ACLU Backs Cop in Hoax Appeal

Posted May 16, 2003 at 6:28pm

The Washington, D.C., chapter of the American Civil Liberties Union plans to file a friend of the court brief on behalf of a former Capitol Police officer convicted of staging an anthrax hoax in late 2001.

In March, the U.S. Court of Appeals for the D.C. Circuit agreed to hear James Pickett’s case. The decision to hear the appeal came a month after a U.S. District Court judge sentenced him to two years of probation and 200 hours of community service. The sentence was suspended pending appeal, but Pickett was nonetheless terminated.

A petition is circulating among Capitol Police officers to sign the ACLU’s amicus brief, according to several current and former officers. A spokesman for the ACLU of the National Capital Area said Friday he could not comment on any other signatories, but did confirm the group’s intention to file the amicus brief Thursday.

In November 2001, shortly after letters containing anthrax were sent to the Hill, Pickett left a note and the contents of an Equal sweetener packet at his post in the Cannon House Office Building tunnel. The note read in all capital letters: “Please inhale. Yes this could be? Call your doctor for flu symptoms. This is a Capitol Police training exercize [sic]! I hope you pass!”

Last November, a jury convicted the 14-year veteran on the charge of making false statements, the more serious of the two counts he faced. At that time his status on the force was changed from suspension with pay to suspension without pay, according to his attorney. At the sentencing, the defense told the judge that Police Chief Terrance Gainer had indicated Pickett would be terminated regardless of the appeal. The Capitol Police have said only that Pickett would go before a disciplinary review board and declined to comment further, calling it “a personnel matter.”

Pickett filed his appeal “in forma pauperis,” indicating that he can no longer afford representation. His lawyer for the district court trial, Eli Gottesdiener, agreed to be assigned as his court-appointed attorney.

Pickett filed his brief with the appeals court last week, and the response from the U.S. attorney’s office is due mid-June.

In the appellate brief, Gottesdiener argues that the conviction should be overturned on several grounds, including the instructions U.S. District Judge Thomas Penfield Jackson gave to the jury, as well as the judge’s denial of Pickett’s request to “be physically present at the bench to see and hear” prospective jurors during selection of the panel. Gottesdiener also questions whether the government had enough evidence to convict Pickett even if it was a perfect trial.

In filing an amicus brief, the ACLU seeks to give the appeals court yet another reason to overturn Pickett’s conviction.

“The main thing we want to do is bring the First Amendment in to the case,” said Art Spitzer, the local chapter’s legal director. “It seems to us that what officer Pickett did was a commentary on what training the Capitol Police got on the anthrax situation.”

The defense repeatedly asserted during the trial that none of the Capitol Police officers who found the note took it seriously, and Pickett himself said when he took the stand that he meant it as an editorial statement on the lack of training the force received after the anthrax attacks. The government’s own witness (the officer who took over Pickett’s post) said she didn’t believe the substance to be the deadly pathogen and consequently didn’t call the Hazardous Device Unit. The force never tested the substance.

Spitzer maintains that those circumstances prove the note was satire, making it constitutionally protected speech.

“No one thought this powder was anthrax. Everyone understood that it was a satiric message, and the First Amendment protects satire. And that’s an element that I think has not been stressed in the case to this point,” he said.

In his most sweeping argument for the appellant, Gottesdiener argues that Pickett is entitled to an acquittal on the false statement charge because the government failed to prove that the matter was within the jurisdiction of the legislative branch.

When Congress revised the statute governing false statements in 1996, it circumscribed its application in the legislative branch to include only two areas: administrative matters and investigation or review. Gottesdiener maintains that neither is applicable in this case.

He quoted Sen. Arlen Specter (R-Pa.) and then-Rep. Bill McCollum (R-Fla.) during the 1996 debate discussing the scope of the statute in the legislative setting as evidence that Congress never intended for such actions as Pickett’s to be included.

Spitzer concurred with Gottesdiener’s arguments.

“Congress was very clear,” he said. “When it came to false statements to Congress, the statute was made in a much more limited way” than it was for the executive branch. He maintained that if the appeals court allows the statute to be applied to Pickett in the way the judge did in district court, making criminal all false statements to a Congressional entity, it could have broad implications for speech on the Hill.

“Congress recognized that lobbying isn’t like making statements to the FBI,” Spitzer said, adding that people who do business on the Hill “would be horrified if every statement they made to a staffer, if it’s not the truth, could land them in jail.”

Gottesdiener is also taking aim at the jury instructions. He said his client is entitled to a new trial because the judge should have instructed the jury that the government had to prove that Pickett had “an intent to disrupt” the business of the Capitol Police in order to convict him.

Pickett’s brief also argues that he should get a new trial on grounds that the trial court “denied appellant’s request to be present [for jury selection] without any explanation other than it did not want appellant ‘going eyeball to eyeball’ with prospective jurors.’” The judge told Pickett that he could listen in on headphones instead, but four hours of jury selection were held even after he was informed the headphones didn’t work.