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Birmingham Bar Association Bulletin - Fall 2013

Special Interest “How And Where Do You Begin With A Case That Old?” All of the old investigative files remained at the Birmingham office of the FBI. Special Agent Bill Fleming was assigned the task of compiling the file and beginning the painstaking task of review. He was joined by Birmingham Police Detective Ben Herren, who was assigned to work the case full time. Ben would later retire and finish the case as an FBI Research Analyst. Once the files had been reviewed and the agents felt that they had a handle on the facts, it was time to begin interviewing witnesses. But before the FBI would take to the streets, and thereby expose the fact that the case was being re-examined, what proved to be a critical decision was made concerning the first interview to be conducted. In the summer of 1997, Ben Herren and Bob Eddy, who had been Baxley’s investigator in the 70’s, interviewed Bobby Frank Cherry in Texas for about two hours. Although almost 70 years old, Cherry was as cocky and defiant as ever. His two hour interview provided some helpful information, but it was his post interview press conference that really jump started the case. Although nothing had been publicized about the case being re-opened, Cherry decided to call a press conference to proclaim his innocence and to denounce the agents for continuing to hound him. When he did, the phones at the FBI began ringing: Cherry’s granddaughter called to say she had overheard her grandfather admit to blowing up the church and that everyone in the family knew the story; a co-worker from his Texas carpet cleaning days called to say Cherry had admitted his involvement to him back in the early 80’s; and a man who was a friend of Cherry’s oldest son and only 11 years old at the time of the bombing called to say that in the days before the bombing he had been at the Cherry house and overheard Cherry and three other men talking about a bomb and the 16th Street Baptist Church. The Cherry interview and press conference provided the breaks that were needed to move the investigation forward “Federal vs. State” Shortly after the Cherry interview and press conference I was sworn in as United States Attorney for the Northern District of Alabama. What I found with this file was that while the new witnesses had sparked some hope, there was very little else that was encouraging. There was no forensic evidence from the scene, no DNA and no residue of explosive material. There were no eyewitnesses, or at least none that had come forward. There were no co-conspirators who had decided to get this off their chest before they pass from this life into the next. Over the years many potential witnesses, and suspects, had died and many others were elderly and frail. What we did have was a series of circumstances, including many of the prior statements of Blanton and Cherry, that clearly pointed to the guilt of these two men. We assembled a team to begin the next phase of the investigation that would include having witnesses appear before a federal grand jury. Robert Posey, then a 10 year veteran of the U.S. Attorney’s office, was assigned to assist. Jeff Wallace, one of the most seasoned prosecutors in the Jefferson County DA’s office, came on board. Following the Blanton trial, Assistant U. S. Attorney Don Cochran was added to assist in the Cherry trial. It was essential that we have both state and federal prosecutors looking at this case because of the uncertainty of federal jurisdiction. Initially, all investigation was conducted out of the U.S. Attorney’s office and the federal grand jury. But, federal jurisdiction hung by a thread. The statute of limitations for all civil rights violations had long since run. However, under 18 U.S.C. 841, et. seq, as it was written in 1963, there was no statute of limitation when a death resulted from the offense of interstate transportation of explosives. The problem for us was that with no forensic evidence we did not know exactly what explosives were used, much less where they came from. Fleming and Herren chased leads all over the country, but to no avail. In the end, there was no proof of any interstate transportation of explosives leaving state murder charges in Jefferson County as our only option. In May of 2000, with the express approval of both U.S. Attorney General Janet Reno and Alabama Attorney General Bill Pryor, we began presenting our case to a state grand jury. Three days later, the Grand Jury indicted Tommy Blanton and Bobby Frank Cherry for the murder of the four young girls who died in the bomb blast of the 16th Street Baptist Church. “Surviving The Motion To Dismiss” Defense lawyers for both defendants filed motions to dismiss the indictments, citing the age of the case and the loss of witnesses as evidence that their clients would be denied a fair trial if forced to defend themselves on a 38 year old murder charge. The law in Alabama, however, is difficult for a defendant to be successful in this type of motion. The defendant must show not just a delay, but an intentional delay designed to gain a tactical advantage and that the delay caused actual substantial prejudice to the conduct of his defense. In the end, the defendants failed Birmingham Bar Bulletin/ Fall 2013 17


Birmingham Bar Association Bulletin - Fall 2013
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