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Birmingham Bar Association Bulletin - Fall 2013

Special Interest on both counts and I still believe that the State was more prejudiced by the delay than the defendants. For instance, a witness visiting from Detroit identified Tommy Blanton’s car as the car parked behind the church at 2:00 a.m. on the morning of the bombing. Robert Chambliss and two other unidentified white men were in the car. This witness testified against Chambliss, but died in 1985, thereby losing forever critical testimony. “Surviving The Motion To Suppress The Kitchen Tape” In piecing together the chronology of events leading up to the bombing on Sunday morning, there were a series of meetings at the Modern Sign Shop, a local gathering spot for the Klan and anti-integration crowd, and at the Cahaba River Bridge, where Chambliss and Blanton were recruiting others to form a new Klan klavern. Blanton and his girlfriend, Jean, told agents that Blanton broke his date with Jean on Friday night before the bombing to make signs at the sign shop. Cherry, after initially stating he was at home that Friday night, admitted that he was also at the sign shop and that Blanton and Chambliss were both there. The significance of these interviews, given in the early stages of the investigation in 1963, was not realized until January, 2001, when Ben Herren was reviewing tape recordings prior to releasing them to the defense. Although immediately after the bombing, scores of agents hit the streets interviewing witnesses and working informants, FBI Director Hoover and Attorney General Robert F. Kennedy also approved the use of wiretaps and electronic “bugs” on the telephones and at the homes of numerous suspects. While reviewing one of those tapes, made by a “bug” under the kitchen sink in Blanton’s apartment, Ben Herren made a remarkable discovery. It was June of 1964. Tommy Blanton had married Jean and, in the presence of an unknown third person, they were discussing the Friday night broken date and their FBI interviews. Captured on tape was the following conversation, which proved to be a critical piece of evidence: JEAN: Well, you never bothered to tell me what you went to the river for Tommy. TOMMY: What did you tell them I did? JEAN: You didn’t even. TOMMY: What did you tell them I did at the river? What did they ask you I did at the river? JEAN: They asked me what you went for and I told them I didn’t know. TOMMY: They were interested in that meeting that I went to. They knew I went to the meeting. JEAN: What meeting? TOMMY: To the Big One. JEAN: What Big One? TOMMY: The meeting where we planned the bomb. JEAN: Tommy, what meeting are you talking about now? TOMMY: We had that meeting to make the bomb. JEAN: I know that. TOMMY: I think I’ll wear this sh- I’m going to wear this shirt. JEAN: It’s what you were doing that Friday night when you stood me up. TOMMY: (UI) Oh, we were making the bomb. JEAN: Modern Sign Company. TOMMY: Yeah Naturally, Blanton’s defense team filed a Motion to Suppress, claiming a violation of the Fourth Amendment. The microphone had, in fact, been placed in the Blanton apartment under orders from FBI headquarters, but without any court order or judicial review. What our research indicated, however, was that exceptions to the “exclusionary rule” provided a window of opportunity for the admission of this critical evidence. To begin with, in 1963, there were no provisions for court approved electronic surveillance as there are now. The executive branch of government could, however, utilize electronic surveillance for national security purposes. Use as evidence in a trial, however, was prohibited. The law involving the use of electronic surveillance has been altered considerably since 1963. In 1968 Congress passed a wiretapping and electronic surveillance law which requires all law enforcement, state or federal, to get court approval before such investigative tools can be used in criminal investigations and trials. The statute also provides for the exclusion of evidence if a court order is not obtained or the law not followed. See 18 U.S.C. 2510, et. seq. In addition, the Supreme Court has chipped away at the once rigid, absolute rule of exclusion of any illegally seized evidence. Today there are exceptions for, among other things, good faith and inevitable discovery. Today’s Supreme Court has held on more than one occasion that the exclusionary rule is not one of punishment of the offending officer in a particular case, but one of deterrence for future cases and that the value of the truth-seeking process must be weighed against the value of deterrence. In this case, when there exists a legislative statute that completely governs the use of electronic “bugs” there is no deterrent value to excluding evidence based on con- 18 Birmingham Bar Association


Birmingham Bar Association Bulletin - Fall 2013
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