On August 11th, Shelby County Criminal Court Judge Joe Brown stated that, due to the District Attorney's reluctance, he may seek the appointment of a special prosecutor in the James Earl Ray case. In an order setting August 19th as the next hearing date, the judge wrote that the state seems opposed to discovering the "true facts" of the matter and because of this obstinacy, "The patience of this court has been very sorely tried." Further, Judge Brown added, "The state appears singularly opposed to vigorously proceeding to ascertain the true facts of this case." He characterized the prosecutors as being "further opposed to recognizing let alone protecting the interests of the family of the victim, the late Dr. Martin Luther King Jr."
There seems to be enough evidence to indicate that Brown is correct about the reluctance of the Memphis DA's office to vigorously pursue Brown's evidentiary proceeding to its fullest. Brown has been trying to refine the process of testing the alleged rifle that James Earl Ray had in Memphis and which was supposedly used to kill King there in 1968. The first round of tests came back inconclusive in July. There was a marking on 12 of the 18 bullets test fired which was not on the 1968 death slug. But this may have been caused by either a build up of residue in the barrel from the test fires or from a metal defect in the rifle barrel itself. Brown suggested cleaning the barrel to determine the origin of the marking.
That state attorneys, led by John Campbell, objected to this procedure. Campbell argued that cleaning the rifle with brushes would alter the identifying markings left on any subsequent bullets fired. He then added: "All you're going to do is increase the controversy in this case." Ignoring that remark, Judge Brown also told attorneys to acquire the previously fired test bullets shot by the FBI in 1968 and the House Select Committee on Assassinations in 1978. On July 18th, prosecutors announced to the press that the FBI could not find the original 1968 test bullets. Lee Coffee, an assistant DA, said he had been told, "They have been able to locate copies of the lab notes only. They have not been able to find the bullets." Later in the month, the Bureau said they had found the bullets. Campbell then told the Associated Press:
To think that now, all of a sudden, we're going to be able to do something with these bullets is really pushing it. As much as people may want this gun to tell them something, there's just a limit to how much you can expect it to do.
After Brown's comments about a possible special prosecutor, Campbell again fired a shot at Brown: "This is going completely out of control. He basically wants to conduct his own Warren Commission [and] that's going too far."
It seems that the powers that be in Memphis are siding with Campbell. Brown's colleague on the bench, John Colton, has ordered the transcripts from an April administrative hearing delivered to his office. That hearing and a subsequent appeal decided that Brown's court (Division 9) could hear Ray's appeal even though Ray's original plea in 1969 was in Colton's court (Division 3). This is an issue that the DA's office has also raised in the press.
Campbell seems to have an ally in the local newspaper. The Memphis Commercial Appeal has tried to make an issue of who should be made to pay for the costs of the test firings done by Ray's defense team. This issue made the top of the front page on July 18th. The next day, the Commercial Appeal ran an editorial which quoted the DA's office and their witnesses calling the whole proceeding a waste of time. That editorial is typified by its opening statements: "More than one person may be milking the James Earl Ray case. Possible motives include these: publicity, money, and orneriness." It ended with these comments: "What does Brown want? He may be a bigger mystery than the rifle."
There is little doubt that what Brown is doing is not business as usual in the King case. When prosecutors challenged his actions in court by saying he had stepped over the line from being a judge to becoming an advocate, Brown retorted: "We're trying to get the facts. Dr. King is in his grave, a national hero, a world hero. And I'm ... getting to the facts." Brown was also forceful on getting the original 1968 round of test results:
The federal government has impounded that evidence and sealed it for the next 50 years. The court thinks, among other things, that justice might be served if we were able to examine those bullets and the court feels the state of Tennessee has a claim on evidence that pertains to this case.
Brown seems to have recognized that other investigative bodies, including Ray's first lawyers, have not exactly been vigorous in their pursuit of truth in the case. As a judge, Brown has never been afraid to try new and innovative methods when others have been shown to be ineffective. In regard to alternative sentencing, Brown has said:
What I do see is what's been tried in the past has not worked. Otherwise, if it had of, the situation would not be as it is now. Something new needs to be tried.
We agree. We also find it a bit perverse that because Brown is actually intent on pursuing a fair hearing for Ray, and genuinely trying to get to the bottom of whether or not Ray fired the fatal bullet that killed King, people are getting edgy and uncomfortable.
In his August 11th announcement, Brown also seemed to be leaning toward another round of test firings. Brown suggested finding a way to clean the rifle without damaging the inside of the barrel. Brown signed an order that same day requiring the FBI to produce the bullets for the next hearing.
These new developments have continued to give the King case a high profile in the media. Readers will recall that in our last issue (p. 29) we mentioned a creditable piece written by Jim Lesar for the June 8th Washington Post. In an interview with Probe, Lesar provided us some insight into how major papers like the Post handle high profile cases like this one. Lesar told us the piece finally printed was his third effort. His original, much stronger, piece questioned the original guilty pleas by Ray. It minutely examined the questionable methods and ethics used by his original lawyers — Percy Foreman and Arthur Hanes — and author William Bradford Huie in coercing him into pleading guilty, an action Ray now regrets. Lesar backed this up with evidence discovered in proceedings against Foreman when he was acting as Ray's lawyer in the seventies. All of this was cut out of the piece as run because, the Post editors told Lesar, Ray was "presumed guilty." By who? The Post?
On the good side, Bob Scheer of the Los Angeles Times wrote a vigorous piece (7/15/97) questioning J. Edgar Hoover's role in the death of King. But the real surprise was the New York Times. On July 6th, it ran an unsigned editorial titled "The Amnesty Option." This was a response to the King family's wish as expressed by Andrew Young on ABC's Turning Point in June. The opening lines of the editorial read:
Crimes that tear the soul of a nation should not be left examined or obscured by mystery. South Africa has shown the healing power of truth as it looks back at the crimes of apartheid ... But it is also true that contemporary American society is still haunted by some unresolved questions that nag at the national conscience. Such questions, if left unresolved, promise to provide fodder for conspiracy theorists for decades to come.
The editorial then noted two traumatic incidents that "have proved especially fertile for conspiracists," namely the JFK and MLK murders. Although the Times had reservations about the process, it did say, "we see enough merit in the idea to recommend a broader national discussion." It then recommended that the Clinton administration consider the concept. We have heard no response yet from the White House.
Significantly, the Times noted that the clock is running out on the window of opportunity: "The lifetime of unidentified witnesses and conspirators, if they exist, is fast running out." To dramatize that thought, Frank Holloman, who was police and fire director in Memphis in 1968, died eleven days after the Times editorial appeared. Holloman would have been a prime witness either in a new trial for Ray or before a Truth Commission. Not only did he run those two important departments, but prior to that, he had been an FBI agent for 25 years. In seven of those years, he was in almost daily contact with Hoover as inspector in charge of the director's office.
It seems a bit late in the day for the New York Times to change its tune. In fact, for them, it's almost midnight. If the major media would have poured its resources into any of the major assassinations of the sixties when they occurred, time would not be "fast running out." One thing the Times and other media could do while waiting for Clinton's answer is push for the declassification of all the files on the King case. This would greatly aid Ray's attorney Bill Pepper if Brown is allowed to reopen that case. It would also decrease the anxiety of conspiracy theorists like us. It may even show that we actually share a lot of the concerns of people like John McCloy and Gerald Ford (see page 3).