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* Idaho's Right To Prosecute Murder vs. Federal Courts

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    J.A.I.L. News Journal Los Angeles - December 21, 2000 ____________________________________________________ Listen to HotSeat4Judges daily on Internet Radio
    Message 1 of 1 , Dec 22, 2000
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      J.A.I.L. News Journal
      Los Angeles - December 21, 2000
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      Idaho's Right To Prosecute Murder vs. Federal Courts


      Court weighs bid to try FBI agent: He killed separatist's wife at Ruby Ridge

      By Claire Cooper
      Bee Legal Affairs Writer
      (Published Dec. 21, 2000)

      SAN FRANCISCO -- An 11-member panel of federal circuit judges gave no indication Wednesday whether it will allow Idaho to prosecute an FBI sharpshooter who killed a woman during the 1992 Ruby Ridge standoff.

      As two of the nation's top legal talents presented sometimes emotional oral arguments, the judges of the 9th U.S. Circuit Court of Appeals struggled with concepts of official immunity and federal supremacy.

      Arguing on the side of Idaho officials, former U.S. Attorney General Ramsey Clark called FBI agent Lon T. Horiuchi's killing of Vicki Weaver a "summary execution," a classic case of excessive force by police that's well within the scope of the state courts to prosecute.

      Seth Waxman, the U.S. solicitor general, countered that the freedom of federal agents to act in crises is "a principle of surpassing importance." He argued, "State prosecution of federal officers is terribly chilling in all but extreme cases, and this is not one of them."

      The case grew out of the fatal shooting of Weaver, the wife of separatist leader Randy Weaver, as she stood holding her baby during the second week of a standoff at the couple's Idaho cabin. Federal agents were attempting to serve a weapons trafficking warrant. Horiuchi opened fire to keep the Weavers' friend, Kevin Harris, from taking cover in the cabin.

      Local prosecutors in Boundary County, Idaho, charged Horiuchi with involuntary manslaughter after the U.S. Department of Justice announced it would not prosecute him or his superiors.

      A judge in Idaho threw out the case. A three-judge panel of the 9th Circuit upheld that action last June, saying Horiuchi made "an objectively reasonable decision" to shoot. But the full 9th Circuit sent the case to an 11-judge panel for a fresh look.

      During Wednesday's arguments, only one judge, Andrew Kleinfeld of Fairbanks, Alaska, appeared firmly to take Idaho's side, saying Horiuchi should not be able to escape prosecution by claiming he was following orders.

      But even Judge Alex Kozinski of Pasadena, who dissented strongly from the ruling in June, was hard to read, challenging the lawyers on both sides.

      "It is troubling," he said, to let 50 states "trump" the authority of federal agents by applying their criminal laws.

      Judge Pamela Rymer, also of Pasadena, said Horiuchi could not be prosecuted if he had a "reasonable belief" that the shooting was necessary to protect federal officers who were in danger.

      Clark responded that the facts did not support any such belief, and much of the oral argument session was devoted to questions and answers about circumstances surrounding the shooting.

      There is no deadline for the court's decision.

      Every prosecuted SS Troop under Hitler argued as a defense at the Nuremberg Trial that they were just doing their job and following orders.
      Murder is a state's rights issue, and in this case, Idaho's rights. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Tenth Amendment, U.S. Constitution.
      So one must ask two threshold questions, "Is Idaho prosecution for murder delegated to the United States by the Constitution?" Answer: NO! Next question, "Is Idaho prohibited from prosecuting murder by the U.S. Constitution?" Answer: NO!
      Subsequent questions are: Where in the U.S. Constitution does it define the "concepts of official immunity and federal supremacy" as it relates to states' rights? Where in the U.S. Constitution does it define "the freedom of federal agents to act in crises," and how does it define "crises?" And how can the question of "a 'reasonable belief' that the shooting was necessary" be "an objectively reasonable decision?" Isn't that an issue of fact to be tried by a jury?  Imagine if anyone else facing a murder trial escaped his trial based upon his argument that he had a "reasonable belief" that his killing was "necessary," and was thus "an objectively reasonable decision." And where is "equal protection under the law?" Are FBI agents above the law, while citizens are liable under the same standard? You be the judge! Is this so complicated that a Federal Court should be involved here at all on "whether it will allow Idaho to prosecute an FBI sharpshooter?"
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