In Birmingham, a Question of Mental Unfitness

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Declared unfit for trial: Accused former Ku Klux Klansman Bobby Frank Cherry

These are difficult days for Birmingham, Ala. As two of the four men charged in a fatal 1963 church bombing are finally called to trial for their alleged crime, the city once known as "Bombingham" is forced to confront one of the most painful wounds of the civil rights era.

In the years since the deadly blast, one of the alleged conspirators died in jail while serving time for his part in the bombing, and another died before he could stand trial. This week, avowed Klansmen Bobby Frank Cherry, 71, and Thomas Blanton Jr., 62, were both scheduled to go on trial for their roles in the deadly explosion at the Sixteenth Street Church that killed four young black girls and helped to ignite an already smoldering civil rights movement. But while jury selection will begin Monday in Blanton's trial, Cherry's case has been put on hold after presiding judge James Garrett ruled the defendant was unfit to stand trial. The judge's decision sparked debate in Birmingham and around the country — is Cherry getting a bye for his part in one of America's most horrific crimes?

Professor Robert J. Goodwin teaches at the Cumberland School of Law at Samford University in Birmingham, and is an expert in criminal law and psychological testing. He spoke with Monday. Where does Cherry's case stand at this point?

Goodwin: Based on current psychological reports, Judge Garrett has already found that Cherry is incompetent to stand trial. But his finding doesn't mean the case is necessarily over — Judge Garrett is going to review Mr. Cherry's condition in 30 to 60 days, and again periodically after that.

What does it mean, exactly, when a judge says someone is "unfit" to stand trial?

The judge is going to use a standard that looks at a defendant's mental capabilities at this time — not at the time of the alleged crime. He wants to know if a defendant understands the charges against him, and if he can help his attorney mount a defense.

So is this a psychological or mental categorization?

It could be some type of serious physical affliction manifesting itself as mental incapacity. But from what I've seen and heard about Cherry's case, I don't see that he has that kind of physical problem, so I'd have to think of it mental, yes.

Could a defendant fake an "unfit" mental state?

I suppose anything's possible. But in this case, there are going to be so many psychologists, and Cherry will be so thoroughly examined, that I don't see how he could possibly put something over on the court.

Some people are going to look at the indefinite postponement of Cherry's case and say, oh, well, the legal system is too easy on Cherry because this loophole is letting him off the hook just because his lawyer decided to play the "unfit" card.

That's an understandable response, but in fact the standard is much more strict than that suspicion would imply. The issue here is not whether Cherry is criminally responsible for the bombing — that's a whole different issue. When we say a person is not criminally responsible, we are saying they didn't know right from wrong when they committed the crime. When we decide someone is unfit for trial, we are saying they have no idea what's happening right now.

This is about whether Cherry can understand the charges against him. Let's say, for example, he's developed Alzheimer's and has no grasp of what's going on around him. He would have absolutely no understanding of what was happening at the trial.

But Cherry hasn't been cleared of the bombing charges, right?

No, he hasn't. Even though Judge Garrett declared Cherry unfit to stand trial at the moment, Garrett refused to dismiss the charges against him. And that means Cherry could go on trial in the future.

Are there any accusations swirling around Judge Garrett — that he's somehow invested in this case?

I really doubt it — Garrett is thought of very highly. He's considered a very good judge and a very fair judge. And he was left with very few options in this case — when a defense attorney files a brief saying client is not competent to stand trial the judge is required act immediately. So Garrett heard affidavits and psychological testimony from experts and decided there was enough evidence to check things out. So more experts were called in to assess Cherry's state of mind.

This is a very tough judgeship to get and keep, and Garrett knows he has to stand again for election in a few years. He knows voters will remember every decision he makes in this case and in Blanton's, which Garrett's also been assigned.

Is Birmingham ready to deal with Blanton's trial? Are things in the city tense these days?

I think people are a bit afraid; they're sitting on pins and needles waiting to see what will happen in both these cases. These trials dredge up a very painful, very embarrassing time in the city's history. That bombing, that whole time, is not something anyone here can seem to forget. And maybe that's the way it should be.