"Neshoba: The Price of Freedom" is a newly released documentary by Micki Dickoff and Tony Pagano that focuses on one of the most notorious crimes of the Civil Rights Era and the long road to justice that followed. The case of Mississippi v. Edgar Ray Killen is about three young men murdered in Mississippi in 1964.
James Chaney, a 20-year-old black Mississippian, and Andrew Goodman and Michael Schwerner, two white New Yorkers, also in their early 20s disappeared in Neshoba County, Mississippi. The young men were spending their summer working to register African Americans to vote.
Six long weeks later their bodies were found in a mud dam on the property of Olen Burrage. Goodman and Schwerner had been shot. Chaney, the young black man, was also shot, but only after he was beaten, tortured and mutilated.
Although the F.B.I. and the Justice Department won a handful of convictions, and light sentences, on federal civil rights charges a few years later against some of the men involved with the murders, no state charges, for murder or anything else, were brought until 2005. Finally, in 2005 Edgar Ray Killen, the 80-year-old preacher and sawmill operator long believed to have been one of the main organizers of the killings was brought to justice and convicted of manslaughter and sentenced to prison.
The documentary tells the story of these murders, from black and white members of the Philadelphia Coalition, a dedicated group of citizens who push to make sure the truth about that fateful night is told and pressure Mississippi state officials to bring the murderers to justice.
The documentary also interviews other residents of Neshoba County, white and black, old and young, about the 1964 murders and the 2005 trial of Edgar Ray Killen. The film exposes an ambiance of resentment, racism and fear that still plagues this small Mississippi town. Footage of interviews with Killen himself and testimony from Ku Klux Klan members is chilling.
Although the film is not exclusively about the jury trial of Killen, the conviction and how it happened is the final chapter of the documentary. Two jury consultants who worked with the prosecutors on this landmark case, Beth Bonora of Bonora D'Andrea in San Francisco and Andy Sheldon of SheldonSinrich in Atlanta are prominently featured in the documentary. Bonora and Sheldon, both past presidents of the American Society of Trial Consultants (ASTC), took time to share their experiences on the Killen case with ASTC president Beth Foley.
Beth Foley: What motivated each of you to commit your skills and your time to this case?
Beth Bonora: I started my career as a trial consultant working on the Attica Prison uprising case in New York State in the '70s. That really immersed me in an understanding of racial conflict and oppression and the inequalities in our society, the problems with our legal system, and the unfairness of justice. I don't think that work has left me. The opportunity to work on something like this seemed so important. You can't change what happened but you can at least try to contribute in some way to the historical record and to helping people feel like the changes have been real.
Andy Sheldon: For me, part of it's evolutionary – having already been involved in seven of these civil rights cases. But also, American justice is "for all." However, in the minds of African Americans, courtrooms had been closed to them. As soon as this violence happened and nothing was done, there was no justice. So there was mistrust of the system. I felt as a lawyer I had an obligation to help change that.
I knew that the case against Edgar Ray Killen was about to be tried because of Jerry Mitchell's involvement. He is the Clarion-Ledger reporter from Jackson, Mississippi, who had been working on trying to bring this case back and bringing all these civil rights cases back. We talked from time to time and he mentioned that he had asked Mississippi Attorney General Jim Hood about it and I think I made some inquiries and finally got a call from Jim Hood, and so that's how it happened. I ended up just showing up at his office one day and inserted myself into the case. I called Beth Bonora and asked her to get involved. We had worked on previous civil rights cases including the Medgar Evers case and the 1963 Birmingham church bombing case.
Beth Foley: Can you give us a little more background on the civil rights cases you just referenced?
Andy Sheldon: There have been seven cases similar to the Neshoba County case and I was fortunate to have worked on each of them. Beth Bonora worked on three of these.
• 1994 State of Mississippi v. Byron de la Beckwith This was the original case. Several trial consulting colleagues assisted. (The film "Ghosts of Mississippi" in which Alec Baldwin plays the prosecutor may bring this case to mind for younger people.) Being the first case brought after so many years of inaction, this case probably stirred the most controversy and emotion and fear in the community. The guilty verdict was an historic breakthrough and gave others the motivation to act on other unsolved "cold cases."
