Monday, September 15, 2008


In 1964, two Mississippi teenagers, Charles Moore and Henry Dee were kidnapped and murdered by the Ku Klux Klan. James Ford Seale was arrested shortly after the bodies were found, but prosecutors judged there was insufficient evidence to convict him and did not file charges. A conspiracy of silence prevented his prosecution until 2007, when an elderly KKK member told the story in exchange for immunity. Seale was prosecuted 43 years after the crime occurred for the offense of kidnapping. He was convicted and sentenced to two life sentences.

On September, 9, 2008, the Fifth Circuit Court of Appeals overturned the conviction. The Court found that the five year statute of limitations had run long before the prosecution was commenced, and that the case was barred. Commenting on this action, Juan Williams, one of my favorite correspondents for National Public Radio, said that witnesses “stonewalled local officials and even congressional committees by claiming their Fifth Amendment right.” He commented, “It’s just frustrating to see [the case] overturned on a technicality.”[1]

I remember, around the time of the murders of the teens, going with my father to a meeting in Indianapolis, Indiana, in support of Dr. Martin Luther King’s march in Selma, Alabama. I did a fifth grade research project on the civil rights movement. I have been fighting racial discrimination and violence most of my life. I have no sympathy for Mr. Seale, nor do I condone the negligence and inaction of prosecutors in this matter.

But when we start talking about “technicalities,” I say, the Statute of Limitations is not a technicality. Nor is the Fifth Amendment protection against self-incrimination. Here’s what the Fifth Circuit had to say about the purpose of the statute of limitations in the Seale opinion:

[C]riminal limitations periods “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.” United States v. Marion, 404 U.S. 307, 322 (1971); see Toussie v. United States, 397 U.S. 112, 114-15 (1970) (“Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.”)

Or, as the Supreme Court put it in United States v. Kubrick, 444 U.S. 111, 117 (1979)

These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.
It is true that the Fifth Circuit spent a lot of its opinion deciding which statute of limitations applies to Mr. Seale, since the law of limitation has changed several times in the 43 years since Moore and Dee were killed. Maybe that’s what makes Juan Williams think the case turns on a “technicality.” But statutes of limitations are an important part of the framework of laws which protect all of us from an overzealous justice system. In this case, they protect us from having to explain where we were on a particular afternoon 43 years ago, something that an innocent person would likely find quite hard to do.

So, although I would like to see Mr. Seale receive the consequences of what he did 43 years ago, I am not willing to sacrifice the rule of law to that end. Nor was the Fifth Circuit: “While we are mindful of the seriousness of the crimes at issue, we cannot abdicate our duty to faithfully apply a valid limitations period.” Had the Fifth Circuit abdicated that duty, this would have been a particularly egregious example of that other maxim, “Hard cases make bad law.”

* * *


Monday, July 14, 2008


The United States Supreme Court’s latest decision in the case of the Guantanamo Bay detainees (Boumedienee v. Bush, decided June 12, 2008) made me heave one. I don’t think most Americans realize how lucky they are to have a constitution which doesn’t let the government lock people up for a long time just because the government thinks they are dangerous, scary, or disagreeable. I have been alternately furious and terrified by the Bush administration’s position that because there are terrorists in the world, they can decide that anyone is an “enemy combatant” and keep him locked up forever. No trial, no charge, no hearing, no nothing.

I’m reminded of the poem attributed to Nazi resistor Pastor Martin Niemoller:

First they came for the Socialists, and I didn’t speak up,
because I wasn’t a Socialist.
Then they came for the Trade Unionists, and I didn’t speak up,
because I wasn’t a Trade Unionist.
Then they came for the Jews, and I didn’t speak up,
because I wasn't a Jew.
Then they came for me, and there was no one left
to speak up for me.

(I’ve learned from Wikipedia that Pastor Niemoller may not have written this poem, and that there are many variants. I still like it.)

The poem reminds us that what we do to those who are dangerous, or those whom Jesus calls “the least of these,” comes back on us. That’s what the Bush administration needs to be reminded of. Also the dissenters on the United States Supreme Court, who let fear-mongering overcome their duty to the Constitution.

I don’t want to close without commenting on the scariest comment I heard about this decision. That came from Newt Gingrich, who described it as a decision by “five lawyers.” That is exactly the sort of lawyer-bashing promoted by Dick the Butcher, whose statement, in Shakespeare’s King Henry VI, "The first thing we do, let's kill all the lawyers," was intended to keep his own treachery from being discovered.

Saturday, May 24, 2008


The second major change in habeas corpus created by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) was a new limitation on the granting of relief. Under prior law, the state court's application of constitutional principles was reviewed de novo by the federal court which was not required to give any sort of deference to the state court's analysis. AEDPA provides, however, that a federal court may only grant relief for a state court's constitutional error if that error was an unreasonable application of federal constitutional law as decided by the United States Supreme Court.

This provision has had the effect of producing many federal court decisions that say, "We think the state court was wrong about the constitution, but not unreasonably wrong, so the conviction stands." Why state prisoners should not have the benefit of the United States Constitution is beyond me. I understand that many people think people who have been convicted of crimes are a different species from the law-abiding, but that is simply not the case.

If we do not speak out for those who seem not to deserve it, there will be no one to speak out for us.

Sunday, May 18, 2008


In the Anti-Terrorism and Effective Death Penalty Act of 1996, commonly known as "AEDPA", the United States Congress abruptly "overhauled" the remedy of habeas corpus available in federal court to persons with criminal convictions. Habeas corpus has traditionally been the remedy which provided a check on unjust or ineffective state criminal procedures. When habeas corpus relief is granted, the federal court can order a state court to release, retry, or re-sentence the petitioner. Because a habeas corpus petitioner must ordinarily raise his grounds for relief in state court before proceeding in federal court, habeas corpus serves as the remedy of last resort for many persons who are the victims of unjust conviction or sentence.

