By Michael J. Nichols
(Editor’s note: this column focuses exclusively on criminal law. The intent of the column is to educate judges and attorneys who practice criminal law whether the attorney practices exclusively in criminal defense, is a prosecutor or whether the attorney is a general practitioner.)
The year is 2006 and Carol Anne Bond is happy over the news of her friend’s pregnancy. Her friend, Myrlinda Haynes, is more than just a friend. Myrlinda is like a sister. Carol is from Barbados and so is Myrlinda. When Carole immigrated to the United States with her mother in 1995, she befriended Myrlinda. Carol is married to Clifford but is incapable of having children herself. She works at Rhom and Haas as an analyst and has training in the use of chemicals and access to them.
Then Carol learns that the father of her best friend’s baby is her husband Clifford. This rocks Carol’s world. Carol becomes depressed. She loses her hair. She suffers panic and anxiety attacks. In the midst of this anxiety and depression, Carol becomes fixated on getting revenge against Myrlinda and promises her that she will make her life a living hell. So she does.
Carol steals a chemical from work. The chemical is called 10-colo-10H-phenoxarsine. She also purchased potassium dichromate. Carol’s plan is to expose her friend Myrlinda to these toxins and cause her an uncomfortable rash. She carries out the plan. Myrlinda finds mysterious traces of chemicals in her car and around her house. Police investigate and eventually catch Carol taking Myrlinda’s mail so that she can expose Myrlinda to the toxic chemicals by putting it on her mail.
Sufficient exposure to both toxins can be fatal. Myrlinda already suffered a slight burn on one of her hands.
When Carol is caught, the matter is not treated as one of local state interest. Carol’s crimes are treated essentially, as state-sponsored government terrorism. She is charged with possession of chemical weapons under 18 USC 229, a law enacted by Congress to implement the obligations of the United States under the Chemical Weapons Convention. The maximum penalty of life in prison and sentencing guidelines range scored by the government of 97-121 months with 5 years of supervised release was much more serious than what she faced if she were convicted in a local court in Pennsylvania for crimes under state law—for example, stalking or assault.
Carol’s lawyers decided to argue that the Congress did not have the authority to enact a statute under which she could be punished for possessing chemical weapons. The argument would be a new and novel one: that under the 10th Amendment of the United States Constitution, Congress had no authority under Article I of the Constitution in this area, therefore, it had no authority to regulate or outlaw conduct that was not reserved to it and that was not prohibited by the states. In this case, the chemical weapons statute only requires proof that Carol possessed chemical weapons. As her lawyers point out to the Supreme Court, the statute “includes no requirement that the alleged assault occur within the special jurisdiction of the United States, that the assault have an effect on interstate commerce, that the victim be a person or institution with recognized federal status, or that some other federal interest be involved,” (Petitioner’s Brief at 9).
The 3rd Circuit asked for briefs on the issue of whether Carol had standing. The government responded through the United States attorney to the court’s request and for the first time, raised the issue of whether Carol had standing. The court agreed and denied Carol’s motion, finding that she did not have standing to bring her 10th Amendment Claim. The court held that a private person does not have standing to bring a claim that the federal government interfered with the sovereign immunity of the states, citing Tennessee Electric Power Company v TVA, 306 US 118 (1939).
On the docket before the Supreme Court of the United States on February 22, 2011 is the case of Carol Ann Bond v The United States. The government of the United States will not be represented by the Solicitor General as is usual. Why not?
Because Solicitor General Neal Katyal decided to confess error. It is an incredibly thoughtful and thought-provoking action. “Confessing error” tells the Supreme Court that the solicitor general’s position is that the government should not have won at the lower court for the reasons that it did. That does not mean that the government ultimately agrees with Carol’s underlying (and rare) claim—simply that she has the right as a private citizen to bring it.
If Carol is allowed to pursue her claim, it will forge a new path for the governed to block its government from abusing and overusing its power. One means of challenging government prosecutions is for citizens who are prosecuted to raise constitutional challenges to those actions. Carol may have been acting in a blindness brought on by anger and betrayal—but her strategy in defending herself might bring new light to methods to limit congress in prohibiting conduct by individual citizens.
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Michael J. Nichols, of The Nichols Law Firm PLLC, focuses his practice exclusively on complex OWI/OWID cases and other select criminal and other litigation matters. He is the author of the “Michigan OWI Handbook” published by West, chairs the Ingham County Bar Association Criminal Law section and is a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, The Criminal Defense Attorneys of Michigan and the State Bar and Ingham County Bar Association’s Criminal Law Sections. www.michiganduidefender.com.
