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Mississippi justice at last: the trials and convictions of Beckwith, Bowers and Killen.

SINCE THE RE-PROSECUTION of Byron De La Beckwith for the 1963 assassination of NAACP field secretary, Medgar Evers, which reopened in 1989 and resulted in a conviction in 1994, numerous states and the federal government have reopened long-dormant civil rights era murder cases. While nine cases have been reopened in Mississippi, including the Evers case, this article concerns only the re-prosecution of three murderers: Bryon De La Beckwith, Sam Bowers and Edgar Ray Killen. These are the three cases in which killers of civil rights activists have been successfully re-prosecuted by the prosecutors of the state of Mississippi.

THREE CIVIL RIGHTS ERA CASES

To begin to comprehend the magnitude of the crimes discussed in this article, first it is critical to call to mind the environment in which these travesties occurred, that is, the civil rights movement in the Deep South. The active social organizations involved in the civil rights movement of the 1950s and 1960s are perhaps best categorized as falling loosely into one of two groups: civil rights activists and white supremacists. The war between these two diametrically opposed groups of people and their competing agendas, equality and white supremacy, is the landscape in which these murders took place.

In response to the civil rights movement, white supremacists organized and struck back with a mixture of law, politics, and violence. The cycle of racial progress followed by violent backlash can be seen in events that occurred throughout the country, specifically the Deep South. For instance, just weeks after the Supreme Court handed down the decision in Brown v. Board of Education, which purported to end segregation in public schools, the White Citizens' Council, a civic group determined to maintain segregation, was created in Indianola, Mississippi. The organization was routinely described as "a current version of the Klan," a "scrubbed-up cousin of the Klan," "a white collar Klan," "an uptown Klan," a "button-down Klan," and a "country club Klan." The citizens council movement quickly spread throughout the South.

In the 1960s, another segregationist organization, the Ku Klux Klan, boasted up to 10,000 members in Mississippi alone. While the Council of Federated Organizations, a conglomeration of civil rights activist organizations, was planning Freedom Summer in the early months of 1964, the Mississippi White Knights of the Ku Klux Klan came into being under the leadership of Imperial Wizard Sam Bowers. The White Knights was known as the most clandestine and deadliest Klan in U.S. history. On one day in April 1964, the White Knights burned 61 crosses throughout Mississippi. The FBI blamed the White Knights of Mississippi for dozens of beatings, church burnings, shootings, and at least ten murders in the 1960s.

The effort to halt the progress of the civil rights movement was not limited to groups of individual citizens but was also taken on by the state government itself. Four months after Brown, the Mississippi legislature allowed for the abolition of the state's public school system and declared Brown invalid. The legislature also established the Sovereignty Commission to "protect the sovereignty of the State of Mississippi, and her sister states from encroachment thereon by the Federal Government." Ultimately, the commission was a state-sanctioned spy agency with the objective of investigating civil rights workers.

Civil rights activists were aware of the threat of violent retaliation, especially in Mississippi and other areas of the Deep South. Therefore, each incident of racial violence, and more specifically each murder of a civil rights activist, bore an unmistakable message of hatred of the ideals of equality.

Medgar Evers

The first civil rights era murder case in the country to be reopened and re-prosecuted decades after the commission of the crime was the Medgar Evers case. Evers was perhaps Mississippi's most well-known and respected civil rights leader during the civil rights era, and for that reason his assassination was a particularly infamous attack on the movement. In 1954 Evers was appointed as the NAACP's first field secretary in Mississippi, and his duties included enrolling new members in the NAACP and investigating and publicizing racist acts of violence against African-Americans.

Just after midnight on June 12, 1963, Evers was shot in the back as he stepped out of his car at his home in Jackson, Mississippi. The bullet came from a 1917 Enfield .30-06 deer rifle shot from the bushes across the street. The bullet ripped through Evers's chest and into his home with his wife and three children. Evers died within the hour on an operating room table.

The Jackson Police Department immediately responded with a thorough investigation: interviewing neighbors, receiving call-in tips, and locating the murder weapon not far from where it had been fired. The next day a witness identified the murder weapon, which had been described in newspapers, as one he had traded three years earlier to Byron De La Beckwith, a man who the witness recalled was "very radical on this racial problem." The FBI arrested Beckwith on June 23 and charged him under the 1957 Civil Rights Act for "conspiring to injure, oppress, and intimidate Medgar Evers in the free exercise of his Constitutional rights." The Justice Department then dropped the charges and left the state to prosecute Beckwith for murder. Hinds County District Attorney Bill Waller obtained a grand jury indictment for murder and sought the death penalty.

At the first Beckwith trial, jurors deliberated for 11 hours and voted 20 times before giving up and having the judge declare a mistrial. Just months later Beckwith was retried with nearly the same evidence as was presented in the first trial by both sides; however, a new witness surfaced for Beckwith which enabled the defense to argue that Beckwith was the victim of mistaken identity. After a two-day deliberation, the jury was deadlocked again, a second mistrial was ordered, and Waller decided not to retry Beckwith unless new evidence surfaced. On May 10, 1969, after reviewing the file, the newly elected Hinds County district attorney, Jack Travis, requested that an order of nolle prosequi be entered in the case.

The fight for justice in this case was all but forgotten until October 1989, when the Jackson newspaper, The Clarion-Ledger, reported that leaked Sovereignty Commission documents showed that potential jurors in Beckwith's second trial were investigated by the commission and the results given to Beckwith's defense team. By the end of the month, Hinds County District Attorney Ed Peters announced that a grand jury would be called to investigate possible jury tampering. While the grand jury did not find that there was illegal jury tampering, it did encourage the state to continue to investigate Beckwith. Assistant District Attorney Bobby DeLaughter devoted himself to reopening the case and amassed an impressive amount of evidence. Beckwith was arrested after a new Hinds County grand jury indicted him for murder in December 1990.

