Declaration of Jonathan Jay Pollard

Declaration of Jonathan Jay Pollard
In Support of Motion for Resentencing

See Also: Memorandum of Law in Support of Jonathan Jay Pollard's § 2255 Motion

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

Criminal No. 86-0207 (AER)
JONATHAN JAY POLLARD,
Defendant.

DECLARATION OF JONATHAN JAY POLLARD
IN SUPPORT OF MOTION FOR RESENTENCING

JONATHAN JAY POLLARD declares as follows under penalty of perjury:

  1. I am presently incarcerated in the Federal Correctional Center, Butner, North Carolina. My inmate number is 09185-016. I submit this Declaration in support of the motion for resentencing, filed pursuant to 28 U.S.C. § 2255 by my attorneys, Eliot Lauer and Jacques Semmelman of the law firm of Curtis, Mallet-Prevost, Colt & Mosle LLP.

  2. I have been in jail since November 21, 1985. I am serving a sentence of life in prison, imposed upon me March 4, 1987 by the United States District Court for the District of Columbia. My petition is based upon the complete and utter failure of my attorney, Richard Hibey, to protect my fundamental rights in the district court.

  3. I have only recently come to understand, largely through the efforts of my new counsel, Messrs. Lauer and Semmelman, that Mr. Hibey failed in numerous respects to represent me in accordance with basic standards of professional conduct. As a result, I now understand that my sentence of life in prison was imposed as a result of Mr. Hibey's inadequate and unprofessional handling of my sentencing. His failure to represent me properly deprived me of my constitutional right to effective assistance of counsel.

  4. Perhaps most significantly, Mr. Hibey never filed a Notice of Appeal from my sentence. Nor did he ever tell me that failure to file a Notice of Appeal within ten days of my sentencing would forever deprive me of the right to appeal my sentence. By those failures, he doomed me to life in prison without the opportunity for direct appellate review of my sentence or of the process that led to it.

  5. By this motion, I seek only that my sentence be vacated and that I be resentenced at a fair proceeding in which I am represented by competent counsel.

  6. I now understand that, in addition to his failure to appeal or to tell me of my need to file a timely Notice of Appeal, Mr. Hibey did not effectively represent me at sentencing in the following respects:

    • Mr. Hibey failed to object at sentencing that the government was, for all intents and purposes, asking the Court to impose a life sentence, in violation of my Plea Agreement.

    • Mr. Hibey failed to deal competently with unproven, highly damaging eleventh hour factual assertions made by the government in a Supplemental Declaration of Secretary of Defense Caspar Weinberger (the "Weinberger Supplemental Declaration") submitted the day before sentencing, in the following fundamental ways:

      1. He failed to object to the last minute timing of the Weinberger Supplemental Declaration, and failed to request an adjournment of sentencing;

      2. He failed to rebut, or even to attempt to rebut, the highly damaging factual assertions in the Weinberger Supplemental Declaration, such as the false allegation that I had caused more damage to national security than had any other recent spy;

      3. He failed to demand that the government either prove its allegations in the Weinberger Supplemental Declaration or withdraw them;

      4. He failed to inform me that I had the right to a hearing at which the government would have to prove the allegations in the Weinberger Supplemental Declaration and at which I could offer rebuttal evidence.

    • Mr. Hibey failed to deal competently with the government's accusation to the sentencing judge that my interviews with a journalist, Wolf Blitzer, were breaches of (i) the Plea Agreement and (ii) the Court's Protective Order, and that those purported breaches evidenced my dishonesty and continued defiance of government authority, in the following fundamental ways:

      1. Mr. Hibey failed to tell the sentencing judge that I had sought and obtained government authorization for the interviews, and he erroneously conceded that the interviews were unauthorized;

      2. Mr. Hibey failed to demand a hearing to establish that the government had authorized the interviews, or to tell me that I had the right to such a hearing;

      3. Mr. Hibey breached the attorney-client privilege by telling the sentencing judge that I had given the interviews against his advice, thus further inflaming the judge against me;

