Excerpts from Judge Stephen William's Dissenting Opinion

1991 Appeal

March 2, 1992 - Forward

The vote in the U.S. Court of Appeals for the District of Columbia Circuit was 2-1 against Jonathan Pollard on his appeal for a new hearing on his sentencing.

Pollard had argued that he had been unlawfully coerced to plead guilty by the "wiring" of his guilty plea to that of his wife, Anne; he had also argued that the judge should have recused himself because of allegations that he'd received an out-of-channels communication from President Reagan's secretary of defense, Caspar Weinberger. These arguments were rejected by all three judges.

But on one of the defense arguments, Judge Stephen Williams filed an eloquent dissent, asserting that Pollard should be granted a new sentencing hearing before a new judge, because the U.S. prosecutors

violated the spirit and, in an important element, even the letter of the agreement

It was the most important assertion to date that elements of the Pollard prosecution had gone awry.

Excerpts from Judge Williams dissent:

WILLIAMS, Circuit Judge, dissenting in part: I agree with the majority that the "plea wiring" was not an unlawful coercion of Pollard's guilty plea and that Chief Judge Robinson did not abuse his discretion in refusing to recuse himself or to conduct a hearing into the claim of ex parte contacts. But because the government's breach of the plea agreement was a fundamental miscarriage of justice requiring relief under [federal law], I dissent. ...

Pollard's plea agreement required him to plead guilty and to cooperate. On its side, the government made three promises of significance here.

First, it would bring to the court's attention "the nature, extent and value of [Pollard's] cooperation and testimony" and would represent that the information supplied was of "considerable value to the Government's damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws."

Second, it would not ask for a life sentence (this promise was implicit but it is not contested by the government), though it would be free to recommend a "substantial period of incarceration."

Third, the government limited its reserved right of allocution to "the facts and circumstances" of Pollard's crimes. The government complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit.

Government Obligations

Though the government obliged itself to call attention to the "considerable value" of Pollard's cooperation, in its principal sentencing memorandum, it buried its sole discussion of that cooperation in a section entitled "Factors Compelling Substantial Sentence."

The first paragraph of this section discussed the extent of Pollard's offense, saying that he had compromised "thousands of pages of classified documents," and recommended a "substantial period of incarceration."

The second paragraph called Pollard's activities a "flagrant breach of ... trust," a breach "all the more venal in that [despite Pollard's contrary claims] it is clear that the money and gifts provided by the Israelis were significant, if not the primary factors motivating defendant."

The third paragraph said that Pollard "will undoubtedly urge the Court also to consider his post-arrest conduct i.e., [his] submission of a plea of guilty and his cooperation..." and noted the obvious point that plea bargaining and cooperation "may be considered by courts at the time of sentencing."

In paragraph four, the government provided nominal compliance with its promise, saying that Pollard "revealed a substantial amount of information regarding ... the espionage operation which was previously unknown to the government" and that this cooperation "has proven to be of considerable value to the government's damage assessment analysis, and the ongoing investigation of the instant case."

In the fifth paragraph, though acknowledging that the defendant had been candid and informative, the government told the court that Pollard delayed his cooperation in order to assist the escape of three co-conspirators, devoting more space to this caveat than to its favorable words for Pollard's cooperation. The rest of this section, of course, went on with further denunciations.

Thus the government came forth with the magic words "of considerable value," and even mentioned two of the three general areas of inquiry, specified by the agreement, to which Pollard's cooperation contributed. But by placing the discussion square in the middle of its reasons why the sentence should be substantial, and by its heavy stress on the cooperation's imperfections, it succeeded in conveying the impression, that, overall, the value was not "considerable" but slight. Perhaps the value was slight, but if so, then the government should not have embraced an obligation to say the contrary. ...

Flagrant Violation

On the promise not to ask for a life sentence, the government coupled its adherence to the letter with an even more flagrant violation of the agreement's spirit.

It presented memoranda from Secretary of Defense Weinberger saying that "no crime is more deserving of severe punishment than conducting espionage activities against one's own country," that "it is difficult for me ... to conceive of a greater harm to national security than that caused by the defendant," and that "the punishment imposed should reflect the perfidy of [his] actions, the magnitude of the treason committed, and the needs of national security."

While these remarks did not expressly endorse a life sentence (or use a synonym...) the repeated use of superlatives implied an appeal for the maximum. Weinberger's reference to treason took the point further. Whereas treason carries the death penalty, and involves aiding the nation's enemies, Pollard was charged with espionage, carrying a maximum of life imprisonment and encompassing aid even to friendly nations - here, Israel.

Of course the sentencing judge knew the difference, but the government's barrage expressed a viewpoint that the government had promised not to express. Weinberger's subtext was that the heaviest possible sentence was the lightest that was just. ...

That the government had reserved the right to seek "a substantial period of incarceration" does not change the analysis. Of course the government remained free to lay out the details of the crime and its impact on national security. These, coupled with an explicit plea for a substantial sentence, might well have secured the government's objective. But the availability of these methods scarcely entitled it to wheel out the heaviest rhetorical weapons, calling for a life sentence in all but name.

Marshaling Evidence

Taken together, the government's three promises worked a substantial restraint on the government's allocution. Its commitments to restrict itself to facts and circumstances, and to assess Pollard's cooperation as having considerable value, closed off a means by which it might demand a life sentence in all but name. ...

Pollard's sentence should be vacated and the case remanded for resentencing. This should occur before a new judge as [the Santobello case] indicates, even though "the fault here rests on the prosecutor, not on the sentencing judge." ...

Though I do not wish to be too critical of the government, and though the analogy is inexact on some points, the case does remind me of Macbeth's curse against the witches, whose promises - and their sophistical interpretations of them - led them to doom:

And be these juggling fiends no more believ'd,
That palter with us in a double sense;
That keep the word of promise to our ear,
And break it to our hope.