Last Chance for Justice

How Relentless Investigators Uncovered New Evidence Convicting the Birmingham Church Bombers

By T.K. Thorne

Chicago Review Press Incorporated

Copyright © 2013 T. K. Thorne
All rights reserved.
ISBN: 978-1-61374-864-0

Contents

Author’s Note,
List of Names,
Prologue,
1 The Mantrap,
2 Bapbomb,
3 The Chambliss Case,
4 Agent Bill Fleming,
5 Old Files and Rabbit Trails,
6 The Chambliss Case: Beginnings,
7 The Trunk Tapes,
8 Dallas Bound,
9 Bobby Frank Cherry,
10 Tipping Point,
11 Mitch Burns,
12 Bobby Birdwell,
13 Michael Wayne Gowins,
14 Don Luna, “Con of Cons”,
15 William “Bill” Jackson,
16 Charles Cagle and “Quick Draw” Yarbrough,
17 Partners,
18 Wyman S. Lee and Pershing Mayfield,
19 Willadean Brogdon Cherry,
20 Sanbomb,
21 Waylene Vaughn and Gloria LaDow,
22 Tommy Frank Cherry,
23 Mary Frances Cunningham,
24 Federal Grand Jury,
25 Police Files and State Grand Jury,
26 The Kitchen Tape,
27 Enhancing the Tapes,
28 Preparing for Trial,
29 The Trial of Thomas Blanton,
30 Blanton Trial: Prosecution Closing Arguments,
31 Blanton Trial: Defense,
32 War Room,
33 Darkest Hours,
34 The Battle Over Cherry’s Mind,
35 The Trial of Bobby Frank Cherry,
36 Cherry Trial: Defense,
37 Cherry Trial: Closing Arguments,
Epilogue: Reflections,
Postscript,
Acknowledgments,
Index,

CHAPTER 1

THE MANTRAP

BIRMINGHAM POLICE DETECTIVE SERGEANT Ben Herren couldn’t think of a reason he would be in trouble — recently anyway — but when his beeper went off with a message to return to the office and see the lieutenant, he acknowledged it with the enthusiasm of a student called to the principal’s office. It was two years prior to the interview with Bobby Frank Cherry, and the bombing of a church thirty-two years ago was hardly on his mind. Herren wrapped up his interview with a burglary victim and headed back to the police administration building without a clue that his life was about to change.

His new boss, Lieutenant Diane Cribbs, had started out on the wrong foot with her detectives. From the minute she hit the door, she made it her mission to change everything. She rearranged the office, the paperwork, and the assignments. Everyone was grumbling behind her back. As senior detective, Herren felt he should do something. On the third day, he told her, “Lieutenant, have you got any idea what my responsibilities are here?”

“Yes,” she said, puzzled. “You’re the South and the West Precinct sergeant over the detectives.”

Herren shook his head. “No, I’ve got three responsibilities, and only three. First responsibility is I gotta get them guys out there to do what you want them to do. Second, I gotta keep them from killing you. Third, I gotta keep you from making stupid mistakes” — he took a deep breath — “and you’re making my job hard.”

To his surprise, she had taken this well, and they developed an understanding, discussing issues and working them out together. Still, he didn’t like being called to her office without a clue as to what it was about. Police are paranoid by nature; it tends to keep them alive.

“Ben, I’ve got an assignment for you,” she said when he stepped through the doorway of her small glass cubicle at police headquarters. Space was a rare commodity in the aging building, which had once been the Birmingham jail — the very one from which Martin Luther King Jr. wrote his famous letter in April 1963 (written on the edges of a newspaper and bits of paper supplied by a jail trustee and smuggled out through his lawyers) declaring that citizens have a moral duty to challenge unjust laws.

“An assignment? More cases than the ones I’ve got?” Herren protested.

She shook her head. “The chief called down and asked me who my best detective was, and I said you.”

He blinked, instantly suspicious. “What am I getting into?”

“He wants you to go over and talk to the FBI. They’re thinking about reopening the Sixteenth Street bombing case.”

Herren was stunned. Birmingham’s chief was Johnny Johnson, the first black chief in the history of the city, so he wasn’t surprised Johnson would be interested in the civil rights struggle. But the church bombing happened in 1963. This was 1995. Herren finally got his wits together enough to say, “Well, you know, that’s an old case,” an understatement if he had ever uttered one.

“Yeah, I know; they’re just looking at it. We’re not even sure we’re going to commit manpower to it, but the chief wants you to go over there part-time and see what you think about it.”

That was how it began for him.

* * *

The real beginning took place several months earlier when Robert “Rob” Langford, the FBI special agent in charge (SAC) invited several black community leaders to the FBI offices to talk. At first none of them responded. Langford went out to meet some of then, enlisting their support in calling a meeting. His intent was simply to talk with them about the FBI and to try to break the ice in the frigid relationship between the Bureau and the Birmingham African American community. When the meeting was finally held, Reverend Abraham Woods blurted out, “Why didn’t the FBI investigate the bombing of the church? The FBI never did do anything.”

