462 THE ADVOCATE
VOL. 76 PART 3 MAY 2018
omission, or exception (as in a law or other legal document) that provides
a way to avoid a rule without violating its literal requirements”.4
This brings us to what is perhaps the ultimate “legal loophole”, offering a
clever escape from the law: “The Zone of Death”.5
Yellowstone National Park stretches across a breathtaking 34,375 square
miles.6 Ordinarily we go metric in this publication but, as you will see below,
that would spoil the round numbers – Asst. Ed. The park is located mostly in
the State of Wyoming. Mostly. However, there is a narrow strip of about 50
square miles of the park that extends into the state of Idaho. A somewhat
larger portion extends into Montana.
Yellowstone was established in 1872, before Montana, Idaho and
Wyoming joined the Union in the late 1880s and early 1890s. It is situated
on federal land, as the three states each ceded exclusive jurisdiction over its
portion of Yellowstone to the federal government upon their admission to
the Union. Federal lands across the U.S. are divided into their corresponding
state district court—that is, the state within which the federal land is
situated. The catch, however, is that although Yellowstone extends into
three different states, Congress placed the entire park within the District of
Wyoming. Consequently, and quite anomalously, the District of Wyoming
includes land—small strips of Yellowstone—situated in other states.
This state of affairs should not, on its face, cause any problems. But consider
what would happen if, say, a murder were to be committed in the 50-
square-mile stretch of Yellowstone extending into the state of Idaho. This is
the subject of a clever essay penned by U.S. law professor Brian Kalt and
published back in 2005 in the Georgetown Law Journal entitled “The Perfect
Crime”,7 which at various points reads more like the lead-up to a murder
mystery than a law review article. In it, Kalt describes how this small strip
of Yellowstone has earned itself the nickname “The Zone of Death”.
Under Article III, Section 2 of the U.S. Constitution, an accused has the
right to be tried in the state within which the crime is alleged to have been
committed. This is described as the “venue” provision. The consequence is
that the person accused of our hypothetical murder would have a right to
be tried in the state of Idaho. At this point, we encounter a bit of a legal
snag. The Sixth Amendment of the U.S. Constitution provides that in all
criminal prosecutions, the accused shall enjoy the right to a jury drawn
from “the state and district” in which the crime is alleged to have occurred.
This is referred to as the “vicinage” clause. The effect of this clause is that
the accused has a right to be tried by a jury composed of individuals who
live within both (1) the state of Idaho and (2) the District of Wyoming.
Hence, the jurors must be drawn from the pool of individuals situated at the
nexus of the very simple Venn diagram depicted below.