“THE PROSECUTORS ARE PLAYING HARDBALL” – US Lawyer
The Cuban Society of Criminology recently submitted a legal document known as an ‘amicus curiae’ brief to the federal Eleventh Circuit Court of Appeals in Atlanta laying out several legal points that, in their opinion, were necessary for a jury to fully understand the case of the five Cuban men who were sentenced to harsh prison sentences after they were arrested, tried and convicted in a Miami court. Professor Erik Luna from the University of Utah College of Law assisted the Society in writing and presenting the document. Bernie Dwyer of Radio Havana Cuba interviewed Professor Luna by telephone at the University of Utah and asked him several questions pertaining to the ‘amicus curiae’ brief and its contents.
(The interview is rather long but presents a fascinating insight into the workings of the US legal system and the options facing the Court of Appeal – it will reward the effort of reading. It certainly answered a lot of questions I had about the legal process in words that I could understand)
[Radio Havana Cuba interviewer] Professor Luna, ‘amicus curiae’ is clearly a legal term. What exactly does it mean and who can avail of it?
[Professor Erik Luna] The term amicus curiae literally means friend of the court. An amicus brief is a legal document presented by individuals or groups who, although not principal parties in the case at hand, can assist the judges by submitting information that might not otherwise be available, by providing arguments based on amicus’ expertise, and by offering a broader perspective to the legal system. In this way, it can help the court render a full and accurate decision in a given case, allowing them to understand the larger context in which the case is being decided. Likewise, an amicus brief provides legal scholars or individuals with particularised knowledge an opportunity to give their analysis of complicated issues on appeal.
The truth is that you do not have to be an attorney or any particular organisation to be amicus curiae in a given case. Many times you have private citizens or organizations that act as amicus curiae in the American court system, which, by the way, happens quite frequently in the highest court in America, the United States Supreme Court. Of course, individuals who want to participate in a case as amicus curiae will need an attorney who is capable of writing an acceptable brief and presenting it in the relevant court and who can give voice to the issues and arguments that are going to be raised in their brief.
[RHC] So this means that the person or organization who submits an amicus brief is actually working in the interests of the court and legal system rather than on behalf of the defendant or prosecutor?
[Erik Luna] Absolutely, although usually an amicus brief will support one or the other side in a given case. An amicus is separate from the parties, not merely an extension of the defendant or the prosecutor. Instead it is an independent party that has some interest in the case and that can provide assistance to the court. In fact, sometimes amicus curiae will submit a brief that supports neither party. So in a very real sense, an amicus curiae is attempting to be a friend of the court by providing it analysis, background, information, et cetera, that can assist the judges in making an appropriate decision.
[RHC] This particular amicus regarding the Miami trial of the Cuban Five was prepared by you for the Cuban Society of Criminology. How did you become involved?
[Erik Luna] I have to admit that I had not heard about the prosecution of the Cuban Five before my friends, law professors at the University of Havana, had told me about the case. Of course, I now recognise how important the case is to Cuba, the Cuban people and to the exile community in Southern Florida. I should probably begin with a little background. Over the past couple of years, I have been travelling to Cuba to teach American constitutional law and criminal justice to Cuban students, professors, judges and attorneys and also to conduct research on the Cuban criminal justice system.
It’s been a great opportunity for me and I have met some terrific academics in Cuba, many of whom share my interest in criminal law and criminology. Under the auspices of the University of Havana, the Cuban Society of Criminology and the National Association of Cuban Jurists, I have been able to speak to the Cuban people about the American legal system. And in turn, Cuban scholars have been able to tell me about the legal system in their country. So hopefully this intellectual exchange with my Cuban friends and academics is part of a larger trend towards interaction between Americans and Cubans.
But anyway, this past February, I travelled to Cuba to lecture at the University of Havana Law School. Toward the end of my trip, one of my friends, a law professor at the University of Havana and the President of the Cuban Society of Criminology asked me to look at an amicus brief that they were preparing to submit to a federal appellate court in the United States. The brief was very smart, thoughtful and well-written. But it didn’t have the typical approach or format of an appellate brief in the United States.
You have to understand that Cuba follows an entirely different legal tradition than the United States. Cuba is grounded in what is called the continental legal system or the civil law tradition derived from Spain. In contrast, the United States follows the English common law model. So we have two entirely different systems and just as a matter of course you would need someone who knew about the American legal system to put their views and ideas in an appropriate format. I also told my law professor friends that they would have to get an attorney who could practice before the Eleventh Circuit Court of Appeals that is hearing the Cuban Five case. So the next day I was asked if I would be willing to represent the Cuban Society of Criminology and write an amicus brief on their behalf. They just wanted to be heard by the appellate court and they felt they had something to offer. And needless to say, I agreed to help them out. So that is the background, more or less.
[RHC] What is the actual goal or goals of this brief and to whom are they directed?
How will it benefit the five Cubans when the appeal is presented to the Eleventh Circuit Court of Appeals in Atlanta?
[Erik Luna] The brief itself is directed at the court, again because it is supposed to be a brief that helps the judges as a literal friend of the court. The goal is to provide the larger context in which this case arose, in particular, to raise a number of legal issues that amicus curiae believes were wrongly decided by the trial court in this case. Among other things, the trial court limited the time line in which the defendants could put on background information about terrorist attacks against Cuba by individuals and groups residing in the United States. Essentially the trial court limited it to roughly 1992 to 1998. This misses an entire chronology, an entire history of terrorist attacks by anti-Cuban terrorists against Cuba and its people.
