On Monday, Jonathan Pollard’s long legal struggle ended.
Without comment, the U.S. Supreme Court refused to review an appeal court’s decision. The convicted spy’s lawyers will not have any access to the classified sentencing documents they hoped to use in a clemency plea to President George W. Bush.
"This was the last resort for Pollard within the legal system," said one of those lawyers, Jacques Semmelman of Bergen County. "The legal issues have been concluded. Any hope for him now has to come through political channels."
Semmelman and Eliot Lauer, both partners at the Manhattan law firm Curtis, Mallet-Prevost, Colt & Mosle, have been representing Pollard pro bono since ‘000. Pollard has been imprisoned since 1985. In 1986, Pollard, a former Navy intelligence analyst, pled guilty to spying for Israel. He has always insisted that he neither harmed nor intended to harm the United States, which after all was Israel’s firmest ally. The plea bargain he thought he’d accepted in 1987 specified that he would not be sentenced to prison for life but he was sentenced to prison for life nonetheless. His lawyers believe that the information that put him in his cell and threw away the key is to be found in the sentencing file they no longer expect to see. They know that one of the most important documents in the file is a statement by Caspar Weinberger, Ronald Reagan’s defense secretary, although they do not know exactly what revelations the statement contains or does not contain.
When they took over Pollard’s case, Semmelman and Lauer concentrated on two aspects, both procedural. They argued that Pollard’s first lawyer, Richard Hibey, provided his client with grossly inadequate representation, advising him to take the proffered plea bargain, then not filing the one-page notice of appeal that would have allowed the case to continue once the life sentence was handed down. "Any competent lawyer" would have filed that notice, Semmelman told The Jewish Standard in ‘004. Not filing it, he added, would be "like a doctor performing major surgery and not doing anesthesia first. It’s that basic."
By the time Semmelman and Lauer took over Pollard’s case, the opportunity to file the notice, and so to continue with the case, had long expired. They argued that Pollard had no reason to know of his lawyer’s incompetence and therefore could not have known that the statute of limitations was running out, but eventually the courts ruled against them. They chose not to concentrate on that argument in their appeal to the Supreme Court, and they no longer can do so. That avenue toward Pollard’s freedom is barred.
The other road they had hoped might lead to Pollard’s eventual release also wound through procedural shoals. A president can grant clemency and lawyers can petition for it. Semmelman and Lauer knew that much of the information they’d need to make the case for clemency was in the records, which have been sealed for years.
"We know from the public court file that part of what is in the file are predictions by Caper Weinberger as to possible outcomes based on what Pollard did," Semmelman said. "We would like to see what the predictions are, because it may be that at the time of the sentencing the judge read the predictions, became alarmed, and thought that the possible doomsday scenario justified life in prison. But if these predictions have not materialized after all these years, the judge should take that into account.
"But we can’t even begin this process until we see what’s in the sealed records."
The two lawyers applied for the clearance that would allow them access to the files. They made it clear, Semmelman said, that the clearance they sought was specifically for access to those files, and asked for the level of clearance they had been told would allow them that access. After an arduous process, they finally were given that clearance only to be told that it was inadequate. They were not allowed to see the documents. The lawyers appealed that decision; last July the appeals court turned them down.
That was the case Semmelman and Lauer brought to the Supreme Court.
The lawyers knew that most of the cases brought to the Supreme Court are not accepted only about one percent are granted certiorari, Semmelman said "but I thought that we had an interesting issue, based on the separation of powers."
The lower court decision, Semmelman said, was based on a bitter irony because clemency is granted by the president, it is an executive decision. Therefore, the court, part of the judiciary branch, cannot grant access to the files. That’s because the lawyers, who have to say why they want access, told the court that it was to be used for a clemency appeal.
Although he finds the decision illogical, even shocking, "there is nothing else we can do in terms of the formal legal system," Semmelman said. "We will continue to represent Jonathan, but in terms of the nature and scope of that representation, there isn’t a great deal that we can do."
The only real hope for Pollard now, he says, will have to come from outside the American legal system. "We hope that eventually some government of Israel will take an interest in Jonathan Pollard."
Semmelman, a Harvard-trained lawyer who also holds a doctorate in mathematics from Harvard University, was an assistant U.S. attorney in New York’s eastern district from 1987 to 1990. He knows how the system works, and he is angry about how it has worked in this case.
"I wouldn’t necessarily say that the Pollard case has changed my view of how the legal system works overall, but there seems to be a special body of law applicable only to Jonathan Pollard," he said. "I find it inconceivable that in any other case a federal court of appeals would rule that merely because defense counsel has a thought the power of the federal district court over its own record grinds to a halt. I find it inconceivable that the result reached in this case would be reached in any other case."
He stressed that the Pollard story is extremely complicated; it involves both international politics and legal arcana.
"It’s important for people to understand that if Jonathan Pollard ultimately spends the rest of his life in jail, it will not be because of what he did but because of what others have done to him," he said. "In particular, it’s because he missed a statute of limitations.
"There are a lot of myths surrounding Jonathan Pollard. A lot of people assume that if he’s in jail for the rest of his life there must be a good reason for it. It’s natural for people to make this assumption, because we live in the United States, where people are presumed to receive due process. It’s important to understand that Jonathan Pollard never received due process. He was barred from challenging the violations of his due process rights because of the statute of limitations."