FILE - In this Sept. 29, 2009 file photo, Associate Justice Anthony Kennedy sits for a new group photograph at the Supreme Court in Washington. An illicit love triangle that ended with a woman poisoning her pregnant rival spawned a debate over chemical weapons, international relations, federalism and chocolate at the Supreme Court Tuesday, with justices left trying to make sense of how a jealous wife ended up being prosecuted for violating an international chemical weapons treaty. Kennedy said it "seems unimaginable that you would bring this prosecution." (AP Photo/Charles Dharapak, File)
Tuesday, November 05, 2013 3:55 pm
Court dubious in poisoning case that cites treaty
By JESSE J. HOLLANDAssociated Press
Carol Anne Bond of Lansdale, Pa., is challenging her conviction, saying that the federal government's decision to charge her using a chemical weapons law was an unconstitutional reach into a state's power to handle what her lawyer calls a domestic dispute.
Bond, unable to carry children of her own, was excited when her best friend Myrlina Haynes announced her pregnancy. But Bond later found out her husband of more than 14 years, Clifford Bond, was the father.
Bond, a laboratory technician, stole the chemical 10-chloro-10H phenoxarsine from the company where she worked and purchased potassium dichromate on Amazon.com. Both can be deadly if ingested or exposed to the skin at sufficiently high levels.
Bond combined and spread the chemicals on Haynes' door handle and in the tailpipe of Haynes' car. Haynes noticed the bright orange compound but could not get local police interested in investigating. She called at least a dozen times, but police suggested that she take her car to a car wash and suggested that the chemicals might be cocaine.
When Haynes found the compound on her mailbox, she complained again to police, who told her to call the United States Postal Service. Federal investigators videotaped Bond going back and forth between Haynes' car and the mailbox with the chemicals. Postal inspectors arrested Bond, saying that Bond tried to poison Haynes at least 24 times between 2006 and 2007.
"The state of Pennsylvania exercised its prosecutorial discretion not to pursue this matter," Bond's lawyer said.
But a federal grand jury indicted her on two counts of possessing and using a chemical weapon, applying a federal anti-terrorism law. The law was passed to fulfill the United States' international treaty obligations under the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on Their Destruction.
Bond pleaded guilty and was given six years in prison. This is her second time in front of the Supreme Court. In 2011, the court unanimously sided with Bond to allow her to challenge her conviction despite arguments from federal prosecutors and judges that she should not even be allowed to appeal the verdict. Lower courts subsequently rejected the appeal, leading to her current challenge.
A couple of justices were very critical of government prosecutors for choosing even to prosecute Bond using the chemical weapons law. "If you told ordinary people that you were going to prosecute Ms. Bond for using a chemical weapon, they would be flabbergasted," said Justice Samuel Alito. "It's so far outside of the ordinary meaning of the word."
Justice Anthony Kennedy said it "seems unimaginable that you would bring this prosecution."
The chemical weapons law makes it illegal to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess or use, or threaten to use, any chemical weapon."
Justices went down a long list of everyday items that could be prosecuted under the law since they could cause harm to humans or animals, including the use of kerosene, matches, performance-enhancing drugs used in sports, and even vinegar - which would poison goldfish if introduced to a fishbowl. Alito later drove home his point by saying under the law, even innocent ordinary actions could become questionable if the government's power is not limited.
"Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?" he said to laughter from the courtroom. "On Halloween, we gave them chocolate bars. Chocolate is poison to dogs, so it's a toxic chemical under the chemical weapons" law.
Solicitor General Donald Verrilli assured Alito he would probably get away with it, but warned the issue was no joke and said justices shouldn't get involved in trying to decide what treaty terms mean.
"One of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful uses and warlike uses," Verrilli said. "And this phrase, `peaceful uses' is not only in the Chemical Weapons Convention, it's in the Nuclear Nonproliferation Treaty, and we're engaged in very sensitive negotiations right now under the Nuclear Nonproliferation Treaty trying to draw exactly the same line. And it would be terribly unfortunate, I would submit, if the court were to announce in the context of this case ... a definition of what warlike constitutes that could have an unfortunate bearing on those" negotiations.
Bond's lawyer, former Solicitor General Paul Clement, said the law should have never been applied to Bond, considering that it was passed to deal with countries. "With all due respect, I don't think that nation-states poison romantic rivals, attempt to commit suicide or try to get rodents out of their houses," Clement said.
And since they did apply it to her, it was an unconstitutional overreach by Congress, he said.
"If the statute at issue here really does reach every malicious use of chemicals anywhere in the nation, as the government insists, then it clearly exceeds Congress's limited and enumerated powers," Clement said. "This court's cases have made clear that it is a bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct without regard to a jurisdictional element or some nexus to a matter of distinctly federal concern."
But Justices Ruth Bader Ginsburg and Elena Kagan pointed out that since the treaty was legal, then the implementing legislation would have to be legal as well, a position Verrilli supported.
Justice Sonia Sotomayor noted that the federal government regulates the use of marijuana. "Why is it, if it's OK to regulate the possession of marijuana, a purely local crime, why is it unconstitutional to regulate the use of something that can kill or maim another human being?" she said.
She also noted that federal officials have criticized Syria for that country's supposed use of chemical weapons.
Syria is believed to possess around 1,000 metric tons of chemical weapons, including mustard gas and sarin. Washington and U.S. allies accuse the Syrian government of being responsible for an Aug. 21 chemical weapon attack on a Damascus suburb, while Damascus blames rebels. The Syrian government recently began working to get rid of its chemical weapons under the treaty.
"It would be deeply ironic that we have expended so much energy criticizing Syria, when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional," Sotomayor said.
Justices are expected to make a decision before summer.
The case is Bond v United States, 12-158.
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