Fifth Circuit Orders Acquittal in 1964 Mississippi Murder Case, Cold Case Initiative Fails, Statute of Limitation Prevails
By: Houston Criminal Defense Attorney John T. Floyd and Senior Paralegal Billy SinclairSeveral years ago the Federal Bureau of Investigation created a Cold Case Initiative designed to bring to justice persons who committed horrific racially motivated crimes during the 1950s and 1960s civil rights era. One of those cases involved James Ford Seale, a former Mississippi deputy sheriff, who was convicted in June 2007 of kidnapping and conspiracy to commit kidnapping in the disappearances of Charles Eddie Moore and Henry Hezekiah Dee.
The two 19 year old African American men were hitchhiking in rural Franklin County, Mississippi in 1964 when Seale and fellow Klansmen allegedly picked them up, drove them into the Homochito National Forest in Franklin County, brutally interrogated and beat them, bound them with duct tape, tied a car engine block and railroad rail to their bodies, and while they were still alive and presumably pleading for their lives, threw them into the Old Mississippi River. The bodies of the two men were accidentally found two months later during a search for three missing civil rights workers in another infamous civil rights murder case that would become known as the “Mississippi Burning” case.
Seal and another man named Charles Edwards were arrested for the murders of Moore and Dee in 1964 but were immediately released on bond and were never tried. After the FBI turned the case over to local authorities, a justice of the peace dismissed the charges saying witnesses refused to testify against Seale and Edwards.
Law enforcement interest in the case was revived when Charles Moore’s brother, Thomas, discovered that Seale was still alive during a visit to Franklin County in 2007 as part of a documentary being produced by the Canadian Broadcasting Corporation about the civil rights slayings. Thomas Moore gave the U.S. Attorney for the Southern District of Mississippi the FBI files on the case which he had obtained from a Mississippi reporter. That prompted Assistant U.S. Attorney Dunn Lampton to assist in the creation of a task force that re-opened the four decade old murder cases. The FBI-led task force generated enough evidence to produce an indictment against Seale. The FBI hailed the indictment as a prime example of its efforts to close cold cases from the civil rights era.
“Today’s indictment is one example of the FBI’s strong and ongoing commitment to reexamining and investigating unsolved civil rights era murders and other crimes,” FBI Director Robert S. Mueller said after Seale’s indictment was announced in January 2007. “Under our Cold Case Initiative, we will continue to identify and pursue these cases of racially motivated violence to ensure justice is served wherever possible.”
The fact-investigation led by the FBI should have been accompanied by a more comprehensive legal-investigation conducted by the U.S. Attorney’s Office as evidenced by the recent Fifth Circuit ruling. Seale was indicted on January 24, 2007 in a three count indictment [two counts kidnapping and one count conspiracy to kidnap] under the federal kidnapping statute, 18 U.S.C. § 1201(a) and (c). It was just a matter of weeks between the time Thomas Moore gave the U.S. Attorney’s Office the FBI files and Seale’s indictment. That was not very much time for the task force to conduct its fact-investigation and the U.S. Attorney’s Office to conduct its legal investigation into whether kidnapping charges could be brought in a 43-year-old case.
Attorneys for Seale did their homework. They quickly filed a motion to dismiss the case as being time-barred by the federal statute of limitation. See: 18 U.S.C. § 3282 [five-year limitation period for ‘non-capital” crimes]. The trial court denied the motion, the case proceeded to trial, and a jury convicted Seale. He was sentenced to life imprisonment on August 24, 2007. It had been just seven months since his indictment.
When Seale kidnapped Moore and Dee in 1964, § 1201 authorized the death penalty when the kidnap victim had “not been liberated unharmed.” See: United States v. Seale, ___ F.3d _____ (5th Cir. 2008) [Slip Opinion No. 07-60732, p. 3]. This fact alone apparently convinced the U.S. Attorney’s Office that it had a sufficient legal basis to prosecute the case. This decision was bolstered by the fact that § 1201 does not, and never has, included its own limitations period and that 18 U.S.C. § 3281 creates an unlimited period for indictment and prosecution of capital offenses.
However, in 1972 Congress amended § 1201 with the Act for the Protection of Foreign Officials and Official Guests of the United States. This Act removed the death penalty as a potential punishment under § 1201. The Act set the punishment provisions of § 1201 as “any term of years or life.” The Fifth Circuit held that “… under the 1972 version of § 1201, the death penalty was not an available punishment, and kidnapping was ‘not capital’ for statute of limitations purposes, triggering application of the five-year limitations period” under § 3282. Seale, supra, at Slip Opinion 5.
