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June 24, 2011

To resist capital prosecution, RI's Gov refusing to turn murderer over to feds

A real interesting federalism-and-the-death-penalty story is now brewing in Rhode Island, as detailed in this new local article headlined "Chafee refuses to give suspect to feds."  Here are the basics:

Governor Chafee is refusing to turn over a suspected murderer in state custody to the federal government, declaring that doing so would expose prisoner Jason Wayne Pleau to the death penalty, a penalty he says has been “consciously rejected” by Rhode Island, even for the most heinous of crimes.

In a letter dispatched to U.S. Attorney Peter F. Neronha Thursday afternoon, Chafee said he is not going to allow the transfer of Pleau, who has been accused of robbing and killing gas station manager David D. Main as he prepared make a deposit at a Citizens Bank branch in Woonsocket on Sept. 20.

If prosecuted in the federal system, Pleau would fall under the Hobbs Act, in which conspiracy and robbery can be punishable by life imprisonment or death if a firearm was used in a crime that results in death.

In his letter, Chafee said his rejection of the federal request “should in no way minimize the tragic and senseless nature of Mr. Main’s murder,” and declared that “the person or persons responsible for this horrific act must, and will, be prosecuted and punished to the full extent of the law.  I extend my deepest sympathy to Mr. Main’s family for their unspeakable loss.”

At the same time, he said Rhode Island would not impose the death penalty.  “In light of this long-standing policy, I cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death-penalty prosecution.  I am confident that Attorney General [Peter F.] Kilmartin and Rhode Island’s criminal justice system are capable of ensuring that justice is served in this matter.”

Chafee has been a longtime opponent of capital punishment.  In an August 2006 debate with Cranston Mayor Steven Laffey, Chafee was asked if he would support the death penalty for Osama bin Laden if he were caught and convicted of masterminding the Sept. 11, 2001, attacks.  “It’s a highly emotional issue,” he said.  “Rhode Island executed an innocent man in the 19th century, and I oppose the death penalty.”...

Jarad Goldstein, a professor of constitutional law at Roger Williams University, said it’s possible Chafee was within his legal rights to turn down the request, given that the federal government didn’t get a court order that would have mandated it be given custody, but made the request under another agreement that allows states to request an interstate retainer. 

“This agreement gives each state the discretion to decline a request from another state. It may be that the state is within its rights, though it is still not clear to me whether a state can decide not to turn over a defendant because it disagrees with the federal policy,” Goldstein said. “Usually, federal law trumps state policy but, in this case, I think an argument can be made either way.”  Goldstein said the federal prosecutors could get an order from a federal judge that state officials could not ignore.

Jim Martin, a spokesman for the U.S. Attorney, said Neronha was faxed a copy of Chafee’s letter prior to his getting a plane to Rhode Island after attending a daylong conference in Washington.  He said Neronha told him that his office plans to “move forward with the prosecution” and had other ways of gaining custody....

Ironically, Pleau’s case came up last year as an example of competing federal-state jurisdictions.  At a program at the Roger Williams University School of Law in November 2010, Neronha and then-Attorney General Patrick C. Lynch used the case — the killing had occurred just about two weeks before — as an example of competing state and federal interests.

Lynch and Neronha said they would review cases to determine which office had stronger case and better chance to win.  Sometimes, state or federal law allows more leeway, or permits more evidence for a particular type of crime, they said, and sometimes the greater sentence available was a factor.

With Pleau, Rhode Island had an interest in the murder of one of its citizens, Lynch said, and one of the defendants in the case had a suspended sentence for a previous state conviction.  Neronha said the federal government had traditionally taken an interest in crimes involving banks. “Banks are important to the United States,” he said. “People who use them are important to the United States.”

Some additional layers to this interesting story comes from this follow-up local report, headlined "Man Chafee shielded from death penalty plans guilty plea," which reports these details about how the defendant hopes this case will get resolved:

A day after Governor Chafee, citing a possible federal death penalty, refused to hand murder suspect Jason W. Pleau over to U.S. authorities, Chafee's office on Friday released a letter from the public defender stating that Pleau wants to plead guilty in return for a sentence of life with no parole.

John J. Hardiman, public defender, notified assistant state Attorney General Randall White of the development on May 17, according to a copy of Hardiman's letter supplied by the governor's office.  On Thursday Chafee rejected the U.S. Government's request for temporary federal custody of Pleau, who is charged with murder in the case of a Woonsocket gas station owner killed on the steps of a bank.

And the headline of this additional local story highlights yet another element of, and perspective on, this interesting case: "Murdered man's family 'outraged' at gov"

June 24, 2011 at 03:45 PM | Permalink

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Comments

This one is easy. The US Attorney subpoenas the Governor and whatever subordinate state official presently holding custody of the defendant to bring the defendant before the grand jury (like a subpoena duces tecum). They then either refuse, in which case they'll be held in coercive contempt, or they comply, in which case the FBI or the US Marshall seize the defendant then and there.

Chafee was a notorious political grandstander when he was in Washington, and I see he hasn't changed.

Posted by: Bill Otis | Jun 24, 2011 4:29:16 PM

“In light of this long-standing policy, I cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death-penalty prosecution. I am confident that Attorney General [Peter F.] Kilmartin and Rhode Island’s criminal justice system are capable of ensuring that justice is served in this matter.”

Because I don't like the death penalty, I can violate federal law. A novel concept.

Posted by: MikeinCT | Jun 24, 2011 5:04:30 PM

Actually, Mike, there is lots of precedent for state officials defying federal law that is contrary to state policy. It was mostly 1954-1964, and it was called "massive resistance."

President Eisenhower sent the Army. President Kennedy sent his brother. Who will President Obama send?

Posted by: Kent Scheidegger | Jun 24, 2011 7:51:01 PM

Bill, Mike, Kent, etc.

Federal Law has become an ass! Look at the Adam Walsh Act. Look at the states prostituting themselves for a few (temporary) Byrne (Biden) bucks because of the aggregate stupidity of the publicly educated and the publicly dependent on these few bucks.

Colleges and Universities will be next as there is no ROI in a "college" (read liberal) education.

I might even buy a few pencils from starving professors.

Posted by: albeed | Jun 24, 2011 9:29:52 PM

Maybe the new SCOTUS opinion in Bonds [10amen] answers this:
Maybe an as applied challenge based on Equal Protection, as everyone else except me is ineligible for death in a state which abolished the death penalty.
Barry

Posted by: TucsonBarry | Jun 24, 2011 10:05:46 PM

Bill -- Isn't the usual procedure for getting a state prisoner into federal court a writ of habeas corpus ad prosequendum?

Posted by: Jay | Jun 24, 2011 10:30:04 PM

Jay --

You may well be right -- it sounds like you are -- but having no personal experience with the writ you mention, I didn't want to put it forward as the solution.

As you might suspect, the USAO in EDVA never had a problem with Virginia state authorities. One the other hand, Virginia, in the modern era, never had a Governor who was as big a jerk as Chafee.

Posted by: Bill Otis | Jun 25, 2011 7:05:52 AM

I proposed banning lawyers from all benches, legislative seats and responsible positions in the executive. I now propose banning all blacksmiths, as well.

Posted by: Supremacy Claus | Jun 25, 2011 9:25:49 AM

"I am confident that Attorney General [Peter F.] Kilmartin and Rhode Island’s criminal justice system are capable of ensuring that justice is served in this matter.”

In an interesting turn, the Rhode Island AG says there are no state murder charges pending. Something tells me he doesn't want to go along with this farce.

Posted by: MikeinCT | Jun 25, 2011 9:54:25 AM

Brave move by Chafee.

Posted by: anonymous | Jun 25, 2011 11:35:18 AM

Anonymous --

Brave my foot. In order for an act to be brave, the actor has to be facing some serious pain for what he has done.

Chafee faces no pain at all. What he "faces" is being invited to defense lawyer banquets to be given free filet mignon dinners and then lionized in after-dinner speeches for his True Wonderfulness. After that, he'll have to "suffer' the slings and arrows of equally giddy Leftist editorials from all over the state repeating the same air-headed praise.

He's being "brave" in exactly the same way Gov. George Wallace was "brave" for defying DOJ and, famously, standing in the schoolhouse door. He knew he was going to have to cave in (as does Chafee), which he did after an appropriately glitzy show. He also knew that the "pain" would consist of making himself even more of a hero to his extremist, "get-those-feds-outta-here" political base.

You confuse bravery with self-promoting political grandstanding.

Posted by: Bill Otis | Jun 25, 2011 12:02:52 PM

MikeinCT, you are right. Apparently Chafee forgot to check on what already happened in the case before this stunt. The AG already dropped the state murder charge a while back after the federal grand jury indicted the defendant. So there is no state charge left for the defendant to plead to. I believe the state has him in custody on a parole violation, but if Chafee wants to give the family any justice and have the guy convicted on murder charges, then he better give the guy to the feds, or convice the AG to refile the murder charges, if possible.

And to Jay, yes the proper procedure is for the feds to have a federal court issue a writ of habeas corpus ad prosequendum. We do that in my district all the time. As long as federal charges are pending, the judge will issue the writ. If the state doesn't comply, then it'll have to answer to the judge who signed the writ.

Posted by: domino | Jun 25, 2011 1:58:33 PM

Mr. Otis,

Well, I think enduring death threats from the pro-death penalty crowd and condemnation from his party, the right and others (see Ann Coulter's piece from years ago "They Shot The Wrong Lincoln") certainly speaks to Chafee's recurrent willingness, over many years, to take controversial positions that he believes in, at great cost. It would have been of far more political benefit, in many ways, to him to simply sit back and go along with the pre-execution ride, a la Perry, Schwarzenegger, et al.

Wallace and Chafee? A really, really inaccurate analogy. Two totally different men historically, and two far different issues and contexts. Like it or not, the death penalty is recognized by most nations as a barbaric violation of civil and human rights. Wallace flagrantly disregarded those rights, and expressedly so.

If it's an attempt at some semblance of state-federal comparison you make between the two men, there are many, many other cases and individuals you'll also have to make into modern day George Wallaces - a host of republicans on healthcare, Duval Patrick and the sheriffs of Portland and San Francisco on Secure Communities, state politicos' efforts to legalize marijuana, to name just a few *but* such analogies, like the Wallace- Chafee one, are misplaced, incredibly short-sighted and as said above, historically inaccurate given the contexts and individuals involved.

Posted by: anonymous | Jun 25, 2011 2:41:44 PM

@anonymous
Schwarzenegger faced protests in Europe and the US and the possibility of attacks by the Crips. Far more than what faces Chaffee now.

Posted by: MikeinCT | Jun 25, 2011 3:01:19 PM

MikeinCT,

Facing protests is part of the job, and not an example of courage, in my view. In fact protests I would argue are key to public accountability in this country, and something leaders should face readily and easily. Perhaps the only leaders who do not face a possibility of protests are those totalitarian leaders who prohibit them completely.

As for Schwarzenegger, he didn't face any real possibility of attack from any of the executions he mandated. On the contrary he gained a ton in donations and and political support from law enforcement and prison guards unions in exchange for his actions. Not a stretch for Arnold at all.

Posted by: anonymous | Jun 25, 2011 3:15:30 PM

@anonymous
You just said Chaffee is brave for facing condemnation and protests, but now Schwarzenegger isn't?

As for threats, I think angering thousands of Crip gang members is a lot more likely to get you hurt than angering pro death penalty advocates.

Posted by: MikeinCT | Jun 25, 2011 3:31:18 PM

anonymous --

"Well, I think enduring death threats from the pro-death penalty crowd..."

I haven't heard of any. Could you quote any credible threat and give the source?

"...and condemnation from his party..."

He doesn't have a party. You're behind the times.

"...certainly speaks to Chafee's recurrent willingness, over many years, to take controversial positions that he believes in, at great cost."

Although you subsequently criticize my reference to Wallace, your description above actually fits Wallace better than Chafee. The "great cost" to Chafee has been what, exactly? Being a multimillionaire Governor and former Senator? Wallace actually DID pay a great cost -- he was shot and paralyzed, and died in a wheelchair.

"Wallace and Chafee? A really, really inaccurate analogy. Two totally different men historically, and two far different issues and contexts."

Not that I ever said they were the same historically, or that they shared similar beliefs. What I said was that they were political grandstanders taking positions they knew would flop in order to gain swooning praise from true believers. And I must say you haven't disappointed.

If you want to give kudos to people who actually ARE brave, perhaps you'll join me in saluting the bravery of the Navy SEALS who advanced the interests of the United States, not to mention civilized life, by blowing Osama's head off and dumping his remains in the ocean. And without a lick of due process, I might add. Will you do that?

Posted by: Bill Otis | Jun 25, 2011 3:33:00 PM

MikeinCT,


You're wrong about what I said - I did not say at all that Chafee faced protests and was brave for that. I said he has faced death threats. Protests and death threats: two very different things.

As I said, The powerful lined up for Arnold both in money and political support, for him, and that is well documented. I haven't seen any documentation of attempted attack on him from Crips or anyone else due to an execution.

Posted by: anonymous | Jun 25, 2011 3:41:56 PM

Mr. Otis,

I will try to reply later to your post when I have more time, but may I just say, with all due respect: I think you've mistaken this blog for the Osama Bin Laden blog.

Posted by: anonymous | Jun 25, 2011 4:03:35 PM

If you read down to the 7TH and 8TH paragraphs in the quoted article, it looks like Chaffee may be acting lawfully cause the feds requested Pleau under some interstate agreement that lets the governor exercise discretion. Probably a stupid move. If the feds try something else that has teeth, then we'll see what Chaffee will do.

Posted by: arfarf | Jun 25, 2011 5:22:33 PM

anonymous --

You bought up bravery. What the SEALS did is a recent and quite prominent example of it. If you think they deserve contempt for their "violence" or "brutality" and "disregard for due process" or human rights or the UN and that sort of thing, please feel free to say so, and loudly. It's still a free country (because of brave men like them).

Chafee, on the other hand, is a big-mouth grandstanding politician. And far from being brave, he'll cave in a New York minute when the feds show up with actual force. He hasn't done anything brave and he's not about to.

Posted by: Bill Otis | Jun 25, 2011 6:24:59 PM

Mr. Otis, I've never even mentioned the U.S. Navy Seals, nor referred to them in any way. There's nothing in the original post, or the commentary that mentions them either. That's all you; and I'm not sure why you go on about it here.

Posted by: anonymous | Jun 25, 2011 6:56:43 PM

"That's all you; and I'm not sure why you go on about it here.

LOL, I really don't have a dog in this fight but I can answer this question for you anonymous. Mr.Otis's forte is dealing in distractions. He has just distracted you from the core issue of this thread and diverted the conversation to one about the Seals. Hang around this blog a while, you'll get used to it.

Posted by: Thomas | Jun 25, 2011 7:50:11 PM

Ha, Thomas, thank you! I actually did see that happening. Did not want to engage about the Seals necessarily, I just wanted to call him on it. Thank you again for the clarification.

Posted by: anonymous | Jun 25, 2011 9:29:14 PM

All government officials should lose their self-dealt and inappropriate immunity. I would like to see the victim's family sue the governor for the tort of intentional interference with getting justice. It merits exemplary damages. To deter.

Posted by: Supremacy Claus | Jun 25, 2011 10:16:14 PM

anonymous --

When YOU put bravery in issue, you can expect to hear about an example of actual bravery, rather than the phony "bravery" of Chafee playing for kudos from anti-DP ideologues.

The real reason you don't want to "engage about the SEALS" is that you have nothing good to say about them, viewing them as barbarians -- you know, militarism, violence and all that -- while still, and absurdly, trying to palm off as "bravery" the political showboating of a left wing pol.

And I see that despite what you said here, Jun 25, 2011 4:03:35 PM, and your subsequent posts showing that you do indeed have time, you have yet to answer my reply to you, which pointed out, among other things, that your claim of "danger" to Chafee on account of the "condemnation of his party" is flat-out false, since there is neither danger nor, for Chafee, a party.

Other than that, though, you're doing a fine job of praising the "to hell with the feds" George Wallace wannabe. Next we'll see Gov. Chafee stand in the jailhouse door, complete with podium. That'll be a hoot.

Posted by: Bill Otis | Jun 25, 2011 10:17:02 PM

In defense of Bill, the Seals are relevant to this post. Chafee viciously attacked the lawfulness of their conduct. He called those who approve of the execution of Bin Laden, including Obama, our Muslim in the White House, of being merely emotional.

"Chafee was asked if he would support the death penalty for Osama bin Laden if he were caught and convicted of masterminding the Sept. 11, 2001, attacks. “It’s a highly emotional issue,” he said. “Rhode Island executed an innocent man in the 19th century, and I oppose the death penalty.”

Learn to read better.

Posted by: Supremacy Claus | Jun 25, 2011 10:19:30 PM

SC --

I appreciate your post. What I'm actually doing is pretty straightforward: anonymous said Chafee's action is "brave." In fact it is not "brave" unless that word has lost its meaning. So to test what anonymous thinks "bravery" actually means, I brought up the SEALS, whose bravery is undeniable by normal people. His refusal to say so, which would take all of three or four words, is telling about the very core of his original "Chafee-is-brave" proposition.

Posted by: Bill Otis | Jun 25, 2011 10:36:47 PM

@anonymous
I haven't seen any proof of an attack on Chaffee either. Still, signing off on the execution of a Crip leader is still more likely to get you killed.

Posted by: MikeinCT | Jun 25, 2011 10:48:54 PM

MikeinCT --

No, no. Haven't you heard? A Crips leader is Mr. Nicey! The Crips wouldn't, you know, like retaliate or anything -- would they? C'mon, they're all Jean Valjean.

Governors do have good security staffs, though. And Chafee is so rich he could personally hire a better security detail than the state could provide.

Posted by: Bill Otis | Jun 25, 2011 10:56:36 PM

So let me get this straight: someone commits a murder in Rhode Island. The police arrest the guy they think did it. The state charges him with murder. Then the feds, using some law that lets them punish intrastate behavior, which carries the death penalty, also indicts the guy. Then the state prosecutor drops the charges. Not sure if this is what happened; I'm just going by the discussion above.

Sounds like the state prosecutor wants to see this defendant fry, but the law of his state doesn't allow it, so he asked the feds to intervene.

Doesn't the federal government have a policy of not prosecuting people who are already convicted by the state of an offense? That would explain why the state prosecutor had to drop the case; if the guy got convicted by the state, then the feds would not pick it up and kill him for the state prosecutor.

Whatever the merits (or lack thereof) in Chafee's position, it looks like the state prosecutor doesn't want to see his state's laws carried out, because he disagrees with them.

Posted by: Anonymous | Jun 26, 2011 6:14:47 AM

As for death threats against Chafee, there are media sites, such as the Providence Journal, where the reader commentary calls for the death penalty for Chafee, as well as that he be shot in the manner that the victim in the case was. This is consistent with other threats that Chafee's office, and I believe law enforcement has stated that he has received death threats on various issues throughout the years. I think it's brave to serve and face that. I actually agree with MikeinCT that any potential CRIP threat to a governor *had that happened* would be pretty scary stuff. But a CRIPS threat against Schwarzenegger didn't happen, and Chafee has received threats. I think it is brave to take the stands Chafee has particularly in light of what happened to Congresswoman Giffords.

You may disagree with my opinion, but it's not appropriate and pretty indecent, to falsely attribute things to me that are not true, such as:

"The real reason you don't want to "engage about the SEALS" is that you have nothing good to say about them, viewing them as barbarians -- you know, militarism, violence and all that -- while still, and absurdly, trying to palm off as "bravery" the political showboating of a left wing pol."

How do you possibly know what I think of the NAVY SEALS? This is not only unattributable to me, but is completely mispresenting, irritating and harmful.

I do happen to think Chafee's brave for this act. And many others do, too. You have the right to disagree. We can also disagree about whether Osama Bin Laden is germane to this case in Rhode Island and Chafee. (I happen to believe it is not germane). But, Mr. Otis, I do not believe you a right to treat people in the way you do as in the discussion above. You seem to not be able to hear a difference of opinion without then proceeding to repeatedly mischaracterize others in the pointed and by all appearances, malicious, manner that you do. It is hardly a way to make this blog a place of constructive discussion.

I don't know what kind of work you are in, Mr. Otis, but in most of the real world hurling such lies does not fly. Shame on you for that.

Posted by: anonymous | Jun 26, 2011 9:41:17 AM

anonymous --

-- Public officials receive "death threats" of the sort you describe as a daily matter, the world being full of kooks. Very, very few of them are credible, or otherwise would inspire actual fear. Using such things as proof of "bravery," in Chafee or the zillions of other officials (including of course prosecutors) who receive them is just silly.

