Sunday, July 25, 2010

Ruling reinforces importance of location in prosecution

Ruling reinforces importance of location in prosecution.
.Bridgeport attorney Richard Meehan's column appears in The Sunday Bulletin.
For The Norwich Bulletin
Posted Jul 24, 2010 @ 11:18 PM
Survivors of sexual abuse and victim’s rights groups are outraged at a recent ruling by District Court Judge Janet Bond Arterton dismissing the indictment against Douglas Perlitz, the former Fairfield University graduate who was awaiting trial on multiple counts of sexual improprieties. He was accused of assaulting young people in Haiti.

None of the allegations claim he victimized anyone in Connecticut. The government was attempting to bootstrap its Connecticut prosecution based on his fundraising within the state and other minimal contacts.

The basis of Arterton’s ruling is that Connecticut is not the proper venue for this indictment. To the uninitiated, it appears Arterton’s ruling somehow sets the stage to free a potential predator. That is a gross misreading of the case. Courts can only bring criminal defendants to trial if they have appropriate jurisdiction.

Jurisdiction is an important legal concept. First, the court must have the lawful authority over the subject matter. In a criminal case, the jurisdictional issue focuses on the conduct. To be a violation of federal law, it must implicate interstate commerce. Without that, prosecution would be the sole province of the state where the conduct occurred.

The basis of any federal criminal law is that it affects actions between states. The “interstate commerce” requirement is usually easily met. Transactions do not necessarily have to be across state lines as long as there is some conduct that utilizes something that moves in interstate commerce.

Venue is a separate issue. It’s the question of whether the trial location has the appropriate contact with the crimes alleged. Defending oneself in the federal system is costly. The government has virtually limitless resources. Only the most experienced — and thus by definition — most expensive lawyers defend federal criminal cases. Every advantage goes to the government.

More costly defense
A grand jury can work for years assembling evidence, building a case for prosecutors. When an indictment is issued, the federal rules require swift movement toward a trial. If the government was not required to chose the locale where the conduct occurred, it could seek to indict a Connecticut resident in any state.

Connecticut cases could be brought, on a whim, in California or Alaska, or wherever the government chose. How does a Connecticut defendant mount a defense? Witnesses would be difficult to bring to the trial. The costs would increase exponentially.

Perlitz has not won his war, only the opening skirmish.

Arterton set the stage for the government to seek an indictment on charges in districts where they allege that he boarded flights to Haiti. Having won this skirmish, he may end up facing multiple prosecutions in the various states that were points of embarkation for his Haitian travels. It may turn out to be a Pyrrhic victory.

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