Let's assume a court convicted someone of murder within this zone. Let's also assume the evidence was overwhelming and the act was premeditated because the murderer had knowledge of the Sixth Amendment and this loophole. The case makes it's way to the Supreme Court. But because of the bizarre nature of the loophole SCOTUS simply chooses not to hear appeal and lets the conviction stand. This is how the law could be enforced while technically violating the Sixth Amendment.
> Let's assume a court convicted someone of murder within this zone. Let's also assume the evidence was overwhelming and the act was premeditated because the murderer had knowledge of the Sixth Amendment and this loophole. The case makes it's way to the Supreme Court. But because of the bizarre nature of the loophole SCOTUS simply chooses not to hear appeal and lets the conviction stand. This is how the law could be enforced while technically violating the Sixth Amendment.
How would a conviction take place without a jury? Even in the Belderrain case in the Montana section of the park, a jury was never formed; there was only an initial ruling that a trial could move forward despite the risk of partiality, but the case was settled with a plea agreement where the defendant waived any right to pursuing the Zone of Death legal challenge.
(can an attorney fact-check me here, by the way? I'm definitely not one)
> How would a conviction take place without a jury?
I believe the parent's point was that it could take place with a jury from anywhere else, thereby violating the letter of the 6th amendment, but without this having an effect: The convicted person would have to appeal the conviction, but no higher court would decide to hear the appeal.
(I'm not a lawyer either, I'm just writing down my understanding of what the parent said.)
If it's premeditated, it has likely been premeditated somewhere else. If so, isn't the premeditation in itself a crime for which you could be prosecuted (in the place where you planned everything).
I think technical people are fascinated by this zone because we like rules and thus anything that has a unique set of rules is interesting. The reality, though, is that legislation isn’t code, the Constitution is violated all the time, and most legal codes are more like suggestions.
While this sounds dystopian, it is probably actually preferable to a state that enforces all of its laws to the letter.
Rules have never stopped a "bad person" from doing something.
Rules aren't made to keep the "bad person out";
they're made to keep the "good people in".
I wish I knew who originated it. I can't seem to recall where I heard it now.
> A federal judge ruled that Belderrain could be tried in the U.S. District Court for the District of Wyoming, despite the Sixth Amendment problem. Belderrain cited Kalt's paper "The Perfect Crime" to explain why he believed it was illegal to have his trial with a jury from a state other than where the crime was committed. The court dismissed this argument.
Judges especially Federal judges are far less impressed by "hacks" and "loopholes" of the system, than most programmers.
There is no chance they will let a premeditated murder go unpunished on the basis of some obscure technicality like this.
They're not completely capricious. Laws don't operate under the confines of a strict propositional calculus: you don't follow strict axiomatic derivations to a contradiction and declare yourself finished. Instead, it operates generally on a basis that cases with facts in common should have the same decision (hence the name "common law"). And the law is written with this process in mind: if legislators don't like the judicial interpretation of their text, they can change it by changing the law.
I mean, I know laws can be interpreted. But we're talking about what seems like a pretty straightforward section of the constitution.
What's even more damning is that there's no interest in resolving the contradiction. If this had been discovered during a murder trial where there was overwhelming evidence of guilt, and simply a jurisdiction loophole, I'd be sympathetic to saying "let's just sweep it under the rug". But if it's known and the response is simply "eh, well if it happens we'll just ignore the constitution because 'common law'", that really reduces my respect for what the law is.
I get that they can change the law. But instead of changing the law, they gave him a plea deal on the condition he didn't contest it at a higher court.
So why not change the law when there's an obvious loophole?
According to the article, at one point the Wyoming senator did try to get it changed but no one was interested.
I expect the answer with this sort of thing is that there are a lot of people in Congress who would roll their eyes and say that they have better things to do than screw around with some weird legal edge case that has basically never actually been a problem. And they're not necessarily wrong.
The purpose of a legal system is not preventing people from doing things deemed illegal. Its purpose is the maintenance and expansion of state power. Laws are not designed for your benefit. If you benefit from a law that is merely incidental.
Laws are just a facade to legitimize, in the eyes of the populace, the state enforcing its will.
