Attorney Richard Klugh talks to Radio Havana Cuba
by Bernie Dwyer
Nov. 9, 2009
On the 8th of December in the Miami Federal Court, two of the Cuban Five were re-sentenced. Ramon Labanino, who had a life sentence plus 18 years, had his sentence reduced to thirty years and Fernando Gonzalez, who had a sentence of 19 years, had his sentence reduced to 17 years and 9 months. Attorney Richard Klugh, who has legally represented the Cuban Five in the appeals courts talks to Bernie Dwyer, Radio Havana Cuba by telephone from Miami the day after the re-sentencing.
Bernie Dwyer: How was the general atmosphere in the court and how are the defence team feeling about the results of the hearing?
 Richard Klugh: There was a very large show of support for Fernando and Ramón at the hearing, people filled the courtroom to support them and there was certainly a strong feeling of concern by everyone there.
The sentences were at the low end of the sentencing guideline range and it was anticipated that these still lengthy sentences would be issued, particularly given the relatively severe effect of sentencing guidelines as to Ramon. In this context it was certainly important for the defence to try to achieve the lower point in the guideline range. So we are certainly very happy that Ramon is no longer facing life imprisonment and that Fernando’s sentence has been reduced.
BD: In some circumstances a life sentence can be for 25 years. How does that work out in the United States?
RK: A life sentence for a federal crime is life. There is no reduction for good conduct. There is no release from it with one exception for very elderly persons under a statute that allows for the release of extremely elderly persons after serving 30 years. In general terms life is life. After 30 years there is a theoretical possibility for release depending on the age of the individual.
BD: So it is a relief for Ramon and also for Antonio Guerrero who had his sentence reduced on October 13th of this year in the same court in front of the same judge, not to be facing a life sentence?
RK: It is a tremendous relief for them and it also hopefully affects the level of severity of the prisons that they will be sent to. Antonio has suffered considerably due to his placement in an extremely violent and problematic prison. Similarly Ramon had been housed for years in an institution in Beaumont, Texas in which there was continuous violence, the types of atmospheres that in some sense could constitute torture, not just for the Five, including Ramon and Antonio, but for anyone; it’s a truly horrible environment in some of these institutions. Now because their sentences are no longer life, they are eligible to be designated to prisons that have a lower security level and a lower incidence of severe internal problems.
BD: During the sentencing process was any consideration given by the judge that these two men were model prisoners and had behaved themselves in an exemplary manner from the time they entered prison?
RK: It was presented and it certainly is something that can be considered. I don’t believe that it ultimately affected the sentencing decision because the sentences imposed were not reduced below the severe guideline level. There was an opportunity for the court to vary below the guidelines and that would have been one of the bases that could have been used, exemplary conduct and the circumstances in which they had served their sentence. But the sentences were imposed within the guideline ranged, at the lower end of the range.
BD: Could you explain how Judge Lenard calculated the sentences-what is inside or outside the guidelines? How would she have come to this conclusion that this was how she was going to reduce the sentence?
RK: The key factor that caused the sentences for Ramon and Antonio to be so high was that they were convicted, and we certainly contend unfairly convicted, of conspiracy to commit espionage even though this is the only such conspiracy to commit espionage to be prosecuted within the United States in which there was no actual espionage. Nevertheless, they were convicted of that offence.
The government guidelines, the sentencing parameters established by the United States sentencing commission, are extremely elevated for that offence; for conspiracy to commit espionage. For that reason, the offence level starts out at 22 to 30 years at a minimum. Due to other types of enhancements that were applied, again we debated their applicability but we were unsuccessful, the court set the guidelines for Antonio at a level of 22 years and for Ramon to a level of 30 years so Ramon faced a 30 year minimum under the sentencing guidelines. That unjust espionage conviction propelled these very high sentences. Again, unfortunately, we were not successful with our arguments with lowering the guidelines.
BD: In a statement made by Ramon and Fernando, they said that the US government was obliged to recognise that they did not cause any damage to its national security. If the government does recognise that how does the judge justify those high sentences?
RK: We certainly feel that the guidelines were irrationally and unfairly high but they are part of the structure that the sentencing court has to deal with. Given that limitation, the primary driver of the sentencing here was what we felt was the unjust convictions of the conspiracy to commit espionage.
Once you have that conviction, the primary driver becomes the sentencing guidelines which treat the offence as being so severe and that really limited our ability to show that they did not deserve long sentences in that there was no harm. A major part of the problem for us was the nature of the conviction, linked to an extraordinarily punitive guideline; there were limits to what we could obtain from the sentencing process.
BD: We know that the Cuban Five were asked to collaborate in order to receive more benevolent sentences when they were arrested in 1998. Do you think Ramon and Fernando were offered a similar deal this time?
RK: It’s been continual but they have always said that they believed that they performed their service honourably and did not act in a criminal manner and they have never accepted any sort of offer by the United States to turn their backs on what they have said all along. I think that in their statement yesterday they continue to maintain that they were here to do peaceful, anti-terrorism work and that they still maintain that their convictions were unjustly obtained and that their sentences were extraordinarily punitive.
BD: Do you think this is the end that is the end of the legal process to obtain the release of the Five?
RK: No, I don’t. I don’t know for sure what each of the Five is intending at this point but I do certainly believe that there remain many legal options and I believe that each of them will be pursued in a timely manner and I think that we look forward to a new round of litigation in the coming year to try to undo the injustice of their conviction.
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