"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 #DylannRoof interfering with the state prosecution? - Part III

I continue to analyze jurisdictional basis for the federal indictment of Dylann Roof for the June 2015 shooting deaths of 9 people in an African-American church in South Carolina and injuries to 3 more people.

Counts 1 to 9 and 10 to 12 charge violation of 18 U.S.C. 249(a)(1).

18 U.S.C. 249 (a)(1) is part of Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 (“HCPA”), 18 U.S.C. § 249 and provides:

18 U.S.C. 249(b) requires that no offenses committed under 18 U.S.C. 249 are prosecutable without this certification:

Roof's federal indictment contains a certification by U.S. Attorney General Loretta Lynch pursuant to 18 U.S.C. 249(b)(1)(A) and (D), see U.S. v Roof, 2:15-cr-00472-RMG, Dkt. 2 of 07/22/2015, page 14:


I, Loretta E. Lynch, hereby certify that in my judgment, prosecution by the United States of Dylann Roof for violating Title 18, United States Code, paragraph 249(a)91), is in the public interest and is necessary to secure substantial justice and the state lacks jurisdiction to bring a hate crime prosecution".

Yet, certification under subsection (b)(D) is invalid as unconstitutional: 

"a prosecution by the United States is in the public interest and necessary to secure substantial justice" has nothing to do with Congressional power and does not overcome exclusive jurisdiction of the State of South Carolina under its exclusive police powers granted to the states to prosecute crimes committed within their own territories under the 10th Amendment.

Finally, Subsection (b)(A) is not applicable, because the State of South Carolina does have jurisdiction over the murders and attempted murders, and is vigorously prosecuting Dylann Roof at present.

It is true that, reportedly, South Carolina does not have enhancement of penalties for hate crimes:

"[South Carolina] has no specific hate-crime legislation on the books. ... unlike nearly every other state, South Carolina doesn’t specify tougher sentences or widen the group of people who can be victims of hate crimes."

Yet, in this particular case that it irrelevant and does not justify a costly parallel federal prosecution, and especially one that is, according to the State Solicitor, interfering with the state prosecution.

Dylann Roof has only one life.

He is charged with 9 murders and 3 attempted murders in the State of South Carolina.

Punishment for murder in the State of South Carolina is death.

How much more "enhanced" can that be if what Dylann Roof did would be classified as hate crime.

Dylann Roof racism and the fact that he killed specifically and only African Americans, at their place of worship, can be offered in the state trial as proof of his motive and intent.

Dylann Roof has only one life to pay for his crimes, and the alternative is also the same in both state and federal courts - life in prison.

So, the State of South Carolina absolutely has jurisdiction to prosecute Dylann Roof for a racially motivated crime of murder, and asserting it in a separate court as a hate crime will not bring a higher penalty, it is simply a waste of time, effort, money and an additional torture of the witnesses.

The jury pool alone is going to be, reportedly, 1200 to 1500 people.

All in all, prosecution under 18 U.S.C. 249 appears to be jurisdictionally invalid:

1) because a crime committed with a firearm or a "dangerous weapon" does not, in and of itself, justify invocation of federal jurisdiction in what is already prosecuted as a state crime;

2) because there is no required statutory certification under 18 U.S.C. 249 (b), and such a certification would not be possible or constitutional.

In other words, Counts 1 through 9 and 10 through 12 of the federal indictment are also a waste of taxpayers' money, time of all professionals involved in the prosecution or defense, and constitutes and unnecessary torture of the surviving witnesses of the crime.

As I said previously, the State of South Carolina is vigorously prosecuting the murders and attempted murders, and there is absolutely no basis for the feds to step in and do a parallel (and interfering) investigation and prosecution.

The problem is also that, once Dylann Roof is convicted in federal court, the State of South Carolina might be precluded by the Double Jeopardy Clause from trying him, basically, for the same crimes of murders and attempted murders.

So, the feds in this case appear to be filibustering a state prosecution conducted under the state's exclusive police power protected by the 10th Amendment.

As legal scholars have been warning since 2013, federal hate crimes are unconstitutional, and that "the Court should decide the legitimacy of these laws before a more highly publicized and politicized case comes along and makes that task even harder".

The U.S. Court of Appeals for the 10th Circuit already rejected a challenge to constitutionality of 18 U.S.C. 249(a)(1) asserting that the U.S. Congress had authority to enact that statute in the 90s of the 20th century under the 13th amendment - to eradicate consequences of slavery that was abolished 130 years prior:

"Congress has power under the Thirteenth Amendment to enact § 249(a)(1).

Although the Thirteenth Amendment by its terms applies to slavery and involuntary servitude, Supreme Court precedent confirms Congress's authority to legislate against slavery's “badges and incidents” as well.

In particular, the Supreme Court held in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)—a case permitting a federal private right of action against private individuals for housing discrimination—that Congress itself has power to determine those badges and incidents.

Section 249(a)(1) rests on the notion that a violent attack on an individual because of his or her race is a badge or incident of slavery.

Congress reached this conclusion by accounting for the meaning of “race” when the Thirteenth Amendment was adopted, the state of mind of the attacker, and the attack itself. By so doing, and under the authority of Jones, we conclude Congress rationally determined that racially motivated violence is a badge or incident of slavery against which it may legislate through its power to enforce the Thirteenth Amendment."

As it was argued in the amicus brief of the CATO Institute in the case U.S. v Hatch,

Moreover, it was argued in the amicus brief that 18 U.S.C. 249 was enacted in answer to the pressure from lobbying civil rights groups, even though there was no reason to believe that state prosecutions of hate crimes were ineffective.

In Dylann Roof's case, these lobbying efforts are coming back to bite everybody involved:

1) Dylann Roof who is exposed to the threat of double jeopardy;
2) taxpayers who have to pay for two enormously expensive trials, with double the enormously expensive appeal process;
3) the State of South Carolina whose exclusive authority to prosecute crimes committed in its territory is usurped by the feds without reasonable grounds, and, last but absolutely not least,
4) the witnesses who have to be tortured through two trials rather than one.

The State of South Carolina can handle the prosecution for murders and attempted murders just fine, as do other states.

The feds should prosecute the uniquely federal crimes, pertaining to interstate commerce and international treaties.

This country can go bankrupt allowing double-dipping prosecutions which impeded and interfere with one another.

For the analysis of the remaining counts of the federal indictment against Dylann Roof,

stay tuned.

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