The state writes the laws in their own interest so that the majority of the time it serves them to remain within legal bounds. And the majority of the times a state violates its own laws are not made public until years later, if at all, negating public outcry. In this way the citizenry remains placid and is willing to overlook the few events in which a state publicly flouts the law.
In practice, I would be surprised if any court up to and including the Supreme Court would find this loophole an acceptable defense. It could certainly be a long complicated legal battle, but ultimately, I doubt the Supreme Court would find that the intent of the Sixth Amendment was to allow criminals to go free in this situation.
They don't have to find it an acceptable defense, all they would have to do is find that it is not possible to legally try the suspect. Which is in fact the case. But of course they would try him anyway because doing end-runs around the text of the Constitution is standard operating procedure and has been since the founding. Even the whole idea of the Supreme Court having the power to declare laws unconstitutional is found nowhere in the Constitution. That was a power invented by the Supreme Court in Marbury v Madison. There are many other examples. On a strict textual reading of the Constitution, if the second amendment applies to an individual right to bear arms (which is debatable, but that's what the Supreme Court has most recently held) there is no basis for denying individuals the right to have WMDs. There is no basis for making slander and libel crimes under the First Amendment, but we do, and no one argues with it. Likewise, if someone committed murder in the "death zone" they would be tried somewhere and convicted and the Supreme Court would simply refuse to hear the appeal. And that would be that.
Two things to augment your explanation of the first and second amendments. Firstly, the first amendment guarantees "the incorporation freedom of speech", and not "the freedom of any speach" which sounds arbitrary but isn't when you remember so much of the constitution is meant to carry forward existing British and colonial traditions. If we were free to say it in 1789 we're free to say it now. We aren't free to say anything we please, but the limits are very very wide.
Secondly, incorporation doctrine has made a giant mess of everything, especially the second amendment. It does need to be read in conjunction with the Militia clause in article 1 and you need to keep in mind the intent was to keep a small army but a powerful militia. Militia refers to every man capable of fighting. In federalist fashion, congress got to set standards but the states executed them. The second amendment was a minimum training standard that said congress couldn't abuse its power by enacting gun control because if they did, we'd have no militia to defend the nation which would be a perverse outcome. But basically the federal government has the (curiously unused) power to regulate the training of the militia. Part of that could plausibly include restrictions on how the militia is trained on certain weapons. Hence, to bear a WMD congress could require you to serve one weekend a month, two weeks a year if you get my drift.
> Hence, to bear a WMD congress could require you to serve one weekend a month, two weeks a year if you get my drift.
Yes. But Congress has levied no such requirement. And absent any such requirement I should be able to successfully argue that if my right to bear arms extends to a Glock then there can be no Constitutional basis for arguing that it should not extend to a nuke.
My point is no one even attempts to make that argument because everyone knows it would get shot down on some obscure legal pretext because when push comes to shove no one is really a textualist or an originalist. It's all subtlety and nuance and interpretation and, ultimately, politics, even among people who insist that it is not.
There is 18 U.S. Code § 831,832, but it doesn't outright forbid owning a nuclear weapon. There is also the interesting issue of nonproliferation treaties to consider. Could the US signing an arms agreement impact your second amendment rights - because those treaties would be enforceable against you? If you followed in the footsteps of David Hahn and ilk and avoid the environmental problems that got him in trouble, and built it yourself, you might be able to create and possess one legally. Theres probably some regulations in the CFR to look through too. Some law or regulation has to exist to regulate existing nuclear weapon production in the US.
The constitution is not a suicide pact; that is the whole reason for the judiciary: to interpret laws. I would be very surprised if any reasonable lawyer (never mind a judge) read the Sixth Amendment and concluded that it was the framers' intent that people could not legally be prosecuted if they committed a crime in such a region.
As for the court's power to overrule, and to a certain extent, create law, that goes back to English common law and predates the US Constitution significantly.
There was a prior case where a guy shot an elk in this area and he raised this "bug" with the judge. But he ultimately got a plea deal with the agreement that he wouldn't appeal. So it's not totally ridiculous but presumably the combination of I imagine the plea not being too onerous and at least some fear he could lose made it not worth pursuing.
I suspect that a lot of technical people look at this and say "Yup. It's a bug and nothing to be done about it unless it's patched." Whereas, as you say, the reality is probably that judges up and down the line say "Nope. You're not getting away with it" and/or prosecutors figure out ways to charge the person in a different jurisdiction.
