Supreme Court Watch: Does witness murder statute require intent to talk to feds?

By Kimberly Atkins

The Daily Record Newswire

BOSTON, MA -- The U.S. Supreme Court heard oral arguments last week in a case considering whether a federal witness-protection murder statute requires proof that the victim would have informed federal authorities of a federal crime.

The case Fowler v. U.S. stems from a planned bank robbery. A group of men, including Charles Fowler, was sitting in a stolen car in a cemetery overnight to drink, do drugs, listen to music and plan a bank robbery for the next morning.

At one point, Fowler wandered away from the crowd to do more drugs alone. During this time, a local police officer spotted the stolen car and shined a light on its occupants. Fowler returned to the scene, saw the officer and grabbed him from behind. The other men helped subdue the officer and Fowler took his gun.

When the officer recognized one of the men, Fowler said to his comrade: "You know him? Oh, man, why? Now we can't walk away from this thing." Fowler shot the officer in the back of the head, killing him.

After one of his cohorts confessed to police, Fowler was charged under U.S.C. §1512(a)(1)(C), a federal statute for murder committed to "prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a federal offense." He was convicted and sentenced to life.

He appealed, arguing that prosecutors failed to prove that the officer would have likely told federal authorities of the planned federal offense.

The 11th Circuit affirmed the conviction, arguing that the statute focuses on the defendant's state of mind, not the victim's. The U.S. Supreme Court granted certiorari.

Searching for a standard

Stephen M. Crawford, a Tampa, Fla. attorney who represented Fowler, noted the disparity in standards among the circuits on the issue of what must be shown under the statute. He urged the Court to rule that prosecutors must show a "realistic likelihood" that the victim would have communicated with federal authorities.

"It is a reasonable standard - more reasonable than ... we would characterize the government's standard of 'reasonably possible,'" Crawford said.

"The statute speaks of the intent of the defendant," said Justice Samuel Alito. "Where do you get this question of whether it's 'possible' or 'likely' or 'certain' or whatever?"

The law "takes the mens rea element of the defendant off the table with respect to whether or not the person is a law enforcement official or whether or not there's an ongoing federal criminal investigation," Crawford said.

"Does he have to intend to stop the witness from communicating this information to someone that's related to either a federal judge or a federal law enforcement agent?" asked Justice Sonia Sotomayor.

"Yes, Your Honor," Crawford said.

"What does that have to do with [a] reasonable likelihood that it would occur?" Justice Antonin Scalia asked. "It seems to me you have to stand on one stool or the other. Either it relates to intent, as the statute says, or all there has to be is a reasonable likelihood."

"That's what we are struggling with here, Your Honor," Crawford said, "trying to come up with a standard."

Alito asked whether Fowler's narrow reading of the statute would defeat its purpose.

"Your client killed Officer Horner simply because your client didn't want to go to jail," said Alito. "He didn't particularly care whether he was going to be prosecuted in state court or federal court. He just didn't want to go to jail."

"That reading of the statute would basically federalize murder, and if that becomes the standard reading, then every case is going to be allowed to be prosecuted federally," replied Crawford.

Too tough for juries?

Sarah E. Harrington, assistant to the solicitor general, tried to clarify when courts should consider intent, and when the government's proffered "realistic probability" standard should apply.

"Just to be clear, the realistic possibility part only comes in where the defendant doesn't have a specific intent as to the federal officer specifically," Harrington said.

Justice Anthony Kennedy didn't seem to think that helped.

"I think it's very difficult to instruct the jury, to say, now, sometimes there's realistic probability, sometimes there isn't," Kennedy said. "I just don't know what this jury instruction is going to look like."

"I think the jury instruction would say: you need to make a determination about what could have happened if the murder hadn't occurred, and if you find that there is a reasonable possibility that there would have been a communication with the federal officer, [then] you find that there's a violation of the statute."

"Why do you need that?" Scalia asked. "Why isn't it enough to say you killed that person to prevent the disclosure of the crime? ... Why do you [need] a reasonable likelihood that this person would have gone to a federal officer rather than a state officer? Isn't it enough to kill the person to prevent disclosure of [a federal] crime?"

"I think that's an interpretation of the statute the government could live with," Harrington said.

"I think the government could more than live with it - the government would wallow in it," Scalia said.

"But that is a more aggressive reading than the reading we're offering," Harrington said.

Published: Mon, Apr 4, 2011

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