AMY GOODMAN:

Attorneys for the Cuban Five filed an appeal with the Supreme Court last week asking for a new trial. The five men were convicted in 2001 for spying on the US military and Cuban exiles in southern Florida. All five are serving time in federal prisons across the country. The men say they weren’t spying on the US, but trying to monitor right-wing violent Cuban groups that have organized attacks on Cuba.

The Cuban Five trial was the only judicial proceeding in US history condemned by the UN Human Rights Commission. Several Nobel Prize winners have also petitioned the US Attorney General calling for freedom for the five. Cuban leader Raul Castro offered last year to release over 200 political prisoners in Cuba in exchange for the five men.

We go now to Washington, D.C., for the attorney for the Cuban Five, Thomas Goldstein, who is a partner at the law firm Akin Gump and a co-founder of the popular blog on the Supreme Court, SCOTUSblog.

Welcome to Democracy Now!

THOMAS GOLDSTEIN:

It’s a pleasure to be with you.

AMY GOODMAN:

Can you lay out this case, this appeal to the Supreme Court right now? You’re one of the leading Supreme Court attorneys, argued more than forty cases before the Supreme Court.

THOMAS GOLDSTEIN:

Not actually quite so many, but it’s really kind of you to talk with me about the court. The justices have the power to choose what cases they’ll hear, unlike a court of appeals or a trial court. So, the first thing we do is we have to petition them for them to decide that they will hear arguments in the case. And we have said that the case presents really incredibly important questions about justice, and in the context of international relations, in particular, it’s essential that they get involved. We think it’s crazy to believe that there could be a fair trial in the anti-Castro environment of Miami, when you’re talking about trying agents of the Castro government. And we’re very concerned about the jury selection in the case. And so, we’re at that first stage of trying to get their interest in the case.

AMY GOODMAN:

Now, explain who the Cuban Five are, Thomas Goldstein.

THOMAS GOLDSTEIN:

You got it exactly right in your introduction to the case. They are five individuals who were working for the Cuban government. They were unregistered agents, which was the beginning of the case against them. But those charges are generally handled on a much, much, much less serious basis. We have people here who — multiple people serving life sentences in prison. They weren’t involved in anything violent. They weren’t trying to steal American secrets. They were trying to gather information on people who were violently opposed to the Castro government. And they were tried in an environment, in which I think that the jurors, in some sense, took out revenge over their anger at the Castro government and what they perceive it’s done in Cuba.

AMY GOODMAN:

Can you explain the issue of venue?

THOMAS GOLDSTEIN:

Sure. So the Constitution calls for you to be tried where the charged crime is — was committed, but there’s a lot of law that says, you know, you can only be tried where you can get a fair trial. We don’t expect you to be tried in a community where there’s overwhelming hostility to you or hostility towards a group that you’re a member of. You can imagine some trials in communities that were heavily racist at one time, where, say, a black defendant was being charged with a violent crime that involved a white victim, that sort of thing. And so, a body of due process law developed, saying that you have a right to a fair trial, not just to a trial.

And we believe that this case really implicates that principle, and, in fact, the first time the Court of Appeals heard this case, it threw the convictions out, saying, look, in this anti-Castro environment, particularly when this all happened at the same time as the Elian Gonzalez debacle, there’s going to have to be a new fair trial. But the full Court of Appeals disagreed with that and reinstated their convictions. And that’s why we have to go to the Supreme Court.

AMY GOODMAN:

And, Thomas Goldstein, the jurors who were struck from the panel?

THOMAS GOLDSTEIN:

Well, the Court of Appeals said that the government is free to strike jurors on the basis of their race, so long as it doesn’t use all of its strikes and doesn’t eliminate all the minority jurors. And we think that’s really, really worrisome. The Constitution, the Equal Protection Clause of the Constitution says that nobody can strike jurors on the basis of their race, and the Supreme Court has been very protective of that principle. It really hates all forms of racial discrimination, including in jury selection. And we think the Court of Appeals here sort of gave people a free hand to keep people off of juries on the basis of their race, which is a horrible thing, just so long as they do it cleverly enough. So we’ve asked them to take up that issue as well.

AMY GOODMAN:

Gerardo Hernandez, one of the Cuban Five, can you talk about the conspiracy to commit murder case? Why do you say it’s based on flawed evidence?

THOMAS GOLDSTEIN:

Sure. Well, this is the most serious charge that was brought against any of the five, and the United States contends that Gerardo Hernandez, when he gathered information on flights by Brothers to the Rescue — so what happened is that Brothers to the Rescue, which is a very anti-Castro organization, really, really opposed to the regime, really tried to bring about regime change, in part by doing overflights of Cuban territory — and Gerardo Hernandez passed on information to Cuba about when the planes would be going. Now, the planes showed up on radar anyway; it wasn’t a particularly huge deal. But then Cuba shot two of the planes down, and he was convicted of conspiracy to commit murder for that, even though he had nothing to do with any plan to shoot the planes down, much less a plan to shoot the planes down in US jurisdiction. You know, it’s not true, and there’s literally no evidence of it.

And we think this is kind of the best example of how this jury, and in this environment, wasn’t able to look fairly at the case and say, look, maybe these people were unregistered agents, and you’re not supposed to do that, and we have a way of dealing with those sorts of issues, but the charges here were much more serious. And this is usually resolved diplomatically, not through criminal convictions.

AMY GOODMAN:

And the timetable on this? We just have ten seconds.

THOMAS GOLDSTEIN:

Sure.

AMY GOODMAN:

When do you expect the Supreme Court to make a decision about the appeal?

THOMAS GOLDSTEIN:

Almost certainly in May they’ll decide whether to hear it, and then if they do, we’ll get an answer later this year or in 2010.

AMY GOODMAN:

Well, I want to thank you for being with us, Thomas Goldstein. National Law Journal said he is one of the nation’s leading attorneys under forty. He’s with Akin Gump. And that does it for our show. In related Supreme Court news, Justice Ruth Bader Ginsberg, the only woman on the court, recovering now from surgery here in New York at Memorial Sloan-Kettering for pancreatic cancer.