Right, but that doesn’t mean anything now. There’s a man accused of large scale piracy who’s never even set foot in the United States, and when his extradition appeals are finally exhausted, he’ll face a jury of “his peers” (yeah, right) in the United States. Kim Dotcom - Wikipedia
He’ll be loaded onto an aircraft in handcuffs, flown halfway around the world, unable to pay for a legal defense since the state seized most of his money, and will face a jury of most likely senior citizens who have at best modest understanding of how the internet works. And yeah, they probably got him, the evidence is pretty overwhelming that he knew he was participating in copyright infringement on a large scale. But it’s hardly a fair trial. Similarly, I’m sure the British caught colonists who still had those tea leaves on their clothes and shipped them to England. Wasn’t a fair trial either, but they were probably guilty.
A judge would bend the law as much as possible to allow a prosecution, but ultimately its’ Congress’ job to write criminal law which does not result in this sort of situation.
Probably not. As I noted earlier, jury selection appears to be a procedural issue but the composition of a jury is a substantive issue. The ex post facto clause does not bar retroactive changes which are strictly procedural, but it does bar retroactive changes that affect parties’ substantive rights.
To explain that in lay terms, Congress can’t increase the penalty for a crime and then state that the increased penalty applies retroactively. It will only apply for offenses committed after the new law takes effect. The length of a potential sentence is clearly a substantive question.
Conversely, Congress could change the law which requires the judge to appoint a special magistrate to consider the facts and write a report on the recommended sentence (leaving aside questions of whether a particular sentence could constitutionally be imposed by a magistrate rather than a jury).
There is no “state question.” The boundaries of the park and the states are established by Federal law.
Repeat it all you like. You’re the only person talking about state law. The Sixth Amendment is a federal law. The statute which establishes the venue for cases arising in Yellowstone is federal. The statute which establishes the boundaries of the states is federal. The statute which establishes the federal district courts’ jurisdiction is federal.
Why so incredulous? There are plenty of laws that thwart the government from successfully prosecuting or trying someone who otherwise seems clearly guilty of something terrible.
Indeed, there’s a movement afoot in this country—with stand-your-ground, castle-doctrine, and broad expansions of self-defense doctrines—that seem to have the overall result of making it even harder to try people who outright kill other human beings. Police in this country are in practice just nigh immune from prosecution for killing people.
This sounds like a question that has a very correct answer - because that one law school professor likes to use it as a gotcha question on final exams.
What is the case law for duels on islands in the Mississippi and similar no-man’s lands? http://en.wikipedia.org/wiki/Bloody_Island_(Mississippi_River) I would think that is the closest analogy. There’s also that one ‘How the states got their shapes’ episode about what happens when surveyors mess up and the state border turns out to be wrong 100 years later.
You seem to be slightly confused on a couple of issues. First, if the accused cannot afford an attorney after he is arraigned in the United States, he will have one appointed at no cost to him. Second, your concept of jury selection is also incorrect. Any competent attorney would likely be able to successfully challenge an “all geriatric ludfite” jury. Third, there are plenty of senior citizens today who have no problems either using or understanding the Internet. Fourth, the US cannot seize money in a foreign account without the foreign government doing the actual seizing. Any issues with that will be between the accused and the foreign government concerned. Fifth, the accused will be extradited according to the law in the foreign country where he was caught. Last, your description of the Boston Tea Party is groundless.
Where did you get that Idea? It’s incorrect. When on a federal reservation, which of course a military base is, one is still located in a particular state.
It’s not a question of venue. Sure, the government could find some appropriate venue for the trial, but who would the jurors be? For any juror you can come up with, the defense could point to that juror and say either “That juror is disqualified by virtue of not being from the district where the crime took place” or “That juror is disqualified by virtue of not being from the state where the crime took place”. Or both.
Incidentally, while there’s also a sliver of Yellowstone in Montana, which is likewise in a different district from its state, that one isn’t quite the same legal headache, because it is inhabited. Empaneling a jury from that sliver would be merely difficult, not impossible.
Also, in order to arrange for both you and your victim to be in a remote tract of land at the edge of Yellowstone would require quite a bit of planning.
So even if this loophole was really legally binding, there would be plenty of other crimes (conspiracy, etc.) committed during that planning process to put you away for a long time.
But you are not subject to the jurisdiction of that state unless the Federal government chooses to allow the state to have jurisdiction. Per the principle of “dual concurrent jurisdiction”. Federal enclave - Wikipedia
So in the case of a murder in Yellowstone, the state can’t prosecute because they can’t empanel a jury, but the Federal government can because Federal districts are much larger.
So in this case, the Federal government has passed laws, in accordance with their Constitutional authority, that make murder a crime. Moreover, the Federal government has decreed that if you commit those crimes, the Federal district you shall be prosecuted in is apparently different from the one covering the physical state you are in. This is within their power to do, and any argument you can make regarding a state’s jurisdiction will be rejected by the court…who may reference the Supremacy Clause.
The Federal government has the power to declare that any murders committed in parking lots in Los Angeles shall be prosecuted in the Federal district that covers DC. While your attorney might be able to raise a few issues about this, if the Fed’s attorneys can show they have a reason to do this, you’ll be prosecuted in DC. It matters not that you committed the crime in California. In this case, since it’s 2 adjacent Federal districts, the federal regulations covering Yellowstone are reasonable and court challenges to them are unlikely to succeed.
