The Birmingham News
04/18/01
VAL WALTON
News staff writer

Bobby Frank Cherry's brain holds the key to whether the 71-year-old former Ku Klux Klansmen will ever face charges that he helped bomb Sixteenth Street Baptist Church.

Circuit Judge James Garrett postponed Cherry's murder trial last week after two evaluations found him mentally incompetent to assist his lawyers. Garrett ruled that Cherry - if he comes to trial - will face murder charges separately from co-defendant Thomas E. Blanton Jr.

Cherry's lawyers have said he has vascular dementia.

"It's a put-on, I think," said the Rev. John Cross, minister of Sixteenth Street during the bombing. "I don't know why all of a sudden he got sick."

Last May, Cherry's attorney, Mickey Johnson, gave Garrett a doctor's report that said Cherry suffered from diabetes, congestive heart failure, claustrophobia and a low tolerance for stress, but there was no mention that Cherry suffered from dementia.

Last week, Cherry's attorney, Rodger Bass, said outside court that Cherry suffered a recent stroke, which can lead to dementia.

Two mental evaluations, one commissioned by the defense and another ordered by Garrett, disclosed the condition. U.S. Attorney Doug Jones, a special prosecutor in the state court case, intends to seek another evaluation within 60 days. "We need to let the experts make the choice," Jones said.

A judge or jury could decide the question in a special competency hearing.

Medical experts said dementia is caused by the death of nerve cells - Alzheimer's disease is a common form.

"The person with dementia loses the ability in the areas of memory, planning abilities and also in everyday activities," said Dan Marson, a lawyer and an associate professor in the University of Alabama at Birmingham neurology department. Small strokes that cut blood and oxygen to the brain can cause vascular dementia, he said.

But vascular dementia rarely comes abruptly, according to Richard Powers, director of the Alabama Department of Mental Health and Mental Retardation's bureau of geriatric psychiatry.

"It usually takes a period of years to develop, although in rare cases it can come on in many months," Powers said. "Only God knows for sure, but having treated thousands, the abrupt onset is very uncommon. It's not the type of disease where one day it's apparent when the other day it was not."

Powers, also an associate professor in UAB's division of neuropathology, said vascular dementia victims could suffer problems in speech, memory and complex motor skills such as driving. He said there also can be subtle abnormalities, such as weak arm muscles and abnormal reflexes.

"Just because you have vascular dementia does not mean you're incompetent or you're incapable of contributing to your own defense," Powers said.

Still, the law requires Cherry's participation.

"Every effort should be made to try the defendants and bring closure to the government's case," said W. James Ellison, a professor at Samford University's Cumberland School of Law. "Nevertheless, they have to be in a position to reflect on what was going on in their lives 37 years ago. In order for a person to be brought to trial, that individual must be competent to assist his attorney in his own defense."

Blanton and Cherry are two longtime suspects in the Ku Klux Klan bombing that killed Denise McNair, 11, and Addie Mae Collins, Carole Robertson and Cynthia Wesley, all 14. A state grand jury indicted the men last May.

Legal experts said the separation of Blanton's and Cherry's cases presents strategic benefits and drawbacks for prosecution and defense alike.

"Clearly, it would be to the advantage of the state to try them together, the evidence will be similar," said Morris Dees, co-founder of Montgomery's Southern Poverty Law Center. "It saves the state from having separate trials."

Michael Shores, a Birmingham lawyer, said in his view the separation could help the defense because evidence against one defendant could prompt the jury to look unfavorably on the other.

But Dees discounted the idea that trying one man's guilt could bolster a shaky case against the other.

"I don't think there would be a dragnet approach," Dees said. "Mr. Cherry would have to face sooner or later the facts - whatever the facts are against him. But I don't believe an indictment would have been obtained without enough evidence."

In the meantime, Cross and many others are watching closely.

"I hope they can bring about a victory," said Cross, who may testify in the case. "It will help a whole lot of people there in Birmingham and other cities."

Shelley Stewart, a black radio talk show host who is co-owner of a marketing firm, said callers have found the timing of the disease odd.

"Many people are saying that it's strange that a few months ago, mental competency was not an issue," Stewart said. "Now, he's not capable to assist his defense. It's very unusual, it not surfacing until trial time.

"There are some questions on that."