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Burden of Proof

Elian Gonzalez Case: Legal Battles Continue Over Cuban Child

Aired April 27, 2000 - 12:30 p.m. ET



JANET RENO, U.S. ATTORNEY GENERAL: Based on all the information we had, they thought that they could ignore us, and we had tried to be very patient with them to effect a voluntary transfer. And then the time comes when the law must be enforced.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Federal agents raided the home of his Miami relatives to retrieve 6-year-old Elian Gonzalez, but the legal battles over the Cuban child are not over. Now, his father wants a U.S. court to declare him as the sole voice for his embattled son. Their Miami relatives have their own guardian petition before the court.

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Yesterday in Atlanta, lawyers for Juan Miguel Gonzalez filed an emergency motion with the 11th Circuit Court of Appeals. The filing stated that Elian's father, quote, "moves this court for leave to intervene in these proceedings for the purpose of asserting his legal and natural rights as Elian Gonzalez's sole surviving parent, and for the purpose of speaking on behalf of Elian as his only -- and most appropriate -- next friend."

ROGER COSSACK, CO-HOST: Now, the emergency motion also read, quote: "Intervention should be granted because Juan Miguel's presumptive right to care for his minor son is being challenged in this proceeding at every turn. Lawyers for Lazaro Gonzalez -- and they are Lazaro's, not Elian's -- seek to use machination and legal sleight-of-hand to turn this court into the arbiter of an intra-family dispute in which the primary antagonist is too distant a relative of Elian to be considered even 'extended family' under Florida law."

VAN SUSTEREN: This morning in the weekly Justice Department briefing, Attorney General Janet Reno fielded questions about the Elian Gonzalez case and the federal government's operation to retrieve the boy.

(BEGIN VIDEO CLIP) RENO: My feeling from the beginning has been that this little boy has been through so much. He lost his mother, he was found floating in the Gulf Stream, he came to live with distant relatives, he has been a center of attention, noisy attention from crowds. My feeling is that he deserves peace and quiet. He deserves to be with his daddy.


COSSACK: Joining us today from New Orleans is George Fowler, attorney for the Cuban American National Foundation in Atlanta. We're joined by law professor Tom Arthur; and here in Washington, Tom Klag (ph), immigration lawyer Jose Pertierra, and Brad Oliver (ph).

VAN SUSTEREN: And in our back row, Paul Looney (ph) and Jennifer Alexander (ph).

And also joining us today from the Justice Department is CNN's Pierre Thomas.

Tom, let me go first to you. Before the show, Roger and I were sort of laughing at the lawyerspeak of the graphics we put up on the air for the benefit of the viewers. I want to now sort of go back to basics and explain them. In this pleading, Tom, it says that Elian Gonzalez, in the United States Court of Appeals, filed this next-of- friend.

TOM ARTHUR, LAW PROFESSOR: Well, basically, what next-of-friend means is the spokesman for the child. Obviously, a 6-year-old child doesn't have the capacity to represent himself in court. Any time -- any action that is filed on behalf of at least a small child, there's always going to be someone speaking for them. For example, if you had an automobile wreck and your son was hurt, you bring the case on behalf of your son.

Let me just do it in my situation. If one of my children had been hurt, it would be John Arthur by Tom Arthur, his next friend, or best friend.

VAN SUSTEREN: Who gets to be next-of-friend, though? Does it have to be a family member? Can it be someone else? And who picks this person? And does the court say, OK, you're the one?

ARTHUR: Well, in most cases, there's no question who has custody of the child, so it's mother or father or both, depending on which one the family decides is going to bring the case. In unusual situations -- and this is obviously such an unusual situation -- then it gets a little bit dicey. In fact, this whole motion is a fight about who is the appropriate person to speak for the child.

COSSACK: Tom, what's the legal effect if this motion is granted? I mean, what I understand and what you've said is that Jose Miguel is now saying, I should be the one that speaks for the child. If he gets to speaks for the child, would he have the right to say, I'm going to withdraw the petition for asylum and let's go home? ARTHUR: Yes. That's basically what it would mean. And I think that's the real difficult issue in the motion. His motion really has two parts. The first part is he wants to intervene, which just means he wants to participate in the proceeding before the 11th Circuit. It's hard to see how that won't be granted since what the case basically is sort of a functional equivalent of a custody fight going on in the 11th Circuit.

