"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Friday, June 24, 2016

Is there any basis for federal criminal indictments against Dylann Roof interfering with the state prosecution? - Part II

In my previous two blogs, I described:

1) the standoff between the State Solicitor of the State of South Carolina and federal prosecutors where the State Solicitor asserted that the trial schedule in federal prosecution interferes and impedes the state prosecution in the murder trial of Dylann Roof, who shot to death 9 people and injured 3 in June of 2015 in an African-American church, and

2) general jurisdictional requirements for a legitimate federal criminal charge - and quoted a U.S. Supreme Court that invalidated a criminal conviction because it was based on a federal statute that the U.S. Congress had no power to enact.

I will now analyze each of the statutes that Dylann Roof was charged with violating from the point of view of their validity.

Dylann Roof was charged under the following criminal statutes:

  1. 18 U.S.C. 247(a)(2), (d)(1)
  2. 18 U.S.C. 249 (a)(1)
  3. 18 U.S.C. 924(c )(1)(A);
  4. 18 U.S.C. 924(c )(1)(C);
  5. 18 U.S.C. 924 (j)(1), charging:
  6.  Hate Crime Murder;
  • Murder to obstruct free exercise of religion and affecting interstate commerce;
  • Murder as defined in 18 U.S.C. 1111, with malice aforethought and using a firearm

18 U.S.C. 247(a)(2) and (d)(1)

Charging Dylann Roof under this section was giving him too much credit.

There is no evidence that Dylann Roof had an intent to interfere with anybody's religious belief.

Dylann Roof shot up the church because it was convenient for his crime-planning, because Dylann Roof knew that the church was a place where, at a certain time, a large number of African Americans will be present.

His crime was a hate crime, but the prosecution will have a really hard time proving that Roof had an intent to interfere with the exercise of religion, and especially proving that beyond the reasonable doubt.

Moreover, subsection (b) which is incorporated into subsection (a) clearly indicates that Dylann Roof was chargeable with this crime is "in interstate or foreign commerce" or "affects interstate or foreign commerce".

And there lays another big problem for the federal prosecution.  Worshiping activities cannot, by any stretch of imagination, be equated with interstate commerce, and, under U.S. v Lopez, claiming that committing a crime in a church somehow interferes with interstate commerce is too attenuated to provide for federal jurisdiction.

This statute, 18 U.S.C. 247, goes back, reportedly, to


"the Church Arsons Prevention Act, sponsored by Sens. Lauch Faircloth (R-NC) and Edward Kennedy (D-MA), and, in the House, by Reps.

Henry Hyde (R-IL) and John Conyers (D-MI), was originally designed solely to facilitate Federal investigations and prosecutions of these crimes by amending 18 U.S.C. 247, a statute enacted by Congress in 1988 to provide Federal jurisdiction for religious vandalism cases in which the destruction exceeds $10,000.

Hearings were held on both the impact of these crimes and the appropriate response of government.

Federal prosecutors testified that the statute's restrictive interstate commerce requirement and its relatively significant damages threshold had been obstacles to Federal prosecutions

Following the hearings, Congress found that "[t]he incidence of arson of places of religious worship has recently increased, especially in the context of places of religious worship that serve predominately African-American congregations."

Legislators appropriately recognized that the nation's response to the rash of arsons should be more ambitious and comprehensive than mere efforts to ensure swift and sure punishment for the perpetrators.

In a welcome example of bipartisanship, both the House and the Senate unanimously approved legislation which broadened existing Federal criminal jurisdiction and facilitated criminal prosecutions for attacks against houses of worship, increased penalties for these crimes, established a loan guarantee recovery fund for rebuilding, and authorized additional personnel for BATF, the FBI, Justice Department prosecutors, and the Justice Department's Community Relations Service to "investigate, prevent, and respond" to these incidents. "


So, criminal federal jurisdiction for 18 U.S.C. 247 was invoked because something MORE than efficient prosecution of perpetrators was needed.

What MORE than efficient prosecution of perpetrators in a criminal case is needed?

And how does this "more" justify invocation of federal jurisdiction over a purely state crime, committed on a state territory, in a church?

But, that pronouncement, in and of itself, indicated that the statute is unconstitutional.

States already have, under the 10th Amendment, exclusive police power over crimes committed in their territories, and exercise that power for the efficient prosecution and punishment of perpetrators of such offenses.

That was the power recognized by the U.S. Supreme Court in U.S. v Lopez in 1995 when the U.S. Supreme Court affirmed dismissal of a conviction based on the Gun-Free School Zones Act of 1990.

In fact, as Dylann Roof's case shows, the State of South Carolina's efforts to prosecute Dylann Roof is impeded by federal prosecution, where the defendant is trying to use the federal prosecution (based, likely, on unconstitutional statute enacted, in its criminal part at least, without any congressional authority) to delay and/or impede state prosecution which hurts, not helps the victims and hurts, not helps, the necessary prosecution of a HEINOUS crime - murder of 9 people and injury to three people.

Same as schools were held in U.S. v Lopez have nothing to do with interstate commerce, churches also have nothing to do with interstate commerce, or with commerce of any kind.

In fact, the Christian religion asserts that the church does not have ANYTHING to do with ANY commerce - where Jesus Christ has actually cleansed the Temple of merchants and money-changers.

Worship is a spiritual activity which has nothing to do with commerce, interstate, foreign or otherwise.

So, it is likely that counts 13 to 21 and 22 to 24 in U.S. v Roof (see table describing all counts here) are jurisdictionally invalid, and the federal government is wasting taxpayer money to prosecute Roof where the State of South Carolina is already prosecuting him for common murder, which is much easier to prove.

For the analysis of other statutes used as a basis of the federal indictment against Dylann Roof, stay tuned.

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