While not related to subrogation, we felt that an interesting article about a hypothetical situation in which the peculiar intersection of constitutional, federal, and state law creates an opportunity for the “perfect crime.” In 2005, Michigan State University College of Law Associate Professor Brian C. Kalt hypothesized a “criminal” act that would not be subject to prosecution under any law. Brian C. Kalt, The Perfect Crime, 93 Geo. L.J. 675 (Jan. 2005). With full credit to Professor Kalt, we will take a look at the creativity of the human criminal mind in its never-ending quest not to get caught.
The search for the “perfect crime” is as old as crime itself. In 1888, a group of murderers killed four people in what is now the Oklahoma panhandle, but what was then — owing to poor legislating, a territory that was part of no state and assigned to no federal district court. The murderers thought their crime through carefully and came to the conclusion that they could not be prosecuted. Fortunately, they were wrong. After the brutal murders, Congress assigned the No Man’s Land to the Eastern District of Texas, retroactively. The killers protested that this violated Article III and the Sixth Amendment. In Cook v. United States, 138 U.S. 157 (1891), the Supreme Court rejected the killers’ creativity, but it did so in a way that made a modern day “perfect crime” possible. The Court said that Article III of the U.S. Constitution sets federal venue in the state of the crime, and the Sixth Amendment to the Bill of Rights further provides that the jurors be from the right district in the state. The relevant portion of Article III, Section 2 reads as follows:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
If a crime were to be committed in a place that was not in any state, then the underlined portion above would apply. In such cases, the Court in Cook explained that the Sixth Amendment’s requirements do not apply because the Amendment refers explicitly to a “state.” The Sixth Amendment to the U.S. constitution reads in relevant part as follows:
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…
Perhaps this was just poor draftsmanship in the Sixth Amendment, but it does make sense that the Sixth Amendment’s “state and district” requirement, underlined above, would not apply outside of a state. Professor Kalt follows with a dissertation of a series of historical events which preclude a theoretical crime from being reached by any law. We begin with the 1787 enactment of Article III, Section 2 of the U.S. Constitution, above, which clearly requires the actual trial of a crime to take place in the “state where the said Crimes shall have been committed.” Fast forward a few years to the 1791 ratification of the Bill of Rights. The Sixth Amendment clearly requires a jury to be from the “state and district wherein the crime shall have been committed.” More than 80 years later, we have the creation of Yellowstone National Park – America’s first national park and a federal enclave in which state law is not enforceable. Of Yellowstone National Park’s 3,468.4-square miles (2.2 million acres), 96% is located within the State of Wyoming, 3% is within the State of Montana, with the remaining 1% — less than 50-square miles, lying in the State of Idaho. It is in this 50-square mile tract of land on which our hypothetical “perfect crime” would be committed. The Judge at Yellowstone National Park is responsible for all initial appearances on all federal cases (misdemeanor and felony) originating in Yellowstone National Park and for all trials, motions, and sentencing hearings in misdemeanor cases. All such procedures must be conducted within the District of Wyoming.
The original Yellowstone National Park comprised of land largely located in what was then the Territory of Wyoming, but which also included portions of the Montana and Idaho Territories. When the states of Wyoming, Montana, and Idaho were created in 1890, 1889, and 1890 respectively, each contained a portion of Yellowstone National Park, but Congress decided to ignore this inconvenient fact when it created the United States District Court for the District of Wyoming. Congress could have divided jurisdiction over Yellowstone National Park between the Wyoming, Montana, and Idaho District Courts. It decided, however, for whatever reason, to put the entire park in the District of Wyoming. In turn, the Districts of Montana and Idaho specifically exclude the areas of Yellowstone placed in the Wyoming District. Crimes committed in Yellowstone National Park are federal offenses, and the park falls under the jurisdiction of the District of Wyoming Federal Court, which is part of the 10th Judicial Circuit of the United States, with an assigned U.S. Magistrate.
Our hypothetical perfect crime takes place in the Idaho portion of Yellowstone National Park. The suspect is arrested and the charge is a felony. The matter has to be prosecuted and tried before a jury in the Wyoming District, but the defendant is entitled to a jury drawn from Idaho, the state in which the crime was committed. Unfortunately, the small portion of the State of Idaho which falls within Yellowstone has a population of zero and the law prevents a jury from being empaneled to decide guilt or innocence. And there you have it. The perfect crime – no prosecutor, no state, and no federal court can reach it. The U.S. Constitution says so.