Whether the court is going to immediately go ahead and then grant the second part of what Mr. Gonzalez is seeking, that is, to let him basically be the sole spokesperson for the son, is going to be a more difficult question. If that happened, the practical effect would be the end of the case because then if he's the sole spokesman for the son, all he has to do is withdraw any requests for asylum and the case is moot.

VAN SUSTEREN: Is it possible that -- now, the father, Juan Miguel, has asked the court, has moved the court to intervene. Is it possible that the United States Court of Appeals could say, OK, Juan Miguel, you can intervene because you have a legal interest in the matter and you are the father, but we're going to keep Lazaro because there may be another interest. We're going to have two people, two separate interests representing the young boy?

ARTHUR: I think that's quite possible, and that's why I used the analogy to a custody fight. I mean, ultimately, what this whole dispute is about, really, is where should Elian Gonzalez end up? Should he end up with his father and go back to Cuba, or should he stay in Miami with his relatives? That's the practical issue before us, and it doesn't make a lot of sense not to have both parties before the court, at least the way the 11th Circuit in its original order has addressed the matter. After all, the government's position before the 11th Circuit was: This is a simple case. This is a 6-year-old child. He's not competent to ask for asylum on his own, only his father can. He's the only living parent left. And, of course, that's the end of the case.

The court wasn't ready to accept that, at least at this point. It wanted to keep the case open. If you recall, the court said these are difficult issues and we're not ready to say whether that's right or wrong.

COSSACK: Tom, let me just interrupt you for a second. I want to ask Pierre Thomas a question.

Pierre, Janet Reno had a press conference this morning. Has she further articulated any of the reasons on why they went in with such force Saturday to rescue Elian?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Well, Roger, what she said today was pretty consistent with what she said earlier this week: primarily that the family gave her no choice but to go in, that it was stonewalling, stalling over and over again. She said, finally the time had come to act. She also made clear that they had a warrant to go into the home. Now, I'm told by sources the way this works is that the boy's parole status was revoked and then they went to a federal magistrate in Miami and requested for a search warrant to enter the house in order to seize the child.

VAN SUSTEREN: Pierre, did the attorney general, in her briefing this morning, mention anything about the fact that Juan Miguel has now asked the United States Court of Appeals to sort of bump Lazaro as the spokesman for the child, replace himself; and if the court does grant that, the father can then just withdraw the appeal and they can both go home? Has she -- did she discuss that at all?

THOMAS: Greta, she did not address that, but she did hold out some hope that the families over time could perhaps get together. In fact, she said Marisleysis, the young woman who had been taking care of Elian Gonzalez, that she could not imagine that Elian would not at some point have some sort of relationship with her.

COSSACK: All right, let's take a break.

Up next, Elian's Miami relatives have made requests of the court as well. Beyond political asylum for the boy, they've asked that Cuban officials be denied access to him. Stay with us.


RENO: And I kept thinking: I wish that I could see him when his daddy gets on the plane.



On this day in 1997, Andrew Cunanan began his killing spree in Minneapolis, Minnesota. By the time Cunanan committed suicide July 25, 1997, he had killed fashion designer Gianni Versace and four others and had been profiled on the FBI's Ten Most Wanted List



VAN SUSTEREN: Good news for our Internet-savvy viewers: you can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.


RENO: Raising children is the single most difficult thing I know to do. It takes hard work, love, intelligence and an awful lot of luck. This little boy has had a lot of bad luck along the way, but he's still resilient, he's still strong, he's still a smiling little boy. (END VIDEO CLIP)

COSSACK: This morning in Washington, most of the weekly Justice Department briefing centered on the Elian Gonzalez case. Elian's Miami relatives want an asylum hearing for the boy. They're also requesting that Cuban officials and doctors be denied access to the 6- year-old.

Jose, one of the issues I think that's left open here is whether or not the 11th circuit does decide that Elian Gonzalez, at 6 years old, is competent enough to ask for asylum on his own. Now, if his father was appointed as his guardian, and even if his father decided to withdraw the petition, the court decides that Elian has the right to do it, he could still go ahead and do it, couldn't he?

JOSE PERTIERRA, IMMIGRATION ATTORNEY: Well, theoretically, yes, Roger. I have always thought that one of the things that the Immigration Service could still do in this case is interview Elian to determine whether or not he is legally capable of speaking for himself. In other words, whether he understand the content, not only of the asylum application that everyone agrees was prepared by Lazaro's lawyers, and not by the little boy himself, but whether or not he is competent to understand an asylum application at all.

VAN SUSTEREN: But Jose, it is such a fluid standard, I mean a 6- year-old child. I mean...

