Appeal Denied, Pollard Left With Few Legal Options

Matthew E. Berger - JTA - July 22, 2005

Justice4JP Prefacing Note:

The American judicial system has deliberately, calculatedly failed Jonathan Pollard for 2 decades. Jonathan Pollard's latest legal appeals were turned down with excuses so flimsy and spurious as to defy credulity.

The railroading of Pollard has been directed and intentional, and it is obvious that the entire judicial process in this case has been repeatedly subverted for 2 decades for political reasons, to uphold an unjust life sentence and unduly harsh treatment. Because the motive is calculated, there is no doubt that this trend will continue, even if the case is brought before Supreme Court - which has previously refused to hear it, and would likely refuse again.

As long as Jewish leaders continue to turn a blind eye to the Government's exploitation of the plight of Jonathan Pollard, the case will continue to be used as a vehicle to blacken Israel's reputation as an ally and to call into question the loyalty of American Jews. And Jonathan Pollard will continue to rot in prison, his blood red upon the hands of Israel and the Jewish leaders.

Why is it that Israel and the Jewish leaders have no upper limits to the threshold of corruption and injustice that they are willing to overlook in the Pollard case? Just how blatantly must Pollard be afflicted and persecuted, and for how long, before Jewish leaders stop pretending that this case is not about Jews and Israel?

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- There appear to be few legal options left for Jonathan Pollard. A U.S. federal appeals court on Friday rejected the former U.S. Navy intelligence analyst's claim that he had inadequate counsel when he was sentenced to life in prison in 1987 for spying for Israel, and denied his request to downgrade his life sentence.

At the same time, the three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit denied to give Pollard's attorneys access to classified information they say would help in their attempt to win presidential clemency.

The rulings, which affirm decisions by a U.S. District Court in 2003, leave Pollard with little recourse but the Supreme Court to change his fate. Pollard's attorney, Eliot Lauer, said Friday another option was to ask the entire appeals court to hear the case.

"We are very disappointed with the appeals court decision," Lauer said. "We hope that in time, and we are confident that in time, the American judicial system will give Jonathan Pollard his rightful day in court."

The appeals hearing was the latest in the battle to free Pollard, who was given a life sentence after pleading guilty to spying for Israel as part of a plea bargain that the U.S. government did not respect.

Pollard's attorneys and members of the American Jewish community lobbied hard for clemency during the Clinton administration, as well as under previous administrations. Israel, which granted Pollard citizenship in 1995, also has raised the issue with successive American administrations.

They argued that Pollard's life sentence was unjust because he had pled guilty, and because it was harsher than the penalties given to other convicted spies who had worked for countries antagonistic to the United States.

The court said Friday that Pollard's claim of inadequate counsel was untimely because he knew the circumstances of his claim before he filed it in 2000. Motions can be filed up to a year after sentencing, or when new facts are discovered.

"Pollard knew the facts; what he now claims not to have known is the legal significance of these facts," Judge David Sentelle wrote for the court, which was unanimous on the issue.

Pollard's attorney, Jacques Semmelman, said in oral arguments that a conflict of interest between Richard Hibey, Pollard's original attorney, and Hamilton Fox III, who filed a motion in 1990 seeking a withdrawal of Pollard's guilty plea, prevented Fox from claiming ineffective counsel.

"The conflict of interest is that Mr. Fox could not bring himself to say anything negative about Mr. Hibey," Semmelman said under repeated questioning by Sentelle.

The new lawyers claim Hibey was ineffective because he did not appeal after Pollard received a life sentence, even though he had pled guilty and had cooperated with the government.

Pollard's attorneys also want to see 40 pages of a declaration written in 1987 by then-Secretary of State Casper Weinberger, which outlines his assessment of Pollard's damage to U.S. interests. That declaration is believed to be key to Pollard's long sentence, but the court ruled that federal courts lack jurisdiction to review claims for access to documents for clemency purposes.

"The Constitution entrusts clemency decisions to the president's sole discretion," wrote Sentelle, joined by Judge Karen Lecraft Henderson.

Judge Judith Rogers dissented, dismissing the jurisdictional question but saying that Pollard's lawyers did not have a "need to know," which is required to access the information. A presidential grant of clemency is a government function, she said, while assisting Pollard's petition is a private act.

"Simply asserting that one's assistance is needed does not make it so, especially since executive clemency is a matter of grace," she wrote, adding that the president would have to seek the assistance of Pollard's attorney to meet the "need-to-know" standard.

It's unclear when and if Pollard's attorneys will appeal to the U.S. Supreme Court. The court could hear either or both of the two issues, or choose not to review the case, essentially affirming Friday's decision.

Pollard, held at Butner Prison in North Carolina, is eligible for parole, but his attorneys said he has not sought a parole hearing because it would be hard to argue for parole without the classified information.

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