(Prepared Dec. 4, 2001 - Updated Sept. 1, 2006)
OF THE CURRENT LEGAL INITIATIVES
FOR JONATHAN POLLARD
CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
ATTORNEYS FOR JONATHAN POLLARD
Curtis, Mallet-Prevost, Colt & Mosle LLP
101 Park Avenue
New York, NY 10178-0061
Fax (212) 697-1559
OF THE CURRENT LEGAL INITIATIVES
FOR JONATHAN POLLARD
This executive summary provides an overview of the case of Jonathan Pollard and of the legal initiatives undertaken by Mr. Pollard's new attorneys, Eliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP, between 2000 and 2006. Mr. Lauer has 31 years experience as a civil and criminal litigator. Mr. Semmelman has 21 years experience, and was formerly a federal prosecutor in New York. These attorneys took on Mr. Pollard's representation on a pro bono basis in May 2000.
Mr. Pollard is incarcerated in the federal prison in Butner, N.C., serving a sentence of life in prison, imposed in 1987 as a result of delivering classified information to the State of Israel, an ally of the United States.
Mr. Pollard has admitted his guilt and acknowledges that what he did was wrong. Mr. Pollard never intended, and was not charged with intending, to harm the United States.
Mr. Pollard was arrested in 1985 and has been in prison ever since - more than 20 years. He spent over six years in solitary confinement in some of the harshest penal institutions in the United States.
The Plea Agreement
As part of a written agreement reached with the government in 1986, Mr. Pollard gave up his right to remain silent and his right to a trial. He agreed to plead guilty to a single count of conspiracy to commit espionage. He also agreed to cooperate fully with the government, and it is undisputed that he did so, over a period of 15 months.
In return for his guilty plea and cooperation, the government made several promises, the most significant of which is that it agreed not to ask the court to impose a sentence of life in prison. Life in prison was the maximum sentence for Mr. Pollard's offense. It was the maximum sentence that could have been imposed even if Mr. Pollard had invoked his right to remain silent, had refused to cooperate, and had insisted on his right to a public trial.
New counsel has uncovered that Mr. Pollard's life sentence was the direct result of ineffective representation by his then-counsel, who repeatedly failed to act while the government violated its plea agreement.
The Government Breaches its Plea Agreement
The government violated its plea agreement in three material respects:
(1) by asking for a sentence of life in prison after it had promised not to do so;
(2) by failing to advise the sentencing judge in good faith of the nature and extent of Mr. Pollard's cooperation, which it had promised to do; and
(3) by going well beyond the "facts and circumstances of the offenses" in its sentencing presentation to the court, and engaging in vicious ad hominem attacks on Mr. Pollard, which it had promised not to do.
In addition, as explained below, the government materially misrepresented facts to the sentencing judge.
Defense Counsel Acts Ineffectively
Defense counsel failed to deal effectively with any of these government breaches of the plea agreement, or with the government's material misrepresentations of the facts, resulting in the imposition of the life sentence.
Even more significantly, after sentencing, defense counsel did not file the requisite one-page Notice of Appeal from the life sentence, and, without telling Mr. Pollard, allowed the statutory appeal period (ten days) to elapse. As a result, there has never been any direct appellate review of Mr. Pollard's life sentence.
Judge Williams of the Court of Appeals Votes to Vacate the Life Sentence
A 1990 effort to obtain collateral review via habeas corpus failed, due in part to the enhanced burden of proof on collateral, rather than direct, review. Even so, Hon. Stephen Williams, United States Circuit Judge for the District of Columbia Circuit Court of Appeals, wrote in a dissenting opinion that he would have vacated the sentence "because the government's breach of the plea agreement was a fundamental miscarriage of justice requiring relief[.]"
The Government's Breaches of the Plea Agreement, and the Deficiencies in the Legal Representation
The government's multiple breaches of the Plea Agreement, coupled with defense counsel's material deficiencies in dealing with those breaches, resulted in the life sentence. Some examples follow.
