July 28, 2005
Pollard Appeal Fails; Few Options Left
The court denied his request to downgrade his life sentence. At the same time, the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied Pollard's attorneys access to classified information they say would help in their attempt to win presidential clemency for their client.
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 that another option was to ask the entire appellate 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 previous administrations. Israel, which granted Pollard citizenship in 1995, has also raised the issue with successive American administrations.
They argued that Pollard's life sentence is unjust, because he had pleaded guilty and because it is harsher than the penalties given to convicted spies who had worked for countries antagonistic to the United States.
The court said 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 attorneys claim that Hibey was ineffective, because he did not appeal after Pollard received a life sentence, even though his client had pleaded guilty and had cooperated with the U.S. 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 last Friday's decision.
Pollard, who is being 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.