Jonathan Jay Pollard, after losing two appeals of his 1987 life sentence for conspiring to pass U.S. defense information to Israel, will finally get a new day in court next Tuesday.
The U.S. Court of Appeals for the District of Columbia will consider a motion by Pollard’s lawyer, Theodore Olson, seeking to vacate Pollard’s June 1986 plea bargain agreement with the U.S. government.
Pollard’s life sentence was issued in 1987 by Chief Judge Aubrey Robinson Jr. of the U.S. District Court for the District of Columbia. Robinson subsequently rejected two appeals by Pollard: one in February 1988, when he was seeking a reduced sentence, and the other in September 1990, when he sought to withdraw his guilty plea.
Olson, with the Washington firm of Gibson, Dunn & Crutcher, is appealing Robinson’s 1990 ruling to a three-judge panel of the appeals court. Sitting on the panel are Judges Ruth Gins-burg, Laurence Silberman and Stephen Williams.
U.S Jewish groups and prominent Jews and gentiles have signed on to a friend-of-the-court brief sent to the appeals court, including Nobel laureate Elie Wiesel and Rev. Robert Drinan, law professor at Georgetown University.
Others on the brief include the presidents of the three major rabbinical seminaries in America — the Orthodox Yeshiva University, Conservative Jewish Theological Seminary and Reform Hebrew Union College – as well as the World Jewish Congress, the Central Conference of American Rabbis and Agudath Israel of America.
The Simon Wiesenthal Center in Los Angeles has called for Pollard’s sentence to be commuted to the five and a half years he has already served.
But support for Pollard is not unanimous among the organized Jewish world.
The National Jewish Community Relations Advisory Council, through its Ad Hoc Committee on the Pollard Case, announced in June that it had found no basis for the claim that “factors prejudicial to Mr. Pollard’s rights entered into the determination of his sentence.”
‘NOT A ‘THREAT TO JEWISH SECURITY’
According to the committee’s chairman, Phil Baum, “the Pollard case does not constitute a threat to Jewish security in this country that would require us to assign it a greater priority.”
Pollard was arrested in November 1985 and pleaded guilty to passing documents to Israel during 1984 as a U.S. Navy intelligence research specialist.
In November 1984, Pollard had met in Paris with Israeli intelligence officers, who provided him with detailed “tasking,” specific requests for classified documents and information.
In his brief, Olson argues that the government violated an implicit understanding that U.S. attorneys would not seek a life sentence.
He contends that the government violated that agreement by arguing at the sentencing hearing that Pollard should never again “see the light of day.”
U.S. Attorney Jay Stephens argues in the government’s brief that it never explicitly asked Robinson to impose a life sentence but asked only for “a substantial period of incarceration and a monetary fine,” in accordance with the terms of the plea agreement.
Pollard “understood that the ultimate judgment was committed to the court’s discretion and swore that no promises or representations of any kind had been made with respect to what the sentence of the court would be,” Stephens says.
CALLED ‘VENAL’ AND ‘VENGEFUL’
Olson also argues the government, at sentencing, “repeatedly and massively breached” that part of the plea agreement which limited the government to discussing “the facts and circumstances of the offenses committed” by Pollard, and to correcting “any misstatements of fact.”
The breach, according to Olson, occurred when assistant U.S. attorneys present at the sentencing hearing called Pollard “vengeful” and “venal,” accused him of having “utter contempt for the United States military and intelligence community” and charged that “his loyalty to Israel transcends his loyalty to the United States.”
Stephens argues that “the government agreed to limit its allocution in one respect only: its sentence recommendation.”
At the sentencing hearing, neither Pollard nor his counsel “understood these comments to be a breach of the agreement.” That failure to make a timely objection, according to Stephens, precludes the court from considering the propriety of those comments now.
Olson’s brief contends that Pollard’s guilty plea was coerced and involuntary because it was linked, or “wired,” to a similar plea by Pollard’s wife at the time, Anne Henderson Pollard. The two have since been divorced.
Stephens argues that Jonathan Pollard had explicitly told the court that his plea arrangement was voluntary. Since “there are no factors in this case which raise special concern about the voluntariness of (his) plea, he is in effect arguing for a per se ban on wired pleas, a position no court has accepted.”
Olson also contends that Jonathan Pollard was denied due process when one of two affidavits submitted by then Defense Secretary Caspar Weinberger remained classified.
Stephens cites national security objections to its release.
The public Weinberger declaration stated that he could not “conceive of greater harm to national security” than that done by Pollard and that his punishment “should reflect the perfidy of (his) actions, the magnitude of the treason committed, and the needs of national security.”
“Treason, of course, is punishable by death,” Olson says in his brief, “and is not an offense that Mr. Pollard committed. But the district court got the message and imposed the most stringent sentence that Mr. Pollard’s plea allowed.”
The court is expected to take at least a month to issue its decision.
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