A New Judge For the Giffords Case and An Early Problem For Him

As you may know, every member of the Arizona Federal Judiciary has been recused in full from further participation in the criminal case against Jared Lee Loughner. This was inevitable in light of the fact the top line murder victim in the case was their friend, and Chief Judge, John Roll. We now know who has been appointed from outside of the Arizona District to handle all further proceedings in the matter. By Order of 9th Circuit Chief Judge Alex Kozinski, that would be Judge Larry A. Burns of the California Southern District (CASD).

From Ginny LaRoe at The Reporter, comes the pertinent information:

Burns’ experience with the federal death penalty — both as a prosecutor and judge — factored into Burns’ selection, Kozinski said today.

“I wanted a judge who [was] well-respected, and had the reputation of being fair and well thought of by both sides,” Kozinski said, “and I wanted to have a judge who had some experience with the federal death penalty because that’s a possible situation here.”

As a practical matter, Kozinski said, he also considered proximity to Arizona, though a change of venue isn’t out of the question.

Burns is a 2003 Bush appointee who was a career prosecutor before ascending to the federal bench. He was an assistant U.S. attorney for California’s Southern District from 1985 to 1997 and before that was a deputy district attorney in San Diego. He became a magistrate before his promotion to an Article III spot.

Burns is, as you might expect from his prosecutorial background, a fairly no-nonsense law and order kind of judge. In addition to death penalty experience, Burns has big case experience in matters familiar to most readers here, the Duke Cunningham case and the Tommy “Special K” Kontogiannis case.

Judge Burns is out of San Diego as are, conveniently, the specially appointed Federal Public Defenders that have been assigned to Jared Loughner, Judy Clarke and Mark Fleming; they will be familiar with each other and that should makes things smoother than would be expected for such a cobbled together court process.

One other thing, as you can see from the above link regarding Kontogiannis, Judge Burns doesn’t take kindly to any gruff or shenanigans by the DOJ/US Attorneys appearing in front of him.

In a highly unusual move, U.S. District Judge Larry Burns sent a 15-page brief of his own to the 9th U.S. Circuit Court of Appeals, curtly noting that the court filings of prosecutors “mischaracterizes substantial, relevant portions” of the case.

The reason I relate the ability of Larry Burns to hold government attorneys to some base level of credibility and propriety is that there is already a very meaty and germane issue percolating in the Loughner prosecution. Namely, is Judge John Roll a proper victim so that Federal court even has jurisdiction against Loughner for a murder count involving Roll as the victim?

As Josh Gerstein has pointed out, the facts may not really support Federal jurisdiction:

The actions and motivations of U.S. District Court Judge John Roll just before he was shot dead at Rep. Gabrielle Giffords’s campaign event in Tucson on Saturday are important for the public narrative about the tragedy, but they’re also vital to the federal criminal charge for his murder.

The criminal complaint federal prosecutors filed Sunday against the alleged shooter, Jared Loughner, goes to some lengths to demonstrate that Roll didn’t show up at the Giffords event just to say hello to the congresswoman, or on some whim after attending mass, as reports Saturday suggested. That storyline was fueled by Pima County Sheriff Clarence Dupnik, who said “because [Roll] knows Gabrielle very well, [he] came around the corner to say hi. Unfortunately he was in the wrong place at the wrong time.”

By contrast, FBI agent Tony Taylor argues that Roll was at the event to talk to Giffords about ongoing problems related to a surge in the federal judicial caseload in Arizona–a problem which the judge has attributed to a boost in the number of federal agents sent to the area to address immigration and border-related crime.

Under federal law, the murder or attempted murder of a U.S. official, such as a judge, is only considered a federal crime if committed “while such officer or employee is engaged in or on account of the performance of official duties.” In other words, if Roll simply stopped by the event to greet Giffords, who he’s said to have been friendly with, or due to idle curiosity about what was happening there, his killing probably wouldn’t be a federal offense.

This is exactly right. And, as Josh noted last night, even President Obama’s words last night in Tucson militated in favor or Judge Roll not being particularly “in the course and scope” of his judicial duties when shot and killed. I only knew Judge Roll professionally from appearing in front of him (decent man and very good judge), going back to when he was on Division Two of the Arizona Court of Appeals, but the word on the ground here, from those that did know him well personally (as well as Pima County Sheriff Clarence Dupnik), is that Roll did know about the Giffords event, but was simply on his way back home, which is near the Safeway Store at Ina and Oracle roads, where the shooting occurred, from Saturday Mass downtown and decided to stop by the store and say hi to Giffords.