A. Example: The Weinberger Supplemental Declaration
On March 3, 1987-the day before sentencing-then-Secretary of Defense Caspar W. Weinberger, who had submitted a 46-page pre-sentencing Declaration two months earlier (see below) submitted a four-page Supplemental Declaration, in which he now accused Mr. Pollard of having caused as much or greater harm to national security than any other spy in the "year of the spy"-a well-understood reference to the recent espionage cases of John Walker (head of the infamous Walker Spy Ring), Jerry Whitworth (a member of the Walker Spy Ring), and Ronald Pelton. Each had spied for the Soviet Union, and each had been sentenced to life in prison just a few months earlier.
The government's message in the Weinberger Supplemental Declaration was unmistakable-Pollard had caused no less harm than had Walker, Whitworth or Pelton; he should therefore not receive a lesser sentence than they-life in prison.
The government's allegations were false. Documents publicly available prior to March 1987 in the Walker and Whitworth court dockets establish that the harm caused by those spies was vastly more damaging to national security than that caused by Mr. Pollard. Yet, Mr. Pollard's counsel presented none of that evidence to the sentencing judge.
In addition, the Weinberger Supplemental Declaration falsely accused Mr. Pollard of "treason," a crime for which he had not been charged and which he had not committed. Treason, a capital offense, entails aiding an enemy of the United States. (Over four years later, an attorney for the government would admit in court that the government's use of the word "treason" at sentencing was "regrettable." However, the damage had been done.)
Mr. Pollard's counsel failed to demand any proof of the government's outrageous and false comparison with the Soviet spies, failed to demand an evidentiary hearing on the issue of harm, failed even to demand an adjournment of the sentencing in order to prepare a response to the last-minute Weinberger Supplemental Declaration, and-most significantly-failed to object to the government's transparent demand for a life sentence, which violated the written plea agreement.
B. Example: The Wolf Blitzer Interviews
As another example of ineffective representation, several months prior to sentencing, Mr. Pollard had applied in writing for permission from the government to allow journalist Wolf Blitzer to enter the federal prison and interview Mr. Pollard with a tape recorder and camera.
The government approved Mr. Pollard's application, and two interviews took place inside the prison with government approval. Under the plea agreement, any interviews had to be approved by the Director of Naval Intelligence. Mr. Pollard had been led to believe that his written requests for authorization had received all necessary approvals within the government. Indeed, it would not have been possible for Mr. Blitzer to enter the prison at all, much less equipped with tape recorder and camera, without government approval.
At sentencing, however, the government claimed that the interviews had been "unauthorized," and that by giving "unauthorized" interviews, Mr. Pollard had violated his plea agreement, which, the government argued, demonstrated that he was dangerous and unwilling to yield to any authority.
In response, Mr. Pollard's defense counsel completely mishandled the situation. Counsel failed to tell the sentencing judge that Mr. Pollard had sought and obtained the government's permission to give the interviews. Counsel also failed to demand an evidentiary hearing to determine who within the government had known and approved of the interviews. Instead, counsel inexplicably conceded to the sentencing judge that the interviews had indeed been "unauthorized."
Counsel even breached the attorney-client privilege by volunteering to the sentencing judge that he had advised Mr. Pollard not to give the interviews.
The judge never learned the truth-that the interviews were authorized by the government, and that at a minimum Mr. Pollard had acted in the good faith belief that he had obtained all necessary government approvals.
The effect of the government's misrepresentation and of defense counsel's mishandling of the issue was to inflame the sentencing judge against Mr. Pollard.
The Court Imposes a Life Sentence
Given such ineffective representation, the government ran roughshod over Mr. Pollard's valuable rights bargained for in the plea agreement. The government received the benefits of the plea agreement-full cooperation and no need for a public trial in an espionage case-then violated its obligations under that agreement. With no effective advocate for Mr. Pollard, the court accepted the government's prohibited recommendation, and sentenced Mr. Pollard to life in prison.
