Loading ...
No wonder Yogi Bear was so bold…
Did you ever wonder why Yogi Bear’s only concern about stealing “pic-a-nic” baskets was what the Ranger would do if he caught Yogi red-handed?
Now we know. Even though stealing “pic-a-nic” baskets might be a crime under federal law, there is a place where you can get away with it: The 50 square miles of Yellowstone National Park which are located in Idaho.
According to Assoc. Law Professor Brian Kalt, the intersection of the Constitution’s 6th Amendment vicinage requirement and the creation of Districts of Idaho, Montana, and Wyoming has created not one, but two, anomalous zones in which state and federal laws may be broken with something approaching impunity. It also shows us why it is important that everyone knows and understands the laws which govern them.
What is “vicinage?” According to Webster’s Dictionary of Law:
Main Entry: vic·i·nage
Pronunciation: ‘vis-n-ij
Function: noun
Etymology: Anglo-French veisinage neighborhood, from veisin neighboring, from Old French, from Latin vicinus
: a particular vicinity or district: as a : the district in which a crime takes place and from which the accused is entitled to have an impartial jury selected as required by the Sixth Amendment to the U.S. Constitution b in the civil law of Louisiana : the neighborhood in which one is obligated not to cause material injury to others (as by a nuisance) in the free exercise of rights of ownership in immovable property (these obligations of vicinage are legal servitudes imposed on the owner of property —Rodrigue v. Copeland, 475 So. Second 1071 (1985)
We get that from the following language of the 6th Amendment:
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, and to be informed of the nature and cause of the accusation; (emp. added)
According to the 6th Amendment, then, a Federal Judicial district may be of any size that Congress dictates, but a juror must also reside within the same state as the crime which had been committed. This is important because it is what might allow a person committing a felony within those 50 square miles of Yellowstone National Park situated within Idaho who insists upon a jury trial to walk free.
When Congress created the Districts of Idaho, Montana, and Wyoming, it placed all of Yellowstone National Park within the District of Wyoming. This was completely within the limits of its authority. Congress was allowed to do so by the Constitution — remember a District can be of whatever size and shape as Congress may dictate. But, our clever bear knows that he can demand a jury “of the State and district wherein the crime shall have been committed” and so long as he stole the “pic-a-nic” baskets in the Idaho portion of Yellowstone then the pool of jurors who are qualified by virtue of living within both the State and district as the crime is precisely zero (0). By demanding a jury trial in a place where there are no potential jurors Yogi has committed the “Perfect Crime“. The 6th Amendment also guarantees a trial by jury. Without potential jurors, there is no trial. Yogi goes free.
Things are slightly less problematic in the Montana portion of Yellowstone as it has a population of around 40. This would make is possible for the government to pull together a jury of the same State and district if it needed to.
Fortunately, this theory has never been actually tried out in a felony case (misdemeanors do not get the protection of a guaranteed jury trial). This is fortunate in that there likely has not been much opportunity for an attorney to advance the argument. But it is also unfortunate. It is unfortunate because people often do not know the Constitution well enough to know exactly what the protections this grand document affords us. It is also unfortunate in that Congress apparently did not know the Constitution well enough to draw up the boundaries of the Districts of Idaho, Montana, and Wyoming in a way that did not cause this possible problem.
And yes, I know that Yogi lived in “Jellystone National Park”, but really, we all knew where that really was, didn’t we?
Credits:
Orin Kerr via James Taranto
The article under discussion can be found here.
MickC @ April 5, 2005