There may well have been no big mission to talk to Giffords about the overcrowding of the Arizona District docket. Perhaps Roll may have mentioned that as small talk chit chat with someone while standing there, but it is quite possible, perhaps actually likely, the Fed story that Roll was on substantive judicial business when killed is manufactured extrapolation to create Federal jurisdiction where it may not lie.

There is another problem with the “Judge Roll was on official judicial business” meme being pitched by Federal authorities. It doesn’t make sense. Think about it, what real “business” could John Roll have had with Gabby Giffords on the court docket overcrowding issue? She is in the House of Representatives, not the Senate – she cannot help get desperately needed judges confirmed faster. Even in the House, Giffords is not on the Judiciary Committee. Gabby and Judge Roll were friends, and I am sure she was supportive of his quest on easing the docket, but there was simply not that much, if anything, she could directly do about it. The story that this was a big judicial mission by Judge Roll, on a Saturday morning after church, not only does not comport with what people who should know say, it does not make sense politically. Not at all.

So that is a substantial issue on Judge Burns’ plate from day one. And it is an important one because the Feds only have jurisdiction to prosecute for the five crimes/victims with a federal nexus, and one of those, of course, is Judge John Roll. And of those five, Judge Roll is the top line count that is their greatest motivation; excising Judge Roll from the case would put a serious rain on their parade.

Which, of course, begets the question as to why the Federal government has so aggressively seized primary prosecutorial position, when the State of Arizona, which has just as onerous (death penalty/life in prison) penalties as the Federal government (and is much more fluent in using them), and has jurisdiction to prosecute Loughner for offenses against ALL the victims, was available and ready to take the lead. A question the DOJ really ought to answer in this unique case.

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  1. PhilPerspective says:

    Bmaz:
    As I believe you are saying. A good, competent defense attorney should be able to make mince meat of the federal case(meaning that Judge Roll was on official business). Even the basic facts, available to any poor schmoe says that the Feds are bigfooting in this case.

  2. JohnLopresti says:

    I think it credible a chief judge would avail himself of a chance to spice a partisan visit with lobbying for his protectorate forum*s upgrades. If the congresswoman recovers, she might give a deposition on the topic of what efforts she might exert on Capitol Hill to mitigate a bulging docket. It also looks plausible from my distant perspective that a discussion of the matter in the setting of a public partisan event, has state, national, and party-specific elements; the very confluence of current political dialog factors at issue in the ongoing efforts at hortatory peacemaking.

  3. Teddy Partridge says:

    Do you suppose they have a staffer’s notes? Gabe Zimmerman and, I believe, one other were organizing the event by making notes of names and topics to be discussed. That would go a long way to reassure me that this isn’t just federal window dressing on what should probably be a state murder charge. Absent some direct evidence of Roll’s intent and reason for dropping by, better to let Arizona tend to Arizona’s affairs.

    • bmaz says:

      I would be shocked, and nobody inside or outside of the govt I have talked to has given even a hint of that. If it comes now, I would be very suspicious. I am told the only facts they have to date is third degree hearsay, which is not even close to sufficient once you are in court.

  4. earlofhuntingdon says:

    I would have preferred someone on senior status from outside the circuit, and thus potentially freer of the inevitable political and social ties that could generate an appearance of conflict. The SD CA has a lot of commerce with AZ, social and economic. That said, your description of Judge Burns suggests he might be an excellent choice.

    The issue for me is that this trial, possibly the most publicized one during Obama’s term as president, be squeaky clean from both judicial and prosecutorial angles. Mr. O. has not shown much respect for the rule of law when in conflict with a government interest, and his DoJ has shown less. We have a lot to make up for, to this defendant, those affected by his alleged acts, to the American public and the wider world. The result should appear as normal, effortless (like a tennis stroke, but one at Wimbledon) and fair as could be. Just routine, even if it’s not.

    On your point about the basis of federal jurisdiction, if it is predicated solely on Judge Roll having been in the performance of his duties rather than attaching to him personally, Burns will soon have to make a decision the feds won’t like. Kozinski, of course, knows that ultimately, he and possibly the Supremes will get this case, too.

    • bmaz says:

      Not predicated solely on Roll; the remaining four Federal nexus victims assault/attempted murder as to Giffords, murder as to Zimmerman and assault/maybe attempted murder as to Barber and Simon, are all sufficient for jurisdiction. But Roll is the big one.

