Saturday, August 23, 2014

Who can prosecute this case?

The Desert Sun has this interview about who can prosecute an ex-Marine who has waived extradition from Alaska back to California in a murder case (footnotes added):
[S]everal readers have questioned who actually has jurisdiction in the case because of a couple of complicating factors: [Erin] Corwin's body was found in a mine shaft on federal land owned by the Bureau of Land Management and, if Corwin was killed shortly after her disappearance the crime would have been committed while [Christopher] Lee was still an active duty Marine. He didn't receive his honorable discharge until July 7.
So can Lee be prosecuted by the federal government because 1. the body was found on BLM land or, 2. Because he was active duty at the time of the crime?
On Friday, I spoke with Rebecca Lonergan, a professor at the USC School of Law and a former state and federal criminal prosecutor. She answered both questions and, it turns out, the answers are closely related. . . .
Desert Sun: Could the federal government prosecute this murder case since Erin Corwin's body was found on federal land and Lee was still a Marine at the time of the crime?
Rebecca Lonergan: What you have here is what we call concurrent jurisdiction. It could go stateside, federal or court martial. It's rare, though, that the government would jump in to prosecute. Since (Christopher Lee) had been discharged before the body was found, it's not usually military.*
The military does have the ability to involuntarily reinstate him and court-martial him. They can't court martial him as a civilian now. It's rare, but reinstatement has happened. It's got to be something where the military really wants jurisdiction.**
But they won't, and here's why. The Marines don't prosecute a lot of murders. It's not commonplace. DAs offices, however, do frequently prosecute murders so they are probably better at it. I'm not putting down the JAG (Judge Advocate General) in any way. They're not going to have a jurisdiction battle when it's not something that they commonly do.
In this instance, it's really a domestic issue – it's a love triangle – and this is something district attorneys knows about it. This is not something the military knows about.
As for federal and the Bureau of Land Management, I was a federal prosecutor for several years in the U.S. attorney's office in Los Angeles and it was really rare. It's really about where the expertise lies. Every DA's office prosecutes several murders a month. I'm not in any way putting down any of the other agencies. They'd leave it to them.
When you've got three prosecuting agencies, two will step aside to let the expert go to work.
Editor's footnotes:

* "Usually" in what sense? Unless the discharge had been obtained by fraud? Unless the suspect is a retired regular or a retired reservist receiving hospitalization? Unless the suspect has continued as a reservist?

** Reinstatement? For someone who is merely a veteran, and whose discharge, so far as is known, was not obtained by fraud?

See generally United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955); Willenbring v. United States (4th Cir. 2009).

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