Pollard Legal Appeal - Abbreviated Version
by Theodore Olson, Esq.
This Case is Scheduled for Oral Argument on September 10, 1991
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 90-3276
THE UNITED STATES OF AMERICA,
Appellee
Versus
JONATHAN J. POLLARD,
Appellant.
On Appeal from the United States District Court
for the District of Columbia
condensed and abbreviated
REPLY BRIEF FOR APPELLANT
JONATHAN J. POLLARD
INTRODUCTION
In a very real sense, Jonathan J. Pollard is the test by which this Government's adherence to principle will be measured. He may have committed a serious crime, but that does not excuse the excesses that have pervaded his prosecution. Whatever his culpability, he was constitutionally entitled to the presumption of innocence and a public trial. It was beyond the Government's power to take these rights from him through duress or empty promises. Yet the Government conditioned its conduct toward his seriously ill wife on Mr. Pollard's agreement to plead guilty, reneged on each important promise it exchanged for his guilty plea, and denied his lawyers access to important evidence. This case is exceedingly important because requiring fair play by the Government even in the case of the most unsympathetic defendant is the assurance that all citizens will receive the same protection.
SUMMARY OF ARGUMENT
This case calls into question the conduct of the Government, not the defendant. It requires the Court to consider the limits on Government when its competitive zeal and retributive anger have been aroused by an unpopular defendant.
The Government decided to avoid what would surely have been an awkward, potentially embarrassing and inconvenient trial and to secure Mr. Pollard's cooperation in the investigation and evaluation of his activities. These were undoubtedly important objectives. To achieve them, the Government purchased Mr. Pollard's plea Of guilty in exchange for the prospect of more lenient treatment of Mrs. Pollard together with three explicit promises calculated to maximize his chances for a sentence less than life in prison. But the Government did not keep its part of the bargain because it could not restrain its desire to ensure that Mr. Pollard would never again 'see the light of day." J.A. 411.
Even if, standing alone, the Government may induce the relinquishment of constitutional rights by threats and promises involving a desperate and dependent loved one, that kind of distasteful tactic certainly requires an exacting review of the prosecutor's overall conduct toward the accused. Here, that conduct cannot withstand close scrutiny.
In blatant disregard of its agreement to limit its allocution to the "facts and circumstances of the offenses committed," the Government threw everything in its arsenal at Mr. Pollard during the sentencing process, including the prosecutor's opinions of Mr. Pollard's character, motivations and personality. If agreeing to restrict its allocution meant anything to the Government when it put that promise in writing, it meant nothing when it came time to perform.
The prosecution also agreed to represent that Mr. Pollard's cooperation had been of "considerable value" to its investigation and to the enforcement of the espionage laws. Instead, it ridiculed the value of his cooperation and heaped abuse on his motives for offering it.
Finally, the Government agreed not to seek a life sentence for Jonathan Pollard. But its vituperative allocution and its disparagement of the value of Mr. Pollard's cooperation were intended to have precisely the opposite effect. The coup de grace was delivered by two stinging denunciations of Jonathan Pollard by the nation's highest-ranking national security official, who demanded a sentence commensurate with the "magnitude of the treason committed." Treason, of course, is punishable by death, 18 U.S.C. S 2381, and is not an offense that Mr. Pollard committed. But the District Court got the message and imposed the most stringent sentence that Mr. Pollard's plea allowed.
The Government has impaired this challenge to its conduct with yet another assault on Mr. Pollard's rights. It denied his new lawyers access to the Government's classified sentencing submissions for the plainly unsustainable reason that the prosecutor did not think that new counsel had a "need" to see that vital evidence. See J.A. 505.
There is no doubt that the Government decided that Mr. Pollard was an offensive and thoroughly unpleasant individual who deserved the nastiest kind of punishment. In fact it had every right to seek such punishment -- up to the point when it bargained away that right for something that it needed from Mr. Pollard. But the Government cannot have it both ways.
In the end, this is a simple case because no crime is serious enough to countenance Governmental overreaching. The Government must never be allowed to induce the surrender of constitutional rights with promises that it cannot or does not intend to keep.
CONCLUSION
Whether or not the Government's actions toward Jonathan Pollard would have been tolerable as isolated incidents, the totality of its conduct describes a level of broken commitments and improper actions that is not acceptable. The Government wanted Mr. Pollard's cooperation and to avoid a public trial that may have had uncontrollable repercussions. At the same time, his prosecutors and his former employers wanted desperately to strike out at Mr. Pollard and send a clear message to others. But the Government could not achieve its conflicting objectives without breaking its word to Mr. Pollard. He is therefore entitled to withdraw his plea or receive a new sentencing.
See also: Excerpts from Judge Stephen William's Dissenting Opinion and Editorial: These Juggling Fiends.