Bob Garfield: I'm Bob Garfield, and this is the On The Media midweek podcast extra. This week, we're treating you to a sneak peek of a brand new weekly show from our colleagues at WNYC Studios and The Atlantic. It's called The Experiment, hosted by Julia Longoria, formerly of Radiolab and More Perfect. The premiere episode is The Loophole. First voice you'll hear is Julia's.
Mike Belderrain: [unintelligible 00:00:59] This is Mike.
Julia Longoria: Hi, Mike. This is Julia Longoria from The Atlantic and WNYC. How are you doing?
Mike: I'm doing good. How are you doing?
Julia: Good. We are going to just jump in. Are you ready to go back in time?
Julia: Okay, cool.
Mike: Sure, we can do.
Julia: Who were you in December of 2005?
Mike: I was a real rowdy guy, I guess you could say.
Julia: Why do you think you were rowdy at that time?
Mike: Because I'd beat people up.
Julia: 15 years ago, Mike Belderrain was a little rough around the edges.
Mike: If someone was an asshole in a bar, I'd go have a beer by you and tell you to say something to me, and then it'd be all bad for you.
Julia: He was a bit of an asshole. There were a lot of things that pissed him off, but there was one thing that he loved completely.
Mike: I lived on elk, literally. I lived to hunt elk.
Julia: He lived in Montana, not far from Yellowstone National Park, where elk are everywhere. Mike had to hunt down to an art form.
Mike: Elk comes hard, but if you could call good, I'd guarantee my hunter has a shot at 30 yards and closer.
Julia: Sorry, I'm from Miami, Florida. I live in Brooklyn. I got nothing. What does that mean?
Mike: You have a cow call, you imitate a cow call and you call him in.
Julia: You make the sound of a cow because the elk are looking for cows with who to mate? Is that what it is?
Mike: Yes. A pretty terrible way to die.
Julia: Can you do it for me?
Julia: Why, you might ask, are we talking to this self-proclaimed asshole about killing elk? It's because of this one particular elk, a starcrossed elk that changed the course of Mike Belderrain's life and walked him right into a hole in the US Constitution. It started one snowy morning in December of 2005. Mike set out on horseback just outside Yellowstone National Park.
Mike: Lots of mounds and lots of snow and trees. Open country.
Julia: Eventually, he spotted a group of elk off in the distance, but he set his sights on this one particular elk.
Mike: That was the biggest bull I'd ever seen. He was a trophy bull that I'd been chasing my whole life.
Julia: It was his white whale, his trophy bull. How did you feel at that moment?
Mike: Adrenaline like you wouldn't believe. Happy and nervous together. Nervous because I knew it was illegal.
Julia: Illegal because hunting season was over and he was standing inside Yellowstone National Park where you're not allowed to hunt at all. You knew if you killed the elk, you'd be breaking the law?
Mike: I knew that if I got caught, I'd be in trouble.
Julia: He took out his rifle anyway and aimed.
Mike: I meant to shoot him in the rib cage, behind the shoulder, so that he would go into the trees and die, but when I shot, it hit him in the head and he dropped, he fell right where he landed. It was this worse sick feeling I ever had in my life. I was like, "Oh, no, not good. Not good at all."
Julia: Instantly. Mike knew he'd shot an elk while standing inside of Yellowstone National Park.
Mike: I was standing in the park by 100 feet.
Julia: The evidence of his crime, the carcass was laying out in the open. Anyone could see.
Mike: Then it was a race to get him out of there.
Julia: Did you take the whole elk into the car?
Mike: No, I just took the-
Julia: Tell me.
Mike: The what? You said, "Tummy."?
Julia: I said, "Tell me." No, not, "Tummy."
Mike: I thought you said, "Tummy." I'm like, "Yes, I took the tummy."
Julia: What do you do with the tummy?
Mike: I left it. At that point, we took the head and the antlers from the elk. Detached him and raced out of there.
Julia: Mike knew he'd just committed a crime, a serious federal crime. What he didn't know was that technically, he'd just committed the perfect crime because he was standing in one of the only spots in the country where the law shouldn't have been able to touch him, a place inside Yellowstone National Park, where you could get away with not just hunting elk, but by the letter of the law, you should be able to get away with murder. I'm Julia Longoria and this is The Experiment, a show about our unfinished country.
