ACT LOCALLY, THINK GLOBALLY
PART ONE: Why Timothy Mcveigh's Trial Was Unconstitutional

As his case bounced from court to court, Timothy McVeigh raised countless claims of constitutional error, but one of the biggest legal lapses came at his own prompting.

Article III of the Constitution provides that the trial of all federal crimes "shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." Yet in 1996, federal district judge Richard Matsch disregarded this clear constitutional command by transferring McVeigh’s trial from Oklahoma to Colorado. According to the judge, passions and publicity were running so high in Oklahoma that the good people of that state could not be trusted to try the defendant fairly.

Some might side with Judge Matsch on the theory that Article III exists only to protect the defendant, and that its rules are waived whenever he (or she) seeks a transfer. But that theory is mistaken.

Granted, some constitutional rules do read this way in language and logic. For example, the defendant-centered Sixth Amendment gives "the accused" the right to legal assistance, but also allows him to forswear assistance.

By contrast, Article III does not speak solely of defendants’ rights. Indeed, the Article’s background history proves that far more than defendants’ rights were involved; states’ rights, jurors’ rights, and victims’ rights were implicated.

The Founders believed that when a crime occurred, local citizens should weigh the matter, via the good old jury of the vicinage, with local eyewitnesses, victims, and onlookers easily able to participate. Even if the defendant and the central government preferred to move the trial to some cooler place, far from the madding crowd, the proper venue was the place of the crime itself.

Thus, when British troops killed civilians in the 1770 Boston Massacre, Americans insisted on a trial in Boston. The jury acquitted most of the defendants, thereby proving that local trials need not mean unfair trials, even in high-emotion, high-publicity cases.

Judge Matsch mentioned none of this history. Rather, he simply asserted that in "extraordinary" situations, the Fifth Amendment’s rule of due process and the Sixth Amendment’s rules of fair trials "override" the clear dictates of Article III.

But the American Revolutionaries who adopted the Fifth and Sixth Amendments would not have thought that these words somehow contradicted Article III’s specific and unequivocal mandate. Local juries defined Fifth Amendment due process, and the Sixth Amendment strengthened Article III’s guarantee of local juries. (The Sixth generally invites a jury not just of the state, but of the district within the state.)

Accordingly, even if the trial had to be moved outside Oklahoma City to accommodate Fifth and Sixth Amendment rights, the Constitution called for a venue transfer to some other place in Oklahoma, not Colorado.

A fancier argument for the venue transfer might run as follows: "The Founding vision reflected in Article III and the Bill of Rights was redefined by the later Fourteenth Amendment, adopted during Reconstruction. Like the Fifth Amendment, the Fourteenth requires due process. But the Reconstruction vision of due process was more nationalist and pro-defendant than was the Founding vision. When we read the Fifth and Sixth Amendments through the prism of the later Fourteenth, these provisions do indeed override Article III’s localism, whenever it conflicts with fairness to the defendant. Thus, not only should McVeigh’s trial have occurred outside of Oklahoma City, it was properly transferred out of state as well. Passions have rarely run higher than in the McVeigh case, and the transfer was necessary for fairness."

But this superficially plausible argument self-destructs: the more we emphasize the Fourteenth Amendment, the odder Judge Matsch’s decision appears. If a federal trial anywhere in Oklahoma would have been impermissibly unfair–as Matsch held–then so too would a state court trial on the same facts (because states are bound by the Fourteenth Amendment due process clause).

Yet this cannot be right – and indeed, if logically extended, quickly runs into absurdity. It would mean that in any notorious case where passions and publicity run high, a state could not prosecute in its own courts, using its own citizens as jurors! Indeed, it would mean that Oklahoma could never have prosecuted McVeigh himself on state murder charges.

The largely overlooked Article III issue illuminates many features of current American law. For one thing, it reveals that good constitutional interpretation requires knowledge of history and a view of the document as a whole, as it has been amended over time.

It also shows that our Constitution, carefully read, balances defendant rights against victim rights, and citizen rights more generally. Those who argue against a new Victims’ Rights Amendment to the federal Constitution on grounds that such rights would ill-fit the document’s general architecture are thus mistaken. A better argument might be that the document–if properly construed–already contains a good balance.

Most significantly, Article III reminds us of the importance of populism and localism in our constitutional structure. Judge Matsch’s decision exemplifies an unfortunate tendency among modern judges to treat popular sentiment as impermissibly tainting, rather than properly informing American criminal justice.

The framers believed in popular self-government, and emphasized popular input even in the judiciary, via jury trials and public trials. Criminal trials are morality plays, and popular judgment properly plays some role in the process of determining guilt and meting out punishment.

But surely localism and populism are not the only relevant constitutional themes? A local jury monitored only by a local gallery and local press– is this an attractive vision in a Twenty-First Century global village? To what extent must local actors attend to national and international norms of fairness? Although the American Revolutionaries were localists fighting against an imperial center, weren’t they also globalists casting their claims in universal terms and appealing in their Declaration of Independence to a worldwide audience?

These questions are especially important in the context of a renewed debate about the death penalty in America. The adequacy of safeguards for the innocent (including access to DNA testing and good defense lawyers); the role of race in the system; the humanity of capital punishment for mentally retarded inmates; the propriety of the death penalty more generally–these are all issues where various local judgments may be out of line with emerging national and international sentiment.

As our Constitution calls on Americans to act locally, to what extent does it also oblige them to also think globally? That’s the topic I shall tackle in next month’s column.