Thursday, April 19, 2007

Jonathan Pollard and the American Criminal Justice System

First, before reading the rest of this post, I recommend reading the following article which I believe is the most comprehensive and objective essay about Jonathan Pollard's situation to date:

It is now five years old, but little has changed since its publication.

Now, for the meat of this post:

Periodically, Jewish organizations make some noise about getting Jonathan Pollard released from prison. Here is a recent example:

I've alread posted as to why that won't happen without Pollard himself taking some action:

(UPDATE: The above post is based on my inaccurate understanding. See my next post for a correction.)

What I want to discuss is the alleged unfairness of Pollard's treatment. The fact is, he is indeed being treated unfairly in that the fact that his attorney made a serious screwup that has cost Pollard any chance for a review of his original conviction, ever. That is indeed unjust.

But in that, Pollard is being treated no better and no worse than anyone else in the American criminal justice system. Overworked public defenders can easily make the same kind of mistake that cost Pollard his right to appeal -- and there is utterly no interest from any part of the political spectrum to change that. The conservatives want to prove how tough they are on criminals, and the liberals are so terrified about being called soft on crime they are cowed into submission. As a result, people receive poor legal representation, and thanks to an almost 40 year packing of courts at all levels with law and order judges, the American legal system is now better at producing order than justice.

President Bush has continued this trend, which brings me to the latest outrage which has been getting shockingly little press: The Bush adminstration wants to try former AIPAC lobbyists Steve Rosen and Keith Weissman IN SECRET! The problem with that is that it directly violates the sixth amendment to the US Constitution, which reads:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. "

It doesn't say, "public trial unless the government doesn't want to". It is pretty absolute, as it should be.

This is even worse than the miscarraige of justice in Jonathan Pollard's case. At least he had a chance for a public trial, which he waived at the (bad?) advise of his attorney in his plea bargain. Where is the National Council of Young Israel in the Rosen/Weissman case? Only one Jewish organization, Rabbi Avi Weiss's Amcha-Coalition for Jewish Concerns, is concerned enough about the case to take any action:

You don't have to agree with the somewhat inflammatory accusations of anti-Semitism to believe that it is absolutely outrageous that the United States government is attempting to deny two United States citizens their basic constitutional rights.

I support parole or clemency for Jonathan Pollard, and I also urge all Jews to support the right of Steve Rosen and Keith Weissman to a fair trial. It is important for the public to know the evidence against them (if there is any).

And it is important that we finally start to turn around the curtailment of civil liberties in the United States. It will be an uphill struggle, as voters have valued "law and order" far more than justice over the past four decades. But it is precisely that lack of justice that keeps people like Jonathan Pollard from having any ability to appeal their convictions. And I don't want to have to see a National Council of Young Israel campaign to free Rosen and Weissman a decade or two from now.


Blogger Tzipporah said...

CH, while I agree about the appalling trends in due process, I'm not sure that Pollard is being treated unjustly. Yes, his attorney should have acted in his interests, but given his (allegedly) very severe violations of national security, if he really felt he was in the right, he should have been prepared to face the consequences. You can't say you broke the law, and you don't regret it, but by the way, I don't think I should have to go to jail.

12:46 PM  
Blogger YMedad said...

I have been with this case since almost the beginning and between 1987-1994, coordinated the Knesset Lobby on Jay's behalf and have visited him in both his prisons. Please read Stephen Williams' opinion to understand that it was the other two judges, Jews, who sealed his legal fate then, some 15 years ago.

1:30 PM  
Blogger - Typo Lad said...


The problem is more complex than that. Pollard was caught and tried not just for his own crimes, but those of Ames and another Mole whose name escaped me. in light of their discovery, his case really should be revisited.

3:17 PM  
Anonymous NLG said...

CH, there are problems with this post:

First, with respect to the AIPAC case, the judge has already soundly taken the government to task for their outrageous position, and said the court has no intention whatsoever of imposing that level of secrecy on the trial.

Second, in the prior post of yours that you link to at the top of this one, you imply that somehow the President is powerless to grant clemency to someone unless that person first presents a petition. Untrue -- the President's Constitutional powers in this regard are not constained by rules and regs. He can pardon or grant clemency to anyone at any time. Cf. Ford's pardon of Nixon.

Third, I strongly suggest you read the excellent summary of Mr. Pollard's legal travails at: This document was prepared by his current attorneys, and it sets forth reams of governmental misconduct that have so far prevented Mr. Pollard from even having the ability to properly frame a petition for clemency.

