US: Law to bring civil rights-era crimes to public view stalled

In spite of a law to that effect, the process meant to make public case documents from investigations into unsolved civil rights movement-era hate crimes has languished because US President Donald Trump has so far not appointed a review board central to gathering and declassifying the files, observers say.

The Civil Rights Cold Case Collection Act of 2018 – passed by the president in January 2019 – calls for the creation of a public archive of civil rights-era “cold cases” – unsolved killings that appear motivated by racial hatred that occurred between 1940 and 1980 during the movement for equal rights for all citizens in the US.

The digitised collection at the National Archive and Records Administration (NARA) is intended to pool all relevant documents from any federal agency, including “any State or local government” that worked in connection with a federal civil rights cold case investigation.

The law also calls for a five-person review board to serve as “an independent agency” that will “ensure and facilitate the review, transmission to the Archivist, and public disclosure of civil rights cold case records”.

The board would mediate challenges to making the documents public, while maintaining certain investigative abilities, including the right to seek testimony and facts surrounding records and to “subpoena private persons to compel the production of documents and other records”, which were often only attainable through lengthy Freedom of Information Act (FOIA) requests and court challenges.

The release of cold case investigative files can shed light on how justice was approached when it came to racially motivated killings of Black people, said Stuart Wexler, a teacher at Hightstown High School in New Jersey.

Wexler’s advanced-placement Government and Politics came up with the idea for the law in 2015, helped draft, and has for years been monitoring the implementation of the legislation.

Moving the cases into the public domain has taken on special significance, Wexler noted, amid the most recent national reckoning the country’s treatment of Black Americans following the death of George Floyd in Minnesota police custody.

“We’re in a national conversation right now about law enforcement and prosecutorial responses to the taking of Black lives,” said Wexler. “But we haven’t gotten the history of that from 40, 50 years ago … We need these files for that component, for us as a nation to really start to interrogate why, historically, haven’t these cases gotten to the point where they deserve to be?”

Eventual justice

Groups that monitor civil rights-era cold cases said granting access to the files may also lead to eventual justice by allowing journalists, academics and independent sleuths to examine the cases outside of official investigations.

“Sometimes these files that aren’t seen by the public can play a role in these cases being reopened and reprosecuted,” said Jerry Mitchell, an investigative journalist and leader of the Mississippi Center for Investigative Reporting.

Mitchell’s reporting, detailed in his book, Race Against Time, helped prosecute the man who killed civil rights organiser Medgar Evers, who was fatally shot in 1963 in Mississippi. His work also led to the prosecution of a suspect in the 1963 bombing of the 16th Street Baptist Church in Birmingham, Alabama. The attack killed Addie Mae Collins, Carole Rosamond Robertson, and Cynthia Dionne Wesley, all 14 years old, and 11-year-old Carol Denise McNair.

“Certainly, in my reporting along the way, I’ve had a lot of those kinds of situations where you’re able to find old documents, the old FBI files or law enforcement records that help you kind of piece a case together that you wouldn’t have otherwise,” he said.

In 2006, the FBI launched the Cold Case Initiative, which called for the Department of Justice to identify, review and if possible prosecute unsolved racially motivated murders committed decades ago. Under that and the 2008 passage of the Emmett Till Unsolved Civil Rights Crime Act, the FBI and Justice Department have closed 116 of the 132 incidents investigated.

As of their most recent 2019 report to Congress, 60 of those cases were closed because of the death of “all identifiable subjects”, and 37 were closed because of “insufficient evidence to prove violation of any relevant civil rights statutes”. The remaining 19 were closed for a combination of reasons, including “inability to overcome legal hurdles” such as statutes of limitation or double jeopardy.

However, outside scrutiny of cases closed by the FBI has in the past yielded new leads.

In 2019, US broadcaster National Public Radio (NPR) reported that its journalists, using only the FBI case files from the closed investigation, were able to identify a man who had participated in the murder of Boston minister James Reeb, killed in 1965 during a voting-rights campaign in Selma, Alabama. The suspect died shortly after his involvement was confirmed.

NPR also learned that the case files had never been shared with local authorities.

Even in cases where justice in the courts is no longer possible, the truth can still come out, Mitchell added. 

“I think in order to have justice, you have to have truth. And even if justice is impossible, truth is still possible,” Mitchell said. “A lot of these families have never known the truth of what happened to their loved ones.”

As time passes, the window for offering that truth to surviving people who directly knew the victims is also closing, Wexler said.

“Every time I see, for instance, a cousin of Emmett Till passing away, I think well there’s one more relative of a victim who has passed on without getting all the answers they deserve,” he said, referencing the 1955 killing of 14-year-old Till by two white men in Mississippi, for which no one has ever been convicted. 

The FBI announced in 2018 that it had reopened Till’s case, citing the “discovery of new information”, without offering further details. The announcement came after a new interview with Carolyn Bryant Donham, who had accused Till of making vulgar remarks and grabbing her, was published. In the interview, Donham said those allegations were untrue.

The year Till was murdered, Roy Bryant and JW Milam were prosecuted for the killing, but acquitted by a jury. A year later, they confessed to the murder in an interview with a magazine, but lived the rest of their lives in freedom. There has long been speculation that more people may have been involved. 

No board appointed

Trump signed the bill at the tail end of a two-year legislative session, but included a lengthy statement detailing “several serious constitutional concerns”, including issues of the bill possibly being interpreted to allow interference with executive privilege and the “integrity of the law enforcement processes”.

He also took issue with the review board’s purported “authority … to compel agency heads to provide cold case records to the Board”, its investigative powers, and its ability to make decisions on public disclosure of documents.

The legislation calls on the president, “if practicable”, to appoint the board within 120 days of the law’s passage, or 60 days of receiving recommendations from several legal and historical organisations.

Those organisations began providing recommendations in July of last year. 

The delay creates several issues, including cutting into the four-year time period the board has to complete its work. The board can vote to extend for one year, after which new legislation would be needed.

While the White House did not respond to a request for comment from Al Jazeera, an administration official told Politico this week they are “actively vetting candidates for appointment to this board”.

In a June letter to Trump, Senator Doug Jones, who co-sponsored the bill, noted that if appointments are not made, it is unclear what will happen to the one million dollars allocated by Congress for Fiscal Year 2020, which ends September 30, to support the board’s work.

“As our country is once again grappling with important questions related to civil rights, I urge you to appoint the Civil Rights Cold Case Records Review Board as expeditiously as possible and fulfill the promise of this important legislation,” Jones wrote.

Wexler’s students have also been trying to find ways to try to get the president’s ear.

“We’ve done research on who’s really close with the president, and we were figuring out how we could ask them to put pressure on the administration,” said Rachael Hu, a 16-year-old student who has been involved in the process for two years.

“I honestly feel like having this opportunity is kind of like a big once-in-a-lifetime thing to make a change,” she added.