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 lasses
at the University of Houston-Downtown began last Wednesday, while
writing instructor Vanessa Leggett remained confined in a federal
detention center for refusing to comply with an abusive FBI subpoena.
While there's been a lot of attention about whether Leggett, who's
writing a book, qualifies as a "journalist" and whether
journalists should have immunity against grand-jury subpoenas, nobody
is talking about how Leggett's case got into federal court in the
first place — and how the case is another example of an out-of-control
FBI.
Leggett's scholarly
interest in domestic homicide led her to attend meetings of the
academic organization known as the Homicide Research Working Group.
In that capacity, she co-edits books containing the papers and discussions
at an annual meeting. One of her fellow co-editors is one of us
(Paul Blackman). Unfortunately, Leggett's confinement in federal
jail has rather seriously impaired her ability to edit computer
documents.
Ironically,
even though Leggett was co-editor (along with Blackman and two others)
of a book which has already been published by the FBI Academy,
the Fifth Circuit Court of Appeals, in a recent decision keeping
Leggett in jail, sneered that she wasn't a real journalist anyway,
because she doesn't have a contract for her forthcoming book. (Leggett's
published volume is The
Varieties of Homicide and Its Research: Proceedings of the 1999
Meeting of the Homicide Research Working Group, published
in 2000 by the FBI Academy.)
Back in 1997,
Doris Angleton, the wife of wealthy former bookie Robert Angleton,
was found murdered. Prosecutors believed Robert hired his brother
Roger to kill Doris to prevent her getting millions in a divorce
settlement. The case attracted the interest of Vanessa Leggett,
a criminologist specializing in domestic homicide.
She started
researching the Angleton murder case, eventually deciding to write
a book about it. She interviewed Roger, in jail, the day before
he was found hanged in his jail cell, an apparent suicide. He left
a note admitting his own culpability but exonerating his brother
Robert. The note claimed that the evidence against Robert has been
manufactured so that Roger could blackmail Robert.
Nevertheless,
Robert Angleton was prosecuted for homicide in Texas state court.
Prior to Robert's trial, Leggett reluctantly turned over the local
authorities the information she had from Roger; this evidence suggested
that Robert had, indeed, asked his Roger to murder Doris. Neither
Leggett nor her evidence was used in the trial. Robert Angleton
was acquitted, as a result of a prosecution that embarrassed the
Houston Police Department office. It turns out that Angleton was
an informant for the Houston police and for the FBI.
Politically
ambitious prosecutor Chuck Rosenthal was dissatisfied with the result.
His wife Cindy is a Houston FBI agent and the feds started investigating
Angleton.
Local authorities
gave some of Leggett's materials to a federal grand jury, but her
problems began late last year when she refused to become a paid
informant for the FBI. She also refused to let them decide when
she could publish her book. The FBI responded with a subpoena, which
Cindy Rosenthal personally served on Vanessa Leggett. The subpoena
demanded that she turn over to the FBI every note she had had about
her book in progress — and all copies of the notes.
In other words, she was supposed to surrender control of the book
to the FBI, with her ability to continue writing dependent on whether
the FBI ever decided to give her the notes back. Now, she's in a
federal detention center for contempt of court because she defied
the subpoena.
When the case
was heard by the Fifth Circuit Court of Appeals recently, the government
finally backed away from its demand for all of her copies of everything.
For the first ten days that Leggett spent in federal jail, her husband
was not allowed to visit her (ostensibly because the government
had not gotten around to processing some paperwork).
Although neither
the U.S. Code nor Texas have a specific immunity statute for journalists,
the Fifth Circuit acknowledged that subpoenas to journalists must
be quashed when there is abuse or harassment. Not that the Fifth
Circuit could see any evidence that the FBI was retaliating against
Leggett for refusing to become an informant and to let the FBI take
control of her book.
The news media
are focusing on the issues of her right to refuse to serve as the
government's "lapdog" (to use her attorney's word). What's
missing in the debate, however, is the issue of why the federal
government has a grand jury investigating a local murder, where
the only surviving suspect has been acquitted.
The tradition
in this country is that if the government thinks you committed a
crime, it gets one chance to try you for it. If the government wins
a conviction, fine. If you're acquitted, you're forever protected
from being tried again for the same offense. The Fifth Amendment
of the United States Constitution states: "nor shall any person
be subject for the same offence to be twice put in jeopardy of life
or limb." The Fifth Amendment was not creating a novel principle,
but instead affirming centuries of English common law, as articulated
by Blackstone and Coke.