The federal government also passed a law called the Gun-Free School Zones Act. A guy named Lopez violated that Act by carrying a .38 caliber revolver into his high school. The federal government did indeed prosecute him.
But the Supreme Court overturned his conviction. The Court found that the law exceeded Congress’ authority.
I’m asking you to explain why you feel that in this case, the government would simply be free to do what it wished as far as prosecution. You simply assert that the Supremacy Clause will somehow be referenced and the court will allow the prosecution, because in your mind that’s just what will happen. You don’t identify a single case in which the Supremacy Clause was used in the same way, nor do you identify the specific words of the clause apply to the facts here. Your entire argument is simply a repetition of your certainty that somehow, it would just happen.
I point out the case of Alfonso Lopez to remind you that there are plenty of times the government is thwarted from prosecuting an act by the restrictions found in the Constitution.
I’m asking you to explain under what legal theory, in this case, specifically, you believe the prosecution would succeed and be upheld. “They’d just do it,” is not an argument.
But again, whether it’s federal or state jurisdiction doesn’t matter. Either way, the defendant is entitled to a jury, and either way, the pool of eligible jurors is completely empty.
Aren’t there mechanisms for moving a trial to a different place if the accused can not get a fair trial where it would normally be held? I’m pretty sure that’s normally used in situations where the crime(s) is so notorious or publicized that a local jury pool would be tainted, but if it’s a case that a jury simply could not be assembled I’d think that would be adequate justification to move the trial.
Don’t move goalposts. Your original assertion is that one’s presence on a military base is not a presence in the state in which the base is located. You now admit your assertion is incorrect and are trying to rescue the assertion by dressing it up.
I’m the guy who wrote the original article. It’s actually short as law-review articles go, and I think that those of you who were interested enough to comment here would enjoy the article–it addresses most of the points raised in this thread, along with some other interesting tidbits. You can download it here. I wrote a follow-up, also short, which addresses some other points addressed in this thread, including the case that arose in the Montana portion that Drewder mentioned. It is available here. Novelist C.J. Box also based his novel Free Fire on it, and I think that it’s a fun read.
I enjoy discussing this stuff, particularly with sharp folks like all of you. A lot of the things I would have said if I had responded earlier have already been picked up by others in the thread (suffice it to say that I agree with those refuting assertions that I am wrong, etc.). A few responses, though:
To my knowledge, there has never been a major crime committed in the Idaho portion of Yellowstone. There have been in the Montana portion, though.
The Constitution in Article III requires that the venue of the trial be in the state where the crime was committed. The government has ignored this requirement (in the Montana cases), but if a defendant pressed the matter I think they would win. There is no impossibility problem there.
In the one Montana case that arose after my article was published, the trial judge rejected my argument. He ignored Article III entirely. On the Sixth Amendment part of the argument (which would not have meant setting the defendant free, since it was in Montana and not Idaho), he offered no alternative interpretation of the amendment. I offer one in my article–a way out for any judge who thinks that I am wrong. But he didn’t bother (or even purport) to offer a legal argument. He said in essence that he couldn’t just let the guy go. People have expressed that sentiment in this thread, and they are right, as far as the prosecutor and this trial judge go. But I don’t think the court of appeals would have been so blithe about the Constitution, and as people have noted in this thread, killers do get sprung on technicalities from time to time. Apparently the prosecutor agreed with me about that–he reached a plea deal with the defendant in which the defendant was not allowed to appeal this issue to the Tenth Circuit. He could appeal any other issue, but not this one. The end result was thus that they got a conviction, but without any legal reasoning to refute the theory, and with a clear telegraph that they were worried about the court of appeals getting a hold of it. So the loophole still awaits a more motivated defendant (the Montana guy was a poacher; a murder might be more motivated to see the argument through).
Not all federal land–nor every national park–has exclusive federal jurisdiction like this. But some parks do, and Yellowstone is one of them. Bottom line: only the feds can prosecute crimes here. Note that there is no general federal law against murder; usually there has to be a federal nexus, like you killed a federal meat inspector or something. Recognizing that this would make areas like this relatively lawless, the feds passed the Assimilative Crimes Act, which says that any violation of state law that occurs in an area with exclusive federal jurisdiction becomes a violation of federal law. To those of you who think that the park is somehow not in a state: the feds use that law in Yellowstone, and pay attention to which state the crime was in.
Tom Tildrum, you make a good argument that perhaps a mixed jury of Idahoans and Wyomingites would suffice. But the Sixth Amendment requires that the jury be from the “state and district,” not the “state or district.” Your interpretation would reduce the requirement in multi-district states to just being from the right state–but the courts have clearly rejected that interpretation.
Lord Feldon and responders, changing the district lines after the fact might not violate the Ex Post Facto Clause (see Cook v. United States, 138 U.S. 157 (1891), discussed in the article). But the Sixth Amendment specifically requires that the district be one that was “previously ascertained,” so a retroactive fix would not work.
Perhaps the most important points are the limits on the theory–reasons you would still be in trouble even if my theory is correct. There are two main ones:
A. Potential civil liability
B. If you committed any elements of any crime somewhere else (conspiracy, or maybe even just forming your intent), they should charge you there.
If anyone has any questions about any of this, or would like to argue any of this further, please feel free–I am happy to engage.
