CNN BURDEN OF PROOF
One Guilty Verdict, One Possible Trial to Come in 1963 Alabama Church Bombing
Aired May 2, 2001 - 12:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)
DOUG JONES, PROSECUTING ATTORNEY: It was somewhat overwhelming. We put a lot of time, we've put a lot of sweat into this thing. The families of these victims have been so supportive. It was a very emotional moment for everyone.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
JOHN ROBBINS, BLANTON ATTORNEY: Am I shocked? No, I guess I'm not surprised at this verdict. I guess I was in the back of my mind I was probably expecting it because of where we were. And just the raw emotion of this case is incredible.
(END VIDEO CLIP)
GRETA VAN SUSTEREN, CO-HOST: Thirty-seven years later, a former Ku Klux Klan member is convicted in the bombing of a Birmingham church. Today on BURDEN OF PROOF, the loss of four children and an era of change in America.
ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.
VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF. It was a horrific act of terrorism during the height of the civil rights movement in the South. On September 15, 1963, a bomb ripped through the 16th Street Baptist Church, killing four black girls preparing for worship services.
ROGER COSSACK, CO-HOST: Now, nearly 38 years later, ex-Ku Klux Klansman Thomas Blanton Jr. has been convicted of the crime and was sentenced to life in prison. Blanton's attorney says he plans to appeal the conviction, claiming the trial should have been moved from Birmingham and that tapes the FBI have had since the mid-1960s should not have been introduced.
VAN SUSTEREN: Joining us today from Birmingham is the prosecutor in the case, U.S. Attorney Doug Jones. Also in Birmingham, Diane McWhorter. She's the author of "Carry Me Home." In Atlanta, we're joined by criminal defense attorney John Malcolm. COSSACK: And here in Washington, Casey Hammond, former federal prosecutor Glenn Ivey, and Armand Kagler (ph). And in the back, Katherine Denigan (ph) and Dana Gray (ph).
I am going to go right to you, Glenn. This was a surprising verdict I think more in the sense of how quickly it came, and really in analyzing the prosecution's case, perhaps not the strongest case one has ever seen, if nothing more than the length of time that had gone by.
Well, I think that's fair to say. I mean, it was a highly circumstantial case. Apparently some of the witnesses who would have given direct evidence had died in the interim.
GLENN IVEY, FORMER CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISSION: I think you also had a division of defendants. Instead of having them all tried together, they were tried separately due to severance of the defendants. So there were a lot of issues there. But apparently, the tape in which the defendant was discussing bombs was the death now.
VAN SUSTEREN: You know, Roger, people always talk about a verdict being a fast one. I never think of it as fast. Maybe the evidence is just so convincing, you go and you take a look around. And you all decide the same thing. And, boom, it's done. It could be in five minutes.
And when you look at the tapes, according to mid-1960s tapes, you have the defendant saying in part, "When I bomb my next church," is one partial quote. Another one is, "A meeting where we planned the bombing." I mean, that's not particularly like, "I didn't do it." I mean, that's pretty compelling.
IVEY: Not your typical conversational type of statement for sure.
COSSACK: Doug, you prosecuted this case. Look, there was, as Greta and Glenn just pointed out, there was some evidence with these tapes. But on the other hand, there was no physical evidence. There was no evidence that connected Blanton to making the bomb or transporting the bomb. There were these tapes from several years ago. And yet the tapes seem to, at least as far as we understand, are the ones that convinced the jury.
JONES: Sure. Roger, we didn't have to prove that he physically planted the bomb or that he carried the bomb or that he physically made it. But when the jury hears out of this defendant's own mouth that he was in a meeting where they planned the bomb, and you had to put that in context.
