Edgar Ray Killen v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-KA-01393-SCT
EDGAR RAY KILLEN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 06/23/2005
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: PERCY STANFIELD, JR.
GLEN W. HALL
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JIM HOOD
JOHN R. HENRY
DISTRICT ATTORNEY: MARK SHELDON DUNCAN
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 04/12/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE COBB, P.J., DICKINSON AND RANDOLPH, JJ.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. During the night of June 21, 1964, several members of the Neshoba County and
Lauderdale County chapters of the White Knights of the Ku Klux Klan (the “Klan”)
kidnaped and killed Michael Schwerner, James Chaney, and Andrew Goodman, and buried
their bodies in an earthen dam in rural Neshoba County, Mississippi. Although the State of
Mississippi prosecuted no one during that period of time for the deaths, the federal
government brought charges against Edgar Ray Killen (“Killen”) and seventeen others for
conspiracy to violate the civil rights of Schwerner, Chaney, and Goodman. At the conclusion
of the trial in October, 1967, a federal jury found seven of the defendants guilty and eight not
guilty, but it was unable to agree on a verdict as to Killen and two others.1 The federal
government did not retry Killen, and he remained free for thirty-eight years.
¶2. In January, 2005, the Grand Jury of Neshoba County indicted Killen for the deaths,
and on June 21, 2005 – exactly forty-one years from the date of the deaths – a Neshoba
County jury found him guilty of three counts of manslaughter. Killen was sentenced to serve
twenty years for each count, with the three sentences to run consecutively, for a total
sentence of sixty years. Killen appeals. We affirm.
I.
¶3. Killen was indicted and prosecuted forty years following the deaths. We therefore
think it is important to set forth in detail the facts received into evidence at the trial. Bearing
in mind that our authority to interfere with a jury’s verdict is limited, we must view the
evidence in the light most consistent with the verdict, and we must give the prosecution “the
benefit of all favorable inferences that may reasonably be drawn from the evidence.” Wilson
v. State, 904 So. 2d 987, 985 (Miss. 2004) (citing McFee v. State, 511 So. 2d 130, 133 (Miss.
1987)). Consistent with this standard of review, we shall set forth the facts received into
evidence 2 in the light most consistent with the jury verdict, and shall include facts
1
Although the federal jury’s verdict was not provided to us in the record, it is a historic fact
beyond debate, has no bearing on the outcome of this case, and is included herein to provide historic
context. See Posey v. United States, 416 F.2d 545, 548 (5th Cir. 1969).
2
The evidentiary record consists of sixteen exhibits and the testimony of twenty witnesses,
fourteen of whom testified live and six of whom testified through transcripts of their testimony in
the 1967 federal prosecution.
2
inconsistent with the verdict only to the extent necessary to analyze Killen’s assignments of
error.
The civil rights struggle in Mississippi
¶4. During the years leading up to 1964, racial discrimination in Mississippi was rampant
and largely unchecked. It was practiced at all levels of state government, and by many
citizens, in varying degrees. Most were non-violent, with some silently supporting
segregation in the public schools, while others actively and publicly worked through state
and local government to keep the races separated in Mississippi’s public schools and public
accommodations. The White Knights of the Ku Klux Klan, however, was a violent and
radical organization, whose members passionately believed that the white race was superior
to other races; that integration of the races violated the laws of God and nature; and that
educational and social mingling of the races was to be prevented at all costs.
¶5. The Klan was highly structured, with numerous levels of state and local officers who
bore curious titles such as “Imperial Wizard,” “Kleagle,” and “Province Titan.” It was also
a secret organization whose applicants for membership were required to swear an oath of
loyalty, and whose members often donned white robes and placed hoods over their heads
with eye holes cut out so they could see while concealing their identity.
¶6. Although the Klan professed lofty principles such as good government, love for
America, and allegiance to God, it practiced hatred and violence, and enforced its will
through decisions made in secret meetings. The Klan’s official policy, which was openly
discussed at Klan meetings, was to use whatever force necessary – including harassment,
3
intimidation, physical abuse, and even murder – to maintain racial and social segregation in
Mississippi.
¶7. In 1870, the Fifteenth Amendment to the U.S. Constitution established that the right
of male citizens to vote could not be denied “on account of race, color, or previous condition
of servitude,” and in 1920, the Nineteenth Amendment extended the same right to women.
In 1954, the United States Supreme Court held that African-American children could not be
turned away from white schools because of their race.3 Nevertheless, in the years leading up
to the 1964 murders, Mississippi public schools remained essentially segregated. Few
African-Americans registered to vote, resulting in all-white juries 4 and the complete
domination by whites of state and local government, including law enforcement. As a result,
the Klan experienced virtually no serious opposition. Indeed, the Klan included among its
members and sympathizers several law enforcement officers who provided both protection
against prosecution and the appearance that Klan activities – to some extent – were
conducted under color of state law.5
¶8. In the early 1960s, racial tensions were high in Mississippi. In 1962, James Meredith
became the first African-American to register for and attend classes at the University of
Mississippi. The FBI actively investigated numerous civil rights cases in Mississippi,
3
See Brown v. Bd. of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).
4
Only citizens who are either qualified electors or resident freeholder may serve on juries in
Mississippi. Miss. Code Ann. §13-5-1 (Rev. 2002).
5
According to the testimony of Delmar Dennis (a witness identified and discussed later in
this opinion), Killen stated at a Klan meeting that “any project that was carried out by the Klan had
to be approved by the Klan, that no person was to do anything on their own, and if they did, they
would not receive any protection or any money or help whatsoever from the Klan.”
4
including church burnings in several cities. Many white citizens, however, were unwilling
to assist the FBI with civil rights investigations. Special Agent Dean Lytle, who testified at
the 2005 trial, described some of the people in Neshoba County in 1964 as “hostile to the
federal agents,” adding, “they were unhappy we were here . . . .”
¶9. A movement to end the discrimination also emerged during those years. This
movement became known as the civil rights movement and, despite the threat of harassment
and harm to themselves, many persons – black and white – traveled to Mississippi from
around the country to help organize and encourage African-Americans and assist them in
registering to vote. These persons – known as civil rights workers – were viewed and labeled
by many white Mississippians, including the Klan, as “outsiders” and “troublemakers” who
had no business in Mississippi. Some even felt that, should any of the civil rights workers
fall victim to the Klan’s violence, they had brought it upon themselves.
¶10. It is against this history that Michael Schwerner, James Chaney and Andrew Goodman
found themselves working together in the civil rights movement in Meridian, Mississippi,
in 1964.
Schwerner and Chaney in early 1964
¶11. In January of 1964, Schwerner, who was twenty-four years old, and his twenty-two
year old wife, Rita, traveled from their home in New York to Mississippi to work in the civil
rights movement. When the Schwerners, who were white, arrived in Meridian, they
befriended Chaney, a young African-American, and together they set out to establish a
community center to provide African-American teens a safe place to meet and visit, and also
to provide African-American children access to books. The public library facilities were
5
segregated and, according to Rita, “the idea was to have a library with books that weren’t
available in the black library at the time . . . to help children with reading.” The Schwerners
solicited and received thousands of books for the library, while Chaney built bookshelves and
established reading hours for the children.
