August 28, 2003
Pollard Lawyers Get Day in Federal Court
Sept. 2 is going to be a big day for Jonathan Pollard: The American Jewish spy is going to get another day in court.
Pollard's lawyers will have 40 minutes in a federal courtroom to explain why they should be permitted to continue efforts to rescind the life sentence he received 18 years ago for committing espionage for Israel.
Years of tenacious motions by attorneys Jacques Semmelman and Eliot Lauer either have been vigorously opposed by government attorneys or allowed to languish in the court.
Now U.S. District Court Judge Thomas Hogan has granted a hearing to Pollard and his attorneys -- who are working on the case pro bono. Semmelman and Lauer will get 30 minutes to argue why they should be permitted to appeal, the government can take a half hour to respond and then Pollard's attorneys will be granted 10 minutes for the last word.
So pivotal is the hearing that the judge has ordered federal prison officials in Butner, N.C., to shuttle Pollard to the U.S. District Court in Washington for the event. Prison officials said they are uncertain whether U.S. marshals would fly Pollard to the nation's capital or drive.
"Normally, we drive them for a mere six-hour trip," a prison representative said, "but a high-profile prisoner like Pollard might be flown."
He added that arrangements would be made for Pollard's kosher meals.
Despite mounds of legal briefs and well-researched citations, Pollard's hearing boils down to two issues:
Was the ex-naval intelligence officer convicted in March 1987 on the basis of a misleading secret 46-page affidavit?
Was he denied due process by a defense attorney who declined to file a routine appeal after Judge Aubrey Robinson stunned Pollard and threw a crowded courtroom into pandemonium with an unexpected life sentence? The life sentence violated the prosecutor's plea agreement to not ask for life in exchange for Pollard's cooperation.
Then-Secretary of Defense Caspar Weinberger submitted the secret affidavit at virtually the last minute at Robinson's personal request. In the affidavit, Weinberger wrote: "It is difficult for me, in the so-called 'year of the spy' to conceive of a greater harm to national security."
The message, backed up with some 20 classified documents, was clear: Give Pollard a life sentence -- regardless of the written plea agreement.
Fifteen years later, Weinberger conceded that "the Pollard matter was comparatively minor. It was made far bigger than its actual importance." Pressed on why this was so, Weinberger replied, "I don't know why -- it just was."
Attorneys Semmelman and Lauer have been filing motion after motion to see the supposedly secret documents so they can adequately appeal. But their efforts have been denied on the grounds of national security, even though they have been granted the necessary security clearances. Semmelman is a former U.S. attorney. The documents concern sources and methods used two decades ago, before the proliferation of personal computers.
The second question asks whether Pollard was denied due process on account of "ineffective assistance of counsel," according to the motion.
Pollard's attorney at the time, Richard Hibey, has been widely criticized for inaction. He failed to object when prosecutors violated the plea agreement and asked for life, failed to call for an evidentiary hearing on Weinberger's secret affidavit and then -- to the surprise of most observers -- declined to file the routine notice of appeal in the 10 days allotted.
For years, Hibey has dodged all questions on his representation of Pollard.
Despite the hearing, there are few prospects for a Pollard release in the immediate future.
Even if Semmelman and Lauer were granted the opportunity to appeal -- consistently denied because Hibey failed to file the 10-day notice -- it might take another year or two for any decision.
Pollard already has served far longer than the average for people convicting of spying either for enemies of the United States or it allies.