Criminal
Oct. 14, 2003
Long Arm of Patriot Act to '70s Killings
SAN FRANCISCO - A secret federal grand jury has subpoenaed fingerprints and DNA from former members of the Black Panthers, Weather Underground and Black Liberation Army as part of an investigation into the 1970s killing of two San Francisco police officers, according to defense lawyers.
Lawyers assisting several of the 20 to 30 people contacted around the country say that there are serious questions about whether prosecutors can establish federal jurisdiction over the 30-year-old cases. The attorneys say they suspect federal officials are trying to use the anti-terrorism provisions of the Patriot Act for authority to delve into the unsolved killings.
Oakland attorney Stuart Hanlon said the government "could be caught with their pants down" if they try to bring charges based on the Patriot Act's anti-terrorism provisions against alleged members of the 1960s radical groups. "It doesn't appear to me they have jurisdiction," he said.
Hanlon and San Francisco attorney Charles Bourdon said the U.S. Department of Justice has resurrected an investigation into the Feb. 16, 1970, car bombing of the Park Police Station near San Francisco's Kezar Stadium and the 1971 shooting of a police officer at Ingleside Station.
Neither case was ever solved. Hanlon and Bourdon declined to identify those they are helping.
Hanlon said Assistant U.S. Attorney Michael Nerney has been leading the grand jury investigation and sending former San Francisco police investigator Ed Erdelatz around the country to get fingerprints as part of the case.
Erdelatz, now an investigator in the Alameda County district attorney's office, said Friday, "I'm going to have to decline to talk about that."
Nerney, when asked about the grand jury, said, "You have got to be kidding. The Department of Justice has rules, in case you haven't heard, and that is we do not comment on investigations. I have absolutely nothing to say. I won't confirm or deny anything."
The killings came at a time of high political tension in California and intense anti-war sentiment nationally.
In 1970, the Chicago Seven were on trial for protests outside the Democratic National Convention and a bloody shooting at the Marin County courthouse left three people dead, including a judge. In February of that year, a car bomb exploded outside the Park Police Station leaving at least six police officers injured, according to press accounts. Two days later, Sgt. Brian McDonnell died of his injuries.
Eighteen months later, radical Angela Davis was facing trial for allegedly helping in the botched escape attempt at the Marin courthouse. Around that time someone burst into the Ingleside Station, and shot and killed desk Sgt. John Young.
Although there is no statute of limitations for murder in state prosecutions, prosecution for murder under federal law is very specifically defined and limited, according to Hanlon and other defense lawyers.
"Normally these would be state offenses subject to state prosecution," Bourdon said. "But post 9/11, with [Attorney General] John Ashcroft and the success of their prosecution of the Symbionese Liberation Army, the prosecutors may be thinking they have authority under the Patriot Act."
Bourdon said one hint of the government's thinking came in the U.S. Solicitor General's briefs in the Supreme Court case that invalidated California's extension of the statute of limitations on old sex-abuse crimes, Stogner v. California, 123 S.Ct. 2446 (2003).
In those briefs, the solicitor general warned the high court that if it disallowed extension of the statute in the California case it could adversely affect the Patriot Act. One of the Patriot Act's provisions removes the statute of limitations on terrorism crimes - those listed in 18 USC 2332b(g)(5)(B) - that result in or create a risk of death or serious bodily injury. Prior to the Patriot Act, those crimes had to be prosecuted within eight years.
In Stogner, the high court ruled that California could not prosecute sex crimes after the three-year statute of limitations passed, despite a 1993 law that would have extended the statute's reach.
Federal Public Defender Steve Kalar said Friday he does not believe the federal prosecutors could rely on the Patriot Act's antiterrorism provisions because they would create the ex post facto problem defined in Stogner.
Kalar speculated that prosecutors could rely on the existence of a bomb in the 1970 case because that frequently creates federal jurisdiction. Or they might use the federal anti-racketeering statute.
But the anti-racketeering law, known as RICO, was passed in late 1970, after the car bombing at the Park Police Station, according to Bourdon.
As for challenging the grand jury requests for fingerprints or DNA, those are much more difficult issues at the grand jury stage.
Shawn Halbert, a federal public defender in Oakland, said grand juries have broad investigative powers. They can subpoena fingerprints and that cannot be refused. But DNA is a more unsettled question in the law right now.
She said she believes a gang case currently pending in federal court in San Francisco may result in an order that the government must have at least reasonable suspicion before demanding DNA. The judge could even require a higher standard of probable cause for the DNA.
Earlier this month, the 9th Circuit Court of Appeals held that parolees can't be forced to give blood for a federal DNA database without individualized suspicion of a crime, U.S. v. Kincade, 2003 DJDAR 11144.
But a challenge to a grand jury demand for DNA may have to wait until actual charges are filed, Halbert said.
"I really think it would be an unusual challenge to mount before charges are brought," she said. "But if a lawyer really thought there was no federal jurisdiction, they could bring them early."
Bourdon said he doesn't know if the grand jury is engaged an investigation or is going to bring indictments. "We have our suspicions, but it is hard to know what is real," he said.
"I think the government is looking at groups of individuals, who back in that era were thought by the government to represent a threat to the government," Bourdon said.
Hanlon said he thinks the Bush administration in Washington, D.C. wants to send a message. "It seems very personal. It involves people the feds didn't like back then and they are abusing their power by going after them now."
Long Arm of Patriot Act to '70s Killings
Pamela Mac Lean
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