Crime and Punishment - The Conclusion - Legal Text
January 20, 2000
Part Four: The final installment of a series of selected legal texts excerpted from the Pollard Memoranda in Aid of Sentencing.
Excerpted from: Criminal No. 86-0207 [Redacted]
Author: Richard Hibey Esq.
Jonathan J. Pollard Second Memorandum In Aid of Sentencing
Submitted February 27, 1987
[See Justice4JP remarks at the conclusion of this item.]
Crime and Punishment - Conclusion:
Since the codes of Hammurabi, the laws have evolved to a simple but profound proposition, viz. that punishment should fit the crime. Enlightened sentencing principles in today's jurisprudence look beyond the sensational aspects that often accompany the establishment of guilt in favor of measuring the severity of the offense. This is especially true where the defendant has pled guilty to the crime.
In this case, notwithstanding its sensational features, where a volume of information was transmitted improperly, it was done without intent to, and without the result of, damaging the nation's security. This case is lacking the essential ingredient that would make it a heinous crime: the beneficiary [Israel] was not, and is not, the enemy, but one of our closest friends. By this we do not argue that what Mr. Pollard did was right, or that it does not merit punishment. However, the punishment must be appropriate to the actual severity of his criminal conduct. Applying that measure, no harm has come to the country. Accordingly Mr. Pollard's sentence ought to reflect this indisputable fact.
Justice4JP Concluding Remarks:
As subsequent events unfolded, the Court paid no attention to the well-presented facts in the Pollard Memoranda in aid of sentencing. Basing his decision on the last-minute memorandum submitted to the court by then Secretary of Defense Caspar Weinberger, Judge Aubrey Robinson sentenced Jonathan Pollard to a life sentence - in complete violation of his plea agreement with the Government. To this day, Pollard has never been permitted to challenge the Weinberger memorandum in a court of law - a clear violation of his constitutional right to due process.
After Pollard was sentenced, his attorney Richard Hibey then essentially "threw" the case. He failed to file a time-bound document indicating an intent to file a direct appeal. This failure to protect his client's right to a future direct appeal meant that Jonathan Pollard would never be able to file a direct appeal of his grossly disproportionate sentence. It is simply not credible that an attorney as thoroughly professional as Richard Hibey could inadvertently make such a blatant "mistake".
Instead, Hibey filed a Rule 35 Motion for Reduction of Sentence. The motion, as Hibey surely knew, was doomed to failure from the start. It was the kind of document that is filed when there is a clear indication from the sentencing judge that such a motion would be considered - there was no such indication from Judge Robinson in this case.
When the motion failed, as it was expected to, Hibey made no attempt to appeal it, and thereby ended all of Jonathan Pollard's opportunities to appeal his sentence.
It is known that Hibey's fees were paid by the Israeli Government. But it is not clear whose orders he was following, or whose agenda he chose to serve, when he gave up on defending his client. Instead his post-sentencing actions stymied all future efforts to appeal what Hibey himself knew was a politically-motivated and grossly unfair sentence. Just read the documents he authored, it is all there. Time has yet to tell why he did it. And for whom.
Part I: Damage to the United States
Part II: Pollard Particulars Relevant to Sentencing
Part III: Extent and Value of Cooperation
Rule 35 Motion for Reduction of Sentence
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