I've been thinking about holes in the American project after an armed insurrection took place on our nation's Capitol. With that and the global pandemic and everything else we've lived together this year, it feels like we've all collectively stepped into this huge pothole that we didn't see coming. The question now is, how do we fix this? How do we move forward? How do we repair the weak spots that left us vulnerable to all this in the first place? Those are huge questions and it's going to take a long time to answer them. Today, I'm starting with something small. A tiny problem in a remote place that no one even knew about, until one guy-
Brian Kalt: I'm Brian Kalt.
Julia: -uncovered it.
Brian: I'm a law professor at Michigan State University.
Julia: Brian Kalt is obsessed with the tiniest details in the law.
Brian: I was this sort of kid who if I'm coloring something and I colored a little bit outside the lines, I would have a tantrum and crumple it up and throw it away and start all over again.
Julia: He looks for the mistakes.
Brian: Loopholes, weak spots, looking for potential hazards, and suggesting ways to patch them up before anyone steps on them.
Julia: Brian Kalt has fashioned himself as a constitutional plumber. He peers into the wonky insides of our legal system and tries to spot the holes.
Brian: -an issue and there's a loophole in presidential term limit, there's some dispute about the line of succession. There would be a tremendous incentive for people to kill the candidates, unfortunately.
Julia: In any other year, he might sound like a prepper.
Brian: The article that I wrote on impeaching people who've already left office, I published it in 2001. Maybe you'd use the 25th amendment if the President is running amok.
Julia: This year, when many of his old predictions made headlines, he sounded a lot like a prophet.
Brian: I wondered whether the President can pardon himself.
Speaker 4: -of the New York Times is reporting now that the President has been discussing pardoning himself. What can you tell us?
Julia: The loophole that Brian is most famous for is the one in Yellowstone National Park, the one that elk hunter Mike Belderrain stumbled into.
Brian: I discovered a loophole where there's this 50 square mile zone in Idaho, where you can commit crimes with impunity, get away with murder.
Julia: Brian found a zone of death. A place where it would be unconstitutional to prosecute a murderer because of a tiny mistake that Congress made. It has to do with the Sixth Amendment. Number six gave us the right to a local jury. The founders were paranoid about being controlled from far away, so they wanted justice to be hyper-local. They said juries are going to be very close to the scene of the crime, from the same state and the same federal district. That seems simple, but in Yellowstone, Congress drew a very messy map.
Brian: We had Yellowstone National Park before we had the state of Wyoming, before we had the state of Idaho, before we had the state of Montana.
Julia: When the states were drawn, Congress colored outside the lines. States and federal districts don't line up. All of Yellowstone is one district, the district of Wyoming, but inside that district, there are slivers of two other states, Idaho and Montana.
Brian: I don't know, they could have drawn the state boundaries to follow the park boundaries, but then you wouldn't have had this nice, neat Wyoming rectangle. It's really a trapezoid but we don't need to get into that.
Julia: Here's the issue; no one, zero people live in the Idaho sliver, and only a few people live in the Montana sliver, which means that if you commit a crime in one of these places, it would be very hard to find a jury there. No jury means no trial and the Constitution guarantees a trial by jury. That means technically, you can't be prosecuted.
Brian: One of the reasons that I went to law school in the first place was this idea that the law mattered and that if you master the law, you have an understanding of the law, that you can make things happen the right way, the way they're supposed to.
Julia: This is what really upset Brian, our Constitution is supposed to matter.
Speaker 5: It was as near-perfect a document that has ever been written.
Speaker 6: Without the Constitution, we would be an entirely different country than we are today.
Speaker 7: The Constitution, this amazing fabric of our nation, is our protection.
Julia: We spend a lot of time talking about this document, mythologizing it almost. Lawyers spend careers parsing every word. Dissertations have been written just about the placement of commas in this thing. Then to realize there's a place where a major right in the Constitution just doesn't apply.
Brian: I want them to fix it.
Julia: Have you heard of the Sixth Amendment right to a jury of your peers?
