Not Just "Legal Technicalities"
Eliot Lauer and Jacques Semmelman
Special to IMRA - July 8, 2002
In a recent editorial, The Jewish Week (NY) called for freedom for our client Jonathan Pollard, invoking the phrase "legal technicalities." While we welcome any call for freedom for Pollard, now serving his seventeenth year in prison, we are troubled by the cavalier use of the expression "legal technicalities."
In May 2000, we undertook to represent Jonathan Pollard on a pro bono basis. At the time, we knew little about his case. We assumed, as most people probably do, that Pollard's life sentence, while extremely harsh, was the result of a fair legal process.
What we found shocked us. Pollard had been the victim of egregiously poor legal representation, as a result of which the Government had trampled on Pollard's legal rights without challenge. The life sentence was the direct result of serious deprivations of Pollard's constitutional rights.
For example, to induce Pollard to give up his right to a trial, the Government agreed, in a binding, written plea agreement, not to ask the judge to impose life in prison. At sentencing, the Government did so anyway, by reminding the judge of the life sentences that had recently been meted out to Soviet spies John Walker, Jerry Whitworth, and Ronald Pelton, and then claiming, in a declaration by Secretary of Defense Caspar Weinberger, who offered no substantiation for his charge, that Pollard had caused even greater harm to national security and should be sentenced accordingly.
Another example. While awaiting sentencing, Pollard sought and obtained the Government's permission to give two interviews in prison to journalist Wolf Blitzer. The plea agreement required such permission. At sentencing, the Government argued that Pollard could not even be trusted to honor his plea agreement, let alone to keep national security secrets confidential, should he ever be released. To that end, the Government told the judge that the Blitzer interviews had been unauthorized - as if Blitzer had somehow snuck into the heavily-guarded federal prison without the Government's permission. Instead of telling the judge the facts, Pollard's lawyer told the judge that, indeed, the interviews had been unauthorized. Pollard's lawyer even volunteered, in violation of the attorney-client privilege, that he had advised Pollard not to give the interviews.
- did not try to enforce the plea agreement;
- did not object to the Government's transparent demand for a life sentence, which violated that agreement;
- did not demand that the Government prove at an evidentiary hearing that Pollard had in fact caused more harm than the Soviet spies had caused;
- did not introduce readily-available evidence that showed that Weinberger's charge was untrue.
To top it all off, Pollard's lawyer did not even file a one-page Notice of Appeal from the life sentence, thereby precluding any chance that a higher court could directly review the sentence and the circumstances under which it was imposed.
There were other serious deficiencies in Pollard's legal representation, too numerous to recount here, but documented in the voluminous papers we have filed in the federal court in Washington, D.C.
These are not mere "legal technicalities." These are serious violations of fundamental rights. It is because of these violations - Government falsehoods and breaches of the plea agreement - that Pollard was sentenced to life in prison. Judge Stephen Williams has written that Pollard's case constitutes a "fundamental miscarriage of justice." Not "legal technicalities."
And for those who are wondering why the sentencing judge allowed these things to happen, the answer is that in our legal system it is the duty of the defense attorney, not the judge, to represent the accused.
Appalled by what we uncovered, in September 2000 we filed a motion in the federal court to vacate the sentence. A group of distinguished law professors filed an amicus brief in support of our position. Since then we have been battling the Government in court to vacate Pollard's sentence. Significantly, in nearly two years of litigation, the Government has not disputed any of our contentions. The Government argues only that Pollard should have realized long ago that he had viable grounds for challenging his sentence, but waited too long to raise them. As a result, says the Government, Pollard should remain in prison for the rest of his life - only because he didn't move quickly enough.
It is difficult to fathom how our Government can say that Pollard must spend the rest of his life in prison merely because, by the Government's reckoning, Pollard's challenge is untimely. Any person of good conscience, Jewish or not, should be outraged. No one should be in prison under these deplorable circumstances.
During the past two years, we have sat down with various Jewish leaders and have told them these facts. To our disappointment, few have reacted with outrage, or anything close to it. We have asked them to publicize the facts, to speak out in favor of justice, and to make their views known to elected officials. Few have done so.
The Jewish leadership should exert moral pressure on the Government to do the right thing, and to respond to Pollard's claim on the merits instead of hiding behind the passage of time. It is time now to end the injustice.
Eliot Lauer and Jacques Semmelman are partners in Curtis, Mallet-Prevost, Colt & Mosle LLP., of Park Avenue, New York.