      4. Mr. Hibey failed to demand that the government prove its false allegation that I had disclosed classified information during the second interview and had thereby breached the Court's Protective Order, or to tell me that I had the right to a hearing on that issue;

    • Mr. Hibey failed to deal competently with the government's allocution that went far beyond the "facts and circumstances of the offenses," to which the government had agreed in the Plea Agreement to limit its allocution. The government resorted to ad hominem attacks on my character, calling me a "recidivist" who was "contemptuous of this Court's authority," "unworthy of trust," "traitorous," "arrogant," "deceitful," "without remorse," and "addicted to the high lifestyle." Even though these highly damaging and untrue attacks breached the Plea Agreement because they were not the "facts and circumstances of the offenses," Mr. Hibey never objected.

  7. Moreover, even though Mr. Hibey had asserted in the district court that the government had breached my Plea Agreement by failing to properly bring the extent and value of my cooperation to the sentencing judge's attention in good faith, thereby preserving that issue for appeal, Mr. Hibey did not appeal my sentence. Putting aside the numerous issues Mr. Hibey failed to raise in the district court, he did not even bother to file an appeal based upon the issue he did raise.

    Background Facts

  8. I was arrested November 21, 1985, and charged in a criminal complaint with violating 18 U.S.C. §§ 794(a) and 793(e). I have been incarcerated continuously since that day—nearly fifteen years. A day or so after my arrest, I learned that my family had arranged for an attorney named Richard Hibey to represent me. I met him at around that time, when he came to see me in the D.C. jail. I later learned that most of his fees were paid by the Government of Israel.

  9. On May 23, 1986, following an exploratory period of several months during which I had begun cooperating with the government, I signed a plea agreement (the "Plea Agreement"). As part of the Plea Agreement, I agreed to continue my cooperation and to plead guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. § 794(c).

  10. That statute carried a maximum penalty of life in prison. However, the Plea Agreement provided that, while the government could seek a "substantial period of incarceration,"it could not ask the sentencing judge to impose a sentence of life in prison. (Plea Agreement 4(b)).

  11. The Plea Agreement also provided that I would cooperate fully with the government. In turn, the Plea Agreement provided:

    When he appears before the Court for sentencing for the offense to which he has agreed to plead guilty, the Government will bring to the Court's attention the nature, extent and value of his cooperation and testimony. . . In general, . . . the Government has agreed to represent that the information Mr. Pollard has provided is of considerable value to the Government's damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws.

    (Plea Agreement 4(a))

  12. Finally, the Plea Agreement provided that "The Government retains full right of allocution at all times concerning the facts and circumstances of the offenses committed by Mr. Pollard . . ." (Plea Agreement 4(b)) (emphasis added). This differed from my then-wife Anne Henderson Pollard's plea agreement, which provided, in the parallel section, that "The Government retains full right of allocution at all times, including the right to detail the facts and circumstances of the offenses committed by Mrs. Pollard . . . ." (Anne H. Pollard Plea Agreement 4(b)) (emphasis added).

  13. On June 4, 1986, pursuant to the Plea Agreement, I pled guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. § 794(c). The 15-page indictment charged me with delivering classified materials with "intent and reason to believe that the same would be used to the advantage of Israel, in violation of Title 18 United States Code, Section 794(a)." (Indictment 15) (block capitals omitted). The government did not explicitly charge me with harming the United States, and did not, explicitly or implicitly, charge me with intending to harm the United States. Similarly, in a 12-page Factual Proffer filed by the government on or about June 4, 1986, the government never alleged that I had harmed, or had intended to harm, the United States. I certainly had never intended to harm the United States.

  14. The government has conceded that, pursuant to my Plea Agreement, I cooperated fully, and that my cooperation had considerable value. (See Govt's First Memorandum in Aid of Sentencing at p. 37.)

