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May 3, 2024
Reviewing legal complications for Jan 6 rioters convicted of federal charge SCOTUS might overturn
I have discussed briefly in some prior posts some of the legal intricacies that certain Jan 6 defendants could face if the Supreme Court in Fischer v. US were to reverse a key statutory charge brought by federal prosecutors or many cases. Helpfully, Law360 has this new lengthy discussion of these issues under the headline "If High Court Upends Jan. 6 Conviction, What Happens Next?". These issues are potentially so complicated, it is hard to map out or summarize all the particulars. But this article provides an effective overview and gets started this way:
In the coming weeks, the U.S. Supreme Court will decide whether prosecutors overstepped by using a felony obstruction charge against a rioter who stormed the U.S. Capitol building on Jan. 6, 2021. In oral arguments in April, a majority of justices seemed poised to side with the defendant, a man named Joseph Fischer, who shouted, "Charge!" as he ran into the Capitol building and then assaulted a police officer.
If Fischer prevails, results will likely be mixed for the more than 350 other defendants charged under the same statute for their role in the riot on Jan. 6, in which a mob of former President Donald Trump's supporters seized the Capitol and interrupted the electoral ballot count that would eventually declare Joe Biden the winner of the 2020 presidential election. For more than 120 defendants who have already been sentenced under the statute, challenging their convictions would depend on whether they've preserved their right to appeal, whether they've already used their shot at vacating a sentence and what other charges would remain.
It's not unusual for the high court to find prosecutors were overbroad in their interpretation of a criminal statute — in recent years, justices have limited the applicability of honest services fraud, aggravated identity theft and computer fraud statutes. Nor is it unusual for people who have been convicted under an outdated interpretation of the law to face procedural hurdles in getting resentenced, criminal defense attorneys say.
Time bars on criminal appeals and limits on post-conviction motions point to the federal courts' "very, very strong preference for finality," according to Erica Zunkel, a former federal public defender and a law professor who teaches in the University of Chicago Law School's Criminal and Juvenile Justice Clinic. "There are different rules and regulations for how you can challenge convictions, how long you have to appeal, what issues you can raise and not raise," she said. "It wouldn't be novel for the Supreme Court to say the interpretation of this statute is overbroad. Truly, this is what happens day in and day out in the criminal system. And then the question is, what to do when the Supreme Court has changed the law."
May 3, 2024 at 09:07 AM | Permalink
Comments
The added piece of this is the overzealous prosecutions . . . .
Posted by: federalist | May 3, 2024 10:57:57 AM
Here's one for you, Doug.
https://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2024/D04-30/C:21-3332:J:Jackson-Akiwumi:aut:T:fnOp:N:3203850:S:0
Posted by: federalist | May 3, 2024 4:30:03 PM
Interesting, and a good case for your theory, federalist, about some prisoners having a right to attack guards, no? According to the court: "While in jail ... Sabo discovered that his term of probation was longer than the law allowed.... In total, he spent 291 days on probation beyond the statutory maximum for his conviction, 133 of those in jail." Under your theory, federalist, did Sabo have a (constitutional?) right to attack everyone in jail once he "discovered that his term of probation was longer than the law allowed"?
Posted by: Doug B | May 3, 2024 4:55:09 PM
He did not. I would say, though, that he had the same self-defense rights as free citizens, and that he would have rights to criticize guards in ways ordinary inmates do not. If a guard used any force against him unlawfully, I would say that he would have had the right to defend himself as a free citizen would.
He should sue his lawyer for malpractice.
What if he escaped, non-violently? OK to prosecute?
Posted by: federalist | May 3, 2024 8:03:08 PM
Of course, most any free citizen fighting a law officer is likely to lose the legal fight afterwards. There are occasional upsets, but that's not the way to bet.