COSSACK: That's the problem.

PERTIERRA: That's exactly the problem, I think it would be decided by saying that he's too young to understand really the contents of any asylum application. But I think so far the problem is, Greta, that INS has not interviewed the boy for that purpose, and that's why they leave themselves open to these arguments that the court maybe should determine whether he is legally capable of understanding the asylum application. It is really within the discretion of the attorney general to make that determination before they even reach the issue of the merits of the asylum claim.

VAN SUSTEREN: George, the pleading that was filed yesterday on behalf of the father, Juan Miguel, asked to replace Lazaro as the next of friend speaking for the child. Does Lazaro intend to oppose this motion in the United States court of appeals or will concede that the father speaks on behalf of the child?

GEORGE FOWLER, CUBAN-AMERICAN NATIONAL FDN.: Of course, he is going to oppose it.

VAN SUSTEREN: On what grounds?

FOWLER: There's a conflict between the father and the son, at least an apparent conflict. The father wants to take the son back to Cuba. There are millions of Americans that understand the Cuban situation, they recognize that that is the wrong thing for Elian, that he should stay in a free country. Millions and millions of Americans understand that. VAN SUSTEREN: What do you make of the argument that they make in the briefs, and it has been made just generally that Lazaro has sort of stretched beyond the pale of best interest of child by virtue of sort of parading him before the public, putting him in sort of -- putting him down in Miami where there are crowds, and sort of creating those videos, versus keeping the child sort of in a comfort safe zone away from that that the father has made.

FOWLER: Well, it just shows you the different viewpoints. From our perspective, there was a little boy, happy with his family relatives, everybody could see him happy, his relationship with Marisleysis, yes, there were people outside the house, but Elian seemed happy. All right?

Now we don't know what's going on with Elian. I can tell you what I think is going on, and they are trying to get him to change his mind, to say he wants to go back to Cuba. You know what, I think that little boy is holding on, that's why they won't let the family see him. They won't even let Marisleysis who developed that...

VAN SUSTEREN: Do you agree that they have no legal obligation to do that. I mean, there might be an emotional or moral or whatever, but do you agree that Juan Miguel has no legal obligation to have his son see Lazaro's family.

FOWLER: I absolutely disagree with you. Listen, there are international conventions and the law says that a child has his own rights, and in the Miami lower court, they decided precisely that, that Lazaro...

VAN SUSTEREN: But to see him, I mean to see him right now, though, to see him right now, do you agree with that, that Juan Miguel doesn't have to let Lazaro and Marisleysis see Elian today?

FOWLER: Well, what we filed was a motion to appoint guardian ad litem because they haven't acted normally. If I was the father of that little boy, I would let him see Marisleysis. He loves that girl, that is very, very obvious. Listen, this man has acted so weird. You know, for five months he never came to see his son, and he allowed...

COSSACK: George...

FOWLER: Let me just finish this, please. He allowed Janet Reno to go in there with the INS at the point of a gun to get his son out of there. Why didn't he go himself...

COSSACK: George, I want to shut you off just one second, I want to Jose a question. George makes a legal argument that I'm just not sure about, and his argument is: Look, everyone knows that America is a better place than Cuba. Well, I think America is a better place than Cuba, too. But is that a legally motivating decision that the INS would say, therefore, there is a conflict between the father and the son because the father disagrees with me.

PERTIERRA: Absolutely not, Roger, and that's the problem with this whole case from the beginning. We have always tried to analyze a case in terms of best interest of child. That is not the standard here. If anything, it is analogous to a termination of parental rights, where the distant relatives in Miami would have to show that the father of this little boy is somehow either abusive or neglectful, something they have been unable to do.

And I would just like to briefly respond to the comments that the father has been acting weird. I think most dispassionate observers would agree that weird is having this child paraded out in front of crowds at all hours of the day and night, and constantly being subjected to TV interviews and teaching him to make the V sign, as if he was Winston Churchill. The father is behaving very rationally.

VAN SUSTEREN: And Jose, if we are going to be talk about being weird, I think probably everybody needs to plead guilty, the media, the government, the marshals, the family, I mean everybody...

COSSACK: Not we.

VAN SUSTEREN: ... except Roger. But we need to take a break. Up next: Elian Gonzalez was rescued from the Atlantic on Thanksgiving Day. Five months later, he's still on American soil, embroiled in a bitter legal and political dispute. But when can he get on with his life? Stay with us.


