The Supreme Court declined to decide whether the statute of limitations has run on the conviction of James Ford Seale. A little used provision of the law allows a Circuit Court of Appeal to certify a question to the Supreme Court. The Fifth Circuit Court of Appeals certified a question to the Supreme Court on whether or not Seale was tried within the statute of limitations.

Seale was tried for the 1964 kidnapping by members of the Ku Klux Klan of two African American young men. Under Federal law there is no statute of limitations for capital offenses. Other felonies carry a five year statute of limitations. In 1964 kidnapping was a capital offense. While it is a capital crime now if it results in murder for most of the time between 1964 and the present it was not a capital crime. Thus the question that the Fifth Circuit asked the Supreme Court is whether the 1964 statute of limitations applies or the 2007 statute of limitations.

In 2007 Seale was tried and convicted for the Ku Klux Klan murder of Henry Dee and Charles Moore. Seale appealed to the Fifth Circuit. A three judge panel reversed the conviction on statute of limitations grounds. The panel did not decide other questions raised on the appeal since it reversed the conviction and sent the case back to the District Court. But an en banc decision deadlocked 9 to 9, which reinstated the District Court’s conviction. The en banc court instead of returning the case to the three judge panel for a decision on the other issues raised on appeal certified the question of the statute of limitations to the Supreme Court.

Dee and Moore disappeared in the heat of Mississippi’s Freedom Summer in 1964 when civil rights workers descended upon Mississippi to register African American voters. Even though Dee and Moore were not involved in the civil rights movement or in the registration of voters they were seized by a group of Ku Klux Klan, kidnapped and murdered. But the police and the district attorney were unable to prove the case against Seale or the others in the group. The only witness was a confidential informant who was afraid for his life if he testified or if his name became known publicly. The arrest was only possible after a reporter for 20/20 found the informant, Ernest Gilbert and encouraged to go public with his detailed knowledge of the murder.

Of course after the Fifth Circuit hears the other questions on appeal the case is likely to return to the Supreme Court on direct appeal.

It may be politically incorrect but I have a problem with a prosecution that occurs 43 years after the crime. We are not the same people that we were 43 years ago. Incarceration forty-three years after the crime is hardly going to prevent further crimes. After all few crimes are committed by 72 year olds. No matter how hard we try memories fade and witnesses die in a 43 year period. A trial 43 years later does not have a rehabilitative effect. The only reason to have a trial is to punish the wrong doer and that has little benefit when you are talking about a sick senior citizen.

Yesterday’s posting described some of the evidence that Jaycee Lee Dugard is suffering from the Stockholm Syndrome. After I published the article more news came out supporting the proposition.

Phillip Craig Garrido, along with his wife Nancy, is charged with kidnapping Dugard 18 years ago. It is alleged that they kept Dugard and her two children, who he allegedly fathered, in their back yard in Antioch, California. Garrido owned a specialty printing company. According to some of his clients Dugard was the creative force behind the business. The clients were told that Dugard was Garrido’s daughter. She met with the clients. She spoke to them on the phone and she drafted their products and made changes in the products at their direction.

In none of the conversations with the clients did she tell them that she had been kidnapped or that she was not Garrido’s daughter. At no point did she suggest that she was being kept against her will or that she wanted to escape.

It is clear that Dugard had numerous opportunities to escape and to send messages to the authorities for help. But she did not take them. Presumably she could have asked any of the clients for help or she could have passed them a note asking them to call the police. She was kept in the back yard of Garrido’s house. She could have climber over the fence with her two daughters. After all a news photographer climbed over the fence to get into the yard and take pictures. But until last week there is no record that she tried to escape.

Dugard was eleven years old when she was kidnapped. While she never went to school after she was kidnapped, to work in a printing shop you must be quite literate and to handle the graphics portion of the work you must be quite talented. Someone had to teach her and it was probably Garrido who taught her. This meant that they worked closely together. This reinforces the Stockholm Syndrome. Victims often feel dependent on their oppressors. In addition to food, and housing Dugard was apparently dependent upon Garrido for education and training.

