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The poacher who shot an elk there and went to trial had a pretty decent argument citing this particular hypothetical. The judge dismissed the argument but his a

The poacher who shot an elk there and went to trial had a pretty decent argument citing this particular hypothetical. The judge dismissed the argument but his attorney pressed on; the poacher eventually took a light plea bargain contingent on not appealing and using this line of argumentation. Given the makeup of the federal courts and all the way up to SCOTUS, this would be a dangerous case for the state to take to trial through the appeals process before closing the loophole.

giantg2 6y ago
Do you have a link to the details? Especially why the argument was dismissed?
newacct583 6y ago
I'm not sure I undertstand the courts argument. I guess you're saying that the disproportionately republican justices would be more amenable to a civil liberties reading of the law. But in fact the truth is the opposite: conservative courts have a long and very consistent history of being very friendly to police powers.
- giantg2 6y ago
  I think the argument is that lower courts are supposed to follow the rulings from higher courts, either due to precedent or just consistency. Lower courts can be hesitant to rule on novel cases, and seem to side with 'guilty until proven otherwise' instead of 'innocent until proven guilty' when these technicalities come along. I feel like you are partially right about conservative judges. I do think they tend to be more 'tough on crime', especially at lower levels. But it also seems that at the higher courts they tend to apply the law as it was written. In this case, if it is applied as written, then the defendant would be dismissed or not guilty. I don't know. Based on my recent experiences, the system is a sham.
- icelancer 6y ago
  Alito and Thomas yes. Gorsuch and Kavanaugh, not so much.
jcranmer 6y ago
Law is not like code or math: you don't follow an inexorable algorithm in law to arrive at the only possible interpretation of the law. When you do this kind of analysis and arrive at this kind of absurdity, more often than not, courts will find that the law actually doesn't permit this absurdity. In this specific case, it's already possible to move jury trials to other districts for difficulty of finding impartial jurors, so it's almost certain that the courts would similarly rule that doing a similar change of venue poses no constitutional issue whatsoever.
- deleted 6y ago
  [deleted]
- asperous 6y ago
  Yeah, I agree, courts are made up of people are designed to deal with the gray area as best they can. Courts deal with complex cases all the time. One thing they often look to in these gaps is intention. “District and state” was intended to provide a fair trial of your peers. Simply not having a trial would not be a fair trial, however choosing a nearby venue would likely pass the fair and reasonable test.
  - giantg2 6y ago
    But how do you explain that one knew what they where doing was unlawful? How can they if the law clearly states they cannot be prosecuted? If the law states that you cannot be fairly tried in that location, then to put them on trial would be a violation of rule of law. The people explicitly spoke through their representatives. If it was not specific or too specific, then the law needs to be changed by the legislature. This 'interpreting' the law to the detriment of the defendant is generally bullshit. If you use the basis of reasonable doubt and innocent until proven guilty, then it should result in defendant being dismissed. You can't expect people to telepathically know the law means something contrary to what it literally says.
    - jcranmer 6y ago
      > But how do you explain that one knew what they where doing was unlawful? That doesn't matter. As the maxim goes, ignorance of the law is no excuse.
grecy 6y ago
When the local first nation wanted to be recognized as the traditional land owners in this part of BC, Canada, one of them would shoot en Elk every year illegally, then goto the Police station and try to get them to charge him. He and they knew it would go to court, and the whole "land ownership" debate would finally come to the forefront. It went on for a decade before they did finally charge him, and of course it was his land (he knew that), so the charges were eventually dropped and that first nations tribe is now recognized as the traditional owners of the land.

giantg2 6y ago

Do you have a link to the details? Especially why the argument was dismissed?

newacct583 6y ago

I'm not sure I undertstand the courts argument. I guess you're saying that the disproportionately republican justices would be more amenable to a civil liberties reading of the law. But in fact the truth is the opposite: conservative courts have a long and very consistent history of being very friendly to police powers.

giantg2 6y ago
I think the argument is that lower courts are supposed to follow the rulings from higher courts, either due to precedent or just consistency. Lower courts can be hesitant to rule on novel cases, and seem to side with 'guilty until proven otherwise' instead of 'innocent until proven guilty' when these technicalities come along. I feel like you are partially right about conservative judges. I do think they tend to be more 'tough on crime', especially at lower levels. But it also seems that at the higher courts they tend to apply the law as it was written. In this case, if it is applied as written, then the defendant would be dismissed or not guilty. I don't know. Based on my recent experiences, the system is a sham.
icelancer 6y ago
Alito and Thomas yes. Gorsuch and Kavanaugh, not so much.

jcranmer 6y ago

Law is not like code or math: you don't follow an inexorable algorithm in law to arrive at the only possible interpretation of the law. When you do this kind of analysis and arrive at this kind of absurdity, more often than not, courts will find that the law actually doesn't permit this absurdity. In this specific case, it's already possible to move jury trials to other districts for difficulty of finding impartial jurors, so it's almost certain that the courts would similarly rule that doing a similar change of venue poses no constitutional issue whatsoever.

deleted 6y ago
[deleted]
asperous 6y ago
Yeah, I agree, courts are made up of people are designed to deal with the gray area as best they can. Courts deal with complex cases all the time. One thing they often look to in these gaps is intention. “District and state” was intended to provide a fair trial of your peers. Simply not having a trial would not be a fair trial, however choosing a nearby venue would likely pass the fair and reasonable test.
- giantg2 6y ago
  But how do you explain that one knew what they where doing was unlawful? How can they if the law clearly states they cannot be prosecuted? If the law states that you cannot be fairly tried in that location, then to put them on trial would be a violation of rule of law. The people explicitly spoke through their representatives. If it was not specific or too specific, then the law needs to be changed by the legislature. This 'interpreting' the law to the detriment of the defendant is generally bullshit. If you use the basis of reasonable doubt and innocent until proven guilty, then it should result in defendant being dismissed. You can't expect people to telepathically know the law means something contrary to what it literally says.
  - jcranmer 6y ago
    > But how do you explain that one knew what they where doing was unlawful? That doesn't matter. As the maxim goes, ignorance of the law is no excuse.

grecy 6y ago

When the local first nation wanted to be recognized as the traditional land owners in this part of BC, Canada, one of them would shoot en Elk every year illegally, then goto the Police station and try to get them to charge him. He and they knew it would go to court, and the whole "land ownership" debate would finally come to the forefront. It went on for a decade before they did finally charge him, and of course it was his land (he knew that), so the charges were eventually dropped and that first nations tribe is now recognized as the traditional owners of the land.