• 1996 State of Mississippi v. Sam Bowers As the head of the most violent KKK chapter in Mississippi, Bowers issued kill and burn orders to other Klansmen. In fact, it was Bowers who told Beckwith to kill Medgar Evers. This Hattiesburg case finally brought the "Imperial Wizard" to justice for his role in the death of Vernon Dahmer and the firebombing of the Dahmer home. Mr. Dahmer was thought by Bowers to be guilty of helping African Americans register to vote. Bowers wore a large Mickey Mouse belt buckle to court every day. My partner, DeAnn Sinrich, was instrumental in advising the local district attorney about trial strategy in this case.
• 1997 State of Mississippi v. Charles Noble (mistrial) The Noble case mistried after jury selection. The mistrial occurred when one of the state's primary witnesses who had come in out of the cold, so to speak, and was pretty scared, at the end of a day with a break in his testimony, was sitting in a local cafe (in Hattiesburg) having dinner. He was being watched by someone he thought was KKK and he called the prosecutor for help. "The Klan has spotted me. Get me outta here." When he took the stand the next morning, this contact between him and the DA came up and, since that kind of contact is illegal in the middle of testimony, the judge declared a mistrial.
• 2001 State of Alabama v. Thomas Blanton This and the next case are prosecutions of two of the four Klansmen responsible for bombing the Sixteenth Street Baptist Church in Birmingham, Alabama. The prosecutor, the U.S. Attorney at the time, moved to be appointed as a special state prosecutor for these cases. Much of the support for this prosecution came from U.S. Attorney General Janet Reno. The Spike Lee movie "Four Little Girls" memorializes the families of the victims and helped move this prosecution along.
• 2002 State of Alabama v. Bobby Frank Cherry (also in Birmingham)
• 2003 United States v. Ernest Avants Avants and two cohorts wanting to lure Dr. King into Mississippi in order to kill him, lured a dirt poor sharecropper into their car, shot him and left his body where it could be discovered. Connie Chung and her ABC crew discovered that the body was dumped on U.S. government land, making this a federal crime, the first to be formally prosecuted by the United States.
• 2005 State of Mississippi v. Edgar Ray Killen (Philadelphia,Mississippi, Neshoba County. The documentary covers this case.) Edgar Ray Killen, the 80-year-old preacher and sawmill operator long believed to have been one of the main organizers of the killings is brought to justice and convicted of manslaughter and sentenced to prison for the deaths of 3 young civil rights workers in 1964.
• 2007 United States v. James Ford Seale The last of the so-called Civil Rights cold cases to be prosecuted, this one also by the federal government, the first under an African American judge, Seale and his Klan cronies had tied two young African Americans to engine blocks after beating them and dumped them, still breathing, into the river.
With the exception of the Noble case, there were convictions in all the cases.
Beth Foley: When I watched the documentary about the Philadelphia, Mississippi murders, I had a sense of fear. There was a cloud of trepidation in the community. Did you sense that and were you ever afraid for your own safety?
Beth Bonora: I came into this and didn't really quite know what to expect and didn't have trepidation about it. But then you get in town and the marshals are escorting you in court and there are Klan members in court passing out their cards. And, there is obviously a lot of very strong feeling, pro and con, in the community about what's going on. So you begin to understand in your bones about the depth of the feelings.
Andy Sheldon: People in Neshoba County have been dealing with this for decades, so you can imagine that feelings have evolved over that time. There had been, as recently as three months prior to the trial, open meetings at which people expressed strong feelings. At every level of society there was dissension about "bringing up old issues," "stirring things up," and concern about the fallout of the prosecution. Would it rejuvenate the segregationists? And plenty of fear, particularly among the Choctaw who had tried to steer very clear of getting involved, but who now had to possibly serve on the jury.
Beth Foley: It was pretty clear in the documentary that the odds of convicting Killen in this county were not good, so, how did you go about tackling this challenge?