The comment surprised Langford, who had come to the Birmingham office in 1993, thirty years after the bombing of the church. He replied that he was sure the Bureau had investigated it extensively. Woods was not persuaded, “Well, they never did anything about it.” Langford promised to look into it.

Near the conversation’s end, Woods fired a parting shot; Langford wasn’t sure whether it was meant to be serious or in jest —”By the way, none of us want to eat your donuts because we’re afraid they’re poisoned.”

Langford called for the case files to look into the matter, and about thirty files were brought to him. The FBI had definitely investigated the case, but closed it after a decade with no prosecutions. Several years later, in 1977, the state of Alabama had tried and convicted one of the suspects, Robert “Dynamite Bob” Chambliss.

Langford was a good friend of Reverend Chris Hamlin, the pastor of the Sixteenth Street Baptist Church at that time. Hamlin introduced him to Petric Smith, the witness who had broken open the case at the Chambliss trial. With Reverend Hamlin’s assurance that the FBI SAC really wanted to reopen the investigation, Petric Smith agreed to an interview with Langford at Smith’s home.

Langford then floated the idea of reopening the investigation to one of the assistant US attorneys and received a “lukewarm reception,” so he turned to David Barber, the district attorney for Jefferson County, who was very receptive and supportive. Langford talked Barber into driving with him to Montgomery to speak to a man Langford thought could answer the question that had burned in his mind since Abraham Woods’s comment. The man was Lieutenant Colonel Bob Eddy of the Alabama Department of Public Safety, the primary investigator in Chambliss’s trial eighteen years earlier.

“In your opinion, Bob, can we solve this case?” Langford asked Eddy.

Eddy’s answer was, “I believe you can, if there are some witnesses still alive.”

Langford asked Eddy to come to Birmingham for a meeting in the FBI’s office. This was the first meeting Herren attended. When Eddy began to talk, Herren snatched out his fountain pen to take notes. Eddy, a quiet, intense man, looked over and nodded in appreciation, “Nice writing instrument.” That small connection was the beginning of a relationship of mutual respect and friendship tying together Eddy, Herren, and Special Agent Bill Fleming, the civil rights investigator for the Birmingham FBI office.

Others present at the meeting included BPD’s Chief Johnny Johnson; District Attorney David Barber, and Assistant District Attorney Roger Brown; as well as a representative from the Alabama Bureau of Investigations and Alcohol, Tobacco, and Firearms (due to the involvement of dynamite in the case).

FBI staff had already worked for several months compiling a list of witnesses, marking those who were dead and those who were still alive. It wasn’t pretty. One hundred and fifteen people on the list were dead. Of the approximately forty witnesses left, what was the chance any would testify? Of the original prime suspects, only two were still alive: Bobby Frank Cherry and Thomas E. Blanton.

Herren did not hold any illusions. No one in the FBI thought they had the evidence to go to trial with the remaining suspects. Their only hope was that witnesses, mostly Klansmen and their relatives, were older, closer to meeting their Maker, and would perhaps want to clear their conscience and “get things right.” It was a slender strand on which to initiate a major investigation. Still, Langford pointed out, there was no way to know without pursuing it.

* * *

After the meeting, Herren went back to his usual responsibilities at the police department. Time passed, and he figured the whole thing was dead. Then another meeting was called. And another. It seemed the FBI followed a pattern he was familiar with in law enforcement — having meetings about having meetings.

One afternoon in 1996, when he had been on the case only on a part-time basis, splitting his time between his police detective duties and the FBI building, Chief Johnson called him into his office. The chief didn’t waste time. “Tell me what you’ve got, sergeant.”

“Well,” Herren said, “we do have two of the main suspects — Bobby Frank Cherry and Thomas Blanton — and a few witnesses still alive. But Cherry is sixty-five years old and not in great health.”

The chief considered him. “You’re the one with the information. What do you think? Is it worth committing manpower to it?”

Herren had been chewing on this question, figuring it was coming. This was his chance to back out. If he said the whole thing was a wild-goose chase, he could go back to the Burglary Unit, returning his life to its status before his lieutenant had called him into her office.

He felt divided on what to say. On the one hand, for him personally, it wouldn’t be a bad assignment this close to retirement. It was something different and interesting, and surely they would allow him a take-home car. On the other hand, he didn’t believe they had any chance of getting a conviction, and he didn’t want to be involved in a losing proposition.

A mountain of files lay in wait, information the FBI had collected during the reign of Director J. Edgar Hoover and the unrest of the 1950s and ’60s. A thorough investigation would involve a lot of grunt work, poring over all that paperwork, and it probably wouldn’t amount to a hill of beans.

Chief Johnson waited for his answer.

Herren had been ten years old when the bomb ripped through the basement of the church — almost as old as Denise McNair and only four years younger than Addie Mae Collins, Carole Robertson, and Cynthia Wesley. He knew what the case meant. The legacy of Birmingham, Alabama, was Eugene “Bull” Connor, the racist public safety commissioner of that era. For the nation, time had stopped in 1963, and the word “Birmingham” evoked pictures of dogs and hoses turned on children. That wasn’t his police department, and it wasn’t who he was. All the pros and cons Herren had weighed back and forth settled on one fact: regardless of the outcome, this was clearly the last chance for an investigation.

