By Paul H. Blackman, Research Coordinator, National Rifle Association & Dave Kopel, research director, Independence Institute. The authors are speaking only for themselves, and not for any organization. Blackman and Kopel are authors of the award-winning book No More Wacos: What's Wrong with Federal Law Enforcement, and How to Fix It.
National Review Online. August 27, 2001 11:30 a.m. More by Kopel on the Vanessa Leggett case.
Classes at the University of Houston-Downtown began last Wednesday, while writing instructor Vanessa Leggett remained confined in a federal detention center for refusing to comply with an abusive FBI subpoena. While there's been a lot of attention about whether Leggett, who's writing a book, qualifies as a "journalist" and whether journalists should have immunity against grand-jury subpoenas, nobody is talking about how Leggett's case got into federal court in the first place — and how the case is another example of an out-of-control FBI.
Leggett's scholarly interest in domestic homicide led her to attend meetings of the academic organization known as the Homicide Research Working Group. In that capacity, she co-edits books containing the papers and discussions at an annual meeting. One of her fellow co-editors is one of us (Paul Blackman). Unfortunately, Leggett's confinement in federal jail has rather seriously impaired her ability to edit computer documents.
Ironically, even though Leggett was co-editor (along with Blackman and two others) of a book which has already been published by the FBI Academy, the Fifth Circuit Court of Appeals, in a recent decision keeping Leggett in jail, sneered that she wasn't a real journalist anyway, because she doesn't have a contract for her forthcoming book. (Leggett's published volume is The Varieties of Homicide and Its Research: Proceedings of the 1999 Meeting of the Homicide Research Working Group, published in 2000 by the FBI Academy.)
Back in 1997, Doris Angleton, the wife of wealthy former bookie Robert Angleton, was found murdered. Prosecutors believed Robert hired his brother Roger to kill Doris to prevent her getting millions in a divorce settlement. The case attracted the interest of Vanessa Leggett, a criminologist specializing in domestic homicide.
She started researching the Angleton murder case, eventually deciding to write a book about it. She interviewed Roger, in jail, the day before he was found hanged in his jail cell, an apparent suicide. He left a note admitting his own culpability but exonerating his brother Robert. The note claimed that the evidence against Robert has been manufactured so that Roger could blackmail Robert.
Nevertheless, Robert Angleton was prosecuted for homicide in Texas state court. Prior to Robert's trial, Leggett reluctantly turned over the local authorities the information she had from Roger; this evidence suggested that Robert had, indeed, asked his Roger to murder Doris. Neither Leggett nor her evidence was used in the trial. Robert Angleton was acquitted, as a result of a prosecution that embarrassed the Houston Police Department office. It turns out that Angleton was an informant for the Houston police and for the FBI.
Politically ambitious prosecutor Chuck Rosenthal was dissatisfied with the result. His wife Cindy is a Houston FBI agent and the feds started investigating Angleton.
Local authorities gave some of Leggett's materials to a federal grand jury, but her problems began late last year when she refused to become a paid informant for the FBI. She also refused to let them decide when she could publish her book. The FBI responded with a subpoena, which Cindy Rosenthal personally served on Vanessa Leggett. The subpoena demanded that she turn over to the FBI every note she had had about her book in progress — and all copies of the notes. In other words, she was supposed to surrender control of the book to the FBI, with her ability to continue writing dependent on whether the FBI ever decided to give her the notes back. Now, she's in a federal detention center for contempt of court because she defied the subpoena.
When the case was heard by the Fifth Circuit Court of Appeals recently, the government finally backed away from its demand for all of her copies of everything. For the first ten days that Leggett spent in federal jail, her husband was not allowed to visit her (ostensibly because the government had not gotten around to processing some paperwork).
Although neither the U.S. Code nor Texas have a specific immunity statute for journalists, the Fifth Circuit acknowledged that subpoenas to journalists must be quashed when there is abuse or harassment. Not that the Fifth Circuit could see any evidence that the FBI was retaliating against Leggett for refusing to become an informant and to let the FBI take control of her book.
The news media are focusing on the issues of her right to refuse to serve as the government's "lapdog" (to use her attorney's word). What's missing in the debate, however, is the issue of why the federal government has a grand jury investigating a local murder, where the only surviving suspect has been acquitted.
