Free At Last? An Exclusive Interview with Pollard's Attorneys

Pollard's ordeal still isn't over according to his attorneys Eliot Lauer and Jacques Semmelman

Avraham Weissman - Hamodia [NY] Special Feature, Print Edition - August 6, 2015

For fifteen years, Jacques Semmelman and Eliot Lauer, two prominent attorneys with the firm of Curtis, Mallet-Prevost, Colt & Mosle LLP, have given their all - pro-bono - on behalf on Jonathan Pollard. In this exclusive interview they describe the events leading up to the announcement of the impending parole, as well as their thoughts about the case.

As Jonathan Pollard's pro-bono attorneys for so many years, you have put so much time and heart into this case over so long. Tell us about your feelings when you received notice the Parole Commission have announced that they will parole him in November.

Jubilant and relieved that our client's suffering is about to come to an end, and that he will have an opportunity to live out his remaining years with his wife as a member of society and of the Jewish community.

Did you expect the news to come on Tuesday? How were you notified and by whom?

We expected that a decision would come from the Parole Commission about one month from the July 7, 2015 parole hearing that was conducted in the Federal prison in Butner, North Carolina. The actual notice from the Parole Commission came indirectly in the form of an email communication from Mr. Pollard's case manager at the Butner prison. She emailed at 11:59 a.m., Tuesday, July 28 to inform us that Jonathan had been granted parole.

When did Jonathan find out? Who told him? What was his reaction?

Jonathan found out shortly before the case manager notified us. Jonathan was thrilled. He made a point of stating the obvious, that this was very emotional for him. He expressed tremendous thanks to us for all the work that we have done over the years and in bringing him to this point. He expressed relief and thanks that his dear wife, Esther, would have this tremendous burden lifted from her shoulders. He was so happy for her because she had been leading the campaign and living with this case in all its challenges and disappointments for so many years. He looked forward to getting out. Looked forward to doing the productive and creative things that we have spoken to him about over the years. And, he looked forward to sharing his life with Esther for the years to come.

In the weeks leading up to the hearing - prior to the July 1 notification by the DOJ that they would not object to his release - how optimistic were you that he would be paroled?

We felt strongly that Jonathan certainly deserved to be released on parole, but we were all too familiar with the very long history of this case, during which Jonathan was on many occasions denied fair and just treatment.

Despite the fact that we had experienced many disappointments, given the statutory standards and the strong presentation that we had made to the Parole Commission and the Department of Justice, we felt there was room for guarded optimism. It was difficult to see how the Parole Commission or the Department of Justice could credibly claim that the standard for opposing release at the 30-year mark had been met, but at the same time, our experience in this case counseled caution.

Were you still concerned after July 1 that the Parole Commission would deny Parole?

Parole is only granted by the Parole Commission, an agency that makes its decision independently of any other agency. While the July 1 decision by the Department of Justice not to oppose parole was a huge victory for us, we were well aware that the ultimate decision still had to be made by the Parole Commission and that until it was made and announced, we were not home free.

Until the Parole Commission entered its Notice of Action, there was always a possibility the Parole Commission could deny parole. The Department of Justice's concession that it would not assert that the standard for denying parole had been met made it that much harder for the Parole Commission to justify denying parole. And the July 7 parole hearing went very well, as the Department of Justice kept its word and did not argue against parole. As a result, we were guardedly optimistic that the Parole Commission would enter the Notice of Action in Jonathan's favor.

Can you tell us any details about the conditions of parole? Will he be allowed to travel to Israel?

The Parole Commission has stated that there will be conditions on Jonathan's movement, along with other conditions. There will be conditions that deal with travel, among other aspects of the supervised program. As of now, Jonathan will have to remain in the United States, at least for the time being. Between now and November 20, we expect to work with the Parole Commission and the Probation Department with regard to conditions and restrictions and we hope that in time Jonathan will be permitted to move freely, including travel to Israel.

How did you get involved in this case in the first place?

A client of Eliot's who is a businessman and a philanthropist was approached at the beginning of 2000 and asked if he would put together a legal defense fund for Jonathan Pollard, who was languishing in jail and had not been represented by U.S. counsel for a number of years. The client told Eliot that he had been asked to fund the defense. He was prepared to financially underwrite a legal defense fund if I would take on the engagement, but with one condition. Before underwriting what could be a very significant defense cost, the client asked if I would look at the case to determine whether he would be wasting his money or whether there was an opportunity to help Jonathan through the legal process. I said I would be happy to look at the court file. I was, of course, generally aware of Jonathan and of the fact that he had been sentenced to life in prison, but not familiar with the details of the case. I asked my partner Jacques, a former federal prosecutor who is extremely knowledgeable in federal criminal law, if he would join me in this endeavor. Jacques readily agreed and we pulled the complete file of United States v. Pollard from the District of Columbia court docket.

Our review revealed the incredible injustice that had been done to Jonathan in the sentencing process. Jonathan had pleaded guilty to one count of conspiracy to deliver classified information to the State of Israel, without intent to harm the United States. In exchange, the Department of Justice agreed in a written plea agreement to various terms, most importantly that it would not ask the sentencing judge to impose the maximum sentence of life in prison. Nevertheless, the Department of Justice breached the plea agreement in multiple, material ways. To make things even worse, Jonathan's attorney at the time was extremely ineffective and did not enforce Jonathan's rights under the plea agreement, which is a contract that is enforceable in court. Jonathan's attorney, an Arab American, did not enforce it.