Last, as to those who say, "too bad, so sad," with respect to the more than 22 years this man has already served in prison, many of them in solitary confinement, I submit this is no ordinary case of injustice. Unlike virtually everyone else in the US prison system, in this case the United States government, without notice or providing any reasons, violated the terms of Mr. Pollard's plea agreement, in which they had promised him to propose to the court a sentence far short of a life term. The circumstances of that egregious miscarriage of justice simply do not compare with any ordinary ineffective assistance of counsel case.

Throughout the history of this case, the United States has acted entirely dishonestly and dishonarably. Mr. Pollard never cried about having to go to prison; he's admitted he was wrong, and has expressed considerable remorse. His complaint now is a completely valid one -- he has paid his debt to society, and continues to remain behind bars only because our government has chosen to act in an entirely reprehensible and unprecedented manner.

4:43 PM  
Blogger Charlie Hall said...

"court has no intention whatsoever of imposing that level of secrecy on the trial."

Good thing! There are still a few judges who will stand up to the Bush administration. Of course, the Justice Department could appeal this decision and with the current makeup of the Supreme Court, who knows?

"the President's Constitutional powers in this regard are not constained by rules and regs"

It *is* true that the President could change the rules. It is not so clear that he can simply override them in a particular case. There was a recent case of a State Senator in New York who was granted early release by the board that clearly had the power to do that. But because the committee did not follow its rules, the Senator was actually forced back to jail! This could conceivably happen to Pollard if the rules aren't followed because a court could say that the pardon isn't a pardon if the rules were not followed. Better not to go there!

"Ford's pardon of Nixon"

That occurred in 1974; the regulations were enacted in 1993.

In any case, what harm is there for him to apply?

'reams of governmental misconduct '

And the major point of my post is that our "Law and Order" judicial system doesn't care about governmental misconduct. Judge Williams is a very rare voice -- and note that today he has semi-retired "senior" status. President Bush has been packing the bench with judges who will never question government abuses of power.

'properly frame a petition for clemency.'

Mr. Pollard knows exactly what he gave Rafi Eitan and should be able to tell his attorneys. (In fact, those are the only two people who really know what he did.) The arguments in the link are very unconvincing regarding a clemency petition, and irrelevant for a parole petition. Mr. Pollard should apply for both. (He is much more likely to get parole because it requires no Presidential action.)

"our government has chosen to act in an entirely reprehensible and unprecedented manner."

Reprehensible, yes. Unprecedented, no. As a particularly egregious example, the state of Texas actually EXECUTED three Mexican citizens who had been denied their right to contact the Mexican Consulate -- a right they have under international treaties that have the force of law in the US. At least Mr. Pollard is still alive and can file the application for parole or clemency. Another egregious example is the limit on the amount of time that someone convicted of a crime can present newly discovered evidence that shows that he/she did not do it. In virginia, that limit used to be 21 days! A former Virginia Attorney General once said, "Evidence of innocence is irrelevant" -- and that was in a death penalty case!

But that is the attitude of most politicians in America.

7:55 PM  
Blogger Charlie Hall said...

See next post for a correction.

9:49 PM  
Anonymous SM said...

I think that the only good argument I've ever heard on the Pollard case is that 22 years is enough.

I don't know enough about the particular issues in this case to comment on the specifics but I have two general comments:

First, as a UK lawyer I am a member of Amicus which offers US citizens, for free, top grade legal representation in death row appeals. It is a pretty sad comment that the only first world country where such assistance is required is the US and it suggests that the prioritising of a politically convenient process and result over an attempt to do true justice is alive and kicking (unlike, ironically and sadly, many of the Defendants thus sacrificed).

I do understand that this can look like patronising liberal interfernce. My response to that is that it only seems that way to those with the luxury of race and money on their side - the overwhelming number of people I come into contact with are black and poor.

Secondly, the comment by nlg that Pollard's case does not compare with 'any ordinary ineffective assistance of counsel case' strikes me a supremely sad. to have a category of 'ordinary ineffective assistance of counsel case' is an indictment of a justice system. To suggest that Pollard should be treated differently is to condemn those with poor counsel to whatever fate awaits them with equanimity. Neither proposition assists justice and seems irreconcilable with the mitzvah to pursue it.

3:52 AM  
Anonymous Anonymous said...

How come you didnt mention that Pollard's lawyer Richard Hibey now is the chief legal counsel to the PA and PLO in the US and defends them in 8 cases brought by US jewish terrorism victims?

3:23 AM  
Blogger prof said...

you can put information on your blog on page'info'or'region' of

11:45 AM  

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