The availability of a federal terrorism prosecution means New York’s delusions won’t benefit accused subway gunman Frank James.
The availability of a federal terrorism prosecution means New York’s delusions won’t benefit accused subway gunman Frank James.
F ederal prosecutors have charged the man who allegedly shot ten people on a subway train in Brooklyn with carrying out a terrorist attack on a mass-transit system. Fortunately, no one was killed in the attack for which Frank R. James was arrested without incident on Wednesday afternoon in the East Village section of Manhattan. That’s about five miles from Sunset Park’s 36th Street station, where the shooting spree occurred.
Besides those who were struck by the 33 bullets wildly fired from the Glock pistol, which is registered to James, over a dozen other people were injured in the mayhem. Prosecutors say that an effort was made to obliterate the serial number on the gun, but it was insufficient, so the feds were able to determine that James legally purchased it in Ohio.
James, a 62-year-old black man, was charged with the single terrorism count in a ten-page complaint filed in Brooklyn federal court by federal prosecutors from the Eastern District of New York. The EDNY, which covers Brooklyn, Queens, Staten Island, and Long Island, is led by a Biden appointee, United States attorney Breon Pace. Interestingly, though James’s anti-white racism has been widely reported, there is no allusion to it in the Justice Department’s complaint; the charges intimate that the shooter’s motive was anger over New York City mayor Eric Adams’s asserted failure to deal with homelessness.
Rest assured that, while the infamous New York state bail-“reform” laws pushed through by lunatic progressive Democrats routinely result in the rapid release of dangerous criminals, the federal prosecution here means that James will be detained pending trial. Under U.S. penal law, accused terrorists and other violent criminals are routinely detained pretrial, even if it takes a year or more to get the case to trial.
You may be wondering why James’s case is federal, even though the shooting spree in a municipal subway system and vigorously investigated by the NYPD is patently a state crime. Indeed, the state’s prosecutorial jurisdiction is much clearer than the feds’, which relies on the legal construction that a mass-transit system is a facility in interstate commerce, and on the apparent fact that James traveled across state lines, apparently armed.
The explanation lies in another defendant-friendly quirk of New York law: its unusually generous double-jeopardy rules. These allow the feds to take any case they want away from state prosecutors. Turf wars over high-profile cases between ambitious prosecutors are notorious, but in New York they are mainly between the federal prosecutors — the EDNY and the SDNY (the Southern District has jurisdiction in Manhattan, the Bronx, and six counties north of the Bronx). New York law hamstrings the city’s district attorneys.
Under the U.S. Constitution, not only is double-jeopardy protection narrow; it is essentially non-existent in the federal/state successive prosecution situation (as opposed to the federal/federal situation where two different district U.S. attorney’s offices have jurisdiction).
The federal protection is narrow because the Fifth Amendment’s double-jeopardy clause only protects an accused from successive prosecutions for the same crime. So if, for example, a defendant is acquitted on a bank-robbery charge, the feds could theoretically indict him the next day for conspiracy to rob the bank. Even though it’s the same criminal transaction, the crimes of substantive bank robbery and conspiracy to rob a bank are different, so double jeopardy does not apply. (Understand, this is academic; the Justice Department is careful not to let its prosecutors push that envelope much.)
I describe the federal double-jeopardy protection as mostly non-existent in the federal/state situation because of the “dual sovereignty” doctrine. In our system, the federal government and the states are separate sovereigns; Fifth Amendment double jeopardy only safeguards an accused from multiple prosecutions for the same crime by the same sovereign. If you get acquitted for dealing drugs in New York state, the feds could indict you for the same charge in the same drug deal and you’d have no double-jeopardy claim.
In most states, dual sovereignty works reciprocally — i.e., prior federal prosecution does not protect accused from subsequent state prosecution on same charge. But New York is unusual in that it applies a very defendant-friendly equitable double-jeopardy rule.
In essence, this protects an accused from any subsequent New York prosecution if the federal government or another state has already prosecuted the accused on charges stemming from a “criminal transaction.” Ergo, if feds or the state of New Jersey have charged me with, say, a sale of cocaine, New York may not even charge me with conspiracy to possess that cocaine. Even though feds and New Jersey are different sovereigns from New York, and conspiracy to possess drugs is different crime from actually selling drugs, New York’s equitable double-jeopardy standard bars New York prosecutors from charging any crime that could have been charged in the transaction that the feds or New Jersey have already prosecuted.
The bottom line of all this is that, in New York, the feds win any turf battles that they want to win. Federal prosecutors can always “jeopardy out” state prosecutors. If the feds have charged some part of the transaction, state law ties the state prosecutors’ hands. You may recall that I pooh-poohed the New York district attorney’s Trump investigation; that was because, if there had been a meaty case to bring, the SDNY would have brought it — my former office does not let the Manhattan DA take the meaty cases.
Let’s stipulate that the federal government is way too big, that it takes on too many responsibilities that the states should handle, and that most crime should be handled at the state and local level. Withal, the federal intervention against James is a good development because of the era of progressive derangement we live in.
Federal prosecution will mean that none of New York’s insane bail and other criminal-justice “reform” laws will apply. The EDNY’s terrorism charges — both the one in the complaint filed Wednesday, and the many other charges that will surely follow when James is formally indicted in the weeks to come — will be very serious. It looks like they should be slam-dunks to prove. James, moreover, will never get bail. The federal-bail statute applies, so he will be detained based on the severity of the charges and his extensive prior criminal history.
Plus, the EDNY will have all the resources of the FBI and its Joint Terrorism Task Force (where it works with NYPD). Unlike in New York, where NYPD funding was slashed (and mostly restored after crime predictably spiked), there has been no serious effort to defund the FBI. Although the FBI is only about one-third the size of NYPD (about 13,000 agents versus about 36,000 cops), FBI budget is twice the size of NYPD’s (about $10.5 billion versus about $5.5 billion). (FBI has a much bigger support staff: about 24,000 to NYPD’s 19,000. That’s because police do a lot of the administrative tasks that in FBI are carried out by support staff, not agents.)
Obviously, it would be a great benefit to the city if New York got real about crime, rather than electing more progressive prosecutors who — unbelievable as this sounds — are philosophically anti-law enforcement. Fortunately, the availability of a federal terrorism prosecution means New York’s delusions won’t benefit accused subway gunman Frank James.