Lawyers in Elian case quizzed

By Russ Bynum, Associated Press, 05/12/00

ATLANTA -- Three federal appeals judges listened skeptically to both sides in the Elian Gonzalez dispute yesterday, questioning whether a 6-year-old boy can comprehend an asylum application and whether it is in his best interest to be raised in a communist country.

With the chants of sidewalk demonstrators audible in the packed courtroom, the judges' persistent questioning of lawyers for the government, Elian's Miami relatives, and his father pushed the hearing to an hour and 20 minutes, double its scheduled length.

The panel of the 11th Circuit US Court of Appeals, one step below the Supreme Court, said it would take several weeks to decide whether Elian is mature enough to seek asylum despite the father's wishes to take him back to Cuba.

Circuit Judge Charles Wilson, the panel's only Clinton appointee, peppered lawyers for the Miami relatives about the boy's ability to understand complex questions on an asylum application they filed for him.

"I'm sure Elian Gonzalez is a very bright and intelligent 6-year-old, but he didn't even have the ability to sign his last name on the asylum petition," Wilson said.

Before the government's lawyer could begin stating his case, Circuit Judge J.L. Edmondson raised two problems he had with the decision to deny Elian an asylum hearing.

Edmondson, a Reagan appointee, noted that the boy's great-uncle, Lazaro Gonzalez, had custody of the child when the asylum application was filed, while his father was still in Cuba. Also, Edmondson seemed particularly worried about Elian's fate in Cuba, twice calling it "a communist, totalitarian state."

Edmondson added that it is not uncommon for courts to rule that the best interests of a child override parental rights. He likened Elian to a child whose parents reject medical care for religious reasons.

Circuit Judge Joel Dubina, the third member of the panel and another Reagan appointee, asked the lawyer for Elian's father, Juan Miguel Gonzalez, why Gonzalez took five months to come to the United States to claim his son.

Lawyer Gregory Craig responded that the father's efforts to travel to the United States were slowed by the bureaucracies of both countries. Within days of Elian's arrival, "politics intruded in what should have essentially been a family affair," he said.

In an unusual speech to lawyers and courtroom observers before the hearing, Edmondson warned against jumping to conclusions based on the judges' questions.

"It is entirely possible that a judge may make a statement or ask a question that is the exact opposite of what he is thinking, because he may want to see how the lawyers respond to it," he said.

He also promised that the judges would try to rule within a few weeks.

Kendall Coffey, a lawyer for Elian's Miami relatives, told the judges that an asylum hearing should be almost automatic for anyone who applies.

Edwin Kneedler, the attorney for the government, said there is no evidence Elian would be harmed in Cuba. And he argued that parents' rights should be observed regardless of nationality or political beliefs, asking the judges how they would feel if Iran or Iraq refused to return an American child to a parent.

"The sacred bond between parent and child does not depend on where the parent happens to be at any particular time," Kneedler said.