“When James Bogan Weems went to work on March 9, 1968, there was no reason to anticipate that before the day was out he would be a corpse, made so by an armed robber…”. So begins this tale of woe.

Bogan was my father’s first cousin. He was a World War II veteran having served in an anti-tank company of the 155th Infantry. On his last night working as the manager of the Red Bird Service Station in Clarksdale, MS, he was shot and killed by one Tommy McNeal. Obviously, if he was killed that night, it was his last night working there or anywhere else, but our tale is compounded in its woefulness in that Bogan had accepted another job, and that fateful night was his final scheduled shift.

As I so oft heard the story, Bogan had regularly made bold pronouncements as to what he would do if anyone ever tried to rob his station. True to his word, Bogan put up a fight with his .32 Smith & Wesson, but 3:1 are bad odds when you are flying solo. Tommy McNeal was not alone.

There was no profit for their misdeeds as our antagonists dropped the money in the midsts of their gunfire hastened departure.

Bogan’s demise was one of those precautionary tales of my youth; as much a part of my upbringing as another that I have related.

My grandmother told me that Bogan’s killer had gotten off on a technicality, but she never offered details. One day I was inspired to consult the all-knowing Google, and right there just waiting for me to come looking were the court decisions in the case.

Tommy McNeal fled to Chicago, but he was captured. At the initial trial, one of the prosecution witnesses did not testify as expected, at least as expected by the prosecutor, who then asked for and was granted a mistrial on the grounds that he wanted a do-over.

A second trial resulted in a conviction and sentence of life imprisonment for McNeal. He appealed claiming error in the jury instructions, but the state of Mississippi was wont to turn loose a killer.

After his state-level appeals were exhausted, McNeal’s lawyers filed a federal habeas corpus petition.  It was denied at the district court, but the federal appellate judges undertook a more strict reading of the Constitution than did their Mississippi and federal district counterparts, and they found fault with the prosecution’s tactics; thus a killer was set free.

The quote at the outset of this piece comes from a dissenting opinion in the appellate court’s holding as does the title which is derived from the following quote:

“Nevertheless, all persons, including killers, are entitled to certain specified protections vouchsafed by the Constitution of the United States.”

The dissenting judge pointed out that a claim of double jeopardy was not raised at the second criminal trial as it should have been; however, the rest of the appellate court didn’t seem to think that poor lawyering was cause to overlook the Constitution.

For brevity’s sake, I didn’t outline all of the prosecutorial shenanigans in this case.  They are detailed in the federal appeal.

While I see the validity in the dissenting opinion, I can’t escape the fact that the prosecution botched the case, and the rules are that the burden is on the prosecution, vouchsafed protections and such, even when it is my kin being made a corpse by an armed robber.