It's a rarely used, dusty corner of the Supreme Court's jurisdiction. And on Monday the Court decided to leave it undisturbed, rejecting a request by the U.S. Court of Appeals for the 5th Circuit to resolve a question that could affect prosecution of long-ago civil rights cases in the south.
Under federal law dating back to 1802, one way to get a case before the Supreme Court is for a federal appeals court to certify the question it raises -- in other words, asking the justices to decide the question and instruct it on what to do. It has never been a frequently-traveled path to the Supreme Court, but it has been allowed from time to time -- though not since 1981. In a 1957 case, the Court suggested the appeals courts should resolve knotty questions themselves without certifying a question, except in "rare instances."
In July, the 5th Circuit invoked the certificate method to answer a question on which it had split 9-9: what statute of limitations applies in the federal prosecution of James Ford Seale, a Ku Klux Klan member accused in the kidnap and murder of two black teenagers in Mississippi in 1964. Seale was indicted in 2007. There is no statute of limitations for capital crimes. A five-year limit applies in non-capital crimes, though in 1964 kidnaping was punishable by death. The district court said the prosecution could proceed, but an appeals panel reversed, ruling it was time-barred. It then went to the full circuit sitting en banc, where the 9-9 tie had the effect of reinstating the district court's decision against Seale.
According to a Justice Department tally, the issue could affect 22 possible prosecutions of racially-motivated crimes from the 1950s and 1960s. A majority of the 5th Circuit certified the question to the Supreme Court, calling it "an issue of first impression and of national importance." The 5th Circuit said it was not ignoring its responsibility to decide cases, but that the judges were "simply unable to reach a decision."
The Supreme Court on Monday dismissed the 5th Circuit's plea, over the dissent of Justice John Paul Stevens, joined by Justice Antonin Scalia. The issue is "narrow, debatable, and important," Stevens said, and should have been taken. "I see no benefit and significant cost to postponing the question;s resolution." Stevens also lamented the virtual disappearance of the certification process. "The certification process serves a valuable, if limited, function. We ought to avail ourselves of it in an appropriate case."
Kathy Nester, Seale's federal public defender, said Monday, "Obviously we're disappointed that the Supreme Court declined to hear it now rather than later." The case now returns to the 5th Circuit, where a range of other issues in Seale's case are on appeal. Then, Nester said, the case -- including the limitation issue -- will likely return to the high court. Meanwhile Nester says her client is "in his 70s and in poor health."
Mayer Brown partner Stephen Shapiro says the high court may have rejected the 5th Circuit's plea now because it is at an interlocutory stage and "a dozen other issues" are still pending. Shapiro said the Court is still in its phase of keeping its docket lean, and it may be concerned that "if you grant one now, next year there will be 20."
Steve Vladeck, professor at American University Washington College of Law, said the Court's action Monday is "hardly surprising, but disappointing." With the 5th Circuit split, the issue will go unresolved for months if not years. "If the certification procedure is still on the books, when else would you use it if not in a case like this?"
The Court's decision is really a road block to resolving the two dozen other similar cases. Prosecutors may now hesitate to go forward, thinking they should wait until the Court ultimately rules on the statute of limitation issue. Or prosecutors may go forward and obtain convictions, only to have them overturned, resulting in a waste of time and resources. Witnesses in these cases, as well as the Klansmen themselves, are dying off. Limited cold case resources should be used to the best possible advantage.
Harry MacLean, author, "The Past Is Never Dead, The Trial of James Ford Seale and Mississippi's Struggle for Redemption."
Posted by: Harry MacLean | November 04, 2009 at 12:14 PM