Weinberger Gave Judge Wrong Information Resulting in Pollard’s Life Sentence

Pollard’s lawyers negotiated a plea agreement with the government: he agreed to plead guilty and gave up his right to a jury trial; in return, the prosecution agreed not to seek a life sentence. By the precedents set by other cases of espionage on behalf of allies, Pollard expected a much lighter sentence.

Instead, the Secretary of Defense, Caspar Weinberger, presented a memo to the court at the last minute accusing Pollard of doing massive damage to the U.S. The prosecution then reneged on its agreement and the judge sentenced Pollard to life imprisonment. Pollard’s lawyers were able to see the document for a few minutes, but were not given the opportunity to respond. The document has been released in a highly redacted form, so it is still not possible to know precisely what was in it.

Part of the content was probably assertions that information from Pollard found its way to the Soviet Union, exposing several American agents who were then murdered by the KGB. As I explained Friday, it appears that the agents were actually betrayed either by double agent Aldrich Ames or another ‘mole’ in the CIA who was being protected by Ames. Hershel Shanks explains,

In 1983 Ames was made chief of the CIA’s Soviet counterintelligence branch in the Soviet-East European Division. Ames was recruited by the Russians in 1984. Ames would, of course, have every reason to deflect suspicion from himself and blame someone else for what was happening in the Moscow bureau – and Ames was in a position to do so.

The information Pollard passed to Israel about Russian weaponry in Arab states was obtained, at least in part, from American agents in Russia.

In the intelligence community it was well known that in the past KGB moles had penetrated Israeli intelligence. Perhaps a still-undiscovered Soviet mole inside Israeli intelligence passed the secrets to the Soviets that Pollard had passed to Israel.

Pollard was not sentenced until March 1987. Ames was still in charge of Soviet counter-intelligence within the CIA. Based on what Ames told him, Weinberger drafted his affidavit to the court [my emphasis].

But the government apparently provided additional “facts” to the judge. When Pollard attempted (unsuccessfully) to withdraw his guilty plea in 1990, attorney Alan Dershowitz presented the following affidavit to the court:

1. My name is ALAN M. DERSHOWITZ. I am a Professor of Law at Harvard Law School. I serve as one of the lawyers for Jonathan J. Pollard. During the 1963 – 1964 Supreme Court term, I was a law clerk to Mr. Justice Arthur Goldberg. Between that time and his death, I remained a close friend and associate of Mr. Justice Goldberg. We worked together on many projects, spoke and met frequently, and jointly authored articles and proposals.
2. Following the publication of the a letter to the Jerusalem Post, on September 12, 1989, I spoke to Justice Goldberg on the telephone about the sentence imposed on Jonathan Pollard. I promised to send him some comparative sentencing data. Justice Goldberg promised to make some inquiries on his own regarding the sentence.
3. Subsequent to this conversation, Justice Goldberg called me to tell me that he had personally met with Judge Aubrey Robinson and discussed the Pollard sentence with him. Justice Goldberg told me that Judge Robinson had told him that he (Judge Robinson) had been provided by the government with evidence that Jonathan Pollard had given Israel American satellite photographs proving that Israel had tested Jericho missiles in South Africa and had provided South Africa with missile and nuclear technology. Justice Goldberg told me further that Judge Robinson was particularly outraged by the Israel-South Africa connection and Pollard’s role in providing Israel with evidence that the United States had satellite evidence of it. Justice Goldberg told me that he understood why Judge Robinson, as a Black man, would be particularly sensitive to this evidence. Justice Goldberg told me that Judge Robinson had told him that Pollard-South African connection had weighed heavily in his (Judge Robinson’s) decision to impose a life sentence. I told Justice Goldberg that I did not believe that Jonathan Pollard had provided Israel with any such satellite information, but that I would check.
4. I immediately called Hamilton Fox and Nathan Dershowitz [Pollard’s lawyers] and told them of my conversation with Justice Goldberg. Fox said he would check with Jonathan Pollard and his earlier attorney, Richard A. Hibey concerning the truth or falsity of the evidence provided to Judge Robinson.
5. After being assured by Fox that there was no truth whatsoever in the claim that Jonathan Pollard had provided satellite photographs or information to Israel about South Africa, Jericho missiles or nuclear technology, I wrote Justice Goldberg the attached letter (Attachment A).
6. On January 15, 1990 I spoke with Justice Goldberg on the phone. He was quite upset at the content of my letter and promised to get to the bottom of it. He told me that he would phone Attorney General Thornburgh for a meeting to discuss this issue and the sentence. He told me that if my facts were correct, then the Justice Department had improperly “pandered” (that was his precise word) to Judge Robinson’s racial sensitivities as a Black judge by providing him with false, inflammatory, ex parte information.
7. On Friday morning January 19, 1990, I learned from Robert Goldberg that his father, Justice Arthur Goldberg, had died in his sleep during the night.

Was there a “South African connection?” It seems unlikely, considering the kind of information Israel sought from Pollard — information about its Arab enemies and their Soviet supporters.

But more important, even if there were such a connection, Judge Robinson’s outrage that Israel may have aided the hated South African regime is hardly a legitimate reason to doom Pollard to life in prison! After all, even if true, this wasn’t Pollard’s doing.

If indeed a combination of false accusations and an inappropriate emotional reaction by the judge resulted in Pollard’s life sentence, then a miscarriage of justice occurred.

The administration should either release Pollard or explain convincingly why he should remain in prison.

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