A Trial Of Past And Present
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
If you ran into Edgar Ray Killen at a supermarket, you would likely smile and try to help him to his car. The man is 80, in a wheelchair, and looks a little like Uncle Junior from the television series "The Sopranos." But Killen is no ordinary senior citizen. He is a former member of the Ku Klux Klan accused of one of the most significant murders of the 20th Century.
He is on trial for murder in Mississippi 41 years after three civil rights workers were killed there in a crime chronicled in the movie "Mississippi Burning." Public reaction to the murders, and to Mississippi's reaction to the murders, helped ensure passage of the first Civil Rights Act. Killen was initially tried in federal court in 1967 but an all-white jury deadlocked on the charges against him.
Four decades later, he is back in the dock — this time facing a state prosecutor. And this time facing a jury made up of perhaps as many as four black citizens of the state. Can you imagine what those jurors in particular are thinking as they sit and listen to the story of this long-ago crime? Can you imagine the swirl of history, politics, law and experience in their minds as they try to decide whether Killen is a killer or just an angry, bigoted man who rode the crest of an angry, shameful time?
These sorts of old cases now are all the rage in the South. Byron de la Beckwith was convicted of murder in Mississippi in 1994 for gunning down civil rights leader Medgar Evers. Beckwith died in jail a few years ago. Bobby Frank Cherry was convicted in 2002 for murdering four little black girls in Alabama by bombing their church in 1963. Cherry also died in prison a few years ago. And now it is Killen's turn to face the music.
Prosecutors have to be careful and they know it. They cannot rely upon the "ghosts of Mississippi" and put the state's past on trial. They cannot put the culture of the South on trial. Those components will be the part of the case that probably will and should be left unsaid. No, prosecutors will do best if they leave the high rhetoric for the talk show hosts and focus instead on whatever specific evidence they may have against Killen.
Jurors won't convict Killen because of who he was back in the 1960s. They won't convict him because of his odious views. They will be looking for specific evidence that Killen used those views to justify and then commit murder. Jurors also will be looking for new information or evidence that was not part of the first trial and if prosecutors have new witnesses, or new physical evidence, it will go a long way toward a conviction.
As for the defense, Killen's lawyer has to figure out a way to humanize his client without seeming too smarmy about it. The defendant may be old and fragile now, and certainly a sympathetic figure in court, but he hasn't been charged with being a Klansman. He's been charged with being a Klansman who coordinated and then committed a particularly heinous crime.
It won't be easy for either side. But win or lose the trial itself is a bit of a victory for civil rights advocates and others who believe that the trial a generation ago was a sham. Guilty or not, the fact that Killen is again a defendant is a step in the right direction. The fact that a state that once defiantly subverted justice now seeks it is good news. And the fact that the Killen trial seems almost routine in light of the Cherry and de la Beckwith trials is a sign that justice delayed need not necessarily be justice denied.
Killen's first jury sent a clear message that whites still ruled supreme in the South 100 years after the end of the Civil War. Whatever it decides, his next jury will send an equally strong message.
By Andrew Cohen