life sentence in all but name.
Finally, despite its agreement to confine its allocution to the "facts and circumstances" of the offenses, the government told the district judge that Pollard's expressions of remorse were "both belated and hollow" and "grounded in the fact he was caught (emphasis in original); that Pollard was a "recidivist" who was "contemptuous of this Court's authority" and "unworthy of trust"; that Pollard felt "blind contempt" for the U.S. military, and had a "warped" and "skewed" perspective; that Pollard was "traitorous," "arrogant [and] deceitful," "without remorse," and "literally addicted to the high lifestyle funded by his espionage activities."
The assistant U.S. Attorney note that he (the assistant) had been brought up to regard two sins as "unforgivable," arrogance and deception - precisely the two sins that he repeatedly imputed to Pollard. Pollard's "loyalty to Israel transcends his loyalty to the United States," said Secretary Weinberger.
The government devoted much space to marshaling evidence that Pollard was driven by greed ("enamored of the prospect for monetary gain"; motivated by "the lure of money"), and not materially affected by anti-terrorist concerns, or, by implied extension, by any sympathy for Israel.
The government contends that in the phrase by which it retained "full right of allocution at all times concerning the facts and circumstances of the offenses," the limiting reference to "facts and circumstances" was a nullity. This is hard to swallow. As the majority points out, the contrast with the language in Anne Pollard's plea agreement suggests that here the parties intended to excluded some otherwise acceptable elements of an allocution.
So the government was free to relate not only the intelligence implications of Pollard's acts, but also details supporting an inference that his motive was pecuniary. But if the limit meant anything, it could not allow the government to wrap the raw facts in an inflammatory rhetoric, endlessly alluding to its (necessarily subjective) opinions that Pollard was greedy and immoral, depicting his conduct as the apogee of espionage, naming him a traitor, and delivering a tirade on his "arrogance and deceit."
Taken together, the government's three promises worked a substantial restraint on the government's allocution. Its commitments to restrict itself to facts and circumstances, and to assess Pollard's cooperation as having considerable value, closed off a means by which it might demand a life sentence in all but name. ...
Pollard's sentence should be vacated and the case remanded for resentencing. This should occur before a new judge as [the Santobello case] indicates, even though "the fault here rests on the prosecutor, not on the sentencing judge." ...
Though I do not wish to be too critical of the government, and though the analogy is inexact on some points, the case does remind me of Macbeth's curse against the witches, whose promises - and their sophistical interpretations of them - led them to doom:
And be these juggling fiends no more believ'd,
That palter with us in a double sense;
That keep the word of promise to our ear,
And break it to our hope.
'These Juggling Fiends'
Pollard's Legal Appeal - Abbreviated Version
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