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Due Process v. Ex Post Facto: Why we’re still arguing a Death Penalty case 34 years later

January 4, 2012

1. History, 2. Law, 7. Post-Trial

Due Process v. Ex Post Facto:  Why we’re still arguing a Death Penalty case 34 years later

This case is so old, I’ve added the “History” tag.  Oh for the days when a horse thief was found guilty on Monday and hung on Tuesday.  So you know where we’re heading before we get lost in the decades, SCOTUS has been petitioned to grant cert.  No reaction yet, but I suspect they will grant if what is alleged in the amicus brief is true – that is, on an apparently important constitutional question, the circuit courts are giving contradictory answers.

Here’s the rear-view mirror … Selsor was sentenced to death for a 1975 offense.  He appealed the constitutionality of the death penalty.  This was in the Furman and Gregg days, remember.  His sentence was changed to life.  Not content, he filed a series of appeals with the ultimate winning argument being ineffective assistance of counsel.  I’ll give him credit for perseverance, but also slam the State of Oklahoma – there were two defendants, Selsor and Dodson, yet the state appointed a single public defender to represent both defendants in a joint trial.  Duh.  Selsor got a new trial in 1996, and then his perseverance backfired:  He was found guilty, again, and give the Death Penalty, again.  Sucked to be him.  Catch all the procedural details here.

The instant appeal has to do with the re-imposition of the death sentence.  As of the latest appeal, it stands.  A group of law professors has filed an amicus brief to coincide with the cert petition.  Catch it here.  Unfortunately, we don’t have the benefit of petitioner’s brief yet, so we’re relying purely on the amicus.

Here’s their Summary of Argument:

This case presents this Court with an opportunity to clarify the distinction between the Ex Post Facto Clause and the due process limitations on the retroactive application of judicial decisions. Splitting from its sister Circuits, the Tenth Circuit has adopted an approach that conflates the Due Process Clause with the Ex Post Facto Clause. Indeed, the Tenth Circuit routinely refers to Selsor’s due process claim as an ex post facto claim. But the Constitution’s text, history, and interpretations by this Court are inconsistent with the Tenth Circuit’s conclusion that the ex post facto protections contained in Article I are coextensive with the Fourteenth Amendment’s requirement of due process. In particular, due process claims like Selsor’s – unlike ex post facto claims – are available to defendants who have sought a legal remedy in reliance on settled legal precedent that is later disturbed. This is because, as explained below, the Ex Post Facto Clause is not primarily a protection of reliance interests, but the due process protections in this context are precisely tailored to those interests.

Restated, the assertion is that the 10th Circuit rested wrongly their decision on the constitutional prohibition against Ex Post Facto laws rather than on the 14th Amendment’s Due Process Clause.  The impact in this instance is Selsor’s reliance on his belief that a successful appeal would result in a new trial for which his maximum penalty would be life in prison rather than the death penalty.

An instructive section of the brief is here (I’ve left the cites in for those of you retentive enough, like me, to read them):

Limitations on the retroactive application of judicial decisions to the detriment of defendants are another example of due process protection. Whereas the Ex Post Facto Clause applies only to legislative enactments, the “principle on which the Clause is based – the notion that persons have a right to fair warning” is embodied in the Due Process Clause and applies to the retroactive application of new judicial decisions. Marks v. United States, 430 U.S. 188, 191-92 (1977) (citing United States v. Harris, 347 U.S. 612, 617 (1954)). Stated more directly, limitations on retroactive judicial decisions do not derive from the Ex Post Facto Clause. Rather, they “are inherent in the notion of due process.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (recognizing Bouie v. City of Columbia, 378 U.S. 347 (1964) as imposing due process scrutiny in this context).

The issue is now becoming clearer.  Ex post facto protections are of a fundamentally different nature than Due Process protections.  Ex post facto applies only to legislative enactments, and, then, only to criminal prosecutions, and, then, only to substantive criminal law, not procedure.  Due Process doesn’t operate in such confined spaces.

Assume that once upon a time driving a vehicle “under the influence” meant only under the influence of alcohol.  A person is cited for DUI while stoned.  Realizing the error, the legislative body rapidly amends the DUI statute from “alcohol” to “controlled substances,” which is defined to include marijuana.  The prosecution tries but cannot go forward because at the time of the criminal act smoking weed then driving was not a criminal offense.  Prosecuting a person in these assumed facts violates the Ex Post Facto Clause.

Now take a similar underlying act – Driving While Stoned – but the dude is wasted on Bath Salts.  And at the time of the incident, the DUI statute referenced “controlled substances.”  The problem is that Bath Salts are not included in the list of controlled substances. The driver clearly knows that he is high.  He is on notice that operating a vehicle in such condition is probably illegal.  In fact, the judicial side of our government finds him both guilty and upholds on appeal that “controlled substances” is not limited to the items on the list enacted by the legislative branch, but also includes other items in kind or quantity “reasonably known to the actor to cause an altered state of consciousness” similar to those items listed.  This apparent expansion of the legislative act originated in the judiciary – therefore, the Ex Post Facto Clause does not apply, yet the Due Process Clause does – did the actor have fair warning of prohibited conduct?

And therein lies the issue in the Selsor case.  The 10th Circuit applied the Ex Post Facto Clause to their determination that the re-imposition of the death penalty following the second trial was legitimate.  The re-imposition of the death penalty, however, was due to judicial action – not legislative action.  Further, Ex Post Facto cares about substantive issues – Due Process picks up the procedural issues – and the claim is that the Selsor matter is rooted in procedure.

All of these distinctions come together in the ultimate issue in this matter – timing.  Ex Post Facto cares about increasing penalties or changing the underlying acts needed to commit a crime.  The former seems to apply here, right?  But Ex Post Facto, logically enough, looks to when the crime was committed.  Due Process, in contrast, looks to the “defendant’s reasonable reliance and settled expectations.”  These Due Process issues are not confined to the moment of the crime – that is what gives Due Process its procedural focus.

Returning to the amicus:

The concerns animating the due process protection in the retroactivity context are thus no different than the core concerns that underlie the protection in all proceedings, civil as well as criminal:  “fundamental fairness (through notice and fair warning).” Id. at 460. The relevant point in time for determining whether notice and fair warning have been given is the time at which the actor relied on the current law.

And there it is – at the time at which the actor relied on the current law.  When did that happen?

In the present case, petitioner decided to proceed with a federal habeas petition in reliance on well-settled law in Oklahoma that the death penalty would not be available on retrial. Riggs v. Branch, 554 P.2d 823 (1976).

This shifting of time away from when the crime was committed to when the Habeas petition was filed, and also to a judicial rather than legislative basis is why Due Process will give a different answer than Ex Post Facto.  And why, according to amicus, applying Ex Post Facto is simply wrong.

Whether SCOTUS agrees with amicus will be learned later.  And, thus, over three decades later we are still litigating the same case.

Just to put Mr. Selsor in context, here’s a summary of his criminal event:

At approximately 11:00 p.m. on September 15, 1975, Selsor and Richard Eugene Dodson robbed the U-TOTE-M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, “You’ve got to be kidding me.” Dodson then fired a shot striking Morris in the shoulder.

Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled.

On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses.

Remember, brothers and sisters, only half of our representation is of the physical client.  The other half is of the Constitution.  No word on any SCOTUS action to accept or deny, to distribute for conference review, etc.  Here’s the SCOTUS docket page if you want to track it.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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