CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, December 21, 2011

Ex Post Facto and Due Process brief seeking signatures from criminal law scholars

From Justin Marceau (Denver Law):

We are writing a brief in support of certiorari in a capital case out of the 10th Circuit.  The brief will be filed on behalf of interested criminal law and constitutional law scholars and we are looking for persons who might be willing to join the brief in this capacity.  The short version of the facts are:

(1) The defendant, Michael Selsor, was convicted of capital murder in Oklahoma in 1976.

(2) The capital sentencing scheme under which Selsor was convicted was soon after declared unconstitutional.  The state supreme court announced that all persons serving death sentences under that system must be sentenced to life, notwithstanding the enactment of a new death penalty statute - persons sentenced under the old statute were thus ineligible for death because they could not be re-sentenced under the amended statute.

(3) Relying on this precedent establishing that a life sentence was his maximum sentence, the defendant sought and obtained federal habeas relief.

(4) On remand, the state not only re-prosecuted Selsor but sought the death penalty - despite the Oklahoma precedent, unchallenged for 20 years, that death was not available in a case like Selsor’s.  The Oklahoma courts reversed the prior decision invalidating the prior death penalty law and applied that ruling retroactively to Selsor’s case.  He was, in short, sentenced to death after obtaining a retrial that he sought on reasonable reliance on the law holding that he was ineligible for death.

The amicus brief argues that due process cannot countenance such a ruling.   Specifically, the focus of the brief is that the 10th Circuit's dismissal of Selsor's appeal resulted from an improper conflation of the ex post facto and due process protections.   The brief explains that ex post facto protections, while generally more robust, do not apply here, but that reliance interests protected by due process preclude the retroactive application of the death penalty in this case.

If you are interested in reviewing the brief and potentially joining it, please send an email to Justin Marceau,<>.

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Gret post!

Posted by: Jane Devon | Dec 22, 2011 4:43:55 AM

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