But working in Garrido’s business raises other questions. One of the characteristics of the Stockholm Syndrome is that the victim is isolated. Dugard interacted with clients and worked on projects with the clients. This questions how strictly she was isolated from others. It seems that isolation is more important in the early stages of the kidnapping. Once the victim feels totally dependent on the abductor the need for isolation may not be so great. In fact when she was discover by the UC police she was on the UC campus with Garrido and her children. They were interacting with others on the campus, handing out religious pamphlets.

Another characteristic of the Stockholm Syndrome is that the victim feels “love” towards the abductor. Once these feelings of love develop it may no longer be necessary to keep the person isolated. She apparently felt sufficiently in love with Garrido that she had no desired to report him to the authorities. She may have even enjoyed her life with the Garridos and her work in the print shop.

The good news is that Dugard is literate and she had job skills. This should help her become integrated into the community.

One thing for sure. It should be an interesting trial.

Jaycee Lee Dugard and her two children were rescued 18 years after she was kidnapped in South Lake Tahoe at age 11. During the 18 year period her alleged kidnapper, Phillip Garrido fathered her two children, now aged 11 and 15. She was hidden away in tents and a shed in back of Garrido’s Antioch, California residence.

The question is why didn’t Dugard escape with her two children. She certainly had chances. At one point there was a report that Garrido and his wife, Nancy were keeping a woman and her children in their back yard. A sheriff went to the door. The sheriff spoke to Garrido who told them no one was there and the deputy left. On the day Dugard was rescued Garrido took Dugard and the two children to UC Berkeley to hand out religious tracts. Apparently she had opportunities to escape from the shed at night and or on the limited number of instances where she left the residence with Garrido.

The experts point to a phenomenon known as the Stockholm Syndrome. Initially the kidnapped person feels anger and shock. But people suffering from the Stockholm Syndrome then feel helpless and they are totally dependent on their captor. They also develop feelings of “love” towards their captor.

The Stockholm Syndrome was originally named after four individuals in a Stockholm bank who were kidnapped as part of an August 1973 robbery. The Stockholm witnesses went so far as to develop intimate relations with their captors and to finance their legal defense.

The case of Jaycee Lee Dugard is unique. The fact that she has been found alive, after 18 years and that she was kidnapped as a child and is now an adult are unique. Without similar cases to compare it to her future is unclear. But we do know is that it will be difficult. The initial signs are that she bonded with her kidnappers and that reintegration with her family and society will be difficult. She will need therapy and support.

On Monday we discussed prior bad acts evidence in a narcotics and guns case. Today we have prior bad acts evidence in a Tenth Circuit parental kidnapping case.

Vojko Rizvanovic is the father of two young children. He was in a long term relationship with their mother. In 2006 she took the children and moved into a shelter. The family court found that Rizvanovic committed emotional and domestic abuse against the children and their mother. As a result it gave the mother sole custody.

During an overnight visitation Rizvanovic took the children to Australia with the plan to then take them to Macedonia. He was arrested on a stop over in Vienna.

At trial, Rizvanovic argued, as an affirmative defense, that he took the children abroad to protect them from being abused by their mother who had a history of mental illness. During cross examination on the international parental kidnapping charges the court allowed the prosecutor to question Rizvanovic about the family court finding that he abused his family. The Court also permitted rebuttal evidence from the defendant’s seventeen year old daughter regarding his abusiveness. The court instructed the jury that the evidence was not being admitted for the truth of the matter asserted but merely to assist in judging Rizvanovic’s credibility.

Rizvanovic argued that whether or not he was abusive was not relevant to whether he took the children out of the country to escape their mother’s abuse. Both parents could be abusive and his abuse, if any, was not relevant. But the court found evidence of his abuse relevant on the issue of motive. He claimed he was trying to protect the children. The judge felt and the Circuit court agreed that if he claimed that he was trying to protect the children evidence of abuse which was contrary to his claim to protect the children was admissible.

But certainly when you compare the probativeness of the evidence with the prejudice to Rizvanovic it is significantly more prejudicial than it is probative. Considering that his defense was based upon a claim that the children’s mother abused the children evidence that he abused them is prejudicial while of limited probative value on the issue of his credibility. But as we pointed out Monday appellate courts are reluctant to reverse trial court decisions, based upon the admissibility of evidence.