After a series of defense continuances and interlocutory appeals, Beckwith was tried for a third and final time in 1994. While much of the evidence introduced by both sides was the same as that presented in the 1964 trials, there were some differences. First, unlike the all-white juries in Beckwith's 1964 trials, the 1994 jury consisted of eight African-Americans and four whites. Second, some of the testimony was read from the previous trial transcripts because the witnesses had since passed away. Third, Beckwith did not take the stand in his own defense.

The jury in Beckwith's third and final trial reached a verdict on February 5, 1994. At the age of 73 and over 30 years after the murder of Medgar Evers, Byron De La Beckwith was found guilty. He was given a life sentence, and on January, 22 2001, he died in prison at the age of 80.

Vernon Dahmer

In the second civil rights era murder case re-prosecuted by the state of Mississippi, Sam Bowers was convicted for the murder of Vernon Dahmer. Dahmer was an African-American cotton farmer, successful grocery store owner, sawmill operator, and president of the Hattiesburg NAACE In the 1950s, he began paying poll taxes for other blacks who could not afford them but were brave enough to register to vote. Blacks were able to pay their poll taxes at his store, which was located adjacent to his home.

In September 1965, the White Knights of the Ku Klux Klan of Mississippi met near Laurel, Mississippi, to discuss what was to be done with Vernon Dahmer. In this meeting, Imperial Wizard Sam Bowers authorized the burning of Dahmer's home and his "elimination," or murder. After Bowers continued to insist that Dahmer be "taken care of," two carloads of Klansmen laid siege to Dahmer's home with firebombs at approximately two o'clock in the morning on January 10, 1966. Dahmer held off the Klansmen with his shotgun long enough for his family to escape, but died later that day due to severe burns.

The FBI's investigation into the firebombing of Dahmer's home and his murder occurred almost immediately. According to David Chalmers: (1)
   FBI agents hurried over from Jackson, set up headquarters in
   Hattiesburg's Holiday Inn, and began their investigation. There was
   much to go on at the crime scene. There were plastic gasoline
   containers, ejected shells, a dropped pistol, and, a short distance
   away, one of the Klan cars, a blue Ford, which had been mistakenly
   shot up by Klansmen from the other car. Local opinion was outraged
   by the killing, and the county sheriff and state police helped with
   the investigation. A wealthy farmer and oil-well owner who had been
   one of Bowers's first recruits and financial contributors agreed to
   help persuade other participants to confess.


Fourteen suspects were arrested and charged with murder and arson. Three were sentenced to life, but none of them served more than ten years. Another suspect was sentenced to ten years for arson, but was out after only two years. A fifth suspect pleaded guilty to murder and received a life sentence as well. However, the mastermind behind the murder, Sam Bowers, who has been described as "the most dangerous man ever to don a white hood," was never convicted. In the 1960s, prosecutors tried Bowers three times in state court and once in federal court. All four trials resulted in hung juries.

After Beckwith was convicted of the Evers murder, Dahmer's widow and children became determined to find justice for their husband and father. While the case was initially reopened in 1991, it did not actually proceed until 1996 when newly elected District Attorney Lindsay Carter promised to pursue the case if at all possible. With help form Mississippi Attorney General Mike Moore, Carter discovered new evidence including Sovereignty Commission records which indicated jury tampering in the earlier trials. In 1997, Bob Stringer, one of Bowers's former errand boys, came forward and informed authorities that only days before the murder, he heard Bowers talk to Klansmen about "doing something about that Dahmer nigger down south." With this news Carter ordered Bowers arrested in May 1998. Also, two other individuals were arrested at this time in connection with the murder and arson. The petit jury for Bowers's fifth trial consisted of six whites, five blacks, and one Asian.

Dahmer's widow and the two children who were in the house that night were the first to testify in the fifth trial. The star witness for the prosecution was 54-year-old Billy Roy Pitts, who had confessed to being the Klan lookout during the attack. Pitts was one of the main witnesses against the defendants in the 1960s, including Bowers, and was serving a sentence for the murder, arson, and violation of federal civil rights. Pitts and another former Klansman testified that Bowers was the only Klansman in Mississippi who could authorize a fire-bombing or a killing, and he ordered both for Dahmer.

When the jury delivered the verdict, Bowers was found guilty of conspiracy to commit murder and given a mandatory life sentence. Sam Bowers died in prison at the age of 82 on November 6, 2006.

James Chancy, Michael Schwerner and Andrew Goodman

In the most recent civil rights case to be successfully prosecuted by the state of Mississippi, Klansman Edgar Ray Killen was convicted of the manslaughter of three civil rights workers. James Chancy, Michael Schwerner and Andrew Goodman were young Congress of Racial Equality workers participating in the Mississippi Summer Project. The project's goal was to usher in approximately 1,000 young volunteers, especially northern college students, all across the state during the summer of 1964 to register blacks to vote and work on other civil rights projects. Chaney was a black, 21-year-old from Meridian, Mississippi; Schwerner was a white, 24-year-old New Yorker; and Goodman was a white, 20-year-old, also from New York.

The Klan's first attempt to kill Schwerner, the group's leader, occurred on June 16, 1964. Over 30 Klansmen surrounded the black Mount Zion Methodist Church in Neshoba County expecting Schwerner to be attending a meeting inside. When the Klan discovered that Schwerner was not inside, they beat ten of the church's leaders and burned the church to the ground.

