Pollard's Appeal Claims U.S. Reneged on a Deal
The Forward (NY) - August 9, 1991
NEW YORK - When Jonathan pollard's lawyers argue his appeal for a new sentencing, they will assert that his case is the test of the American government's adherence to principle.
That is the strategy in a brief by a new team of defense lawyers for Pollard, who is serving a life sentence in solitary confinement in Marion, Illinois, for spying for Israel. The brief was filed in preparation for a hearing set for September 10 before he U.S. Court of Appeals in Washington.
The appeal marks a shift in strategy for the Pollard appeal. It is being argued in a low-key, non-political tone by one of the most highly regarded lawyers in Washington, Theodore B. Olson, of the firm of Gibson, Dunn & Crutcher. The latest step in the appeal process follows the publication of a letter Pollard sent his parents from prison, expressing remorse for his actions. The appeal brief says that Pollard "may have committed a serious crime" but asserts "that does not excuse the excesses that have pervaded his prosecution."
Breaching the Bargain
"This case calls into question the conduct of the government, not the defendant," the appeal brief states. "It requires the Court to consider the limits on Government when its competitive zeal and retributive anger have been aroused by an unpopular defendant."
The gist of the appeal argument is that the government decided to avoid "what would have been an awkward, potentially embarrassing and inconvenient trial" and to secure Pollard's cooperation in the investigation. It says the government "purchased" Pollard's plea of guilty to the espionage charges in exchange for more lenient treatment of the spy's wife, Anne Pollard, but the "government did not keep its part of the bargain" because it could not restrain its desire to ensure that Pollard would never again see the light of day.
In addition to promising lenience for Pollard's wife, the government promised to represent that Pollard's cooperation had been of "considerable value" to its investigation. "Instead," the appeal brief asserts, "it ridiculed the value of his cooperation and heaped abuse on his motives for offering it." In exchange for Pollard's guilty plea the government also agreed not to seek a life sentence. But its actions during the sentencing process' were intended to have precisely the opposite effect.."
'Abuse of power'
The brief is particularly tough on the statement of Secretary of Defense Weinberger, who, it says, "demanded a sentence commensurate with 'the magnitude of the treason committed.'" The italics are in the brief, emphasizing the point that treason is a crime punishable by death and is not the offense Pollard committed. Treason, the brief points out at one point, is "a death penalty crime that is so serious that it is defined in the Constitution, a crime that the Government's lawyers knew that Jonathan Pollard did not commit."
The brief says, "the District Court got the message and imposed the most stringent sentence" that Pollard's plea allowed. The brief argues that Mr. Weinberger's use of the word "treason" and a reference by the prosecutor to "traitorous conduct" were "undoubtedly coordinated and deliberate, designed to convey to the District Court the government's view that Mr. Pollard had committed a much more serious crime than the guilty plea acknowledged." The brief calls the tactic "an outrageous abuse of power."
The brief also asserts that at one point the government denied Pollard's lawyers access to the Government's classified sentencing submissions.
In conclusion the appeal brief states: "Whether or not the Government's actions toward Jonathan Pollard would have been tolerable as isolated incidents, the totality of its conduct describes a level of broken commitments and improper actions that is not acceptable. The Government wanted Mr. Pollard's cooperation and to avoid a public trial that may have had uncontrollable repercussions. At the same time, his prosecutors and his former employers wanted desperately to strike out at Mr. Pollard and send a clear message to others. But the Government could not achieve its conflicting objects without breaking its word to Mr. Pollard. He is therefore entitled to withdraw his plea or receive a new sentencing."