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"crosstar" <crosstar@nationalist.org> wrote in message
news:5QNge.17973$0i3.9191@bignews3.bellsouth.net...
> THE KILLEN-COMPETENCY CONUNDRUM
>
> Richard Barrett
>
> When Edgar Ray Killen invited me to church with him, on July 4, 2004,
> later that day the aged preacher asked me if I would represent him as a
> lawyer, insofar as there was talk that he would be re-prosecuted for
> running Communists out of Mississippi during the Sixties.  Killen seemed
> almost to have assumed that I would be his lawyer, insofar as I am a
> high-profile, anti-Communist litigator, and that I had accepted his
invitation
> because I wanted the case.  When I explained that I could not represent
> him, he seemed taken aback, almost incredulous.  I mentioned that I "wore
> various hats," in that I represented The Nationalist Movement, was a
> political-figure, in my own right, and edited an independent newspaper.
> "There could be a potential conflict of interest," I said.  Actually,
there was
> another, even more important reason.  Killen was not competent to be
> represented by a lawyer.  His mental condition had deteriorated to the
> point where his thoughts would wander, so much that he would forget
> what he was saying, mid-sentence.
>
> I quickly observed the mental-disability, as soon as we met.  Killen,
> himself, even acknowledged it, attributing it to "getting old."  Attorney
> ethics prohibit a lawyer from representing someone who is unable to
> effectively communicate with his legal-counsel in his defense.  A lawyer
> who violates that prohibition can be disciplined and disbarred.  The legal
> standard for a man to be relieved of standing trial, for mental reasons,
> is that he does not know the difference between right and wrong, sometimes
> called the McNaughton Test.  So there is a "grey" area, where a lawyer
> may not be able to represent him and, yet, he is competent to stand trial.
> Faced with such a conundrum, a prospective lawyer is bound to submit
> his prospective-client to a psychiatrist and report back to the court.
> The judge then makes a determination if the lawyer may proceed with
> the representation.  Or, the judge might direct that a guardian ad litem
> be appointed, to represent the client's interests.
>
> I learned, later on, that Killen had filed a complaint against Travis
> Buckley, his previous lawyer who had lost a phone-threat case, charging
> "ineffective assistance of counsel."  Killen failed, but I would have been
> hesitant to represent someone, notwithstanding, who had filed such
> charges, even though I knew that Buckley was an ineffective lawyer,
> who had lost the Sam Bowers case.  I was chagrined that no psychiatric
> exam had been given to Byron De La Beckwith, another Sixties'
> anti-Communist tried by an affirmative-action jury after previous juries
> had failed to convict him.  I wrote to Beckwith's lawyer, Merrida Coxwell,
> suggesting that such an examination be conducted, even though I knew
> that Beckwith vehemently opposed it.  The evaluation, however, is the
> duty of the lawyer to the justice-system, not to the client.  Coxwell
> declined my request.  Beckwith, then, asked me to represent him, but,
> since he already had a lawyer, I could not.   And, the time to posture
> a case is at the outset, not the end-game.
>
> Traditionally, a lawyer had been prohibited from soliciting a client.  The
> condemned practice was known as "ambulance-chasing."  The rule was
> modified during the Sixties, however, to accommodate Communist lawyers
> who came South and volunteered to defend Negroes and hippies, who
> had been jailed for trying to overthrow the government.  If the rule had
been
> enforced, Communist-invaders Andrew Goodman, Michael Schwerner and
> James Chaney, jailed in Neshoba County, Mississippi, would probably still
> be in jail and the South free from insurrection, intimidation and
integration.
> On the other hand, when Killen mentioned obtaining a lawyer, I recommended
> Percy Stanfield, who had successfully defended Sixties' anti-Communists.
> I urged Stanfield to have some assessment made, at an appropriate time,
> of Killen's mental-state.  Killen did not take my advice, but retained
Mitch
> Moran, who had no experience in political cases, and James McIntyre,
> who had a lengthy record of losing cases.
