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It took 16 months, but federal prosecutors finally got what they wantedfrom the 11th U.S. Circuit Court of Appeals: a second chance. The full 11th Circuit last week agreed to rehear a case in which a splitpanel tossed the arson convictions of a Satan worshipper who set fire tofive North Georgia churches during the 1998 Christmas and New Year’sholidays. The 2-1 decision came down in November 2002, and the U.S. Attorney askedfor en banc review in January 2003. Nothing was heard from the courtuntil May 12, when the judges issued a routine order vacating thepanel’s decision and announcing the case would be reheard en banc. Paul S. Kish, the federal public defender representing the accusedarsonist, speculated that the long delay meant the judges had difficultydeciding what to do. “Obviously, the court had a lot of give and take,” said Kish, whoseclient is Jay Scott Ballinger, a self-described “Luciferian.” Ballingeralready is serving a 42-year prison sentence for 26 other churchburnings around the country. The stakes in the case go beyond Ballinger’s life sentence from theGeorgia fires, which resulted in the death of a volunteer firefighter.The case will be the next move in a long debate over the reach ofCongress’ power to regulate interstate commerce. STATE OR FEDERAL? The debate stems from the U.S. Supreme Court’s 1995 decision in U.S. v.Lopez, 514 U.S. 549, which struck down a federal law prohibiting peoplefrom carrying guns near schools. By a 5-4 vote, the court declared thatgun possession near schools did not affect interstate commerce enough tojustify federal involvement. In Ballinger’s case, the 11th Circuit majority concluded thatBallinger’s crimes were “heinous.” But they added — citing Lopez — thatstate prosecutors should have handled the cases because Ballinger’sfires were not sufficiently connected to interstate commerce to triggera 1996 federal church arson statute. “To allow the government to prosecute him for these arsons would be toobliterate the distinction between national and local authority thatundergirds our federal system of government,” wrote Senior Judge JamesC. Hill, joined by Judge Stanley F. Birch Jr. Visiting Senior Judge Cynthia Holcomb Hall of the 9th Circuit dissented,pointing out that the churches bought prayer books and hosted pastorsfrom other states. She added that Ballinger drove on interstate highwaysfrom Indiana to Georgia on his multistate arson spree and used anIndiana credit card at a Georgia Kmart to buy a gas can used in thefires. Hall said Hill and Birch adopted “a cramped notion of church commerce.” U.S. v. Ballinger, Nos. 01-14872 and 01-15080 (11th Cir. Nov. 21, 2002). A spokesman for Northern District of Georgia U.S. Attorney William S.Duffey Jr. passed a request for comment on to the Justice Department inWashington. No response was received by press time. EYES ON JUDGE PRYOR The full 11th Circuit is set to hear another interstate commercequandary on June 15, when it will rehear a case in which a Brunswick, Ga.,physician was convicted on federal murder-for-hire charges. At trial, federal prosecutors proved that a call the defendant made froma pay phone in South Georgia to the cell phone of a federal agent posingas a hit man, also in South Georgia, was routed through a switchingstation in Florida. An 11th Circuit panel affirmed the conviction lastyear in U.S. v. Drury, No. 02-12924 (11th Cir. 2003). Among other things, at issue in that case will be what fulfills theinterstate commerce requirement for the federal government to havejurisdiction. In both cases, eyes may be on Judge William H. Pryor Jr., the formerAlabama attorney general whom President Bush in February placed on thecourt by using a controversial recess appointment. As attorney general in 1999, Pryor argued that the federal ViolenceAgainst Women Act went too far because violence against women did nothave a substantial enough effect on interstate commerce to allow womento sue their abusers in federal court. The U.S. Supreme Court agreedwith Pryor, by the same 5-4 configuration that decided the Lopez guncase. U.S. v. Morrison, 529. U.S. 598 (2000). DECISIONS AT LAST The Ballinger church-burning case was one of two in which litigants hadbeen waiting more than a year for the 11th Circuit to rule on theirpetitions for en banc review. In the othercase, the court last month rejected a bid by Florida commodities brokersappealing a finding that they defrauded clients by downplaying theinherent risk in agricultural futures investing. The 2-1 decision, Commodity Futures Trading Commission v. R.J.Fitzgerald & Co., No. 01-14780, came down Oct. 29, 2002. The brokerasked for en banc review on Dec. 12, 2002, about 16 months beforegetting a decision. In other cases, the court has taken between two and six months to ruleon en banc petitions. Montgomery N. Kosma of the Washington office of Jones Day, who isrepresenting the principal defendants in the case pro bono, said heplans to ask the U.S. Supreme Court to grant certiorari.

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