New Pollard Petition Filed In U.S. Supreme Court

Justice4JP Release - February 8, 2006

Jonathan Pollard's attorneys filed

a Petition for Certiorari

in US Supreme Court today. Media Release and explanation of the petition follows below.



101 Park Avenue
New York, NY 10178

For more information, contact:
Eliot Lauer, 212-696-6000, [email protected] Jacques Semmelman, 212-696-6000, [email protected]

February 8, 2006

Statement of Eliot Lauer and Jacques Semmelman
Curtis, Mallet-Prevost, Colt & Mosle LLP
Attorneys for Jonathan Pollard

Petition for Certiorari Filed With U.S. Supreme Court February 8, 2006

We have today filed a petition, on behalf of our pro bono client Jonathan Pollard, for a writ of certiorari with the United States Supreme Court. We have asked the Supreme Court to review the two-to-one split decision rendered by the United States Court of Appeals for the District of Columbia Circuit which refused to allow us, Mr. Pollard's security-cleared attorneys, access to the classified portions of the district court's sentencing docket.

Mr. Pollard is in his twenty-first year of a sentence of life in prison for delivering classified information to the State of Israel. Mr. Pollard was arrested November 21, 1985, and has been incarcerated since. On May 23, 1986, Mr. Pollard agreed to plead guilty, in exchange for which the Government agreed, as part of a written plea agreement, not to ask the Court to impose a life sentence, the maximum possible under the statute. The Government breached its agreement when, among other things, the day before sentencing it submitted a Declaration by then-Secretary of Defense Caspar Weinberger in which Weinberger stridently and unambiguously asked the Court to sentence Mr. Pollard to life in prison (while avoiding use of the "life" word). On March 4, 1987, Mr. Pollard was sentenced to life in prison, as Weinberger had demanded, in violation of the binding plea agreement.

In 1992, Judge Stephen Williams of the Court of Appeals characterized the Government's conduct as a flagrant breach of its agreement with Mr. Pollard not to seek a life sentence, and called Mr. Pollard's life sentence "a fundamental miscarriage of justice requiring relief[.]" Unfortunately, the Court of Appeals later ruled that, because of a statute of limitations bar, Mr. Pollard was too late in seeking judicial relief from the miscarriage of justice. In other words, because Mr. Pollard had missed a deadline, he was doomed to remain in prison for the rest of his life, irrespective of whether he was the victim of a judicially-acknowledged miscarriage of justice.

We intend to present the President with a petition for executive clemency so that the miscarriage of justice can be brought to an end. In order for us to prepare and submit an effective petition for executive clemency, it is essential that we be afforded access to the materials submitted to the court (by both sides) shortly before Mr. Pollard was sentenced to life in prison in 1987, so that we can study and evaluate the full court record.

Approximately 40 pages of pre-sentencing docket materials were deemed classified and, pursuant to a protective order, were placed under seal by the court in 1987. Although the protective order contemplated future access by Mr. Pollard's successor counsel, no attorney or representative of Mr. Pollard has been allowed to see these materials since then. Even though we have the appropriate security clearance and a demonstrated "need to know," the U.S. Department of Justice (DOJ) refuses to allow us to see the documents. By contrast, the DOJ has repeatedly allowed its own personnel access to these very documents in order to bolster the DOJ's opposition to executive clemency.

While disputing our right to have access to the sealed docket materials, the Government never challenged the court's jurisdiction to allow such access, and, to the contrary, expressly conceded jurisdiction in its brief to the Court of Appeals. Nevertheless, at oral argument in the Court of Appeals on March 15, 2005, one judge suddenly, on his own, asserted that there was a serious and obvious jurisdictional issue. If so, it had entirely escaped the notice of two Chief Judges of the United States District Court for the District of Columbia (both of whom had addressed the access issue without expressing any jurisdictional concern), as well as a battery of senior Department of Justice attorneys, seven of whom had signed the Government's brief that readily conceded jurisdiction. Nevertheless, in a written opinion issued July 22, 2005, two members of the three-judge panel decided that the court lacks jurisdiction to allow Mr. Pollard's counsel access to the court docket materials. The stated rationale was that the doctrine of separation of powers somehow deprives a federal court of jurisdiction and control over its own docket materials if counsel seeks access to the materials in contemplation of an application for executive clemency. No court has ever held that, or anything close to that.

In a ten-page dissent, Judge Judith Rogers held that jurisdiction plainly exists, and that access to the court docket was expressly provided for in the district court's protective order pursuant to which the documents had been placed under seal.

As we set forth in our petition for certiorari:

The Court of Appeals' unprecedented application of the doctrine of separation of powers led it to conclude that, because the objective in seeking access is in connection with a clemency application, the doctrine deprived the district court of jurisdiction to decide who may have access to its very own Docket Materials. This approach to the doctrine of separation of powers is incompatible with longstanding principles established by this Court, and conflicts with the approach followed in the Fourth, Fifth, Sixth and Ninth Circuits.

This case does not involve any judicial intrusion whatsoever on the constitutional authority of the Executive Branch. Indeed, it is difficult to imagine a scenario that involves any lesser intrusion by the Judiciary into that authority. Yet, the majority held that, simply because clemency is petitioner's ultimate objective, judicial adjudication of the Access Motion under the Court's Protective Order would somehow constitute a violation of the separation of powers.

The majority did not explain, or attempt to explain, how allowing counsel access to materials in a court's docket would interfere with or impede in any way the President's power to grant or deny clemency, or how allowing such access would violate the principle that courts may not review clemency decisions.

The majority's ruling is an unprecedented and unsupportable distortion of the doctrine of separation of powers. We look to the Supreme Court to review the split decision of the Court of Appeals, and upon review, to reverse.

See Also: