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November 5, 2017

Spotlighting challenges facing federal prosecutors in capital pursuit of Sayfullo Saipov

Andrew McCarthy has this notable recent National Review commentary under this amusing headline/subheadline: "Your Sentencing Advice Isn’t Helpful; Bergdahl is to loyalty as Trump is to tact."  Though the headline suggests the piece is mostly about taking Prez Trump to task, it actually focuses effectively on just how the battle facing federal prosecutors in the Saipov case was made a bit harder by the Prez.  Here is part of McCarthy's analysis:

The Justice Department has an exacting process before the death penalty may be charged. The process is meant to impress on the judiciary — much of which is philosophically predisposed against capital punishment — that the attorney general seeks the death sentence only after extremely careful deliberation, which includes hearing a presentation from the defense. Now, since the attorney general answers to the president, Saipov’s lawyers will argue that the DOJ process is, shall we say, a joke and a laughingstock, the president having already ordered his subordinate to seek the defendant’s execution.

In the end, I’m pretty sure defense motions to throw out any capital charges will be denied.  But the burden on the prosecutors to prevail on the matter of a death sentence will be tougher. Make no mistake: They already have an uphill battle on their hands. 

Saipov richly deserves the death penalty. (Like you, dear readers, I’m not the president, so I get to say that without screwing up the case.)  But the problem is, while this jihadist atrocity should result in a straight-up, slam-dunk state multiple-murder prosecution, the State of New York has done away with capital punishment.  If he is going to get a death sentence, it will have to be a federal case. Thus, I’m proud to say, the case has been taken over by my former stomping grounds, the United States Attorney’s office for the Southern District of New York. There is still a problem, however: Finding a federal murder charge that fits the facts well is not simple. 

The SDNY prosecutors are a clever lot.  In a two-count complaint, they theorize (in Count Two) that Saipov caused eight deaths in the course of damaging an automobile in interstate commerce. But the criminal statute invoked (section 33(a) of the U.S. penal code) is really addressed at incidentally endangering human beings while doing violence to a car, not incidentally endangering the car while doing violence to human beings.  The latter is what Saipov did — an attack with a truck, not on a truck.

Plainly aware that this allegation may not fly, the prosecutors also charge material support to terrorism (under section 2339B).  They plausibly allege (in Count One) that Saipov’s savage attack was done on behalf of the Islamic State terror network (ISIS).  Yet defense lawyers will surely counter that Saipov has no known connections to ISIS, and that his attack was not coordinated with ISIS.  The government has a good argument.  Even assuming Saipov had no ISIS ties, he fully intended his act to contribute to ISIS’s sharia-supremacist cause. Plus, ISIS has responded by embracing Saipov, albeit after the fact. Still, the ISIS connection will be hotly contested. And, more to the point, neither the material-support charge nor the damaging-an-automobile charge is a death-penalty offense.

Of course, the criminal complaint is only the first step in the case, really just a means of keeping Saipov detained without bail, not the formal indictment on which he will ultimately be tried. When that indictment is filed, I am hopeful it will include charges of murder in aid of racketeering. This offense (section 1959) is a capital crime, prohibiting murder (as well as other violent crimes) committed “for the purpose of gaining entrance to” a racketeering enterprise. ISIS clearly qualifies as such an enterprise under federal law (under section 1961, it is a group of individuals associated in fact — even though not a legal entity — and it engages in acts of murder, among other depravities). Further, even if Saipov was not a member of ISIS before his killing spree, he was patently seeking entry into the network . . . and he succeeded in getting it. ISIS branded him “one of the caliphate soldiers” in its claim of responsibility.

All that said, this is not an easy prosecution — certainly not as easy as the blatant brutality of Saipov’s attack would make it appear.  I am quite confident that whichever judge is assigned to the case will deny the inevitable motions to dismiss death counts.  When we step back, a foolish outburst, even from the White House, is trivial juxtaposed to Saipov’s barbarity.  But understand that the judge will still be incensed over the need to address presidential ranting (particularly if it continues).  The prosecutors’ margin for error, already thin in a death case, will narrow all the more.  Not being a lawyer, Trump may not grasp how many ways a pissed-off judge — especially one who is philosophically opposed to capital punishment — can undermine a prosecutor’s case without formally tossing it out.

Prior related posts:

November 5, 2017 at 07:32 PM | Permalink


His article on Bergdahl was interesting too.

Posted by: Joe | Nov 5, 2017 8:55:01 PM

You law school radicalized lawyer traitors will spend $millions to reach a self evident verdict and sentencing.

All the lawyers involved should be arrested for conspiracy to steal tax payer money. The first to go to prison should be the judge allowing this farce.

Trump needs to clean house.

Posted by: David Behar | Nov 5, 2017 11:03:16 PM

I finally agree with you Supremacy Clause; I took the liberty of assuming by "house" you obviously mean cellblock B at Leavenworth.