On Fathers' Day, Sunday, June 21, Chaney, Schwerner, and Goodman visited the site of the arson and began to investigate. As they were leaving that afternoon they were stopped for speeding by Neshoba County deputy sheriff and Klansman, Cecil Price, who placed them under arrest. Price informed Edgar Ray Killen, the Neshoba County Klan kleagle (recruiter), of the arrest. According to Douglas O. Linder: (2)
   Since receiving word from Price that Schwerner had been captured,
   Edgar Ray Killen, the Klan kleagle and an ordained Baptist
   minister, had been busy recruiting members of the Neshoba and
   Lauderdale County klaverns for some "buttripping," as he put it
   .... Killen told the dozen or more recruits to buy rubber gloves
   and to be in Philadelphia by 8:15 P.M. After offering the Klan men
   a drive-by tour of the Neshoba County jail and going over the
   details of the planned release, Killen headed off to see a departed
   uncle at the local funeral home and to thereby establish his alibi.


The trio was released from jail around 10:00 P.M. Price and two other carloads of Klansmen followed the trio, pulled them over, transferred them to Price's patrol car, and drove them to a secluded gravel road. Schwerner and Goodman were pulled out of the car and shot at point-blank range through the chest by 26-year-old Wayne Roberts. Chaney possibly tried to escape, was most likely tortured, and was shot at least three times. The bodies were then loaded into the back of their own car and driven to a farm, where Klansmen buried them with a bulldozer 15 feet deep in an earthen dam. Their car was taken to a swampy area and burned.

The next day the Justice Department's Civil Rights Division deputy chief, John Doar, immediately involved the FBI in the search for the missing civil rights workers in an investigation dubbed "MIBURN," short for "Mississippi Burning." The station wagon in which the three were riding was found and quickly recovered, and busloads of sailors arrived to search the swamps for bodies to no avail. FBI agents interviewed nearly 1,000 Mississippians, approximately half of which were known or suspected members of the Klan. On August 4, after receiving information from an unknown Neshoba county citizen, the FBI unearthed the three workers.

A Neshoba County grand jury was convened quickly; however, the FBI refused to allow its agents to testify before the grand jury or hand over any evidence it had collected due to distrust of the state government. As a result of the lack of evidence, the grand jury did not indict anyone for the murders, and no Neshoba County grand jury reinvestigated or indicted anyone in connection with the murders until January 2005, nearly 41 years later.

Although the FBI refused to share information with the state, it continued its investigation, and on December 4, 1964, 19 alleged Klansmen were arrested as conspirators in the murders. The men were charged with conspiring "under the color of state law" to violate the trio's federal civil rights, a crime under the Civil Rights Act of 1870. After numerous delays, the federal trial began on Monday, October 9, 1967, in Meridian, Mississippi.

After one defendant pleaded guilty and testified against the others, an all-white jury convicted seven of the Klansmen and acquitted eight. The convictions marked the first time that a jury convicted Klansmen and white officials for crimes against civil rights workers or blacks in Mississippi. However, the jury was deadlocked on three defendants, including Edgar Ray Killen. In Killen's case, the jury voted guilty 11 to one, with the lone dissenter refusing to believe that a preacher could have committed such a crime.

Attorney General Moore and Neshoba County District Attorney Mark Duncan reopened the case after an article in The Clarion-Ledger was published on December 27, 1998, reporting that Sam Bowers, who was convicted for the conspiracy in the federal trial, stated in a sealed interview that he "was quite delighted to be convicted and have the main instigator of the entire affair walk out of the courtroom a free man." Bowers later admitted that "the main instigator" was Killen, a fact which was confirmed by two FBI confessions taken in 1967.

During the investigation, the FBI agreed to turn over 40,000 pages of its files on the case to the Attorney General's Office. Also, in early 2000, due to an apparent change of conscience, Cecil Price gave a full statement of the events that occurred on Fathers' Day 1964, including Killen's involvement. The Attorney General's Office also found another potential trial witness in Bob Stringer, the man who testified against Sam Bowers in the 1998 Dahmer case. Stringer stated that he "heard Bowers give Killen the orders to kill Schwerner."

On Thursday, January 6, 2005, Neshoba County grand jurors indicted Edgar Ray Killen. Unlike the all-white petit jury in the 1967 federal trial, Killen's jury in 2005 consisted of three blacks and nine whites. Neshoba County District Attorney Mark Duncan and Attorney General Jim Hood prosecuted the case. The prosecution's case-in-chief included the testimony of the victims' family members. Five other witnesses took the stand, while the remaining six witnesses were "speaking from the grave," through the trial transcripts of their testimony in the 1967 federal trial. While Killen's Klan membership was admitted by the defense, his attorneys argued that he did not plan the killings but was just the "messenger," who took the message of the trio's arrest to Imperial Wizard Bowers and returned Bowers decision to kill them to the Klansmen.

On June 21, 2005, the 41st anniversary of the murders, the jury found Killen guilty of three counts of manslaughter. Judge Marcus Gordon sentenced him to the maximum term of 60 years imprisonment. The conviction was upheld by the Mississippi Supreme Court. Edgar Ray Killen is currently serving this sentence.

WHY PROSECUTE THESE CASES?

The prosecutor's decision to reopen and prosecute cases like the Beckwith, Bowers, and Killen cases was influenced by a number of factors. As in any other criminal case the traditional notion of justice influences the decision to prosecute. Justice requires that those who commit crimes should pay the appropriate penalties. This should be no different in long-dormant "cold cases" when there is no statute of limitations to bar prosecution. Just because those killers responsible for the civil rights era killings are now old does not mean that justice does not still demand their punishment.

In addition to the traditional notion of justice, there are sociological issues and other extrinsic pressures that may affect a prosecutor's decision in re-prosecuting these cases. Such reasons include governmental accountability, correcting the record with private accountability, and racial healing. Furthermore, victims' families and the media not only pressure prosecutors to reexamine cases but they can also assist prosecutors in many ways.

