At a scheduling conference today in circuit court in Jonesboro, Judge David Laser ordered attorneys representing Damien Echols, Jason Baldwin and Jessie Misskelley Jr. to file briefs with him by Feb. 18 regarding issues to be addressed at the evidentiary hearing that was ordered last September by the Arkansas Supreme Court.
Laser said he was “giving this case priority” and that he wanted to “get this done as soon as possible.” Laser was appointed to hear the case because the previous judge, David Burnett, was elected to the state Senate.
The conference took place with some attorneys appearing in person and others by speaker phone. Ten lawyers participated in all — four for the state and two each for the three men, known as the West Memphis Three.
As issues to be considered were discussed, Laser said, “As I look at it, they [justices of the Supreme Court] basically want this case pre-tried through the court.” He added, “I’m certainly not limiting what can be presented. If there are additional issues or evidence that needs to come in, they will come in.”
Little Rock attorneys Jeff Rosenzweig, representing Misskelley, and Blake Hendrix, representing Baldwin, noted that unlike Echols, their clients still have appeals pending regarding their Rule 37 hearings to examine the adequacy of their counsel at their 1994 trials for the slayings of three West Memphis children.
Stephen Braga of Washington, D.C., the newly appointed lead attorney for Echols, agreed that while those appeals need to proceed, “No matter what happens to them, this hearing needs to go forward with regard to Echols.” Only Echols faces the death penalty. The other two are serving life sentences.
Laser responded, “Yes, that seems the way it ought to be.”
He told the attorneys, “Let’s operate on the assumption we’re going to move forward on all three cases to the extent we can.”
Attorneys for the three men noted that there was still some hair and fiber evidence that needs to be tested. They said the “intermingled” hairs were of human and other animal origin.
Attorney John Philipsborn of San Francisco, representing Baldwin, told the judge that at one point, after state and defense attorneys had agreed on evidence to be tested for DNA, “The state did some testing of its own.” Philipsborn asked that no party undertake potentially destructive testing of evidence without mutual knowledge and agreement.
Laser ordered that all testing will be “above the table.” The judge also put all attorneys under a gag order. “If a new trial is ordered, we will need to impanel a jury, so a gag order seems reasonable.” He then said he would prefer to “schedule the hearing more or less like an actual trial” and that he dates open in July, August and October.
All attorneys now have 45 days to submit briefs outlining issues they want to present and a schedule for the hearing.
New evidence, including allegations of juror misconduct and DNA findings, prompted the Supreme Court to order a new hearing for the men, whose convictions had previously been upheld. The hearing will decide whether they men deserve new trials.
Philipsborn’s reference to other DNA testing, marked the first time that there’d been an official court reference to the fact that the attorney general did secret, additional DNA testing after no trace of the defendants turned up in the initial round of agreed-upon DNA testing. News of this leaked out inadvertently to the defense and it’s expected to be a subject of discussion in the Feb. 18 briefs. In the meanwhile, lawyers are gagged and attorney general working papers are not open to inspection. Three employees of the attorney general and Prosecuting Attorney Scott Ellington would not comment on the secret testing.