¶12. While in Meridian, the Schwerners lived in a variety of places. They would move in
as guests of an African-American family, but then be forced to leave when the family
received threats. After this process repeated several times, the Schwerners moved into an
upstairs apartment which had no running water. Each day, they went to Young’s Hotel to
shower, but were forced to sneak in the back door because the hotel was owned by an
African-American named Young 6 and, according to Rita, they were afraid of what would
happen to Young if word got out that he was “allowing whites to use the facilities.” In
March, a man named George Raymond from Canton, Mississippi, provided the Schwerners
a 1963 blue Ford station wagon, bearing license plate number H-25503.
¶13. The Schwerners were increasingly subjected to threats. Rita received calls telling her
she better “watch out” or her husband would be killed. Sometimes the caller would tell her
that her husband had already been killed. Despite the threats, the Schwerners continued their
work. Rita primarily worked in the community center in Meridian, while her husband and
Chaney worked in various places outside Meridian, including Neshoba County.
6
The record identifies this individual only as “Mr. Young.”
6
The Meridian Klan
¶14. Killen, who was the Kleagle7 for both the Neshoba and Lauderdale County Klaverns,
began to recruit new members for the Lauderdale Klavern. One of his recruits was a
Methodist pastor in Meridian named Delmar Dennis.8 In March, Dennis attended his first
Klan meeting. In later describing the meeting, Dennis testified that Killen assured him the
Klan was a fine, Christian organization, which stood for the American Constitution. Dennis
also testified that Killen said the Klan “was for the purpose of segregation and preservation
of the white race.” Dennis testified that, upon his agreement to join the Klan, Killen
administered the Klan oath, and then told him the Klan “was an organization of action, no
Boy Scout group, that we were here to do business.” Killen further explained that “there
would be things the Klan would need to do, and among those would be the burning [of]
crosses, people would need to be beaten, and occasionally there would have to be
elimination,” which Dennis testified meant killing a person.
¶15. Killen also recruited Carlton Miller, a Meridian police officer, who testified that
Killen asked him if he was interested in joining a “strong organization” to “help keep the
colored people from integrating [the] schools.” Miller told Killen he was “definitely
interested.” Killen returned to the police station that night when Miller got off work, and
they went to Miller’s home to discuss what Killen referred to as the “organization.” Miller
asked if Killen was referring to the Klan. Miller testified that Killen said he was referring
7
The “Kleagle” was the organizer, or recruiter, for the Klan.
8
Dennis was to later serve as First Chaplain of the local Klavern, and then as its Province
Titan, which was the administrative officer who represented the Imperial Wizard.
7
to the Klan, and that the Klan “was a very patriotic, political organization, and it was a
Christian organization, and in order [sic] that better men and better businessmen and better
citizens, officers, doctors, lawyers, and peace officers belonged to it.” Killen asked Miller
if he was still interested in joining, and Miller said he was. Killen then “read some papers”
to him, asked him some questions, and administered the Klan oath, and Miller became a
Klansman.
¶16. The following weekend, Killen and Miller went to the Longhorn Drive-In restaurant
(the “Longhorn”) in Meridian, to recruit its owner, Frank Herndon,9 and James Jordan, to join
the Klan. After Herndon and Jordan agreed to join, the four men went to a place Miller
testified was called “the mountain,” where Killen administered the Klan oath.
¶17. Miller later recruited Meridian police officer Joseph M. Hatcher, who described his
first Klan meeting at an old army barracks at the Meridian airport, as follows:
Sat there, and after a while, here comes somebody,[10 ] and I thought, oh, my
God. He had on this hood and all of that. Of course, I had heard about the
Klan back in the old days wearing sheets and this and that and the other, and
I done forgot what all was said. You know, told some things about white
supremacy and stuff like that, and being a good citizen, and what we was
fixing to get into, and I don’t remember who took over.
¶18. Miller said he attended several other Klan meetings at the airport in Meridian. Other
Klan members were present, including “Mr. Barnette” who Miller identified as the ex-sheriff
and sheriff-elect of Neshoba County. At one of those meetings, Miller testified that Killen
explained the Klan’s methods of “controlling Negro citizens in the State of Mississippi.”
9
Herndon was found not guilty in the 1967 federal trial.
10
Hatcher later identified the “somebody” as Killen.
8
Killen said pressure was to be applied at various levels, starting with threatening telephone
calls and other threats “on their jobs and things of that nature.” If the Klan didn’t get the
desired response, they resorted to the next level, which was physical pressure, such as
whippings and beatings. This level of pressure required a vote by the lodge. Killen told
Miller that, if the threats, pressure, whippings, and beatings didn’t work, the Klan would
implement the third level, which was “elimination.” When asked what elimination meant in
the Klan, Miller testified, “Murder.” Any request for an elimination was presented to the
lodge for approval and, if approved, was turned over to the Kleagle who, at that time, was
Killen. The Kleagle would then seek approval for the proposed elimination from the
Imperial Wizard,11 who Miller said was Sam Holloway Bowers.12
¶19. Members of the Klan in Lauderdale and Neshoba Counties often worked together.
On one occasion, Miller testified that he and Killen met at the Longhorn with Neshoba
County Sheriff Lawrence Rainey,13 and Neshoba County Deputy Sheriff Cecil Price,14 to
discuss how to “keep some Negroes from playing baseball in Philadelphia.”
The Klan targets Schwerner
¶20. Schwerner, who was referred to by the Klan as “Goatee,” became the subject of
discussions at Klan meetings. Dennis testified that, at an early April Klan meeting, someone
suggested the elimination of “Goatee,” and Killen responded that they were “not yet
11
The Imperial Wizard was the statewide leader of the Klan.
12
Bowers was found guilty in the 1967 federal trial.
13
Rainey was found not guilty in the 1967 federal trial.
14
Price was found guilty in the 1967 federal trial.
9
organized as a Klavern and it would not be necessary for a local Klavern to approve that
project . . . .” Killen further stated “that [the elimination] had already been approved by the
state officers of the Klan and had been made a part of their program, and it would be taken
care of.”
¶21. Later, Killen and Herndon were in charge of another Klan meeting in Meridian where
several members discussed whipping Schwerner. Miller testified that Killen “told us to leave
him alone, that another unit was going to take care of him, that his elimination had been
approved” by the Imperial Wizard.
The burning of the Mt. Zion Church
¶22. Around Memorial Day of 1964, Schwerner and Chaney met with the members of
Mount Zion Church in Neshoba County to seek permission to use the church facilities that
summer for a school similar to the community center in Meridian. They also wanted to use
the church facilities for training persons to help African-Americans register to vote.