Government Accountability

The crimes committed against African-Americans in Mississippi during the civil rights era were frequently either actively participated in, encouraged, or at least condoned by branches of the state government. The following statement was issued by the Philadelphia Coalition, a group of Neshoba County citizens dedicated to honoring the memory and pursuing justice for Chaney, Goodman, and Schwerner, immediately following the verdict in the Killen case:
   These three brave young men were not murdered by a lone individual.
   While a vigilant group may have fired the gun, the state of
   Mississippi loaded and aimed the weapon. The Mississippi State
   Sovereignty Commission monitored and intimidated civil rights
   activists to prevent black voter representation. The White
   Citizens' Councils enforced white supremacy through economic
   oppression. And decent people remained silent while vile was done
   in their name. These shameful acts have been little understood by
   Mississippi citizens.


According to Michael Schwerner's widow, "The importance of these cases is the acceptance of responsibility by the state for the atmosphere that created violence. One way to accept responsibility is to finally go forward with a prosecution."

With regard to active governmental participation, one only need look in the files of the now defunct State Sovereignty Commission. For instance, files from the State Sovereignty Commission reveal that the commission conducted long-term surveillance of Medgar Evers and colluded in the second trial of Beckwith. One commission file entitled "Medgar Evers: Race Agitator" showed that the commission conducted background investigations of the potential jurors in the second trial, thus creating the suspicion of jury tampering by the government on behalf of the defense. It has been remarked that the 1994 Beckwith trial was a trial of the entire state. In addition to the Beckwith case, Sovereignty Commission files also indicate possible jury tampering that occurred in Sam Bowers's early trials for the murder of Vernon Dahmer.

In addition to government malfeasance on an organizational level, individual government officials committed crimes of violence in the name of Mississippi. For example, in the Neshoba County case, Deputy Sheriff Cecil Price falsely arrested Chaney, Goodman, and Schwerner, and then apprised Edgar Ray Killen, the Klan kleagle, of the situation. Furthermore, Price led the caravan of Klansmen that stopped the trio, pulled them out of their car, placed them in his patrol car, and transported them to the secluded country road where they would draw their last breaths.

Additionally, acts of passive state misconduct with regard to civil rights era crimes can be seen by looking at the Neshoba County case. Virtually no investigation of the murders was conducted by the county or the state. This is not surprising due to the fact that the county's two law enforcement officers were FBI suspects, were indicted by a federal grand jury, and one was convicted. After the FBI refused to turn over evidence to a Neshoba County grand jury in 1964, the state completely ceased any efforts to seek justice in the case.

However, it must be noted that not all representatives of the state encouraged or condoned such malfeasance. For example, the Jackson Police Department diligently worked to process evidence in the Medgar Evers murder, which led to the arrest of Byron De La Beckwith merely 11 days after the murder. While it was the FBI that arrested Beckwith, the arrest was made on the basis of evidence obtained in the local police investigation. Furthermore, Bill Waller prosecuted the case against Beckwith twice in 1964, giving up only when faced with defeat after putting on the best case he thought possible. Likewise, the Forrest County Sheriff's Office and Mississippi's state police force assisted the FBI in investigating the murder of Vernon Dahmer. As in Beckwith's case, the state tried Sam Bowers multiple times before finally convicting him of Dahmer's murder.

But, regardless of the admirable efforts of some state officials to bring justice in these cases, the state was still all too often involved in many of the injustices. For this reason, Margret M. Russell (3) wrote that "[r]eopening cases to obtain legal accountability for public malfeasance--even in the context of individual prosecutions--enhances respect for the rule of law and signals that the state itself is not beyond the reach of the law." When the people hold the government accountable for past wrongs it is a symbol of true change.

Private Accountability

In addition to achieving governmental accountability for civil rights era murders, prosecuting such cases acknowledges the roles individuals played in these crimes. Therefore, another sociological reason for reopening these cases is to correct the record, so to speak, by ensuring individual accountability. In other words, these cases correct the historical record of the past by demonstrating that even with murders committed decades ago, individuals are not allowed to murder with impunity.

The idea of correcting the record was incorporated into Neshoba County District Attorney Mark Duncan's closing arguments in Edgar Ray Killen's 2005 trial: "You [the jury] can either change the history that Edgar Ray Killen and his friends wrote for us or you can confirm it." The "history" written by Killen and others in Mississippi during the civil rights era was one of an unofficial sense of immunity for white-on-black crimes and crimes against civil rights workers. As James Chaney's younger brother Ben Chaney noted: "The perpetrators are walking the streets, and we know who they are. By not prosecuting, it's saying to the individuals, 'You can go home and tell your friends about it, and nothing will be done.'"

Perhaps no one exemplified Ben Chaney's complaint better than Byron De La Beckwith, who bragged to numerous individuals about killing Medgar Evers and getting away with it. However, Beckwith's historical record was rewritten when those to whom he had boasted testified against him in 1994. Some would argue that it was Beckwith's own words that convicted him in his third trial, even though it was the first time he chose not to testify himself. The state of Mississippi is changing the history written by Beck-with, Bowers, Killen, and other vicious racists by reopening and re-prosecuting these cases, thus making a symbolic statement that whites who killed civil rights workers in the 1960s did not "get away with it": while justice may be delayed, it is still sought in the state of Mississippi.

