A Birmingham judge reversed himself Thursday and ruled that former Ku Klux Klansman Bobby Frank Cherry is mentally competent to stand trial on murder charges in the 1963 church bombing that killed four black girls.
The decision stunned many and set the stage for the second emotional trial of an ex-Klansman in the last year. In May, a Birmingham jury took 2 1/2 hours to convict Thomas E. Blanton Jr. for his role in the bombing, considered one of the most coldblooded crimes of the civil rights era.
There were no reasons provided in the two-sentence ruling issued by Circuit Judge James Garrett, who had initially deemed Cherry, 72, unfit for trial because he appeared to have suffered severe memory loss.
But at a hearing in December, prosecutors called several mental health experts who testified Cherry was faking a bad memory to avoid prosecution.
The judge scheduled a hearing for Jan. 18 to set a trial date, which federal prosecutor Robert Posey said he expects to be in April.
John Robbins, the lawyer who represented Blanton, said the Cherry case is much weaker.
"In Blanton's trial, you had the tapes," Robbins said, referring to 37-year-old reel-to-reel recordings of incriminating conversations made by the FBI. "But I looked at the evidence for the Cherry case and there are no tapes. The prosecution is going to have to rely on witnesses to remember what Cherry told them 40 years ago. That won't be easy."
Posey said "over half the evidence" will be new.
"We're not going to use those tapes. That's as specific as I'm allowed to get," said Posey, the lead prosecutor on the case.
Alpha Robertson, the 82-year-old mother of Carole Robertson, one of the girls killed, was in her Birmingham living room when she learned Cherry was headed to trial.
"Yes, we've been waiting for this," Robertson said. "But I better not say anything more."
Cherry's attorneys did not return calls.
The case goes back to Sunday morning, Sept. 15, 1963, when four girls in white dresses were getting ready for Sunday services at the 16th Street Baptist Church. Addie Mae Collins, Cynthia Wesley and Carole Robertson, all 14, and Denise McNair, 11, were primping in a basement lounge when 10 sticks of dynamite exploded outside and brought part of the brick and concrete church down on top of them.
Within days, FBI agents had identified four suspects, all known segregationists and members of the Ku Klux Klan: Robert E. "Dynamite Bob" Chambliss, Herman Frank Cash, Cherry and Blanton.
Despite evidence gathered through informants and wiretaps on the men's phones, then-FBI Director J. Edgar Hoover called the agents off. An Alabama jury--likely all white men--would never convict the Klansmen, Hoover said.
The decision provoked outrage at a time when the civil rights movement was cresting in the Deep South and Birmingham was at its turbulent center. The 16th Street Baptist Church was known as a gathering spot for activists, who often had to dodge fire hoses and police dogs to get there.
The bombing case remained inactive for years, but in 1977 Chambliss, considered the mastermind, was convicted of murder. He died in prison eight years later.
Cash died in 1994. In 1993, the head of the FBI's Birmingham office reopened the case. After four years, the FBI began to close in on Cherry, a retired truck driver and carpet cleaner living in Mabank, Texas, and Blanton, a clerk at a Birmingham-area Wal-Mart.
Last year, Blanton, then 62, went on trial. The key evidence against him was the tapes, in which Blanton never said he bombed the church but bragged to a friend, "I like to go shooting, I like to go fishing, I like to go bombing."
Blanton's lawyers fought to keep the tapes out of the trial and are appealing the verdict. He was sentenced to life in prison.
Cherry was expected to stand trial with Blanton but was dropped from the case after the judge ruled he was mentally incompetent. Cherry told his lawyers he couldn't even remember the names of his ex-wives.
He was committed to a state mental hospital and evaluated for 71 days, at the insistence of prosecutors. Several psychologists who evaluated him testified he didn't have serious memory problems and was affected by taking too much of an anti-anxiety drug. He was intentionally selecting the wrong answers on memory tests, one expert said.
Birmingham Mayor Bernard Kincaid issued a short statement Thursday that spoke to the sense of closure for which many yearn.
"It is my hope that the citizens of Birmingham will accept the verdict which ultimately will be returned, and in doing so will close forever this dark chapter in our history."
Times researcher Edith Stanley contributed to this report.