Beth Bonora: We got the judge to allow a supplemental juror questionnaire (SJQ) to be filled out by prospective jurors, but before that Andy put in a lot of time, ahead of time, talking to people in the community and making connections.
Andy Sheldon: With the help of a Zagnoli McEvoy Foley associate, we went out into the community and talked to some relatives of the victims and local folks. I had talked to people in the community numerous times because I had been in the area for the 40th anniversary of the church burning in Philadelphia. I knew some of the folks already.
Beth Bonora reviews SJQs at 3 a.m. (Photo by Andy Sheldon)
Beth Foley: Tell me more about the preliminary research.
Andy Sheldon: Community interviewing is more in the nature of sociological work or journalistic investigative work but it is crucial to a deeper understanding of the feelings, the attitudes, the prejudices, the covert messages that might motivate a juror.
Beth Bonora: It's one of the interesting things about a case like this. When you are in a smaller venue and you have an issue that has been this important for such a long time, there's a lot to be gained by developing those community connections and understanding what it is that people who have lived there think about how people in the community are going to react and what to watch out for.
People in the community had a lot of advice about where the trouble would be in picking this jury, and the kinds of things to watch out for, the kinds of attitudes that might be particularly troublesome. There were parts of the community that had been most opposed to bringing the prosecution.
I think that the community analysis in this case also helped us think about the language to be on the lookout for, sort of the code words, which were often pretty transparent, but the kind of language that people used to describe whether or not they thought it was okay to bring this prosecution.
Beth Foley: What kinds of information did you uncover in your community analysis and in the supplemental jurors questionnaires for this particular case?
Andy Sheldon: We used the same questionnaire we used in the previous cases. I was getting a pretty good sense of what information was helpful. And, interestingly, two of the cases were federal cases, and even in those cases we got the same questionnaire. We knew which of the open-ended questions were going to be helpful and which were going to take us toward a conservative, conspiratorial person who hated the federal government, or thought Bill Clinton was worse than Osama Bin Laden.
It was not simply black-white, young-old, and male-female. It was also Native American. This was a state case which included residents from the Choctaw Indian Reservation and that proved to be an interesting dynamic during jury selection.
Beth Foley: Did you expect that the Native American attitudes would play a significant role before you got started?
Andy Sheldon: We just didn't know. Many of their questionnaires had numerous "I don't know," "Don't want to be involved," "Never heard of this," responses. We had heard Native Americans tended to be standoffish, but recently they had so much wealth come into the tribe from the casinos that we really didn't know how, if at all, attitudes were affected. It turned out that when we were interviewing Native American jurors, there was a significant amount of anger and fear that bubbled over into the judge's chambers when they were in sequestered voir dire.
A symbol of the current Choctaw presence in Neshoba County–and this is only half of the Pearl River Casino–the other half being on the other side of the new highway that was built largely to service this massive casino. (Photo by Andy Sheldon)
Beth Bonora: I will never forget that Native American woman who came into court with a couple other jurors from the tribe. And if I recall, they drove in early together. This particular woman cried and trembled during sequestered voir dire, and said they were intimidated by guys in trucks as they drove into town. It scared her a lot and it made her not want to serve. We heard stories from others about Klan activities against the tribe back in earlier decades.
Andy Sheldon: The amount of fear that you are talking about while you were viewing the movie, Beth, is interesting to me because the fear that existed in Neshoba County and all over the South in that era must have been huge and pervasive. It's really interesting that the movie would bring that to you for a flash or 10 minutes because I sometimes wonder what it was like to live during that time when at any particular moment of the day it could happen. I don't have any concept of what it would be like to live like that.
Beth Foley: Can you give me an idea of what kinds of characters came to observe this trial?
Andy Sheldon: The trial attracted all kinds of interesting people. You had everybody from an older woman in a wheelchair who had written a book, golly I think probably 35 years ago, about what is was like to grow up in Philadelphia, Mississippi at the time. Then as Beth mentioned, there were Klan members across the courtroom passing out cards. There was a man and his nephew who had traveled there from Nevada or California because they wanted to witness this event. The Attorney General was there and there was all kinds of security everywhere. There were students who had come from various places to see what had happened. So there was just, a real cross-section of I guess all kinds of people. Then there was the media with their tents and cameras set up all over the courthouse square. That made it resemble a movie set. Very surreal.