Ed: No, I haven't. I am new to America and your many amendments.
Julia: [laughs] When I found out about this loophole, I called Ed Yong.
Ed: Yes, I'm Ed Yong. I'm a staff science writer at The Atlantic where I've been covering the COVID-19 pandemic for the last 9,500 years.
Julia: Ed is a British journalist born in Malaysia. A British pandemic reporter may seem an unlikely choice for commenting on an American murder loophole but Ed was one of the first journalists to warn that the US might not be ready for a pandemic. What he really reports on is risk, our government's ability to prevent unlikely catastrophes, things that seem like they could never happen. Not here.
Ed: You assume that the legal system of the greatest country in the world can't possibly have a loophole that allows people to get away with murder. Surely, if that actually ever happened, there would be some way to go, "It's fine. We'll get a jury loophole-schmoople, it'll be fine." I think we assumed that with the pandemic. I think that a lot of folks, even the ones who had warned about pandemics have been surprised at just how badly America has dealt with the crisis this year.
Julia: A question for you, I'm just curious what you think, a loophole like that, that's obscure, [chuckles] do you think it matters?
Ed: Does it matter? One way to look at this would be to think about the potential cost of fixing the loophole. How much effort would go into patching it? If it's not a lot, if it really is just, I'm going to add another amendment, you all are very fond of your amendments, here and the problem goes away and it's easy, then, I think you could reasonably ask, "Why not do that?"
Julia: Why not? Indeed.
Ed Yong: The solution is very simple.
Julia: Brian Kalt had what he thought was a very easy solution to the zone of death loophole.
Brian: Dear representative blank [crosstalk]
Julia: First, he did what we're all taught to do in school. He wrote to government officials to ask them to solve this problem.
Brian: I wrote a letter to the Department of Justice.
Julia: He wrote letter after letter.
Brian: I wrote one to the US Attorney's Office in Wyoming, staff of the relevant subcommittees in the House and Senate.
Julia: They just had to pass a law to redraw the district lines.
Brian: They should see this as a no brainer. They'll say, "Oh, yes, that's funny. Let's take care of that right away."
Julia: As he waited for responses to these letters-
Speaker 8: This is a map of Yellowstone National Park. For the most part-
Julia: -a funny thing happened.
Speaker 9: Brian Kalt says there is a hole in the Sixth Amendment big enough to run a crime screen proof.
Speaker 10: In part of Yellowstone, it's not How to Get Away with Murder. It's where?
Speaker 11: It's called the Zone of Death because of a loophole [crosstalk]
Julia: Brian published an article in a legal journal about this and it got a lot of attention.
Brian: I don't want to say it went viral because it was a constitutional article. They don't go viral.
Julia: It was maybe the only time that a Law Journal article made it into the National Enquirer.
Speaker 12: [singing] Have you ever heard of the Yellowstone's Zone of Death?
Julia: There have even been viral tweets and TikToks-
Speaker 12: [singing] I know it's sure they'll want to kill my job, argh.
Julia: -with little skits about the Zone of Death.
Speaker 12: [singing] Zone of Death.
Julia: Even with all of that attention, Brian could not get a single elected representative to talk to him directly about this problem.
- J. Box: Do you expect or have you already been contacted by the screenwriter of Ocean's 27? Or Law & Order is about to craft some plot that's based in the Idaho portion of Yellowstone Park?
Brian: I suppose the parts of legal fillers have turned on other oddities than that. I haven't been contacted by anyone and I hope I'm not. [chuckles]
- J. Box: Now there is a catch here [crosstalk]
Julia: A year after Brian's article came out, someone did contact him. Someone who'd read Brian's paper and urgently wanted to talk to him about the loophole.
C.J. Box: As soon as I read it, I knew this is my way into Yellowstone Park to tell that story.
Audiobook: Now, Free Fire by C.J. Box.
C.J. Box: I'm C.J. Box, I've written 27 novels.
Julia: Wyoming's best-selling novelist C.J. Box is the kind of prolific writer whose paperbacks you can buy at the airport. He's sold over 10 million books worldwide and they've been translated into 30 languages and of course, made into an audiobook.