Unfortunately, the prosecution of civil rights era murderers decades after their crimes does not produce an absolute, or complete, sense of justice on an individual basis. After all, in a just world such murderers would not have been able to live as free men for so many years after committing their crimes. However, seeking personal accountability for the offenders, albeit delayed, is a vital step toward some form of justice. According to Margaret M. Russell: (4)
   [R]eopening can neither undo the past nor adequately provide
   redress for long-standing harms. Nevertheless, such prosecutions
   (and convictions) loom large in significance as markers of
   accountability--certainly not "justice" in a comprehensive,
   restorative sense, but a kind of "justice" nevertheless. Perhaps
   even starker significance would lie in the failure to prosecute
   such cases....


The prosecution of civil rights era murderers like Beckwith, Bowers, and Killen set the historical record straight by demonstrating to future generations of Mississippians that even during a time of societal turbulence truth will eventually surface.

Racial Healing

Not only do these cases create public and private accountability for the travesties of the past, but prosecutions of civil rights era murder cases may help to heal the racial wounds of communities and individuals caused by an era of racial violence. According to Harlon Dalton, (5) racial healing involves "candidly confronting the past, expressing genuine regret, carefully appraising the present in light of the past, agreeing to repair that which can be repaired, accepting joint responsibility for the future, and refusing to be derailed by setbacks and short-term failure."

While it is widely recognized that re-prosecuting individual offenders for their crimes will not bring racial reconciliation by itself, many agree that it is an important first step toward such healing. Susan Glisson of the William Winter Institute for Racial Reconciliation and the Philidelphia Coalition believed that putting the truth about the Neshoba County killings in the public record was a first step in the process of racial reconciliation. According to Martha Minow: (6)
   Criminal prosecutions ... can also help communities face their past
   and establish how the current generation means to break from it.
   Rather than reopening old wounds, legal attention to past racial
   crimes could start the process of healing wounds that have festered
   for decades. Even the debate over whether to proceed with
   prosecutions ... can bring into the open secrets about the past,
   afford people on all sides a chance to tell the truth, explain
   their motivations and suffering, apologize, and make amends.


Minow also hypothesized that prosecution of civil rights era criminals may be an essential prerequisite for racial healing "on the theory that a society cannot forgive what it cannot punish." Justice brings about truth, which in turn brings about reconciliation. As Ben Chaney stated after Killen's sentencing hearing, "First justice, then truth is established within." Similarly, Susan Glisson told the Philadelphia Coalition in February of 2004, "Justice is a prerequisite for reconciliation." According to Howard Ball: (7)
   The prosecutors' broader goal [in the Killen case] was ... to lay
   out the unvarnished truth about an unholy era in Mississippi's
   history. Lay it out so that public school teachers can draw upon
   these truths to educate their students about the reality of life in
   segregated, racist Mississippi. Lay it out so that young parents
   and other adults in the state come to grips with and understand the
   truth about race relations in a very different Mississippi from
   what it was not too long ago.


However, some have fought against having the truth put on the record, arguing that it would be damaging to race relations. For instance, after Killen was indicted in 2005, James McIntyre, one of Killen's attorneys, stated, "I think this is a sad day for Mississippi. This is going to open up old wounds. People (across racial lines) will look at one another differently. I never thought it would surface again." According to McIntyre, "A prosecution on murder charges will only help the feelings of a few, rather than the 2.8 million who live in Mississippi." Many others have expressed similar opinions with regard to each prosecution of a civil rights era murder.

It should be noted, however, that public opinion in favor of reopening such cases has grown in the past 15 years: public opinion polls have shown that citizens of the state of Mississippi are much more comfortable now with reopening such cases than they were when Beckwith was tried in 1994. And, in response to the argument that prosecuting such cases is nothing more than "opening old wounds," one may simply ask, as Bobby DeLaughter, the Hinds County assistant district attorney who retried Byron De La Beckwith, asked: "[I]f justice has never been finalized in such a despicable and immoral atrocity and pursuing it will open an old wound, is it not a wound that needs to be reopened and cleansed, instead of continuing to fester over the years, spreading its poison to future generations?"

Victims' Families

Family members of civil rights era murder victims can place a unique pressure on prosecutors trying to decide whether or not to reopen cases. They frequently urge prosecutors to reinvestigate and re-prosecute. After the Jackson newspaper The Clarion-Ledger published an article alleging possible government misconduct in the 1964 Beckwith trials, Medgar Evers's widow succeeded in getting the Hinds County District Attorney's Office to re-prosecute Beckwith. Likewise, Vernon Dahmer's widow, Ellie Dahmer, and other family members urged the Forrest County district attorney to reopen the case against Bowers as early as 1991. Family members of the three young civil rights workers murdered in Neshoba County were also instrumental in getting prosecutors to reopen that case. In fact, Mississippi Attorney General Jim Hood acknowledged that his meeting with Andrew Goodman's mother, Dr. Carolyn Goodman, greatly impacted his decision to work with Neshoba County District Attorney Duncan to bring Killen before the grand jury.

In addition to urging prosecutors to act, family members can give the victims of decades old crimes a fresh "face" for the prosecutors to visualize rather than faded black and white photographs from the 1960s. The family can turn the victims from mere historical characters into real people for prosecutors. For instance, Andrew Goodman's mother, Dr. Carolyn Goodman, gave an interview in 1989 to then editor and publisher of the Neshoba Democrat Stanley Dearman in which she, "gave Andrew Goodman and his friends a humanity and a warmth that had not been recognized by Mississippians for twenty-five years." Family members can also give life to victims in the eyes of jurors: perhaps a primary reason that the family members of Evers, Dahmer, Schwerner, Goodman, and Chaney have all been called to testify in their respective cases. Members of the family help prosecutors and jurors to see that these crimes, although committed long ago, are not mere footnotes of history, but that the pain still exists for those left behind.

