Interview with Attorney Richard Klugh on Cuban 5

[Transcript of telephone interview given by Miami based Attorney Richard Klugh, who legally represents the Cuban Five in the appeals process, to Bernie Dwyer for Radio Havana Cuba on 1st September.

[Three of the Cuban Five, Ramon Labañino, Antonio Guerrero and Fernando Gonzalez are in the Federal Detention Center in Miami waiting to attend a district court hearing on their re-sentencing as recommended by the 11th Circuit Court of Appeals in Atlanta .

[They are being held in solitary isolation in the same Special Housing Unit that they spent 17 months awaiting trial in 2001. The re-sentencing hearing is due to be heard on 13th October 2009.]

Interview

Bernie Dwyer (RHC): Three of the Cuban Five, Ramon, Antonio and Fernando are now in the Federal Detention Center in Miami . Can you give us the background to their move from their separate prisons and the reason they are in Miami now?

Attorney Richard Klugh (RK): Ramon, Antonio and Fernando were transported to Miami within the last two weeks from their various institutions in Kentucky , Colorado and Indiana , in order to attend and be re-sentenced at a hearing by the district court judge as ordered by the court of appeals.

BD: Do they have any contact with each other?

RK: As of right now they are all separated from each other and separated from all of the other inmates. They are in the isolation units ordinarily used for special housing and it's unclear whether all of them will be allowed to leave the special housing units or isolation unit prior to re-sentencing or not. It’s our hope that it will happen.

BD: Are they permitted to have contact with their attorneys?

RK: Yes. The attorneys are visiting and are able to talk to them. The re-sentencing hearing is about a month and a half away so they need to be talking to them. That’s exactly where it stands right now. It’s a relatively short period of time before the re-sentencing occurs.

BD: Are they allowed to have family visits and phone calls?

RK: They will be allowed to have them. There is always a delay when there is a transfer such as this but they are not precluded from having family visits.

BD: Can they receive letters from supporters and friends?

RK: Absolutely and of course everybody is very encouraged to do that, to write to them in the names in which they are listed in the Bureau of Prisons directory at the address of the Federal Detention Center in Miami .

BD: Can you give a background as to why three of the Five, Antonio, Fernando and Ramon are being allowed to go back to court for re-sentencing and not Gerardo Hernandez and Rene Gonzalez?

RK: Gerardo, because of the disputed conviction with regard to the Brothers to the Rescue matter was not eligible for a re-sentencing hearing because he has already received a life sentence as to that accusation and we were unsuccessful in the direct appeal in reversing that conviction.

He was deemed to be ineligible for re-sentencing. With regard to Rene, his sentence was based on offences as to which he really didn’t have much of a right to appeal. They were not sentences with which the District Count had any real legal limitations on what could be imposed.

And so the arguments that applied to the counts and convictions that Ramon, Antonio and Fernando had did not apply to René. That first fifteen years of the sentence is not subject to review under the federal sentencing guidelines because there is no guideline for the offence of conspiring to or acting as an unregistered foreign agent.

BD: How would you actually term this court appearance that is coming up?

RK: It’s an opportunity to have a re-consideration of the prior sentencing decisions and to basically start at a lower level of sentencing for each of them and hopefully that will result ultimately in a substantial lowering of sentences.

They would have a right to appeal from this re-sentencing decision if there are legal errors made in regard to the imposition of these sentences.

BD: Is there any chance that the judge could re-sentence them to longer terms in prison?

RK: There’s always theoretically a possibility of such a change however I think that it is well known that each of the Five has been exemplary in their conduct while incarcerated. I think they are highly regarded by other personnel within the federal prison system for their good conduct, their good works with other prisoners, etc. There really is nothing that would indicate any reason to punish them any more than they what they have already been punished for.

BD: If we look at somebody like Rene who is serving 15 years. Is there any mechanism that he can get time off for good behaviour?

RK: There is a limited provision for a reduction of sentence under the federal system so it is our hope that within the next two years at least that Rene might be able to be released.

There is sometimes a need for litigation to force them to allow the prisoner to be released in the latter stages of incarceration. I don’t know whether we will be in that position of having to litigate that with Rene or not but definitely we are prepared to insist that he be given every opportunity for early release.

BD: Do you know already who the judge is going to be at the re-sentencing hearing?

RK: it will be the same district judge that imposed the original sentences and essentially the same personnel. Some of the government attorneys are no longer with the government but essentially it will be the same personnel.

BD: Does that put prosecution and Judge in a position that if they re-sentence it appears that they made a mistake in the first sentencing?

RK: The court of appeals has already held that some of the provisions that were applied in the original sentencing were too harsh and that is the reason why we are having the re-sentencing. So those principles that were established by the court of appeals will form the basis for the re-sentencing process. And certainly it is our hope that as a result of that these sentences will be substantially lowered.

BD: The opinion that some of the original sentencing provisions were too harsh came from the 11th Circuit Court of Appeals in Atlanta ?

RK: Yes

BD: Do you feel that with the change of administration that you could expect any thing different at all in the approach taken by the court to the case of the Five. They were sentenced during the Bush administration. Do you think it will make any difference under the Obama administration?

RK: I don’t believe it necessarily would. So much time has passed. So many changes have occurred since the original sentencing. Everything that people have learned about what is and what is not something that merits a significant punishment I would think would help us in this process.

But I don’t know at the political level, the individual decisions in this case will have that effect. What I have found is that it does not have that effect ordinarily.

For us the most important part of the case that remains deals with Gerardo and trying to do something that will give him an opportunity to be released.

BD: Can you talk at this stage about how the re-sentencing case will be presented in court?

RK: Each of the three will be represented by their principal attorney. Joaquin Mendez represents Fernando. Leonard Weinglass represents Antonio and Bill Norris represents Ramon. They are each preparing individual arguments and explanations for why substantially lower sentences should be given.

It’s very important to remember that Antonio and Ramon had life sentences and the hope is that the sentences will become significantly reduced to a sentence that is more in keeping with an offense in which there was no actual commission of espionage.

[This interview with Attorney Richard Klugh was broadcast by Radio Havana Cuba on the 1st September 2009]