The Government's Troubling Conduct: After entering into a plea bargain agreement with Pollard, the government proceeded in a manner that was in substantial tension with the commitments it had made under the agreement. In the words of the dissenting judge in the 1992 D.C. Circuit Court of Appeals 2-1 ruling rejecting Pollard's §2255 motion to withdraw his guilty plea:
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 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. [United States v. Pollard, 959 F2d 1011, 1034 (D.C. Cir. 1992) (Williams, J., dissenting) (citations omitted; emphasis added).]
The two judges who formed the court's majority disagreed with their colleague's bottom line, but they too acknowledged "the grudging nature of the government's compliance," 959 F.2d at 1026; that "the government's presentation was certainly not generous - it could well be thought stingy," id.; and that "the government was engaged in rather hard-nosed dealings with the defendant," id. at 1030. The majority took note of the "rather polemical tone" of Secretary Caspar Weinberger's pre-sentencing memorandum to the district judge, id. at 1017, conceding that the Secretary's words might accurately be characterized as "rank hyperbole." Id. at 1025. The majority did not disagree that the government's unflattering description of Pollard's character and motivation constituted a breach of its pledge to limit its allocution to the "facts and circumstances" of the case; it merely held that any such breach, "troublesome" though it may be (id. at 1026), did not rise to the level of a "fundamental defect" in the sentence that resulted in a "complete miscarriage of justice" sufficient to warrant §2255 collateral relief. Id. at 1028.
The government's inappropriate handling of the case after it entered into the plea agreement extends beyond the manner in which it carried out its terms of the bargain with Pollard. As I pointed out in an article I wrote for the June 1997 Middle East Quarterly, it was only after the government had secured Pollard's guilty plea that it began speaking in terms of the harm Pollard caused to the United States. Pollard's indictment had charged him under the federal law that makes it a crime to deliver defense information "to the advantage of a foreign nation" - conspicuously avoiding charging him under the parallel law that makes it a crime to deliver such information "to the injury of the United States." Pollard thus had good reason to assume, when he agreed to plead guilty to a criminal charge of spying for an ally where there had been no charge of harm to the United States, that he would receive something less than a life sentence.
After his plea, though, the government began to sing a different tune, essentially converting the charge from the less morally culpable crime of benefiting a foreign nation to the more serious crime of injuring the United States. Thus, as elaborated in my Middle East Quarterly article, the government submitted a Victim Impact Statement that spoke in various ways of the harm Pollard had caused to American interests; Secretary Weinberger submitted a declaration raising the specter that Pollard had endangered American lives; and then, in a second submission on the eve of sentencing, the Secretary went so far as to accuse Pollard of "treason" - a legal term that Article III, Section 3 of our Constitution defines as levying war against the United States or aiding America's enemies.
What happened, in other words, is that the government leveled a charge of lesser moral magnitude against Pollard, secured his guilty plea, and then post-facto changed the focus of the sentencing process by upping the ante on Pollard's crime. This may have been clever prosecutorial strategy - but it was not fair play.
Pollard's Lawyer's Blunders: The currently pending §2255 motion for re-sentencing filed by Pollard's new attorneys highlights yet another reason why there is something fundamentally unfair about Pollard's life sentence. The motion makes a convincing case that Pollard's original lawyer made a number of serious tactical blunders in his representation of Pollard - most egregiously his failure directly to appeal Pollard's life sentence.
The devastating consequences of that failure are spelled out quite clearly in the D.C. Court of Appeals afore-mentioned 2-1 ruling against Pollard's earlier §2255 motion to withdraw his guilty plea, in which the majority point out that "in a §2255 collateral challenge, an appellant, in order to gain relief under any claim, is obliged to show a good deal more than would be sufficient on a direct appeal from his sentence. §2255 is not a substitute for a direct appeal. ...The mood, atmosphere or 'rhetoric' of the government's allocution - upon which the dissent relies - might justify relief on direct appeal of the sentence, but it is unlikely to satisfy the rigorous test of §2255." (United States v. Pollard, supra, 959 F.2d at 1020, 1029-30.) In other words, had Pollard's lawyer decided directly to appeal the life sentence on the grounds that the government had breached the plea bargain agreement, the likelihood is that he would have prevailed on that appeal. But the lawyer chose not to appeal - and the rest is tragic history.
Whether Pollard is legally entitled at this late date to raise his lawyer's blunder in failing to appeal the life sentence, as well as the various other critical errors catalogued in Pollard's new §2255 motion, and whether those lawyering mistakes were of sufficient magnitude to now entitle Pollard to collateral relief on the grounds that he was denied adequate representation of counsel, are obviously issues for the court to decide. Beyond technical issues of law, though, it is fair to ask as a matter of simple justice whether Pollard should be made to suffer such severe consequences - spending the rest of his life in prison - as a result of his lawyer's blunders. That, we submit, is an issue worthy of your humanitarian consideration.