Pollard Lawyer Won't Give Up
Joanne Palmer - Special to the Baltimore Jewish Times - November 26, 2003
When did he know and when should he have known it?
According to Jonathan Pollard's lawyer, Jacques Semelman of Bergen County, those are among the questions Judge Thomas F. Hogan chose to disregard as he refused to allow the convicted spy to appeal his life sentence last Friday, Nov. 14.
Pollard was accused of spying for Israel; in 1987 he accepted a plea bargain that led - instead of what he had been promised, according to his supporters - to a life sentence without parole. He has been imprisoned since 1986. In October, he was taken to federal district court in Washington for a hearing. There his lawyers argued that his sentence should be vacated and that they should be allowed to see classified documents about his case. Last Friday, Hogan rejected both requests.
Semelman and fellow attorney Eliot Lauer, both partners in the New York law firm Curtis, Mallet-Prevost, Colt & Mosle, "recognized immediately that Pollard's life sentence was the direct result of ineffective assistance of counsel," Semelman said in a telephone interview with this newspaper. Pollard's first attorney, Richard Hibey, "did not object" when "the government asked for life in prison, after having agreed not to do so." Semelman said that Hibey had been negligent in a number of ways; prime among them was not filing a one-page notice of appeal. Filing that paper, Semelman said, "is pretty much automatic."
"To analogize," he added, "it's like a doctor performing major surgery and not doing anesthesia first. It's that basic."
When Semelman and Lauer, who are working pro bono, took on Pollard's case in 2000, "we saw that on the merits we had a very strong base, but there were two procedural obstacles that we had to overcome to get to the merits." The first obstacle, he said, was the statute of limitations. Enacted by Congress in 1966, it "basically says that any prisoner who wants to bring a challenge to his or her incarceration has one year to do it." One year from when? "That's the question," he answered. "It's one year from the time the prisoner knew or should have known the facts supporting the claim."
Hogan ruled that Pollard's claim to inadequate representation, filed in 2001, was about a decade too late, but "we argue that Jonathan Pollard did not learn the facts supporting the claim of ineffective council until 2000, when my partner and I told him what his lawyer should have done and failed to do." Therefore, he said, the clock didn't begin to tick until the turn of the millennium.
It took Pollard longer than might seem likely to realize that he had been poorly served by his first lawyer because in 1990, Pollard filed a habeas corpus petition with a second lawyer, Hamilton Fox. (Such a petition, explained Semelman, is a procedural device for challenging incarceration on constitutional grounds.) Fox filed a constitutional challenge but did not charge ineffective assistance; instead, said Semelman, "he simply argued that the government had acted inappropriately in giving a life sentence after it had promised not to."
That was not a logically consistent move, said Semelman, because "it should have been obvious to him that the government would respond to his argument that the government had acted inappropriately with the very obvious argument that the first council had not objected."
In fact, said Semelman, instead "Hamilton Fox basically wrote that Richard Hibey did a great job representing Jonathan Pollard. Not surprisingly, the court ruling relied heavily on the fact that Richard Hibey never objected that Jonathan Pollard had not met his burden of proving that the government breached the plea agreement."
Semelman said that Fox "had a conflict of interest. He did not want to criticize another member of the Washington, D.C., white-collar-defense bar. Lawyers don't do that. It's very unusual for a lawyer to criticize another lawyer in the same jurisdiction." Both Hibey and Fox were former assistant U.S. attorneys in Washington, making it even more unlikely that one would publicly attack the other's work. But, said Semelman, "Jonathan Pollard had no way of knowing that. How was he to know that it's not true if both the government and his own lawyer were saying that Hibey had done a great job? How is a non-lawyer to know?
"So," he said, "the years went by."
When Semelman and Lauer began to work on the case, "reading the record showed us that there was no record of appeal filed. I was so surprised! I was sure that there had been a mistake, that two pieces of paper had been stuck together." He has received no explanation about the omission from either the government or Hibey himself.
"We recognized that there was a problem with the statute of limitations, but we felt we had a legitimate way around it," Semelman said. "Our main argument was that when the government said that Hibey had acted skillfully and without any errors, and when Fox joined in that praise, Pollard had every right to rely on that. It is inappropriate now to say that Pollard should have disbelieved the government. When the American government makes a statement, Americans are entitled to believe it. They shouldn't be told afterward that they were foolish to have believed what their government told them."
