Killen bid to toss case denied

No proof defendant is being selectively prosecuted, judge says

The Clarion-Ledger/May 24, 2005
By Jerry Mitchell

Philadelphia -- The judge presiding over reputed Klan leader Edgar Ray Killen's upcoming murder trial in the 1964 killings of three civil rights workers rejected a defense request Monday to dismiss the charges.

Circuit Judge Marcus Gordon said the defense had failed to show Killen was being "selectively prosecuted."

He said Killen's June 13 trial will take place as scheduled. Killen, an 80-year-old sawmill operator and part-time preacher, has insisted he had nothing to do with the June 21, 1964, killings of Michael Schwerner, James Chaney and Andrew Goodman.

The trial could last one to two weeks, depending on the length of jury selection.

A 1967 federal conspiracy trial of 18 men, including Killen, in the slayings lasted a little over a week. That jury convicted seven, acquitted eight, including Sheriff Lawrence Rainey, and deadlocked in mistrials regarding Killen and two others.

The jury deadlocked 11-1 in favor of Killen's guilt when a holdout told other jurors she "could never convict a preacher."

Of 250 jury summons sent out with jury questionnaires for the June 13 trial, about 130 have responded. Gordon authorized another 150 jury summons to be sent out today.

Experts say about half of those summoned for jury duty typically respond. Their names come from the voter rolls, which don't reflect when someone has moved away or died since initially registering to vote.

In an unusual occurrence, a defense attorney and a prosecutor testified in the hearing Monday.

James McIntyre of Jackson, who represented the sheriff in the 1967 trial and is on Killen's defense team, testified there were other suspects in this case besides his client who are still alive.

District Attorney Mark Duncan acknowledged eight suspects are still alive and said Neshoba County grand jurors could have indicted all eight or others whose names arose in the investigation.

After being presented all the information from the state's investigation, he said, "they chose to indict Mr. Killen and only Mr. Killen."

McIntyre quizzed Special Assistant Attorney General Lee Martin on whether the state had written standards to ensure uniformity of prosecution.

Martin replied there are no written standards but cases are analyzed carefully before going forward.

"How much money has the state spent in prosecuting this case?" McIntyre asked.

"I don't know in this case or any other case," Martin replied.

McIntyre questioned why, with crime rampant, state authorities are targeting an 80-year-old man who poses no threat to society.

Martin responded: "We don't target anyone for indictment or prosecution."

Killen wasn't in court Monday. He uses a wheelchair to get around and still is recovering from a March 10 tree-cutting accident in which both his legs were broken.

His lead attorney, Mitch Moran of Carthage, said his client can't stay in one position very long, but he hopes Killen can manage with frequent recesses at the upcoming trial, which he said Killen is "looking forward to. The man wants to be exonerated."