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Government Challenged Over Efforts To Undermine Sixth Amendment Rights, Unfairly Deny Protections to Citizens in Criminal Cases

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Published on: August 28, 2022

WASHINGTON, D.C. — The Rutherford Institute has called on the U.S. Supreme Court to rein in the government’s power to indiscriminately pick and choose the laws by which it will abide, especially as it relates to the rights of the accused in criminal cases.

Weighing in before the Supreme Court in two cases, Khorrami v. Arizona and Smith v. United States, Rutherford Institute attorneys are challenging government efforts to undermine longstanding Sixth Amendment rights: namely, the right to have a trial by an impartial jury of twelve fellow citizens and to be tried in the district where the alleged crime was committed.

“We now live in a society in which a person can be accused of any number of crimes without knowing what exactly he has done. He might be apprehended in the middle of the night by a roving band of SWAT police. He might find himself on a no-fly list, unable to travel for reasons undisclosed. He might have his phones or internet tapped based upon a secret order handed down by a secret court, with no recourse to discover why he was targeted,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “The Sixth Amendment serves as an antidote to the abuses of the American police state: ensuring that when people are accused of a crime, they know what they’re being charged with and are given the opportunity to have a fair, speedy and public trial, an impartial jury, the right to a lawyer, and the chance to confront and question their accusers.”

The two cases before the U.S. Supreme Court raise concerns about the government diminishing a person’s rights under the Sixth Amendment. In Khorrami v. Arizona, Ramin Khorrami was convicted for fraudulent schemes and theft by a jury of eight members. An Arizona law allows for criminal defendants to be tried by an eight-person jury, only requiring a twelve-person jury for charges which carry a punishment of death or imprisonment of 30 years or more. In their amicus brief in Khorrami, Rutherford Institute attorneys urged the Supreme Court to prevent the government from arbitrarily reducing the number of individuals on a jury, pointing out that a “jury” has long been understood to require twelve members since the Constitution and Bill of Rights were ratified. In Smith v. United States, Timothy Smith was convicted of theft of trade secrets for acts he committed while in Alabama involving computer servers located in the Middle District of Florida. However, Smith was charged and tried in the Northern District of Florida. Smith appealed, noting that he had been tried in the wrong district. The Eleventh Circuit Court of Appeals vacated Smith’s conviction. However, the appellate court held that Smith could be retried for the same offense in the proper district without implicating the Double Jeopardy clause. Rutherford attorneys warned that if there is no sufficient consequence to deter the government from selecting an unfair trial location or district, the government could circumvent protections against Double Jeopardy and perpetually retry an accused in one district after another.

Michael Li-Ming Wong, Robert K. Hur, Vladimir J. Semendyai, and Philip Hammersley of Gibson, Dunn and Crutcher LLP advanced the arguments in the Smith v. United States amicus brief. Stuart Banner of the UCLA School of Law Supreme Court Clinic advanced the arguments in the amicus brief for Khorrami v. Arizona.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Amicus Briefs

• Khorrami v. Arizona 

• Smith v. United States

Article posted with permission from John Whitehead


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