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Thursday, December 27, 2012
Esther Pollard in Jerusalem Post Op Ed details how legal options exhausted - now up to President Obama

Pollard’s Catch-22
By ESTHER POLLARD The Jerusalem Post 12/27/2012 22:52
http://www.jpost.com/Opinion/Op-EdContributors/Article.aspx?id=297600

The striking new CIA disclosures that my husband, Jonathan Pollard, did not
transmit information about the United States to Israel reaffirms that there
is no justification for his continued incarceration after 28 years in
prison. Unfortunately, the new CIA disclosures do not provide a legal basis
for reopening his court case.

Contrary to popular misconception, the US does not permit prisoners an
endless number of appeals. The legal remedies available to a prisoner are
severely restricted. Jonathan has used up all of his.

Some background to understanding Jonathan’s Catch-22 dilemma: First of all,
as unbelievable as it seems, Jonathan has never been allowed a direct appeal
of his life sentence in a court of law. His own attorney deprived him of
that right.

Jonathan pleaded guilty, cooperated fully (which the recent CIA disclosure
acknowledges) and had a plea agreement in which the US government agreed not
to ask for a life sentence. Nevertheless, in breach of the agreement, the
government asked for a life sentence. Jonathan’s then-lawyer did nothing to
protest, allowing the judge to grant the government’s request and Jonathan
was sentenced to life in prison.

Jonathan’s lawyer then compounded the disaster by failing to file a one-page
notice of appeal within ten days. At that time, Jonathan was being held
incommunicado and he had no way of knowing that his attorney was discarding
his rights. Consequently, the attorney’s failure to file deprived my husband
forever of the right to any direct appellate review of his life sentence.

The only challenge to the sentence that remained available under American
law was a collateral attack called habeas corpus, which imposes a much
higher burden of proof on the prisoner than would a direct appeal. In 1990,
Jonathan obtained a different lawyer who filed a habeas corpus petition with
the court.

In 1992, the Court of Appeals, in a two-to-one decision, denied Jonathan’s
habeas corpus petition. Two justices ruled that he had not met the higher
burden of proof required as a result of his original lawyer’s foul-up. This
amounts to being told, “Tough luck, Buddy. Stay in jail for the rest of your
life because your original lawyer did not protect your right to appeal!” One
conscientious judge disagreed with the majority, writing that Jonathan’s
life sentence represented a “fundamental miscarriage of justice” requiring
relief. This dissenting judge said that the government’s breach of the plea
agreement was sufficient reason for Jonathan’s sentence to be vacated, even
under the higher standard that applies to habeas corpus review.

Elliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle
LLP became Jonathan Pollard’s pro bono attorneys in May 2000. An executive
summary on the Justice for Jonathan Pollard website provides an overview of
the legal initiatives undertaken by Lauer and Semmelman, between 2000 and
2006.

Despite the intensive efforts of Jonathan’s dynamic new legal team, the
American justice system denied their new habeas corpus petition which sought
to bring the case back to court on the ground of ineffective assistance by
the original lawyer. The courts denied the petition on the basis of the
statute of limitations, which had long since elapsed as Jonathan sat in
jail, unaware of these legal niceties.

When all legal remedies in the Court of Appeals had been exhausted, the
attorneys petitioned the US Supreme Court, which also refused to hear the
case. To this very day, the merits of Jonathan’s case have never been heard
in a US court of law. Unfortunately, nothing in the new CIA revelations
makes any difference to the Catch-22 rule that Jonathan has used up all of
his legal appeals.

Even if Caspar Weinberger himself were to return from the grave today,
offering to testify that the US government deliberately hijacked the legal
process which resulted in my husband’s life sentence, Jonathan would not be
permitted to bring the case back to court for Weinberger to testify. No more
legal appeals means exactly that.

Neither is parole a viable option. As Jonathan’s attorneys have repeatedly
explained: “Applying for parole is not an option for Mr. Pollard, because of
a severe impediment which has been unilaterally imposed by the Department of
Justice (DOJ). The DOJ has refused to allow Mr. Pollard’s current attorneys,
Eliot Lauer and Jacques Semmelman (both of whom have the appropriate Top
Secret/SCI-eligible security clearances), from seeing the documents that
were submitted to the sentencing judge prior to Mr. Pollard’s sentencing in
1987. Although Mr. Pollard’s lawyers have a clear ‘need to know,’ the DOJ
has refused to allow them to see their client’s entire court file, which is
partly under seal. Without access to that file, persons opposed to parole
know that they have free reign to say absolutely anything about Mr. Pollard
without any risk that they will be contradicted by the documents.”

Nor is there an “automatic release” date for Jonathan on November 21, 2015.

This too is a popular misconception. The 2015 date, which appears on the
Bureau of Prisons’ website, marks the 30th anniversary of Jonathan’s arrest.

It is not a release date, but a time at which Jonathan can request parole.

The US government will still be able to hide behind a veil of secrecy and
vigorously oppose parole at that time. The only option remaining is
presidential commutation to time served.

The newly declassified 1987 CIA damage assessment puts the lie to American
allegations that have been used for over a quarter of a century to justify
Jonathan’s continued incarceration. A second government damage assessment by
the Justice Department (the1987 Victim Impact Statement), now public record,
forever lays to rest the falsehood that Jonathan damaged US national
security. By any standard of fairness, the only conclusion that can be drawn
from the combined weight of both government damage assessments is that
Jonathan should not have to remain in prison a second longer.

While this travesty of justice may not have originated on President Barack
Obama’s watch, it has been fully revealed under his tenure. It is precisely
for cases like this, where the US justice system is unwilling or unable to
correct itself that the American Constitution grants the president virtually
unlimited powers of clemency. Justice requires that Obama use his powers of
executive clemency to release Jonathan Pollard now.

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