-- "How do you possibly know what I think of the NAVY SEALS?"

Because the ironclad fervor of your opposition to the DP aligns you with the camp that condemned the SEALS' action for its violence, "unnecessary brutality," surreptitious character, failure to consult other nations, failure to capture Osama to allow him due process, and general cowboy vigilantism. That's how I know.

"This is not only unattributable to me, but is completely mispresenting, irritating and harmful."

Then you can quickly and easily spell out what you actually think, which, conspicuously, again you decline to.

-- "We can also disagree about whether Osama Bin Laden is germane to this case in Rhode Island and Chafee. (I happen to believe it is not germane)."

Of course Osama per se is not germane (nice try there at subtley shifting what I was talking about). But the definition of "bravery" most certainly IS germane -- indeed it's at the heart of your original assertion. Since you and I seem to have very different ideas of what it means, it's perfectly germane to try to pin that down by discussing examples most people would regard as instances of bravery -- e.g., the SEALS. But you refuse.

-- "You seem to not be able to hear a difference of opinion without then proceeding to repeatedly mischaracterize others in the pointed and by all appearances, malicious, manner that you do."

Actually, I hear differences of opinion all the time from posters such as John Neff, Marc Shepherd, Res ipsa, DEJ, rodsmith and many others, not one of whom has claimed that my responses were mischaracterizing much less malicious. I guess you missed that.

-- "It is hardly a way to make this blog a place of constructive discussion."

But calling pro-DP posters bloodlusters, primitives, racists, ghouls, etc., IS? And no, you have not done that sort of thing, but not one time have you objected when others have. You seem to be quite selective in deciding when we need to "make this blog a place of constructive discussion."

-- Finally, I repeat that it's ridiculous to claim that Chafee's showboating is "brave." It's a political move designed (seemingly effectively, given your laudatory response) to rev up his support on the Left. When the feds get serious, Chafee's supposed "bravery" will evaporate in the blink of an eye.

Posted by: Bill Otis | Jun 26, 2011 11:36:28 AM

"The real reason you don't want to "engage about the SEALS" is that you have nothing good to say about them, viewing them as barbarians -- you know, militarism, violence and all that -- while still, and absurdly, trying to palm off as "bravery" the political showboating of a left wing pol."

This is a lie. Seems that's what you're used to, because you have not admitted it, nor apologized. Good luck with that, here and elsewhere. You have your blog back.

CDCR/survivor/anonymous. (Oh, and female).


Posted by: anonymous | Jun 26, 2011 11:51:08 AM

"I don't know what kind of work you are in, Mr. Otis"

O'my, O'my. Do you mean to say that you don't know who Bill Otis is? Why, he is the best prosecutor ever to grace the halls of the federal justice department. I am sure that he is devastated to hear that you aren't aware of this LOL.

However, kudos for your responses, "You seem to not be able to hear a difference of opinion without then proceeding to repeatedly mischaracterize others in the pointed and by all appearances, malicious, manner that you do." and " This is a lie. Seems that's what you're used to, because you have not admitted it, nor apologized. Good luck with that, here and elsewhere."

"not one of whom has claimed that my responses were mischaracterizing much less malicious. I guess you missed that."

Say what????? She didn't miss anything. The twisting and mischaracterization of opposition comments is pretty standard fare and is the primary method used to direct the conversation (distraction) away from the subject at hand. I would say that this thread is a pretty good example of that and you have been called on it many times. I suspect that the aforementioned John Neff, Marc Shepherd, Res ipsa, DEJ and rodsmith have been here so long and are so inured to this tactic that they feel no need to comment further.

Anon, it seems that you are a quick study. I did warn you about the distraction tactic though LOL (again). Hang around, you are a breath of fresh air.

Posted by: Thomas | Jun 26, 2011 12:43:38 PM

anonymous and Thomas, don't you realize you are unpatriotic? People like you must support Bin Laden? How can this not be true based on your comments related to this Rhode Island murder case?

Posted by: Tim Holloway | Jun 26, 2011 1:14:29 PM

@Tim holloway

You have got to be kidding right? My comments have only been in response to Bill's distractionary tactics. Are you following in his footsteps? I will put my patroitism up aganst that of anyone on this blog. When was the last time you heard a shot fired in anger?

