Attorneys attack and director defends quality of crime lab’s work
‘Somebody who knew what the hell they were doing would not have made this mistake.’
—Baldwin attorney John Philipsborn
‘I think we’ll have an opportunity to address … these very things.’
—Kermit Channel, the lab’s executive director
The West Memphis Three are free and Arkansas officials say they’re satisfied with the men’s guilty pleas, but the battle over work done by the Arkansas State Crime Laboratory in their case has entered another round. And this time it’s not in court.
Last week, John Philipsborn, an attorney for Jason Baldwin, sent letters to three Arkansas officials—Gov. Mike Beebe, Attorney General Dustin McDaniel, and Prosecuting Attorney Scott Ellington—complaining about the quality of forensic science the state lab produced for the trials that resulted in murder convictions for Baldwin, Damien Echols and Jessie Misskelley.
In his letter to Beebe, Philipsborn wrote that, “somebody in Arkansas has to acknowledge” that “flawed” testimony about fibers and other forensic evidence at the men’s 1994 trials created “a pretty monumental problem” that state officials must now address.
At those trials, a criminalist for the state lab, Lisa Sakevicius, testified that fibers found with the bodies of three West Memphis murder victims were “undifferentiated” from fibers retrieved from Echols’s and Baldwin’s homes. At the time, Philipsborn said, “Nobody on the defense side knew enough to have dealt with that subject,” and jurors were “left with the impression” that the fibers indicated that the accused were at the crime scene.
With his letters to the state officials, Philipsborn sent reports by four forensic scientists that he said refute the crime lab’s findings. In an interview after the letters were sent, Philipsborn said the new reports demonstrate that Sakevicius’s conclusions were “wrong.”
“Even using the technology of the time,” Philipsborn said, “somebody who knew what the hell they were doing would not have made this mistake.”
But Kermit Channel, the crime lab’s executive director, defended Sakevicius’s work as “good science.” Channel said he plans to ask to see the case files, notes, and analytical data produced by the scientists whom Philipsborn used.
“Do I just take them at their word?” Channel asked. “Or do I and my experts have the opportunity to see their work? We supplied ours to them. We have tried to be transparent. I think fair is fair.”
Channel took particular exception to one of the reports that Philipsborn sent to state officials, in which Dr. Max M. Houck wrote:
“The sloppiness of the notes, the lack of data and documentation, the erratic nature of the color analysis data all suggest scientists who were poorly trained to do the casework they were were (sic) responsible for and were operating at the margin of competency, were derelict in their assigned duties, or were otherwise unable to properly conduct this kind of scientific work.”
Noting that Sakevicius has since died, Channel said, that work in the forensic sciences has improved over time. He added: “I think it’s unfair to judge, even something as simple as note-taking, with the standards we operate with today.”
But Philipsborn of San Francisco said the new reports establish that Sakevicius’s testimony “was just demonstrably wrong. It wasn’t even a close matter of judgment.” When asked what he hoped to achieve by sending the reports to state officials now, Philipsborn responded:
“I think they could actually make moves to see if the court would allow the convictions to be vacated. They could also seek renegotiation of the cases.”
Awaiting ‘their response’
Like much about this infamous case, any such action at this date would be unprecedented. That’s because last year, after spending almost 18 years in prison, Echols, Baldwin and Misskelley entered into an Alford plea. That is, they pleaded guilty to the murders, while maintaining that they are innocent. In return for the plea, they were freed.
Now, a year later, Philipsborn said, “Our hope is that we are able to discuss alternatives with some negotiating partners for the state. Their response may influence whether we proactively decide to get back into court or take other actions ourselves.”
In the letter to Beebe, Philipsborn and Little Rock attorney Blake Hendrix wrote that the new forensic reports add to “the growing body of evidence demonstrating that there was no reliable basis” for Baldwin to have been found guilty, and call into question “the resolution of the matter in 2011.”
Prosecutors at the time of the trials admitted that their case was circumstantial and lacked much physical evidence. The fibers were, therefore, significant.
