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Burden of Proof
1963 Birmingham Church Bombing: Suspects Maintain InnocenceAired May 18, 2000 - 12:30 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
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REV. ABRAHAM LINCOLN WOODS, CIVIL RIGHTS ACTIVIST: We had a fire that the water couldn't put out. We had a fire that the billy clubs couldn't beat out. We had a fire that the jail house couldn't lock out.
DOUG JONES, U.S. ATTORNEY: This was a tragedy of just absolute monumental proportions. It has scarred the city of Birmingham for 30 -- almost 37 years. There needs to be some kind of closure.
DAVID BARBER, DISTRICT ATTORNEY, JEFFERSON COUNTY, ALABAMA: May the 16th, in culmination of the two-day session of the Jefferson County grand jury convened especially to hear testimony relative to the September, 1963 fatal church bombing on the 16th Street Baptist Church, returned indictments against two individuals: Thomas Edwin Blanton Jr. and Bobby Frank Cherry, charging each of those individuals with four counts of murder in the first degree.
ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Thirty-seven years after a church bomb kills four black girls in Birmingham, Alabama, a grand jury indicts two former Ku Klux Klansmen in the crime.
ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.
COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.
To many in the South and across the nation, the crime served as a watershed moment in the civil rights movement. On September 15, 1963, a bomb ripped through Birmingham's 16th Street Baptist church, killing four black girls ranging in ages from 11 to 14. Now, nearly four decades later, justice could be on the horizon. Two former Klansmen turned themselves in yesterday but maintain their innocence.
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JONES: We have no idea at this point when this case will be set for trial. We do anticipate that there will be. At this point, both Mr. Blanton and Mr. Cherry are being held without bond. They have -- they did turn themselves in this morning. However, we expect, in discussions with their lawyers, that motions to reduce that bond will be filed shortly. At this time, we have no idea when the court may hear any of that or when this case will be set for trial.
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COSSACK: And joining us today from Montgomery, Alabama is Morris Dees of the Southern Poverty Law Center; on Capitol Hill, Democratic Congressman John Lewis of Georgia who, before taking political office, was a civil rights leader in the South. And in Birmingham, we're joined by U.S. attorney Doug Jones; and here in Washington, Whitney Wishon (ph), former federal prosecutor Steve Berk, and Emory Wishon (ph). And in the back, Gilman Barndollar (ph) and Sydney Wishon (ph).
Let's go right to Congressman Lewis.
Congressman Lewis, if you will, take us back to Birmingham, Alabama in 1963, set the stage for us. What was it like back then? And tell us about this horrible event.
REP. JOHN LEWIS (D), GEORGIA: In Birmingham, like so much of the South during 1963, segregation was the order of the day. There had been a series of demonstrations, nonviolent protests in Birmingham during the spring where the police commissioner, Bill O'Connor (ph), used dogs and fire hoses against nonviolent demonstrators. Hundreds of people had been arrested and jailed.
Earlier during the year, Governor Wallace had been inaugurated. And in his inauguration address, he said "segregation now and segregation forever." There were still signs saying "white" and "colored," "white men," "colored men," "white women," "colored women," a tremendous amount of fear and violence. Certain parts of Birmingham was called "Dynamite Hill." Some people referred to Birmingham as "Bombingham" because of the number of churches or homes, a place where we used to stay, a motor hotel, had been bombed in the city of Birmingham.
So this came on the heel of the march on Washington. The march on Washington took place in August, 1963 when there was so much hope, so much optimism. And we came back to the South, back to Georgia, back to Alabama and this vicious, hideous crime occurred that shattered a great deal of the hope, a great deal of the movement toward civil rights. But it created a sense of solidarity among the civil rights leaders and among all of the participants in the movement, and created a sense of righteous indignation, of people who had been silent start speaking up and saying, enough is enough. It was a sense of disbelief.
I remember so well arriving in Birmingham about two and a half hours after the bombing and I couldn't believe when I arrived at the church and saw the devastation. I remained there for the funeral of the four little girls. And still pains me when I go and visit Birmingham even today and go back to the site of the bombing.
COSSACK: All right, congressman, let me now go to Morris Dees. Morris, your group has been active in investigating activities like this. In fact, a cohort of yours, Mr. Potok, said that, in fact, he believed that there was evidence to at least indict these men 36 years ago, that there were eyewitnesses, that there was enough evidence, but that J. Edgar Hoover didn't want to indict then, and part of it was based on hatred for Martin Luther King. Do you stand by those comments?
