso, y que toda la pura especulación ofrecido por el gobierno era completamente mal interpretado, y en esencia ha resultado en una convicción completamente injusta.

RK: El gobierno tiene la oportunidad de responder al affidávit y a los argumentos que hemos presentado, y van a presentar su respuesta en como 30 días.

PT: ¿Esto quiere decir que podríamos ver un nuevo juicio para el señor Hernández? ¿Es lo que ustedes están buscando?

RK: Bueno, yo creo que no hay necesidad para nuevo juicio. La evidencia que hemos presentado indica claramente que es completamente inocente de los cargos. Pero si tenemos que enfrentar un nuevo juicio, estamos listos.

PT: Entonces, si un juez acepta ese affidávit, ¿puede tomar una decisión y quitarle los cargos?

Sue Ashdown, Freelance: This question is for Mr. Klugh, I’d like to know, is it Judge Lenard’s decision alone as to whether to hold a hearing on this? Can she just reject an appeal or must she hold a hearing and if so, when would that happen?

RK: The matter is initially in front of the district judge and the district judge will determine how and whether to proceed, whether to refer the matter to a magistrate judge, whether to conduct a hearing, whether to allow discovery, which we have asked for. We have asked for further discovery, since we have not completely exhausted our investigation into the payment of journalists. With regard to the payment of journalists, I would ask hopefully, that Mr. Nichols could speak a little more to that …

JN: Other than to repeat that these particular examples that you have in the memorandum are, in my view, the tip of the iceberg. I know the Miami media well, and the saturation of the anti-Castro, anti-Cuban government point of view is widespread. Again, not being particularly conversant in this particular case, as a journalism professor, I am stunned that there was not a change of venue. Anybody who knows the Miami media market, would have to acknowledge that it is not exactly prone to objective and fair treatment of the debate over Cuba. And again, I am shocked that the original change of venue. request for a change of venue was not approved under those circumstances.

If there is any particular questions on Radio and TV Marti’s long history of highly politicized coverage and of its voice being, despite US prohibitions, its voice being widely circulated in the Miami media market, I’d be happy to respond to those questions as well.

SA: I’d like to know a little more about that, not being in Miami, I’m not exactly conversant with how much TV and Radio Marti are seen and heard in the market.

JN: Again, there is the distinct federal prohibition against circulating of U.S. government propaganda, domestically. But Radio and TV Marti signals can be seen in Miami. Radio in particular, TV, depending on the platform that is used to broadcast to Cuba, that TV can be seen as well. The Government has taken the position that it is unintentional and incidental. But I think it’s probably an accurate statement that the listenership and viewership of Radio and TV Marti is greater on the north side of the Straits of Florida than it is on the south side of the Straits of Florida.

So, in addition to the revelation – I think initially published by the Miami Herald and detailed in this memorandum about this particular case – I think there is widespread dissemination of Radio and TV Marti’s particular point of view in the Miami media market.

GLR: I think also, in addition to what Professor Nichols has stated about the government stations, is that the media inside Miami, what we are talking about is the Miami journalists who posed as independents, and still reported in the most hysterical and prejudicial manner into the Miami audience, long before their arrest.

We need to keep in mind, that from the time of the plane shoot-down on Feb. 24, 1996, there was a steady drumbeat against Cuba and against anyone associated with defending Cuba. So after 2-1/2 years of that, when the Five were arrested, there were immediate accusations against the Five on the issue of the plane shoot-down. It was years of coverage by these journalist who it turns out now, were on the government payroll. We believe, and of course the lawyers believe, but for the movement in support of the five, we believe that this is astounding proof of the violation of their due process rights with respect to venue.