    The Weinberger Supplemental Declaration

  15. I was scheduled to be sentenced March 4, 1987. That day, I was brought to a holding cell adjacent to the courtroom. Mr. Hibey came in, waving a document. He said that Secretary of Defense Caspar Weinberger (who, months earlier, had submitted a pre-sentencing declaration) had just submitted a second declaration to the Court. Mr. Hibey handed it to me. I read it. It was devastating. But it was not true. It accused me of "treason." I had never even been charged with treason, let alone found guilty of it. Even more significantly, Mr. Weinberger's statement that "in the year of the spy" I had caused more damage to national security than any other spy—an undisguised reference to Walker, Whitworth, and Pelton, each of whom had recently been sentenced to life in prison for spying for the Soviet Union—was completely false, and could easily have been rebutted.

  16. At no time did Mr. Hibey tell me that I had the right to an adjournment, the right to offer evidence that could rebut the damaging allegations, the right to ask the Court to make findings of fact on the allegations, or the right to an evidentiary hearing at which the government would bear the burden of proving its allegations. To the contrary, Mr. Hibey told me that the sentencing could not be adjourned and that nothing could be done.

  17. The sentencing went forward. The judge sentenced me to life in prison.

    The Interviews With Wolf Blitzer

  18. In or around the fall of 1986, while I was incarcerated at FCI Petersburg, VA, I was informed by prison officials that Wolf Blitzer, a journalist, wanted to interview me. The prison officials provided me with a form, on which I was requested to state whether or not I agreed to be interviewed.

  19. I completed the form, and indicated that I was willing to be interviewed.

  20. I was aware that under the terms of my Plea Agreement, any interview had to be approved by the Director of Naval Intelligence. Because no one—let alone a journalist—can walk into FCI Petersburg and interview, photograph, and tape record an inmate without government authorization, and because the high profile nature of my case left me without any doubt that a request for an interview would be reviewed at the highest levels of government, I believed and understood that, by filing the form provided to me by the government, the approval process would proceed up the chain of government authority, and that the Director of Naval Intelligence or his delegate would either approve or disapprove the interview.

  21. I was pleased to learn from prison officials that the Blitzer interview had been authorized by the government. The day of the interview, November 20, 1986, Blitzer came to FCI Petersburg with a camera and a tape recorder. Bureau of Prisons officers were present. Blitzer interviewed me. I disclosed no classified information.

  22. Using Blitzer's camera, a Bureau of Prisons officer took a photograph of me with Blitzer. The photograph later appeared in a book Blitzer wrote about my case.

  23. The next day, November 21, 1986, Blitzer's article appeared in the Jerusalem Post. It generated considerable media attention. Later that day, I spoke to Hibey on the phone. He was very angry that I had given the interview without his knowledge. He did not say that I had violated the Plea Agreement, the district court's Protective Order (which prohibited disclosure of classified information), or any other legal obligation. He focused entirely on the fact that I had not coordinated this with him. Mr. Hibey emphasized that the publicity surrounding my interview had caused him great embarrassment, in that his client had submitted to a highly publicized interview without his knowledge.

  24. I told Mr. Hibey in detail the facts surrounding the interview, including my submission of the government's consent forms and the fact that the government had allowed Blitzer in with his camera and tape recorder to FCI Petersburg, and had therefore authorized the interviews.

  25. Some time thereafter, Bureau of Prisons officials informed me that Blitzer had requested a second interview. Again, I submitted the form provided to me by the government. I was told by Bureau of Prisons officials that authorization had again been granted. Once again, on the appointed day, January 29, 1987, Blitzer came to FCI Petersburg. Again, he interviewed me. I disclosed no classified information.

  26. At sentencing, the government claimed that the Blitzer interviews had been unauthorized. The government argued that I had breached the Plea Agreement by giving the interviews, and that this behavior showed that I was arrogant, unwilling to yield to any authority, and dangerous. This was untrue as well as unfair. I had sought and received government approval for the interviews. I believed that the approval process had proceeded up the chain of government authority and that the Director of Naval Intelligence or his delegate had approved the interview.