MORRIS DEES, SOUTHERN POVERTY LAW CENTER: Well, I think there's a lot of truth to that. The FBI that helped investigate this case and the U.S. attorney, Doug Jones, that brought this indictment, they're quite a different group of people and quite a different FBI. Back then, Dr. King thought that -- pardon me, J. Edgar Hoover thought that Dr. King was influenced by communists, and there was a lot of talk around -- especially in law enforcement circles, that the blacks are burning and bombing their own churches to get sympathy.
An FBI report issued in 1980 said that there was evidence, strong evidence, memos from J. Edgar Hoover to the Birmingham FBI and prosecutors not to prosecute. And the excuse was a white jury wouldn't convict.
But I think the truth of it is that, had the Klansmen been convicted -- and these same four people that are now involved and now named, and two of these who are indicted, they were named back then in the FBI report -- that it would have made Dr. King look good, it would have made the church into some sort of a martyr, and the young women, and it would have proven it wasn't the communists, it was the Klan. And I don't think J. Edgar Hoover wanted that.
COSSACK: Why do think that -- you've explained why you don't think they were indicted then, but why do you think they were indicted now? Do you think that there's a different environment or a different receptiveness in juries?
DEES: Well, there's no questions about that the South is different. When Medgar Evers' killer was tried back in 1963 in Jackson, Mississippi, two all-white juries on two occasions refused to convict. But just a couple three years ago, a jury in Jackson, Mississippi convicted the killer. The evidence was clear in that case.
And down in Hattiesburg, Mississippi, Vernon Damer (ph), a black civil rights worker, was burned, house was bombed and burned, and his killer was convicted two years ago in 1998 -- a former Klansman. Back in 1964 when that happened down in Mississippi, an all-white jury refused to convict. It was a hung jury.
All across the South, there's a great desire by whites and blacks to put this stuff behind us, to have some closure. Over in Mississippi today, even though the people that killed Goodman (ph), Swarney (ph) and Cheney (ph), many were convicted for civil rights violations and got small federal sentences, the state refused to prosecute. And, today, there's an ongoing investigation and I believe will result in the indictment in Mississippi state court for murder charges against some of those that killed those three civil rights workers in the summer of '64.
COSSACK: All right, thank you.
Congressman Lewis, thank you for joining us today from Capitol Hill.
And up next, a focus on the two defendants in this case. They're former members of the Ku Klux Klan who maintain their innocence in the bombing. Stay with us.
(BEGIN LEGAL BRIEF)
On this day in 1898, the Supreme Court ruled that "separate but equal" accommodations for blacks and white were constitutional and compatible with the 14th Amendment. That decision, Plessy v. Ferguson, was struck down in 1954 with Brown v. Board of Education of Topeka, Kansas.
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COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to CNN.com/Burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.
Decades later, southern prosecutors continue to keep case files open in the civil rights era crimes of a generation ago.
Joining me now is Doug Jones.
Doug, you are the prosecutor in this case. I know that you can't tell us the evidence before the grand jury, but let me ask you some other questions that come up, that will come up. First issue, there is going to be a speedy trial issue put up by the defense, 37 years. Morris Dees has said, or a spokesman for him, and his unit, has said that, in fact, perhaps the same evidence was available 36 years ago. What are you going to do about that speedy trial issue?
JONES: Well, we have looked at the speedy trial issue. We believe we can overcome any motions that defense may file. Once they have the ability to see the discovery, see what the evidence is, raise their claims, I think they are going to have a hard time showing prejudice. But at the same time, we fully anticipated that, and we'll be prepared to respond to it with our own case law.
It doesn't seem to have been a problem in any other cases that have come up.
COSSACK: Well, let's talk about the suspects. These men were named as suspects, or at least suspects immediately after the bombings 37 years ago, and yet now is the first time they are indicted. Why indict now, Doug? JONES: Well, you know, I can't answer for why they weren't indicted, why J. Edgar Hoover may have not wanted to proceed 36 years ago. I can't answer the questions about what happened in the '70s. All I can tell you is that a year before I became the U.S. attorney this case was reopened by the FBI. It has been a priority in our district. The attorney general, Ms. Reno, has followed it. It has been a priority for her, and we looked at the evidence.