II. THE SEPTEMBER 2000 MOTION FOR RESENTENCING
New Counsel Takes on the Representation
Attorneys Lauer and Semmelman first took on the pro bono representation of Jonathan Pollard in May 2000. They did so because the facts establish that Jonathan Pollard's life sentence was the result of severe government misconduct that went unchecked by an egregiously ineffective defense counsel-a true miscarriage of justice.
The Motion for Resentencing
In September 2000, new counsel filed a Motion for Resentencing in the United States District Court for the District of Columbia. Counsel based the motion on the ineffective assistance of prior counsel that had resulted in the life sentence. Controlling Supreme Court case law mandated that the life sentence be vacated, and that Mr. Pollard be resentenced by a different judge in a fair proceeding, consistent with the Plea Agreement, and represented by competent counsel.
The Government Has No Response on the Merits
In December 2000, after requesting and obtaining a lengthy delay for the stated purpose of interviewing prior counsel for the government and the defense and investigating the merits of the claim, the government filed its response to the Motion for Resentencing.
The government's response said nothing in defense of its own misconduct. Nor did the government's response address the core issue in the Motion for Resentencing-the ineffective performance of Mr. Pollard's counsel in 1987. Instead, the government took the position that, even if Mr. Pollard's contentions are correct, they fail because Mr. Pollard filed his Motion for Resentencing after the statute of limitations for bringing such motions had expired.
The effect of the government's position was that (i) even if it had engaged in serious misconduct (by breaching its plea agreement and by misrepresenting the facts to the sentencing judge), and (ii) even if Mr. Pollard's attorney had been utterly ineffective, and (iii) even if as a result the life sentence was completely inappropriate and unjust, Mr. Pollard would still be required to serve out the life sentence, only because the statute of limitations for raising these issues had supposedly run out.
The government relied upon a 1996 statute ("AEDPA") which had created a one-year limitation on prisoners raising constitutional challenges to their incarceration. The government claimed the one-year period ran out in 1997. However, the statute, as applied by the courts, provides that the one-year period begins to run only from the time a hypothetical prisoner exercising reasonable diligence would have learned the "facts" supporting the claim.
The facts first became known to Mr. Pollard in May 2000, when he met Messrs. Lauer and Semmelman, who informed him of the deficiencies in prior counsel's performance. Prior to that, Mr. Pollard did not know material facts supporting his claim of ineffective assistance. These facts include the professional duties which his prior counsel had failed to fulfill-the duty to seek a remedy for breach of the plea agreement, the duty to demand an evidentiary hearing and put the government to its proof on disputed issues of fact, and so on. Had he known those facts, he would have filed for relief long before, and well within any statutory limitations period.
The Motion for Resentencing was timely filed in September 2000, well within one year of Mr. Pollard's discovery of the facts, and therefore within the one-year statutory period.
The Amicus Curiae Brief
In December 2000, several leading criminal law professors, joined by other distinguished authorities, filed an amicus curiae brief in support of Mr. Pollard's Motion for Resentencing, and in opposition to the government's contention that the statute of limitations barred the claim: Prof. Charles Ogletree (Harvard Law School), Prof. Anthony Amsterdam (N.Y.U. Law School), Prof. Michael Tigar (American Univ. Law School), Hon. George N. Leighton (former federal judge), Hon. Anthony Weiner (Member of Congress), and others.
The Court Dismisses the Motion on Procedural Grounds
On August 7, 2001, United States District Judge Norma Holloway Johnson dismissed the Motion for Resentencing, purely on procedural grounds. The court did not reach the merits. 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 did not conduct an evidentiary hearing, though one was demanded.
