The Perfect Crime (Review of interesting article on a constitutional loophole)

The Volokh Conspiracy ^ | March 26, 2005 | Orin Kerr

[AuH2ORepublican]

Fun, Entertaining, Clever, and Short: Believe it or not, that's a description of a forthcoming law review article. Yes, a law review article. Check out The Perfect Crime, by law prof Brian C. Kalt, forthcoming in the Georgetown Law Journal. It clocks in at 22 amusing double-spaced pages, and raises an interesting set of questions about a possible gap between constitutional and statutory protections in Yellowstone National Park that may allow someone to commit "the perfect crime." Whether you agree or disagree with the argument, it's a very good read. Here is the introduction:

"You may have daydreamed about it: some forgotten constitutional provision, combined with an obscure statute, that together make it possible for people in the know to commit crimes with impunity. Whether you were looking for opportunities to commit crimes or afraid that somebody else was, the possibility of a constitutional “perfect crime” was too compelling to ignore. This Essay represents the fruits of my own daydreams, combined with the fact that lately I have spent my lucid moments mulling over one particular forgotten constitutional provision: the Sixth Amendment’s vicinage requirement.

The courts may or may not agree that my loophole exists, and in any case this Essay is not intended to inspire anyone to go out and commit crimes. Crime is bad, after all. But so is violating the Constitution. If the loophole described in this Essay does exist it should be closed, not ignored."

You can dowload the paper here.

[AuH2ORepublican]

Here's the essay: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=691642

I hope Congress closes this loophole soon, or someone will carry out a crime in the Idaho portion of Yellowstone National Park and literally get away with murder.

[texgal]

Not so unusual to be able to get away with murder - it's been happening now for 12 days in Florida and the whole world is watching.

[FormerACLUmember]

Perfect crime? Michael Schiavo: Adulterous sleazebag husband finally successfully (and horrificly) tortures and kills wife before rapt attention of world. Legally gets her estate and life insurance proceeds. Totally legal.

[frogjerk]

Here is an interesting question: If someone took this person's advice could they then be prosecuted for conspiracy to commit murder?

[AuH2ORepublican]

"If someone took this person's advice could they then be prosecuted for conspiracy to commit murder?"

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You mean the author of the essay? I doubt it, since he had no connection with the murderer, and his essay was not an incitement to violence or anything of the sort (and the author goes through great pains to make that clear). As for the murderer, I think he could be charged with conspiracy to commit murder or maybe even with murder if he planned the crime somewhere other than the Idaho portion of Yellowstone.

[frogjerk]

They may get away with murder but you can damn well be sure the IRS will be their pressing the case for the perp to be charged with tax evasion or some other tax crime.

How about this: Why wouldn't you just prosecute the person for conspiracy to commit murder or the other deeds in the state where they came up with the plan? I would guess that Yellowstone would not be able to provide enough reference material to know all of these laws inside and out...

[Luke Skyfreeper]

"When Lawyers Have Waaaaay Too Much Time On Their Hands."

[WOSG]

Exactly, thought it was about the Schiavo case.

guardianship abuse seems to be the 'perfect crime', you do the deed and there are no witnesses ...

[Chewbacca]

If the law doesn't prevent it, why are you calling it a crime?

[AuH2ORepublican]

"If the law doesn't prevent it, why are you calling it a crime?"

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Even if murder was legal, I would still call it a crime. Besides, a murder that takes place in the Idaho portion of Yellowstone would be illegal, it's just that it would be impossible to prosecute the murderer with a jury composed of persons from the state and district, since all of Yellowstone forms a single federal district and no one lives in the Idaho portion of Yellowstone.

[Reeses]

Couldn't the federal government hand pick 12 jurors to pitch a tent and establish residency? The jury only needs to live there at the time of trial.

[AuH2ORepublican]

"Couldn't the federal government hand pick 12 jurors to pitch a tent and establish residency?"

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That is covered in Section IV(B) of the article. Basically, federal law requires that jurors must have resided within *the district* for at least a year, so the only way to do this is to convince enough residents of the Wyoming portion of Yellowstone to move into the Idaho portion of Yellowstone. But since most of those residents are federal employees, and would have moved into that area at the behest of the federal government, it might be easy for the murderer's counsel to get them kicked off the jury pool, leaving a jury pool of fewer than 12 eligible jurors. So it might work, but it might not, and the best solution would be for Congress to close the loophole.

[AuH2ORepublican]

[cough]