Denver Bar Association
January 2010
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Book Review: “The Past is Never Dead” By Harry N. MacLean

by Marshall Snider

Reviewed by Marshall Snider

Denver attorney Harry MacLean has scored again in his third nonfiction crime book, “The Past is Never Dead.”

MacLean always seems to find a fresh angle to the nonfiction crime genre. His first book, “In Broad Daylight,” focused on the failure of law enforcement and the legal system in the murder of a small town bully in the Midwest.

MacLean next tackled the issues raised by the repressed memory of witnesses (memories that do not surface until years after an event). Delving into the intersection between psychology and the law, in “Once Upon a Time” the author explored the reliability of the 20-year repressed memory of a woman that resulted in the conviction of her father for a murder in the San Francisco Bay area.

MacLean’s current offering, “The Past is Never Dead,” is also about a murder, this time a racially motivated killing in Mississippi. MacLean broadens the focus of this case to look at the culture surrounding the crime. He reflects on Mississippi’s 40-year effort to find redemption for its past of racial segregation and brutality.

Along with other Mississippi members of the Ku Klux Klan, in 1964, James Ford Seale abducted and murdered Henry Dee and Charles Moore, two black teenagers. Seale, now elderly and ill, was not brought to trial until 2007. In the meantime, officials pulled together a string of successful prosecutions of long-past Mississippi civil rights murders. The cases included the convictions of the killer of NAACP leader Medgar Evers, as well as the murderer of civil rights workers Michael Schwerner, Andrew Goodman and James Cheney (the case on which the movie “Mississippi Burning” was based).  

The elderly Seale was tried in a U.S. District Court, but he was not charged with murder – murder is not a federal crime unless it occurs on federal property. Rather, he was charged under the Lindberg Law with kidnapping Dee and Moore and transporting them across state lines to Louisiana, where they were killed. Once again, the prosecution was successful. Seale was convicted and received three life sentences.

MacLean’s description of the trial strategy and tactics is of particular interest to lawyers. The government’s evidence relied primarily on the testimony of one of Seale’s co-conspirators, Charles Edwards. Edwards had changed his story many times, providing a challenge for the prosecution and a possible out for the defense.

In addition, an absorbing argument that only a lawyer could love is still pending in the courts. The issue revolves around whether a federal statute of limitations should bar this prosecution. Kidnapping was a capital offense under federal law in 1964 and, as a result, at the time of the abduction and murder of Dee and Moore there was no statute of limitations for federal kidnapping offenses.

However, the Supreme Court ruled the death penalty provision in the kidnapping statute unconstitutional in 1968 and Congress excluded kidnapping as a capital offense in 1972. Seale’s lawyers argued that this amendment to the kidnapping statute was retroactive and that a general five year statute of limitations applied. The trial judge rejected this argument, a three judge panel of the Fifth Circuit Court of Appeals disagreed and reversed Seale’s conviction, and on June 5, 2009, the full Fifth Circuit split nine to nine on the statute of limitations question. As a result, the original conviction was reinstated. The statute of limitations question, along with Seale’s fate, is likely to be decided by the U.S. Supreme Court.

But this book is about more than the law and the Seale case. It is about Mississippi’s racial history and its attempts to shed its image as a racist backwater. Even though the Confederate flag is no longer prominent at Ole Miss football games, it is still displayed on a portion of the state flag. Dixie is played on autumn football Saturdays and, until recently, the song was accompanied by shouts of “The South shall rise again” (the University of Mississippi banned this phrase in the fall of 2009).

Monuments have been raised to Civil War heroes and to the victims of racial slayings. There are official statements of forgiveness and continuing denials of responsibility. And when a city with a majority of white voters elects an African American mayor, that story does not get as much media coverage as the controversy about whether the Confederate Stars and Bars should remain on the state flag. MacLean delves deeply into these contradictions and ironies of what he calls Mississippi’s “struggle for redemption.”

In the interest of full disclosure, I must make known that Harry MacLean is a friend of mine. But I’d like this book even if I didn’t like Harry. Whether for the trial or for Mississippi’s efforts to deal with its past and its present, this is a unique story that both lawyers and laymen can enjoy.


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