Beyond merely pushing for reinvestigation and prosecution and giving prosecutors an idea of who the victims were, family members can actively participate in the process of bringing their loved ones' murderers to justice by bringing evidence to the table. For example, in Beckwith's 1994 trial, Medgar Evers's widow assisted prosecutors by providing them with a copy of the original trial transcript from Beckwith's first 1964 trial, other copies being lost to history. In the Dahmer case, Dahmer's widow convinced the FBI to hand over investigative files that it had previously refused to disclose to state prosecutors. Ms. Dahmer also persuaded Attorney General Mike Moore to assist the local district attorney by assigning a trial prosecutor and three investigators to the case. Additionally, in all three cases discussed in this article family members were key trial witnesses, testifying about the events that occurred, the atmosphere in which the crimes were committed, and the lives of the victims.

Media

The media also may have a profound effect on the decision to reopen cases. This effect is two-fold. First, the media can bring long neglected crimes once again into the public arena. For example, in 1988, the movie Mississippi Burning was released. The film was a somewhat fictionalized "Hollywood treatment" of the events surrounding the FBI's investigation in the Neshoba County case. By 1989, millions of Americans had seen the film's gripping scenes of the racial violence faced by African-Americans during the civil rights movement in Mississippi. During jury voir dire in the Killen trial, District Attorney Mark Duncan asked a group of approximately 200 potential jurors if any of them had seen the movie, and approximately 75 percent of the potential jurors raised their hands. The movie led Mississippians, and especially Neshoba County residents, to begin a dialog about the past and the possibilities of justice.

Secondly, investigative reporters such as Jerry Mitchell of The Clarion-Ledger may "dig up" new evidence used to influence prosecutors to reinvestigate for themselves. Mitchell, referred to by some as a "one-person Mississippi Bureau of Investigation," has had a tremendous impact on the decisions to re-prosecute these cases. After seeing the movie Mississippi Burning, Mitchell began reviewing Sovereignty Commission files to find evidence of the state's involvement in the crimes of the past. When the Sovereignty Commission was dissolved, the state legislature passed a statute requiring the commission's files to "be immediately sealed, impounded and maintained as confidential files by the department of archives and history." While this statute was held unconstitutional in 1994, it was in full effect when Mitchell began investigating; however, Mitchell learned that some of the commission's records had been misfiled and were not sealed. In 1989, Mitchell obtained nearly 2,500 pages of the commission's misfiled documents. From those files, Mitchell wrote a story revealing "that while the state attorney general was prosecuting Byron De La Beckwith . . . another state agency, the [Sovereignty Commission], with the governor of the state sitting as an ex officio member, was secretly providing helpful information to De La Beckwith's defense attorneys." This story along with others by Mitchell, in part, led the state to reopen the cases against Beckwith, Bowers, Killen, and others.

In the Killen case, Mitchell obtained a copy of a sealed interview given by Imperial Wizard Sam Bowers during the 1980s in which Bowers, referring to the federal trial for the Neshoba County killings, stated that the was glad to go to prison because he helped a fellow Klansman and "the main instigator" of the killings go free. Mitchell published a story in The Clarion-Ledger regarding Bowers's statements, which led family members of the murdered trio to press harder for the state attorney general and the local district attorney to open a case against Edgar Ray Killen.

Legal Issues

While there are many reasons for prosecuting civil rights era murder cases and much pressure to do so from the victims' families and the media, the critical question that arises is whether or not such cases can be prosecuted in our legal system. A number of legal issues are involved in re-prosecuting these cases, most of which surround the fact that there is such a lengthy gap between the commission of the crimes and the trials. While such cases trigger a number of state and federal rights, the rights discussed herein are limited to the federal constitutional rights to be free from double jeopardy, to a speedy trial, to due process of law, and to confront the witnesses.

Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment states that no one shall "be subject for the same offence to be twice put in jeopardy of life or limb." The United States Supreme Court has interpreted the "same offence" language to mean that the clause "bars any criminal prosecution for the same offense for which the defendant has already been acquitted, convicted, or pardoned." Therefore, re-prosecutions of cases in which mistrials were declared previously due to hung juries do not offend the Double Jeopardy Clause. Thus, the Double Jeopardy Clause was not violated in the re-trials of Beckwith, Bowers, and Killen on the premise that they had been previously tried in cases that resulted in mistrials following deadlocked juries.

However, unlike the proceedings surrounding the Bowers and Killen cases, an order of nolle prosequi was entered in the Beck-with case following two mistrials. The United States Supreme Court has held that an order of nolle prosequi does not terminate the original jeopardy if entered after a mistrial following a hung jury.

Furthermore, with regard to an issue arising in cases such as the Killen case, the Supreme Court has employed a "dual sovereignty doctrine" to interpret the "same offence" language of the Double Jeopardy Clause. Under the dual sovereignty doctrine, the Court has acknowledged that the federal government and the state governments, as separate sovereignties, can enact laws which make certain acts criminal. Because a single criminal act can be punished separately by each government, the separate sovereignties' laws "by definition cannot define the 'same offence.'" Therefore, even if Edgar Ray Killen had been convicted in his 1967 federal trial, the Double Jeopardy Clause would not have prevented him from being tried later in state court for the same criminal acts. While some state courts have held that the dual sovereignty doctrine violates their own state constitutional prohibitions on double jeopardy, the Mississippi Supreme Court has acknowledged the doctrine as sound jurisprudence that is not obstructed by the Mississippi double jeopardy statute.

Speedy Trial

The Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy... trial." The Speedy Trial Clause is irrelevant to the issue of a lengthy delay prior to an indictment. Therefore, the speedy trial right is not applicable in most civil rights era re-prosecutions.