¶23. A few weeks later, in mid-June, the Schwerners traveled to Oxford, Ohio, to attend
a training session for workers and volunteers in the civil rights movement. It was there that
the Schwerners met Goodman, who was a volunteer worker. Goodman would later decide
to join the Schwerners and Chaney in their work in Mississippi.
¶24. At approximately eight o’clock p.m. on June 16, Killen and several other members
from Meridian attended a Klan meeting in an abandoned gym in Neshoba County.
Approximately seventy-five Klansmen were present. Dennis testified that, after the meeting
was called to order, Klansman Hop Barnett15 interrupted to say that, on his way to the
15
The jury in the 1967 federal trial was unable to reach a verdict as to Barnett.
10
meeting, “he had passed Mt. Zion Church, and there was a meeting being held, [which] must
be an important meeting, because the Church was heavily guarded.” Barnett said “he wanted
to present what he had found to the group and see what they wanted to do about it.” Dennis
testified that, when Killen asked if the group thought that anything should be done about it,
“[s]omeone suggested that there were probably some civil rights workers in the church, or
it would not have been heavily guarded, and it was agreed that something would be done.”
Killen asked for volunteers to go to the church. Several men volunteered and left. When the
men returned about an hour later, Klansman Billy Birdsong from Meridian reported to the
group that the Meridian Klansmen had guarded one of the Church’s exits while the Neshoba
County Klansmen guarded the other. Birdsong angrily reported that all of the persons who
came out of the exit guarded by the Meridian Klansmen were beaten, while those who came
out the exit guarded by the Neshoba County Klansmen were not. Dennis said Birdsong
“stated very heatedly that he disapproved of this, that he didn’t like it at all. He thought that
they should have been beaten.” That night, the Mt. Zion Church was burned.
¶25. Two days later, on June 18, the Schwerners, Chaney, and Goodman received word in
Ohio of what had happened at the Mt. Zion Church. They decided that Rita would remain
in Ohio, and Schwerner, Chaney and Goodman would travel back to Mississippi to meet with
the church members. On Saturday, June 20, Schwerner got up early, dressed, kissed Rita
goodby, and left with Chaney and Goodman in the blue station wagon for Mississippi. This
was the last time Rita would see her husband alive.
¶26. That evening, Schwerner called to tell Rita that they had arrived in Meridian and were
planning to go to Philadelphia, in Neshoba County the next day. Goodman – either unaware
11
of the pending danger, or in an attempt to allay his parents’ fears – sent a postcard home
which stated,
Dear Mom and Dad,
I have arrived safely in Meridian, Mississippi. This is a wonderful town
and the weather is fine. I wish you were here. The people in this city are
wonderful and our reception was very good.
All my love,
Andy
The murders – June 21, 1964
¶27. In the early afternoon on the day of the killings, Mississippi Highway Patrolman Earl
Robert Poe went on duty in Neshoba County. At approximately three o’clock, he parked his
patrol car under a tree about four miles east of Philadelphia on Highway 16. Deputy Sheriff
Price, who was traveling east on Highway 16 in a blue, 1957 Chevrolet, passed Poe’s
vehicle. About fifteen minutes later, Price called Poe on the radio and said “he had a good
one or [was] chasing a good one.” Poe later learned that Price was chasing civil rights
worker George Raymond. Poe (who was still parked under the same tree) later observed
Price traveling west on Highway 16 behind a blue station wagon. Four or five minutes later,
Price radioed Poe and requested assistance in arresting the occupants of the station wagon.
Poe proceeded east on Highway 16, and met Price and the station wagon at the intersection
of Beacon and Main Streets in Philadelphia. Schwerner, Chaney and Goodman were
changing a flat tire on the station wagon. Price told Poe he had arrested Chaney for speeding
and requested assistance in transporting the three to jail. Poe’s partner, patrolman Wiggs,
took Chaney in the station wagon and Poe took Schwerner and Goodman. Price took charge
12
of the three men at the jail and had them locked up between three-thirty and four o’clock.
Poe testified that he did not learn until later at the Philadelphia police station that the three
men they had just arrested were the three civil rights workers – Schwerner, Chaney and
Goodman. Poe said Price asked him to check the tag number of the station wagon and get
a registration. Poe ran the license plate number, which was H-25503, and learned the station
wagon belonged to the Congress of Racial Equality.
¶28. Minnie Lee Herring and her husband operated the Neshoba County Jail, where they
also lived. She remembered that Price brought Schwerner, Chaney, and Goodman to the jail
at around four o’clock.
¶29. Killen received word on June 21, 1964, that Schwerner, Chaney and Goodman had
been arrested. Killen went to Meridian and met with Herndon at the Longhorn where they
made several calls on the pay phone. Killen told Miller that they then “got some boys
together and went to Philadelphia.”
¶30. At around six o’clock, James Jordan went to the Longhorn to pick up his wife, who
was working there at the time. When he arrived, several Klan members were there including
Herndon, who had administered the Klan oath to Jordan. Later, Killen arrived at the
Longhorn and went in to talk with Herndon. Jordan testified that, when Killen came out
from his meeting, he said “he had a job he needed some help on over in Neshoba County, and
he needed some men to go with him.” Killen also informed them that “three of those civil
rights workers were locked up, and they needed their rear-ends tore up.” Killen identified
one of the civil rights workers as “Goatee,” who Jordan testified he knew to be Schwerner.
13
Some of the men began using the phone at the Longhorn to recruit help, and while others
went down the street to Akin Mobile Homes to use the phone there.
¶31. As the men were preparing to leave for Neshoba County, Killen instructed Jordan to
get some of the men they had not been able to reach by telephone. Jordan was able to recruit
Wayne Roberts,16 and they left to join the men who had gathered at Akin’s Mobile Homes.
Jordan testified that, when they arrived, “Mr. Akin 17 was there, Pete Harris, myself, Wayne
at that time. Then he said there would be some more boys on their way, [and] they arrived
in just a few minutes.” They were joined by Travis and Doyle Barnette, Jimmy Snowden,
and Jimmy Arledge.” 18 Jordan testified that Killen, who was also there, said to the men that
“they had three of the civil rights workers locked up, and we had to hurry and get over there,
and we were to pick them up and tear their butts up.” Killen also said that “a Highway Patrol
car would stop [the three civil rights workers] on the outskirts of town.”
¶32. Killen then sent Jordan, Sharp and Wayne Roberts to get some gloves. They returned
with the gloves and gassed up their cars. Then, according to Jordan’s testimony, Killen “said
he would go ahead, as he had to get on back there as fast as he could and make the
arrangements, there were several cars coming in, and these guys couldn’t be held much
longer.” Killen then left with Sharpe and Wayne Roberts. Jordan testified he “left with
Doyle and Travis, Jimmy Arledge, and Jimmy Snowden,” and headed for the “far side of the
16
According to Jordan’s testimony, Roberts was the triggerman who killed Schwerner,
Chaney and Goodman. Roberts was found guilty in the 1967 federal trial.
