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#50128 - 12/21/09 05:19 PM Re: Free Markets, aka, State-sponsored capitalism, aka [Re: oenophore]
oenophore Offline
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Registered: 09/24/01
Posts: 5962
Loc: 212 land
When it comes to following constitutional law, one thing puzzles me. Timothy McVeigh committed his crime in Oklahoma and was tried in Colorado. But a clause in Article III section 2 of the US Constitution states:

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 this were a right that may be waived by the defendant, the venue would be okay. But it's not. It seems that the clause states that the trial must be held in the state of the alleged crime whether the defense and/or prosecution like it or not. Since this deviation was approved by both sides, no one has standing to challenge this.
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#50145 - 12/22/09 04:59 PM Re: Free Markets, aka, State-sponsored capitalism, aka [Re: oenophore]
Daniel Offline
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Registered: 05/23/01
Posts: 1515
Originally Posted By: oenophore
If this were a right that may be waived by the defendant, the venue would be okay. But it's not. It seems that the clause states that the trial must be held in the state of the alleged crime whether the defense and/or prosecution like it or not. Since this deviation was approved by both sides, no one has standing to challenge this.


I don't think there is a general standing problem with subjecting Article III's venue provision to litigation. Certainly there have been cases where the defendant requested an out-of-state transfer and the government opposed it. So the venue provision is not one of those issues that could never get challenged because of standing problems.

In the Oklahoma City case itself, I don't think the transfer was "approved by both sides." The government wanted the transfer to go in-state to Tulsa, but the trial judge found that the defendant could not obtain a fair and impartial trial anywhere in the state (decision linked below).

And as to the merits of the issue--whether it's constitutional to ever transfer a criminal case out of state--the reasoning seems to be that the Sixth Amendment's guarantee of an impartial jury and the Fifth Amendment's Due Process clause can conflict with Article III's venue provision in certain cases, in which case Article III has to give way.

The trial court in the Oklahoma City case wrote: "The Due Process Clause of the Fifth Amendment of the United States Constitution requires fundamental fairness in the prosecution of federal crimes. The right to an impartial jury in the Sixth Amendment and the fundamental fairness requirement of the Due Process clause will override the place of trial provisions in both Article III and the Sixth Amendment in extraordinary cases. That is the foundation for Fed. R. Crim P. 21 (a) providing for a change of venue to protect from prejudice."

It's also not clear to me whether venue provisions are not subject to waiver. Appellate courts seem to have decided that the right to venue is a personal privilege and can be waived. But regardless of whether one agrees with that conclusion, standing didn't pose a problem in litigating it (since the courts have obviously gotten around to deciding it).

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#50146 - 12/22/09 05:15 PM Re: Free Markets, aka, State-sponsored capitalism, aka [Re: Daniel]
oenophore Offline
Carpal Tunnel

Registered: 09/24/01
Posts: 5962
Loc: 212 land
The trial court in the Oklahoma City case wrote: "The Due Process Clause of the Fifth Amendment of the United States Constitution requires fundamental fairness in the prosecution of federal crimes. The right to an impartial jury in the Sixth Amendment and the fundamental fairness requirement of the Due Process clause will override the place of trial provisions in both Article III and the Sixth Amendment in extraordinary cases. That is the foundation for Fed. R. Crim P. 21 (a) providing for a change of venue to protect from prejudice."

Thanks for supplementing my knowledge of this case. The US attorney would have done well to appeal this up to Supreme just for the purpose of establishing a precedent. Needless to say, the change of venue didn't change the trial's probable outcome.
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#50151 - 12/22/09 08:49 PM Re: Free Markets, aka, State-sponsored capitalism, aka [Re: oenophore]
Daniel Offline
veteran

Registered: 05/23/01
Posts: 1515
Originally Posted By: oenophore
The US attorney would have done well to appeal this up to Supreme just for the purpose of establishing a precedent.


Not that my research has been exhaustive on the matter, but I didn't come up with a Supreme Court case on the topic. So the issue may still be open.

Originally Posted By: oenophore
Needless to say, the change of venue didn't change the trial's probable outcome.


Yup. But process counts. And if it applies to the worst of us, then we know it will apply to ourselves as well--which is why we should be wary when we start making exceptions.

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#50177 - 12/24/09 01:00 PM Re: Free Markets, aka, State-sponsored capitalism, aka [Re: oenophore]
RangerRob Offline
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Registered: 06/06/00
Posts: 3764
Loc: Ulster County, NY
I have no idea what this thread is about because i refuse to go to another link to find out what the poster is talking about. Chris......read it and sum it up for us dude!!!

RR

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#50178 - 12/24/09 01:31 PM Re: Free Markets, aka, State-sponsored capitalism, aka [Re: RangerRob]
oenophore Offline
Carpal Tunnel

Registered: 09/24/01
Posts: 5962
Loc: 212 land
Apologies to you Rob; pursuant to a relevant comment by Alice about the constitutionality of the subject at hand, we went off on a tangent about another constitutional issue.
I share a vice with other Gunks.commies; verbally touch a button of ours and out comes a pet rant or something quite tangential that interests the poster. The temptation is overwhelming.
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