You know, Roger, this is a murder case. It is not unusual when new evidence arises, where you take a second look and things break for you. It is not unusual. This case is a little older than most, I grant it, but it is a murder case, and there are victims out there, and there are families out there who want to see this case come to a close one way or another. So we've been looking at it, we have been looking at it real hard.
COSSACK: Doug, you just referred to perhaps in a murder case, a new investigation, new evidence appears. I am not going to ask you what that new evidence is, but I am going to ask you: Is there new evidence that wasn't available 36 years ago?
JONES: Sure. I expect there to be additional evidence. This case -- there will a lot of overlap, but the cases will try, I think, significantly different than they would have 36 years ago.
COSSACK: All right. Doug, let me, as a prosecutor, you are going to face some serious problems, just by the nature of this case being 37 years old. For example, memories, missing witnesses, people who might have died. What are going to do about that?
JONES: Well, you know, we have looked at that, Roger, I mean, we've gone back, you know, in any old case, where you do, where you reopen, the first thing you do is go back and try to find the witnesses that are there after you review their testimony. There are a lot of witnesses that are no longer around, some have lost, you know, their memories have faded.
However, you know, we go with the evidence that we've got, and we felt like the evidence was enough to present to a grand jury, and let a grand jury make a decision. Obviously, there is problems with any case, but it is not one that we think is one that can't be overcome.
COSSACK: You indicted these men under a statute, as I understand it, that was subsequent, there has been other statutes that in some ways made this one an older statute, and not the most relevant and current one on the books. Why?
JONES: Well, because it happened in 1963. We can't indict somebody on a charge that's written in 1999, or 1998, when the event occurred in 1963. We have to go with the law that was on the books at the time, which was a little bit different, but, you know, it was still the universal malice, the felony murder rules that you learned about in law school, and you are an old prosecutor, you have seen those before. So we just have to go with what we got on the books.
COSSACK: All right, Morris Dees, your group conducts investigations, too. What do you know about these two men that have been charged with this crime?
DEES: Well, the history of the undercover work done by the FBI at the time that they were members of the United Klans of America, and they were a part of a Klan klavern operating out of Bessemer, Alabama, it was one of the most vicious ones. In fact, the members from that Klan klavern in Bessemer, Alabama, which is in a city adjacent to Birmingham, those members were involved in the killing of Vile Liuzo (ph) on the march from Selma to Montgomery.
COSSACK: Steve Berk, as a prosecutor yourself, former prosecutor yourself, these are kinds of cases, when they are this old, that present unique problems, don't they?
STEVE BERK, FORMER FEDERAL PROSECUTOR: They absolutely do, Roger. And you have mentioned some already. It seems to me, though, there is as balance here. This is a very heinous, notorious crime, so you've got that -- and I hate to say it this way -- but you have got that going for you. Everyone has heard of the crime, everyone has heard of these events, the circumstances were quite outrageous. And so that's important. But yes, on the other hand, you do have a case that's 37 years old, and you are going to have a lot of issues about why it wasn't brought earlier, what this new evidence is, and will the witnesses hold up for trial.
Presumably, U.S. attorney Jones has done a good job with his team of putting the case together, and they have a good feel for what their witnesses are going to say. But it is really a balance because you do have a very serious crime, and one that will get a jury's attention, that's for sure.
COSSACK: All right, let's take a break. Doug Jones, thanks for joining us today from Birmingham. How to defend your clients in a decades old, nationally known crime, when we come back.
Q: According to the National Rifle Association, how many new members have joined the pro-gun group in the past six weeks?
A: More than 200,000 -- bringing NRA membership to an all-time high of almost 3.6 million.
COSSACK: Thomas Blanton Jr. and Bobby Frank Cherry were suspected by the FBI as early as 1964 as having helped a well-known racist with the 16th Street Church bombings. Indictments against them were revealed yesterday and they surrendered at the courthouse in Birmingham.
Joining us now from Birmingham is the attorney for Thomas Blanton Jr., David Luker.
Well, David, first, thanks for joining us. Second of all, I want to talk to you about specific problems that you are going to have in the defense in this case. The first one is: What do you do about one -- a defendant who has this much publicity in a terrible accusation and the kind of unpopular person that he is, how do you go about blunting that kind of criticism?