However, the Beckwith case presents an exception to the general rule of inapplicability. Beckwith challenged his 1994 retrial for the murder of Medgar Evers based, in part, on a five-year gap between the hung jury in his second 1964 trial and the entry of a nolle prosequi order in 1969. Beckwith's challenge was analyzed under the four-prong test crafted by the United States Supreme Court in Barker v. Wingo, which had been adopted by Mississippi. The four factors are as follows: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." The Mississippi Supreme Court acknowledged that the applicable lapse in time was "presumptively prejudicial," and therefore, necessitated an examination of the latter three factors. However, the Court held that the other three factors weighed in favor of the state, especially since the primary reason for delay was the two mistrials in which the Sovereignty Commission provided assistance to the defense. Therefore, Beckwith's right to a speedy trial under the Sixth Amendment was not violated.

Due Process

The Due Process Clause of the Fourteenth Amendment states that no state shall "deprive any person of life, liberty, or property, without due process of law." The due process issue that arises out of re-prosecuting civil rights era murder cases regards pre-indictment delays, but the primary protection against oppressive pre-indictment delays is the applicable statute of limitations. In Mississippi, murder does not carry a statute of limitations; therefore, due process considerations are all that protect defendants against pre-indictment delays.

The test for analyzing pre-indictment delays challenged under the Due Process Clause is two fold: (1) the defendant must show that the delay resulted in actual prejudice, and (2) the defendant must show that the government used the delay as an intentional device to gain a tactical advantage over the defendant. Both Beckwith and Killen argued that their due process rights had been violated by such lengthy pre-indictment delays. However, the Mississippi Supreme Court rejected both of their claims, finding neither actual prejudice nor intentional delay.

In both cases, the court held that "Iv]ague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish a due process violation from preindictment delay." Additionally, in Beckwith's federal habeas corpus case, the district court rejected Beckwith's argument that the delay was intentional because the state "delayed re-indictment until a more favorable racial climate for prosecution developed." When Killen made the same argument to the Mississippi Supreme Court, the court responded as follows:
   We cannot say Killen's premise is inaccurate, that is, that "jurors
   and jury duty has materially changed since the sixties; that the
   political climate in Mississippi had completely reversed in 2005
   from the sixties," and that "the attitude of the general public"
   has "changed from the sixties." That said, however, Killen cites no
   authority for the proposition that he may satisfy [the] actual
   prejudice requirement by demonstrating he was denied a trial in a
   prejudiced "political atmosphere" before a prejudiced "jury"
   selected from the virtually all-white voter rolls used to select
   persons for "jury duty." (8)


The court stated that it was "surprised" that Killen even attempted to make this argument.

Confrontation

The Confrontation Clause of the Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." This clause has an extreme effect on the ability of the state to use the out-of-court statements of dead or missing witnesses in civil rights cases which are prosecuted decades after the crimes were committed. In the landmark Crawford v. Washington opinion, the Supreme Court held that out-of-court testimonial statements are not allowed at trial, "unless [the declarant is] unavailable to testify, and the defendant had a prior opportunity for cross-examination." This prohibition operates regardless of whether the trial court deems that such statements are otherwise reliable.

With regard to the Beckwith, Bowers, and Killen cases, the state introduced the prior trial testimony of witnesses who had died since the trials that occurred in the 1960s. Of these three cases, only the Killen case was tried post-Crawford, but it is easy to see how Crawford would have affected the two earlier cases as well. The Confrontation Clause was triggered by the use of testimony in previous trial transcripts, as such statements are testimonial in nature. Therefore, the witnesses would have had to have been unavailable in the current trial and the defense must have had an opportunity for cross-examination at an earlier time. These were the circumstances in each of the three cases; therefore, the Confrontation Clause was satisfied with regard to the prior trial testimony that was introduced in each of the trials.

One Confrontation Clause problem that may arise for prosecutors is the situation in which there has been no previous trial against the accused. While that was not the case in any of the three cases discussed in this article, it is not difficult to imagine such an instance. For example, with regard to the Bowers and Killen cases (cases in which there were multiple codefendants), had Bowers or Killen not been included as original defendants in their respective trials in the 1960s, then the state would not have been able to use any statements elicited in those trials against Bowers or Killen, as neither would have had the opportunity to cross-examine the declarants in the trials of the 1960s.

Another Confrontation Clause challenge for the state occurs when a new witness, who did not previously testify against the accused, comes forward and gives a statement to authorities only to die or become otherwise unavailable before trial. This obstacle for the prosecution actually did occur in the Killen case. Bob Stringer, the one-time errand-boy of Sam Bowers who testified against Bowers in the Dahmer case, informed prosecutors that he had witnessed Bowers tell Killen that Schwerner was to be eliminated. Because Stringer died before the 2005 case went to trial, his statement was inadmissible. Perhaps the biggest blow to prosecutors in the Killen case came when their star witness, Deputy Cecil Price died before trial. Like Stringer's statement, Price's detailed account of the murders was inadmissible at trial.

CONCLUSION

The 1994 trial of Byron De La Beckwith, the 1998 trial of Sam Bowers, and the 2005 trial of Edgar Ray Killen represent steps in the march toward justice for those who lost their lives in the battle to ensure equality to all races during the civil rights movement. The need to reexamine and re-prosecute such cases is the need for citizens of the state of Mississippi to acknowledge the state's past and confront the evils of its history which have prevented justice, public and private accountability, and racial reconciliation. It is the need of the citizens of this state to look forward, in the words of Medgar Evers, "in hopes of the future when it will not be the case in Mississippi and America, when we will not have to hang our heads in shame or hold our breath when the name Mississippi is mentioned.... [b]ut instead, we will be anticipating the best."

SOURCES

Constitutional Provisions

U.S. CONST. amend V.

