On Tuesday, the Supreme Court will be drawn deep into constitutional history, as it explores the limit on where one may be tried for a crime.   A second hearing will seek to unravel lower court disagreements on federal judges’ sentencing powers.

The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov  To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt

First case Tuesday:  Smith v. U.S.   Starting at 10 a.m., the hearing is scheduled for one hour.

Background:  Among the many legal protections that the Constitution promises, there is one that has a curious and somewhat conflicting history.  It is guaranteed in Article III and in the Sixth Amendment, showing that it was highly valued in 18^th Century America,

That is the right not to be put on trial away from the place where the crime occurred – usually, one’s home area, where one would be judged by neighbors enforcing that community’s values.

The violation of that right by England’s monarchy was one of the grievances listed by Thomas Jefferson for declaring independence for the new nation.  King George III, Jefferson wrote, has given his approval to laws “for transporting us beyond the seas to be tried for pretended offenses.”  That referred to laws passed by Parliament giving colonial officials the power to order colonists sent to England for trial.

The Philadelphia convention drafting the Constitution in 1787 inserted into Article III, governing the new court system, these phrases: “The trial of all crimes…shall be held in the state where the said crimes shall have been committed.”  And, when the first Congress drafted the Bill of Rights in 1789, it included nearly the same language in the Sixth Amendment, which was ratified along with the rest in 1791.

But neither the draftsmen in Philadelphia nor the first Congress were willing to add to those words a further guarantee that would reinforce that approach: a guarantee that the jury itself would have to be residents of the place where the trial took place, to guarantee that it reflected local sentiment.  For reasons not clear from the historical record, that addition was deemed unwise as a practical matter.  The House of Representatives wanted that in the Sixth Amendment, but the Senate refused.

But that is not the only curious part of the history.  Among all of the nine specific guarantees in the Sixth Amendment (and so many other provisions of the overall Bill of Rights), this local trial guarantee still only applies in federal trials, not those in state courts.  The Bill of Rights, of course, was initially designed only to restrain the powers of the national government, but over the nation’s history, the Supreme Court has interpreted most of those rights as so fundamental that they are guaranteed in state trials, too.  Not so, on the local trial provision.

The case the Justices will hear first on Monday morning is focused on a federal trial – a trial in northern Florida, of a man whose home is in Alabama and who was tried for a crime that occurred in a different part of Florida.

The facts of this case:  Timothy J. Smith lives in Mobile, Ala., and is a software engineer as well as avid fisherman.  This case involves his access, by computer, to the geographic location of sites in Florida where artificial reefs have been built, in order to attract fish.  Apparently, it is customary for fishermen to keep such sites to themselves, to avoid over-fishing.

The company that gathers that location data, named StrikeLines, has its home office in Pensacola in northern Florida but its servers hosting the data are in Orlando, in the middle of the state.  Smith got into StrikeLines’ private website in Orlando, then told the company that he had done so, illustrating that the site was vulnerable to hacking by other fishermen.  StrikeLines then beefed up its security.

Federal prosecutors accused Smith of illegally hacking the StrikeLines data, stealing trade secrets and attempted extortion.  He challenged the plan to hold the trial in Pensacola, contending that all of his actions occurred in Mobile, his home city. The trial went ahead over his protest, and he was convicted of the trade secrets and extortion counts.  He was sentenced to 18 months in prison.

Appealing to a federal appeals court, Smith renewed his objection, arguing that the remedy for the improper venue of trial was dismissal of the charges on which he had been convicted, not a new trial in a proper location.  The appeals court upheld his extortion conviction, but ruled that the trade secrets theft charge was tried in the wrong place.  It ruled that the only remedy available was to wipe out the conviction, clearing the way for a new trial, suggesting that Smith could be retried in Mobile on that count.

Smith appealed to the Supreme Court, contending that lower courts disagree on whether – as he argues – charges should be dismissed when the government makes an error and tries a case in the wrong location.  It is not yet clear whether Smith will face a new trial in Mobile.

The question before the Court:  If the federal government prosecutes a crime in the wrong place, does that require that the charge be dismissed, with no chance of a new trial elsewhere?

Significance:  One thing that is a bit uncertain as the Supreme Court takes up this dispute: is this a constitutional question, or is it only a question about prosecutors’ duties and the remedies for their error?

While much of the rhetoric in the filings in this case focus on the fundamental importance they attach to the local trial mandates of the Constitution, the technical focus is on what prosecutors must plead on the venue issue.  Among the things that prosecutors must prove in every case, beyond a reasonable doubt, is that they had picked the right place for trial – that is, where the crime allegedly happened.

The outcome of this case appears particularly important for crimes that involve computer activity – as in this case – and drug trafficking, which may involve several locations where trials might be held.

The Supreme Court has seldom in its history ruled on the meaning of the constitutional guarantees underlying the local trial mandate, so this case could be an important clarification on that question.

Tuesday’s second case:  Lora v. United States   Scheduled for one hour, this case will begin when the Court finishes with the local trial dispute.

Background:  This case, growing out of a drug gang shooting in New York City, is a straightforward test of when a judge may require that multiple prison sentences be served one after the other, rather than overlapping each other.  The dispute arises over an additional penalty that federal law imposes when a gun has been used in a drug crime, and someone is killed in the incident.

It does not appear to have wider significance, and will not be further analyzed in this space.

On Wednesday, the Supreme Court will finish the current round of hearings with two cases.  The first tests whether a confession by one person involved in a crime can be used as evidence at the trial of another.  In a second case, the Court will seek to clarify when the Internal Revenue Service must notify a taxpayer when it seeks tax records from a bank or other source not itself suspected of tax evasion.