Audiobook: Part one; A half-hour after Clay McCann turned over his still-warm weapons [crosstalk]
C.J. Box: The book opens with the guy slaughtering some campers and then turning himself into the ranger station, knowing that if they try to prosecute him, he's likely not to be convicted.
Audiobook: "Do you want to call a lawyer?" McCann said, "You don't understand. I am a lawyer."
C.J. Box: He knows about this loophole because he's a lawyer,
Julia: A lawyer like Brian Kalt. I asked Brian what he thought about the resemblance.
Brian: If he, instead of a small-town lawyer, had made it a pointy-headed sociopathic law professor as the protagonist, that might have hit too close to home. I don't consider myself a sociopath.
Audiobook: Then he smiled as if sharing a joke.
Julia: The whole plot is like Brian Kalt's worst nightmare.
C.J. Box: The puzzle in the book is why did this local lawyer, shoot all these campers and kill them?
Audiobook: We'll just never fucking know. I'm afraid.
Julia: The plot gets very existential.
Audiobook: "There's no point," Keaton said, "Because we're all going to die. I don't know where we're going but it seems like we're headed somewhere." "Story my life," he just said.
Julia: Spoiler alert. Ultimately, we learned the lawyer murderer was part of this big corporate conspiracy and a government cover-up. He never pays for his crimes in court but he does burn to death in a hot spring. The story is pretty dark but that didn't stop it from having a wide appeal.
Brian: Free Fire got onto the New York Times extended bestseller list. Then all of a sudden, I got responses.
Julia: One of the readers of C.J. Box's book was a Senator. Senator Mike Enzi from Wyoming.
Mike Enzi: Well, reading is such an exciting thing. I read about 100 books a year. This one's Free Fire, which is about Yellowstone Park.
Julia: What you're hearing is a recording of Enzi on a C-SPAN show called the Book TV.
Mike Enzi: - author named C.J. Box writes phenomenal stuff about Wyoming. I get advanced copies of his book, usually.
C.J. Box: He actually would write little reports to me on each book-
Mike Enzi: I've done a book report on every one of them since I got out of graduate school.
C.J. Box: -like a book report in high school.
Mike Enzi: There was a zone in Wyoming while in Yellowstone Park that was actually considered to be part of Idaho, but nobody lived there so there would be no jury of your peers.
C.J. Box: "This book is about this issue and da, da, da, da. This is what happens, and I've enjoyed it.
Mike Enzi: -consequently, maybe you could commit murder there. He asked me to make sure that wouldn't be a possibility before the book came out and encourage [crosstalk]
Julia: For a little while, it seemed like government was working the way Brian thought it should. The representative for this area was aware of the problem, Brian had presented the solution and the senator set out to fix it.
Brian: November 2006, I had the contact with Senator Enzi's office.
Julia: Over the course of the next several months-
Brian: Then in January of 2007, I followed up.
Julia: -Brian had back and forths with Senator Enzi's office that seemed promising. Enzi reached out to the Department of Justice to solve the issue.
Brian: In February of 2007, Enzi sent a letter to Attorney General Alberto Gonzales, asking him to look into this matter.
Julia: In the end-
Brian: Then in May of 2007, Enzi sent the letter explaining why the department wasn't going to be doing anything about it.
Julia: Could you read it a little bit from that letter?
Brian: Sure. "I've spoken with individuals of the Department of Justice and other members of the law enforcement community. They've assured me that should a crime be committed in the Zone of Death, they would move forward with prosecution, and I have suggested that the courts would allow the prosecutors to move forward. At this point in time, we will hope the problem is a hypothetical and it remains as such. However, I continue to take this matter seriously, and I will be evaluating the available solutions to determine what is practical and what is possible."
Julia: Did you ever hear back about what is practical and what is possible?
Brian: It looked like not doing anything was the only thing that proved practical.
Julia: I reached out to Senator Enzi to ask him why he didn't end up closing this loophole. I got in touch last December, right before he retired from his 24 years in the Senate, and he declined to be interviewed through a press secretary. I tried again in the new year and the only response I heard back was actually through C. J. Box, who told me he's not doing any post-retirement interviews.