Beth Foley: What were the logistics of jury selection? You had the juror questionnaire but was there also sequestered voir dire? I assume you wanted to provide an environment where people would speak openly, right?
Andy Sheldon: We pushed hard for that. We went through the lawyers who then communicated with the judge.
Beth Bonora: In part, I think it's because not everybody is all that comfortable in this kind of tense situation where there is a lot of community controversy on both sides. It's not reasonable to expect that everybody's going to feel comfortable airing their views and saying what they really think in a large audience. We all know enough about the things that make people more reserved in voir dire, and a case like this is just a prime candidate for individual sequestered voir dire so people can speak their minds with less trepidation.
I recall the judge being pretty good about it. He made room for both Andy and me. He could have easily said we don't need any of you in here or we only need one of you in here. He made us feel pretty at home I thought.
Assistant Attorney General Lee Martin waits for the verdict to come in. (Photo by Andy Sheldon)
Beth Foley: Now, a lot of times as trial consultants we experience reluctance on the part of judges to accept challenges for cause, or reluctance to dismiss jurors and sometimes they try to rehabilitate the jurors. Did you experience these kinds of obstacles?
Beth Bonora: I remember there were people we really thought should go for cause but would say, "I can put that aside." Looking back at my notes I can see that we had some difficult decisions to make because there were people like that who were left in the panel and we didn't have enough challenges for them all. So, some of them had to stay and it was a question of which ones.
Beth Foley: I think everyone is interested to know what kinds of comments you heard during the jury selection process. Did you hear anything that shocked you? Did you hear blatant racist comments?
Beth Bonora: We didn't hear the "n" word, but I recall a woman saying, "Why are the charges being brought? To satisfy the black people and the negro lovers." Another woman said, "This will cause more trouble between us white people and the other coloreds involved, and make a few lawyers rich for the rest of their life." This was a 39-year-old woman and she also talked about the defendant's age and that that is a problem to bring him to trial so long afterwards. And then she wrote, "This County has had enough trouble between coloreds so leave it alone because if he did it or not, he will face God one day for his sins." We did see a lot of references to religion, I remember that.
On the other side of it someone says, "God has allowed us the chance, I feel we should always pray and ask what direction we should go." This person is saying it's a good thing that the charges are being brought again.
Beth Foley: So, it sounds like religion is an integral part of decision making, or at least how the jurors talk about their decision-making process?
Andy Sheldon: Religion was key to attitudes that were going to be important in jury selection. In the Blanton case, the jury "prayed for discernment," and that was a totally religious jury that prayed every morning before trial and prayed for the ability to tell if somebody was telling the truth or not so that they could tell the difference between right and wrong and that is what discernment related to. My awakening there was that these people were not "religious," they are religion. They live it; it is in their pores and not something they are separate from in any way.
Beth Foley: Did you feel jurors were being candid? I'm sure you were worried about lack of candor and that one juror who was laying in wait to sabotage the verdict.
Beth Bonora: I was surprised at the amount of candor, actually. In the cases that I work on, people are often pretty circumspect. They don't want to appear opinionated.
Andy Sheldon: Generally we are much more capable of being deceived as human beings than we think we are. The issue of deception came up for the first time in the Cherry case. A young African American woman came in for an individual voir dire and she was asked if she had any relatives who've been involved in any important issues in the community and she said "no." Then on the following Monday the defense brought her back and asked, "Was your mother actively involved in civil rights in the Civil Rights Era?" A big smile went across her face and she said "yes." Her mother was the first black woman to be admitted to the University of Alabama. She clearly wanted to be on that jury and she was answering the part of the question that would allow her to shade the truth and get on the jury.
Beth Foley: Was there anyone in the jury pool that said "I'm too afraid" and how was that handled?
Andy Sheldon: The American Indian woman. The judge said "I'm sorry that happened and I'm sorry you are frightened, and I am not going to ask you to serve on this jury."