I know Mr. Robbins argued that you couldn't really understand the context. But the context was crystal clear talking to his ex-wife about the fact that she asked him, she quizzed him where he was on the Friday night when he stood her up. He says, "We were at a meeting where we planned the bomb." And there was only one "the bomb" in Birmingham, Alabama in 1964. VAN SUSTEREN: Diane, I suppose you could say that no one could have better timing than you writing a very powerful book, "Carry Me Home." You've also been following this case. You've been in the courtroom. Tell me, going back to the trial, what has it been like, the mood inside the courtroom, the past couple weeks as this old crime is revisited? Was it crowded? Were there a lot of people there?
DIANE MCWHORTER, AUTHOR, "CARRY ME HOME": No, and initially it was sort of just a media event. The only people there seemed to be a large national media contingent and the families and friends of the victims.
As publicity -- unfavorable publicity got out that the city didn't care and wasn't attending the trial, then more people started showing up. There were school groups. There were mothers bringing their children to sort of experience this moment in history.
VAN SUSTEREN: Diane, obviously after court, everyone in the media always goes out to dinner, mingles in the community. You are from that community. What were people saying outside the courtroom in restaurants? Is this an important case there?
MCWHORTER: Well, I was surprised at sort of the lack of enthusiasm among African-Americans I talked to. There was a sense that the money could have been spent on education or better bus service. There was -- I think possibly the apathy had to do with a mistrust that the system was finally going to work and that they didn't want to build up their hopes and then be disappointed.
Among white people, there was a sense of maybe we can finally put this behind us. Why is there always so much interest in us? And that's just sort of classic Birmingham white reaction.
COSSACK: Doug, this case took several years to be brought to trial. There's allegations at least that part of the reason was that the FBI had these tapes and hadn't turned them over to the prosecutor. What exactly happened with the tapes? And why did it take so long?
JONES: Well, Roger, there were two sets of tapes. There were some informant tapes that we thought were very helpful. They were not turned over to the state in the 1977 trial. And I'm not sure the reason why, other than just the need for law enforcement to protect an informant.
The other tapes were on a shelf. They were surveillance-type intelligence tapes in the '60s that we believe the law allowed -- the law has changed a lot lately and has allowed those tapes to be used. They could have never been used in 1964, '65. And that was one of the critical tapes.
And we believe we will be able to sustain that on appeal. But it was an issue where these tapes had been there for a long, long time. And nobody had really looked at them in a long, long time.
VAN SUSTEREN: Doug, what was the demeanor of the defendant Thomas Blanton as he was hearing the verdict from the jury that he was convicted?
JONES: Well, I will be honest with you, Greta. I was focused on my table. I had my head down waiting. And then I looked up at the jury foreman. And I didn't look over at Mr. Blanton until I saw him make a statement at sentencing. And he was fairly grim at that time.
VAN SUSTEREN: What did he say at sentencing? And why was it so swift? I mean, oftentimes sentencing in most jurisdictions is weeks later.
JONES: Right. Well, you remember we were working under a 1963 law. Sentencings have changed around the country a lot since then.
And under the 1963 law, one, the jury does the sentencing, not the court. And under the 1963 law, since this was not a death penalty case, the only punishment for murder in the first degree was life in prison. So when the jury came back, found him guilty of murder in the first degree, said life in prison, there was nothing left for the court to do but impose the sentence.
COSSACK: Diane, there is a sense at least I get from you, from your feelings, that perhaps J. Edgar Hoover didn't act on this because he was in some way -- one, he didn't seem too interested in it. And two, perhaps he was trying to protect informants. What are your feelings?
MCWHORTER: I think that the investigation was possibly flawed because there was an FBI informant inside the Klan who had committed crimes in line duty for the two years preceding bombing. And the FBI had covered those up.
So, I know that the FBI had reason to believe that this man, Gary Thomas Rowe, might have been involved. And they didn't show his picture or a picture of his car to any potential witnesses. That might also explain their reluctance in turning over files to state prosecutors subsequently, during subsequent years. They may have been afraid of what they would turn up about the informant himself.
JONES: Roger, I could address that?
VAN SUSTEREN: Go ahead.