  27. Nevertheless, at no time did Mr. Hibey tell the sentencing judge any of the facts that would show that I did not breach the Plea Agreement and that I certainly did not act in willful disregard of the commitment I had made in the Plea Agreement. Mr. Hibey never explained to the Court that I had sought and obtained government consent for both interviews.

  28. To the contrary, in Mr. Hibey's Sentencing Memorandum, served February 27, 1987, he erroneously confirmed the government's accusations, and even volunteered, inappropriately, that he had advised me not to submit to the interviews. Citing to my "Judgmental Deterioration," Mr. Hibey wrote that I had "lapsed" and "against better judgment and advice, ha[s] spoken to the press. Hopefully, this will be seen as an aberration, nothing more." (Deft's Second Memorandum in Aid of Sentencing at pp. 44-45) (emphasis added). I never authorized Mr. Hibey to waive my attorney-client privilege or to disclose to the Court the nature of his advice to me on this or any other point.

  29. On March 3, 1987, the government served its Reply to Defendant's Sentencing Memorandum. The government escalated its attack on me by alleging, falsely, that I had violated the Protective Order (as well as the Plea Agreement) by disclosing classified information during the January 29, 1987 interview. The allegation that I had violated the Protective Order was entirely new, made for the first time the day before sentencing. Yet, Mr. Hibey did not object to the last-minute timing of this allegation, and did not request a hearing or even an adjournment.

  30. Also on March 3, 1987, the government served the Weinberger Supplemental Declaration, in which Mr. Weinberger used the fact of the Blitzer interviews to argue that "there can be no doubt that he can, and will, continue to disclose U.S. secrets without regard to the impact it may have on U.S. national defense or foreign policy. Only a period of incarceration commensurate with the enduring quality of the national defense information he can yet impart, will provide a measure of protection against further damage to the national security." (Weinberger Supp. Decl. at 4)

  31. That same day, March 3, 1987, Mr. Hibey submitted a responding memorandum. He merely stated that "Mr. Pollard's ill-advised interviews with Wolf Blitzer, while yielding grist for the Government's allocution, did not result in the disclosure of classified information." (Deft's Reponse at p. 1) Again, he made no mention of the government consent I had sought and obtained; he did not state that I had not violated the Plea Agreement and had certainly not done so willfully; and he did not demand a hearing on the government's accusations.

  32. At the sentencing, on March 4, 1987, Mr. Hibey conceded to the sentencing judge that, indeed, the Blitzer interviews were "unauthorized." (Sentencing Tr. p. 60) That was simply false.

  33. In sum, Mr. Hibey allowed the government to portray me, inaccurately, as a person utterly contemptuous of governmental authority who brazenly violated his own Plea Agreement and Protective Order, and who gave unauthorized interviews to a journalist. Mr. Hibey failed to advise the sentencing judge of the mitigating facts that would have contradicted, or at the very least undermined, the government's attempt to portray me, falsely, as defiant and incorrigible. Mr. Hibey even compounded the damage by erroneously conceding to the sentencing judge that the interviews had been "unauthorized," and by improperly disclosing that I had acted contrary to his advice.

  34. Mr. Hibey also did not tell me that, because there was a material factual dispute as to whether the Blitzer interviews had been authorized by the government, and whether I had disclosed any classified information in my second interview, I was entitled to an evidentiary hearing at which the government would have to prove its allegations, and to factual findings by the sentencing judge.

    Hibey Fails to Pursue My Remedies for the Government's Breach of the Plea Agreement
    Based Upon Its Failure to Advise the Court in Good Faith of My Cooperation

  35. Starting several months before I signed the Plea Agreement, and continuing thereafter, I cooperated fully with the government. Over the course of some fifteen months, my cooperation involved hundreds of hours of debriefings by government agents and prosecutors. I took numerous polygraph tests. I testified before a grand jury.

  36. Mr. Hibey only attended a very small number of these debriefing sessions. I had no representation at the vast majority of the sessions.

