Prosecutorial Egregiousness

November 9, 1999

On November 21, 1999, Jonathan Pollard enters his 15th year of a life sentence with no end in sight.

The following article was written in 1993 by Theodore Olsen who was at the time the attorney for Jonathan Pollard. It provides a snapshot of the egregiousness of the prosecution in the Pollard case, which to this day has yet to be addressed or rectified.

Taking Exception: Clemency for Pollard

The Washington Post - December 20, 1993 - Theodore B. Olson

The Dec. 13 op-ed piece ('Pollard Deserves to Be in Prison') by David Geneson, a prosecutor in the Jonathan Pollard case, is drenched with the same kind of inaccuracy and hysterical exaggeration that Geneson and his government colleagues employed so effectively during Jonathan Pollard's sentencing.

The government's emotional and hyperbolic arguments succeeded in securing the harshest possible punishment of Jonathan Pollard - life imprisonment - even though the government had promised it would not seek such a sentence. Geneson professes not to object to a presidential commutation of Pollard's sentence to the eight years he has already served. Yet, he unleashes the same vituperation to oppose commutation of the sentence that he used to obtain it in the first place. However, that poison should not discourage President Clinton from responding favorably to the commutation plea by Pollard, Israel's Prime Minister Yitzhak Rabin and so many others.

Geneson's most audacious and demonstrably false claim is his assertion that the government did not promise Pollard it would 'restrain its prosecutorial rhetoric in connection with his sentencing.' Geneson acknowledges the commitment 'not to recommend the maximum penalty of life imprisonment.' The government however, promised much more than that, and Geneson knows it, for his handwritten signature appears on the government's written plea bargain with Pollard.

It explicitly promised to confine the government's sentencing argumentation to the 'facts and circumstances' of the offense committed - a significant limitation on the general right of prosecutors to venture opinions and engage in bombastic rhetoric during sentencing, it also promised to inform the sentencing judge that Pollard's cooperation with investigating agencies had been 'of considerable value to the enforcement of the espionage laws.' Those two additional promises were central to the plea agreement.

As Geneson knows, the government breached all three of its promises, savagely attacking Pollard's motives and personality. It argued that his cooperation was so deficient and improperly motivated that it should be a factor for enhancing his sentence. It accused him of 'treason,' an offense he never committed. It did everything it could to secure a life sentence despite its promise.

All three federal judges who considered Pollard's appeal, including Supreme Court Justice Ruth Bader Ginsburg and two prominent and highly respected conservative jurists, criticized the prosecutors' conduct as 'hard-nosed,' 'troublesome' and 'problematic.' Judge Stephen Williams found that the government's sentencing 'tirade' clearly exceeded the 'substantial restraint' on the government's conduct contemplated by the plea bargain, constituted a 'fundamental miscarriage of justice' and said he would have vacated Pollard's sentence if he could.

Public pronouncements by a former prosecutor beyond the official public record are, to say the least, highly questionable. Geneson is trying to persuade the public that Pollard should remain in prison for life based on his own revisionist, self-justifying interpretations of still-classified government damage assessments. But the fundamental point that he chooses to ignore is that the prosecutor was fully aware of the scope of Pollard's disclosures to Israel when he agreed not to seek a life sentence and decided not to charge Pollard with 'knowing or having reason to believe' that his actions would harm the United States. Thus, Geneson's exhortation years later for the same life sentence that he did not think was necessary and promised not to seek at sentencing is, on its face, deceptive.

Geneson also defames Pollard by saying that he was motivated by money. The record is clear that Pollard believed it was necessary to help Israel defend itself from hostile aggressors because the United States was withholding information it owed to Israel under a treaty. Months after he had volunteered his services and begun cooperating with Israel, Israeli intelligence officials persuaded him to accept relatively paltry sums of money,[For clarification of this issue see the Facts Page - point 6 and addendum.] a technique routinely utilized by intelligence professionals to corrupt, and therefore to enslave, an idealistic volunteer. Pollard was surely wrong to accept the money, but that was not the motive for his actions.

Jonathan Pollard knows he broke the law and had to be punished. Life imprisonment, however, is a grossly disproportionate sentence for Pollard's offense. Geneson simply has no answer for the fact that Pollard is the only person in United States history to receive such severe punishment for providing intelligence data to an ally. Aside from Pollard, those who received a life sentence committed espionage for a hostile nation; those who assisted allies received sentences comparable to the period Pollard has already served.

Commutation of Jonathan Pollard's sentence would heal a deep wound in the U.S.-Israel relationship and allow both countries to look to the future in this promising season of peace.

The writer is the former attorney for Jonathan Pollard.