JONES: Could I address that because I think it is an important point? And with all due respect to Diane, I absolutely disagree. Every memo that I have seen in this case shows that the FBI from J. Edgar Hoover on down wanted this case solved.
VAN SUSTEREN: Well, then what took so...
(CROSSTALK)
VAN SUSTEREN: ... Wait a second. Let me stop you right there. Then what took so long if everybody was so interested?
JONES: Well, let me tell you, the FBI, the agents on the street, did an absolutely phenomenal job. But you guys are lawyers. You know that not every case can come up and come to trial as quickly as we would like.
If there was a mistake made, Mr. Hoover did make one mistake and I agree. He should have let the Justice Department lawyers look at and examine all the evidence. And it appears that he did not do that. He made the sole decision that this case could not be won in Birmingham and did not want to jeopardize it.
But I will tell you that we had agents that are still alive, two of them testified. One came up here from Tampa, Florida that had all sorts of health problems. We had agents calling from all over the country offering assistance. Those guys did one hell of a job trying to get this case solved.
And it didn't make its way over to Justice Department lawyers. And that came from the top.
COSSACK: All right, let's take a break. When we come back, how decades-old evidence bolstered the prosecution's case. And did history bear down on the jurors in this trial? Don't go away.
(COMMERCIAL BREAK)
COSSACK: Yesterday in Birmingham, Alabama, former Ku Klux Klansman Thomas Blanton Jr. was convicted in the 1963 bombing of the 16th Street Baptist Church more than 37 years after the crime. It took the jury of eight whites and four African-Americans only two-and- a-half hours to return a verdict.
John Malcolm, issue of an old case like this presents unique kinds of problems both to the prosecution and to the defense, doesn't it?
JOHN MALCOLM, CRIMINAL DEFENSE ATTORNEY: Yes, it does. Let me begin by saying, by the way, I'm also former federal prosecutor that has been involved in a bombing case. I know how difficult such cases are to put together. So, I extend my congratulations to Mr. Jones and his team for obviously doing outstanding job.
This was clearly a difficult case, a historical case, both in the sense its impact on history and also in terms of the length of the case. Witnesses have died. Memories fade. I gather there are questions about the admissibility certainly of these tapes.
But I also gather the quality of the tapes was very, very poor. There was no forensic evidence of the bombing itself, no witnesses who came forward who said this gentleman was there at the scene of the crime on the night of the bombing, a difficult case to put together. And obviously the prosecution did a very convincing job in the eyes of the jurors.
VAN SUSTEREN: OK, let's go to John Robbins, who is Thomas Blanton's lawyer. John, what do you think was the most difficult evidence for you to confront on behalf of your client in the courtroom?
ROBBINS: The most difficult piece of evidence was the fact that four girls were killed. That's the most difficult evidence to overcome. The next would be the tape from underneath the sink that the FBI obtained back in 1964.
VAN SUSTEREN: And what -- I know that you have made a public statement that you intend to appeal. I've been defense lawyer myself. And I make those statements, too. But what is your most powerful issue to have this jury verdict reversed?
ROBBINS: Well, we are going to address the admissibility of that tape. That is going to be a big issue. And probably...
VAN SUSTEREN: What was wrong with it, though?
(CROSSTALK)
VAN SUSTEREN: What's wrong with the admissibility of the tape? It's a statement apparently of your client.
ROBBINS: Well, when it was obtained -- and I know Doug. Doug is a friend of mine. And I congratulate him for presenting a fine case and doing a good job for the prosecution. But he and I differ on this point.
At the time they obtained that tape, we say, one, they didn't have the authority to do it and two, that it was not admissible in the court of law...
VAN SUSTEREN: Why?
ROBBINS: ... Well, the policy, FBI policy back then, was to use electronic monitoring simply for intelligence and surveillance purposes only. It's been written about at length that that was the purpose for that, and not to present in a court of law.
