Pollard's Catch-22

While this travesty of justice may not have originated on President Barack Obama's watch, it has been fully revealed under his tenure.

Esther Pollard - The Jerusalem Post - December 27, 2012

The striking new CIA disclosures that my husband, Jonathan Pollard, did not transmit information about the United States to Israel reaffirms that there is no justification for his continued incarceration after 28 years in prison. Unfortunately, the new CIA disclosures do not provide a legal basis for reopening his court case.

Contrary to popular misconception, the US does not permit prisoners an endless number of appeals. The legal remedies available to a prisoner are severely restricted. Jonathan has used up all of his.

Some background to understanding Jonathan's Catch-22 dilemma: First of all, as unbelievable as it seems, Jonathan has never been allowed a direct appeal of his life sentence in a court of law. His own attorney deprived him of that right.

Jonathan pleaded guilty, cooperated fully (which the recent CIA disclosure acknowledges) and had a plea agreement in which the US government agreed not to ask for a life sentence. Nevertheless, in breach of the agreement, the government asked for a life sentence. Jonathan's then-lawyer did nothing to protest, allowing the judge to grant the government's request and Jonathan was sentenced to life in prison.

Jonathan's lawyer then compounded the disaster by failing to file a one-page notice of appeal within ten days. At that time, Jonathan was being held incommunicado and he had no way of knowing that his attorney was discarding his rights. Consequently, the attorney's failure to file deprived my husband forever of the right to any direct appellate review of his life sentence.

The only challenge to the sentence that remained available under American law was a collateral attack called habeas corpus, which imposes a much higher burden of proof on the prisoner than would a direct appeal. In 1990, Jonathan obtained a different lawyer who filed a habeas corpus petition with the court.

In 1992, the Court of Appeals, in a two-to-one decision, denied Jonathan's habeas corpus petition. Two justices ruled that he had not met the higher burden of proof required as a result of his original lawyer's foul-up. This amounts to being told, "Tough luck, Buddy. Stay in jail for the rest of your life because your original lawyer did not protect your right to appeal!" One conscientious judge disagreed with the majority, writing that Jonathan's life sentence represented a "fundamental miscarriage of justice" requiring relief. This dissenting judge said that the government's breach of the plea agreement was sufficient reason for Jonathan's sentence to be vacated, even under the higher standard that applies to habeas corpus review.

Elliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP became Jonathan Pollard's pro bono attorneys in May 2000. An executive summary on the Justice for Jonathan Pollard website provides an overview of the legal initiatives undertaken by Lauer and Semmelman, between 2000 and 2006.

Despite the intensive efforts of Jonathan's dynamic new legal team, the American justice system denied their new habeas corpus petition which sought to bring the case back to court on the ground of ineffective assistance by the original lawyer. The courts denied the petition on the basis of the statute of limitations, which had long since elapsed as Jonathan sat in jail, unaware of these legal niceties.

When all legal remedies in the Court of Appeals had been exhausted, the attorneys petitioned the US Supreme Court, which also refused to hear the case. To this very day, the merits of Jonathan's case have never been heard in a US court of law. Unfortunately, nothing in the new CIA revelations makes any difference to the Catch-22 rule that Jonathan has used up all of his legal appeals.

Even if Caspar Weinberger himself were to return from the grave today, offering to testify that the US government deliberately hijacked the legal process which resulted in my husband's life sentence, Jonathan would not be permitted to bring the case back to court for Weinberger to testify. No more legal appeals means exactly that.

Neither is parole a viable option. As Jonathan's attorneys have repeatedly explained: "Applying for parole is not an option for Mr. Pollard, because of a severe impediment which has been unilaterally imposed by the Department of Justice (DOJ). The DOJ has refused to allow Mr. Pollard's current attorneys, Eliot Lauer and Jacques Semmelman (both of whom have the appropriate Top Secret/SCI-eligible security clearances), from seeing the documents that were submitted to the sentencing judge prior to Mr. Pollard's sentencing in 1987. Although Mr. Pollard's lawyers have a clear 'need to know,' the DOJ has refused to allow them to see their client's entire court file, which is partly under seal. Without access to that file, persons opposed to parole know that they have free reign to say absolutely anything about Mr. Pollard without any risk that they will be contradicted by the documents."

Nor is there an "automatic release" date for Jonathan on November 21, 2015.

This too is a popular misconception. The 2015 date, which appears on the Bureau of Prisons' website, marks the 30th anniversary of Jonathan's arrest.

It is not a release date, but a time at which Jonathan can request parole.

The US government will still be able to hide behind a veil of secrecy and vigorously oppose parole at that time. The only option remaining is presidential commutation to time served.

The newly declassified 1987 CIA damage assessment puts the lie to American allegations that have been used for over a quarter of a century to justify Jonathan's continued incarceration. A second government damage assessment by the Justice Department (the1987 Victim Impact Statement), now public record, forever lays to rest the falsehood that Jonathan damaged US national security. By any standard of fairness, the only conclusion that can be drawn from the combined weight of both government damage assessments is that Jonathan should not have to remain in prison a second longer.

While this travesty of justice may not have originated on President Barack Obama's watch, it has been fully revealed under his tenure. It is precisely for cases like this, where the US justice system is unwilling or unable to correct itself that the American Constitution grants the president virtually unlimited powers of clemency. Justice requires that Obama use his powers of executive clemency to release Jonathan Pollard now.

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