Was Pollard's First Lawyer Incompetent?
Eric J. Greenberg, Staff Writer - The Jewish Week (NY) - September 29, 2000
That's the charge by convicted spy's new attorneys in federal motion
Jonathan Pollard's new lawyers are claiming that his first attorney 15 years ago was incompetent, and that he should be granted a new federal hearing regarding his life sentence for spying in America on behalf of Israel.
The new attorneys filed a 69-page motion in federal court in Washington, D.C., last week charging Pollard was deprived of his Sixth Amendment right to "effective counsel" and his Fifth Amendment right of due process because of a series of failures by high-powered Washington defense attorney Richard Hibey.
The document amounts to a blistering criticism of Hibey, who between 1985 and about 1989 represented Pollard, a former Navy civilian intelligence analyst considered by the U.S. intelligence community as one of the most damaging spies in the 20th century.
"He was sentenced to life in prison because his attorney failed to protect his most basic constitutional rights at sentencing," said the motion filed by Eliot Lauer and Jacques Semmelman of the New York City law firm of Curtis, Mallet-Prevost, Colt & Mosle LLP.
It also charged cronyism among Washington lawyers for publicly failing to criticize Hibey's "inadequate" representation during an appeal in 1990.
"Pollard should not have to spend the rest of his life in jail based upon false accusations simply because one member of the D.C. bar could not bring himself to criticize another," said the lawyers who are representing Pollard on a pro-bono basis since taking the case last May.
The strongly worded motion comes as the Pollard case has gained increased attention in the tight New York U.S. Senate race between Democrat First Lady Hillary Rodham Clinton and Rep. Rick Lazio (R-L.I.)
Political observers say a bold move to support Pollard could gain crucial votes from the Orthodox Jewish community.
The federal motion also comes following the controversy surrounding Wen Ho Lee, a Chinese-American nuclear scientist arrested held for nine months in solitary confinement following government charges of spying that have not been proved.
Hibey did not return several phone calls to his Washington office.
Pollard, 47, is serving a life sentence in a Butner, N.C., federal prison.
He was sentenced on March 4, 1987, after pleading guilty to a single count of conspiracy to commit espionage.
Page upon page of the motion details Pollard's contentions that Hibey failed to notify him about his rights, including filing an appeal of his life sentence within 10 days, and insuring the U.S. government honored a plea-bargaining agreement with Pollard that would have restricted a life sentence.
Pollard himself declares that he has only recently learned that 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," Pollard said in a written statement of Aug. 28, 2000 contained in the motion. "His failure to represent me properly deprived me of my constitutional right to effective assistance of counsel."
Pollard said his family hired Hibey a day or so after his arrest where on Nov. 21, 1985.
"I later learned that most of his fees were paid by the Government of Israel," Pollard stated.
Pollard said Hibey also failed to rebut a damaging last-minute memo written by Caspar Weinberger, former President George Bush's secretary of defense and submitted on March 4,1987 to the federal sentencing, Judge Aubrey Robinson.
"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."
Pollard said the memo was completely false and could have been easily rebutted.
But "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."
"The sentencing went forward," Pollard wrote. "The judge sentenced me to life in prison."
Pollard also charged that Hibey failed to contest the government's charge that he gave unauthorized interviews and disclosed classified information to CNN reporter Wolf Blitzer, who was then working for the Jerusalem Post.
"Mr. Hibey never explained to the court that I had sought and obtained government consent for both interviews," writes Pollard.
Blitzer told The Jewish Week Tuesday that his interviews with Pollard in November 1986 were approved by the prison warden.
"All that was cleared by the warden," said Blitzer, who wrote a book about the Pollard case. "I didn't sneak in. I went in there as a journalist."
Blitzer declined to assess whether Hibey's counsel was inadequate.
Pollard's attorneys contend that Hibey's "failures" doomed a 1990 federal appeal for a re-sentencing hearing.
Jonathan Pollard's Legal Documents as Filed:
Declaration of Jonathan Jay Pollard In Support of Motion for Resentencing
Memorandum of Law in Support of Jonathan Jay Pollard's § 2255 Motion