THINK AGAIN: New hope for Pollard
Jonathan Rosenblum - The Jerusalem Post - November 2, 2000
No matter who wins Tuesday's US presidential election, Jonathan Pollard's chances for presidential clemency are next to nil.
Nevertheless the future looks brighter for Pollard, serving a life sentence for spying for Israel, that at any time in recent memory. Pollard recently filed a habeas corpus motion in federal district court seeking a new sentencing hearing on the grounds that his attorney's handling of his case was so deficient that he was effectively deprived of his constitutional right to counsel. Most egregious was his attorney's failure to file a notice of appeal from Pollard's life sentence, or to inform Pollard of his right to appeal.
Indeed Richard Hibey, Pollard's attorney, appears not to have been aware that Pollard had the right to appeal his sentence. In a statement to the press the day after sentence was imposed, Hibey said Pollard had no "avenue of appeal." That failure to appeal almost certainly kept Pollard from a new sentencing hearing in front of a different judge.
In a subsequent collateral attack on his sentence due to the government's failure to comply with its plea bargaining agreement, one member of the Circuit Court of Appeals found that the government's conduct had resulted in a "fundamental miscarriage of justice." The other two members of the panel indicated that there was evidence of serious breaches of the plea bargain agreement by the government. They also noted that those breaches by themselves would have been sufficient to entitle Pollard to a new sentencing hearing before another judge, had the issue been raised on direct appeal rather than in a habeas petition.
Pollard was charged and pleaded guilty to one count of delivering classified information to Israel, a staunch American ally. No one else convicted of the same crime has ever been sentenced to more than 14 years in jail. The government was eager not to try the case, which might have revealed how the United States had breached its treaty obligations to Israel as part of a tilt to Iraq in the '80s. In return for Pollard's guilty plea, the government undertook not to seek the maximum sentence, to limit its presentation at sentencing to the facts and circumstances of the crime itself, and to inform the court of Pollard's substantial cooperation.
The government breached each of its undertakings. The day before sentencing, Defense Secretary Weinberger submitted a memorandum in which he asserted that Pollard had done more damage to the United States than any other convicted spy in "the year of the spy."
"The year of the spy" was a thinly-veiled reference to three spies convicted of passing vital information to the Soviets. In one of those cases, the information was described by the government as having "war-winning implications," and in another as endangering the lives of "countless military personnel."
Each of the Soviet spies was convicted of treason - a crime with which Pollard was never charged - and each received a life sentence.
The Weinberger memorandum was thus an all but explicit demand for a life sentence for Pollard. Remarkably, Hibey did not object to Weinberger's submission as a blatant breach of plea bargain. That failure to object was heavily relied upon by the two judges of the D.C. Circuit Court of Appeals, who found that Pollard's sentence was not a "complete miscarriage of justice." Hibey did not seek an adjournment, which the court would have had to grant, in order to better respond to Weinberger's last-minute and highly inflammatory memorandum. Nor did he demand an evidentiary hearing on Weinberger's conclusory statements, even though his client was entitled to such a hearing.
The almost explicit government demand for a life sentence was not the government's only breach of its plea bargain. Far from confining itself to the facts and circumstances of Pollard's crime, the government sentencing memorandum characterized Pollard as a "recidivist," "contemptuous of this Court's authority," "unworthy of trust," "arrogant and deceitful." Those characterizations had nothing to do with Pollard's crimes - the subject to which the government had pledged to limit its sentencing presentation - but they had a major impact on his sentence. The government used them to show that if released, Pollard constituted "a continuing risk of disclosure."
The government's principal support for those accusations was two interviews Pollard had given journalist Wolf Blitzer while in prison. Pollard's plea agreement with the government provided that any interviews had to be authorized by the Director of Naval Intelligence. The court had also entered a separate protective order prohibiting Pollard from disclosing any classified information. Prior to the Blitzer interviews, prison officials asked Pollard to sign an authorization form for the interview. Blitzer too needed explicit authorization to record the interview and bring a camera into the prison. On the basis of forms provided him by the government itself, Pollard assumed that all the necessary clearances had been received. Yet when the government attacked Pollard in its sentencing memorandum on the basis of the Blitzer interviews, Hibey did not object that the submission was beyond the scope of the plea bargain. More importantly, he completely failed to point out that Pollard had received government authorization, and had every reason to believe that the authorization had gone through the proper channels. Nor did Hibey demand an evidentiary hearing to determine who in Washington had in fact authorized the interviews, and whether the government attorneys had known of the interviews in advance and allowed them to proceed.
He further allowed the government to mislead the trial judge into believing that his protective order had been violated, without demanding a hearing on the government's contention that classified information had been revealed. But worst of all, Hibey joined in the attacks on his client. In blatant breach of the attorney-client privilege, he told that court that he had instructed Pollard not to speak to the press, and that he had been very upset when he learned of the Blitzer interviews.
He thus reinforced the image of Pollard as an "incurable renegade," who if released would continue to do as he pleased.
The manner in which Jonathan Pollard was sentenced to life in prison is an enduring stain on the American justice system. All who treasure that system owe a debt of gratitude to Elliot Lauer and Jacques Semmelman, two prominent New York attorneys who have taken on Pollard's case on a pro bono basis, in an effort to remove that stain.