17
Bernard L. Akin was found not guilty in the 1967 federal trial.
18
Horace Doyle Barnette, Snowden, and Arledge were three of the seven defendants found
guilty in the 1967 federal trial. Travis Barnette was found not guilty.
14
courthouse” in Philadelphia, where Killen had told them to park and wait for further
instructions.” When they arrived, Barnette “was standing out there beside his pickup truck.”
Barnette said he had to leave, but they were to wait for further instructions. Jordan testified
that, after Barnette left, Killen “came from around the corner, told us that he would take us
by and show us the jail, and then we would be told where to wait until [Schwerner, Chaney
and Goodman] were released.” Killen then took them by to show them the jail, and had them
drive to a spot behind an old warehouse where he told them they were to wait. After he
showed them the place they were to wait, Killen then instructed the men to take him to a
funeral home in Philadelphia. According to Jordan, Killen explained to the men that he
needed to be seen at the funeral home “because if anything happened, he would be the first
one questioned.” After delivering Killen to the funeral home, Jordan and the other men
returned to the spot behind the warehouse to wait.
¶33. Mrs. Herring testified that the following events took place at approximately ten-thirty
that night:
Well, Price came into the jail and up in the hall to our quarters at ten-thirty and
said, “Mr. Herring, Chaney wants to pay off,” and he said, “We’ll let him pay
off, and we’ll release them all.” Well, my husband opened the door, and he
walked around. The white boys were in the front cell, and the colored boy was
on the back, so he walked around the bars and asked the colored boy if he
wanted to pay off, and Chaney asked him how much it was, and he told him
it would be twenty dollars. Well, he didn’t have the twenty dollars on him, so
he borrowed it from Schwerner and paid the fine, and, so, my husband wrote
the receipt, and Cecil went back and unlocked the combination and let them
out and walked on out in the little hall. He had their belongings in a little box,
and I had their driver’s license, so each one of them reached in and got their
billfolds and put their driver’s license in their billfolds, and my husband gave
them the receipt, and Price told them, “See how quick you all can get out of
Neshoba County,” and they thanked him and went on out.
15
¶34. The men waiting behind the warehouse learned that Schwerner, Chaney and Goodman
had been released from jail when, according to Jordan’s testimony, “a city police car [sic]
came up and said, ‘they’re going on Highway 19 toward Meridian. Follow them.’” The men
drove out Highway 19 toward Meridian behind a red Chevrolet driven by Billy Wayne
Posey.19
¶35. When they reached the outskirts of Philadelphia, Posey pulled over beside a Highway
Patrol car, and the car in which Jordan was riding pulled up behind. Jordan testified that
Posey got out and talked with the driver of the Highway Patrol car, and then “he walked back
to our car and said, ‘Never mind. They will be stopped by the Deputy Sheriff. These men
are not going to stop them.’” About that time, Deputy Price came by, said something to
Posey (which Jordan couldn’t hear), and then drove off. Deputy Price was followed by
Posey, and the car Jordan was in “took off to follow them.” When Posey’s car broke down,
he got in the car with Jordan, and they proceeded at a high rate of speed to catch up with
Deputy Price. When they caught up with him, he had “a little wagon” pulled over to the side
of the road. Jordan testified that Price “got out and went up and told the three men that were
in the car to get out.” Price ordered the three men into the back seat of his patrol car, and
they drove back toward Philadelphia.
¶36. They turned left onto a graded clay road. Jordan testified that he got out of the car “to
watch and see if anything was happening. The other cars proceeded on up this road.” Jordan
then testified, “Well, I heard a car door slamming, and some loud talking. I couldn’t
understand or distinguish anyone’s voice or anything, and then I heard several shots.” Jordan
19
Posey was found guilty in the 1967 federal trial.
16
walked up the road and saw Schwerner, Chaney and Goodman lying dead beside the road.20
The men put the three bodies into the back of the station wagon and drove to the site of a
dam construction where the men waited for a bulldozer operator named “Herman” to arrive.
When Herman arrived, he cranked up the bulldozer and buried Schwerner, Chaney and
Goodman in the dam.
¶37. The men then drove back to Philadelphia to a warehouse. Everyone gave Jordan their
gloves and told him to get rid of them. They then went to a parking lot in Philadelphia where
they met up with Deputy Price and some other men. Posey got out and went over to talk, and
then returned and told the men in the car to go home, “that everything would be taken care
of.”
¶38. About midnight, Rita (who was still in Oxford, Ohio) was awakened by a knock at her
door. She was asked to go to the office, where she was told that her husband, Chaney and
Schwerner had not returned to Meridian from their trip to Philadelphia.
June 22, 1964 – Killen admits his participation
¶39. The next day, Hatcher was at City Court in Meridian, when he got word to go to an
automotive repair shop where he worked part time because someone wanted to see him.
When he arrived, he was told that Killen was outside and wanted to see him. Killen asked
him to deliver a gun to someone, and Hatcher agreed. Then, Hatcher testified that Killen said
“we got rid of those Civil Rights workers, and you won’t have no more trouble out of
Goatee.” Hatcher then testified that Killen said that
20
Jordan testified that the men present at that time were “Travis and Doyle Barnette, the
deputy Sheriff and myself, and Jimmy Snowden, and Jimmy Arledge, and Wayne Roberts . . . and
Sharpe.” The jury in the 1967 federal trial was unable to reach a verdict as to Jerry McGrew Sharpe.
17
they was stopped on Highway 19, and they had some trouble. One of the
people who was supposed to be in on it, car broke down, and two Highway
Patrol was supposed to be involved in it. I don’t remember what their names
was. But they backed out, and they ended up shooting them and killing them
and buried them in the middle of a pond dam out here off of Highway 21
where a pond dam was being built. They were buried in a shallow grave, and
that the bulldozer operator, who I believe he told me was a Tucker,[ 21 ] got
there the next morning to cover them up, and then two workers showed up
early and found some blood there or something, and they had to get out there
and get them other two people swore in and sworn to secrecy and threatened,
so they wouldn’t tell, and they covered them up under that pond dam. He told
me the car was supposed to have been covered up too, but the trouble they had
or something with it, and he was worried about them finding it, and he told me
that he was at the funeral home, signed the book, made sure he talked to people
in front and rear of him, and that was his alibi, and I told him, well, good.
¶40. When asked what he did as a result of receiving this information, given that he was
a Meridian police officer, Hatcher testified, “Well, I thought about it, wasn’t really worried
about it, and then later on, I took the firing pin out of the gun.” Hatcher later heard that
various people were giving information to the FBI. He testified:
I was told by the Police Department it’s time for you to go tell what you know,
cooperate with the FBI before you get in an embarrassing situation and you
lose your job, which I didn’t want to do. So, then I went and started telling the
FBI, and I believe this was after the bodies had been found before I did that,
talked to the FBI.
