Fives Grant En Banc Review in Seale

United States v. Seale, No. 07-60732 (5th Cir. Sept. 9, 2008) (Davis, Smith, DeMoss), reh'g en banc granted (Nov. 14, 2008)

We (meaning I) neglected to cover this decision when it came out nearly three months ago, but you likely saw some of the news coverage of the case. Seale was indicted and convicted in 2007 for kidnapping and conspiracy to commit kidnapping, arising from his alleged involvement in the kidnapping and murder of two black men in 1964. The court of appeals reversed Seale's convictions, holding that the prosecution was time-barred because a 1972 amendment to the kidnapping statute retroactively reduced the statute of limitations from life to five years.

At the Government's urging, the court will now rehear the case en banc. But not everyone was on board with that decision, as shown by this very interesting dissent from Judge Smith:

I respectfully dissent from the decision to rehear this case en banc and vacate the panel opinion. Judge DeMoss, writing for the unanimous panel, has crafted a careful and convincing opinion. In its petition for rehearing en banc, the government has not shown that the panel erred or that this case meets the high standards for en banc consideration.

The fault for this court’s predicament lies squarely with the Department of Justice. Its delay of more than forty years in prosecuting defendant Seale for this despicable crime, of which he has finally been found guilty by a jury of his peers, is inexcusable. The government now asks this court to bail it out by declaring a result that cannot be reached except by a strained explication of the applicable statutes and caselaw.

The result of the government’s inaction under myriad Attorneys General is, to say the least, unfortunate. Because, as the panel held, Seale’s conviction is barred by the statute of limitations, Seale must be set free and cannot be successfully prosecuted for this unspeakable crime.

It is a necessary consequence of having a government of laws that wrongdoers at times must be released without further punishment. The decision to rehear this matter en banc reflects a misunderstanding of the proper function of the en banc process; the panel opinion should have been permitted to stand.

The rest of Judge Smith's dissent decries the court's decision to schedule oral argument for the May en banc session, rather than the January session, given the court's policy of expediting criminal appeals.