Posted by: Soronel Haetir | May 4, 2024 2:36:12 AM
Traditional self-defense rights for "free citizens," federalist, allows using proportional force to resist/escape a kidnapping. Saying Sabo has those rights would seem to be saying that he has the right to use any necessary force against guards to escape.
Also "ordinary inmates" cannot resist guards' unlawful use of force? Are you saying all the "ordinary" women in FCI-Dublin had no right to resist the guards repeatedly raping them? And what do you mean by "rights to criticize guards in ways ordinary inmates do not"? Do only "special" prisoners get to file complaints with the wardens? Prisoners have limited free speech rights, but are you saying some have more than others?
I know you have not law to support your SD claims --- as I have repeatedly asked you to cite any --- but the lack of logic in your assertions is also notable.
Posted by: Doug B | May 4, 2024 9:21:35 AM
In prison, SD rights, as a practical matter, are not what free citizens have. Guards can use low-level excessive force, and the prisoners can't defend themselves against that. I would argue that someone illegally incarcerated can defend themselves against any excessive force by guards. Second, as for speech, how can you justify the loss of free speech rights while illegally incarcerated?
The women had the right to resist rapes--with deadly force.
You have no law to support the conclusion that illegally incarcerated people have their rights truncated by the illegal incarceration.
Posted by: federalist | May 6, 2024 10:57:55 AM
Well geeze, I sure hope Bill Otis, the guy who invented the federal appeal waiver, writes an amicus brief for each of these patriots explaining to the courts how he intended his innovation to be used only for scum, not heroes. I mean it should be obvious but I guess there are still some Clinton and Obama appointees on the bench LOL
Oh what am I saying? He won't have to do it. President Trump will pardon them all, thank God. 6 months to liberty!
November, here we come! MAGA
Posted by: MAGA 2024 | May 6, 2024 11:32:44 AM
federalist!
Glad youre still with us. I was afraid you might have been unjustly detained over the weekend LOL
https://www.ajc.com/politics/california-man-charged-with-threatening-fulton-da-willis/CNYDSCDQV5C7NGNIH3V7OI5MMM/
Posted by: MAGA 2024 | May 6, 2024 11:37:46 AM
Huh, federalist? Guards can legally use "excessive force" on some but not all prisoners? If it is "excessive," the Supreme Court clarified 30+ years ago that it is unconstitutional for all prisoners: "This case requires us to decide whether the use of excessive physical force against a prisoner may constitute cruel and unusual punishment when the inmate does not suffer serious injury. We answer that question in the affirmative." Hudson v. McMillian, 503 U.S. 1 (1992) All the caselaw here and everywhere else makes no distinction for prisoner rights based your vague notion of "illegally incarcerated people." Master Tarls worked in prison, and I have not heard him talk of this kind of legal difference, and I am still waiting for you to cite any legal authority for it.
There is no caselaw about "illegally incarcerated people" in prison because there is no viable definition of that term that could be given legal meaning as a sound basis to adjudicate rights while a person is actively incarcerated. If prison authorities realize a person is indisputably "illegally incarcerated," they have an constitutional obligation to help get them out (and, as I see it, should pay damages for failing to do so). But does everyone with a pending legal appeal need to be presumed "illegally incarcerated" by prison officials? Do prison officials need to adjudicate these claims before admitting prisoners and give prisoners different clothing based on their categorization. Or lets focus on a day a prison is due to be released from custody: on the day of scheduled release (or the day after if the paperwork is going slow), due-to-be free prisoners still in prison surely do not have a right to start ordering Uber eats and watch pornhub even though they have the full right to do so after being released. If you spent a few moments thinking rigorously about your claims, you would realize how little sense they make as legal doctrine or as requirements for prisons and prison officials.
In addition, you have previously asserted that innocent people wrongly convicted do not fit your "illegally incarcerated," but I still do not get how that works? Are you saying prisons need only worry about those wronged by legal doctrines and not those wronged by factual errors in their convictions? That seems quite peculiar, and last term's Jones v. Hendrix, 599 U.S. 465 (2023), held that statutory legal innocence could not enable a federal prisoner an extra path into court. That's a potent precedent cutting entirely against your musings.