Posted by: Mark M. | Nov 6, 2017 12:41:10 AM

No, Mark. I mean all you law school radicalized, lawyer scum traitors to this country. You are all rent seeking thieves, scoring a $trillion in money, and destroying as much in economic value, each year you live.

I predict an easy $10 million in costs for this open and shut case.

Posted by: David Behar | Nov 6, 2017 2:10:14 AM

It is a bizzaro world where the following quote is true: "like you, dear readers, I’m not the president, so I get to say that without screwing up the case." How a presidential tweet can screw up the case is utterly beyond me. Such a reality would not reflect well on the judiciary, it would show them to be the out of control mob that Trump posits them to be. Where is the judicary's so called "careful reflection" if it can be undone by a tweet? Where is their vaunted reasoning if it can be undone by a tweet? What the author of the article would have us believe is that the judiciary is so sensitive it shakes at flies and quivers at mosquitos. Maybe that is true but if it is it is no credit to the judiciary to say so.

Posted by: Daniel | Nov 6, 2017 9:54:48 AM

It is not merely "a" tweet.

It is a continual policy on his part of on a range of issues saying that it is such a pain that there are basic rules on how things should be done & that we should in practice get rid of those pesky priests. (To make a classical allusion.) This was a basic reason to elect him. He will get things done without those troublesome rules. He pardoned someone prosecuted for "doing his job."

How much of this is supposed to be handwaved, including as tainting jury pools and members of the executive department, which -- along the margins like cases involving racism tainting the jury because of not something the top guy said, but a juror or expert as part of extended testimony -- is not something that results in a crystal clear "that's it" moment of cause and effect?

Again, if such a person (and there were people like this in the past small scale, some unhinged local official etc.) negatively affecting the decision making of judges is upsetting, fine, but there is not novel about this. There is a basic rule about not commenting on cases like this. The rule might seem stupid to some people but once it is violated, not once but repeatedly, it is going to matter to judges and others who every day takes special care to follow ethical rules.

Posted by: Joe | Nov 6, 2017 10:20:10 AM

BTW, the last reference to "Obama" appointees in the op-ed is something of a potshot because judges who were nominated by various presidents have shown their concern with Trump. To the degree someone thinks it is inane for judges to be affected, it won't just be them. Conservative judges concerned about people properly following rules very well might be upset by a Trump too.

Posted by: Joe | Nov 6, 2017 10:23:35 AM


Oh ho ho. Joe has glommed onto the new sophomoric rhetorical strategy form the myopic left. This is the strategy of portraying Trump as a KING who is trying to undermine those pesky liberal PRIESTS. The WP is filled now with this type of posing. But wait a minute, wasn't it a few short years ago where the very same WP was trotting out Obama as a "philosopher king" in response to the Right's bemoaning of Obama's dictatorial ways on health care? Oh yes, indeed!


So once again we see that the real problem on the left isn't that Trump is acting like a KING. No no no. The problem for the left is that he is not philosophical enough...Trump is a rampaging elephant violating basic norms. What's bizarre about this ripping a page from the opponent's playbook is that the left believes that by denigrating Trump as too much like the common American they will win back the common American to the left.

The left lost in 2016 because it could not distinguish the effects of drinking its own Kool-aid from reality. It still can't do that which is why it keeps shooting itself in the foot by adopting strategies that play right into its opponent's hands. So keep spinning that spin @joe. I am no fan of Trump but I admit a certain guilty pleasure in watching how he reveals the true madness of some on the left

Posted by: Daniel | Nov 6, 2017 12:41:06 PM

Joe. Your stupid, proper procedures are not in good faith. They represent a massive crime of rent seeking, to the tune of a $trillion a year. Not only should your nitpicking be ignored, but any judge allowing it should be impeached immediately by the Congress.

Posted by: David Behar | Nov 6, 2017 2:55:16 PM

Daniel, my reference was to a classic example of a king who with a wink and a nod said something that was not merely an opinion, but which given the weight of his office and power had a likelihood to influence actual action. Think we are being too literal.

"Will no one rid me of this meddlesome priest?" is a common allusion and is not used merely used to talk about priests. It is not about Obama or Trump being a "king." It has application to anyone with some power who says things that should not merely be handwaved as a statement of opinion, specifically when it isn't just "a" comment but a range of them.

This is not about a specific election. It is also not merely about "the left." National Review was alluded to here. Multiple conservatives are concerned about this specific thing, including a long time norm -- again if you find it stupid, fine -- about prosecutors and those in charge of them not saying things like this.

Posted by: Joe | Nov 8, 2017 1:50:55 PM

BTW, realizing that the fact such and such a person is a miscreant isn't enough to defeat them in an election is a given but it's fine to continue to say the person is a miscreant. This is so especially if the person is a miscreant and being in charge will cause harm.

So, the whole campaign strategy advice is duly noted but somewhat besides the point.

Posted by: Joe | Nov 8, 2017 1:56:51 PM

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