VAN SUSTEREN: But if in 1963, John, and I have not looked at the '63 law, so you are way ahead of me on this, if I wrote on a piece of paper "I did it" that would be a statement or admission of a defendant if I were charged with a crime. Isn't this statement on tape that's incriminating equally admissible for the same reason or not?
ROBBINS: Well, the law back in 1963 was that this tape was not admissible. And the law was clear at that time. And this is a four- minute segment of a lengthy conversation. The first 26 minutes of this tape was not recorded. And they pick up in the middle of a conversation. And don't think you can put that four minutes in its proper context without the other 26 minutes.
VAN SUSTEREN: Well, that's a different issue. And that's an important one.
COSSACK: Doug, did the government have a court order for the wire, for the bugs put in the house?
JONES: No, Roger. At that time, there was no procedure. There was no way to get a court order. You couldn't get a search warrant. You couldn't get a court order. It was not until 1968 that the wiretap law came into effect.
But that doesn't mean that the agents didn't have the right to do what they did for national security reasons. You've got to remember what was going on in Birmingham. This was not just a single bomb. This was a series of bombings that occurred over years and years.
(CROSSTALK)
JONES: Go ahead.
VAN SUSTEREN: Doug, is that the justification for the tape? I mean, is that the legal arguments, national security back in 1963?
JONES: No, no. The legal argument is that that's why they were there. They had the right to be there. Then once the law came into effect, and as the Fourth Amendment law has evolved -- and you guys know this as well as anybody -- the exclusionary rule is a deterrent rule. It is designed to deter future illegal conduct, not to punish the people that were doing that.
In this case, all electronic surveillance is now governed by the '68 law. There's absolutely no deterrent effect now. And under any number of decisions in the U.S. Supreme Court, we believe this tape and evidence can now be admissible where once it probably never had been...
(CROSSTALK)
JONES: ... except maybe to get a search warrant.
COSSACK: Doug, let me get the facts straight on this. What you are saying is that the FBI or whoever placed those bugs inside that house surreptitiously broke into that house, planted those bugs, didn't have a court order because apparently there was no court order law in place at that time, but did that based upon a policy decision that for the good of national security they had overhear these people and conversations that were going on?
JONES: First of all, they didn't break into the house. This was done through a common wall. So they didn't break into the house. They drilled a small pinhole in the wall.
Second of all, yeah, there were some national security issues. You've got to remember in Birmingham at that time, the president was federalizing troops. And under policies since Roosevelt in the 1940s, national security -- and even today -- national security issues override.
At that time, there were some domestic issues also that allowed the executive branch of government to place that electronic surveillance for certain limited purposes. I think over time, the law has changed that will now allow us to do it because there's absolutely no deterrent effect otherwise.
VAN SUSTEREN: How extraordinary. There's been so much law, case law on the Fourth Amendment in the past 37-plus years. Interesting to see what the Court of Appeals does.
We are going to take a quick break. Thomas Blanton wasn't the only surviving suspect in the Birmingham church bombing. When we come back, the case against Bobby Frank Cherry. Will it ever be tried?
(COMMERCIAL BREAK)
VAN SUSTEREN: The 1993 reopening of the Birmingham church bombing case was exposed when federal agents interviewed Bobby Frank Cherry in Texas four years ago. Cherry, now 71 years old, stands as the last surviving suspect who has not faced trial in the crime. This month, a judge ruled that he is not mentally competent to assist his attorneys.
Diane, let me go to you. What is the status of Bobby Frank Cherry? Is it expected that he is going to face trial, Diane.
MCWHORTER: Well, if I were a betting person, I would say no. But we'll keep holding Doug's feet to the fire on that. He says he is going to try see it through.
VAN SUSTEREN: All right, let me go to you then, Doug. Doug, what is his condition? Can he assist his lawyers? I mean, can he help with his defense?
