Jacques to challenge federal authority

12-10-2009 Vermont:

BURLINGTON – In a legal maneuver that could help Michael Jacques avoid the death penalty, lawyers for the Randolph Center man accused of killing his 12-year-old niece will argue that the case does not belong in federal courts.

Defense lawyers indicated in a court filing Tuesday that they will challenge the jurisdictional venue in Jacques' kidnapping and murder case. Jacques is currently being tried on federal kidnapping charges, and prosecutors announced earlier this year they will seek the death penalty. If Jacques' lawyers are successful in their motion, the state of Vermont would assume the prosecution.

As one of 15 states that does not permit capital punishment, the most severe penalty Jacques could face in Vermont courts is life in prison without the possibility of parole.

Jacques, accused of drugging, raping and then killing 12-year-old Brooke Bennett in the summer of 2008, committed his alleged crimes within a small radius in central Vermont. But federal legislation passed under the Adam Walsh Act of 2006 expanded federal oversight in intrastate kidnapping crimes.

David Ruhnke, one of Jacques' lawyers, said the only motive for the federal oversight in this case is so prosecutors can seek the death penalty.

"They're out to kill him. That's putting it bluntly, but it's true," Ruhnke, a New Jersey lawyer who specializes in capital-punishment cases, said Wednesday. "As his attorneys, we're going to pursue every ethical and legal avenue available to us to prevent that from happening."

The case marks relatively uncharted territory for a new federal statute that has yet to be tested by a constitutional challenge. Ruhnke, along with other legal scholars contacted Wednesday, believes Jacques' docket is the first kidnapping case involving an alleged murder to be prosecuted under the revised federal law.

The Adam Walsh Act, known primarily for its Internet sex-offender registry requirements, broadened federal jurisdiction by saying that any kidnapping crime that involves an "instrumentality of interstate commerce" can come under federal purview.

"Th Adam Walsh Act amended the federal kidnapping statute to provide that a federal kidnapping case could be made not just with the victim travelling over state lines, but if the crime was committed using an instrumentality of interstate commerce," U.S. Attorney for the District of Vermont Tristram Coffin said Wednesday.

In Jacques' case, that instrument was the Internet, which prosecutors say he used to groom victims and which they say aided in the commission of the felony. But not for the 2006 revisions to the federal kidnapping law, Jacques would likely be facing a maximum of life in prison in a Vermont courtroom, rather than the possible death penalty in a federal venue.

Jacques has been in prison since his arrest last summer.

"With regard to this kidnapping statute, I think the legislative history of statute would be presumably that Congress thought it was important that, given the interstate reach of these kind of facilities, such as the Internet, there ought to be some power of federal law enforcement to address criminal conduct related to them," Coffin said.

Cheryl Hanna, a professor at Vermont Law School, said earlier this year that the Jacques' case could provide an opportunity to test the constitutionality of the new kidnapping law in a higher court.

"The Supreme Court in recent years has really tried to put limits on what the federal government can do relative to these kinds of crimes," Hanna said. "Now that they're seeking the death penalty, it's probably added incentive for his lawyers to challenge the constitutionality of the law, and I think they have a reasonable argument to make."

Jacques' lawyers have yet to file the motion to toss the federal charges, though Ruhnke confirmed Wednesday that they will in the future. ..Source.. Peter Hirschfeld Vermont Press Bureau