For many years before 1996, some law-and-order advocates had suggested that habeas corpus relief was too readily available and needed to be limited. These concerns had been overcome by the view that injustice needed a remedy, even if that remedy was sometimes long in coming or inconvenient to administer. In the wake of the Oklahoma City bombing, however, the law-and-order tidal wave swept over these calmer heads, and AEDPA was passed. The AEDPA made two primary changes in the habeas corpus remedy which greatly limit the access of wrongfully convicted persons to justice.

The first of these changes, which will be discussed in this post, was the enactment of a statute of limitations. Prior to AEDPA, there had been no deadline for filing a habeas corpus action. Most successful actions were filed within a relatively short time after state proceedings were complete, but a small number of persons obtained relief years after their convictions and sentences. This was not generally true in death penalty cases; in those cases the pressure of execution dates usually resulted in prompt filings. However, to fix this non-problem, the AEDPA established a one-year statute of limitations. The year begins when the conviction and sentence become final in state court. It is tolled while post-conviction proceedings are pending in state court. Once those proceedings are over, the year starts running again from the point at which tolling began. This sounds rather straightforward, but in practice, it has been difficult to determine both when the conviction and sentence become final and when post-conviction proceedings are pending. Different states have different procedures and when they start and end is not always clear. This has resulted in a number of cases in which either the litigant or his counsel has miscounted the deadline by a few days, and petition is dismissed as a result of the error. The situation is particularly difficult for those petitioners who have counsel who make a mistake about the deadline. The courts have been extremely reluctant to make exceptions to the deadline in those cases, holding the client accountable for the lawyer's mistake. Ineffective assistance of counsel is not considered to be a legal excuse for failing to meet the habeas corpus statute of limitations.

Holding a client accountable for her lawyer's mistake about the statute of limitations makes sense in the context of the ordinary civil case. If my lawyer fails to file suit in time on my claim against the person who ran into my car, I can sue my lawyer for malpractice, and if my suit had merit, I will be entitled to a judgment against my lawyer for the damages I would have recovered in the lawsuit. In that situation, the defendants in the lawsuit get the benefit of the statute of limitations to which they are entitled, and I get the benefit of the damages to which I am entitled. Unfortunately, if my lawyer makes a mistake about my habeas corpus deadline, I can't sue my lawyer to get my conviction reversed. That can only happen in the habeas corpus action. So, as a result of my lawyer's negligence over which I have no control, I may find myself denied access to the courts. Since many people in this situation have court-appointed lawyers, they cannot even be faulted for picking the wrong lawyer. This result, while protecting the interest in finality that underlies the statute of limitations, is highly unjust to the petitioner.

What's the solution? One possibility would be to repeal the statute of limitations, but allow a defense of laches. If the state could show that the petitioner was or should have been aware of his ground for relief well before the petition was filed, and that the state's interests were harmed by the delay in bringing the action, dismissal would be appropriate. This is really the most just resolution of the problem, but it seems unlikely to win much support.

A less drastic solution would be to expand the doctrine of equitable tolling, now available only in very limited situations. If the delay is relatively short, little would be lost from the certainty of the statute of limitations to ease the requirements for equitable tolling to cover the situation where a lawyer makes a mistake. Most lawyers would prefer not to be in this situation, so it is unlikely that wholesale disregard of the statute would occur. Obviously, if the delay were several months, the burden would fall on the client to show that she diligently kept up with what her lawyer was supposed to be doing. If it were shown that the lawyer was recklessly negligent, for example that she failed to inform the client that there WAS a deadline, or did not know herself that such a deadline exists, disciplinary proceedings against the lawyer would serve to inform the bar that if they choose to accept such representation, they must inform themselves about the statutory requirements. The threat of such proceedings should be a sufficient deterrent to lawyers. Similarly, if a pro se litigant claimed total ignorance of the statute, barring his suit would be justified on the general principle that one is presumed to know the law. But an honest mistake about the limitation period which resulted in a filing which was not seriously late should not bar a pro se petition, either.

Thursday, May 8, 2008


The American criminal justice system--and maybe Americans in general--are addicted to imprisonment. Recent studies show that 1% of Americans are in prison, a very high percentage. Few other countries routinely imprison people for stealing and drug offenses as we do. This addiction, like all addictions, is expensive. And, like other addictions, it creates its own economy. Economically depressed areas want prisons for the jobs they generate, but that requires prisoners to fill the beds. Of course, people who spend significant amounts of time in prison are likely to return, particularly since our society is highly intolerant of people who have been convicted of crime, done their time, and been released. We seem to want to show those who break the law that we are "mad as hell and just won't take it any more!" But returning anger for wrongdoing only generates anger in the wrongdoers. There has to be another way.

Tuesday, March 25, 2008


Some twenty years ago, my client Frederick Revels, in a drug induced psychotic rage, killed three members of his family. Initially, his mental condition made him incompetent to proceed. After he recovered, he was found not guilty by reason of insanity and placed in a mental institution. He has been there ever since! However, for at least 15 years, he has not received any psychiatric treatment. His doctors agree that his mental illness is in remission, and he is not dangerous. However, under Missouri law, Mr. Revels must prove not only that he is not dangerous, but that he will never again be dangerous. In a decision earlier this month, the Eighth Circuit Court of Appeals held this requirement unconstitutional. A motion for rehearing will likely be filed, but assuming this decision holds, Mr. Revels will likely be released after a new hearing.