Brian: I recognize the Congress has many more pressing matters, less hypothetical, actual problems to deal with. Not that they're doing anything about those things either, but in a typical Congress what gets passed is renaming post offices. They find the time to rename post offices. This is not the most important thing in the world, it's not even close, but they have a system in place where if there's a good reason to rename a post office, then it happens. If they can do that, they can do this.
Speaker 15: Senate 4684, an act to designate [crosstalk]
Julia: The very last bill that Senator Enzi introduced in the Senate, by the way, it renamed a post office.
Speaker 15: -street in Thermopolis, Wyoming as the Robert L. Brown post office.
Speaker 16: Is their objection to the consideration of the bill?
Julia: After years of trying to get this loophole fixed, even after it became a viral sensation, a hit crime novel, an item on Senator Enzi's agenda, Brian hit a brick wall. It was a hypothetical problem. Congress was not going to fix something that was so unlikely to happen until it did happen.
Brian: When there arose an actual case-
Mike: When I shot and it hit him in the head and he dropped, it was the worst sick feeling I ever had in my life. I was like, "Oh no. Not good."
Brian: -I saw what that would look like here.
Julia: The Elk Hunter, after the break.
When we last left Mike Belderrain,he'd poached an elk while standing inside Yellowstone, chopped off the head, and left the carcass out in broad daylight.
Mike: That was the biggest bull killed in Montana that year.
Julia: He felt bad about it but not that bad about it. This was the biggest kill of his career. It was his trophy bull. He took the head to a taxidermist, got it stuffed, and mounted it for everyone to see.
Mike: Oh, that's why it was killing me.
Julia: It wasn't until a full year later, that Mike was arrested and we got our first and only test of the perfect crime theory.
Mike: My shooting at elk had nothing to do with that perfect crime area.
Julia: Of course, Mike had never heard of Brian Kallt or the Zone of Death, and even he if he had-
Mike: That bullet could have been standing deep inside the park ride to pay an entry fee to get into it, I still would have killed that elk.
Julia: His lawyers tried the argument anyway. He said if Mike Belderrain's case were to go to trial, the court would have a very hard time finding a jury that lived inside the little sliver of Montana inside Yellowstone where he killed the elk. They would almost certainly violate Mike Belderrain's constitutional right to a local jury.
Brian: The judge basically said, "Well, that's an interesting, but esoteric argument, but I can't just let him go just because the constitution says so," so he didn't.
Julia: His lawyer tried some other tactics.
Mike: Made it sound like I was a fricking hero. He brought up, "Oh, he has a full-ride basketball scholarship, did all these great things, and donated here, donated there." I wanted to smack him. I was like, "Oh, my God, sit down."
Julia: [chuckles] Wait. You weren't mad at the lawyer for making you sound like a hero?
Mike: Yes, I was like, "Dude, I got a minor. Are you crazy? Sit down." Fact of the matter, I was there for shooting a fricking elk and I left the carcass. I still felt like shit about it.
Julia: For Mike, this was not about the constitution. It was about the principle of the thing in a weird way.
Mike: Did I deserve to get in trouble? Absolutely. What I did was the dumbest thing ever. You'll never hear me say what I did was right. No lawyer would have got me out of it, nor should he have. Anyone that knows me, knows I fucked up, excuse my language, knows I did wrong. I felt like shit. If someone else would have did what I did, I would've beat him up. Let's put it that way.
Julia: Mike Belderrain took a plea. He pled guilty. Instead of the seven years, he might've faced if he went to trial, he took four years.
Mike: Like I said, I definitely deserved to get in trouble, but four years, no. I felt like shit. You know what I mean? Had 5 kids.
Julia: In his plea, he agreed to a condition, that he would never appeal his case based on the Zone of Death.
Brian: The fact that they put him in prison in a way that left the loophole as open as it had been, if not wider, that was the part about it. That was the hardest for me to swallow. Maybe it's from when I was a kid watching Schoolhouse Rock that the image of the lawmaking process that I grew up with was, "I'm just a bill. Yes, I'm only a bill and I'm sitting here on Capitol Hill." He says, "When I started that was just an idea." Some folks back home called their local congressman and he said, "You're right. There ought to be a law." He sat down, he wrote me out and he introduced me to Congress and I became a bill. That's my image of it. Every step in this process was telling me that was just not so.
