Justice for Jonathan Pollard Media Release May 10, 1999

Understanding Pollard's Failed Legal Appeal Provides the Key To Resolving The Case

by Hershel Shanks, Editor, Moment Magazine - Originally Published June, 1992

There is an honorable way out of the Pollard case. This is good news because the case just won't go away. The disproportionate harshness of the life sentence is too much to ignore. The honorable way out was suggested to me by a surprising fact I learned from reading the majority opinion of the judges who denied Pollard's recent appeal. The honorable and fair thing is for the President to reduce Pollard's sentence in light of all the circumstances surrounding his admitted offense-spying for Israel. The basis for doing this is that, while only one of the three appeals court judges found in Pollard's favor, even the other two, who formed the majority, agreed -this is the surprising fact- that the United States government may well have violated the plea agreement pursuant to which Pollard pleaded guilty.

If the majority judges thought the government probably violated the plea agreement, why didn't they rule in Pollard's favor? Thereby hangs my tale.

I start with the recognition that there was no excuse for Israel's engaging Pollard as a spy to deliver American military secrets. For this Israel should be condemned and Pollard punished -although I do confess to more than a little curiosity as to whether the information Pollard gave Israel turned out to have produced useful information in connection with the Gulf war. This is something the President, if he considers my suggestion, may want to look into - as only he can.

Pollard pleaded guilty to one count of espionage, pursuant to a plea agreement that contained the government's quid pro quo. The government agreed to "bring to the Court's attention the nature, extent and value of his (Pollard's] cooperation and testimony" after he was apprehended. The government also "agreed to represent that the information Mr. Pollard has provided is of considerable value to the government's damage assessment analysis, its investigation of this criminal case and the enforcement of the espionage laws." In recommending punishment to the court, the government agreed to limit itself to "a sentence of a substantial period of incarceration and if appropriate, a monetary fine, implying it would not ask for a life sentence. It also agreed that it would tell the court only about "the facts and circumstances of the offenses committed by Mr. Pollard."

Pollard argued that the government violated the plea agreement by referring at the sentencing hearing to his "arrogance," calling him "vengeful" and "contemptuous" and by suggesting his motive was greed rather than ideology. The government also violated the plea agreement, Pollard contended by submitting to the sentencing judge a highly classified memorandum by then-Secretary of Defense Caspar Weinberger cataloguing the damage Pollard had done and opining that the damage had been "substantial and irrevocable" - going beyond the "facts and circumstances" and in effect arguing for a life sentence, in violation of the plea agreement. Federal District Court judge Aubrey Robinson imposed a life sentence-the maximum permitted under the statute -which Pollard has since been serving in solitary confinement.

Everyone except Judge Robinson seems to agree that this life sentence lacked proportion, to say the least. If any weight were given to the fact that Pollard pleaded guilty, thereby saving the government the expense (and exposure of classified material) that a trial would have entailed, the fact that Pollard was spying for an ally rather than an enemy and the fact that Pollard cooperated with the government after apprehension-if any weight were given to these factors, he should not have received the maximum sentence. There has never been any rational defense of this sentence, except for you-know-what or for something in the classified Weinberger memorandum, a memorandum which, by the way, neither Pollard nor his lawyers have seen in full because of its classified nature. *[ JUSTICE FOR JP NOTE: Jonathan Pollard and his original attorney DID see the full document - but only for few moments just prior to sentencing - hardly adequate time to prepare an appropriate defense to the numerous false charges they saw in it. In all the ensuing years since sentencing, the government has not allowed Pollard or his attorneys to access the document again in order to rebut it. When his attorneys requested access to the memorandum for purposes of this appeal, the government responded that they had "no need to know". See Abbreviated Version of Appeal.]

Even the appeals court judges in the majority called Pollard's sentence "harsh." But sentencing is up to the trial judge. And that wasn't the issue on this appeal. There the question was whether the government had, by the Weinberger memo, violated the plea agreement by, in effect, recommending a life sentence and by going beyond the "facts and circumstances of the offenses."