  37. In its Memorandum in Aid of Sentencing filed January 7, 1987, the government conceded that my "post-plea cooperation has proven to be of considerable value to the government's damage assessment analysis, and the ongoing investigation of the instant case. . . . The government acknowledges that defendant has been candid and informative in describing his wrongdoing, and that it has derived benefit from the information defendant has provided." (Govt's First Memorandum in Aid of Sentencing at p. 37)

  38. However, the government placed this concession in a lengthy section of its memorandum entitled "FACTORS COMPELLING SUBSTANTIAL SENTENCE," in which the government, after briefly paying lip service to my cooperation, proceeded to argue that the sentencing judge should disregard it. (Id. at pp. 35,37-39, 54-55) (Emphasis in original).

  39. In his Sentencing Memorandum served February 27, 1987, Mr. Hibey argued that "By failing to give Mr. Pollard proper credit for his cooperation, the Government has not honored its part of the plea bargain." (Deft's Second Memorandum in Aid of Sentencing at p. 42) (emphasis added). At least as to this issue, Mr. Hibey objected to the government's breach of the Plea Agreement. However, he took no steps to secure a remedy for that breach.

  40. I now understand that under established law, Mr. Hibey should have asked the Court to make a determination of whether the government had breached the Plea Agreement, following which I would have been entitled to be sentenced before a different judge on a clean record, untainted by government misconduct.

    Hibey Fails to Represent Me in Other Key Respects

  41. Mr. Hibey failed to represent me in other key respects. For example:

    • He did not tell me that the government had breached the Plea Agreement ( 4(b)) by asking the Court to impose a life sentence through the device of contrasting me unfavorably with other spies who had each recently received life sentences.

    • He did not tell me that the government had breached the Plea Agreement by its allocution, which included (i) an attack on me for my supposed high lifestyle, (ii) claims that I was not remorseful, and (iii) allegations that I displayed an arrogant attitude toward the government and the rule of law, all of which were not only untrue but outside the bounds of the "facts and circumstances of the offenses" to which the government had agreed to limit its allocution. (Plea Agreement 4(b)) Mr. Hibey never even objected to the government's allocution.

    • He did not tell me that, if I wanted to appeal from my sentence, I would have to file a Notice of Appeal within ten days of sentencing.

    • He did not tell me that I could raise as an issue on appeal the government's failure to adequately inform the sentencing judge of the nature and extent of my cooperation, in breach of the Plea Agreement ( 4(a)).

    Hibey Fails to Advise Me of My Right to Appeal

  42. On March 4, 1987, the Court sentenced me to life in prison. The judge did not tell me I had the right to appeal, or that a Notice of Appeal had to be filed within ten days or else I would lose my right to appeal. More significantly, Mr. Hibey also did not tell me any of these things. Mr. Hibey never discussed with me the advantages or disadvantages of taking an appeal. Nor did Mr. Hibey file a Notice of Appeal on my behalf. I did not know that if I wanted to appeal my sentence, I had to file a Notice of Appeal within ten days. Of course I would have wanted to appeal from my sentence of life in prison.

  43. Immediately after the Court imposed sentence on March 4, 1987, I was taken to the holding cell next to the courtroom. Mr. Hibey told me I would be in jail for 30 years. His parting words to me were, "you can handle it." I never saw him or spoke to him again.

    My Post-Sentence Incarceration

  44. Following my sentencing on March 4, 1987, I was taken briefly to the D.C. jail. Mr. Hibey did not come to see me.

  45. The following day, March 5, 1987, I was brought to the Federal Correctional Institution in Petersburg, VA. I did not hear from Mr. Hibey.

  46. The next day, March 6, 1987, I was taken to the Federal Medical Facility in Springfield, MO. I stayed there until approximately June 10, 1988. I was held for the entire time incommunicado in a ward reserved for the criminally insane. The conditions of my imprisonment were harrowing, to say the least. During my time at Springfield, I did not speak with any attorney, including Mr. Hibey. The only time I heard from him was when he mailed me a copy of the Rule 35 motion he had filed in the district court on or about June 25, 1987. I read the Rule 35 motion. I had not seen the Rule 35 motion before it was filed. I later learned that the Rule 35 motion had been denied. I had no idea that I had the right to appeal from the denial of the Rule 35 motion. No one told me.

