Emergency appeal filed
with state supreme court
Wednesday, August 17, 2005 1:00 PM
A relative of Edgar Ray Killen threatened to kill the judge and others in the courtroom prior to his triple murder trial, the Mississippi Attorney General argued in an emergency petition before the state Supreme Court seeking revocation of bail that was granted by a Neshoba County judge last week.
Killen was released on $600,000 bail Friday while his June 21 manslaughter conviction in the 1964 deaths of three young men who were registering blacks to vote is appealed.
It was not clear how long it will take the Supreme Court to consider the revocation of bail.
Circuit Judge Marcus D. Gordon granted the bail, ruling the state had not shown Killen was a threat or flight risk.
Killen, 80, a part-time preacher and sawmill operator, was convicted June 21 for his role in orchestrating the deaths of James Chaney, Andrew Goodman and Michael Schwerner as part of a Ku Klux Klan conspiracy that involved local law enforcement.
The state in its emergency plea argued that Killen’s conviction in the deaths of the three civil rights workers and for telephone harassment in 1975 “demonstrate his propensity for violence and show that his continued release constitutes a special danger to the community.”
Gordon has publicly stated that J.D. Killen, 63-year-old brother of Edgar Killen, made death threats.
Gordon told The Clarion-Ledger that he learned of the threats from a Mississippi Highway Safety Patrol investigator four days before the trial began June 13.
“The investigator learned through an undercover snitch,” the judge said, noting that “nothing happened.”
Gordon said he didn’t take the threat “real serious because I know that guy too.”
J.D. Killen was shadowed by a law enforcement officer the whole trial and the judge had a security detail.
Courthouse access was limited and those attending the trial had to pass through a metal detector.
The state also argued that Killen’s 60-year prison sentence is in effect a life sentence, “thus making his flight from the jurisdiction a realistic possibility.”
The writ also mentioned a bomb threat on the day Killen was arraigned in January at the Neshoba County Courthouse and the extensive security measures in place for the trial.
Attorney General Jim Hood asked for 30 days to “fully brief these matters” and to supplement the petition with copies of relevant documents as they become available.
Hood charged that the lower court “abused its discretion” in granting bail.
The writ mentions a “sealed exhibit” that supplements the argument for keeping Killen behind bars.
Neither Hood nor any assistants from his office attended the bond hearing Friday, although they helped prosecute the case.
Neshoba County District Attorney Mark Duncan represented the prosecution team at the bond hearing — and he angered the judge by asking him to hold off on implementing the bond order until Hood could review it.
“I will not do that,” Gordon said in a sharp reply to Duncan. “That’s not a reasonable request.”
Family members and friends posted the bond which freed Killen.
The Neshoba County Circuit Clerk’s office said the following helped Killen post bond: his brother, Bobby, Frank Richardson, Ray and Jean Hamil and Henry and Marcia Bassett.
Gordon, who gave Killen the maximum possible sentence nearly six weeks ago, said in court Friday that he had little choice but to set bond while Killen appealed his case. Gordon said the state had not proved that Killen, who uses a wheelchair, was a flight risk or threat.
“It’s not a matter of what I feel, it’s a matter of the law,” Gordon said.
During Friday’s hearing, seven people including two ministers and a man who said he was baptized by Killen, testified that the convicted killer was not a flight risk or a threat to the community.
The state presented two witnesses, corrections officers who said Killen threatened them while he was being booked at the county jail after his sentencing.
One of the officers, Kenny Spencer, said that when Killen was asked a standard question for new inmates — whether he was suicidal — Killen told him, “I would kill you before I killed myself.’’
Killen testified in his own behalf Friday, complaining of a lack of medical care since he entered the Central Mississippi Correctional Facility, though he acknowledged that he had been seen by doctors. “They checked me through the line like a cattle auction. I’m very unhappy with the treatment I’ve received,” said Killen, who is recovering from a logging accident in March and required oxygen during his trial.