Hatcher testified he neither asked for, nor received, any pay for his cooperation with the FBI.
¶41. Miller testified that, sometime in June after the deaths of the civil rights workers,
Killen came to his home and said that “they had been shot, that they were dead, and that they
were buried in a dam about fifteen feet deep, and [Killen] told me that Deputy Price told the
FBI the truth about what time [Deputy Price] turned them out.” Miller also testified that, in
21
Herman Tucker was found not guilty in the 1967 federal trial.
18
that same meeting, Killen told him that “they burned the [Mount Zion] Church to get the
Civil Rights workers up there, referring to Schwerner.”
The investigation
¶42. Because of the difficulty in obtaining information from the public and the lack of
cooperation from local law enforcement, the FBI hired numerous informants in Mississippi,
some of whom were in the Klan. One of the informants provided information about the
location of the Schwerners’ station wagon. On June 23, John Proctor, who was the resident
agent in Meridian, met Special Agent Dean Lytel 22 and several other Special Agents in
Philadelphia. Proctor took the agents out Highway 21 to a place called Bogue Chitto Creek,
in Neshoba County, where they found the badly burned blue Ford station wagon hidden
about seventy-five to a hundred feet off the road. The agents searched the area, but were
unable to locate any clues. When they returned to Philadelphia, they met in the Neshoba
County Courthouse with Sheriff Rainey and a Captain from the State Police. When the
agents left the meeting at approximately ten o’clock that night, a crowd had gathered.
Special Agent Lytel described the scene as follows:
We went out the front door of the Courthouse, and the square was filled with
people. The people were shoulder to shoulder on two sides of the Courthouse,
and the crowd was a very hostile crowd, with catcalls and boos, and Inspector
Sullivan at that time told us that we should all get in our cars and stay close
together, and we would leave town as a caravan, because he was concerned
about the safety of the agents.
22
Special Agent Lytle worked out of the New Orleans office of the FBI, but during 1963 and
1964, he was assigned to numerous cases in Mississippi investigating civil rights cases, including
church burnings.
19
¶43. On July 31, FBI Special Agent Jay Cochran, Jr., was informed that the FBI had
received information that “the three civil rights workers were buried in an earthen dam under
twelve to fourteen feet of earth on a farm known as the Old Jolly Farm in Neshoba County.”
The Old Jolly Farm was located southwest of Philadelphia off Highway 21. The FBI had
very specific information about where the bodies were buried. They hired a construction
crew to dig where they had been told the bodies were buried, and at approximately three
o’clock that afternoon, they uncovered Schwerner’s body. Over the course of the next few
hours, the bodies of Goodman and Chaney were also uncovered. The parties stipulated that
Schwerner died as a result of a gunshot wound to the chest; Chaney died as a result of a
gunshot to the head; and Goodman died as a result of a gunshot wound to the chest.
Killen’s second admission of his participation
¶44. During 1967, Odell Rush regularly took his grandson, Mike Winstead, to church at
the Pine Grove Baptist Church, where Rush was a Sunday School teacher. The church was
located in the House community, on Highway 19, between Philadelphia and Meridian.
Winstead knew who Killen was “just from living around the community” and because “his
brother was married to one of [Winstead’s] cousins.” One Sunday morning after Sunday
School ended and Church was beginning, people in the congregation turned around to watch
Killen come in the Church and sit on the back pew. Even though Winstead was only ten
years old at the time, he testified 23 his memory of the events that day was vivid. Winstead
stated:
23
Winstead was called by the State to testify live at Killen’s 2006 trial.
20
to me it was just like somebody would say Matt Dillon just walked in, because,
you know, I had heard the name around. I had heard the adults talking around
all this that had went on. You know, I was a kid, curious about, you know, this
name, this person. People said that Edgar Ray just came in, and people were
turning around looking, and I looked to the back and seen him sitting on the
back pew.
¶45. Later that afternoon, Killen went to Rush’s house. They were sitting on the front
porch talking, and Winstead overheard part of the conversation. When asked what he heard,
Winstead testified:
The only thing I remember about the conversation that struck my mind, that
stayed in it, I don’t know if I just wasn’t paying attention [to] the conversation
at the time, my grandfather asked Edgar Ray if he had anything to do with
those boys being killed, and he told my grandfather, yes, and he was proud of
it.
¶46. In October, 2004, while serving a prison term 24 in Jefferson County, Winstead came
forward with the information about Killen’s conversation with his grandfather. Winstead
testified he neither asked for, nor received, anything for his testimony.
¶47. On January 4, 2005, a Neshoba County Grand Jury returned a three-count indictment
charging Killen with the three murders. Killen’s trial began on June 13, and on June 21,
2005, the Neshoba County jury found him guilty on three counts of manslaughter. On June
23, Circuit Judge Marcus Gordon sentenced Killen to serve twenty years for each count, with
the three sentences to run consecutively, for a total sentence of sixty years.
¶48. Following the trial, Killen filed post-trial motions which were denied on June 27. He
now appeals, claiming that the pre-indictment delay in bringing him to trial denied him due
24
The crime which led to Winstead’s imprisonment was unrelated to Killen.
21
process of law and that the circuit court committed reversible error by allowing the jury to
consider manslaughter as a lesser-included offense of the murders for which he was indicted.
II.
¶49. Killen’s first assignment of error is that the trial court erred in granting the State’s
request for jury instructions on manslaughter. The State offered three instructions related to
a lesser-included offense of manslaughter, and Killen’s counsel objected to all three. The
first of these three was Jury Instruction S-6, which stated:
If the State has failed to prove all of the essential elements of the crime of
Murder, you may consider the lesser charge of Manslaughter. However, it is
your duty to accept the law given to you by the Court; and if the facts and the
law warrant a conviction of the crime of Murder, then it is your duty to make
such finding uninfluenced by your power to find a lesser offense. This
provision is not designed to relieve you from the performance of an unpleasant
duty. It is included to prevent failure of justice if the evidence fails to prove
the original charge but does justify a verdict for the crime of manslaughter.
Killen’s counsel objected to this instruction, stating:
Now, they are charging in here that he committed the act of kidnaping. I am
going to object to this one right now because the proof does not show that he
was doing anything else, either guilty of murder or not guilty of murder, and
they charge in another instruction here, saying he would be guilty of
kidnaping. Now kidnaping, under Section 97-3-51, that’s removal of a child
aged fourteen by a non-custodial parent. I couldn’t find anything else on
kidnaping.
Secondly, there’s a statute of limitations on kidnaping. There’s a two
year statute of limitations on it, and I’m going to cite the Code section if I may,
Your Honor. That’s Section 99-1-5. Now, 99-1-5 states the limitations on
prosecution, and it names several of them in there, and includes murder and
manslaughter and arson and a lot more other crimes there’s a time limitation.
All others are two years, and they never name kidnaping in that statute, Judge.
So, the statute of limitations is two years on kidnaping.