Q: How much will city and county governments spend in the next fiscal year investigating the Los Angeles Police Department for corruption and misconduct?

A: At least $17.6 million. This does not include the $2.7 million already spent this year, or the $30 million proposed to be set aside for potential liability from civil suits.



VAN SUSTEREN: The case of Elian Gonzalez has consumed the resources of the INS, the Justice Department, a Florida court, a U.S. district court, and now a United States court of appeals. But will it end there?

Tom, tell me what we can expect will happen before the United States court of appeals on May 11, and as a law professor, are you willing to go out on a limb and tell us a timetable of when we can expect a decision?

ARTHUR: OK, well let me, I think -- you have got a couple of things that you are going will get decisions on. On this motion that was filed about -- the motion to intervene and be the next friend, and I think that is going to have to be decided quickly, it has got to be decided before the 11th to make any sense. If they are going to let him participate, they are going to have to say so relatively quickly, we are less than two weeks away from the 11th. I would be willing to guess that they are going to grant the motion, at least with regard to letting him participate so that they will have at least all three parties, the government and both sets of relatives arguing before them.

My guess is is they are not going to decide, at least not what has been asked for, to basically let Juan Miguel Gonzalez be the next friend with the absolute power to say what happens with regard to Elian's legal rights. I think that is their issue in the case, and I think they will find some device to temporize on that, while they decide what they are gong to do on the merits.

VAN SUSTEREN: And is it a wild guess, when will the United States court of appeals likely render a decision in this case?

ARTHUR: Well, in normal case, when a court of appeals has a full argument, rights an opinion, it can take months. I think in this case, with the pressure that is going on, and with the high visibility, I think it is more likely to come within a month.

COSSACK: Tom, let me just be brave enough to take a little issue with you on the decision factor, I would think that they would want to make a decision, and I would think that they would want to let the father stand in because, as you point out, that is the issue in the case. But, in fact, isn't that pretty strong law, that if there is a parent, a surviving parent here in this country with custody of the child, I mean how can you not -- how can you deny the fact that he should stand as the friend of Elian.

ARTHUR: Well, the problem us stand in in what manner? If you are going to -- what the motion asks for is, basically, to have Juan Miguel Gonzalez stand in for the child, as in my hypothetical, as I would say for my son if he had been in an automobile accident, which means you have complete control over the legal proceedings, which basically decides the legal proceedings. And if the court were incline that way, they would have, you know, in their previous decision, that is basically what the government was asking them to do, to in effect say that Juan Miguel...

COSSACK: Let me interrupt you. Jose, I don't think that, Tom, with all due respect, I don't think it does decide the case. And the reason is, I still think there's that issue about whether or not there's a conflict between the child and the father.

PERTIERRA: What it does decide, Roger, is that Lazaro is not next of friend, so he's gone from the case.

VAN SUSTEREN: Well, he may be there, too, though, I mean that is the big uncertainty.

PERTIERRA: If the father is the one that is speaking for the child as next friend, Lazaro is gone.

VAN SUSTEREN: Unless they've got this conflict issues, and they are worried exactly what the child's voice is, and they say: OK, we are going to take both of them, and let them both argue their positions.

FOWLER: There's a motion for guardian ad litem that's been filed on behalf of Elian and Lazaro to appoint a guardian ad litem to represent the child's interest, vis-a-vis this particular case.

So I believe that that motion is well taken, in the likelihood that it is going to be granted. And since there is an apparent conflict, the child doesn't want to go back to Cuba, the father apparently want to take him back to Cuba.

PERTIERRA: The asylum application was prepared by Lazaro's lawyers, when Lazaro had temporary custody according to a family court judge.

VAN SUSTEREN: And the family court said that's out.

COSSACK: And we are getting to bottom line is...

FOWLER: Is Elian Gonzalez the only refugee in the United States that is not going to have the right to political asylum?

VAN SUSTEREN: We are back to the 6-year-old.

COSSACK: We are back to starting with the argument about whether or not a 6-year-old is going to make this discussion between socialism in Cuba and democracy in America.

FOWLER: No appoint a guardian ad litem to make the argument for him.

COSSACK: All right, we are out of time. George, we are out of time. That's all the time we have for today. Thanks to our guests. Thank you for watching.

Tomorrow on BURDEN OF PROOF, John and Patsy Ramsey join us to discuss the investigation of their daughter's death, and the latest dispute over the lie-detector test.

VAN SUSTEREN: Join us then for another edition of BURDEN OF PROOF.



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