Killen said he had to bribe another convict to get a pillow. “I can barely sleep,” he said. “I still don’t understand how I could lie in severe pain for 24 hours and no one even bring me an aspirin. I’m not a drug addict.”
A spokesman for the Mississippi Department of Corrections said Killen had received proper medical care and he was not aware of any complaints.
Duncan, on cross-examination, asked Killen about his ability to cross both his legs while testifying.
Killen shot back at Duncan calling him “very observant” and then said he had to rely on his arms to move his legs.
Killen testified that he had lost some use of his right arm and hand while incarcerated but at one point when his wheelchair hit a microphone stand in the courtroom he quickly caught it with his right hand before it overturned.
“I can’t write anymore with my right hand and I have to feed myself with my left,” Killen told the court.
The state also presented as evidence a letter from Rita Schwerner Bender, widow of Michael Schwerner, asking the judge to deny Killen bond.
Duncan also presented a certified copy of the 1975 indictment and judgment against Killen when he was convicted of using threatening language over the telephone.
Gordon served as the DA in that case.
Several people were called to testify on Killen’s behalf at the hearing Friday.
Marcus Herrington Sr., 62, of Union, testified that he had known Killen since he was about 5 years old, recalling that he was a pastor for a number of years.
He said Killen had never exhibited anything that would lead him to believe that he was a threat or hazard to the community.
Duncan asked Herrington if he was aware of Killen’s manslaughter conviction and the 1975 felony conviction, to which he responded, yes.
“Despite all of that do you consider him a peaceful man?” Duncan asked.
“Absolutely,” Herrington testified with emphasis.
Charles C. Rhodes, 65, of Philadelphia testified that Killen was not a threat to the community.
“No way whatsoever,” Rhodes said.
The Rev. Kermit Sharp told the court he was a neighbor to Killen.
When asked about his character, Sharp said his relationship with Edgar Ray was “kind, fair, whatever. He’s just a good neighbor.”
Gerald Crenshaw, 63, of Philadelphia told the court that Killen baptized him when he was 16 years old.
“He’s been a dear friend all my life,” Crenshaw said.
The Rev. Bennie Buckley of Philadelphia, Jerry Wilson of Meridian, and Henry Elmore Bassett of Philadelphia also testified on Killen’s behalf.
The judge’s ruling dismayed some.
Jewel Rush McDonald, a member of the black church where the three victims had made contacts for a voter drive, denounced the judge’s decision after attending the court proceedings.
“We have worked so hard in trying to clear this dark cloud from over Neshoba County and as far as ‘I’m concerned, the judge just set us back 41 years,” she said.
Support for Killen is evident on white supremacist Web sites, and Killen’s lawyer, James G. McIntyre, estimated that he has received 2,000 phone calls offering help since the trial.
Experts have said that Mississippi state law is not clear on the issue of when a judge must grant bail.
The law says that a person convicted of any felony other than child abuse, sexual battery of a minor, or a crime in which a death sentence or life imprisonment is imposed is entitled to be released on bail pending appeal if the convict shows that he is not a flight risk or a danger. But the statute also says that the convict is entitled to release “within the discretion of a judicial officer,” and “only when the peculiar circumstances of the case render it proper.”
Michael Waterstone, a professor specializing in civil rights law at the University of Mississippi Law School, said he could not find case law where a judge had used discretion under those two clauses of the law.
“As written, it doesn’t look black and white,” he said, “but as interpreted, nobody has made it anything less than black and white.”
When Gordon imposed the 60-year prison term, he pointed to Killen’s infirmity and expressed anguish, saying that deciding sentences was “one of the things I never really learned how to do.”
Killen was convicted on June 21 — exactly 41 years after the deaths of Schwerner, Chaney and Goodman. He is the only person to ever face state charges in the deaths, which shocked the nation and helped spur passage of the landmark Civil Rights Act of 1964. The case was dramatized in the 1988 movie “Mississippi Burning.”
Killen was tried in 1967 on federal charges of violating the victims’ civil rights, but the all-white jury deadlocked, with one juror saying she could not convict a preacher.
Seven others were convicted, but none served more than six years.