Never underestimate the eccentricities or bizarre outcomes generated by the American criminal justice system. The fate of James Ford Seale remains undecided because the 5th Circuit Court of Appeals violated one of the cardinal rules of appellate court justice: never sit an even number of justices on the bench. (Nine sit on the U.S. Supreme Court; 7 in Colorado). In the fall of 2008, a three-member panel of the 5th Circuit reversed Seale’s 2007 conviction of conspiracy and kidnapping in the murder of two black youths in Mississippi in 1964. The entire Court decided to review the panel’s decision, which was somewhat unusual in itself. The Court consists of 23 judges, but five of them are on senior status, which, as I understand it, means that they can’t participate in an en banc reviews of a panel’s decisions.
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 5th 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.