  47. On or about June 10, 1988, I was transferred from Springfield to the United States Penitentiary in Marion, IL. USP Marion is a maximum security facility. I was held in the maximal unit of the facility. I remained there until approximately June 21, 1993. I was in solitary confinement the entire time I was at Marion—over five years.

  48. On or about June 21, 1993, I was transferred from USP Marion to FCI Butner. I have been at FCI Butner since then.

    Hamilton Fox III

  49. Some time around late 1988 or early 1989, while I was at USP Marion, I was introduced to an attorney named Hamilton Fox III, who I learned had been retained by the Government of Israel to file a motion to withdraw my guilty plea.

  50. At no time did Mr. Fox ever tell me there was any deficiency in Mr. Hibey's representation of me. Mr. Fox's entire focus was on the government's misconduct. For example, in connection with the Blitzer interviews, Mr. Fox told me that the government had acted improperly. At no time, however, did Mr. Fox indicate to me that there had been anything inappropriate in the way Mr. Hibey had handled that issue (or any other), or that the quality of Mr. Hibey's representation was itself a significant and compelling ground for challenging my sentence.

  51. Nor did Mr. Fox tell me about Mr. Hibey's deficiencies in connection with (i) the Weinberger Supplemental Declaration; (ii) the government's other breaches of the Plea Agreement (such as the government's allocution, and the government's failure to properly bring my cooperation to the sentencing judge's attention), or (iii) Mr. Hibey's failure to appeal or to tell me of the ten-day window to file a Notice of Appeal.

  52. Mr. Fox did not tell me that there was, actually or potentially, a claim for habeas corpus relief based upon ineffective assistance of counsel. Mr. Fox never mentioned the subject. His only criticisms were directed against the government. Nor did Mr. Fox explain the nature of habeas corpus proceedings, or that I might be waiving certain rights if I did not assert all possible claims.

    How I Learned About My Rights and Mr. Hibey's Failure to Protect Them

  53. In 1992, I was disappointed to learn that I had lost in the Court of Appeals by a two-to-one margin. After the Supreme Court denied a petition for certiorari, I assumed I had no further steps still available within the legal system. I did not know that there were effective legal arguments that Mr. Fox had not made that could still be presented.

  54. Only recently have I come to understand that, in representing me, Mr. Hibey failed to assert certain basic rights so fundamental that any competent attorney would have asserted them.

  55. I first began to be aware that I still had certain legal rights as the result of steps taken after a conversation with another inmate, Edward Jason Robinson. Mr. Robinson told me that he had read a published decision in my case, and expressed surprise that apparently no appeal had been taken from my sentence.

  56. That conversation led me to speak with an attorney, Larry Dub. Mr. Dub is a corporate attorney admitted in Rhode Island and New York, but practicing mainly in Israel. He has represented me since 1995, primarily in connection with my efforts to obtain fair treatment by the Government of Israel. Mr. Dub is not a criminal lawyer. Nevertheless, I asked him to look into the issue of Mr. Hibey's failure to appeal.

  57. In or around March 2000, Mr. Dub informed me that the Supreme Court had just handed down a decision in Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000). The decision appeared to say that counsel's failure to file a Notice of Appeal could constitute ineffective assistance of counsel of constitutional magnitude. Mr. Dub told me that based upon this recent Supreme Court decision, I had a legal issue worth pursuing.

  58. With the help of friends, my wife Esther Pollard searched for experienced counsel and was referred to Eliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP. They agreed to take my case on a pro bono basis.