Ed: With the Brian Kalt case, did anything change after the elk incident?
Julia: No. No, nothing changed. Atlantic staff writer, Ed Yong again. Ed has spent a lot of the last year wondering why the government was not better prepared for the pandemic, why the warnings and advice of many experts were ignored, why such a powerful country didn't live up to its image.
Ed: This is the thing that concerns me now. I worry about our capacity to learn from our past mistakes. Now, obviously, a pandemic is not the same as this murder loophole because in the worst-case scenario, you would expect maybe a few people to fall foul of the problem that Brian Kalt identified, whereas in a pandemic, almost by definition, it's a whole world that's at risk.
All of this does hinge on our ability to look at a rare, but potentially catastrophic outcome and take the steps that are necessary to ward against it. It's interesting that even though we have seen what happens when we don't prepare for that, I don't know if we are capable of mustering the collective consciousness and the political will to actually address those problems.
Julia: Why do you think we have trouble fixing things as a country that aren't currently on fire?
Ed: There's a lot of different reasons. To pick one that I think is relevant to the loophole story that you told me, America is possessed of this extreme sense of exceptionalism. The country is famous for it, for thinking itself the greatest nation in the world. If you truly internalize that message, then a lot of things flow from it. It takes work and effort to be exceptional. If you think that you're already there, then you're probably not going to put that effort in.
Julia: I wonder if sometimes on our good days that idealism or exceptionalism would push the country, push individuals to try to keep making the ideal true on our good days.
Ed: I don't know that that's true.
Ed: Yes, I really don't. I think that if you tell people that they are exceptional for a very long period of time, you breed complacency. You don't foster innovation. Honestly, why try if you already believe yourselves to be great? I worry because I think we still have a lot to do. In some ways, the vaccines that we have now and that are being rolled out are more likely to tip us towards forgetfulness. If anything comes from this year, I hope that it's this understanding that there's a lot left to fix.
Julia: Mike Belderrain's four years in prison were rough.
Mike: The guards, the people there, no one could believe I was in prison for shooting a frickin elk. It was a bad deal. It wasn't even a bad deal for me. It was a bad deal for my family. They're the ones that hurt the worst.
Julia: He's out now. He's back with his family. At least for him personally, he says he dropped some of the pride, some of the ego that made him think that he could get away with a crime like that. He knew he messed up and he put in the work to try to fix it.
Mike: Well, I was rowdy back in the days. I did a lot of stupid shit and never got in trouble. I don't know. Just greed and fame and all that bullshit got to me. I still am a family guy, I still got horses, I still hunt. I hunt more now than I did then. I just don't break the laws. My kids don't break the laws.
Julia: Do you think you shed your rough ways of your early years?
Mike: No, I'm still an asshole.
I don't drink. I went to AA. I did all that and it made me a better person. I don't know how to say it. I take pride in my work. I take pride in my crew. I love my job. I love my family.
Julia: How do you make sense of everything that happened to you now?
Mike: Everything happens for a reason.
Julia: What reason then did this happen for?
Mike: I don't know. I have no idea.
Gabrielle Berbey: This episode of The Experiment was produced by Julia Longoria and Alvin Melathe, with editing by Katherine Wells and sound design by David Herman. Our team also includes Matt Collette, Tracie Hunte, Natalia Ramirez, and me, Gabrielle Berbey. Music by Tasty Morsels. Special thanks to Jennifer Jerrett and Montana State University Library's Acoustic Atlas and the Yellowstone National Park Sound Library. The Experiment is a co-production of The Atlantic and WNYC Studios.
Bob: You've been listening to the first episode of The Experiment, a new weekly show from WNYC Studios and The Atlantic. You can find the show by searching for The Experiment in your podcast app. Tune into On The Media this weekend for the big show which dissects the pros and cons of deep platforming Fox News. Meantime, please subscribe to our newsletter at onthemedia.org/newsletter because it's good for us and it is really good for you. I'm Bob Garfield.
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