Friday, February 20, 2009

Not Rocket Science: the Intent Element in US v. Melton

As I write this, the jury in the case of United States of America v. Frank Melton et al. is in its third day of deliberations. This morning, the Clarion-Ledger ran a front-page analysis of the lengthy deliberations. In that story by Chris Joyner, the oft-quoted legal source Professor Matt Steffey of the Mississippi College School of Law opined that the delay may be due to the complexity of the intent element of the charges against Mayor Frank Melton and Officer Ricio. The Clarion-Ledger story is here:

As Joyner writes:

Even if jurors agree Melton and his former police bodyguard Michael Recio violated the Constitution when they conducted a warrantless raid on a Virden Addition duplex in August 2006, Steffey said the jury has a complicated task in determining whether they did it criminally.
"It requires a complex judgment. There is more than one way to look at the defendants' conduct," he said. "The question of criminal intent is deeply complex."

Professor Steffey is a friend who has provided valuable assistance in several public interest cases I've handled over the years. But this time I think he's off the mark. Title 18, Section 241 of the U.S. Code prohibits:

[T]wo or more persons conspir[ing] to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment or any right or privilege so secured . . . .

I have emphasized the sentence about intent. In the post-Watergate era, the U.S. Court of Appeals for the District of Columbia Circuit discussed what that sentence means. The case was significant: the conviction of former Nixon White House aide John Ehrlichman for conspiring to burglarize the office of Daniel Ellsberg's psychiatrist, after Ellsberg published the "Pentagon Papers."

Listen to Ehrlichman's argument: "Ehrlichman contends that he acted without the requisite “specific intent” to invade Dr. Fielding's Fourth Amendment rights, since he agreed to a search of the doctor's office in the good faith belief that it would involve no violation of the law, constitutional or otherwise."

Sound familiar?? That comes straight from the part of "Frost v. Nixon" where the former President, pressed by David Frost about whether the President can authorize illegal acts, blurts in response, "I'm saying that if the President authorized the act, it's not illegal!"

Here's how the Court of Appeals answered the question.

(t)he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. Here, defendants are alleged to have intended to search Dr. Fielding's office without a warrant, and their mistaken belief that such conduct did not offend the Constitution would not protect them from prosecution.

United States v. Ehrlichman, 546 F.2d 910, 918 (D.C. Cir. 1976).

The years may dull the memory, but as I recall President Nixon and his Administration believed that Ellsberg's publication of the "Pentagon Papers" put the American troops in Vietnam in jeopardy and was therefore treasonous. Unlike Watergate itself, there was certainly a potential argument that the President, as commander-in-chief, did have the power to authorize the break-in of Ellsberg's psychiatrist's office to discredit the source of the leak and thereby cause the Viet Cong and their supporters not to rely on the published Papers. (I'm sure Dick Cheney would have agreed with that analysis).

It's certainly more weighty than the Mayor's stated purpose for demolishing the house on Ridgeway.

But it wasn't enough, said the Court of Appeals.

As applied to today's case, the only question is: was the Mayor's aim "not to enforce local law but to deprive a citizen of a right protected by the Constitution,"

or, put a slightly different way in the Ehrlichman case,

Did the Mayor engage in the "knowing performance of acts which, like the unauthorized entry and search at issue here, are malum in se." (that is, "bad" by definition).

That's NOT a very complex question.

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