A. The Statute of Limitations
The court accepted the government's argument that the Motion for Resentencing was barred by the 1996 statute of limitations, which expired in 1997. Without conducting an evidentiary hearing, and with no evidence to support such a conclusion, the court somehow found that Mr. Pollard had actual knowledge of all essential facts well before 1997. Among other fallacies, the court never explained, or tried to explain, how the incarcerated Mr. Pollard supposedly had actual knowledge before 1997 of the contents of documents first found in 2000 by Messrs. Lauer and Semmelman in the Walker and Whitworth court dockets in Maryland and California.
B. The Issue of "Cause"
In addition, the court raised an issue that the government had not raised, and ruled that Mr. Pollard had not shown "cause" for his failure, with different counsel, to raise ineffective assistance of counsel as part of his 1990 attempt to obtain collateral review of his guilty plea and sentence. Under the 1996 statute, this failure, said the court, precluded the court from even considering the Motion for Resentencing.
Mr. Pollard's new attorneys had explained 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 defense bar. Mr. Pollard's new attorneys had demanded an evidentiary hearing so that they could examine the 1990 attorney under oath and prove conclusively that this was the reason for his failure to raise the issue of ineffective assistance.
The government offered no alternative explanation for the 1990 attorney's behavior. The government did not submit an affidavit from the 1990 attorney (as the government typically does in such cases). The government did not even argue that this issue barred the Motion for Resentencing.
Nevertheless, the court raised the issue sua sponte. The court ruled that there was insufficient evidence in the record to conclude that the 1990 attorney had acted for this reason. The court ruled that, if this were in fact the reason, it would constitute "cause" for Mr. Pollard's failure to raise ineffective assistance in 1990. However, the court summarily denied the request for an evidentiary hearing to bring out the facts.
The Motion for Reconsideration
On October 5, 2001, counsel filed a Motion for Reconsideration, or in the Alternative, for Issuance of a Certificate of Appealability so that the Court's ruling can be appealed to the United States Court of Appeals for the District of Columbia Circuit.
In support of the motion, Hon. George N. Leighton, former United States District Judge for the Northern District of Illinois, submitted a sworn Declaration fully endorsing Mr. Pollard's legal position and urging the court to reconsider its ruling, or at the very least issue a Certificate of Appealability.
On September 2, 2003, nearly two years after the Motion was filed, Chief Judge Thomas F. Hogan of the United States District Court for the District of Columbia heard oral argument on the Motion. Judge Hogan reserved decision. The Motion remains pending.
On January 14, 2004, counsel filed a Motion for Issuance of a Certificate of Appealability in the United States Court of Appeals for the District of Columbia Circuit. There is no appeal "as of right" from a decision denying a Motion for Resentencing, but the law allows a litigant to request leave to appeal, and Mr. Pollard's counsel asked the Court of Appeals to authorize an appeal from the denial. On June 7, 2004, two judges of the Court of Appeals effectively authorized such an appeal by ordering that the case be referred to a three-judge panel for briefing and argument. Oral argument took place March 15, 2005 in the United States Court of Appeals for the District of Columbia Circuit.
On July 22, 2005, the Court of Appeals affirmed the ruling of the district court, principally on statute of limitations grounds.
III. THE NOVEMBER 2000 MOTION FOR ACCESS TO CLASSIFIED PORTIONS OF THE COURT DOCKET
Messrs. Lauer and Semmelman have undertook a second legal initiative on Mr. Pollard's behalf.
The Weinberger Declaration
In January 1987, two months before Mr. Pollard was sentenced, then-Secretary of Defense Weinberger submitted to the court a 46-page Declaration, setting forth the government's views regarding the damage allegedly caused by Mr. Pollard's actions, including projections by Mr. Weinberger of the possible harm that might arise as a result of Mr. Pollard's conduct. The full, unredacted document was shown at that time to Mr. Pollard and his then-counsel. In response, the defense submitted their own memoranda (one prepared by Mr. Pollard, another by his then-attorney), and the government replied.