Posted by: Thomas | Jun 26, 2011 3:30:29 PM

Could Bill Otis just please shut the hell up for a while? All he does is repeat himself. He has absolutely nothing original to say - ever.

His tough-guy demeanor is probably one reason why the only people on here with anything interesting to say choose to remain anonymous.

Posted by: anon2.5 | Jun 26, 2011 5:14:27 PM

anon2.5 --

"Could Bill Otis just please shut the hell up for a while?"

Another member of the muzzle-the-opposition club. Cool.

"All he does is repeat himself."

When the question gets evaded, it gets repeated. This much is true.

"He has absolutely nothing original to say - ever."

As if chest-thumping, holier-than-thou opposition to the DP is original.

"...the only people on here with anything interesting to say choose to remain anonymous."

A truly breathtaking lie.

Posted by: Bill Otis | Jun 26, 2011 5:33:59 PM

Feel free to not shut up, Bill. The more you shut up the opposition, the more boring a blog becomes. As one of the many banned from freerepublic, I can attest.

Posted by: MikeinCT | Jun 26, 2011 5:41:25 PM

MikeinCT --

Thanks. I have come to expect the "shut up" stuff as part of the price of my favoring the death penalty on a site where a number of the most pious/indignant/cocksure commenters oppose it. I appreciate your words of support.

Posted by: Bill Otis | Jun 26, 2011 5:56:52 PM

I have a major problem with Uncle Sam’s usurpation of what typically is a state crime. In support of my consternation, I offer the following “issues” for my personal enlightenment from SLP’s readers and contributors.

The US Attorneys’ Manual (“USAM”), in relevant part, states:
“9-131.040 Policy
The robbery offense in 18 USC §1951 is to be utilized, as a general rule, only in instances involving organized crime, gang activity, or wide-ranging schemes. The courts of appeals have agreed that proof of a de minimis effect on commerce is sufficient in a Hobbs Act prosecution. See United States v. Baylor, 517 F.3d 899, 901-903 (6th Cir.) (citing cases), cert. denied, 128 S. Ct. 2982 (2008). And recent Supreme Court decisions strongly support the constitutional adequacy of that showing. Nevertheless, it is important to ensure that proof of an effect on commerce in the individual case is introduced, in accordance with appropriate Hobbs Act standards. See, e.g., United States v. Parkes, 497 F.3d 220, 225-231 (2d Cir. 2007) (proof beyond a reasonable doubt that commerce was affected is a crucial part of Hobbs Act prosecution), cert. denied, 128 S. Ct. 1320 (2008); United States v. Peterson, 236 F.3d 848, 852-857 (7th Cir. 2001) (reversing Hobbs Act conviction for failure to prove interstate commerce element). Proof of an effect on interstate commerce is often particularly difficult in prosecutions under the Hobbs Act for the robbery of individuals. See, e.g., United States v. Wang, 222 F.3d 234, 238-240 (6th Cir. 2000), United States v. Collins, 40 F.3d 95 (5th Cir. 1994), cert. denied, 514 U.S. 1121 (1995). If you are uncertain whether a particular case would be appropriate to charge under the Hobbs Act, you should consult with the Organized Crime and Gang Section in the Criminal Division.”

It is apparent from the USAM that Uncle Sam should not attempt create a Federal offense out a state-law offense just to obtain jurisdiction.

I am not certain that the charged offense, which I presume to be under 18 USC §1951, covers this robbery and murder, because of the requisite word “through” in the statute. Hence, 18 USC §1951(b)(3) (stating: “The term “commerce” means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.”) – at least as applied (i. e., perhaps not facially) to certain state-law offenses – especially in this case – is quite exposed to challenge on Constitutional grounds in the light of, inter alia, Article I, Section 8’s enumeration of specific offenses authorizing US Congress to enact criminal laws:
“To provide for the punishment of counterfeiting the securities and current coin of the United States;” (“Clause 5”)
“To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;” (“Clause 9”);”
These technically limit the scope of US Congress’s legislative power to enact various “Federal” offenses. Furthermore, the Tenth Amendment (“Bill of Rights”) to the US Federal Constitution “reserves” the power “not delegated” to the US Congress to the “several states … [and] the people” by stating:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

However, we all know fully well that Uncle Sam gets around these “prudent” (in my opinion) restrictions by and through the powers granted by the US Constitution under the “Commerce Clause,” in relevant part, stating: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;” (Article I, Section 8, Clause 2). This is so despite the fact that the US Supreme Court has frequently held and “warned” that nexus between the charged offense and the statutory jurisdiction should not be “indirect and remote,” and “effectually obliterate the distinction between what is national and what is local and create a completely centralized government.”

