Too Much Delay In Trial of `Delay'?

THIRTY-ONE years after civil rights leader Medgar Evers was gunned down from ambush in Jackson, Miss., justice may finally be done. Or will it?

Jury selection is entering its second week in the trial of Byron de la Beckwith (called ``Delay''), an unabashed white supremacist who is charged with shooting Mr. Evers on June 12, 1963. Owing to concern about pretrial publicity, jurors are being chosen in Batesville, Miss., but the trial will take place in Jackson.

Mr. Beckwith was tried for the assassination twice in 1964. Prosecutors presented evidence that the murder rifle belonged to Beckwith, and witnesses said he was near Evers's home the night of the killing. Alibi witnesses placed Beckwith in another city that night, however. In both trials, the all-white, all-male juries deadlocked, and the charges were dropped.

But a grand jury indicted Beckwith again in 1990 on the basis of what prosecutors say is new evidence: Witnesses are expected to say that Beckwith later bragged about shooting Evers, and other witnesses will try to discredit the defendant's alibi.

Three years of legal wrangling followed the indictment. After a long extradition battle (Beckwith now lives in Tennessee), defense lawyers argued that a belated trial would violate Beckwith's constitutional rights. In December 1992, the Mississippi Supreme Court voted 4 to 3 to permit the trial. The prosecutors' final pretrial hurdle was cleared last October, when the United States Supreme Court refused to review the state court's ruling.

Beckwith was an ardent segregationist during the civil rights upheavals of the '60s, and he still hangs a Confederate flag on his porch. His views attract little public sympathy in a state eager to disown its ``Mississippi Burning'' history of racist violence and to burnish a New South image. Most people agree that, if Beckwith is guilty, he should be punished. (Mississippi, like most states, has no statute of limitations on murder.)

Still, many thoughtful people in the state and around the country are raising questions about fairness and due process. An editorial in a Mississippi newspaper asked: ``Do you vindicate Medgar Evers's civil rights by trampling Byron de la Beckwith's legal rights?''

``The judge will have to be very alert to due-process issues,'' says Susan Herman, a professor at Brooklyn Law School in New York and a member of the American Civil Liberties Union's national board.

Legal experts agree with the Mississippi high court that the new prosecution doesn't present double-jeopardy problems, since the earlier trials were inconclusive. But, they say, it raises potential issues under the Constitution's due-process and speedy-trial clauses. The Mississippi judges held those issues in abeyance, ruling that they could be raised only after the trial.

One due-process challenge might be the ``enough is enough'' argument, says James Russ, a defense lawyer in Orlando, Fla. Even in the absence of a double-jeopardy issue, he says, ``You've got to ask: Should the government get three bites at a guy?''

Prof. Vivian Berger of Columbia Law School in New York concurs. ``While mistrials don't preclude subsequent prosecutions, prosecutors can't just keep trying and trying until they hit pay dirt,'' she says.

Another due-process issue, according to Professor Herman, will be: ``Did the passage of time prejudice Beckwith's ability to defend himself?'' The answer to this question will turn on the specific circumstances of the trial, legal experts say.

Problem areas might include the death or unavailability of key defense witnesses, faded recollections or memory tricks, and the loss of some pieces of exculpatory physical evidence. (Of course, the prosecutors will face similar problems in proving their case.)

Then there is what might be called the ``Rodney King'' factor: Will the jurors feel any pressure to convict Beckwith - not to avert a riot, perhaps, but at least to uphold the honor of Mississippi?

The challenge for Mississippi's legal system will be not only to do justice, but also to do it with utmost fairness.

Given the land mines prosecutors face, is their decision to try Beckwith again, after so many years, improper? Not necessarily, says Newman Flanagan, executive director of the National District Attorneys Association in Alexandria, Va. ``Murder is the ultimate crime,'' he says. ``If prosecutors, acting in good faith, think they have enough evidence to convict, it's an easy call. The years don't matter. The ends of justice should be served.''