>
> I did ask Killen if I could publicize him and his cause, using the
political
> rather than judicial system, and he had agreed.  I published interviews
> with him about James O. Eastland, Kirk Fordice and Dunn Lampton and
> set up a petition-drive in his behalf at the Mississippi State Fair.  His
> interviews showed support for the right to keep and bear arms, segregation
> and Christianity and his fair-appearance was to highlight the right to a
> speedy and fair trial.  As plans proceeded, I encountered Killen's usual
> "memory lapses" and inability to communicate, but did not consider them
> an impediment, since we seemed to be on-track on essential details, until
> Killen's wife told reporters that Killen "never intended" to take part.  I
> figured, at the time, that he had either changed his mind or been
pressured
> to withdraw, although I wondered if he could have been so bereft as to
> have forgotten everything he had discussed.
>
> Moran was asked by reporters, the day that he accepted the case, if
> Killen was mentally competent.  Moran stated emphatically that he was.
> This puzzled me, because, to me, the mental-disability had been so
> apparent.  Moran had an ethical duty to secure a psychiatric evaluation.
> However, in the Beckwith case, I had sought an opinion by the state bar on
> the degree of responsibility of the lawyer and was told that, essentially,
the
> decision is up to the lawyer, himself, whether or not to secure a mental
exam.
> So, if the lawyer makes the wrong decision, involving a client in his
eighties,
> by the time the issue of ineffective counsel could be raised, the client's
> lifespan would likely have run out.  In an interview with Swedish radio, I
> reiterated that a trial might never be held, because of Killen's
incompetency.
> But, reporters pointed out that Killen had seemed "strong" and "firm"
> during his initial court-appearance.
>
> It turned out that my assessment of Killen's diminished capacity was
correct,
> however.  Shortly before the trial was scheduled to commence, McIntyre
> claimed that Killen was incompetent.  He attributed the mental defect to
an
> injury which Killen had suffered earlier in the year, in which a tree had
fallen
> on him, breaking both his legs and knocking him unconscious.  According to
> McIntyre, Moran was, also, contemplating raising the competency issue.  I
> plan to rasie it when I meet shortly with Attorney-General Jim Hood, as
well.
> When I spoke to Beckwith, after his trial, Beckwith told me that he had
been
> "dazed" through the entire proceeding.  He did not recognize a transcript
of the
> case, which I showed him, and did not recall Coxwell praising Martin
Luther
> King, who Beckwith had opposed, all of his life.  One fully in control of
his
> faculties would have, arguably, stood up and denounced his own lawyer,
> pursuing a line diametrically opposed to his own.
>
> In a political trial, of course, the defendant is obliged to take the
stand,
> to testify as to the injustices which prompted him to step away from
watching
> television to becoming a social-reformer.  The standard criminal-defense
> of "he didn't do it, he wasn't there, he knew nothing about it" doesn't
usually
> work, when the appeal is not as much to a judge of a court, but to the
judge
> of all history.  Moran, however, has placed Killen before cameras doing
just
> that, in contradiction to his interview with me that he would never betray
his
> beliefs or his people.  In order to testify, the defendant must have the
> support of his lawyer and be competent.  If a lawyer prohibits the client
> from testifying, on the grounds that his incompetence will be revealed and
> "make the lawyer look bad," he does a disservice to not only the client's
> cause, but to the justice-system and political-system.  If he feels that
the
> client is competent, but forces him into a strictly criminal-defense or
keeps
> him off the stand, he, likewise, fails.
>
> Coxwell said that he did not call Beckwith to testify because Beckwith
> "had no memory" of past events.  All the more reason to put him on the
> stand, to let everyone see that an old and infirm man is not just being
> prosecuted but persecuted. Some had suggested that I had "concocted"
> the state-fair petition-drive in an "overzealous" way of positioning a
> recalcitrant Killen.  However, since Killen's mental-disability is now out
in
> the open, it becomes clearer why the man may have "backed out."  He may
> not have realized what was even going on around him.  Or, his "memory
> lapses" may have kicked in, when plans were being discussed, unbeknown
> to me, making it difficult to distinguish between "lucid" and "lapsed"
> intervals.  McIntyre did not know Killen, before Killen's injuries, but
should
> have assessed Killen's state of mind, before signing on. Anything but a
> kangaroo court would protect a diminished-capacity defendant, however,
> even if a lawyer did not.
>
> http://www.nationalist.org/alt/2005/killen.html
>
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