      • earlofhuntingdon says:

        Understood; I was speaking only as to Roll, not Giffords, et al.:

        [the feds] have jurisdiction over less than half the number of people harmed by Loughner’s alleged acts

  5. earlofhuntingdon says:

    I assume the feds raced for jurisdiction in order to control the investigation and its publicity. But as you point out, they have jurisdiction over less than half the number of people harmed by Loughner’s alleged acts, and penalties no more severe than those Arizona has available. Political damage control for a vulnerable president in a Red State comes to mind as a potent motivator for the White House to have given Mueller his marching orders.

    • bmaz says:

      I think that is EXACTLY right Earl, which ties in with DeadLast’s comment too. In fairness, normally I could see the Feds wanting lead where it was against a Fed officer, but here letting the state take it would have avoided the court recusal thing, the need for bringing in out of state defenders AND would allow prosecution for ALL the victims. That is a lot in favor of Pima County taking the lead. Not to mention, if I am Loughner’s attorney, I am also moving to disqualify the Arizona US Attorney’s office, saying they are no different than the AZ Fed PD which disqualified itself.

      • Teddy Partridge says:

        Federal is better.

        If you don’t believe me, just ask the Feds. They’ll tell you that they can do anything better than any state. Despite all evidence to the contrary.

        • earlofhuntingdon says:

          I suspect that’s right; while the feds have a vested interest in these cases, it seems less and less heated than those Arizona might have. When it puts its mind to it, the FBI, when it’s not looking for anthrax mailers, etc., can do a marvelous job. I hope it does and that this case, the prosecution and the appeals are stellar examples of how to do it dispassionately and right.

          My comment was directed at what may be short-term political thinking. That’s not redundant, as the right often demonstrates long-term consistency that puts the Democrats to shame.

  6. DeadLast says:

    Maybe the Feds are desperate for a “slam-dunk” case to make them look credible in the eyes of the public?

    • earlofhuntingdon says:

      Agreed, but the case is likely still to be pending in appellate courts as of the time of the 2012 election.

      Unless something fundamental and splendid changes in our public discourse, and unless Loughner, a tree limb, and a coiled line of hemp soon meet, loud voices on the right will predictably accuse Obama of being “soft on crime”, ad nauseum. Controlling the investigation and its publicity may help in the short run; I don’t think it will do much when it comes election time, given how weakly Democrats react to the right’s inventive and outlandish shouting in the media.

      • DWBartoo says:

        “Back” from dealing primarily with events and circumstances in Arizona.

        “Back” at FDL, call it “here”, in all your feisty, some say, “curmudgeonly” (though with a grin … and owning up to that meownself) splendor.

        Meaning only that your perspectives, your comments and your posts have been missed.

        Perhaps, if your are so inclined, you might share a bit of what it was like “there” (as so many “here” seemed, last evening, to have some difficulty with “understanding” what your state has been dealing with… as you will, no doubt, recall?)?

        DW

        • bmaz says:

          It has been a rather brutal five days or so here. As skeptical as I was of last night’s event in Tucson (and boy was I skeptical), I think it did a whole lot of good and was just what was needed to change the tone.

          • DWBartoo says:

            I can only imagine the “brutal”, bmaz.

            The “skeptical” I would (and did) share …

            However, since I wasn’t “there”, and was in no position to actually know the effects of last evening’s “event” upon the people of Arizona, whether present at the event or not, I particularly appreciated your “take” on the event as it unfolded and in terms of its effect(s).

            My sense was that pressure and anxiety were building in Arizona, not helped in the slightest by the condemnation of those who chose to look askance, both at Arizona and the possibility that the event would have the effect of calming and reassuring good and decent human beings, both within AND outside of Arizona.

            Too many observers outside of your state chose to consider all of the people of that state to be prejudiced, arrogant, simple-minded or profoundly ignorant.

            As I said, in my comment to you last evening, anyone with a shred of conscious awareness must surely know that what happened in Arizona could happen ANYWHERE in America today … and likely will … again, and, far too likely, again. THAT is the essence of America’s peculiar “Exceptionalism” … violence can, and will continue, unabated, until we summon the courage and the stomach to address a number of “issues”, far more than simply dangerous and destructive “rhetoric”, as I’m certain you will agree.

            Again, bmaz, thank you, for your thoughful insights and the wisdom you share with the rest of us.

            DW

  7. mpaul88 says:

    It was nice to hear from an adult last night in the midst of what has become a really offensive partisan atmosphere created by the right in the wake of Tucson. I have no doubt that this judge will be bombarded with requests from tea partiers to line up the evidence in favor of their outrageous “liberal lunatic” theory on the shooter.
    http://www.sunstateactivist.org/ssablog/

  8. Twain says:

    Sounds like the feds are “big-footing” again. They don’t always do things well, and Arizona should have the lead.

