life sentence after a trial and conviction, but the key is that prosecutors instead got him to agree to a
plea bargain. Prosecutors pledged in exchange to recommend only "a substantial period of incarceration and a monetary fine,"
not life imprisonment. The bounds of prosecutorial zeal do not allow the government to
violate plea agreements. The appeals judges will hear evidence, including the "traitor" red herring, that prosecutors breached their contract with Pollard.
Prosecutors promised in the plea agreement to detail for the judge only the "facts and circumstances of the offenses." In the usual course of events, this silence on a defendant's character would have given the sentencing judge a clear hint for a sentence far below the maximum.
Instead, Pollard's lawyers note that in court the prosecutor went beyond a recitation of the facts of his offenses. In addition to the traitor claim, the assistant U.S. attorney pressed for a stiff sentence by using the phrase "arrogance and deception" seven times to describe Pollard, with "vengeful," "contemptuous" and "venal" thrown in for good measure.
Prosecutors also trivialized his cooperation and admitted in court papers that they "wired" the plea by holding Pollard's [then-] wife hostage to a deal - much as prosecutors got Michael Milken to plead guilty by threatening to go after his brother. There is no rule against wiring pleas by hinging deals on freeing third parties from prosecution., but the Supreme Court requires strict judicial review to prove voluntariness.
The appeals judges are in no position to weight the harm to the U.S. from Pollard's spying, but they know that prosecutors were willing to settle for a plea that many court watchers guessed would justify a sentence of 15 to 20 years. If they want evidence of the impact of prosecutors going beyond the plea bargain, Exhibit A is the shorter jail terms given to Americans who spied for our enemies. A good case could be made for shooting all spies, but disproportionality should raise eyebrows:
- James Hall, an Army officer who sold classified plans to the
Soviet Union and East Germany, was sentenced in 1989 to
40 years in jail.
- Clayton Lonetree, the Marine sergeant in Moscow, spied for
the Soviets and was sentenced in 1987 to
- Richard Miller, the first FBI agent ever tried for espionage, turned over secrets, including a counter-intelligence manual, to
the Soviets. Last year, he was sentenced to
20 years. With the time Miller has served and the judge's urging of leniency,
he could be paroled next year.
- Abdelkader Helmy, a missile researcher, was sentenced in 1989 for selling technology to
Egypt that found its way to Iraq. He was released after serving two years.
- Samuel Morison, a Navy analyst, removed scores of confidential material, including photos he sold that were printed in Jane's Defense Weekly. In 1985, he was sentenced to
two years but was released after serving only 3 months.
Papers filed in Pollard's appeal argue that the question for the court is "limits on government when its competitive zeal and retributive anger have been aroused by an unpopular defendant." If these words sound like ACLU boilerplate, the Pollard appeal is also interesting as the most recent example of what be called civil-libertarian conservatism.
Pollard's lawyer on appeal is Theodore Olson, a former Reagan Justice Department official who was victim of a groundless investigation by one of Congress's special prosecutors. Mr. Olson's decision to take on the Pollard's case follows Robert Bork's success in reversing the RICO conviction of Robert Wallach in the Wedtech case. Mr. Bork, the former judge and trashed Supreme Court nominee, is also arguing the unconstitutionality of RICO as applied to commodities traders in Chicago.
The Pollard case raises broad questions about how to treat spies for our allies, but also presents a more constantly pressing domestic issue. That is that no crime entitles prosecutors to induce plea bargains with broken promises or bullying tactics. Nothing Pollard passed on to the Israelis would harm American interests as much as a declaration by judges that there are no limits on prosecutors.
- Pollard's appeal was later rejected on a technicality: that it had not been filed on time. Judge Williams wrote a minority opinion, calling the majority decision
"a fundamental miscarriage of justice."
- Claytone Lonetree was released in 1996, after serving
- Richard Miller was released in 1992, after serving
- Abdelkader Helmy was released after serving