However, portions of the government's submissions, as well as portions of the defense's submissions and of the sentencing transcript (totaling 35 to 40 pages distributed among five documents) were redacted from public view based upon the government's assertion that these portions contained classified information. Among the portions thus redacted were Mr. Weinberger's specific projections of possible harm.
The unredacted documents were placed under seal pursuant to a Protective Order. The Protective Order expressly provides a mechanism for future attorneys for Mr. Pollard (and possibly other persons) to have access to the complete unredacted documents. Under the terms of the Protective Order, such persons must obtain the requisite security clearance, sign certain form agreements, and obtain court approval. The government has acknowledged in a letter dated August 3, 2001 that the latter requirement would be satisfied if the government were to agree that counsel has a "need to know" what is in the 35 to 40 pages of redacted material.
Since the sentencing on March 4, 1987, the government has refused access to the 35 to 40 pages of redacted material to any subsequent attorney for Mr. Pollard. Most recently, Mr. Pollard's current attorneys, Messrs. Lauer and Semmelman, have sought access to the unredacted Weinberger Declaration and the other four classified court documents so that they can effectively represent their client in preparing and presenting an application for executive clemency. In particular, Messrs. Lauer and Semmelman think it likely that many, if not most, of Mr. Weinberger's projections have never come to pass. They believe they can fashion a compelling application for executive clemency on the ground that the projections of harm that motivated the life sentence have not come to pass in the ensuing nearly twenty years. Accordingly, executive clemency is appropriate to remedy the injustice in continuing to require Mr. Pollard to serve the life sentence that was premised, in large measure, on those projections. However, in order to prepare a clemency application based on the facts, it is necessary for Messrs. Lauer and Semmelman to gain access to the sealed pre-sentencing docket materials, in order to see what the specific projections were, so that they can ascertain which, if any, ever materialized.
Attorneys Lauer and Semmelman applied for and were accorded "Top Secret" security clearance from the U.S. Department of Justice, for the specific purpose of representing Mr. Pollard and obtaining access to the sealed docket materials in his court file. They were determined to be eligible for the even higher "SCI" clearance upon showing a "need to know." Nevertheless, despite granting them the appropriate security clearances, the government refused to afford them access to the Weinberger Declaration and the other four court documents, even for viewing in a secure government facility.
In view of the fact that Mr. Pollard is serving a life sentence, that the documents in question are by now over 19 years old, and that Mr. Pollard's case continues to be the subject of significant controversy in the media, one has to wonder why security-cleared counsel are being denied access to these portions of their client's court file.
The "Need to Know"
To make a serious and effective clemency application, Mr. Pollard's attorneys "need to know" what is in the sealed docket materials. Only by examining those materials (which can be done in a secure government vault, under strictest conditions of confidentiality) can counsel determine which, if any, of Mr. Weinberger's projections have come to pass, and can prepare a clemency application based upon the failure of those projected harms to materialize.
Moreover, as a fundamental principle, it is axiomatic that effective legal representation requires full knowledge of all of the facts-especially the court record.
Mr. Pollard's adversaries have have succeeded in poisoning the atmosphere for executive clemency by repeatedly leaking speculation, opinion and outright falsehood to the press as if it were fact. Rebutting such tactics requires counsel to have access to the facts.
For example, in September 2000, shortly before President Clinton left office (a time when presidents traditionally consider applications for executive clemency, and when there was public debate over whether President Clinton should grant clemency to Mr. Pollard), NBC's Tim Russert stated on Meet the Press that he had been informed by the former chief prosecutor (Joseph diGenova) that Mr. Pollard had disclosed the identities of U.S. "agents in the field." Attorneys Lauer and Semmelman immediately wrote to Messrs. Russert and diGenova, challenging that assertion and demanding proof in the court record. Mr. diGenova then conceded in writing that this assertion was merely his "opinion," not a fact. It is not a fact. This incident is representative of other instances in which adversaries of Mr. Pollard have leaked speculation, opinion, and falsehood to the press as if it were fact, thereby contaminating the political environment with falsehoods, making it untenable for a president to grant relief to Mr. Pollard.