  9. vieravisionary says:

    Bmaz,

    I have a question. If this case can not tried in Federal court and since all of the Federal judges in AZ have been recused, can the State bring charges and where would the trail be held since Judge Roll was a State Judge before becoming a Federal Judge?

    Thanks for any insight you can provide.

    • earlofhuntingdon says:

      A state court trial would be delayed, pending the outcome in the federal case. State court proceedings could follow, depending on the facts, procedures and judgments that flow from the fed case, and the politics and cost-effectiveness of doing so.

      • bmaz says:

        Yes. Theoretically, the state could prosecute at the same time, but generally it is just not done and is logistically more difficult with the Feds having custody of Loughner. I have talked to the chief criminal deputy at the Pima County Attorney’s office. They are researching and contemplating their options; but as you can imagine, it cannot be easy on them having the vast majority of the victims NOT having their cases pursued on the front end. It is a tough spot. I fully understand why the Feds want the case; but, and especially when you factor in the court/judge/defender recusal that would have been avoided with state jurisdiction, I wish in this one unique case, the Feds would have stepped aside for the state.

        My guess is, at the end of the day, they will just take a back seat as you describe.

  10. MadDog says:

    OT – King Calls on Treasury Secretary Geithner to Act to Disrupt WikiLeaks

    Today, ­U.S. Rep. Peter T. King (R-NY), Chairman of the Committee on Homeland Security, called on Treasury Secretary Timothy Geithner to add WikiLeaks and its founder Jullian Assange to the Specially Designated National and Blocked Persons List (SDN List). This action by Geithner would prohibit people and companies within U.S. jurisdiction from conducting business with WikiLeaks and Assange. In a letter to Geithner, King wrote that “the U.S. government simply cannot continue its ineffective piecemeal approach of responding in the aftermath of Wikileaks’ damage. The Administration must act to disrupt the Wikileaks enterprise. The U.S. government should be making every effort to strangle the viability of Assange’s organization.”

    Below is the text of the letter from King to Geithner…

  11. bayofarizona says:

    People were talking up Giffords as a Senate candidate, especially if the reps retain control of the House for a while so that conversation could definitely occurred in my mind.

    This is a pretty thin reed to hang it on though – where does the burden of proof lie in this case? I mean, how good of an argument do they have to make?

  12. MadDog says:

    More OT via SCOTUSblog:

    U.S.: Detainee procedures are fair

    The Justice Department defends two of the key procedural rules federal judges have adopted in weighing the government’s arguments for detaining those held at Guantanamo Bay. Normal evidence rules should not apply, it argues.

    The Justice Department urged the Supreme Court to treat cases by Guantanamo Bay detainees challenging their captivity as unique, arguing that special procedures now being used are fair without giving those prisoners the same rights that an individual in a criminal case would have. This marked the first time that the government has come to the defense before the Justices of two key tactics federal judges have used in implementing the Supreme Court’s 2008 decision giving Guantanamo captives a right to go to court to seek their release. One approach allows the use of unsworn statements in intelligence reports as evidence, and the other requires only the lowest level of proof by the government to justify detention.

    Significantly, the Department, in the new document (23 page PDF) filed Tuesday night, relied upon several laws Congress passed to try to block Guantanamo prisoners entirely from the federal courts – laws that remain on the books even after the Supreme Court, in the decision in Boumediene v. Bush, interpreted the Constitution itself as assuring access to the courts to contest detention. Those laws, the Department argued, take the place of the normal habeas law that applies to regular criminal cases…

    • bmaz says:

      Yes, “unsworn statements in intelligence reports” should absolutely be used because, you know, our intel is never wrong, and our government agents and employees, not to mention those highly regulated contractors they use, are beyond reproach and always honest and accurate. And, because of the foregoing, of course there is no reason not to use the “lowest level of proof by the government to justify detention” because, really, what’s a little human individual liberty among friends, eh?

  13. tetercreek says:

    All along I have been concerned about the fact that one of the the people actually killed was a Federal Judge. Maybe I have watched too many CSI episodes, but it occurs to me to wonder if Judge Roll was not a target here.

    An early report was that the gunman called out names as he shot. Is that true? If so, did he call out Judge Roll’s name? Members of congress are rarely assassinated. Judges have lots of enemies and some of them are violent criminals.