In other words, they are going to have to show there is a kidnaping and
that when he kidnaped him, he accidentally killed him, killed these three Civil
Rights workers, but they can’t get kidnaping in because the statute of
limitations has run on it, and, number two - -
22
* * *
Secondly [sic], Your Honor, there is no definition of manslaughter in
the Code.
* * *
We feel like the jury may compromise. Get up there and say, well, he’s
not guilty of murder and then they come together and compromise. We feel
like our defense is stronger than the prosecution.
¶50. After hearing these objections to Jury Instruction S-6, the trial judge stated: “All right.
S-6 is given. What do you say to S-7? Jury Instruction S-7 stated:
Every killing of a human being without authority of law is either
murder or manslaughter. It is murder when done with a deliberate design to
cause the death of the person killed, and it is manslaughter when the killing is
done in the heat of passion, without malice and without any premeditation.
Killen’s counsel responded to this instruction by stating:
Well, manslaughter is done with killing in the heat of passion. There’s
been no testimony whatsoever that he was even there and put him there at the
scene. He could not have killed anybody in the heat of passion, because
you’ve got to be there to do it.
¶51. The trial judge stated he would give S-7, and then asked about S-8, which read:
If the State has failed to prove all of the essential elements of the crime
of Murder, you may consider the lesser charge of Manslaughter. The Court
instructs the jury that as to Count One of the indictment, if you find from all
the evidence in this case beyond a reasonable doubt that:
1. the deceased, Michael Schwerner, was a living person;
2. Edgar Ray Killen on or about June 21, 1964, in Neshoba County,
Mississippi, did willfully, unlawfully, feloniously and without malice
kill Michael Schwerner while the defendant was engaged in the
commission of, or the attempt to commit, the felony crime of
kidnaping; and
3. the killing was without authority of law and not in necessary self
defense.
23
Then you shall find the defendant guilty of manslaughter in Count One.
After addressing counts two and three similarly, the instruction went on to state:
Now for you to find that the defendant was engaged in or attempting to
commit the offense of kidnaping, you must find from all the evidence in this
case beyond a reasonable doubt that the defendant:
1. in Neshoba County, Mississippi, on or about June 21, 1964, did
willfully and without lawful authority, forcibly seize and confine the
said Michael Schwerner, James Chaney and Andrew Goodman against
their will; and
2. did then and there unlawfully remove the said Michael Schwerner,
James Chaney and Andrew Goodman from a place where they had a
lawful right to be, to another place, with the intent to cause such
persons to be secretly confined against their will, or to be deprived of
their liberty.
¶52. Killen’s counsel objected to this instruction by stating, “That’s the kidnaping statute
on manslaughter. My same arguments.” The trial judge then stated, “It’s given.”
¶53. No other instructions related to manslaughter were given. After the trial court
instructed the jury and counsel made their closing arguments, the jury retired, deliberated,
and returned a verdict of “guilty” on all three counts of manslaughter.
Lesser-included offense argument.
¶54. On appeal, Killen first raises an argument not raised to the trial court prior to
submission of the instructions to the jury. Killen says that “any lesser offense not ‘included’
in the greater, charged offense, is not one which was ‘presented’ by a grand jury, and hence
may not be the subject of a conviction, or consequently, of a jury instruction as to the
conviction in the case subjudice.”
24
¶55. The State responds that Killen is procedurally barred from arguing on appeal that
manslaughter is not a lesser-included offense of murder. The State supports its argument by
pointing out that Killen made two specific objections to the giving of the manslaughter
instruction, and that he is limited here to the grounds he asserted to the trial court. Upon
review of the record, however, we find that Killen’s counsel actually made three objections 25
to the manslaughter instructions: (i) that kidnaping required “removal of a child aged
fourteen by a non-custodial parent,” (ii) that the statute of limitations on kidnaping had run,
and (iii) that no kidnaping occurred.
¶56. This Court has strictly enforced the rule that, in order to preserve a jury instruction
issue for appellate purposes, a defendant must make specific, on-the-record objections to
proposed instructions. In Morgan v. State, 741 So. 2d 246 (Miss. 1999), this Court held:
In order to preserve a jury instruction issue on appeal, a party must make a
specific objection to the proposed instruction in order to allow the lower court
to consider the issue. (internal citation omitted). Further, “[a]n objection on
one or more specific grounds constitutes a waiver of all other grounds.”
Stringer v. State, 279 So. 2d 156, 158 (Miss. 1973). See also McGarrh v.
State, 249 So. Miss. 247, 276, 148 So. 2d 494, 506 (1963) (objection cannot
be enlarged in reviewing court to embrace omission not complained of at trial).
741 So. 2d at 253. See also Rubenstein v. State, 941 So. 2d 735, 801 (Miss. 2006); Harris
v. State, 861 So. 2d 1003, 1017 (Miss. 2003); Ballenger v. State, 667 So. 2d 1242, 1256
(Miss. 1995). We see nothing that distinguishes this case from our holding in Morgan. Thus
25
Killen also suggested that only he had the right to seek an instruction on a lesser-included
offense. However, this Court has stated that Mississippi law “allows the prosecution to request and
obtain lesser-included offense instructions, as it does the defense.” Harveston v. State, 493 So. 2d
365, 375 (Miss. 1986).
25
Killen’s argument that the manslaughter instruction was not a lesser-included offense of
murder, is procedurally barred.
Evidence supporting manslaughter.
¶57. Next, Killen argues that the manslaughter instruction should not have been given
because (1) there was no evidence of a kidnaping, (2) there was no proof that Killen
participated in the killing “in the heat of passion, without malice and without premeditation,”
and (3) the statute of limitations had run on kidnaping.
¶58. It is well established that jury instructions must be supported by the evidence, Smith
v. State, 835 So. 2d 927, 937 (Miss. 2002), and we find the record replete with evidence that
there was a kidnaping, and that Killen planned and participated in it.
¶59. Under the statute in effect in 1967, kidnaping was defined as the seizure or
confinement of another person against his or her will, without lawful authority with the intent
to deprive such person of his or her liberty. See Miss. Code Ann. § 2238 (1942) (now
codified as Miss. Code Ann. § 97-3-53 (Rev. 2006)). Jordan testified that, after Schwerner,
Chaney and Goodman were locked up in the jail in Philadelphia, Killen met with Herndon
and others at the Longhorn in Meridian at around six o’clock, and told them that “he [Killen]
had a job and he needed some help over in Neshoba County, and he needed some men to go
with him.” Killen also informed them that “three of those civil rights workers were locked
up, and they needed their rear-ends tore up.” Killen identified one of the civil rights workers
as “Goatee,” who Jordan testified he knew to be Schwerner. Jordan also testified that Killen
later said, “they had three of the civil rights workers locked up, and we had to hurry and get
26
over there, and we were to pick them up and tear their butts up.” Killen also said that “a
Highway Patrol car would stop [the three civil rights workers] on the outskirts of town.”