One judge, Judge Stephen Williams, ruled that it did. If you just read the press reports, you would assume that the other two judges - Judge Laurence Silberman and Judge Ruth Ginsburg- ruled that the government had not violated the plea agreement. But that's not what they ruled. Indeed, they ruled that the government probably did violate the plea agreement. Here are their own words: "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." The majority judges recognized that the government had engaged in "rather hard-nosed dealings' with Pollard. The majority judges noted the 'rather polemical tone' of Weinberger's memorandum. The majority judges spoke of "the grudging nature of the government's compliance" with the plea agreement. "The government's presentation," said the court majority, "was certainly not generous - it could well be thought stingy."

Why then did the appeals court rule against Pollard? Because Pollard didn't present his contentions in the right way, -arguably as a result of a lawyer's error. Pollard-or his counsel-did raise these issues before Judge Robinson but failed to appeal the sentencing judge's rulings when they were made.

After three years in solitary confinement-and with new lawyers-Pollard raised these arguments in a new proceeding because by then it was far too late to appeal, So Pollard -or rather, his new lawyers -raised these matters In the only way open to them- by what lawyers call a collateral proceeding before the same judge who had put Pollard away for life. Judge Robinson, of course, ruled against Pollard. This time Pollard did appeal. That was the appeal the court recently ruled on, denying Pollard any relief by a two-to-one vote. The two-judge majority held that it was not enough to demonstrate that Judge Robinson was wrong. Pollard had to show that Robinson's ruling was infected by a "fundamental defect" that amounted to a "complete miscarriage of justice." This is, of course, a much heavier burden than just showing Judge Robinson erred.

In ruling against Pollard, the majority repeatedly emphasized this factor: Pollard should have brought up these arguments earlier; they now come too late, he cannot meet the additional, heavy burden of showing not simply that the sentencing judge was wrong but that the judge's ruling was fundamentally defective. As the majority said, "Not all breaches of plea agreements can be said to result in complete miscarriages of justice." Thus, while the "mood, atmosphere, or 'rhetoric' of the allocution ...might well justify relief on direct appeal of a sentence ..it is unlikely to satisfy the rigorous test of a [collateral attack]." These arguments, brought by "his new counsel," said the appeals court majority, "are thought far too late, in this collateral proceeding, to enable Pollard to prevail." The reason the court majority would not apply the same standard it would have applied if Pollard had made these arguments earlier is because of "Society's interest in bringing criminal appeals to an end. "This," said the majority, is why the courts set such a "high standard for relief in a collateral proceeding."

The majority concluded: "The issue before us as appellate judges is not whether a life sentence was appropriate punishment for Pollard's crime, still less whether we ourselves would have imposed such a sentence. 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."

No appeals court has ever reviewed Pollard's life sentence for fairness. No appeals court has ever ruled de novo, as the lawyers say, on whether the government violated the plea agreement.

It seems clear that Pollard did receive an unfairly harsh and disproportionate sentence and that the government did violate, as even the appeals court majority nearly said, the plea agreement. The appeals court majority nevertheless ruled that it could not grant relief to Pollard in the procedural circumstances in which the case came to it -by collateral attack, rather than by appeal.

But the executive branch - the President is not bound by these procedural restrictions. It / he can look at the fairness of the sentence, despite the passage of time. It / he-can do what justice demands in light of the government's violation of the plea agreement (which even the majority judges seem to imply occurred). The executive branch is not bound by the niceties of legal procedural rules in which Pollard seems to have gotten himself entangled. The executive branch is free to cut to the heart of the matter - to do the right and the fair thing.

And what better time to do this than at this abysmal point in the United States' relations with Israel.

After word by Justice for Jonathan Pollard

The preceding essay by editor Hershel Shanks was written following the rejection of Jonathan Pollard's legal appeal by the U.S. Appellate Court.

It is unique in providing the layman with a brief and clear understanding of why Pollard's appeal was rejected. After analyzing the failed appeal, Shanks proposes the only accurate and constitutionally appropriate way of resolving the Pollard case.

The proposed solution is as valid and appropriate today as it was when this essay was first published in Moment Magazine in June of 1992.

Only the President of the United States has both the

constitutional authority

and the

constitutional responsibility

to resolve a case as politically-charged as the Pollard case - a case that is critical to the protection of the due process rights of all Americans.