We asked in the sequestered voir dire what would it be like for you to vote against conviction or for conviction and have to go to Sunday School on Sunday after the trial. I remember mostly people were okay with it. It was designed as a question to get people off.
Beth Foley: Andy, that is often a question that's considered a good way to identify jurors who would defer to peer pressure especially in a case like this. Good to know it wasn't the most reliable question.
Beth Foley: Did a Batson challenge ever come up in the jury selection process?
Beth Bonora: We were thinking seriously about that. I remember us discussing this. There were a number of African Americans who were clear that they had a strong opinion about the case and said it was about time it got tried again. I suspect that their record was clear enough that the prosecutor could justify their challenges by strong opinions on the case. There were others who were much more closemouthed. One of the African American alternates said, "I think he had something to do with it, but I don't really know. We need justice!"
Beth Foley: The final jury was predominantly white and about split on gender, split on high school grads and college graduates and the ages equally distributed from 20s to 50s. The oldest juror was 72. How long did it take to pick this jury?
Andy Sheldon: As I recall, when we had reviewed the questionnaires and actually got down to individual voir dire, it took us the better part of a day, day and half.
Beth Foley: Beth, I know you have notes from jury selection in front of you now. Can you give me some quotes that help describe these decision makers?
Questionnaire: What is your opinion about these charges being brought against Edgar Ray Killen at this time?
"I think it should be left alone."
"I have no opinion."
"Bull. Been too long time."
"In one respect I feel justice if found guilty, should prevail. But on the other hand I don't think that one man should be held accountable for a crime held by a group."
"The man is 89 years old. He is too old to be brought to trial. According to nature his mind is not sound enough to go back to 40 years ago and remember everything. This County has had enough trouble between coloreds so leave it alone. Because if he did it or not he will face God one day for his sins."
"My opinion is that, if he done the crime, justice should be served. Every man, woman and child is innocent til proven guilty, but justice should be served."
"Something should have been done a long time ago. There is not enough justice in Neshoba County…"
"I am very happy to see Edgar Ray Killen come to trial. I feel whatever is done in the dark will come to light. If Edgar Ray Killen had anything to do with the murder he should have to pay. I don't care how old he is."
"I think it is a shame for a man of Mr. Killen's age to stand trial for murder; however if he is found to be responsible for this crime no matter how long ago it happened, he should be held accountable."
Questionnaire: What is your opinion about why these charges are being brought against Edgar Ray Killen at this time?
"To cause more trouble between us white people and the other coloreds involved and to make a few lawyers rich for the rest of their life."
"I really don't have one. I just have time to read at the paper most of the time."
"I am not sure of the reasoning for all of this being brought up over and over. I am not sure what people are hoping to accomplish. I keep hearing people say that Philadelphia needs to heal, but I don't believe these people will allow that to happen as long as they keep bringing it up."
"To serve justice."
"There has not been enough evidence to file charges before now."
"I believe we now live in a time when justice could truly be served."
"I feel Edgar Ray Killen had something to do with the murder. If he did not actual kill them he knows who did it."
Beth Foley: Let's talk about the verdict. We know now the verdict was manslaughter, not murder. In the documentary, this verdict is portrayed as being a letdown to the families of the three civil rights workers killed in 1964. Tell me about the verdict from your perspective.
Andy Sheldon: The word circulated that there was disagreement in the jury. There was a conference and the attorney general and the district attorney proposed that the judge give an instruction on manslaughter as a lesser included offense. The suggestion was made to the judge and the defense resisted it, strenuously. The judge overruled their objection and called everybody back and gave them that instruction after which they came to a pretty speedy conclusion.
The big shocker was at sentencing. He had a manslaughter conviction and a range up to 20 years on each count and he had three counts. He gave the maximum sentence on every count. Even though it was a manslaughter charge, he made it into a murder penalty.
An example of the media crowd in Neshoba. The AG is in the middle of the crowd. (Photo by Andy Sheldon)
Beth Foley: Was there a time you worried you might not get a conviction?
