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Supreme Court Agrees to Hear Case Challenging Government Efforts to Undermine Sixth Amendment Rights, Unfairly Deny Protections to Citizens

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WASHINGTON, D.C. — The U.S. Supreme Court has agreed to determine whether the government is circumventing critical constitutional safeguards against being tried in an improper location and Double Jeopardy, which prohibits the government from prosecuting someone twice for the same crime. In asking the Court to hear Smith v. United States, The Rutherford Institute, Cato Institute and the National Association for Public Defense urged the 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.

“We now live in a society in which a person can be accused of any number of crimes without knowing exactly what he has done,” 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.”

Smith v. United States is one of two cases on appeal to the U.S. Supreme Court that raised concerns about the government diminishing a person’s rights under the Sixth Amendment. The Supreme Court refused to hear the appeal in the second case, Khorrami v. Arizona, leaving a lower court ruling in place that undermines the longstanding right to have a trial by an impartial jury of twelve fellow citizens. In his dissent over the denial of Khorrami, Justice Neil Gorsuch agreed with the arguments advanced by The Rutherford Institute and the ACLU in their amicus brief, and warned that allowing juries of less than twelve people for serious criminal charges “continues to undermine the integrity of the Nation’s judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable.”

Smith v. United States involves the right to be tried in the district where an alleged crime was committed. Although 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, 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 but held that he could be retried for the same offense in the proper district without implicating the Double Jeopardy clause. In the sole amicus brief submitted in Smith, attorneys for The Rutherford Institute, Cato Institute and the National Association for Public Defense argued that the government should not be permitted to try a defendant in a district other than where the alleged crime occurred. The legal coalition warned that if the government can simply re-prosecute defendants who were tried in the wrong district, then there is no sufficient consequence to deter the government from selecting an unfair location for trial, just as the British Crown removed colonial defendants overseas to England to be tried. Further, the government would be effectively allowed to 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 amicus brief, available at www.rutherford.org.

November 23, 2022 • Supreme Court Allows Government to Disregard Right to Twelve-Person Jury Trial

August 25, 2022 • Rutherford Institute Challenges Government Efforts To Undermine Sixth Amendment Rights

Amicus Brief: Smith v. United States

Article posted with permission from John Whitehead

John Whitehead

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He is the author of A Government of Wolves: The Emerging American Police State and The Change Manifesto.
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