"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

RE federal jurisdiction over violent crimes - #DylannRoof's federal and state murder trials; Part I

Recently, I described in this blog a standoff between South Carolina State prosecutors and federal prosecutors as to the timing of trials of criminal defendant Dylann Roof, a white man who stands accused of the shooting deaths of 9 people and of attempting to kill three other people in an African-American church in June of 2015.

I mentioned in that blog that I question validity of federal jurisdiction over violent crimes committed on state property and committed without any connection with interstate commerce.

To verify why exactly federal jurisdiction was invoked in #DylannRoof's case, I obtained his indictment from and reviewed it.

Dylann Roof was indicted on July 22, 2015 on 33 counts under various federal statutes.

Here is the table of counts, statutes, and grounds to invoke federal jurisdiction in Dylann Roof's case.

Basis of federal jurisdiction as stated in the indictment

Victims who were killed

1 to 9

13 to 21

25 to 33
18 U.S.C. 249 (a)(1)

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

18 U.S.C. 924(c )(1)(A);
18 U.S.C. 924(c )(1)(C);
18 U.S.C. 924 (j)(1)

Murder: caused bodily injury to the victim because of the victim’s actual and perceived race and color, resulted in death of the victim

Obstruction of exercise of religion resulting in death, the crime “was in and affected interstate commerce”

Murder as defined in 18 U.S.C. 1111, killing each victim with a firearm with malice aforethought

Victims who survived

10 to 12

22 to 24
18 U.S.C. 249 (a)(1)

18 U.S.C. 247(a)(2), (d)(1), (d)(3)
Attempt to kill:  attempted to cause bodily injury to the victim because of the victim’s actual and perceived race and color

Attempt to kill the victim, involved the use of a dangerous weapon and were in and affected interstate commerce

So, for each victim who was killed, Dylann Roof was charged with 3 counts of the federal indictment, under the following statutes:

  1. 18 U.S.C. 249 (a)(1)
  2. 18 U.S.C. 247(a)(2), (d)(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:
  •  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
For each surviving victim Dylann Roof was charged with 2 counts of the indictment:

  1. 18 U.S.C. 249 (a)(1)
  2.  18 U.S.C. 247(a)(2), (d)(1), (d)(3) charging

  • attempt to kill based on race or color;
  • attempt to kill involving a dangerous weapon and affecting interstate commerce
 No motions to dismiss were filed yet by the defendant, even though there may be glaring jurisdictional defects in the case.  It appears that it is the strategy of the defendant to keep the case in federal court, hoping for a more lenient outcome, despite jurisdictional defects.

What I mean by jurisdictional defects is that federal courts are courts of limited jurisdiction, and federal courts' jurisdiction is invoked only under two circumstances:

1) diversity,  28 U.S.C. 1332 (not applicable in criminal cases) and
2) federal question, 28 U.S.C. 1331:  

"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Moreover, the federal statute under which the "federal question" jurisdiction is invoked, must be constitutional, which means, it should be enacted within the powers of the U.S. Congress.

There is a 1995 criminal U.S. Supreme Court case so far where a criminal conviction based on federal statutes were vacated by the U.S. Supreme Court because the U.S. Congress had no authority to enact at least some portions of those statues.

That case is U.S. v Lopez and it has similarities with U.S. v Roof.

Here is the entire text of the case and citation, U.S. v. Lopez, 514 U.S. 549 (1995).

Alfonso Lopez was charged for violation of the "Gun-Free School Zones Act of 1990", 18 U.S.C. 922(q).

The U.S. Supreme Court ruled that the U.S. Congress had no authority to enact the Gun-Free School Zones Act of 1990, as regulation of schools has nothing to do with regulation of interstate commerce, the legal basis for Congressional authority to enact that statute.

The U.S. Supreme Court held in U.S. v Lopez:

"Held: The Act exceeds Congress' Commerce Clause authority.

First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce

Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined.

Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.

It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which, viewed in the aggregate, substantially affects interstate commerce.

Second, § 922(q) contains no jurisdictional element that would ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.

To uphold the Government's contention that § 922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to
authority to a general police power of the sort held only by the States. "

In view of the U.S. Supreme Court decision in U.S. v Lopez and in view of the standoff between the state and federal prosecution in U.S. v Roof, where the State Prosecutor from the State of South Carolina asserts that the federal prosecution impedes the speedy state prosecution and hurts the victims of Dylann Roof's crimes, let's see if federal statutes under which Dylann Roof was indicted were based on proper congressional authority, and if federal prosecution of Dylann Roof, interfering with the state prosecution, is even legitimate.

I will post review of statutes which formed the basis of the federal indictment against Dylann Roof in a separate blog or blogs.

Stay tuned.

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