WASHINGTON — Like a storyline from a tawdry soap opera, a jilted wife tried to poison her husband's pregnant lover by spreading toxic chemicals around the woman's house and car. But after Carol Anne Bond put some in a mailbox, federal prosecutors swept her up and sent her to prison using a federal anti-terrorism law for using "chemical weapons."
The Supreme Court on Tuesday indicated it would likely allow Bond to challenge her conviction despite arguments from federal prosecutors and judges that she shouldn't even be allowed to appeal the verdict that has left her in federal prison since 2007.
Bond, from Lansdale, Pa. almost 30 miles northwest of Philadelphia, wants to challenge her conviction on 10th Amendment grounds, saying that the federal government's decision to charge her in this case using a chemical weapons law was an unconstitutional reach into a state's power to handle what her lawyer calls a domestic dispute.
But the 3rd U.S. Circuit Court of Appeals in Philadelphia threw out her appeal, saying that only states — not individuals — can use 10th Amendment arguments that the federal government cannot encroach into matters reserved for the states. Bond wants the high court to reverse that ruling.
"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 and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can't it be raised?" said Justice Anthony Kennedy.
"She wants to make the argument that this is a strictly state, local crime, and that any attempt by the federal government to convert it into a treaty-based terrorism crime is erroneous," Justice Antonin Scalia added. "That's what she's trying to do. Why doesn't she have standing to make that argument?"
The court will make a ruling later on this year.
Bond, unable to bear any children of her own, was excited for her best friend Myrlina Haynes when the woman announced her pregnancy. But later the excitement turned to pain when Bond found out that her husband of more than 14 years, Clifford Bond, was the one who had impregnated Haynes.
Vowing revenge, 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 spread the chemicals on Haynes' door handle and in the tailpipe of Haynes' car. Haynes, noticing the chemicals, called the local police, who didn't investigate to her satisfaction. She then found some on her mailbox, and called the United States Postal Service, which videotaped Bond going back and forth between Haynes' car and the mailbox with the chemicals.
Postal inspectors arrested her. But instead of turning the domestic dispute case over to state prosecutors, a federal grand jury indicted her on two counts of possessing and using a chemical weapon using a federal anti-terrorism law 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 isn't sarin," said Bond's lawyer Paul Clement, referring to a deadly nerve gas. "There is something sort of odd about the government's theory that says that I can buy a chemical weapon at Amazon.com. That strikes me as odd, and that seems to me the kind of thing where you could make a statutory construction to say, well, maybe sarin or maybe actual chemical weapons, that's one thing, but with respect to this kind of commonly available chemical, to say without any jurisdictional element or anything like that, that's a federal crime, seems like an argument we at least ought to have standing to make."
And some justices seemed to take offense at the broad wording of the chemical weapons law, which 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."
"Suppose (Bond) decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?" Justice Samuel Alito said.
"I'm not sure, Justice Alito," Justice Department lawyer Michael Dreeben said. ". I'm not sure that vinegar is a chemical weapon."
"Well, a chemical weapon is a weapon that includes toxic chemicals," Alito replied. "And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's a chemical weapon."
Dreeben responded: "I'm willing to make the assumption with you and accept that it is a broad-reaching statute."
One justice who didn't indicate what he thought about the case was Clarence Thomas. With Tuesday's arguments, it has been five years since Thomas has said anything at oral arguments at the Supreme Court.
The case is Bond v United States, 09-1227.
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