The last time Jonathan Pollard faced a judge in a Washington courtroom he expected to hear he would spend several years in prison for spying for Israel. Instead, as many in the courtroom gasped, Pollard was sentenced to life in prison.
On Tuesday, Pollard returned to the same courthouse, to hear his lawyers argue for his right to be re-sentenced at a fair hearing. "The Jonathan Pollard case is a stain on the American legal system, and unless we get to the truth, that stain will never go away," said Eliot Lauer, one of Pollard's lawyers, in a statement.
Pollard's lawyers argued that he had been denied his constitutional right to effective representation at his trial in 1987; in addition, the government "breached its agreement" with Pollard when it demanded a life sentence when it had agreed, during plea bargaining, not to do so.
At the time, Pollard's attorney Richard Hibey did not object to the government's breach and neglected to file a one-page Notice of Appeal that would have allowed Pollard to appeal his sentence to a higher court.
"Richard Hibey failed to perform some of the most basic procedures in criminal law," said Lauer. "These failures by counsel are simply shocking. They represent complete abdication of professional responsibility."
At the time, Pollard did not know that his constitutional rights had been violated.
Pollard's appearance on Tuesday was the first time the public had seen him in 16 years. Dressed in a dark green prison suit, with a graying beard, Pollard 49, nodded at family members and supporters who packed the courtroom. He wore a white yarmulke. Among the spectators in the courtroom were the former Chief Rabbi of Israel, Rabbi Mordechai Eliyahu, Mr. Shlomo Mostofsky, President of the National Council of Young Israel, Rabbi Pesach Lerner, NCYI's executive vice-president and Congressman Anthony Weiner. Local, national and international media covered the event.
U.S. District Judge Thomas Hogan had ordered Pollard brought to Washington from a federal prison in North Carolina. Hogan did not explain why he ordered that Pollard should be brought.
At Pollard's trial in 1987, he pleaded guilty to a single count of conspiracy to commit espionage. Then a civilian analyst for the Navy, he had handed over top-secret documents to the Israelis. Pollard's life sentence was the most severe prison term ever given for spying for an ally.
Over the years, government lawyers have refused to allow Pollard's new lawyers to view classified court documents from the time of the sentencing, claiming Eliot Lauer and Jacques Semmelman did not have security clearance. Two years ago, according to Lauer, the government misled the court into preventing them from seeing Pollard's file by misrepresenting their level of security clearance.
Both Lauer and Semmelman have top security clearance, which makes them eligible to access the sealed court documents. "The government finally admitted this," said Lauer.
The Israeli government has repeatedly asked the U.S. to release Pollard. Recently, 112 Israeli members of the Knesset signed a petition asking that Pollard be released on humanitarian grounds.
In 1998, then-President Clinton promised to review the case. CIA Director George Tenet told Clinton that he would quit if Pollard was released from prison. Pollard's case was reviewed by federal officials in 2000, but his name was left off the list of people granted clemency when President Clinton left office.
This time, Lauer and Semmelman are asking for an evidentiary hearing, during which they will question Hibey and Pollard's subsequent lawyer, Hamilton Fox III in court, so that they can "bring out the truth."
They are also asking that they finally be given access to the classified information in Pollard's sentencing file. The lawyers note that over the years, government employees reviewing Pollard's case had received "need to know" clearance to see the files at least 25 times. "As Pollard's security cleared counsel, we have an equal, if not greater need to access this information," said Lauer. "No one representing Pollard has seen these materials since March 4, 1987.
At the court hearing, U.S. district Judge Thomas Hogan said, "I have to absorb what I heard. I have to read over some of the case law that was referred to over here. I have to go over the material and then I'll make a decision."
Former Chief Rabbi Mordechai Eliyahu noted that he had flown in from Israel specifically to attend the Pollard hearing. "I came for two reasons," he said. "To hear and see American justice and to take Pollard home. I have only accomplished one mission."
"Our job, is not to give up," said Rabbi Lerner. "We have to keep applying the pressure. This is not only legal, it is political. We have to talk to every congressman, every senator, every politician on every level to keep the pressure up". The government violated the plea agreement it signed with Jonathan and double-crossed him. Prosecutors had promised not to seek a life prison term, which was the maximum he faced, his lawyers have said.
In 1987, Pollard told the sentencing judge. "I have come to the inescapable conclusion that, while my motives may have been well meaning, they cannot, under any stretch of the imagination, excuse or justify the violation of the law." Pollard's life sentence was the most severe prison term ever given for spying for an ally.
His supporters claim the judge who sentenced Pollard relied, in part, on misleading information from the government.
Israel has acknowledged that Pollard was its agent, but repeatedly has asked the United States to release him. Pollard's supporters in the United States also routinely request that he be pardoned.
Pollard's case was reviewed by federal officials in 2000, but he was left off the list of those granted clemency just before Clinton left office. The Israelis have continued to press the Bush administration for Pollard's release.