Editorial: An Unhappy Anniversary
Hamodia - November 24, 2004
This past Sunday, November 21, marked the 19th anniversary of the date on which Jonathan Pollard (Yehonatan ben Malka) began serving his life sentence. We have written before about the terrible injustice of the Pollard case; we wish we didn't have to do so now; and we pray we won't have to do so ever again. As long as Pollard remains in prison, though, it is incumbent upon us to remind ourselves of this Jewish man's plight, and to rededicate ourselves to the cause of his release.
The severity of Pollard's sentence defies understanding. True, he used his position as a U.S. Navy intelligence specialist to deliver classified defense information to a foreign government, for which he surely deserved punishment. However, the foreign government in question was Israel, a staunch ally of the United States. To the best of our knowledge, no other spy in American history has ever been sentenced to life in prison for passing classified information to a strategic ally.
Furthermore, the harshest punishments for spying have typically been imposed for transmission of classified defense information when America was at war. Pollard's espionage activities took place during a time of peace.
Perhaps most troubling of all, Pollard received his life sentence after entering into a plea bargain agreement in which the government promised not to seek a life sentence. When a criminal defendant relinquishes his right to trial, pleads guilty without making the prosecution prove its case, and then cooperates with government investigators, as Pollard did, he has every right to expect some leniency in sentencing. But the government failed to live up to its part of the deal - and Pollard received the harshest sentence imaginable. [J4JP Note: the median sentence for the offense Jonathan Pollard committed is 2 to 4 years. Jonathan got life!]
All of these factors are well known, and as perplexing today as they were when the sentence was first handed down.
Less well known, perhaps, is another heart-wrenching reality about the Pollard case: the fact that Pollard almost certainly would not be sitting in jail today if only his attorney had simply appealed the sentence, as would routinely be done on behalf of any criminal defendant who is sentenced to spend the rest of his life in jail. The grounds for appeal - the government's failure to keep its part of the plea bargain agreement - were obvious and powerful. Yet Pollard's lawyer chose, for reasons that continue to baffle legal observers, not to appeal the sentence.
Instead, several years later, after the time to appeal had already passed, a new attorney filed a motion to withdraw Pollard's guilty plea in light of the government's violation of the plea agreement. The motion was denied - first in the lower federal court, and then in the U.S. Court of Appeals.
While the distinction between an appeal and a motion to withdraw a guilty plea may seem like esoteric legal mumbo-jumbo, it made all the difference in the world in Pollard's case. The Court of Appeals ruling makes this perfectly clear.
Three judges heard the appeal. One voted that Pollard should be allowed to withdraw his guilty plea because "the government complied in spirit with none of its promises." The two other judges conceded that the government's actions were "troublesome" in a variety of ways; indeed, they suggested, had Pollard's lawyers immediately appealed the sentence, he would have prevailed. However, since the lawyers failed to appeal, instead allowing the time to appeal to lapse and only later filing a motion to withdraw Pollard's plea, they were "obliged to show a great deal more than would be sufficient on a direct appeal from his sentence." In the view of these two judges, the attorneys failed to meet that higher standard, and the motion was denied.
Pollard's latest lawyers - Eliot Lauer and Jacques Semmelman of the law firm Curtis, Mallet-Prevost, Colt & Mosle, two outstanding Orthodox Jewish attorneys who are representing Pollard pro bono and deserve a tremendous Yasher Koach for their efforts - are now seeking to have the life sentence vacated on the grounds that the original lawyer's failure to appeal and other serious mistakes denied Pollard his constitutional right to effective assistance of counsel. The government has countered that it is too late to raise this issue at this time.
The courts will ultimately decide whether to entertain Pollard's latest motion. But however the courts decide, it is fair to ask, as a matter of simple justice, whether Pollard should be made to spend the rest of his life in prison as a result of his lawyer's blunders.
That is a question that should be posed directly to President Bush. He has the power, independent of the courts, to grant executive clemency to a man who has spent far too many years in federal prison, a victim not only of the American government's failure to carry out its part of the plea bargain agreement, but also of his own attorney's failure to carry out his lawyerly duties. Mr. President, the time has come.