High court hears Pennsylvania case of love, poison, and rights

WASHINGTON - The peculiar prosecution of the poisoned Pennsylvania paramour reached the nation's highest court Tuesday, as the justices parsed dry legal issues of federalism and an individual's right to challenge the constitutionality of a law.

Carol Anne Bond v. United States, Case No. 09-1227, is not typical Supreme Court fare. It involves a love triangle, chemical weaons, postal inspectors, an international treaty, and the 10th Amendment.

Depending upon its outcome, however, the case could have ramifications beyond its tabloid facts. In friend-of-the-court briefs, advocacy groups say it represents an opportunity to put a check on increased federal powers.

Bond, a Lansdale microbiologist imprisoned for six years for trying to poison her husband's girlfriend, was represented Tuesday by a legal heavyweight, Paul D. Clement, a solicitor general under President George W. Bush.

Clement urged the justices to reverse a ruling by the U.S. Court of Appeals for the Third Circuit in Philadelphia that Bond cannot bring a constitutional case under the 10th Amendment because the amendment applies only to states and not to individuals.

"It is hard to imagine an injury more particularized or concrete than six years in federal prison, and the liberty interest she seeks to vindicate is her own, not some third party's," Clement argued.

Several times, elder members of the court, including Antonin Scalia, Anthony M. Kennedy, and Ruth Bader Ginsburg, steered the debate away from the merits of the prosecution and its salacious details back to the matter at hand - whether Bond had "legal standing," the right to challenge the law.

"The whole point of separation of powers, the whole point of federalism, is that it inheres to the individual and his or her right to liberty," said Kennedy. "And if that is infringed by a criminal conviction or in any other way that causes specific injury, why can't it be raised?"

Chief Justice John G. Roberts Jr. added: "Pretty harsh, if we're talking about . . . standing, to deny that to a criminal defendant."

Although Bond's lawyers have challenged the federal law's constitutionality, they do not deny the sensational allegations:

In 2006, Bond was thrilled to learn that her best friend, Myrlinda Haynes, was pregnant. She became enraged, however, when she discovered that her husband of 14 years, Clifford, was the father.

"This double betrayal brought back painful memories of her own father's infidelities," her lawyers argued in a brief, "and caused [her] to suffer an emotional breakdown."

And so, as summarized in a lower-court opinion, "she vowed revenge."

Bond, who worked as a microbiologist at Rohm & Haas Co., stole the arsenic-based chemical 10-chloro-10H-phenoxasine from the firm's lab. She also ordered from a photography retailer a supply of potassium dichromate, lethal if digested in doses of more than one-quarter teaspoon but an irritant if exposed to the skin at lower levels.

Over eight months that began in late 2006, Bond used the chemicals 24 times to try to harm Haynes, sprinkling the substances on her Norristown home's doorknob, car-door handles, and mailbox. "None of these attempts was successful or sophisticated," her lawyers argued.

The friend received one chemical burn on her thumb.

Haynes called local police and received what she considered a lame response. An officer suggested that the substance might be cocaine and told her to clean her car and home handles "on a regular basis." Instead, Haynes alerted her local letter carriers, and they notified the U.S. Postal Inspection Service, which sent federal agents to investigate.

The agents set up a surveillance camera to record the door and mailbox and captured Bond stealing mail and lacing Haynes' car muffler with potassium dichromate.

Bond was charged with violating a federal law that incorporates an international treaty, the 1993 Chemical Weapons Convention, that requires nations to prosecute citizens who use chemical weapons. The novel prosecution was brought by Amy L. Kurland, then an assistant U.S. attorney and now Philadelphia inspector general.

Bond, 40, pleaded guilty, but her local lawyer, Robert E. Goldman of Warrington, preserved the right to challenge the constitutionality and application of the law, arguing that the federal government had gone too far in using a terrorism statute to prosecute a domestic dispute that should have played out in state court.

U.S. District Judge James T. Giles sentenced Bond to six years in federal prison - a term Goldman says is three times higher than she would have received if convicted under routine state assault laws.

On appeal, Goldman argued that the federal chemical law, as applied in nonterrorism cases, is unconstitutional because it is vaguely worded and violates the 10th Amendment, which, in its own vague language, reserves for the states "the powers not delegated to the United States by the Constitution. . . ."

A case with unusual facts took a few unexpected twists on its way to Tuesday's oral argument.

First, the three-judge Third Circuit panel that heard Bond's appeal decided the case largely on a procedural issue, one that neither Goldman nor a second prosecutor, Paul G. Shapiro, had raised. The appeals court ruled that an as individual, Bond lacked standing to sue the government because the law in the case is related to the 10th Amendment and therefore involves state rights, not individual rights. Because the court rejected Bond's appeal on procedural grounds, it did not consider the merits of her case.

The second twist came during the appeal to the Supreme Court. The U.S. government, which originally applauded the appeals court's decision on legal standing, announced that it now disagreed with that reasoning. In other words, it planned to argue that Bond could indeed bring her appeal - though, it argued, she would still lose on the merits.

Rather than dismiss the case, the Supreme Court took the unusual step of appointing a special lawyer to defend the appeals court decision – a decision that signals that the justices could view the case as one it wants to use to make to clarify case law on state rights, or on the implementation of treaties.

The Bond case was notable for one other reason Tuesday. It landed on the fifth anniversary of cases in which Justice Clarence Thomas has famously not asked a question during oral argument.

Indeed, during Tuesday's session, Thomas was the only justice who did not speak.