So Seale remains in jail, and no one knows what to do about the two dozen other cases. If you investigate and prosecute, you could spend all the time and resources, get a conviction, only to see it later overturned. Or you may wait and decide to see what the Court eventually does on the issue, which could take a couple of years, and meanwhile witnesses and defendants die and cases grow even colder.

The urgency of the matter apparently meant nothing to the seven other justices.  They simply didn’t want to hear the case, apparently wary of setting a precedent that would end up overloading their docket.

So administrative, procedural concerns seem once again to have outweighed concerns that justice, however delayed, be done once and for all the victims of these old race murders.

There may be some truth to the adage that justice is too important a matter to be left to the lawyers.

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NO DEATH BED CONFESSION

Trena McElroy was sitting next to her husband, Ken Rex, in his Chevy Silverado when rifle shots shattered the rear window and exploded her husband’s head onto the dashboard. That was July 9, 1981, and Trena claimed that just before the shots were fired she looked over her shoulder and saw a local cowboy pull a rifle from her pickup and take aim at Ken. She swore to the law and three grand juries that the man on the 30.30 was Del Clement, a member of a prominent ranching family.

When I first traveled to Skidmore in 1982, the first name I heard as the shooter was Del Clement. Over the years I spent there researching “In Broad Daylight” I never heard another name seriously mentioned as the rifleman. Del, a short man with a chip on his shoulder and a hot temper, wore a cowboy hat and drank heavily. It wasn’t hard to imagine him jerking the gun from his pickup in a burst of anger and opening up on the large black head on the other side of the rear window of the pickup. He and his brother owned the D & G Tavern, in front of which McElroy was parked when he died and which had recently begun closing whenever he came to town.

A few years after the book came out, I encountered Del one evening in a bar in nearby Maryville. He was drunk and became outright hostile to me. He pointed out all the untrue facts in the book—such as that he was short—and seemed on the verge of throwing a punch, until a friend stepped in.

There has been no prosecution in the death of Ken Rex McElroy. Some of the witnesses to the crime left town, and as time wore on a few of them died. The only hope for solving the crime seemed to be that one of the witnesses, or maybe one of the killers, would confess on his deathbed in order to clear his conscience. Such evidence is allowed into courts of law as an exception to the hearsay rule on the theory that someone on his deathbed would have no reason to lie.

Del Clement died of liver disease this last spring. He always denied any role in the killing. Dying of sclerosis of the liver is a slow process; it allows the person time to reflect on his life, to prepare to meet his maker. Del Clement died without a word about who shot Ken McElroy.

So, that left eighteen judges. I traveled to New Orleans in May of this year to watch the oral arguments, and I could not imagine a more terrifying scene for a lawyer. Standing alone at the podium, as eighteen federal judges in black robes stared/glared at you, interrupting you at will. And ask questions they did; one after another, occasionally interrupting each other.  I was sweating—I had read the briefs, and I still had a hard time following the arguments—but the lawyers managed to keep their cool. The basic questions were whether a court decision throwing out the statute Seale was charged under was to be applied retroactively or not.  If it was, then the statute of limitations had run five years after the crime and the prosecution was barred, which was what the three-person panel had held.

When I walked out of the courthouse, I felt fairly certain from the questions and the comments that the Court would affirm the panel’s decision and that Seale would soon be a free man. Wrong.  A few weeks later, the Court deadlocked 9 to 9 on the statute of limitations issue. Tie goes to the government, apparently, so Seale is still in the slammer.

That is no way to decide a man’s fate, or an issue of this importance. The fate of other civil rights crimes from the sixties could hang in the balance. The 5^th Circuit apparently agreed: A few weeks ago it voted to ask the Supreme Court to decide the issue. I get the image of a bunch of children squabbling over a toy, and finally asking their parents to decide who gets it.