There is another loophole to this loophole. Yes, there is a requirement that the jury come from people who live in the area, but that does not extend to saying that they have to have been living there at the time of the crime. If push comes to shove, the government can probably arrange to have a sufficient jury pool move into the area prior to jury selection. It would be a comically expensive thing to do but possible.
> In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law [...]
There have been lots of legal disputes about the "impartial" part and the procedures for jury selection (leading to a whole body of custom and caselaw about it). I imagine that would be a contentious angle in your plan, because people who knowingly moved specifically in order to be eligible to serve on a jury for a particular trial might not appear entirely "impartial" in that case. (Of course, I'm not sure which way that issue would go.)
That would indeed be a problem. Creating an army base in the area and just dumping a bunch of soldiers would not work. The government would have to "move" people naturally, by perhaps founding a town and incentivizing investment to draw people it. Ludicrously expensive, but possible even within the "speedy trial" timeframe.
I would never suggest that a government physically do this. Rather, the possibility would be an argument against the idea that jury trials are impossible per se. A reviewing court would outline some compromised procedure to select a jury, something short of physically getting people to move.
Is it less work if a team of law enforcement officers standing within the Idaho section of the park just move any evidence and throw it over the park line and we can all pretend the original crime just happened in normal Idaho?
Yes, what I'm describing is illegal, but how would your prosecute it?
So if a supervillain was to try to trigger a massive eruption within the Yellowstone Caldera by detonating a weapon inside [0], they could drill to it via the Zone of Death?
Yes, but a crack team consisting of James Bond, Jason Bourne, Jack Bauer, and Joe Biden could go in and kill the supervillain without any legal repercussions.
The original paper (reference 6 on the wiki page) also mentions they could still constitutionally get you for a misdemeanor
> Another possibility is for prosecutors to concentrate on lesser offenses - those with maximum sentences of six months or less - that do not require a jury trial. Again, these misdemeanors may be lesser charges than the ones to which you would be subject in other districts, but they are better than nothing, they will dissuade some criminals, and, most important, they can be prosecuted
constitutionally.
And also that if you actually committed a very serious crime, it's very likely you committed some other crime along the way while outside of the "zone of death", conspiracy, firearm violation, or something.
> No known felonies have been committed in the Zone of Death since Kalt's discovery. However, a poacher named Michael Belderrain illegally shot an elk in the Montana section of Yellowstone. While that section of the park does have enough residents to form a jury, it might be difficult to put together a standing and fair one due to travel or unwillingness of members of the small population there to serve. A federal judge ruled that Belderrain could be tried in the U.S. District Court for the District of Wyoming, despite the Sixth Amendment problem. Belderrain cited Kalt's paper "The Perfect Crime" to explain why he believed it was illegal to have his trial with a jury from a state other than where the crime was committed. The court dismissed this argument. Belderrain took a plea deal conditioned on him not appealing the Zone of Death issue to the 10th Circuit, and the issue was left unresolved.
This (and countless other actions) show how meaningless laws are as anything but an arbitrary threat of force. Governments and other organizations that make laws don't consider themselves bound by them, and why should they? They are institutions of force, not reason. An accusation of hypocrisy does nothing against a gun.
IANAL. The loophole purports to originate from the federal juries needing to be made of people from the federal district _and_ state. Presumably, all the sparsely populated places are restricted to a single state and contained in federal court districts large enough to include enough people to assemble a jury.
However, if the areas are sparsely inhabited both the federal and the state districts are correspondingly large. You'd never have an entire district that people don't live in even if large areas of the district have no inhabitants or courts.
The issue here is that because all of Yellowstone is in the federal district of Wyoming--including the parts that aren't in Wyoming, you'd need someone who lived in the federal district of Wyoming and the state district of Idaho to sit on a jury. That's a null set.
This is a little different than for example the deep ocean where nobody has jurisdiction. In this case the Federal Government has jurisdiction, but due to a quirk of the laws would be impossible to prosecute someone for a crime committed there.
For the most part it isn't an issue because, as previously noted, nobody lives there. There is nobody around to commit crimes. There is also precious little there to commit crimes against. If this loophole ever actually came up I'd expect it to be over something like illegal logging, not a murder.