So one of the arguments is to let the court know of this background, this history that was unfortunately, and we believe inappropriately, curtailed by the trial court. This is part and parcel of the larger argument that we make. The defendants should have been allowed to make what is called a necessity defence, which is a claim in Anglo-American jurisprudence that is also recognised in continental legal systems and throughout the world. Basically, when individuals are faced with a choice of evils -- in this case, the choice between tolerating the on-going terrorist activity versus attempting to find out who was perpetrating these acts and trying to prevent future terrorism -- and the individuals do in fact attempt to prevent this greater harm, then they should be able to raise a type of justification defense at trial. So that is the larger legal issue that the Cuban Society of Criminology is presenting to the court to assist it in making what is a very critical legal decision.
[RHC] It is obvious that all the academic and newspaper sources quoted in the amicus brief originate in the United States. Is this deliberate?
[Erik Luna] Yes. It is important to present in this brief information that is part of the public record. The court of appeals should be able to go to the sources, to be able to read the full stories and to determine for themselves whether the factual predicate that we are laying out is accurate. So that is very much the rationale in providing American sources in terms of law and in terms of factual background.
The goal of the amicus brief is not to present a mini-trial before the appellate court but to suggest to them that there is this larger background that the trial court prevented the jury from hearing, that this background is entirely relevant to the defendants’ case and in particular to their claim of necessity, and that the trial judge should have allowed these defendants to present the factual context and argue the defense of necessity to the jury. The goal is not to convince the appellate court that in fact the defendants would necessarily win in a new trial but instead to suggest that they should have been allowed the opportunity to present a defence of necessity. Amicus wants the appellate court to understand that there were valid factual and legal arguments that transcend the time boundaries that the trial judge set. Ultimately, amicus believes that the court of appeals should reverse the defendants’ convictions and send the case back for new trial based on any number of errors committed by the lower court judge, and that at a new trial, the defendants should be able to present the broader argument about necessity without the limitations placed on the defendants by the trial court.
[RHC] The closing date for the amicus brief was the 14th April. Have you already presented the brief and has it been received by the prosecutor?
[Erik Luna] Yes, we have tendered the brief before the Eleventh Circuit Court of Appeals and that requires us to provide copies of the brief to the court, the defendants, and the prosecutor. They have not yet ruled on the motion to admit the brief and in fact the prosecutor in this case has submitted a motion opposing the admission of our amicus brief. Nonetheless judges have a great deal of discretion in deciding whether to admit amicus briefs and I believe that the court will allow the brief even though the prosecutors are objecting at this stage.
[RHC] On what grounds are the prosecutors objecting?
[Erik Luna] Among other things, the prosecutors object to amicus presenting the background of terrorism that predated the time limits set by the trial court. They say that this information is ‘hearsay’ and inadmissible on appeal. Apparently, they don’t quite understand that amicus is offering this information precisely because the trial court placed erroneous boundaries on the evidence that defendants could present to the jury. Moreover, the prosecutors don’t seem to realise that what they describe as inadmissible hearsay is readily allowed by appellate courts all the time.
I am also a little bit amazed that they have had time to respond to the amicus brief. In my experience -- and in talking with federal prosecutors, federal defence attorneys and law professors who practice in the federal appellate courts -- this is exceptionally unusual. In fact nobody could provide me an example of a prosecutor objecting to the submission of an amicus brief.
So it’s hard to read in to this what the prosecutors are attempting to do, given the unusual nature of their objection. I suspect that their main goal is to try to limit outside information and arguments from being presented to the court of appeals. That’s unfortunate because these judges, who are fully capable of deciding for themselves whether or not an argument has validity, should be allowed to have the full context and should be given all the larger arguments in this case. Because federal judges are among the best and brightest that the American legal system has to offer, they are more than capable of determining on their own whether or not information provided by amicus is helpful in rendering their decision.
From what I’ve been told, the Cuban 5 case has been very political from the beginning. Unfortunately that is represented by the way the prosecutors are playing hardball, not only with the Cuban Society of Criminology but also with regards to the defendants and other amicus parties as well. Ultimately, however, I do believe that the court will admit the brief and the judges will get down to the very important task of arguing and deciding this case.
[RHC] How soon do you think all the documents will be submitted to the Eleventh Circuit Court of Appeals in Atlanta and what are the next steps to be taken?
[Erik Luna] There are still some other briefs that need to be submitted to the court of appeals, but all of the documents should be filed by the end of May. The appellate court will then set a date for oral argument, likely to be held sometime this summer or early fall at the Eleventh Circuit's headquarters in Atlanta, Georgia. After oral argument, the court will write an opinion detailing its judgment, which will probably be published in the winter of 2003 or even the early spring of 2004. If the court of appeals reverses the defendants' convictions, the case will be remanded back to the district court for a new trial. If the appellate court affirms the convictions, then the defendants can seek review before the U.S. Supreme Court, although that court only hears a very small fraction of all cases in the United States. Either way, it will be months, if not years, before we know the final outcome of this case.