February 6, 2013

REP. DARRELL ISSA ON AARON SWARTZ: Carmen Ortiz Abused Her Power. “We are going to work out restraints on this kind of abuse in the future.”

By the way, on the subject of Due Process When Everything Is A Crime, yesterday I ran across this passage from Judge John R. Brown’s concurrence in the 1965 case of United States v. Cox, 342 F.2d 167 (5th Cir. 1965). The question in the case is whether a U.S. attorney is obliged to sign an indictment produced by a grand jury. The court held no, but Brown’s explanation of why is revealing:

Putting aside these factors which bear on the delicate nature of governmental decisions, there are technical reasons indigenous to criminal law which are equally compelling. Federal crimes are more and more for violation of highly complex statutes. Federal jurisdiction, indeed, whether the activity constitutes a federal crime, depend on intricate facts, many beyond the knowledge and experience of laymen composing the Grand Jury.

In short: Federal criminal law is beyond the understanding of laymen. If that is so, it seems to me, the body of federal criminal law is itself a due process violation since laymen are required — on pain of imprisonment — to comply with a body of law that is, according to an eminent federal judge, too complex for them to understand.

Perhaps defendants should be allowed to place the statute and regulations before the jury and be acquitted if the jury finds that an ordinary person would not have believed they were committing a crime.

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