That constitutional
protection from double jeopardy has always had a few commonsense
limitations: If you're convicted, but successfully appeal on grounds
of procedural error, you can be tried again. A hung jury —
no decision — allows the government another go at you.
But one of
the legacies of America's failed experiment with alcohol prohibition
was Supreme Court doctrine creating a massive loophole to the Constitutional
prohibition of Double Jeopardy. A man in Washington State was convicted
of operating a still, and paid a fine of $250 in state court. The
federal government then decided to prosecute him for violating the
National Prohibition Act.
In the 1922
case United
States
v. Lanza Chief Justice William Howard Taft (author of
the infamous — and later over-ruled — majority opinion
in Olmstead
upholding warrantless wiretapping to enforce prohibition) wrote
that the double jeopardy clause did not bar the federal government
from prosecuting someone for a crime which had already been prosecuted
under state law:
"We have
here two sovereignties, deriving power from different sources, capable
of dealing with the same subject matter within the same territory.
Each may, without interference by the other, enact laws to secure
prohibition, with the limitation that no legislation can give validity
to acts prohibited by the amendment. Each government in determining
what shall be an offense against its peace and dignity is exercising
its own sovereignty, not that of the other."
This was judicial nullification of the constitution, pure and simple.
As University of Utah law professor Paul Cassell explains, the Fifth
Amendment incorporated the full strength of the English common-law
prohibition on double jeopardy. Cassell cites the case of Rex
v. Hutchinson, in England attempted to prosecute Hutchinson
for murder after he had had been acquitted of that charge in Portugal.
The prosecution was thrown out of court.
Blackstone,
the great expositor of the common law, explained when a man could
raise the defense of autrefois acquit ("formerly acquitted"):
"when a man is once fairly found not guilty upon any indictment,
or other prosecution, before any court having competent jurisdiction
of the offense, he may plead such acquittal in bar of any subsequent
accusation for the same crime." (4 William Blackstone, Commentaries
*335, emphasis added).
At least in
the prohibition cases, the federal government was enforcing a genuine
constitutional power, which had been specifically granted by the
18th Amendment.
The federal
government is granted only certain, enumerated powers by the Constitution,
and a general police power is definitely not among them. But starting
with the Gun Control Act of 1968, Congress began to usurp general
criminal law power, by claiming that almost every form of intrastate
crime had some kind of economic effect, and was therefore subject
to Congress's legitimate power "to regulate commerce…among
the several states."
In United
States
v. Morrison (2000) and United States v. Lopez
(1995), a sharply-divided Supreme Court finally began to reject
the legal fiction that the interstate commerce power gives Congress
infinite power of local matter of criminal law. Even so, a vast
body of federal criminal statutes, covering almost every possible
state-level felony, remain on the books, even though the federal
"laws" are usurpations of power which was never granted
to the federal government.
And thus, Robert
Angleton — having been conclusively acquitted by a Texas jury
— is being investigated again, under federal charges. Meeting
in secret, the grand jury is rumored to looking at federal tax evasion
(a legitimate issue for a federal grand jury), money laundering
(an anti-privacy law created as a result of the modern failed experiment
with drug prohibition), and gambling (a victimless crime). But the
real purpose the grand jury is apparently to try to hang some federal
charge on Angleton related to the death of his wife.
Notwithstanding
the sophistries of Chief Justice Taft, a prosecution (and a grand-jury
investigation to prepare the way for a prosecution) following an
acquittal is an obvious violation of the Constitutional mandate:
"nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb."
Attorney General
Ashcroft has come under fire, because Department of Justice guidelines
require his personal approval for issuing a subpoena to a journalist,
and it's not clear whether he did approve the Leggett subpoena.
It may be that the FBI, having determined that neither writing a
book nor editing a book published by the FBI Academy makes a person
into a real journalist, and thus the FBI never bothered to ask Ashcroft
for permission. The Leggett case is one more example of abuse by
FBI, perhaps the most out-of-control agency in the federal government.
Is Robert Angleton
guilty of murder? We don't know for sure, but the United States
Constitution says that the last word on that matter belongs to the
Texas jury which acquitted him. We do know that Vanessa Leggett,
a writer who has done absolutely nothing wrong, may spend the next
18 months in a federal jail because she wouldn't become an informant
and wouldn't let the FBI control her book.
Attorney General
Ashcroft, make the Department of Justice once more worthy of its
name. Free Vanessa Leggett.
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