The U.S. Attorney’s Office had proceeded under the erroneous legal premise that the 1972 amendment to § 1201 did not apply to a kidnapping violation that occurred in 1964. This premise was based upon established U.S. Supreme Court precedent that absent clear statement from Congress that an amendment should apply retroactively, there is a presumption that it applies only prospectively to future conduct, at least to the extent that it affects “substantive rights, liabilities, or duties.” See: Landgraf v. USI Film Prods., 511 U.S. 244, 278 (1994). See also: Greene v. United States, 376 U.S. 149, 160 (1964) [“the first rule of {statutory} construction is that legislation must be considered as addressed to the future, not the past”]; Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974) [amendments that change the available punishment only apply retroactively].
In a legal nutshell, the 1972 amendment eliminating the death penalty for a federal kidnapping could not be applied retroactively to Seale’s 1964 kidnapping. But U.S. Attorney’s premise missed the bull’s eye on the barn. Federal jurisprudence has long held that this “prospective only” presumption does not apply when an amendment to a statute is merely procedural in nature. See: Turner v. United States, 410 F.2d 837, 842 (5th Cir. 1969). This jurisprudence was also recognized by the Supreme Court in Landgraf. See: 511 U.S. at 275 [the “prospective only” presumption “must yield to the rule … that changes in statute law relating only to procedure or remedy are usually held immediately applicable’ absent congressional intent to the contrary].
While the Fifth Circuit has recognized that “the distinction between procedure and substance tends to confuse more than clarify, courts have [nonetheless] employed it to determine whether a given statutory change super[s]edes the prior law in cases arising from acts that occurred before the legislation’s effective date. If a statutory change is primarily procedural, it will take precedence over prior law …” See: United States v. Blue Sea Line, 553 F.2d 445, 448 (5th Cir. 1977). See also: Bowles v. Strickland, 151 F.2d 419, 420 (5th Cir. 1945) [procedural changes in the law are given retroactive effect because they do not interfere with a party’s substantive rights and relate “only to the procedural machinery provided to enforce such rights”].
The Fifth Circuit in Seale pointed out that criminal statutes of limitation do not interfere with a defendant’s substantive rights because they merely limit the time in which the government can bring a criminal charge against the defendant. See: Seale, supra, at Slip Opinion 7. The Supreme Court has endorsed this traditional principle by saying that very purpose of a criminal statute of limitation is to “provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” See: United States v. Marion, 404 U.S. 307, 322(1971). See also: Toussie v. United States, 397 U.S. 112, 114-15 (1970) [“such a limitation is designed to protect individuals from having to defendant themselves by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past”].
The Fifth Circuit in Seale, therefore, concluded that based on these authorities the “changes to criminal statutes of limitation presumptively apply retroactively to pre-amendment offenses, absent Ex Post Facto concerns that are not present here. And it is undeniable that the 1972 amendment to § 1201 had the effect of changing which statute of limitation applies [§ 3282 instead of § 3281]. That the 1972 amendment merely changed which statute of limitation applies, without changing the limitations statute itself, is immaterial … Under the circumstances of this case, there is no practical difference between an amendment to a limitations period itself and an amendment that makes a different limitations period applicable by changing the available punishment. Further, we presume that Congress was aware that a change in the punishment provision of § 1201 had the effect of changing the applicable statute of limitations. Given this knowledge, we may infer that Congress intended its amendment to § 1201 to change the applicable limitations period. Lastly, the principle that statutes of limitation are to be ‘liberally interpreted in favor of repose,’ buttresses our conclusion that the shorter limitations period made applicable by the 1972 amendment [five years under § 3282] should apply retroactively.” Seale, supra, at Slip Opinion 9-10 [internal citations omitted].
It was a difficult decision for the Fifth Circuit. The court was forced to enter a judgment of acquittal for Seale. He can never be re-tried for those particular offenses. The appeals court said that while it was mindful of the seriousness of the crimes for which Seale had been convicted, “we cannot abdicate our duty to faithfully apply a valid limitations period.” Seale, supra, at Slip Opinion 20. See also: United States v. Meador, 138 F.3d 986, 994 (5th Cir. 1994) [“while the operation {of criminal statutes of limitation} in some cases deprives society of its ability to prosecute criminal offenses, that is the price we pay for repose”].
It was indeed a considerable price. An individual who the government believes committed of two horrific murders walked free having spent approximately 18 months in actual confinement. But the U.S. Attorney’s Office should have known it could not make the kidnapping conviction stick in light of the 1972 amendment to § 1201. This raises the question whether the arrest, prosecution, and conviction of James Ford Seale was nothing more than a publicity gimmick to bolster the FBI’s Cold Case Initiative. This initiative is actually nothing more than a belated effort by the FBI to absolve itself of the blatant incompetence and dereliction of duty it exercised under former FBI Director J. Edgar Hoover during the civil rights era by turning over to state authorities cases like Seale and Edwards for prosecution. Hoover knew state authorities would not faithfully prosecute these kinds of cases. This official policy by Hoover gave the Klansmen and their sympathizers a license to kill innocent civil rights activists with impunity. The Cold Case Initiative will never repair that historical fact.