David Bernthal/Off the Bench: Many factors in determining jurisdiction

David Bernthal/Off the Bench: Many factors in determining jurisdiction

"Well, don't make a federal case about it."

I remember hearing that phrase long before I ever thought about becoming a lawyer. I suspect we all catch the drift of the statement. The person making the statement was generally encouraging the person on the receiving end to stop making a big deal out of something. Implicit in the comment is the notion that federal cases are a big deal. While being part of any case is generally a big deal to the people involved, I have to agree that in the context of criminal cases, facing a federal charge is a major problem.

Federal criminal prosecutions are brought by the Department of Justice usually in the forum of the office of the United States attorney for the district where the prosecution will take place. These prosecutions are limited to situations where the government believes a federal criminal statute has been violated. Violations of state penal statutes are prosecuted by attorneys for the state. For example, suppose two neighbors get into a dispute and one punches the other in the nose. Generally, that would lead to a misdemeanor charge of battery being filed in state court. If the injuries were great and/or the person struck was in a special category such as a police officer, the charge would be a felony but still proceed in state court. If the scenario was modified such that the victim was a mail carrier delivering mail, the matter could be prosecuted in federal court due to the status of the victim.

No one should conclude that the serious offenses end up in federal court while the less serious go to state court. Most people consider murder to be the most serious crime. By far, the majority of prosecutions for that offense take place in state court. Murder is always a violation of state law but rarely is it a federal offense. Only when certain factors are present will the taking of a life constitute a federal offense.

The picture becomes clouded when a particular act or series of actions could be found to be a transgression of either state or federal law. For example, the offense of felon in possession of a firearm could be charged in either jurisdiction. The same is true of certain drug offenses

People regularly inquire regarding why a particular offense is pursued in a particular court. As is often the case, no one explanation applies to all situations. Commonly, where a case is brought is determined by the law enforcement agency investigating the case. Cases handled by local officers (police or county sheriff) end up in state court, while matters investigated by federal agents (FBI, ATF for example) go to federal court.

Sometimes the criminal history of the accused plays a role. I have seen cases filed in federal court because the potential penalty was more severe than that for the state offense. Authorities who have dealt with a particular individual for years want to pursue the possibility of a lengthier sentence in an effort to "keep him off the streets." Over the years I observed this on many occasions. The most common situations involved convicted felons caught possessing a firearm. Because of the sentence potential (including additional time in prison if the person qualified as an armed career criminal as defined in the statute) local authorities would ask the United States Attorney to take the case.

Filing decisions in high profile cases often involve consultation between the offices of the relevant state's attorney and U.S. attorney. Various factors are considered, including the resources available to support the prosecution, the caseload of each office and the potential penalties that may be imposed. It should be noted that judges are not involved in these consultations or decisions.

In addition to the above, specific factors may influence the decision. Despite having no direct knowledge, I suspect that in the recent well-publicized local kidnapping case, the involvement of a foreign national was of significance in the decision to bring a federal prosecution.

Unlike civil cases, where the lawyers and the court sometimes face challenging issues regarding whether or not jurisdiction exists, such issues are rare in criminal cases. In the area of criminal cases, the real question is usually that of where the charges will be filed. Law enforcement officials must work that out.

Next time you read about a case, I hope this helps explain how it got to the court where it is being prosecuted.

David Bernthal, who lives in Mahomet, is a retired 21-year federal magistrate. He is of counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is askthejudge1@gmail.com.

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KlaatuSansGort wrote on August 15, 2017 at 3:08 pm

The columnist might consider sharing some observations, within the boundaries of professional discretion, regarding the Belleville Catering case and the purported awesome power of a federal court to order attorneys to retry a civil case in a state court without compensation.