From the Courts: Justice Watch
In Cuban spies case, government turns snippy
January 03, 2006 By: Julie Kay
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 position.”
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 fairly.”
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 briefs.
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.”
Ouch.
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.