The attorney for James Ford Seale, the reputed Ku Klux Klan member serving three life sentences for his role in the 1964 abduction and deaths of two black Mississippi teenagers, argued before the 5th U.S. Circuit Court of Appeals on Monday that the statute of limitations had expired, negating Seale’s conviction.

Federal public defender Kathy Nester said a 1972 congressional act that abolished the death penalty for kidnapping, also imposed a five-year statute of limitations, and that was long gone by the time Seale was convicted June 14, 2007.

“Clearly the statute of limitations occurred decades, decades before,” Nester told a three-judge panel of the appeals court. “At some point fair-play comes in.”

Tovah Calderon, of the U.S. Department of Justice’s Civil Rights Division, argued that the action by Congress, both in 1972 and in 1994 when it reinstated the death penalty for kidnapping, did not change the statute of limitations retrospectively.

“A crime that is capital when it is committed, remains capital, even if the death penalty can not be imposed,” Calderon said.

When asked by a judge how Congress would be able to change the statute of limitations, she responded “Expressly.”

Seale was convicted of kidnapping and conspiracy in the abductions of Charles Eddie Moore and Henry Hezekiah Dee, both 19, who disappeared from Franklin County in Mississippi on May 2, 1964. Their decomposed bodies, mostly just skeletal remains, were pulled more from the muddy waters of the Mississippi River than two months later.

The prosecution’s star witness was Charles Marcus Edwards, a confessed Klansman who received immunity from prosecution for his admitted role in the abductions for his testimony. Edwards testified that he and Seale were the only ones — who are still alive — who participated in the crime. Edwards said he and Seale were members of the same KKK chapter.

Edwards testified that he was absent later, but Seale told him about how Seale and other Klansmen bound Dee and Moore with tape, put them into a car trunk and drove them through part of eastern Louisiana to get to the area where the young men were dumped, still alive, into the river.

Thomas Moore, whose refusal to abandon his search for justice for his brother’s death even when Seale’s family said Seale was dead, attended Monday’s hearing.

“Mr. Seale has the right to appeal,” said Moore, 64, from Colorado Springs, Colo. and retired from the military. “But I feel good about what the federal prosecutors did last year.”

The appeal is based on a number of things, Nester said. The only other thing touched on during Monday’s arguments was testimony by a prosecution medical expert who said he believed “fresh water drowning,” was the cause of death for the teens. That ruling was based on the lack of other discernible injury to the skeletal remains, Calderon said. The determination also is crucial in making it a federal case. If the teens were dead before they were transported across state lines it would not fall under federal law.

Seale is serving his sentences at the Federal Correctional Institution in Terre Haute, Ind., according to the federal Bureau of Prisons. Seale was sent there so his health needs could be met, officials have said. He has cancer, bone spurs and other health problems.