Still Working to Free Jonathan Pollard

John Caher - New York Law Journal - March 14, 2005


Some 4,000 pro bono hours ago, Eliot Lauer and Jacques Semmelman embarked on a personal and professional quest to liberate convicted spy Jonathan J. Pollard. The thing is, they did not have to do it for free.

A wealthy philanthropist who had been Mr. Lauer's client was willing to help bankroll a legal defense fund for Mr. Pollard, the infamous civilian naval intelligence officer who passed U.S. intelligence to Israel. As long as there was an issue worth pursuing, the philanthropist was ready with an open wallet.

But after reviewing the file, Messrs. Lauer and Semmelman quickly came to two conclusions: Mr. Pollard has a viable claim and they would take no fee.

That was 4-1/2 years and a staggering number of unbillable hours ago.

"I am doing this because I am a lawyer, I am a Jewish American and I believe that to a large extent the Pollard case is sort of an uncomfortable testing of how comfortable Jews feel in America," said Mr. Lauer who, like his partner, has a busy commercial law and white-collar criminal defense practice at Curtis, Mallet-Prevost, Colt & Mosle.

Mr. Lauer, 55, would not identify the mystery philanthropist who brought him into the case.

"I told [the philanthropist] that I thought Pollard had a case that had to be brought, that I would be interested in doing it, but would prefer to do it pro bono," he said. "I did that because I believed in the case and believed it was the absolute right thing to do."

Mr. Semmelman, 49, a former federal prosecutor in the Eastern District of New York, viewed the matter simply as one where "a tremendous injustice was being done, and I thought I might be able to help."

That remains to be seen.

Mr. Pollard, 50, lingers in federal prison, where he has spent nearly 20 years. And unless Mr. Lauer and Mr. Semmelman are very, very good and perhaps very, very lucky that is where Mr. Pollard could linger for the rest of his days.

Tomorrow, Messrs. Lauer and Semmelman will attempt to leap substantial hurdles in a pair of key arguments before the U.S. Court of Appeals for the District of Columbia Circuit.

The facts of the case are straightforward.

Mr. Pollard, while working as a U.S. Navy intelligence analyst, passed highly sensitive, classified material to Israel between June 1984 and November 1985. He insisted he had only provided information he thought Israel, as an ally, was entitled to, and only information he believed Israel needed for its national security.

The U.S. government had a different perspective.

It claimed Mr. Pollard damaged America's relations with its Arab allies, indirectly altered the balance of power in the Middle East, wreaked havoc on the morale in Navy intelligence and denied the United States an opportunity to demand a quid pro quo bargaining chip in exchange for sharing information with Israel. Then Secretary of Defense Caspar W. Weinberger said he was hard pressed "to conceive of a greater harm to national security than that caused by" Mr. Pollard.

Mr. Pollard pleaded guilty to one count of conspiracy to deliver national defense information to a foreign government.

Under a plea agreement, the government was barred from requesting the maximum sentence, life in prison. Still, U.S. District Court Judge Aubrey E. Robinson sentenced Mr. Pollard to life, apparently the longest sentence ever imposed in this country for passing secrets to an ally.

Ineffective Assistance Bid

Over the years, Mr. Pollard's clemency bids and various attempts at appeal have failed. Tomorrow in Washington, D.C., he and his attorneys arrive at what could be a pivotal juncture in his case and his life.

If they can convince the U.S. Court of Appeals for the District of Columbia Circuit that Mr. Pollard has a right, after all these years, to claim ineffective assistance of trial-level counsel, and then persuade the trial court that Mr. Pollard's representation was indeed ineffective, there is a chance of victory and freedom.

The ineffective assistance claim, which will be argued by Mr. Semmelman, centers on the representation Washington attorney Richard A. Hibey, now of Miller & Chevalier, provided his client nearly two decades ago.

"I was appalled at the quality of the legal representation Jonathan received," Mr. Semmelman said in an interview. "It became apparent to us that Jonathan Pollard was sentenced to life not because of what he did, but because of what was done to him."

The list of complaints against Mr. Hibey is extensive.

According to a brief submitted to the court, Mr. Hibey neglected to file any notice of appeal; publicly announced that Mr. Pollard had no avenue of appeal; failed to challenge a statement Mr. Weinberger submitted to the court all but demanding a life sentence after the government promised not to seek such a sanction; and committed various other errors that denied his client effective representation. Mr. Hibey last week declined comment.

Because of a statute of limitations question, the ineffective assistance issue is not directly before the circuit.

Mr. Pollard did not assert his ineffective assistance claim until September 1990, long after the one-year statute of limitations had run. However, Mr. Pollard contends he raised the issue as soon as Mr. Lauer and Mr. Semmelman pointed out to him the series of qualms they had with Mr. Hibey's work.

Top-Secret Files

Another issue Mr. Lauer will argue centers on a 45-page declaration Mr. Weinberger submitted to the court in 1987 offering his view of the case and the severity of Mr. Pollard's offense. About 20 pages were filed under security seal.

Mr. Lauer, who underwent an extensive background check to obtain top-secret security clearance precisely so he could see the file, was denied access.

The government claims Mr. Lauer can view what is described as "sensitive compartmented information" only on a need-to-know basis, and he has no need to know. Mr. Lauer said the question of whether that information is relevant to Mr. Pollard's appeal is a decision for defense counsel, not prosecutors. He points out that government records show that the Justice Department accessed the file some two dozen times.

"If on 24 occasions lawyers working with the Department of Justice opposing clemency for Pollard have a need to know, don't we have at least an equal need to know?" Mr. Lauer asked.

Joining the appeal are the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the American Association of Jewish Lawyers and Jurists and 14 individuals appearing as amici curiae. Among them are former New York Attorney General Robert Abrams of Stroock & Stroock & Lavan; Notre Dame University President Emeritus Reverend Theodore Hesburgh; retired U.S. District Judge George Leighton of Illinois; and Congressman Anthony D. Weiner, D-Brooklyn.

"I believe that by bringing justice to Pollard and the Pollard case, I am helping to clarify our role as Americans not just Jewish Americans, but as Americans," Mr. Lauer said. "It is a challenge personally, but I believe in a way that the Pollard case is much bigger than Jonathan Pollard himself."