Another tactic used by adversaries of Mr. Pollard is to invoke the ominous incantation, "I cannot tell you because the information is classified, but if you only knew what harm Pollard caused . . ." These assertions say nothing, but are intended to convey the impression that the speaker speaks with authority and that Mr. Pollard caused unspeakable harm. Adversaries of Mr. Pollard glibly make such assertions, with or without knowledge of any facts.
The only way to counter this campaign of disinformation and innuendo is with the truth. At a minimum, this requires security-cleared counsel to have access to the 35 to 40 pages of redacted material in the court's docket so that they can see exactly what Mr. Pollard is accused of having done. While counsel could not reveal what is in the sealed docket materials, counsel could lawfully represent that certain purported actions or consequences attributed to Mr. Pollard are nowhere to be found in any materials filed with the court, and such accusations are therefore highly suspect. The ability to state what is not in the sealed docket materials would enable counsel to begin the process of repudiating the rumors, exaggerations, and outright falsehoods that have been leaked to the press by Mr. Pollard's adversaries as a means of preventing executive clemency.
The Motion for Access
In November 2000, counsel filed a Motion in the United States District Court for the District of Columbia to allow Mr. Lauer access to the 35 to 40 pages of classified court documents. In support, the D.C. area chapter of the American Civil Liberties Union submitted an amicus curiae brief. Hon. Anthony Weiner, Member of Congress (D.-N.Y.) submitted a letter in support.
The government opposed the Motion, acknowledging that Mr. Lauer has "Top Secret" clearance but claiming that he lacks the requisite Sensitive Compartmented Information ("SCI") clearance, and that as a result, providing him access to the records would pose a risk to national security. The government also argued that Mr. Pollard's attorney has no "need to know" what is in his client's court records. The government ridiculed the notion that persons in the government would still be relying on documents prepared in 1987 to make decisions about Mr. Pollard. The government characterized the docket materials as long out-of-date and therefore "irrelevant."
By order dated January 12, 2001, U.S. District Judge Norma Holloway Johnson accepted both of the government's arguments and denied the motion. Counsel for Mr. Pollard immediately filed a Motion for Reconsideration. On August 7, 2001, Judge Johnson denied that motion.
At the precise time the judge was denying the Motion for Reconsideration, the Court Security Officer (a Department of Justice official appointed by the Court to administer matters involving classified documents in the Court's docket), admitted in a letter that the government's background investigation into Messrs. Lauer and Semmelman "will support SCI access" upon a showing of a "need to know." This admission meant that the government's earlier representation to the court-that allowing counsel access to the documents would pose a risk to national security - was false.
Counsel moved immediately for a modification of the January 12, 2001 Order based upon the Court Security Officer's admission.
The government's response, served April 9, 2002, perpetuated its misconduct. The government claimed that somehow the Court Security Officer is not the "Government" and that, as a result, his admission should not be binding. However, the government's response eventually conceded that counsel has the proper security clearance, but disingenuously denied that the government had ever taken a contrary position, or that Judge Johnson had found otherwise. Conceding the clearance issue, the government still maintained that counsel should be denied access because they have no "need to know."
In reply, counsel submitted a letter dated September 10, 2001 written by Assistant Attorney General Daniel J. Bryant to Congressman Weiner (the "Bryant Letter"), which admitted that between 1993 and 2001 the Department of Justice unilaterally allowed access to the sealed docket materials to government personnel on 25 separate occasions. Since each such instance of access had to be supported by a "need to know," the Bryant Letter establishes that, contrary to the government's assurance to Judge Johnson that the materials were of no interest to anyone because they were out-of-date, the Department of Justice determined unilaterally that government personnel had a "need to know" what was in those materials over two dozen times in the preceding seven years. And since the docket materials constitute a sentencing file (not an intelligence file), the only reason anyone would want access to the materials would be in connection with Mr. Pollard-such as a clemency application, a Congressional initiative, or the like-as opposed to seeking information on pure intelligence matters unrelated to Mr. Pollard.