There were breaches by the U.S. government of the three principal aspects of the plea agreement: (1) not to seek a life sentence; (2) to affirmatively bring Jonathan's cooperation to the attention of the Court; and (3) to restrict their comments at sentencing to the facts and circumstances of Jonathan's defense. Jonathan's attorney did not take the measures afforded under the law to enforce the plea agreement, the net result of which was the life sentence.

It was apparent to us that Jonathan had been deprived of effective assistance of counsel, in violation of his constitutional rights. The capstone of the ineffectiveness was counsel's astonishing failure to file a one-page Notice of Appeal after the judge sentenced Jonathan to life, following the government's flagrant breach of its agreement not to seek such a sentence. While these facts cried out for judicial relief in the form of vacating the life sentence and having Jonathan resentenced before a different judge in compliance with the plea agreement, the problem we faced was the statute of limitations. Because we were being asked to come into the case so many years down the road, there were significant statute of limitations and other procedural hurdles to be dealt with in order to even reach the merits of the claims of ineffective assistance of counsel. It is very difficult to overcome a statute of limitations, especially in a case brought on behalf of a prisoner.

After completing our analysis, we reported back to the client that we thought a legal campaign could provide great benefit to Jonathan in two ways. One, while a long shot, there was a possibility of overcoming the various procedural hurdles and obtaining a new sentence. Beyond that, even if we could not overcome the procedural hurdles, a new court filing would create renewed focus on the gross injustice that occurred in the life sentence and the fact that Jonathan had already served 15 years of the life sentence; and it was time for a fresh look at his case, including serious consideration for presidential clemency.

As a result, we told the client that we thought a legal challenge based on ineffective assistance of counsel, coupled with a renewed campaign for clemency from President Clinton, who was completing his second term in office, was something that we would undertake. Because we felt so strongly about the injustice, we told the client that, through our law firm, Curtis Mallet-Prevost, Colt & Mosle LLP, we would take on the representation pro bono, and that there was no need for a legal defense fund.

We flew right down to Butner, North Carolina in May of 2000, met Jonathan, were formally engaged, and filed our motion for a new sentence in federal court in the District of Columbia.

What has motivated you to give so much of yourselves for this particular case?

The sheer injustice of what happened to Jonathan when he was sentenced in 1987, and was so poorly represented by his attorney at the time, as explained above. This was not only a case of American injustice, but also a case of pidyon shevuyim, and we felt we had to try to help.

For a number of years, Jonathan had effectively been abandoned without U.S. counsel, and with little tangible support in the Jewish community. By 2000 Jonathan was all but a forgotten man, and, to our surprise at the time, had no U.S. legal representation whatsoever. We were willing to provide that representation, and also work with Jonathan's wife, Esther, to give additional impetus to the campaign for his release.

How does this case reflect on the American system of justice in general?

The disappointment is not with the system, but with certain individuals who did not do what they were required to do. First and foremost, Jonathan's sentencing counsel dropped the ball, did not pursue Jonathan's rights at the sentencing, and abandoned Jonathan by even failing to file a one-page Notice of Appeal.

Looking back, what lessons can the Jewish community learn from this saga? What could or should have been done differently by the community at large, or organizations or individuals in particular?

The Jewish community should protest injustice when it occurs to a fellow Jew, even one who has acted wrongly. We should not turn away from helping someone who has been punished far beyond what his offense warranted, and we should not be embarrassed to stand up for justice. Unfortunately, as a community we tend not to be as forceful and as vocal as other communities in this regard.

Over the years, we met with many elected officials. A recurring theme we heard was that very few leaders of the Jewish community had mentioned Jonathan's case to them as an issue of concern. A notable exception was the National Council of Young Israel, which for many years has been in the forefront of advocating on Jonathan's behalf. But for many years, they were a lone voice in the wilderness.

In 1992, before we became involved in the case, an attempt was made by another lawyer to vacate Jonathan's sentence. Two of three judges on the District of Columbia Court of Appeals, perhaps because they were Jewish and felt the need to distance themselves from Jonathan, looked the other way on the flagrant breach of the plea agreement. Judge Stephen Williams, the non-Jewish judge, in his scathing dissent stated unequivocally that the sentence should be vacated because what had taken place at Jonathan's sentencing was a "fundamental miscarriage of justice." Unfortunately, Judge Williams was outvoted two-to-one. We have always had the inescapable sense that this case was decided along ethnic lines, but in a reverse manner.

While the Jewish community as a whole was, in our view, insufficiently vocal on behalf of Jonathan, we have been gratified by the grass-roots support for Jonathan's release. We have no doubt that many thousands of Jews throughout the world have been appalled at Jonathan's treatment. Particularly in the Orthodox Jewish community, over the 15 years that we represented Jonathan, at every gathering - wedding, bar mitzvah, bris, shul, meeting people at the Kotel - the first thing that friends, acquaintances, people who hardly knew us would ask was, how is Jonathan, is there anything I can do, can we visit Jonathan? The incredible sense of unity, loyalty and concern that was expressed by literally thousands of individuals directly to us over the years, was an amazing testament to the sense of oneness that we have, particularly in the Orthodox community. It certainly gave encouragement to us that so many people appreciated the work that we were doing, and truly felt for Jonathan.

When it came time for the parole application and we thought the parole process would benefit if we could show that Jonathan had both employment and a place to live, it took only a few phone calls to arrange for Jonathan to have a formal offer of employment with benefits from a significant Jewish-owned company, and to arrange a suitable apartment for Esther and Jonathan to live in at a rate that they could afford. The outpouring of support is both real and heartfelt.

Umi k'amcha Yisrael!!