DAVID LUKER, ATTORNEY FOR THOMAS BLANTON JR.: I don't know that we can blunt it. I know that, you know, the change of venue is available. We'll have to consider that, and there's other due process issues that we're going to talk about. But the press on this is monumental, as you would expect, and I don't know that there's a lot you can do to blunt it.
COSSACK: Well, let's put you ahead a little bit and let's put you in the courtroom and say that you're picking your jury. What would you do about trying to pick a jury, and how would you go about finding 12 people that would say to you: Yes, I can put these -- whatever feelings I might have and put them aside and judge only on the facts?
LUKER: Well, I think the first thing is, we're going to have to do a public opinion poll and then use a jury selection expert to try to formulate appropriate questions to identify some of these people. Obviously, everybody is going to have heard about it, but we are going to have to find out how they feel as a result of what they've heard. And can they put some of those feelings aside to be fair, both to the defendant and the state of Alabama.
COSSACK: Now, did your defen -- did your client expect this indictment? was this something that he felt was going to happen?
LUKER: We knew there was an investigation but I don't think we expected an indictment, no.
COSSACK: And the reason for that was? did you feel that there was no new evidence or not enough evidence? I mean, this is obviously -- he was named as a suspect 36 years ago and now he finally gets indicted.
LUKER: He's been a suspect for 36 years, he has maintained his innocence. And there's been several grand jury investigations and have not had enough evidence to indict him both in state and federal court. And I don't know what's different now. I mean, I assume that the government may have a witness that's changed their testimony or a witness that's been enticed to make a statement that's favorable to him. Don't know yet, we haven't received discovery.
COSSACK: David, one of the things we always hear about, you know, today, of course, is DNA. And I'm not suggesting that there's that kind of evident available, I don't know and you don't know. But in terms of forensic investigations 36 years ago, did they do the same kind of forensic, looking for forensic or physical evidence 36 years ago or 37 years ago, than they did today?
LUKER: Well, I would have to just go, based on my experience and training, I mean, I was 13 years old then, there was -- I'm sure the technology has greatly increased and improved, and police techniques have. I would be shocked to find that there's very much forensic evidence in this case. I expect this is going to be a circumstantial evidence case of somebody saying they heard somebody say. I can't imagine forensics being a factor.
COSSACK: Morris Dees, you know, we have talked with David and obviously there are problems in getting a prosecution -- getting a conviction in a case like this. I mean, 37 years have gone by. What would you suggest in terms of the prosecution, how -- what they are going to do?
DEES: Well, I would suspect, like David, and he is one of the finest lawyers we have in this area, and I know he will do a good job. And I admire him for taking on this highly unpopular case. But I think that you are going to have a witness who will say that one or more -- both of these individuals admitted that they committed this bombing. That's what happened in the case down in Mississippi against Byron de la Beckwith (ph) who killed Medgar Evers, and also in the case over in Mississippi in Hattiesburg.
That's the kind of testimony that usually you need some corroboration. I don't know the prosecutor's case either, but I think David would agree with me that we are dealing with quite a different jury pool. We are dealing with a jury pool that is going to be probably majority of African-Americans. We are going to deal with a judge in this case that will probably be -- not want to keep this case away from the jury, and whereas in 1963, maybe J. Edgar Hoover was right, they probably wouldn't have been even tried had they -- he turned the evidence over that he had at the time.
So I think David will do a good job presenting this case. And there's a possibility one of these two witnesses, one of these two defendants will rat on the other one and make some kind of deal. That's what I would want to be looking at if I was the prosecutor.
COSSACK: David, hasn't Morris sort of pointed out the biggest problem that you have in this case is finding juries who will be willing to give your clients the benefit of reasonable doubt or presumption of innocence?
LUKER: I think that's going to be a monumental hurdle to overcome, is finding a jury that won't be predisposed to conviction. And Morris hit it right on the head, there's also going to be issues of -- there's probably somebody is going to say they heard one of these men say something that's against their interest. That's -- It's not going to be anything other than that I wouldn't think.
COSSACK: All right, that's all the time we have for today. Thanks to our guests and thank you for watching.
Today on "TALKBACK LIVE": Is the government doing enough to help the victims of the New Mexico fires? Phone, fax or e-mail your opinion. That is today at 3:00 p.m. Eastern, noon Pacific.
And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.
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