¶60. Furthermore, Jordan testified that it was Killen who sent Jordan, Sharp and Wayne
Roberts to get some gloves, after which Killen said “he would go ahead, as he had to get on
back there as fast as he could and make the arrangements, there were several cars coming in,
and these guys couldn’t be held much longer.” According to Jordan, Killen showed him and
the other men where to park and “wait until [Schwerner, Chaney and Goodman] were
released.” Jordan and the men waited, as instructed by Killen, until Schwerner, Chaney and
Goodman were released from jail and drove away in the station wagon. They then fell in
behind the station wagon and were present as Price placed them in his patrol car and took
them to a secluded area. Jordan stood watch as the three men were killed.
¶61. In the face of this testimony, Killen’s argument that there was no evidence he
participated in a kidnaping is completely lacking in merit.
Heat of passion without malice.
¶62. Killen also argues that there was no evidence that Schwerner, Chaney and Goodman
were killed in the heat of passion without malice. However, the record reflects that Killen’s
instruction to the Klan members who were to assist in grabbing Schwerner, Chaney and
Goodman was to “pick them up and tear their butts up.” Further, testimony indicated that
Killen asked to be dropped off at the funeral home because if anything happened, he knew
that he would be the first person questioned by authorities. The jury could certainly have
found that Killen planned the abduction of the three men and that he intended that they be
27
whipped or beaten, but that he did not intend for them to be killed. Thus, this argument has
no merit.
Statute of limitations.
¶63. The third reason Killen argues we should reverse based upon the manslaughter
instruction is that the statute of limitations had run as to the underlying crime of kidnaping.
Killen’s counsel repeatedly argued to the trial judge that the State was “charging [Killen]
with kidnaping.” In response, the trial judge appropriately pointed out that Killen was not
being “charged” with kidnaping, but the state was merely attempting to “define” kidnaping
as the underlying crime to the lesser-included offense of manslaughter.26
¶64. Killen cites authority that stands for the proposition that a conviction of a lesser-
included offense is not permitted where the statute of limitations has run on the lesser-
included offense. See Riggs v. State, 30 Miss. 635, 647 (1856) (simply stating that the jury
could not convict the defendant of a lesser-included offense where the statute of limitations
had run on the lesser-included offense). However, kidnaping was not the lesser-included
offense in this case, but was used only to establish an element of the lesser-included offense,
which was manslaughter. Since the statute of limitations had not run on manslaughter, the
statute of limitations had not run on the lesser-included offense, and Riggs is therefore
inapposite. See also McGowan v. State, 200 Miss. 270, 25 So. 2d 131 (1946) (finding
26
The State offered the instruction based upon the felony manslaughter statute that was in
existence in 1964 which defined manslaughter as the “killing of a human being without malice by
the act, procurement or culpable negligence of another, while engaged in a perpetration of any
felony, except rape, burglary, arson, or robbery, or while such other is attempting to commit any
felony . . . .” The State used kidnaping as the underlying felony. Miss. Code Ann. § 2220 (1942).
28
indictment for a second-offense crime does not cause the charge to be barred by the statute
of limitations by referring to former offense which was barred by the statute of limitations).
¶65. Killen was convicted of the lesser-included offense of manslaughter. There is no
statute of limitations on manslaughter in Mississippi; therefore, the statute of limitations
could not have run. Thus, Killen’s argument is without merit.
III.
¶66. The second issue presented by Killen is whether the delay of forty-one years in
bringing the indictment denied him due process of law. Killen first attempted to persuade
the trial court to quash the indictment by arguing that the State violated his Sixth Amendment
right to a speedy trial. However, upon being reminded by the State at the motion hearing that
the delay of which he complained was pre-indictment, and that the trial took place only five
months following the indictment, Killen conceded that his claim was not a violation of the
Sixth Amendment, but rather of the Fifth Amendment.
¶67. The State of Mississippi did not bring charges against Killen until 2005, some forty-
one years following the deaths of Schwerner, Chaney, and Goodman. Killen argues that the
State’s delay was intentional and resulted in actual prejudice to him. Specifically, Killen
claims that the State intentionally used delay to obtain a tactical advantage, pointing to the
change of the political climate in Mississippi in 2005 as compared to 1964, so that a jury was
much more likely to convict him in 2005. Killen argues that he suffered actual prejudice by
the forty-one year delay, in that he was eighty years old at the time of the trial, in poor health
and many witnesses had died or their memories had failed. The State responds that the delay
was not intentional and that the delay failed to result in actual prejudice to Killen.
29
¶68. The United States Supreme Court noted in United States v. Lovasco, 431 U.S. 783,
790, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977), that, in making the determination as to whether
a defendant’s due process rights have been violated, courts “are not free . . . to impose on law
enforcement officials our ‘personal and private notions’ of fairness and to ‘disregard the
limits that bind judges in their judicial function.’” 431 U.S. at 790 (quoting Rochin v.
California, 342 U.S. 165, 173, 72 S. Ct. 205, 96 L. Ed. 183 (1952)). The Court further stated
that courts “are to determine only whether the action complained of . . . violates those
‘fundamental conceptions of justice which lie at the base of our civil and political
institutions,’ Mooney v. Holohan, 294 U.S. 103, 112 (1935), and which define ‘the
community’s sense of fair play and decency’.” Lovasco, 431 U.S. at 790 (quoting Rochin,
342 U.S. at 173).
¶69. This Court has previously stated “in a pre-indictment analysis of due process
violations that the burden of persuasion is on the defendant.” Stack v. State, 860 So. 2d 687,
700 (2003) (citing Hooker, 516 So. 2d 1349, 1351 (Miss. 1987)). In order to analyze claims
of due process violations for pre-indictment delay in bringing prosecutions, the United States
Supreme Court set forth the two-prong test in United States v. Marion, 404 U.S. 307, 324,
92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), and Lovasco, 431 U.S. at 795–96. This Court
adopted the two-prong test in Hooker, which held that in order for a defendant to prevail on
such a claim there must be a showing that (1) the pre-indictment delay prejudiced that
defendant, and (2) the delay was an intentional device used by the government to obtain a
tactical advantage over the accused. Hooker, 516 So. 2d at 1351.
Prejudice.
30
¶70. Killen argues that the following factors have caused him actual prejudice due to the
forty-one-year, pre-indictment delay: (1) he is now eighty years of age and has deteriorated
in mind and body; (2) he was sick and in severe pain from injuries received from a falling
tree; (3) witnesses had died and memories had failed; (4) he could not be judged by his peers
as they had long passed away or were too old to serve on juries; and (5) he suffered from
high blood pressure and was on blood pressure medication.
¶71. With regard to Killen’s claims that the pre-indictment delay caused him actual
prejudice due to his old age, ill health and inability to be judged by a jury of his peers, Killen
cites no legal authority for these claims in his brief. Killen merely asserts that at the time of
the 2005 trial, he was eighty years old, in poor health, suffered from high blood pressure 27
and could not be judged by his peers. Because Killen cites no authority that these factors are
sufficient to constitute actual prejudice, we hold that these factors warrant no consideration.
