Strategic Retreat

CIVIL RIGHTS

In September, one month after the bodies of three civil rights workers were found hidden beneath an earthen dam near Philadelphia, Miss., a Justice Department lawyer went before a federal grand jury to seek indictments against several suspects. Instead, the jury indicted five Mississippians--among them Neshoba County Sheriff Lawrence Rainey and Deputy Sheriff Cecil Price --not for involvement in the triple murder but for violation of the civil rights of local Negroes. Whatever evidence the Justice Department offered in connection with the murder of the civil rights workers was apparently insufficient to convince the jury. The Justice Department lost--and the FBI went back to work.

Investigation teams were beefed up, and President Johnson announced that "substantial results can be expected in a very short time." Public pressure, from civil rights leaders and ordinary citizens alike, also mounted, while various circumstantial stories of how the crime had been committed got into print. The Department of Justice took its time in building a case with FBI evidence, but at last decided to move. Agents had already secured at least one confession--and enough other evidence, apparently, to warrant a roundup. And so, early this month, the FBI arrested Rainey, Price and 19 other men on charges of complicity in the murders (TIME, Dec. 1 1).

Ice-Cold Evidence. The next step was merely routine: a preliminary hearing before a U.S. commissioner. In such a proceeding, the Government presents just enough evidence to show a prima-facie case against the defendants. This done, the commissioner normally continues the charges and the bonds against the accused, while a federal grand jury decides whether indictments should be brought.

Last week 19 Neshoba County defendants, trailed by 14 defense lawyers, marched into a courtroom in the Meridian, Miss., Federal Building for the preliminary hearing. Looking on was a curious collection of backland farmers in overalls, local Negroes, big-city Northern reporters and a few young civil rights workers--many of whom badly needed haircuts and a fresh change of clothes. The Justice Department lawyer was young (34), crew-cut Robert Owen. At the front of the room sat U.S. Commissioner Esther Carter, a middleaged, Mississippi-born spinster.

Owen wasted no time introducing a bit of ice-cold evidence. His first witness was Henry Rask. 39, an FBI special agent from Atlanta. Rask said that during three days in November he had quizzed one of the accused, Horace Doyle Barnette, 25, a meat-truck driver who now lives in Cullen, La. "Did you obtain from him a signed confession?" Owen asked. Snapped Rask: "I did."

No sooner had Rask spoken than defense attorneys leaped up all around and objected that the agent's statement was only "hearsay." Miss Carter, who, like many U.S. commissioners, has no formal legal training, furrowed her brow, asked a question, then said: "1 will have to sustain the objection of the defendant. I don't think it would be admissible."

Dropped Charges. Owen was stunned. He argued that the U.S. Supreme Court has ruled hearsay evidence of this kind to be permissible in a preliminary hearing. "The issue," explained Owen patiently, "is not whether there should be an indictment. The issue before the commissioner is whether or not there is a probability that a crime has been committed and that these people committed it." Miss Carter held firm.

Owen asked for a lunch break, put in a phone call to Acting Attorney General Nicholas Katzenbach in Washington, then returned to the courtroom and made a strategic--and temporary--surrender. "In view of the fact that we feel the ruling is wrong," said Owen to Commissioner Carter, "we will simply not produce any more evidence on any of the cases." With that, Miss Carter dismissed the charges and freed the defendants.

The logic behind the Government's backdown was clear enough: federal attorneys did not want to reveal anymore of their painstakingly gathered evidence at the hearings because it would only help defense attorneys plan their strategy for the trial. Thus, while Government lawyers agreed to let the charges be dropped against all 21 men. they just as quickly announced that they would ask that a federal grand jury be convened "as soon as possible" to hear all of the evidence against the accused--in secret sessions without defense attorneys listening in.

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