{"id":50205,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/act-locally-think-globally-part-one.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"act-locally-think-globally-part-one","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/act-locally-think-globally-part-one.html","title":{"rendered":"Act Locally, Think Globally, Part One:"},"content":{"rendered":"\n
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ACT LOCALLY, THINK GLOBALLY
PART ONE: Why Timothy Mcveigh’s Trial Was Unconstitutional <\/h1><\/td>\n <\/tr>\n

By AKHIL REED AMAR<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Jul. 13, 2001<\/td>\n <\/tr>\n <\/table>\n \n<\/i>

This column is Part One of a two-part series by Yale Law professor and author, \nand FindLaw guest columnist, Akhil Reed Amar on constitutional issues raised by \nthe trial of Timothy McVeigh. Part Two, which considers the relevance of international \nstandards to the interpretation of the Eighth Amendment\u0092s prohibition of \ncruel and unusual punishment, will appear on August 10 on this site. \u0096 Ed. \n<\/p>\n\n

As his case bounced from court to court, Timothy McVeigh raised countless claims \nof constitutional error, but one of the biggest legal lapses came at his own prompting. \n<\/p>\n

Article III of the Constitution provides that the trial of all federal crimes \n“shall be by Jury; and such Trial shall be held in the State where the said Crimes \nshall have been committed.” Yet in 1996, federal district judge Richard Matsch \ndisregarded this clear constitutional command by transferring McVeigh\u0092s trial \nfrom Oklahoma to Colorado. According to the judge, passions and publicity were \nrunning so high in Oklahoma that the good people of that state could not be trusted \nto try the defendant fairly.<\/p>\n

Some might side with Judge Matsch on the theory that Article III exists only \nto protect the defendant, and that its rules are waived whenever he (or she) seeks \na transfer. But that theory is mistaken.<\/p>\n

Granted, some constitutional rules do read this way in language and logic. \nFor example, the defendant-centered Sixth Amendment gives “the accused” the right \nto legal assistance, but also allows him to forswear assistance. <\/p>\n

By contrast, Article III does not speak solely of defendants\u0092 rights. \nIndeed, the Article\u0092s background history proves that far more than defendants\u0092 \nrights were involved; states\u0092 rights, jurors\u0092 rights, and victims\u0092 \nrights were implicated. <\/p>\n\n<\/b>

Article III\u0092s History<\/p>\n\n

The Founders believed that when a crime occurred, local citizens should weigh \nthe matter, via the good old jury of the vicinage, with local eyewitnesses, victims, \nand onlookers easily able to participate. Even if the defendant and the central \ngovernment preferred to move the trial to some cooler place, far from the madding \ncrowd, the proper venue was the place of the crime itself.<\/p>\n<\/span>\n\n \n \n \n
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Thus, when British troops killed civilians in the 1770 Boston Massacre, Americans \ninsisted on a trial in Boston. The jury acquitted most of the defendants, thereby \nproving that local trials need not mean unfair trials, even in high-emotion, high-publicity \ncases. <\/p>\nto be tried back in cooler England. But the Declaration of Independence denounced \nthis pro-defendant venue transfer scheme as a “mock trial” regime, and listed \nit as one of the leading grounds for revolution.\n\n<\/b>

\n\nArticle III versus the Fifth and Sixth Amendments?<\/p>\n\n

Judge Matsch mentioned none of this history. Rather, he simply asserted \n<\/b>that in “extraordinary” situations, the Fifth Amendment\u0092s rule of due \nprocess and the Sixth Amendment\u0092s rules of fair trials “override” the clear \ndictates of Article III. <\/p>\n

But the American Revolutionaries who adopted the Fifth and Sixth Amendments \nwould not have thought that these words somehow contradicted Article III\u0092s \nspecific and unequivocal mandate. Local juries defined<\/i> Fifth Amendment \ndue process, and the Sixth Amendment strengthened<\/i> Article III\u0092s guarantee \nof local juries. (The Sixth generally invites a jury not just of the state, but \nof the district within the state.) <\/p>\n

Accordingly, even if the trial had to be moved outside Oklahoma City to accommodate \nFifth and Sixth Amendment rights, the Constitution called for a venue transfer \nto some other place in Oklahoma, not Colorado.<\/p>\n\n<\/b>

