In a rare move, the Fifth Circuit Court on Thursday sent to the Supreme Court, with a plea for an answer, a legal question on the time allowed for federal prosecution of an old kidnapping case.  The answer, the Circuit Court said, could shut down federal prosecutions of perhaps two dozen old “cold cases” involving civil rights violations.

Because the Circuit Court, sitting en banc, had divided 9-9 on the issue, it could not itself give a definitive answer.  Thus, the full Circuit Court, by a 12-6 vote, opted to “certify” the question to the Supreme Court directly — a procedure that is allowed by federal law and Supreme Court Rules, but seldom is used.

The question will go to the Court (with no obligation to respond) in a highly visible civil rights case.  It involves a reputed Ku Klux Klansman, James Ford Seale, who was convicted of kidnapping two black teenagers and dumping them — perhaps still alive — into the Mississippi River.  The two 19-year-olds, Charles Eddie Moore and Henry Hezekiah Doe, were drowned.  Seale, now 73, is serving three life sentences for the crime.

The question submitted to the Justices is one on definition of a statute of limitations. It asks whether, for a kidnapping that occurred in 1964, time ran out for prosecution five years later, or whether there was no time limit at all, so the actual prosecution was not too late even though it did not begin until 2007, 43 years after the crime.

(Howard Bashman of How Appealing blog alerted us to this unusual plea by the Circuit Court, and provided this link to the Circuit order in Seale v. U.S., Circuit docket 07-60732).

The Supreme Court, under its Rule 19, does not have to answer questions submitted to it in this way.  The procedure is to put the question before the Court for a preliminary review of whether to call for briefs or argument, or to dismiss it without an answer.  The Court’s Rule then goes on to spell out what happens if briefing is ordered.

The dissenting judges on the Fifth Circuit, arguing that the issue was not worth either the Circuit Court’s or the Supreme Court’s time, noted that the Supreme Court had responded to a certified question of law only four times in more than 60 years.  “The likelihood of the Court’s accepting certification, based on past usage, is virtually nil,” the six dissenters argued.

The Supreme Court has not yet received the Circuit Court plea.  There is no timetable for acting on it.

At the time of the kidnapping in the Seale case in 1964, that crime was treated under federal law as a capital offense, and there was no statute of limitations for prosecution to begin.  However, the Supreme Court in a 1968 ruling (U.S. v. Jackson) struck down the death penalty for that crime, and Congress amended the law in 1972 to eliminate the death penalty, and the statute of limitations for kidnapping was set at the general limit when a specific statute contains none — that is, five years.

In 1994, however, Congress reinstated the death penalty for kidnapping.

Seale was indicted on charges of kidnapping and conspiracy in 2007.  Seale contended that his case was governed either by the Supreme Court’s decision in Jackson, or by Congress’ amendment in 1972 eliminating the death penalty for the kidnapping offense.

A District Court judge rejected Seale’s challenge, finding that his case was covered by the law as it stood when his crime occurred — there was no statute of limitations for the capital crime of kidnapping. A three-judge panel of the Fifth Circuit, however, ruled last September that the changes in the death penalty made by Congress in 1972 were procedural, and therefore applied retroactively.  So, it concluded, Seale could not be prosecuted in 2007 for a 1964 crime.

The panel ruling, however, was wiped out when the en banc Circuit Court agreed to hear a government appeal on the statute of limitations issue.  It wound up splitting 9-9, simply upholding the District Court ruling that Seale’s prosecution did not come too late.

After that, Seale asked the en banc to send the limitations issue on to the Supreme Court, noting that the Fifth Circuit had been unable to decide it.  Claiming ill health, Seale also argued that the issue of whether he was properly prosecuted should be resolved promptly by the Supreme Court.

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