Accused subway shooter Frank James' defense attorneys cite wrinkle in law, ask charges to be dismissed

Defense attorneys for the man accused of shooting 10 New York City subway riders back in April are asking that the federal charges against him be dismissed because the particular terrorism law he is being prosecuted under doesn’t cover incidents in “subway cars,” according to court papers filed in the case.

Lawyers for defendant Frank James already have asked a Brooklyn federal judge to transfer the trial, set to begin Feb. 27, out of New York City because of pervasive pretrial publicity. In addition, James’ court-appointed attorneys maintain that the terrorism charges should be dismissed in their entirety because of a wrinkle in the law.

In their court filing asking that the indictment be dismissed, defense attorneys argue that the "plain language and structure" of the terrorism law James was charged under does not include a shooting on a subway car, which is a state law offense.

"[Terrorism statute] prohibits only acts, with the intent to cause death or serious bodily injury, on specifically described property, which includes ‘a garage, terminal, structure, track, electromagnetic guideway, supply, or facility, used in the operation of, and in support of the operation of, a mass transportation vehicle,’ but does not include a ‘mass transportation vehicle’ — a subway car — itself," the attorneys said in their court papers.

 “Other subsections of [the terrorism law] prohibit specific other acts, such as placing a bomb in or on ‘a mass transportation vehicle’ or ‘railroad on-track equipment’ but do not include shooting a person in such a vehicle,” the defense court papers added.

The motion to dismiss the case, as well as the additional request to consider moving the trial to a different federal district, are expected to be argued before Judge William Kuntz II next month, said a spokesman for Brooklyn U.S. Attorney Breon Peace. The government will makes its position on the defense motions, which had been filed earlier this month, known at that time, the spokesman said.

James is being held without bail in a federal lockup awaiting trial. He allegedly opened fire on a crowded rush-hour Brooklyn train on April 12, wounding 10 and injuring about a two dozen others in an incident that sent the city into a panic as police launched a wide-ranging manhunt to find the shooter. 

James, who drifted between residences in the Midwest and Philadelphia, was apprehended the next day by police after they received tips from members of the public.

Defense attorney Mia Eisner-Grynberg of the Federal Defenders of New York said the particular argument about the meaning of the law is a case of first impression, meaning it has not been used before.

By Anthony M. DeStefano

tony.destefano@newsday.comtonynewsday

Anthony M. DeStefano has been a reporter for Newsday since 1986 and covers law enforcement, criminal justice and legal affairs from its New York City offices.