Jose Pertierra, Immigration attorney in Washington DC, and associate of the Pertierra & Toro, P.C law firm, receives us honest, friendly and uninhibited in Havana. He has more than a few websites on the case of Cuban Five open in his computer, and then starts pouring his reflections on the progress of the process that seeks for justice for Gerardo Hernandez and his four other comrades unjustly imprisoned in the United Status.
Being a typical Cuban he understands our intentions to clarify, as much as possible about the habeas corpus requested for Gerardo.
About the legal meaning of such legal action brought by Gerardo's defense team and its purpose, the lawyer graduated from George Washington University reports that it is a writ that has existed for centuries in the Anglo jurisprudence and not simply in the U.S. one.
"The habeas corpus is requested by a defendant when he thinks his fundamental, constitutional rights, have been violated, and then he goes to court to have his sentence reviewed, in order to determine whether or not such rights have been broken"
Author of numerous articles on extradition, immigration and international law, Pertierra explains that Hernández Nordelo- who was denied the right to a re-sentencing process in late 2009 and through which the sentences of three of his comrades were significantly reduced- has come before the courts to determine whether it is right for him to have effective assistance of his counsel.
"In October last year - he says - his lawyers filed an appeal before the Federal Court in Miami, headed by Judge (Joan) Lennard (who tried him in 2001) and now, in the coming days, the district attorney's office"
A man of fast and confident answers, Pertierra speaks accurately when asked about what other resort the U.S. legal system would allow, if the petition of habeas corpus does not yield the desired result.
"The defense can continue appealing, he assures, and backed by his experience in legal practice, he says:
"These processes often take a long time; there are still several stages to go through, but I keep insisting that the most effective way to solve this case is through what the U.S. Constitution calls an executive clemency, that this time would correspond to President (Barack) Obama."
Then he adds that the current President, if so he wishes, would not even have to pardon the Cuban Five, but simply keep the sentences, taking as served the 12 years they have been in prison and only pardons them of those that they have left.
According to Pertierra, at the end of each year, the occupant of the White House's Oval Office reviews those files that deserve that kind of leniency and allows inmates go free after considering their sentence, however long, as time already served.
CARTER AND PUERTORICAN INDEPENDENCE FIGHTERS
With decades of experience in the US legal system, Pertierra goes to the legal background of the implementation of such legal figure in the United States.
He recalls that in times of Jimmy Carter Administration, when Washington asked Cuba to release several prisoners that were incarcerated for working for the Central Intelligence Agency (CIA), Cuba asked the U.S. government for the revision of long sentences imposed on a group of Puerto Rican patriots imprisoned in that country.
"That was how Carter, without the pardon, gave "executive clemency" to Lolita Lebron, Rafael Cancel Miranda, Irving Flores and Andrés Figueroa Cordero, separatists who remained imprisoned for 25 years," he said.
- Could it be that in the case of Gerardo can not aspire to anything other than the executive clemency?
- Only if you win the writ of habeas corpus ..., the defense focused with particular emphasis on the innocence of Gerardo in connection with the shooting down by the Cuban air force of two planes of Brothers to the Rescue, on February 24, 1996, something put forward by the jury in the trial of 2001 to give him the two life sentences plus 15 years that he has today against him."
GERARDO VS. DEFENSE
Pertierra then voices his opinion on some articles published by news agencies in Miami, where they claim a contradiction arose between Gerardo and his defense team on where exactly the two planes were shot down in 1996: "The document written by lawyers Thomas C. Goldstein and Richard C. Kluhk, also says that the team member, Paul Mc Kenna, didn't make an effective defense at the 2001 trial.
"It adds that Mc Kenna diminished Gerardo's the constitutional, since he made too much emphasis on the place where the shoot-down took place, rather than focus on whether Gerardo knew it or not. "The facts show that he did not know what would happen to these pilots, whether in international waters or in Cuban ones, and that should really be the "heart" of the defense," he says.
Pertierra recalls that in the 2001 trial, the prosecution itself admitted not having the evidence to prove the defendant's participation in a conspiracy to kill anyone, least of all those guys, and asked the judge, even, to withdraw that charge, to which she objected.
We remind him on how flawed was the venue chosen for the trial, something that the defense has always stressed- even requested a transfer of venue - the attorney places that act as an indisputable violation of the provisions of the U.S. jurisprudence on that regard.
POSADA NOW LANES
But Pertierra not only has legal grounds to speak of the Five, but also of the other side of the coin, ie, against who they fought: monitor possible terrorist actions against Cuba and even the U.S. itself.
Recently threatened with death in the hotel where he was staying in El Paso, the Cuban lawyer also represents the government of Venezuela in the extradition case of Luis Posada Carriles, who is being tried in that city of Texas, for immigration offenses.
"This murderer is not charged for murder or terrorism, but for lying, so it would not astonish me they found him guilty of lying. This is a relatively minor offense," he says wryly.
Pertierra explains that while Posada Carriles was in prison for a year and a half on suspicion of lying, the judge who is examining his case has advanced that if convicted on charges of perjury, he probably would not go to jail because what corresponds to that crime in that state, is precisely that time and he already served it.
With the calculation of the odds on the future of the ongoing process of El Paso against Posada Carriles, he stresses the lack of willingness by the U.S. government to prosecute and convict "that annoying host."
Pertierra alludes to the past as a terrorist and a torturer, under the auspices of the CIA, of the famous character in more than a Latin American nation and especially Venezuela.
He says it is precisely because of that annoying past, that "Washington does not want to really judge him."
"There are many skeletons in the closet," he says in reference to how much the notorious murderer of 73 people during the bombing of the Cubana airliner near Barbados in 1976, and the main culprit behind the explosions in hotels Havana in 1997 and 1998 knows.
Pertierra is now in El Paso, following closely the trial of Posada Carriles and writing daily, El Diario de El Paso (www.cubadebate.cu) on the events in court.
"I keep thinking that the U.S. should be processing an extradition case against Posada in El Paso for 73 counts of murder and not for 11 counts of lying, but to Washington the Cuban victims are second class and the CIA terrorists are good terrorists ", he said. "Terrorism, however, you can not fight it a la carte. There are no good terrorists and bad terrorists. All are equal. There are no victims of first and second category, "he said.
At the insistence on the likely future of the process and given the apparent moves by Washington to extend it, Pertierra is blunt: "The U.S. government is aware that at the advanced age of its protégée and natural logic he doesn't have many years to live, they play to the delay in waiting for a death for them that would be opportune."
I insist on the perjury charge being ridiculous... "Imagine that they capture Osama Bin Laden in Pakistan, the United States requests his extradition and the Pakistani government responds that, rather than extradite him for all the murders he committed in the Twin Towers and the Pentagon, they just want to prosecute him for lying. "How would the United States react to something like that?, It is not difficult to imagine!"
However, Pertierra remains hopeful that justice can break through, in the case of Posada Carriles, as in case against Gerardo and his companions Antonio Guerrero, René González, Ramón Labañino and Fernando González.
"If President Obama wants to leave behind the Cold War and move in a more decent and healthy way, to heal the wounds of many years of warfare against Cuba, he should start to do real justice in the case of the Five and particularly with Gerardo , where the truth will eventually prevail."
ACN - February 1, 2010