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Loughner Indictment: Legally Suspect and Tactically Foolish



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Dan, I think the Justice Department’s strategy in the Loughner case is legally suspect (to say the least) and tactically foolish. There are federal charges that apply to the shootings of the federal officials. That’s the federal case here. To the contrary, shooting people who are not federal officials in a mall is not a federal offense — such shootings are state crimes, for which Arizona provides very severe sentences, including death if death has resulted.

Justice is hanging its jurisdictional hat on the “federally protected activity” aspect of the civil rights laws. The purpose of this provision is to give the feds a vehicle to go after people who purposely try to stop someone from enjoying the benefits of a federal program. So if some misguided soul tried to vent his disagreement with, say, the “cash for clunkers” program by standing outside the car dealership and intimidating would be participants, he would be interfering with a federally protected activity even though this sort of menacing, ordinarily, would be a state offense, not a federal offense. The idea is to protect obvious federal interests. The idea is not to create federal cases whenever the commission of a state crime has some incidental, attenuated federal consequence.

We know this not only because the relevant statute (section 245 of the federal penal code) homes in on clear federal interests — speaking of interference with a federal “benefit, service, privilege, facility, or activity” (meaning that “activity” must be understood not as any old activity but in the vein or benefit, service, etc.). We also know it because the statute has a high scienter requirement — calling for the government to prove beyond a reasonable doubt that the defendant willfully interfered with his victim because the victim was trying to enjoy some federal benefit, service, privilege, facility, activity, etc.

While it is a truism that “ignorance of the law is no excuse,” that becomes nearly untrue when Congress prescribes a mental element of willfulness. The government then has to prove that the defendant acted maliciously — fully aware that he was violating the law in question. I don’t mean fully aware that he was shooting people — as I said, there are narrow laws dealing with that. I mean fully aware that he was shooting people for the specific purpose of interfering with their enjoyment of the federal activity of meeting with a member of Congress.

That’s a stretch. If DOJ’s theory is sound, the question becomes: is there any activity that cannot be spun as federally protected — especially given Leviathan’s ever expanding girth? If I am out enjoying a beautiful day when I get robbed, can it be said that my assailant intended to frustrate my enjoyment of the Clean Air Act? What Justice is doing here will be seen as a dramatic federal intrusion into the realm of state law enforcement. Many people who want to be supportive of the prosecution of this heinous series of crimes will be put off by it.

Moreover, Justice is making a foolish tactical mistake by over-complicating what should be straightforward shooting crimes that can be tried perfectly well in state court. Let’s set aside “federal activity” for a moment. Any jury in the Loughner case was already guaranteed to face difficult questions about criminal intent because of the defendant’s apparent mental instability.If you’re the prosecutor, why would you want to force the jury to grapple, in addition, with the complexity of whether the event in question was a “federal activity”? And why give defense lawyers such an advantage? They already have a lot to work with on the issue of Loughner’s sanity, no small thanks to Sheriff Dupnik’s reckless commentary. Inviting them to argue that Loughner was too disturbed to have willfully interfered with anyone’s federal rights can only bolster their claim that Loughner was similarly unable to form the intent necessary to commit murder and attempted murder. If I’m Loughner’s lawyer tonight, I’m thinking: we’ve got a real shot here.

The worst case I ever had to prosecute involved a New York City undercover detective shot by drug dealers who decided to rob him rather than sell him cocaine. Miraculously, the detective survived, but his injuries were so severe he blacked out and, coupled with the fact that he’d been shot in the back by a hooded gunmen (who’d first made him beg for his life), he could not identify the shooter. The shooter was acquitted at his trial in New York state court. The police and DEA then asked us to take the case federally.

Under the “dual sovereignty doctrine,” the usual double jeopardy rule does not bar a federal prosecution after a state verdict. The feds invoke dual sovereignty very sparingly — the general guideline is that the authorities should get one chance to convict someone for a single crime. But exceptions are made in heinous cases, like the attempted murder of a cop carried out in an exceptionally sadistic manner.

So we tried the shooter and his confederates. It was very painful for everyone involved: the trial took nine weeks and the jury was out nine days before hanging, 11-1 in favor of conviction. The main problem was an implacable juror who would not reason with the other jurors. But those other jurors told me afterwards that one of the things that really bothered them was: Why, in an attempted murder case, did they have to wrestle with whether this small-time street drug gang in the Bronx was somehow engaging in activity that affected interstate or foreign commerce.

The answer was simple: it was our jurisdictional hook, the only way we could make a state shooting of a city cop a federal crime. Absent that, we had no case. We weren’t crazy about being in that situation, but what we were doing was not novel. It was a tried and true commerce clause theory that cocaine is not grown in New York — it had to have crossed state lines (really, international borders) to get to the Bronx, even if our defendants were several rungs down the ladder from that part of the biz. But the jurors were troubled by it. And these were great jurors — thoughtful and very much in favor of giving the bad guys their comeuppance as long as the evidence was there. Still, they didn’t understand what on earth interstate commerce had to do with the shooting, and they were annoyed, given the tough proof issues involved in the case, that they had to take time to wrestle with something so seemingly irrelevant.

I’m not saying it can’t work. We convicted the shooter on a retrial. My point, however, is that we had trouble even though we were working on a proven theory of federal jurisdiction, and we had to do what we did because we were the last resort in a very tough case. By contrast, the Justice Department is rolling the dice on a novel and dubious theory of federal jurisdiction, and doing it under circumstances where there is no reason the state offenses cannot be successfully tried in state court. 

They are playing with fire, unnecessarily.



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