JONES: Well, Greta, first of all, the judge hasn't made that ruling yet. The judge appointed a psychiatrist who issued a report and opinion saying that he could not assist in his defense. He suffers from some type of dementia and can't assist in his defense.
We have a right under Alabama law to have him looked at. And we've got our experts now in the process of going through a battery of both mental and physical tests, some of which he had with the other psychiatrists. So once we get that report, then we will look at that and see. And then the judge will have to make a finding if there's a difference of opinion. But until we get our expert's opinion back, the case is just on hold.
COSSACK: John Malcolm...
JONES: We hope to get that pretty soon, though.
COSSACK: I'm sorry. John Malcolm, we were discussing just a little while ago the use of these tapes that were taken by bugs that were planted in the defendant's home, and surreptitiously at least. And you have some comments on those?
MALCOLM: Well, actually, I think there's a lot of appellate issues involved here, certainly with respect to those tapes. If I can just disagree with Mr. Jones for just a minute, it may be true that a deterrent effect was one of the justifications for the exclusionary rule. However, you don't have to prove in a particular case that excluding evidence will have a particular deterrent effect before the evidence gets tossed out.
There is no question that this was an invasion of Mr. Blanton's home. He said so himself. Holes were drilled. And a bug was inserted. This was before 1968 when Title III was enacted by Congress that put in various protections before you can put a bug into somebody's home.
Lots of things have been done in our history by our government in the names of national security that have subsequently been determined to be unconstitutional and the evidence obtained thrown out. So I think that that is a live issue.
There are a lot of other issues involved, venue, testimony that was read from a grand jury transcript in which the defense attorney, Mr. Robbins, wasn't given the opportunity to confront that witness. The makeup of the jury, there were no white men on this jury, whether or not this was an appeal to emotion...
VAN SUSTEREN: Let me talk about that issue of the makeup of the jury. Let me talk to Glenn. Glenn, actually one thing that I thought, I mean, setting aside the legal issue about whether or not that tape was made, whether it was gathered in violation of constitutional rights or whatever policy or statute back then, I actually was quite pleased to see those eight whites and four blacks on the jury panel. It was just sort of a social reason. And I think it is important when we look back on these old racial cases. What do you think about that?
IVEY: Well, it demonstrate that things have changed certainly from the '60s when blacks were excluded from those types of juries. You may still have an issue though under current law about how those exclusions were made, how juries were stricken...
COSSACK: Those are tough arguments to make from defense attorney, though, in jury selection.
IVEY: They're extremely difficult. And especially if it wasn't preserved at the time voir dire took place, it could be very hard to go back and reconstruct who was stricken and why.
COSSACK: Doug, the idea of a venue motion I think on appeal, a venue argument I would think is going to be a difficult one for the prosecution. I'm sure...
VAN SUSTEREN: Actually, it would be difficult for the defense. I mean, it's so old and so long.
(CROSSTALK)
COSSACK: Let me tell you why I think it is going to be tough. I just think this goes to the heart and soul of Birmingham. And I just think there may be some...
VAN SUSTEREN: But it would be different if it was last year, Roger.
COSSACK: ... wait a minute, wait a minute. You know, I think there's going to be some issues here regarding whether or not this trial should be in Birmingham since it goes to the very heart of Birmingham.
JONES: Well, Roger, we sat with those jurors. Every juror filled out a 100-question questionnaire. And we sat with them individually for an average of probably 15 to 20 minutes apiece getting additional information. Both sides had every opportunity to talk to the jurors about their feelings about the case, about Birmingham. I don't think that's going to be an issue once (INAUDIBLE)...
VAN SUSTEREN: And plus you've got the problem that this crime is so old that people's passions have subsided to some degree.
JONES: Sure.
VAN SUSTEREN: ... which inures to the benefit of the prosecution on that particular issue, whether it is right or not. They get...
COSSACK: Well, you got the last word. That's all the time we have today. Thanks to our guests, and thank you for watching.
VAN SUSTEREN: Join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.
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