He met Chief Johnson’s eyes. He believed this was just going to be an exercise, and they were never going to get a conviction. But if it fell to him to do it, he wanted people to know the Birmingham Police Department had given its best effort.

“Chief,” he said, “if we’re going to do it, let’s do it right. Full-time, not part-time. Let me go over there and see what we can come up with. If we can make a case, we’ll make it. If we can’t, we’ll close it out, but it’ll be put to rest one way or the other for the final time.”

* * *

That was how, in October 1996, he ended up in the “mantrap.”

The small interview room lay between the public area and the secured inner sanctum of the FBI offices, an attempt at security on the fourteenth floor of the old 2121 Building in downtown Birmingham, Alabama. Never meant to be an office — one steel desk, three chairs, and no windows — the room had nonetheless been assigned to Herren. Isolated between two locked doors, he could not have felt more like an outsider … until he learned he was not allowed inside the actual FBI offices. He had to ask for a key and use the public restroom.

At first, several federal and local agencies had been interested in forming a task force, but by the time Langford let DC headquarters know he’d reopened the case with a teletype in April 1996, the investigation had fallen to just the FBI and Birmingham PD, that is, Special Agent Bill Fleming and Sergeant Ben Herren. That was a good thing, as far as Herren was concerned. Too many cooks can spoil the soup — or screw up a case.

The next step was to review all the old files, which needed to be done in secret. If word got out they were opening the 1963 bombing case — and the media would be hot for such a story — it would alert the suspects, robbing the investigators of any advantage surprise might grant them. If they ended up with no case, the expectations and hope built by a premature release would crumble into disappointment and increase community cynicism toward law enforcement.

Herren sighed. It hadn’t been his plan to end his career turning pages in the mantrap at the FBI, but he had chosen it and here he was. It was a far different environment than the camaraderie of the police department. Only three people in the entire PD knew where he was and why he was here. His buddies thought he was working on some kind of federal task force on a theft ring.

He was supposed to be part of a team, but his FBI partner was an older man he’d only met a few times, a senior agent assigned to the civil rights division. Bill Fleming was as icy as the mantrap. As a welcome, he’d brought Herren a file and left him to try to figure out what the Bureau’s codes meant. Like the keys to the bathroom, that was something they couldn’t, or wouldn’t, give him.

Herren clenched his jaw. He wasn’t going to give up just because the FBI rules made things difficult, or because he was sitting alone at a desk, or because his supposed partner hadn’t said more than a handful of words to him. That wasn’t in him. He’d come by his stubborn streak honestly. Fairfield Highlands, a small community just to the west of Birmingham, was a good place to grow up, but it had its challenges. As a kid, when the boys on his block got into fights — pretty much an everyday occurrence — his father let them put on boxing gloves and go at it. Herren was usually the smallest, and he didn’t often win, but he didn’t stop until he couldn’t raise his arms from his sides. Besides, he didn’t intend to stay at a desk forever, no matter how much paperwork they put on it. At some point, he would be out interviewing people.

His plan was simple. He would take in information with an open mind. At this point, for him, no one was guilty or innocent. It was the investigator’s job to look at the evidence and uncover the truth. He would see where the facts led. Maybe he would find a hidden pearl — an overlooked clue, a witness no one had followed up on, something that might break the case open. That’s how it worked — when it worked. Unfortunately, the majority of crimes didn’t have enough evidence to start with and, despite best efforts, they ended up just as statistics. But every now and then, you got lucky. Sometimes you could make your own luck with diligence and a little smarts.

He took a deep breath, picked up a thick file from the 1963 investigation, and got his first surprise.

CHAPTER 2

BAPBOMB

IN 1963, THE FBI’S code name for the Sixteenth Street Baptist Church bombing was “Bapbomb,” which referred to the “Baptist Church bombing.” While the Birmingham Police Department normally would have had jurisdiction over the crime as a homicide, and had even assigned Lieutenant Maurice House to lead the local investigation, President John F. Kennedy tasked the FBI with solving the case.

The FBI’s original jurisdiction rationale appeared to rely on a law enacted in 1960 that made it illegal to transport dynamite over state lines. An early internal FBI memo referenced a newspaper article where a “Federal man” told a reporter, “Slim chance anybody bothered to bring dynamite in from somewhere else. There’s enough dynamite already in Alabama to blow Birmingham off the map.” J. Edgar Hoover wrote on the bottom margin, “I hope no FBI man made any such statement.” The director’s comment prompted a flurry of internal investigation.

Herren had never really given much thought to the case. Many believed the original investigation had been shoved under the rug without much effort being put into it. On the face of it, that was a valid supposition, considering the feds worked the case for years without revealing their findings or bringing anyone to trial. But the first volume of files indicated a different story entirely.

(Continues…)Excerpted from Last Chance for Justice by T.K. Thorne. Copyright © 2013 T. K. Thorne. Excerpted by permission of Chicago Review Press Incorporated.
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