  59. On May 17, 2000, Messrs. Lauer and Semmelman visited me at FCI Butner. That was the first time I had met them. They advised me, for the first time, of the material and prejudicial deficiencies in Mr. Hibey's representation of me. For example, I was very surprised to learn from them that, even though I had pled guilty, to the extent I disputed material factual allegations made by the government in connection with my sentencing (such as the allegations in the Weinberger Supplemental Declaration, or the allegedly unauthorized Blitzer interviews), I was entitled to an evidentiary hearing and findings of fact at sentencing. It had never dawned on me that I was entitled to an evidentiary hearing at which the government had to prove its contentions or withdraw them. Mr. Hibey never told me I had that right. I also learned for the first time that I had the right to request an adjournment of sentencing based upon the government's last-minute submission of the Weinberger Supplemental Declaration. That is exactly contrary to what Mr. Hibey told me.

  60. Had I known at the time of my sentencing that I had these various rights, I would have insisted that Mr. Hibey enforce them. Moreover, had I known at the time Mr. Fox filed the motion to withdraw my guilty plea that Mr. Hibey had represented me in a legally deficient manner, or that I had a claim for ineffective assistance of counsel, I would have insisted that Mr. Fox assert that claim.

  61. I now understand, for the first time, that my legal representation was deficient at two crucial stages. First, at and immediately after my sentencing, Mr. Hibey's failure to protect my rights doomed me to an unappealed sentence of life in prison. Second, Mr. Fox's unwillingness to criticize Mr. Hibey's performance rendered his motion to withdraw my guilty plea inherently untenable, as the Court of Appeals (in a two-to-one decision) could not reconcile (a) Mr. Fox's position that the government had acted in gross violation of my constitutional rights, with (b) Mr. Hibey's failure to object to the government's conduct.

  62. At the conclusion of my May 17, 2000 meeting with Messrs. Lauer and Semmelman, I agreed to retain them to represent me in filing a habeas corpus petition based upon ineffective assistance of counsel.

  63. I also now understand that there are procedural hurdles that presently exist in connection with filing habeas corpus petitions. However, I respectfully point out that this motion raises issues that have never been raised before—because no one has ever challenged Mr. Hibey's performance in this case. For example:

    • No court has ever scrutinized Mr. Hibey's handling of the government's last minute submission of the Weinberger Supplemental Declaration, including his failure to seek an adjournment, request a hearing, present evidence in rebuttal, or assert that the submission effectively sought a life sentence in breach of the Plea Agreement;

    • No court has ever scrutinized Mr. Hibey's handling of the Blitzer interview issue, including his failure to assert that I had sought and obtained government approval; his erroneous admission to the contrary; his disclosure that I had given the interviews against his advice; his failure to request a hearing to establish that the government had authorized the interviews; and his failure to demand that the government prove its false allegation that I had disclosed classified information during the second interview.

    • No court has ever scrutinized Mr. Hibey's failure to file a Notice of Appeal, or to inform me that if I wished to appeal my sentence, I would have to file a Notice of Appeal within ten days.

  64. At a minimum, Mr. Hibey should be required to take the stand in court and explain, under oath and subject to cross-examination, why he failed to do any of these things.

  65. I respectfully implore this Court that if there is any lawful way of allowing this motion to go forward on the merits, that the Court find a way to allow that. I pled guilty and I cooperated extensively, as even the government has conceded. Yet, I am serving a sentence of life in prison. Surely basic fundamental fairness dictates that a sentence of this severity, imposed under the conditions set forth in this declaration, should not be rubber-stamped on some technical procedural ground, without the Court even reaching the merits.

  66. My sole request is that my sentence be vacated and that I be resentenced at a fair proceeding.

  67. Messrs. Lauer and Semmelman are donating their time and energy to address and remedy a grave injustice. I beseech this Court to let them go forward with this motion on the merits, and to conduct a hearing for that purpose.

  68. I hereby certify under penalty of perjury that the foregoing is true and correct.

Dated: Butner, North Carolina
August 28, 2000

___________________________
(signed)

Jonathan Jay Pollard
Inmate No. 09185-016


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