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A federal magistrate determined this week that the former Capitol Police officer convicted of staging an anthrax hoax could not hear the jury selection for his trial due to malfunctioning headphones, increasing the likelihood that his conviction will be overturned.

James Pickett’s attorney plans to send a copy of the magistrate’s factual opinion to the three-judge panel hearing his appeal. Oral arguments were held last week at the U.S. Court of Appeals for the D.C. Circuit.

“The oral argument went well in our view, but we cannot predict how the court will rule,” appellate counsel Eli Gottesdiener said. “We stressed Officer Pickett’s entitlement to a complete acquittal, but we also raised arguments demonstrating he is at least entitled to a reversal of his conviction and a new trial.”

In briefs, Gottesdiener outlined eight arguments for reversal, two of which, if accepted by the court, would grant Pickett an acquittal, while the other six (including exclusion from jury selection) would yield a new trial.

Given the judges’ questions, however, the court seems focused on whether the government’s case fell within the scope of the statute governing false statements. When revising the law in 1996, Congress circumscribed its application in the legislative branch to include only two areas: administrative matters and investigation or review. The appellate asserts that neither is applicable in this case.

In November 2001, shortly after a letter containing anthrax was sent to Capitol Hill, Pickett left a note and the contents of an Equal sweetener packet at his post in the Cannon House Office Building tunnel. The note read: “Please inhale. Yes this could be? Call your doctor for flu symptoms. This is a Capitol Police training exercize [sic]! I hope you pass!”

The appeals court agreed to hear Pickett’s case in March, a month after a U.S. District judge sentenced him to two years of probation and 200 hours of community service. The sentence was suspended pending appeal. Pickett was terminated from the force after a jury convicted him in November 2002 of making false statements, the more serious of the two counts he faced.

Gottesdiener maintained that Pickett’s note wasn’t part of an administrative matter and didn’t come during an investigation or review.

In seeking to prevent the conviction from being overturned on appeal, the government argued at trial the U.S. attorneys showed that, after the appellant’s note was discovered, a criminal investigation was opened. The government also argued that Pickett’s letter fell under the Capitol Police’s investigation into the anthrax letters that contaminated then-Senate Majority Leader Tom Daschle’s (D-S.D.) office, among others. [IMGCAP(1)]

The appellate dismissed the former argument as a misreading of the false statements law, which Gottesdiener said is limited to “pending” investigations, and questioned why “no attempt” was made to prove the latter at trial.

Art Spitzer, legislative director for the American Civil Liberties Union’s Washington office, shared time with Pickett’s attorney during oral arguments and said afterward the judges were openly skeptical of what he termed the “bootstrap” argument — that Pickett’s letter created an investigation of its own, making the false statements law applicable.

“They were very tuned in to [Gottesdiener’s] argument that the statement had to be made in an [ongoing] investigation or review,” Spitzer said.

The ACLU submitted an amicus brief asserting that Pickett’s letter was satire, making it constitutionally protected speech.

The defense repeatedly asserted during the trial that none of the Capitol Police officers who found the note took it seriously, and Pickett said when he took the stand that he meant it as an editorial statement on the lack of training the force received after the anthrax attacks. The government’s own witness, the officer who took over Pickett’s post, said she didn’t believe the substance to be the deadly pathogen and consequently didn’t call the Hazardous Device Unit. The force never tested the substance.

“They certainly know that they have an avenue, several avenues, to rule in Pickett’s favor without getting to the First Amendment issue,” Spitzer said. “But it’s useful for the court to remind the government that the First Amendment protects various forms of speech besides simple declarative sentences,” including parody and hyperbole.

Spitzer has warned that if the court allows the statute to be applied to Pickett in the way the judge did in district court, making criminal all false statements to a Congressional entity, it could have broad implications for speech on the Hill.

The free-speech questions in this case are particularly interesting because of David Sentelle’s presence on the three-judge panel.

Appointed by President Ronald Reagan, Sentelle has established conservative credentials, but he has also rigorously supported the First Amendment in several cases, including a dissent from a 2-1 appeals court ruling involving a pair of House Members. The court determined in 1999 that the First Amendment did not protect Rep. Jim McDermott (D-Wash.) from being sued by Rep. John Boehner (R-Ohio) over the disclosure of a taped cellphone call during the ethics investigation of then-Speaker Newt Gingrich (R-Ga.).

The other two judges, Judith Rogers and A. Raymond Randolph, were appointed by Bill Clinton and George H.W. Bush, respectively.

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