The Court Security Officer's letter and the Bryant Letter were the result of several months of effort by Congressman Weiner to gain access to the classified documents. Congressman Weiner is continuing his efforts to uncover the truth about Jonathan Pollard.
On September 2, 2003, more than two years after counsel had filed the Motion to Modify the January 12, 2001 Order, Chief Judge Thomas F. Hogan of the United States District Court for the District of Columbia heard oral argument on the Motion. On November 12, 2003, Judge Hogan denied the Motion. There is an appeal "as of right" from that denial, and a Notice of Appeal had been filed. A consortium of amici curiae, including the National Association of Criminal Defense Lawyers, the American Association of Jewish Lawyers and Jurists, the American Civil Liberties Union of the D.C. Capital Area, and various law professors and other distinguished individuals, filed an amicus curiae brief in support of Mr. Pollard's position. Oral argument took place March 15, 2005 in the United States Court of Appeals for the District of Columbia Circuit.
On July 22, 2005, in a two-to-one decision, the Court of Appeals affirmed. The majority (Sentelle and Henderson, JJ.) inexplicably held that a federal district court somehow lacks jurisdiction to allow access to its own docket materials when the objective of access is in connection with a contemplated application for executive clemency. One judge (Rogers, J.) dissented vigorously, reasoning that a federal district court plainly has jurisdiction over its own docket materials, and noting that counsel's intended purpose in seeking access cannot impair the court's jurisdiction.
Counsel for Mr. Pollard filed a petition for en banc review. On November 10, 2005, the petition was denied without opinion.
Counsel for Mr. Pollard then filed a petition for certiorari with the United States Supreme Court. On March 20, 2006, the Supreme Court denied the petition without opinion.
The case of Jonathan Pollard raises issues that transcend Mr. Pollard. The behavior of the government throughout this case should cause grave concern to all Americans.
The government's refusal to afford security-cleared defense counsel access to the court docket raises serious issues regarding the power of the government to deny defense attorneys access to their client's court records. Similarly disturbing is the government's refusal to respond to the Motion for Resentencing on the merits, and its reliance on the statute of limitations as its sole justification for perpetuating an unjust life sentence.
The government can and should allow defense counsel access to the docket materials. Fundamental fairness mandates that Mr. Pollard's security-cleared counsel be afforded access to the docket materials so that they can present an effective application for executive clemency. The President and the Attorney General each has the authority to allow defense counsel access to the docket materials. Especially in light of the Court of Appeals' ruling that only the Executive Branch has jurisdiction to allow access, it is incumbent on the Executive Branch to exercise its authority and control over the documents in a manner consistent with fundamental fairness and truth, not with concealment and evasion. Allowing access to Mr. Pollard's attorneys, in a secure Government facility, would constitute an important first step in remedying, in the words of Judge Williams, a "fundamental miscarriage of justice requiring relief[.]"
New counsel for Mr. Pollard seek the support of Members of Congress, other elected officials, and organizational, communal, and clerical leaders. Messrs. Lauer and Semmelman welcome the opportunity to meet with any elected official, or any organizational, communal, or clerical leader, to discuss the case.
Dated: September 1, 2006
- November 21, 1985: Jonathan Pollard arrested
- January 1986: Pollard begins 15 month period of cooperation with U.S. Government
- May 23, 1986: Pollard and U.S. Government enter into written plea agreement; U.S. agrees not to ask for maximum sentence of life in prison
- June 4, 1986: Pollard pleads guilty to conspiracy to commit espionage
- Pollard not charged with intending to harm U.S.
