Court Reverses Ex-Capitol Cop’s Conviction

Posted January 9, 2004 at 6:09pm

A federal appeals court on Friday overturned the district court conviction of the former Capitol Police officer who left a powdery substance at his post shortly after the anthrax attacks in late 2001.

A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit ruled unanimously that the District Court erred in denying James Pickett’s motion to dismiss before the case went to trial. A jury found Pickett guilty of making false statements.

Dismissing the indictment, Appellate Judges David Sentelle, Judith Rogers and A. Raymond Randolph determined that it omitted “language essential to the definition of the offense which it purports to charge.” Namely, the inditement failed to delineate under which section of the false statements statute his alleged offense fell.

“We’re ecstatic. It’s more than a complete vindication, if that’s possible,” said Eli Gottesdiener, Pickett’s attorney. “Not only was he completely acquitted, there no evidence of any of the essential elements of this [alleged] crime. The court says that they should never have brought an indictment.”

The government, Gottesdiener continued, was “unfairly and wrongly trying to make an example of Officer Pickett. His whole life has been turned inside-out and upside-down so they could make a point. I think the court made a point by telling the government that it had no business making the indictment.”

In October 2001, shortly after anthrax spores were mailed to Capitol Hill, Attorney General John Ashcroft held a press conference stating that anyone who perpetrates an anthrax hoax would be prosecuted to the fullest extent of the law.

“Clearly we’re disappointed with the decision, as we strongly believed in our case, but we respect the court’s decision,” said Channing Phillips, spokesman for the U.S. Attorney’s Office.

It was unclear Friday whether Pickett, who has been on unpaid leave, would be reinstated. Capitol Police Chief Terrance Gainer said through a spokeswoman that the agency did not have a comment at that time. “We have not seen the ruling,” he said.

When revising the false statements law in 1996, Congress circumscribed its application in the legislative branch to include only two areas: administrative matters and investigation or review.

“[A]n indictment that charges a false statement made in a matter within the jurisdiction of that branch without alleging that it was within one of the statutory categories has not charged an offense,” Sentelle wrote for the court.

The Supreme Court has laid out as a fundamental protection that an indictment must “contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet.”

But the court went even further than merely dismissing the indictment as an inadequate representation of the government’s case.

“Contrary to the government’s assertions, the evidence of an ‘investigation or review’ is neither overwhelming nor uncontroverted. Indeed, the evidence is so far from overwhelming that it would have been difficult for Pickett to find it in order to controvert it,” Sentelle wrote.

“Even at the present advanced stage of this litigation, it is not at all clear what the Government’s theory is as to the identity of the investigation or review in which the false statement is alleged to have occurred. The government’s primary argument on appeal is that the requirement of [the statute] for an investigation is satisfied by the investigation which the false statement occasioned. This theory just does not square with the words of [the statute].”

In a concurring opinion, Rogers went even further. She agreed that the conviction should be overturned because the indictment was inadequate. But she wrote that the failure to fully inform the defendant of the charges against him was reason enough to reverse the conviction, and the court need not determine that the charges, even if properly included in the indictment, didn’t fall within the confines of the statute to dismiss the indictment.

“The court’s further discussion of the government ’s failure to present evidence of an ‘investigation or review’ under [the statute] serves only to demonstrate that the question of whether or not harmless error review could apply is not before the court,” she wrote.

In November 2001, shortly after a letter containing anthrax was sent to Capitol 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: “Please inhale. Yes this could be? Call your doctor for flu symptoms. This is a Capitol Police training exercize [sic]! I hope you pass!”

The appeals court agreed to hear Pickett’s case in March 2003, a month after a U.S. District judge sentenced him to two years of probation and 200 hours of community service. The sentence was suspended pending appeal.

“Certainly we’ve very pleased with the decision,” said Arthur Spitzer, legislative director for the local chapter of the American Civil Liberties Union. “It shows that the government never should have brought this case in the first place. and shows that this case is just another example of the Justice Department’s post-9/11 hysteria.”

The ACLU for the national capital area filed an amicus curie, or friend of the court, brief on behalf of Pickett. The brief was signed by 89 Capitol Police officers.

The ACLU argued that the note was satire, and thus constitutionally protected speech. Pickett said he never intended for it to be seen by anyone other than its intended recipient, a fellow officer.

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 and found the note) 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.

The government “made off Pickett a poster child for [what] he hadn’t done — an anthrax hoax,” Spitzer said. “It was just a complete overreaction on the part of the Justice Department. They ought to be able to tell the difference between someone who makes an anthrax hoax and someone who makes a private joke among friends.”

The court did not resolve this nor a handful of other issues raised by the appellant, and the decision specifically questioned whether the free speech question was within the court’s jurisdiction. Generally, appellate courts don’t decide more issues than necessary to rule in a particular case.