A second technical response to Pollard's request that his sentence be vacated is "a technical doctrine called the second habeas corpus doctrine," Semelman said. "Fox had filed a habeas petition in 1990, and the general rule is that you can't keep filing them." He was attempting to file another because Fox's unwillingness to criticize his colleague kept him from charging ineffective assistance of council in the first place.
After much legal jockeying, Pollard and his lawyers were summoned to Hogan's courtroom on Sept. 2 for arguments. "We got a decision a few days ago," said Semelman. "It was negative. The judge concluded that the statue of limitations bars the claim, and the second habeas doctrine bars the claim, and that we should not get a certificate of appealability." The judge's decision, the lawyer added, "does not say anything about my principal argument."
Another issue addressed at the September hearing was Pollard's lawyers' desire to "gain access to five partially classified documents in the court sentencing dockets," Semelman said. Those documents, which are "under seal, are said to contain classified information."
"This goes back to late 2000, in the final weeks of President Clinton's administration," he continued. "We had filed an application for executive clemency, and it was being considered. We met with some fairly senior-level people, and while everyone was very polite to us we recognized, based on comments people were making, that we were somewhat handicapped by the fact that we had not seen those documents."
"So we inquired of the government about how to go about gaining access to the documents. And the government said you have to get security clearance, so we said fine, we would like to apply for a security clearance.
They send us forms, we filled them out. They were long, detailed forms, they needed all kinds of references. We had an FBI investigation. We had applied for whatever security documents they told us were necessary to look at the documents about Pollard. We made it clear that we were representing Pollard, that our only interest in getting a security clearance was being able to look at those documents. They issued us security clearance, and apparently they had given us top security clearance."
The documents are commonly understood to hold the reason behind Pollard's life sentence; among them is the so-called Weinberger Declaration. In that long memo, Caspar Weinberger, Ronald Reagan's secretary of defense, detailed why he thought that Pollard had so harmed the United States that he should never be set free. Its contents have never been made public.
"So we get this clearance," continued Semelman. "We say to the government, okay, we need to see the documents. When can we come down? The government says two things: You have the wrong clearance, and because it is for a clemency application you have no need to know." Working with U.S. Rep. Anthony Weiner of Brooklyn and Queens, the lawyers recently received "a letter from the court security officer saying that we do have the right security clearance." In fact, he added, the court officer told us that "we always had it."
But they have still not seen the documents, because Hogan ruled that it is unlikely that Pollard will gain clemency - "he wrote something like three presidents have already denied clemency, so there's no reason to think that a fourth president would grant it," according to Semelman - so "why bother?"
"On that issue," the lawyer continued, "we have the right to appeal, so we don't have to get a certificate of appealability. We have 30 days to file in the court of appeals asking it to issue a certificate of appealability. If they do, they we will be able to bring all these issues before the court of appeals. If they don't, then we can try to ask the Supreme Court to issue a cert petition, but I'd like to take this one step at a time."
"We intend to continue this legal battle until the courts reaches the merits of the claim that the reason Jonathan Pollard is serving a sentence of life in prison is because his attorney did not provide adequate legal representation, and then stood by while the United States government reach a plea bargain and violated his legal rights," said Semelman. "The government continues to take the position that he should spend the rest of his life in jail because he missed a statute of limitation and because of the second habeas argument. I find it appalling that the government would take such a position.
"Throughout this case, the government has refused to allow the truth to come out. The public should ask themselves why. What doesn't the government want the truth to come out? The government should stop hiding behind technicalities as its only justification for leaving this man in jail for the remainder of his life."
Meanwhile, a group of pro-Pollard protestors heckled speakers, including Israeli Prime Minister Ariel Sharon, on Sunday at the Jerusalem meeting of the General Assembly of the United Jewish Communities. News sources described between 10 and 15 protestors, who shouted slogans making clear that they feel that the Israeli government bears some responsibility for the plight of the man it admitted had spied for Israel. About 100 more protestors waved signs and shouted outside the meeting; their posters had such slogans as "Pollard-Dreyfus." [J4JP: 6,000 demonstrators! Not 100! See note below.]
J4JP Note: A most significant error in the report above, the claim that 100 Pollard supporters demonstrated at the GA, was repeatedly reproduced in Federation newspapers and in the Jerusalem Post. In point of fact, there were thousands of protesters! Organizers estimate 6,000 to 7,000 people took part in the Pollard demonstration. Even Israeli mainstream media, which deliberately tried to detract from the importance of the rally by minimizing the number of participants, reported that there were 2,000 to 3,000 participants. But no stretch of the imagination can pare down the participation of thousands to a mere 100!