On Procedural Grounds U.S. District Court
Dismisses Pollard's Motion for Resentencing
Justice4JP Release - August 15, 2001 - For Immediate Release - 2 Pages
United States District Judge Norma Holloway Johnson has dismissed, on procedural grounds, a motion for resentencing filed in September 2000 by Jonathan Pollard's new attorneys, Eliot Lauer and Jacques Semmelman.
The motion for resentencing was based upon ineffective assistance of counsel before, during and immediately after Mr. Pollard was sentenced to life in prison on March 4, 1987. Mr. Pollard was sentenced to the maximum penalty after pleading guilty to one count of conspiracy to commit espionage, and after cooperating fully with the government. His new attorneys maintain that he was ineffectively represented by his then-attorney, who failed to object that the government was breaching its plea agreement when it demanded a life sentence after it had promised not to do so. The attorney then failed to appeal the life sentence, dooming Mr. Pollard to an unreviewed sentence of life in prison.
The Court's order, dated August 7, 2001, dismissed the motion for resentencing purely on procedural grounds, and did not reach the merits of the case. The Court did not rule on whether prior counsel had acted effectively, and did not address either the propriety of the government's conduct at sentencing or the appropriateness of the life sentence.
The Court ruled that a 1996 statute created a one-year period of limitations in which to file any post-sentencing motion based upon deprivation of constitutional rights, such as the Sixth Amendment right to effective assistance of counsel. Mr. Pollard's new attorneys first became involved in his representation in May 2000, and filed their motion well within one year of that. Mr. Pollard's new attorneys argued that Mr. Pollard did not discover the facts underlying his claims until May 2000, when so advised by his new attorneys, and that under the unique circumstances of this case-including more than six years in solitary confinement-he could not have done so any earlier. The Court rejected the argument that Mr. Pollard could not have discovered the facts underlying his claims well before his new attorneys became involved. As a result, the Court ruled that Mr. Pollard's claims became time-barred in 1997.
In addition, the Court ruled that Mr. Pollard had failed to establish "cause" for his failure, with different counsel, to raise the issue of ineffective assistance of counsel in a 1990 motion to vacate his guilty plea. Mr. Pollard's new attorneys had argued that his attorney in 1990 had failed to raise the issue of ineffective assistance to avoid criticizing a professional colleague in the District of Columbia bar. The government offered no alternative explanation for the 1990 attorney's behavior. The Court ruled that there was insufficient evidence to establish that the 1990 attorney had acted for this reason. Mr. Pollard's new attorneys had demanded an evidentiary hearing so that they could examine the prior attorney under oath and prove conclusively that this was the reason for his failure to raise the issue in 1990. The Court denied the request for an evidentiary hearing.
In a separate ruling, also dated August 7, 2001, the Court denied Mr. Pollard's motion for reconsideration of its refusal in January 2001 to permit his new attorneys, both of whom have "top secret" security clearance from the U.S. Department of Justice, to gain access to approximately 35 to 40 pages of classified documents in the court's docket, submitted by both sides prior to sentencing. These documents include portions of a declaration submitted in January 1987 by then-Secretary of Defense Caspar Weinberger. No attorney for Mr. Pollard has been permitted to see these documents since he was sentenced in March 1987.
Mr. Pollard's attorneys intend to challenge these rulings via the appeal process.
For Further information:
Justice4JP Web Site
Justice for Jonathan Pollard
788 Marlee Avenue, Suite #212
CANADA M6B 3K1
Phone: (416) 781-3571
Attorneys Eliot Lauer and Jacques Semmelman
Curtis, Mallet-Prevost, Colt & Mosle LLP,
101 Park Avenue
New York, New York 10178-0081