Andy Sheldon: In each of these cases, the odds are hugely high. I look at each one of these cases and I think they are all legal miracles. I never have heard of cases with 40-year-old evidence where the prosecution succeeds. Yet, here were seven 40-year-old civil rights cases and in all of them, the prosecution succeeds. I had serious doubts, in every one.
Beth Foley: Did you get to talk to the jurors after the verdict and do you have any sense as to how they reached their decision?
Andy Sheldon: We didn't get to talk to these jurors at all. But we did hear via the court grapevine that several jurors had serious misgivings about the strength of the evidence and were unwilling to convict. When the manslaughter option became available to them, their issues disappeared.
Beth Foley: Can you give a sense for the evidence in the case?
Andy Sheldon: That's hard. The live witnesses for the prosecution were the mothers of the deceased and the wife of one of the victims. Extremely sad, intense emotional testimony. Then there was the testimony of the former mayor who basically said the Klan was good and was helping society, taking baskets of food around to those in need. He was interviewed and it appeared on CNN and caused a furor around the country. The guy had been Mayor of Philadelphia and was testifying as a character witness for Killen. Then there was a former sheriff who testified, but not a lot of live testimony to put Killen on the spot.
Beth Bonora: The theory was that there was evidence that Killen was directing the actions from various places. So, he's trying to claim 'I didn't know, I didn't say, I didn't do,' but there was strong evidence from other people that way back from an earlier time that he had in fact orchestrated it.
Beth Foley: The documentary portrayed that either Killen called or someone at the police station called the Klan when they were released from jail that night. That was presented as the conclusive evidence in the documentary. I guess it wasn't quite as conclusive in the trial?
Beth Bonora: You can get a sense of why some people who may have been reluctant to convict might want to say I'm not sure they have proven murder. It's not surprising that they could settle on manslaughter but harder on the murder.
Andy Sheldon: Beth Foley, I'd love to know how the documentary hit you.
Beth Foley: Killen is a complex character. To actually observe Killen's psychology and how he managed his hatred was unsettling. And, like you both said earlier, religion was a big part of Killen's presentation of himself. I'll never forget the scene at the end of the documentary: after the verdict Killen is being wheeled out of the courthouse, the cameras are on him and he strikes out at a reporter. At this moment you see his unedited rage.
Beth Foley: Andy and Beth, what advice do you have for trial consultants who might be interested in getting involved in civil rights cases or any kind of pro bono work?
Beth Bonora: I don't know how many more civil rights cases there will be. There is a big need for people to do pro bono work on issues related to civil rights. You don't have to leave your own community to find injustices.
Andy Sheldon: If you look, you don't have to look very far. What was blatant then is not so blatant now. It may involve a different minority or a different kind of violence. It happens everyday. We have hate crimes and hate crime laws. You can talk to anybody who handles civil rights cases and they will tell you about the array of civil rights cases.
Beth Foley: Do you believe members of the ASTC have something to bring to these cases?
Andy Sheldon: Absolutely. I think we have such good skills and all cases need us. These cases bring a sense of meaning to a person that you never forget.
Beth Bonora: We all have different kinds of work that we do. When you work on something like this, it works on you at a deep emotional level. It sticks with you and it changes you. And, it encourages you to do more. All three cases I've worked on have given me inspiration.
Thank you Beth and Andy for sharing this story with me and the readers. One of the many things that the documentary speaks to is that people in the community just wanted the Killen case to go away, but The Philadelphia Coalition drove this case to trial. What people may not realize is that there were not a lot of people in the Coalition. Their meetings were in school gyms and church basements. This was not a big, powerful or well-funded group, yet their perseverance is what got the case to a jury. The audience is reminded of what a few dedicated people can accomplish.
If you are interested in the role trial consultants can play in pro bono cases contact Ed Schwartz, Chairman of the American Society of Trial Consultants Pro Bono Committee.
Elizabeth Foley [BFoley@ZMF.com] is President of the American Society of Trial Consultants and a founding partner of Zagnoli McEvoy Foley, LLC with more than 18 years of experience in trial consulting and studying and teaching communication. She conducts jury research in a variety of case types including environmental & toxic torts, product liability, personal injury and commercial litigation. Read more at www.zmf.com.