Judge to review mental evaluation of ex-Klansman in church bombing

<br>BIRMINGHAM, Ala. (AP) _ A psychologist testified Monday that a former Ku Klux Klansman tried to fake poor memory when tested on his competency to stand trial in a 1963 church bombing that killed four

Monday, December 3rd 2001, 12:00 am

By: News On 6

BIRMINGHAM, Ala. (AP) _ A psychologist testified Monday that a former Ku Klux Klansman tried to fake poor memory when tested on his competency to stand trial in a 1963 church bombing that killed four black girls.

Circuit Judge James Garrett heard the testimony about defendant Bobby Frank Cherry from a staff member at a state mental health facility where Cherry was held for about 10 weeks.

Garrett previously agreed with the defense that Cherry, 72, of Mabank, Texas, was mentally incompetent to stand trial in the bombing of the Sixteenth Street Baptist Church. After hearing expert opinions, he could either reverse or uphold that decision.

The first expert witness was Al Whitehead, of the Taylor Hardin Secure Medical Facility in Tuscaloosa, who said he administered a ``memory malingering'' test in which Cherry was shown drawings of common household items.

``Mr. Cherry was malingering a memory deficit on this test,'' Whitehead testified.

He said people just guessing would typically score 18 to 32 out of 50 on each of the test's three parts. People without mental impairment typically score 49 or 50, while people with mental impairment typically score 45 or better.

He said Cherry scored 22, 25 and 20. ``He's intentionally selecting the wrong answer,'' said Whitehead.

He added that before started the test on Oct. 19, ``Mr. Cherry just volunteered that he had no memory before 1966.''

On cross-examination, defense attorney Mickey Johnson pointed out that Whitehead's only one-on-one contact with Cherry was during the test, which lasted about 45 minutes.

Earlier in the day, a telephone bomb threat cleared the courthouse and delayed the proceedings for about 20 minutes.

Cherry and another ex-Klansman, Thomas Blanton Jr., were indicted on murder charges last year in the bombing. Garrett delayed trial for Cherry because of questions about his competency, but Blanton was convicted and sentenced to life imprisonment this year. One other Klansman, Robert Chambliss, was convicted of murder in the bombing in 1977 and died in prison. A fourth suspect died without being charged.

Garrett ruled Cherry incompetent after four mental health experts testified the retired truck driver suffered from varying degrees of vascular dementia, which can cause confusion and forgetfulness. The judge's decision sparked picketing of the courthouse and a march by black demonstrators.

The judge later ordered the additional testing at the prosecution's request.

One of the issues to be addressed at the hearing was which legal standard Garrett will use in determining whether Cherry is competent.

In his earlier decision, Garrett said the state failed to prove by ``clear, convincing and unequivocal'' evidence that Cherry was able to understand the proceedings and assist his attorneys.

Prosecutors have asked Garrett to use a lesser standard, requiring them to prove Cherry's competence only by a ``preponderance of the evidence,'' the same measure used in most civil proceedings.

Cherry's attorneys could argue that Garrett should use the more rigid standard.

Cherry was accused of being part of a group of Klansmen who planted a bomb that ripped through the downtown church on Sept. 15, 1963, killing Denise McNair, 11, and 14-year-olds Addie Mae Collins, Cynthia Wesley and Carole Robertson.