[Marxism] US tries to block amicus briefs in Cuban Five case

Walter Lippmann walterlx at earthlink.net
Wed Jan 4 07:07:40 MST 2006

(Very important article on how the Bush administration is trying 
to prevent broad public discussion of the issues in the case by
denying amicus status to materials some legal groups want to be
able to submit to the 11th circuit hearing coming up shortly.)


With oral arguments scheduled for next month in the second round of
appeals before the 11th U.S. Circuit Court of Appeals, South Florida
lawyers are expressing astonishment and dismay over the unusual
effort by the U.S. attorney's office to block national legal groups
from filing amicus briefs in the government's appeal of the reversal
of the Cuban Five convictions in Miami. (Article in South Florida
Business Journal)

>From the Courts: Justice Watch In Cuban spies case, government turns

January 03, 2006 By: Julie Kay

Ricardo Bascuas of UM's law school

South Florida lawyers are expressing astonishment and dismay over the
unusual effort by the U.S. attorney's office to block national legal
groups from filing amicus briefs in the government's appeal of the
reversal of the Cuban spies' convictions in Miami.

With oral arguments scheduled for next month in the second round of
appeals before the 11th U.S. Circuit Court of Appeals, the federal
government's effort to reinstate the convictions of five Cuban agents
and force a retrial is heating up and turning somewhat ugly.

The full 11th Circuit in Atlanta will hear arguments in the
government's appeal of an August ruling by a three-judge panel that
overturned the 2001 spying convictions of the five agents.

The latest twist in the high-profile case came last week when the
U.S. attorney's office in Miami filed a motion seeking to block the
11th Circuit's acceptance of two amicus briefs filed by state and
national legal organizations that oppose the government's position.
The motion sharply urged the 11th Circuit not to accept the briefs.

Two days later, Ricardo Bascuas, a University of Miami law professor
who authored one of the amicus briefs, filed a strongly worded reply
opposing the government's position and reiterating why amicus briefs
should be allowed.

"The important civil rights precedents discussed by amici curiae hold
that the Sixth Amendment protects us all from convictions tainted by
racial, ideological, religious, ethnic, or other irrational
prejudice," states the brief. "As distinguished criminal defense
organizations, amici offer to assist the court by presenting the
cases most pertinent to the fair treatment of unpopular defendants."

The amicus briefs were filed by the National Lawyers Guild, the
National Association of Criminal Defense Lawyers, the National
Association of Federal Public Defenders and the Florida Association
of Criminal Defense Lawyers. One was co-authored by Miami criminal
defense lawyers David O. Markus and Brian L. Tannebaum, with Henry J.
Bemporad of San Antonio.

Assistant U.S. Attorney David Buckner, who co-authored the
government's brief, declined comment. "Everyone plays to win, I
guess," Federal Assistant Public Defender Richard Klugh, who likely
will be arguing the case before the 11th Circuit, said in an
interview. "But to not allow anyone except the Cuban defendants to
argue is not right. These are respected American legal organizations
and they should be allowed to participate in the process."

Markus angrily called the prosecutors "crybabies."

"Only insecure bullies cry and complain like this," he said. "I'm
really surprised that the [U.S. attorney's office] would take this

The battle over the amicus briefs underscores the political
volatility of the case and the intensity of the legal fight.

In 2001, after six months, a jury convicted five men of plotting to
spy for the Cuban government.

But last August, an 11th Circuit panel overturned the convictions,
ruling that U.S. District Judge Joan Lenard was wrong to deny a
defense request for a change of venue because passionate anti-Castro
sentiment in Miami made it impossible for the defendants to get a
fair trial.

The 93-page ruling was widely criticized in the Cuban-American
community. Some expressed offense over the panel's message, addressed
to the Cuban-American community, that the U.S. Constitution requires
that "every defendant, no matter how unpopular, must be treated

U.S. Attorney Alex Acosta appealed the panel ruling and asked the
full court to reconsider the matter. In an unexpected decision, the
full 11th Circuit in October agreed to rehear the case.

Some South Florida lawyers were stunned when the government filed its
motion late last month urging the court not to accept the amicus

In the motion, Buckner and Assistant U.S. Attorney Anne R. Schultz
argue that the briefs are partisan filings that "bring no policy
perspective different or distinct from the appellants' interest and
which argues detailed factual contentions, inappropriate for an
amicus filing."

The prosecution also argued that if forced to respond to the amici,
it would have to spend a "significant portion" of its limited
briefing allotment refuting "baseless claims," because "record
citations are selective and incomplete, and the characterizations
misleading and wrong."


Klugh said the part that most offended him is the government's
assertion that the federal public defender's office may have
solicited the outside legal groups to write their amicus briefs and
may even have had a hand in the writing. The brief by Assistant
U.S.Attorney Caroline Heck Miller calls the amici "surrogates for
appellants." The purpose of such a move, she suggests, would be to
allow the defense to circumvent page limitations in their own briefs.

Klugh angrily denies the allegation. He and other defense lawyers
argue that they see no reason why the court shouldn't allow the two
amicus briefs. All parties should be allowed to express their views
in the case, Klugh said.

"I have never seen the government argue this before," Klugh said. "I
can see if there were 10 briefs filed, but there were just two, from
respected legal organizations."

One of the amicus authors, C. Peter Erlinder, a professor of law at
the William Mitchell College of Law in St. Paul, Minn., felt so
strongly about the case that he took time out during a trip to
Tanzania as part of a United Nations group addressing local
government issues to write his brief, Klugh said.

Richard B. Rosenthal, a Miami appellate lawyer, said the South
Florida legal community was flabbergasted by the government's move.

"We were all surprised," he said. "Those briefs are routinely allowed
and the government's decision to challenge the amicus brief smacks
either of desperation or of sheer pettiness."

But Robert Jarvis, a law professor at Nova Southeastern University,
said the government's move may be justified. Amicus briefs are
sometimes used by legal groups to bolster fundraising efforts.

"The court does not want be burdened down with amicus briefs," he
said. U.S. Supreme Court Justices Ruth Bader Ginsberg and Sandra Day
O'Connor have remarked publicly that they don't read amicus briefs.

"There's always the question of what do you have to say that's new
and different," Jarvis said. "I'm not unsympathetic to the
government's position."

The legal community is watching to see if any amicus briefs
supporting the government's position will be filed, perhaps by
Cuban-American groups. All such briefs are due Jan. 13.

Julie Kay can be reached at jkay at alm.com.

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