See Cleveland v. Mann, 942 So. 2d 108, 115 (Miss. 2006) (citing Ferrell v. River City
Roofing, Inc., 912 So. 2d 448, 456 (Miss. 2005)) (this Court’s obligation to review the issue
ceases upon party’s failure to cite relevant authority).
¶72. Killen also claims that he suffered actual prejudice due to deceased witnesses and
deteriorated memories. In a case very similar to the case at bar, this Court analyzed whether
a twenty-one year, pre-indictment delay violated the due process rights of defendant Byron
27
The record reflects that Killen was physically present throughout his trial. In fact, during
one point of the trial, Killen was taken to the hospital due to high blood pressure. When the judge
indicated that, in Killen’s absence, he would like to proceed with the trial with the reading of
transcript testimony, Killen’s attorney stated that he did not feel comfortable without first getting
his client’s permission because Killen “tries to run the defense.” Because Killen refused to consent,
the trial judge recessed the trial until the next morning when Killen could be present. Thus, we find
no merit to Killen’s argument that he was too ill or deteriorated to assist in his defense.
31
De La Beckwith (“Beckwith”). Beckwith was initially charged for the murder of Medgar
Evers, first Field Secretary for the NAACP in Mississippi, who was shot in the back on the
front steps of his family home in Jackson, Mississippi. Beckwith v. State, 707 So. 2d 547,
555 (Miss. 1997). Beckwith was tried twice for the murder in 1964, but both trials ended in
mistrials. Id. at 568. Following the mistrials, a nolle prosequi was entered in 1969. Id. No
further action was taken against Beckwith until some twenty-one years later, when the State
of Mississippi re-indicted him in 1990. Id. Beckwith was tried and convicted in 1994 and
sentenced to a life term. Id. Beckwith appealed his conviction. A due process violation
claim for the twenty-one-year, pre-indictment delay was among the many issues on appeal
before this Court. Id.
¶73. Beckwith asserted similar claims of “deceased witnesses” and “faded memories” as
a basis for his due process argument. Id. at 570. This Court stated, “[w]itnesses for both the
state and the defense [have] died in the interim between the trials, but testimony from
previous trials was available and was read to the jury.” Id. This Court further noted that
“Beckwith did not put into the record any facts he could have proved by these deceased
witnesses that did not go to the jury through their prior testimony.” Id.
¶74. Similarly, Killen has failed to show how he was prejudiced in this regard. All six of
Killen’s witnesses testified live at his 2005 trial, and he has not suggested any witness he was
unable to call on his behalf as a result of the forty-one- year delay. Further, the testimony
in the record does not indicate that Killen’s witnesses failed to remember the events of 1964.
In fact, Killen’s sister testified in detail about the events that took place on June 21, 1964,
when she and her siblings, including Killen, gathered at their parent’s home for Sunday
32
dinner. Killen’s brother also testified in detail about the family gathering at the Killen home
on the afternoon of June 21, 1964. He also testified that Killen was present at the funeral
home around seven or eight o’clock on the evening of June 21, 1964. Killen’s other
witnesses similarly had no problems recalling the events that took place in 1964.
¶75. Of the State’s fourteen witnesses at the 2005 trial, six were called by transcript and
eight testified live. Killen, through his counsel, had the opportunity to cross-examine all of
the State’s witnesses at both trials. This Court has stated that “[v]ague assertions of lost
witnesses, faded memories, or misplaced documents are insufficient to establish a due
process violation from preindictment delay.” Beckwith, 707 So. 2d at 570 (citing United
States v. Harrison, 918 F.2d 469, 474 (5th Cir. 1990)); United States v. Ballard, 779 F.2d
287, 294 (5th Cir. 1986). Accordingly, we find that Killen has failed to meet his burden of
proving actual prejudice and hold that the trial court did not err in finding Killen suffered no
actual prejudice as a result of the forty-one-year delay.
Intentional Delay Used to Obtain a Tactical Advantage.
¶76. Having found no actual prejudice, we need not address the reasons for the delay, as
a due process violation requires both a showing of actual prejudice and intentional delay.
Hooker, 515 So. 2d at 1351. In other words, where a defendant fails to show actual
prejudice resulting from a claimed due process violation, the inquiry ends, and the reason for
the delay need not be addressed. However, in the interest of completeness, we shall address
Killen’s argument that the State’s delay was an intentional device used to obtain a tactical
advantage.
33
¶77. Killen argues that the State intentionally delayed prosecution to obtain a tactical
advantage. Specifically, Killen tells us in his brief:
This Court could take judicial notice 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. It would be foolish to argue that
the attitude of the general public has not changed from the sixties all to the
advantage of the State and to actual prejudice against the Appellant.
¶78. As we understand this argument, Killen would like us to take judicial notice that, had
he been prosecuted in the 1960s, he likely would have drawn an all-white jury, the members
of which would probably have been reluctant to convict a white man whose only crime was
doing harm to a black man (Chaney) and two white civil rights workers (Schwerner and
Goodman). Stated another way, Killen argues that – because of the low regard for the civil
rights of African-Americans held by white juries and politicians in 1964 – he was far less
likely to have been convicted in a 1964 trial.
¶79. 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 Hooker’s 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.” We shall say no more than to add
that we find this argument has no merit, and we are surprised it is made.
¶80. In summary, we note that this Court has previously stated “where there [is] no bar to
prosecution by an applicable statute of limitations, ‘the constitution places a heavy burden
34
on the defendant to show that the pre-indictment delay has offended due process.’” Beckwith,
707 So. 2d at 570 (quoting Stoner v. Graddick, 751 F.2d 1535, 1540 (11th Cir. 1985)) (court
rejecting defendant’s due process claim despite no reason given by the state for the revival
of the 19-year-old case). Killen has not met this burden. Therefore, the trial court did not
err in denying Killen’s motion to quash the indictment based on a due process violation.
¶81. Finding no merit to either of the assignments of error, we affirm the judgment of the
Circuit Court of Neshoba County, both as to Edgar Ray Killen’s conviction of three counts
of manslaughter, and the trial court’s sentence of twenty years for each count, with the
sentences to run consecutively.
¶82. COUNT I: CONVICTION OF MANSLAUGHTER AND SENTENCE OF
TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED.
COUNT II: CONVICTION OF MANSLAUGHTER AND SENTENCE OF
TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN
CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT I.
COUNT III: CONVICTION OF MANSLAUGHTER AND SENTENCE OF
TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III SHALL RUN
CONSECUTIVELY TO THE SENTENCES IMPOSED IN COUNTS I AND II, OR A
TOTAL OF SIXTY (60) YEARS TO SERVE.
SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON, GRAVES AND
RANDOLPH, JJ., CONCUR. EASLEY, J., NOT PARTICIPATING.
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