Attorney Paul McKenna: "It's like the 9th inning in Baseball. We are at the final inning of this long game."
This surprisingly up-beat interview broadcast by Radio Havana Cuba on 18 December 2003 gives a lawyers view of the forthcoming appeal. A nice note on which to end the year – worth reading through to the end.
The 11th Circuit Court of Appeals in Atlanta has fixed the 10th of March, 2004 as the date to hear the appeals lodged by the defense lawyers for the five Cuban political prisoners who are presently serving harsh sentences in US prisons in different US states. The appeal has been referred to the Miami District Court for the Southern District of Florida, where the defense will have fifteen minutes to present their oral arguments. Bernie Dwyer, Radio Havana Cuba, spoke by telephone to Defense Attorney Paul McKenna, one of the legal defense team representing Gerardo Hernández, in Miami Thursday 18th December. Mr. McKenna told RHC that the oral arguments are like the icing on the cake and that the long wait is over at last. He said that he feels great because of the Five and is motivated by their courage.
[Bernie Dwyer] After a long wait, the 10th of March has now been set as the date of the presentation of the oral arguments in favor of your clients, which will be heard in Miami. How significant is it that the hearing will be heard in Miami?
[Paul McKenna] I am very excited that we have our opportunity now to address the appellate court and talk about the errors that took place in the trial of Gerardo Hernández, my client and the other five and we are really looking forward to this opportunity. We are facing a new court. These *three judges are from the 11th Circuit Court of Appeal, which sit in Atlanta and they travel to different destinations and they are traveling to Miami for this case. It doesn't disturb me that this case is being argued in Miami because these are judges who are above the politics of Miami. They have made important legal rulings in the past that have been against the so-called Cuban exile community here in Miami. So I am confident that this court is going to render a fair and impartial judgment after they hear our arguments and consider our written briefs.
[BD] Does the fact that the oral arguments are going to be heard in Miami affect your main basis of appeal that the five Cuban men couldn't get a fair hearing in Miami?
[PMK] No, that doesn't mean anything and I'll tell you why. Because the reason we didn't want the trial in Miami was because we were dealing with a jury. The jury is the people that live in the community. They live here, they work here. We have a predominantly Hispanic make-up in our community and the biggest majority of that Hispanic population is Cuban so we didn't want to have the trial in Miami for those reasons. The three judges that are going to decide this appeal are not Cuban/Americans, they are not exiles, they don't live in the community, and they live in Atlanta where they work. So I'm not worried that we are having the oral arguments here in Miami. I am not concerned with that at all. These judges are different than the jury. They are appointed for life. They are appointed after consideration and recommendation by the US Senate and after a nomination and confirmation process. I believe that all these judges, deep down are true jurists of the law and don't follow emotions and don't follow politics but make their decisions based on law. That is what I believe in and that's what I am looking forward to in this case.
[BD] So the fact that the judges are going to travel to Miami and the hearing is going to be heard in Miami is just for the sake of convenience?
[PMK] Absolutely. It happens all the time and I don't believe that it has any bearing on what the outcome might be. I am not worried about it. These are not jurors. These are not people that live and work in a community. These are professional judges that are above politics, that above the fray, above all the exile issues. They are jurists. They are going to make a legal decision. That's all there is to it. It's actually more convenient for everyone that they come here and I am not worried about that at all.
[BD] On the basis of what you know about these judges, have they been involved with any other legal decisions pertaining to Cuba?
[PMK] I can't speak as to the specific judges on the panel and sometimes you don't know who your panel will be until they actually come, they might have a visiting judge sitting or the panel. But what I would say generally about the whole court of appeals is that they have addressed many issues that deal with Cuba, for example the last important ruling that I came across was the Elián González case. There were many cases and lawsuits brought in relation to that and the Court of Appeals did not interfere in trying to keep Elián González here in the United States. That was an important decision. It could have been a politically motivated decision had it gone the other way but I don't think this court decides cases based on politics I really don't believe that. I believe that they decide their cases based on the law.
[BD] So, just to be clear: the three judges that will hear the arguments are three of the twelve appointed to the 11th Circuit Court of Appeal in Atlanta and when the oral hearing is heard in Miami, three appointee judges will travel to Miami. Is that correct?
[PMK] That's correct. One thing that I would also point out is this: this is a very complex appeal. It involves many, many issues. It involves a trial which took six months. It involves a lengthy, lengthy record that is long and complicated. The oral argument is going to be very brief. The judges are going to make their judgment primarily on the written briefs that were already submitted and the record that we have sent to them to review. The oral argument is just going to be the sort of icing on the cake, if you will. To me it is an important part of the process but it is not the most important part. The most important part was the briefs that we submitted.
[BD] The defense team has fifteen minutes to present the arguments for all five defendants. What do you hope to achieve in that short time?
[PMK] It's almost like an interview where you give short sound bites and maybe they might have a questions which would give an indication in which direction they are leaning with the case but the oral argument in a very complex case is anti-climactic, its just not the most important part of the appeal. The most important part was the brief and the reply brief that we submitted. We know that the court of appeals will read those briefs and we know that their decision will be based on all the parties' briefs and to a small degree the oral argument.
[BD] Will the defendants be present in the court during the oral hearing?
[PMK] No, the defendants do not have a right to be present during the oral argument for their appeal. Unfortunately, only defendants that are on bond are entitled to attend.
[BD] Will the hearing be held in public?
[PMK] Yes, it is an open public hearing. Anybody who wishes to attend can attend including family and the press. The only things they won't allow are cameras and recorders.
[BD] In view of the publicity and protests experienced during the trial in Miami, are you expecting any repeat of that circus there?
[PMK} No, the court of appeals is next to the supreme court of the United States, the highest court in our land. It deserves a lot of respect. It's a very serious atmosphere. They are absolutely not going to allow a circus atmosphere. They wouldn't allow it. It's a very, very serious studious setting where everyone is trying to figure out what the law requires, not what politics require but what does the law require or what does justice require. That's where we are going to try to get justice now.
[BD] After the oral arguments are presented on the 10th of March, how long will we have to wait for the judges' decision?
[PMK] Normally, after the oral argument, the decision is rendered somewhere between 30 90 days. 90 days.
[BD] How are you feeling now that the date has been set for the oral argument?
[PMK] They way that I feel is always based on the five men. I am in communication with all five and I have just received Christmas cards from all of them and I feel great because of the Five. I am motivated based on their courage, based on their belief in their own cases and that's what motivates me. I have always been motivated by the five people that we are representing, who are very special people. That's what motivates me. It's easy to be motivated by representing them.
[BD] So now you feel that most of the waiting is over. The 10th of March has been set and now it's a case of waiting for that?
[PMK] You are absolutely right. It's like the 9th inning in Baseball. We are at the final inning of this long game.
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* The 11th Judicial Court of Appeals
Established by Congress in 1981, the U.S. Court of Appeals for the Eleventh Judicial Circuit has jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia. The circuit includes nine district courts with each state divided into Northern, Middle and Southern Districts.
The court, in terms of cases filed and terminated by three-judge panels, is the busiest federal appellate court in the United States with its twelve authorized judgeships.
Approximately three-fourths of the court's cases are decided on the briefs submitted by the parties, while the remaining cases include oral argument. Oral arguments are held in the Elbert P. Tuttle United States Court of Appeals Building in Atlanta, Georgia and are open to the public. Oral arguments are also held in Florida (Jacksonville and Miami), and Alabama (Montgomery).
* The three judges who will preside over the court on the 10th March will be announced on the 24th February.