United States vs. Morrison, 529 US, 598 (2000); states:
“Lopez [514 US, 549 (1995)] emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress’ regulatory authority is not without effective bounds. Id., at 557 ….
Even our modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, [NLRB vs. Jones & Laughlin Steel Corp., 301 US 1 (1937)]the Court warned that the scope of the interstate commerce power ‘must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.’” Id., at 556-557 (quoting Jones & Laughlin Steel, supra, at 37).”

While Bond vs. United States, 564 US, ___ (09-1227; October Term, 2010; June 16, 2011) does not provide on-point arguments, it may provide guidance on the limitations of Congress’s plenary power to legislate crimes that are primarily within the states’ purview.

Bill Otis states:
“So let me get this straight: someone commits a murder in Rhode Island. The police arrest the guy they think did it. The state charges him with murder. Then the feds, using some law that lets them punish intrastate behavior, which carries the death penalty, also indicts the guy. Then the state prosecutor drops the charges. Not sure if this is what happened; I’m just going by the discussion above.
Sounds like the state prosecutor wants to see this defendant fry, but the law of his state doesn’t allow it, so he asked the feds to intervene.
Doesn’t the federal government have a policy of not prosecuting people who are already convicted by the state of an offense? That would explain why the state prosecutor had to drop the case; if the guy got convicted by the state, then the feds would not pick it up and kill him for the state prosecutor.
Whatever the merits (or lack thereof) in Chafee’s position, it looks like the state prosecutor doesn’t want to see his state’s laws carried out, because he disagrees with them.”

Well, what can I say after you (Bill Otis) put it quite eloquently? Yes, it appears that there is a political tug-of-war at the expense (read: sellout) of state’s sovereignty. Regardless of that, strictly on law, I believe that the Federal government is overstepping its bounds. Yes, the Federal government has a “Petite policy” of not prosecuting offenders for the same crime (already prosecuted by the states) pursuant to Petite vs. United States – 361 US, 529 (1960). See also Rinaldi vs. United States, 434 US, 22 (1977) and Thompson vs. United States – 444 US, 248 (1980). (I am glad that you brought that up, because I had neglected to consider it.) In fact, Rinaldi was also charged under 18 USC §1951! However, the Federal government may invoke the dual-sovereignty doctrine although I am not sure that it could be used in capital offenses. Thompson was prosecuted by the Federal government under a firearms violation.

Anonymous, I hear you loud and clear, buddy (and agree with you)!

Personally, I am thoroughly and “deadly” seriously against the death penalty, for the simple reason that convictions are NOT always foolproof. No forensic evidence (read: analytical testing – PCR-DNA, GSR, MS, etc.) – is 100% accurate. I am reminded of Thomas Jefferson’s famous statement about sending an innocent man to the death-row. (By the way, to be sure, I was not always against the death penalty.)

Lastly, I feel that this blog is doing the defense attorneys a great service by doing their job! In any event, all defense attorneys should read this blog and the SCOTUS blog!

In summary, I believe that Gov. Chafee is absolutely correct in not turning over the defendant, Jason Wayne Pleau, whatever his political conviction may be! While I believe in Federalism (I am sure that Alexander Hamilton is smiling down on me!), I absolutely do NOT think that the States (and most certainly the People) should sell their Constitutionally-guaranteed rights!

Posted by: John Marshall | Jun 26, 2011 8:46:19 PM

Thomas, I was completely serious . . . . NOT!!! Yes, I was being sarcastic. I thought my comment would generate a laugh or two.

Posted by: Tim Holloway | Jun 27, 2011 10:59:00 AM

Ok..let me get this straight.

Conservatives who are screaming against federal government in their lives now all of a sudden WANT the government to interfere in what is a STATES RIGHTS issue?

I THINK I got it...

Posted by: SDL | Dec 14, 2011 7:50:30 PM

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