How Clinton Can Solve His Pollard Problem

Hershel Shanks - The Jewish Week [NY] - January 6, 1994

President Clinton is caught between a rock and a hard place on the question of commuting the life sentence of Jonathan Pollard, the American who spied for Israel.

The Justice Department, the intelligence community and the Defense Department all say Pollard deserved it. On the other hand, large segments of the Jewish community and other vocal groups believe that the sentence was overly harsh, indeed unprecedented for a spy working for an ally, and that now is the time to let a little mercy "falleth gently."

The president will be damned if he does and damned if he doesn't.

But there is a fair, judicious way out:

No appellate court has ever reviewed Pollard's sentence de novo to decide whether the life sentence was, under all circumstances, fair, and whether, as Pollard contends, the government violated its agreement pursuant to which Pollard pleaded guilty. The government had agreed not to seek a life sentence; Pollard claims the government violated this agreement.

No appellate court has ever considered these questions because Pollard made a technical error at the time of the sentencing: He failed to appeal at that time. [J4JP: Jonathan's original attorney, Richard Hibey, failed to protect Jonathan's right to appeal. Incredibly, Hibey failed to file a timely notice of intent to appeal, thus depriving Jonathan forever of his right to a direct appeal of the draconian sentence he received. Jonathan received his life sentence without benefit of trial, in complete violation of a plea agreement, which he honored and the US abrogated. For details see the Court Case Page.]

When Pollard finally did appeal, he had to do so by way of what lawyers call a collateral attack. And on a collateral attack, Pollard's burden is much heavier. On a collateral attack, he is not entitled to a de novo review; instead, he is entitled to relief only if he proves that there was a "fundamental defect" in the sentence.

The president should forgive this technical obstacle to a de novo review of Pollard's sentence. The president should appoint three distinguished, retired, non-sitting federal judges to give him their views within 90 days on two questions: Was the sentence fair? And did the government violate the plea agreement?

With the views of such a panel in hand, the president will have a sound basis on which to make his own decision and will have the weight of those views behind his decision.

This resolution of the matter should please both sides. Those who favor the sentence can hardly complain that a distinguished panel of judges hears Pollard's contentions.

Pollard should be pleased as well because in the opinion of the appellate court that did hear his case on collateral attack, Pollard can find considerable comfort. One of the three judges actually voted for giving Pollard relief, concluding that even with the additional burden imposed on him in a collateral attack, he had shown that the government had violated the plea agreement.

The two-judge majority, although ruling against him, repeatedly emphasized that the court could not grant relief on a collateral attack unless Pollard could show that the sentence amounted to a "complete miscarriage of justice." This the two-judge majority felt Pollard could not do.

Said the majority:

"The issue before us as appellate judges is not whether a life sentence was appropriate punishment for Pollard's crime,It is rather whether [Pollard] has mounted a sufficient challenge to the actions of the government and the district judge to clear the formidable barriers to relief in a collateral challenge."

At the same time, the majority hinted that on a de novo consideration they might well find that the sentence was unfair and that the government had violated the plea agreement. Thus, they called the sentence "harsh."

On the issue of the government's alleged violation of the plea agreement, the majority referred to "the [at best] grudging nature of the government's compliance" with the plea agreement and then stated: "The mood, atmosphere or 'rhetoric' of the government's allocution [the sentencing presentation to the judge] - upon which the dissent relies - might well justify relief," but the court did not grant relief because the matter came up on a collateral attack rather than on a direct appeal from the sentence.

To resolve this matter, the president should note that Pollard has never had a de novo review of the sentence for fairness nor of the question as to whether the government violated the plea agreement. The president should conclude that fairness requires that Pollard be given this de novo review.

Hershel Shanks, an attorney, is the editor of Moment Magazine.