In short, federalist, as is all too common for you, you are making up a view of the "law" based on your feelings that has no clear support in either legal doctrines or logic. I have now cited two SCOTUS cases that undermine your assertions --- and I could cited dozens more --- can you cite any law to support any of your assertions?
Posted by: Doug B | May 6, 2024 11:42:12 AM
Doug, as you know, the Eighth Amendment doesn't pick up all force that may be deemed unnecessary, and as a practical matter, the right to SD in prison is limited even where guards use "excessive force," which is a smaller subset of illegal force. You can prattle all you want about impracticability etc etc., but what you are arguing for is that the fact of an illegal incarceration somehow operates as to take away rights. How exactly does that work? The answer is that it doesn't. Rights cannot be deprived by government illegality.
Posted by: federalist | May 6, 2024 12:55:37 PM
Legal rights are deprived by the government illegally all the time, federalist, and the usual remedy is a court action for damages and/or an injunction. I always want there to be access to courts to vindicate those rights, especially by prisonsers potentially subject to "illegal incarceration," which is why I am generally against habeas limits are rulings like Jones v. Hendrix. Are you against habeas limits and rulings like Jones v. Hendrix?
Meanwhile, you've not explained how a determination of "illegal incarceration" is supposed to be made by prison officials so as to sort which prisoners have, in your view, greater legal rights than others. Let's start there: how do you classify a prisoner who knows for certain that he is factually innocent and/or legally innocent --- say a Jan 6 rioter currently convicted of a "Fischer count" --- but prison officials know his status is subject to on-going litigation. Does that prisoner have, say, a First Amendment right to download porn in his cell that prison officials must respect?
Yet again, federalist, I surmise you are conflating your feelings about moral rights with rights recognized by law. You can reasonably say that you believe that an "illegally incarcerated" person (however you plan to define that contestable term) has a moral right to download porn in his prison cell just as if he was in his own house. But I am unaware of any court that has ever suggested that prison officials are legally obligated to give certain (unspecified) prisoners access to porn and other First Amendment freedoms on par with non-prisoners.
I am not sure what you mean by --- or the legal source for your asserion that --- "the Eighth Amendment doesn't pick up all force that may be deemed unnecessary, and as a practical matter, the right to SD in prison is limited even where guards use 'excessive force,' which is a smaller subset of illegal force." Can you cite any legal authority for what you are saying, which make little sense to me? (I cited Supreme Court opinions undercutting your claims --- and can readily cite more --- but I still wonder if you can cite any law or ruling that supports your claims.)
Posted by: Doug B | May 6, 2024 5:40:51 PM
MAGA 2024 --
You want me to write about the appeal waiver adopted first by Janet Reno's DOJ, and routinely used thereafter by, among others, Michael Mukasey, Eric Holder, Loretta Lynch, Jeff Sessions, Bill Barr, and now for the last few years Merrick Garland? THAT waiver? The one that's been upheld by all the circuits? For going on 30 years?
Of course if you have the winning argument against it, feel free to post it in your response, rather than your knee-jerk sloganeering about Trump.
Posted by: Bill Otis | May 7, 2024 11:04:36 AM
Bill;
A winning argument against it? I'm all for it! If I had a line of reasoning that would kill it, I'd take it to my grave.
Unless President Trump needed it LOL
But he won't, because he would never wuss out and plead guilty. Any why would he? There's no crime.
This is all pretty simple. You do 1 thing with criminal scum--you Lock. Them. Up. The January 6 patriots are not scum, but defenders of liberty and our constitutional order from attack by 'rats. Only sick degenerates who read the pedophile media have any trouble figuring this out.
Who's ready for heads to roll? MAGA
Posted by: MAGA 2024 | May 9, 2024 9:24:40 PM