The tradition in this country is that if the government thinks you committed a crime, it gets one chance to try you for it. If the government wins a conviction, fine. If you're acquitted, you're forever protected from being tried again for the same offense. The Fifth Amendment of the United States Constitution states: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The Fifth Amendment was not creating a novel principle, but instead affirming centuries of English common law, as articulated by Blackstone and Coke.
That constitutional protection from double jeopardy has always had a few commonsense limitations: If you're convicted, but successfully appeal on grounds of procedural error, you can be tried again. A hung jury — no decision — allows the government another go at you.
But one of the legacies of America's failed experiment with alcohol prohibition was Supreme Court doctrine creating a massive loophole to the Constitutional prohibition of Double Jeopardy. A man in Washington State was convicted of operating a still, and paid a fine of $250 in state court. The federal government then decided to prosecute him for violating the National Prohibition Act.
In the 1922 case United States v. Lanza Chief Justice William Howard Taft (author of the infamous — and later over-ruled — majority opinion in Olmstead upholding warrantless wiretapping to enforce prohibition) wrote that the double jeopardy clause did not bar the federal government from prosecuting someone for a crime which had already been prosecuted under state law:
"We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other."
This was judicial nullification of the constitution, pure and simple. As University of Utah law professor Paul Cassell explains, the Fifth Amendment incorporated the full strength of the English common-law prohibition on double jeopardy. Cassell cites the case of Rex v. Hutchinson, in England attempted to prosecute Hutchinson for murder after he had had been acquitted of that charge in Portugal. The prosecution was thrown out of court.
Blackstone, the great expositor of the common law, explained when a man could raise the defense of autrefois acquit("formerly acquitted"): "when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offense, he may plead such acquittal in bar of any subsequent accusation for the same crime." (4 William Blackstone, Commentaries *335, emphasis added).
At least in the prohibition cases, the federal government was enforcing a genuine constitutional power, which had been specifically granted by the 18th Amendment.
The federal government is granted only certain, enumerated powers by the Constitution, and a general police power is definitely not among them. But starting with the Gun Control Act of 1968, Congress began to usurp general criminal law power, by claiming that almost every form of intrastate crime had some kind of economic effect, and was therefore subject to Congress's legitimate power "to regulate commerce…among the several states."
In United States v. Morrison (2000) and United States v. Lopez (1995), a sharply-divided Supreme Court finally began to reject the legal fiction that the interstate commerce power gives Congress infinite power of local matter of criminal law. Even so, a vast body of federal criminal statutes, covering almost every possible state-level felony, remain on the books, even though the federal "laws" are usurpations of power which was never granted to the federal government.
And thus, Robert Angleton — having been conclusively acquitted by a Texas jury — is being investigated again, under federal charges. Meeting in secret, the grand jury is rumored to looking at federal tax evasion (a legitimate issue for a federal grand jury), money laundering (an anti-privacy law created as a result of the modern failed experiment with drug prohibition), and gambling (a victimless crime). But the real purpose the grand jury is apparently to try to hang some federal charge on Angleton related to the death of his wife.
Notwithstanding the sophistries of Chief Justice Taft, a prosecution (and a grand-jury investigation to prepare the way for a prosecution) following an acquittal is an obvious violation of the Constitutional mandate: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
Attorney General Ashcroft has come under fire, because Department of Justice guidelines require his personal approval for issuing a subpoena to a journalist, and it's not clear whether he did approve the Leggett subpoena. It may be that the FBI, having determined that neither writing a book nor editing a book published by the FBI Academy makes a person into a real journalist, and thus the FBI never bothered to ask Ashcroft for permission. The Leggett case is one more example of abuse by FBI, perhaps the most out-of-control agency in the federal government.
Is Robert Angleton guilty of murder? We don't know for sure, but the United States Constitution says that the last word on that matter belongs to the Texas jury which acquitted him. We do know that Vanessa Leggett, a writer who has done absolutely nothing wrong, may spend the next 18 months in a federal jail because she wouldn't become an informant and wouldn't let the FBI control her book.
Attorney General Ashcroft, make the Department of Justice once more worthy of its name. Free Vanessa Leggett.