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The future of segregation

Michael Skakel Case

I hadn't realized how fascinating the Michael Skakel case was.  In 2000, Skakel was charged and convicted of killing Martha Moxley in 1975.  Skakel was only 15 when he allegedly committed the murder. (CNN has a story on Skakel's appeal here).

Had he been charged in 1975, he would have been tried in juvenile court.  But since Skakel wasn't charged until he was 39 years old, he was tried in superior court.  His lawyers argued, unsuccessfully, that Skakel - at age 40 - should have been tried in juvenile court.  Their argument is based exclusively on statutory grounds.

The interesting issue to me is whether the passage of time raises any ex post facto issues.  If the punishment (or a rule of evidence) increases after the defendant commits a crime, it is a violation of the Ex Post Facto Clause.  Clearly Skakel faced a stiffer penalty being charged as an adult than as a minor.  And the only reason he was tried as an adult was because time passed.

Article I, § 9 of the United States Constitution admonishes Congress that "No [ ] ex post facto Law shall be passed."  In the seminal case, Calder v. Bull, the Supreme Court defined an ex post facto law as one that:

1st.  [ ] makes an action done before the passing of the law and which was innocent when done, criminal; and punishes such action.  2d. Every law that aggravates a crime, or makes it greater than it was, when committed.  3d. Every law that changes the punishment and inflicts greater punishment, than the law annexed to the crime, when committed.  4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

In Miller v. Florida, the Court said that a sentencing scheme that imposed greater punishment that the guidelines in effect at the time of his crime, violated the ex post facto clause.  And in Stogner v. California the Court held that re-opening an expired statute of limitations violated the Ex Post Facto Clause. 

Here, Skakel faces a stiffer penalty due to the passage of time.  However, no legislative act caused him to face greater punishment.


UPDATE: CourtTV has the defense brief here (it's a large file, so it may take a while to download).  The Ex Post Facto Clause issue isn't even raised.  Have I written about a non-issue?