First, an update to an earlier post,
“The Statute of Limitations is Not a Technicality.” At the time that post was
written, a panel of the United States Court of Appeals for the Fifth Circuit
had overturned the conviction of James Ford Seale for violating the civil
rights of Charles Moore and Henry Dee, who were kidnapped and murdered by the
Ku Klux Klan in Mississippi in 1964. The reversal was based on a ruling that
the statute of limitations for the offense charged had expired before the
charge was filed. However, the en banc Fifth Circuit (a group made up of all of
the judges of the Fifth Circuit in active service), voted to grant rehearing.
After argument, the vote of the en banc judges on whether the conviction should
be affirmed or reversed was evenly divided. Under court rules, this had the
effect of reinstating the judgment of conviction, although the decision to do
so is not precedent for further decisions on the issue.
One way to look at this development would be to say, “Well, I
guess the statute of limitations is a technicality after all!” Another way to
respond would be to say, “Hard cases make bad law.” A quick Google search of
this old saying shows that it may have originated, at least in print, in W. S.
Holdsworth’s History of English Law, published in 1926. (Other references
suggest it was first said by Oliver Wendell Holmes.) What this saying means is
that when a case presents facts which seem to call for one resolution, while
the law is on the other side, the facts generally win. I am reminded of a drug
case I lost several years ago despite what appeared to be a meritorious search
and seizure violation. I asked the lawyer for my client’s co-defendant why he
thought this had happened. “Oh,” he said, “It’s the too much dope rule.” That
is, the judges decided there was too much dope in the case for the defendants
to win. In Mr. Seale’s case, apparently half of the judges on the Fifth Circuit
Court of Appeals were unwilling to allow him to go free, despite the fact that
the law would seem to require that result.
There is a certain satisfaction in seeing a case come out the way
the facts seem to dictate. I’m sure NPR Commentator Juan Williams, whose
criticism of the earlier Seale opinion spurred me to write the earlier post,
was gratified when Mr. Seale’s conviction was ultimately upheld. But there is a
danger in allowing this satisfaction to go too far. Recently, I was reading a
Texas case in which a conviction for murder was reversed because of grand jury
error. The prosecutor in that case admitted that, in violation of long-standing
and clearly stated Texas statutes, he routinely allowed police officers to
enter the grand jury room and cross-examine witnesses. The court reversed the
conviction, finding that absent this violation, it was unlikely that the
defendant would have been indicted. The court then took the opportunity to
explain the decision of public officers to follow the letter of the law was aptly described as follows:
"No man in this country is so high that he is above the law. No
officer of the law may set that law at defiance with impunity. All the officers
of the government, from the highest to the lowest, are creatures of the law,
and are bound to obey it. It is the only supreme power in our system of
government, and every man who by accepting office participates in its functions
is only the more strongly bound to submit to that supremacy, and to observe the
limitations which it imposes upon the exercise of the authority which it gives."
United States v. Lee, 106 U.S. 196,
220. . . (1882). . . .
We are mindful that a finding of harmful error here may mean this case
will be tried again. Regretfully, witnesses will be inconvenienced and the
finality of justice sought by those who were touched by this child’s death will
be disturbed. Any benefit that society will derive from rendering the just
result in this appeal cannot, and will not, assuage the suffering that a
second trial may cause those close to the victim. Nevertheless, we are duty
bound to uphold the law and follow the old adage that “two wrongs do not
make a right.” If the State is able to avoid a just result in this case, its
prosecutors will be able to violate these statutes with impunity and visit an
injustice upon every citizen who comes under scrutiny by a Potter County Grand
Jury. The statutory protections, adopted by the Legislature to level the field
for an accused, will be substantially eroded and we will be at risk of losing
the benefit of statutory procedures intended to protect our constitutional
right to indictment if these violations are simply swept aside.
Regarding the cost of a second trial, if one follows, unfortunately this
cost would be borne by taxpayers who had no hand in the State’s error. This is
particularly unfortunate because the State’s error, as well as this possible
cost, could have been avoided if the State had simply obeyed the law. Something
the State requires of its citizens on a daily basis.
We cannot countenance the State's purposeful violation of the law. The
duty Mason v. State, 290 S.W.3d 498, 511
(Tex. App. – Amarillo 2009, pet. granted). It should be noted that this Court’s
opinion will not be the last word on this case. The notation “pet. granted” in
the citation means that the Texas Court of Criminal Appeals, that state’s
highest court for criminal cases, has agreed to review the Amarillo court’s
opinion. So, we may find, once again, that hard cases make bad law. In the
meantime, though, we can thank the Texas Court of Appeals, Amarillo district,
for reminding all of us, and all judges, that “[W]e are duty bound to uphold
the law and follow the old adage that ‘two wrongs do not make a right.’”
