The Mississippi Supreme Court today upheld the conviction of Edgar Ray Killen for the 1964 killings of Michael Schwerner, James Chaney, and Andrew Goodman. The AP story is here. Killen's 1967 trial in federal court had ended in a hung jury. The decision goes through a number of issues, but the most interesting is the delay-in-prosecution claim. Vague allegations that witnesses have died and memories have faded don't cut it without pointing to specific testimony that is now unavailable. Then there is a remarkable passage:
¶77. Killen argues that the State intentionally delayed prosecution to obtain a tactical advantage. Specifically, Killen tells us in his brief:This Court could take judicial notice that jurors and jury duty has materially changed since the sixties; that the political climate in Mississippi had completely reversed in 2005 from the sixties. It would be foolish to argue that the attitude of the general public has not changed from the sixties all to the advantage of the State and to actual prejudice against the Appellant.
¶78. As we understand this argument, Killen would like us to take judicial notice that, had he been prosecuted in the 1960s, he likely would have drawn an all-white jury, the members of which would probably have been reluctant to convict a white man whose only crime was doing harm to a black man (Chaney) and two white civil rights workers (Schwerner and Goodman). Stated another way, Killen argues that – because of the low regard for the civil rights of African-Americans held by white juries and politicians in 1964 – he was far less likely to have been convicted in a 1964 trial.
¶79. We cannot say Killen’s premise is inaccurate, that is, that “jurors and jury duty has materially changed since the sixties; that the political climate in Mississippi had completely reversed in 2005 from the sixties,” and that “the attitude of the general public” has “changed from the sixties.” That said, however, Killen cites no authority for the proposition that he may satisfy Hooker’s actual prejudice requirement by demonstrating he was denied a trial in a prejudiced “political atmosphere” before a prejudiced “jury” selected from the virtually all-white voter rolls used to select persons for “jury duty.” We shall say no more than to add that we find this argument has no merit, and we are surprised it is made.
Imagine that. There is no constitutional right to a biased jury. Not even in the penumbras and emanations.
Note to other courts nationwide: Numbering paragraphs as Mississippi does is a really good idea. It provides a permanent, vendor-neutral means of point citation on the day of decision.