- January 1987: Secretary of Defense Caspar Weinberger submits partially classified Declaration (46 pages)
- March 3, 1987: Secretary of Defense Weinberger submits unclassified Supplemental Declaration effectively comparing Pollard to Soviet spies recently sentenced to life in prison (4 pages)
- March 4, 1987: Pollard sentenced to life in prison
SUMMARY: THE SEPTEMBER 2000
MOTION FOR RESENTENCING
- May 2000: Eliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP take on Pollard's representationpro bono
Basis for Motion: Deprivation of Sixth Amendment Right to Effective Assistance of Counsel
- Counsel failed to file Notice of Appeal from life sentence based upon Government's breaches of Plea Agreement (demanding life sentence, failing to credit cooperation, allocuting beyond facts of offense)
- Counsel failed to object to Government's breach of Plea Agreement when it asked for life sentence
- Counsel failed to challenge or demand proof that Pollard had caused no less harm than Walker and other Soviet spies as alleged falsely in Supplemental Weinberger Declaration
- Counsel failed to request adjournment of sentencing based upon last minute submission of Supplemental Weinberger Declaration one day before sentencing
- Counsel erroneously validated Government's attacks based on Wolf Blitzer interviews
Status of Motion:
- September 2000: New counsel files Motion for Resentencing
- Government's sole opposition: Motion barred by new Statute of Limitations (allegedly ran out April 1997)
- Counsel's reply: Government misapplies the Statute, since Pollard only learned facts in May 2000
- Amicus curiaebrief for Pollard signed by leading criminal law professors and others
- August 2001: Motion for Resentencing denied strictly on procedural grounds
- October 2001: Counsel files Motion for Reconsideration or for Issuance of Certificate of Appealability; Motion supported by Declaration of George N. Leighton, former United States District Judge
- September 2003: Chief Judge Thomas F. Hogan hears oral argument on Motion
- November 2003: Judge Hogan denies the Motion
- January 2004: Motion for COA filed in Court of Appeals
- June 2004: Court of Appeals refers case to merits panel for full briefing and argument
- March 2005: Oral argument in D.C. Circuit Court of Appeals
- July 2005: D.C. Circuit affirms lower court
SUMMARY: THE NOVEMBER 2000 MOTION FOR
ACCESS TO CLASSIFIED PORTIONS OF COURT DOCKET
- Access by counsel to classified portion of Weinberger Declaration essential to represent Pollard effectively and to rebut speculation and falsehoods leaked to press by adversaries
- New counsel asks Government for access to classified portion of Weinberger Declaration and four other pre-sentencing documents in Court's docket
- Government says, apply for security clearance
- Government conducts background investigation and grants Lauer and Semmelman "Top Secret" security clearance for this purpose
- Congressman Anthony Weiner submits letter in support of access
- ACLU files amicus curiae brief in support of access
- Government opposes granting access
- Government invokes putative "danger to national security"
- Government claims counsel has no "need to know" content of client's court docket
- January 2001: Court accepts Government's position and denies access; counsel moves for reconsideration
- August 2001: Motion for Reconsideration denied
- August 2001: Court Security Officer effectively admits there is no danger to national security
- August 2001: Counsel files Motion to Modify January 2001 Order based upon admission of Court Security Officer
- May 2002: Counsel supplements files Motion to Modify January 2001 Order based upon DOJ's admission that it has allowed access to sealed materials 25 times between 1993 and 2001 based upon "need to know"
- September 2003: Chief Judge Thomas F. Hogan hears oral argument on Motion to Modify
- November 2003: Judge Hogan denies Motion to Modify; Notice of Appeal filed
- March 2005: Oral argument in D.C. Circuit Court of Appeals
- July 2005: D.C. Circuit affirms lower court in 2-1 decision
- November 2005: D.C. Circuit denies en banc petition
- March 2006: U.S. Supreme Court denies petition for certiorari