Did the Fourteenth Amendment Change Article III?<\/p>\n\n

A fancier argument for the venue transfer might run as follows: “The Founding \nvision reflected in Article III and the Bill of Rights was redefined by the later \nFourteenth Amendment, adopted during Reconstruction. Like the Fifth Amendment, \nthe Fourteenth requires due process. But the Reconstruction vision of due process \nwas more nationalist and pro-defendant than was the Founding vision. When we read \nthe Fifth and Sixth Amendments through the prism of the later Fourteenth, these \nprovisions do indeed override Article III\u0092s localism, whenever it conflicts \nwith fairness to the defendant. Thus, not only should McVeigh\u0092s trial have \noccurred outside of Oklahoma City, it was properly transferred out of state as \nwell. Passions have rarely run higher than in the McVeigh case, and the transfer \nwas necessary for fairness.”<\/p>\n

But this superficially plausible argument self-destructs: the more we emphasize \nthe Fourteenth Amendment, the odder Judge Matsch\u0092s decision appears. If a \nfederal trial anywhere in Oklahoma would have been impermissibly unfair\u0096as \nMatsch held\u0096then so too would a state<\/i> court trial on the same facts \n(because states are bound by the Fourteenth Amendment due process clause). <\/p>\n

Yet this cannot be right \u0096 and indeed, if logically extended, quickly \nruns into absurdity. It would mean that in any notorious case where passions and \npublicity run high, a state could not prosecute in its own courts, using its own \ncitizens as jurors! Indeed, it would mean that Oklahoma could never have prosecuted \nMcVeigh himself on state murder charges.<\/p>\n\n<\/b>

Article III after McVeigh: The Importance of Populism and Localism<\/p>\n\nin legal jargon\u0096from challenging it after the verdict. Moreover, the error \nwas harmless to him: A proper trial in Oklahoma would have been even less likely \nto acquit or show mercy. The victims of this unconstitutionality were the good \npeople of Oklahoma, not Mr. McVeigh.\n

The largely overlooked Article III issue illuminates many features of current \nAmerican law. For one thing, it reveals that good constitutional interpretation \nrequires knowledge of history and a view of the document as a whole, as it has \nbeen amended over time. <\/p>\n

It also shows that our Constitution, carefully read, balances defendant rights \nagainst victim rights, and citizen rights more generally. Those who argue against \na new Victims\u0092 Rights Amendment to the federal Constitution on grounds that \nsuch rights would ill-fit the document\u0092s general architecture are thus mistaken. \nA better argument might be that the document\u0096if properly construed\u0096already \ncontains a good balance. <\/p>\n

Most significantly, Article III reminds us of the importance of populism and \nlocalism in our constitutional structure. Judge Matsch\u0092s decision exemplifies \nan unfortunate tendency among modern judges to treat popular sentiment as impermissibly \ntainting, rather than properly informing American criminal justice. <\/p>\n

The framers believed in popular self-government, and emphasized popular input \neven in the judiciary, via jury trials and public trials. Criminal trials are \nmorality plays, and popular judgment properly plays some role in the process of \ndetermining guilt and meting out punishment.<\/p>\n\n<\/b>

Localism and Populism Meet Internationalism<\/p>\n\n

But surely localism and populism are not the only relevant constitutional themes? \nA local jury monitored only by a local gallery and local press\u0096 is this an \nattractive vision in a Twenty-First Century global village? To what extent must \nlocal actors attend to national and international norms of fairness? Although \nthe American Revolutionaries were localists fighting against an imperial center, \nweren\u0092t they also globalists casting their claims in universal terms and \nappealing in their Declaration of Independence to a worldwide audience?<\/p>\n

These questions are especially important in the context of a renewed debate \nabout the death penalty in America. The adequacy of safeguards for the innocent \n(including access to DNA testing and good defense lawyers); the role of race in \nthe system; the humanity of capital punishment for mentally retarded inmates; \nthe propriety of the death penalty more generally\u0096these are all issues where \nvarious local judgments may be out of line with emerging national and international \nsentiment. <\/p>\n

As our Constitution calls on Americans to act locally, to what extent does \nit also oblige them to also think globally? That\u0092s the topic I shall tackle \nin next month\u0092s column.<\/p>\n<\/span> \n

\n\n\n<\/a>\nAkhil Reed Amar teaches Constitutional Law at Yale Law School and is the author of The Bill of Rights: Creation and Reconstruction<\/u> (1998). In an earlier, related column<\/a>, Professor Amar wrote for this site about constitutional venue issues in the Amadou Diallo case.\n\n\n

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