U.S. CONST. amend VI.

U.S. CONST. amend. XIV, [section] 1.

Cases

Barker v. Wingo, 407 U.S. 514 (1972).

Beckwith v. Anderson, 89 F. Supp. 2d 788 (S.D. Miss. 2000).

Beckwith v. State, 615 So. 2d 1134 (Miss. 1992).

Byrd v. State, 228 So. 2d 874 (Miss. 1969).

Evans v. State, 725 So. 2d 613 (Miss. 1997).

Killen v. State, No. 2005-KA-01393-SCT, 2007 WL 1080391 (Miss. Apr. 12, 2007).

Richardson v. United States, 468 U.S. 317 (1984).

Sessums v. State, 221 So. 2d 368 (Miss. 1969).

Smith v. State, 223 So. 2d 657 (Miss. 1969).

State v. Beckwith, 707 So. 2d 547 (Miss. 1997).

United States v. Lanza, 260 U.S. 377 (1922).

United States v. Lovasco, 431 U.S. 783 (1977).

United States v. Price, 383 U.S. 787 (1966).

United States v. Scott, 437 U.S. 82 (1978).

United States v. Wilson, 420 U.S. 332 (1975).

Wells v. State, 288 So. 2d 860 (Miss. 1974).

Wilson v. State, 234 So. 2d 303 (Miss. 1970).

Books

Howard Ball, Justice in Mississippi: The Murder Trial of Edgar Ray Killen (2006).

Seth Cagin & Philip Dray, We Are Not Afraid: The Story of Goodman, Schwerner, and Chaney and Campaign for Mississippi (1988).

David Chalmers, Backfire: How the Ku Klux Klan Helped the Civil Rights Movement (2003).

Harlon Dalton, Racial Healing: Confronting the Fear Between Blacks and Whites (1995).

Bobby DeLaughter, Never Too Late: A Prosecutor's Story of Justice in the Medgar Evers Case (2001)

Willaim Doyle, An American Insurrection: James Meredith and the Battle of Oxford, Mississippi, 1962 (2001).

Neil McMillan, The Citizens' Council: Organized Resistance to the Second Reconstruction 1954-1964 (1971).

Martha Minow, Between Vengeance and Forgiveness (1998).

Mary Anne Vollers, Ghosts of Mississippi: The Murder of Medgar Evers, The Trials of Byron De La Beckwith, and the Haunting of the New South (1995).

Articles

Anthony V. Alfieri, "Retrying Race," 101 Mich. L. Rev. 1141 (2003).

"Ben Chaney, Schwerner, Chaney and Goodman: The Struggle for Justice" 27 Hum. Rts. 3 (Spring 2000).

Donald Q. Cochran, "Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church," 12 Mich. J. Race & L. 1 (2006).

Adam Cohen, "Widow and the Wizard," Time, May 18, 1998, available at http://www.time.com/time/magazine/article/ 0,9171,988350-1,00.html.

Steven F. Lawson, "Prelude to the Voting Rights Act: The Suffrage Crusade," 1962-1965, 57 S.C.L. Rev. 889 (2006).

Douglas O. Linder, "Bending Toward Justice: John Doar and the 'Mississippi Burning' Trial," 72 Miss. L.J. 731 (2002).

John Maclean, "Prosecuting Past Civil Rights Crimes in Maryland," 34 U. Balt. L.F. 4 (2004).

Brian MacQuarrie, "Jury Deadlocked in Mississippi Trial," Boston Globe, June 21, 2005, at A2.

Martha Minow, "Foreword: Why Retry? Reviving Dormant Racial Justice Claims," 101 Mich. L. Rev. 1133 (2003).

Jerry Mitchell, numerous articles published in The Clarion-Ledger.

Melba Newsome, "Another Ghost of Mississippi Laid to Rest," The New Crisis, Nov. 1998, available at http://www.findarticles.com/p/articles/ mi_qa3812/is_199811/ai_n8815983/pg_1.

Sandra Peters, 32 Years to Justice, http://gbgmumc.org/response/articles/dahmer.html (last visited Apr. 21, 2007).

Margaret M. Russell, "Cleansing Moments and Retrospective Justice," 101 Mich. L. Rev. 1225 (2003).

Todd Taylor, "Exorcising the Ghosts of a Shameful Past: The Third Trial and Conviction of Byron De La Beckwith," 16 B.C. Third World L.J. 359 (1996).

ENDNOTES

(1) David Chalmers, Backfire: How the Ku Klux Klan helped the Civil Rights Movement (2003).

(2) Douglas O. Linder, "Bending Toward Justice: John Doar and the 'Mississippi Burning' Trial," 72 Miss. L.J. 731 (2002).

(3) Margaret M. Russell, "Cleansing Moments and Retrospective Justice," 101 Mich. L. Rev. 1225 (2003).

(4) Id.

(5) Harlon Dalton, Racial Healing: Confronting the Fear Between Blacks and Whites (1995).

(6) Martha Minow, "Foreword: Why Retry? Reviving Dormant Racial Justice Claims," 101 Mich. L. Rev. 1133 (2003).

(7) Howard Ball, Justice in Mississippi: The Murder Trial of Edgar Ray Killen (2006).

(8) Killen v. State, 2007 WL1080391 at *19 (Miss. Apr. 12, 2007).

Joseph W. Gill is a former student in the Prosecutorial Externship Program at the National Center for Justice and the Rule of Law of the University of Mississippi School of Law. This paper was written while he was a student in this program.
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Title Annotation:Bryon De La Beckwith, Sam Bowers and Edgar Ray Killen
Author:Gill, Joseph W.
Publication:Prosecutor, Journal of the National District Attorneys Association
Date:Jul 1, 2007
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