In addition to the fibers, scientists from the state crime lab were called to testify about the cause, manner and time of the children’s deaths; the possibility that the victims had been sexually attacked; and whether a knife found in a lake might have been used in the crime.
Years later, at post-conviction hearings in 2008 and 2009, Baldwin’s attorneys vigorously contested crime lab results on each of those points. Yet they were unable, even then, to attack the state’s fiber evidence because, despite repeated requests, Circuit Judge David Burnett refused to release the fibers for re-examination.
That situation changed in 2010, when the Arkansas Supreme Court ordered a hearing to determine whether the men should be granted new trials. In the same ruling, the high court ordered state officials to turn over the fibers.
Philipsborn noted that, after the supreme court’s ruling, Prosecuting Attorney Scott Ellington, who did not participate in the trials, had been “highly cooperative in ensuring the release of the hair and fiber evidence.”
Philipsborn said that plans were underway to retest the fibers when, in August 2011, attorneys for Echols unexpectedly proposed the Alford plea as a way for both state officials and the men in prison to avoid the uncertainties of a possible new trial. Ellington agreed to the proposal, on the condition that all three men participate.
Baldwin at first refused. Eventually, however, as his attorneys stated in their letter to Ellington, he agreed to the plea “because of his concern that his childhood friend, Damien Echols, might otherwise remain on death row.”
But the attorneys’ recent letter to Ellington noted that, “regrettably,” neither Baldwin nor his attorneys had the benefit of the new fiber reports “when he was asked, under tremendous pressure, to assess whether to proceed” to the hearing or with the plea. Philipsborn pointed out in the interview that courts generally assume that persons in such situations “have enough information to make an intelligent decision.”
Noting that when the Alford plea was proposed, the new fiber reports were not available to Ellington or McDaniel either, Baldwin’s attorneys observed that, “this new information underscores that the case should not have ended with Alford pleas” and asked that, in the light of it, Ellington and McDaniel “review Mr. Baldwin’s status.”
Channel said that, unlike the attorneys for Baldwin, Echols and Misskelley, who have spoken widely about the case, he and his staff at the crime lab have been barred from publicly addressing complaints leveled against the lab.
Channel suggested that that situation may have changed with the Alford plea. “There are a lot of things in the [Philipsborn] letter that, quite frankly, upset me,” he said. But he added, “I think we may now have the opportunity to respond.”
Whether or not that happens will be up to Ellington. Channel noted that, “It’s still the prosecutor’s case,” and “these are still official documents that are protected by law.”
“I need to make sure I have authorization to talk about the case,” the head of the crime lab said. But he added, “I think we’ll have an opportunity to address the letter and to talk about these very things.”
In their interviews, both Philipsborn and Channel touched on the ethics underlying their differences. Channel said he felt he had “an obligation, not only to our laboratory, but to John Philipsborn and the citizens of Arkansas” to establish whether or not there is “validity” to Philipsborn’s claims.
Philipsborn said that the accuracy in question extended beyond the work that forensic scientists produce in the lab.
“The idea for forensic pathologists is that you don’t let mistaken impressions linger in a courtroom,” he said. “You’ve got an affirmative duty to be clear in the expression of your opinion, so that you don’t become a shill for the party that, basically, has a theory that they’re trying to fit you into. You don’t allow your testimony to mischaracterize the state of affairs.”
In a related matter, both Philipsborn and Channel mentioned differences over what had caused particular wounds found on the victims. A crime lab pathologist, Dr. Frank Peretti, testified that a knife recovered from a lake near Baldwin’s house could have left the marks. In 2007, forensic pathologist hired by Echols’s defense team held a press conference at which they claimed that the wounds were caused by animals.
In the letter to state officials, Philipsborn said that recent analyses have confirmed the presence of animal and unidentified human hairs with the bodies. When interviewed, he added that testing on those fibers would continue.
Channel, however, complained about the conduct of defense attorneys regarding discussions of possible animal predation, following a meeting the attorneys requested. Channel agreed to the meeting.
“I said, ‘That’s fine,’” Channel said, “because I believe we should be transparent in those things. But at that meeting we agreed not to talk to the media and press because this was an ongoing investigation. And, not five minutes after we left the meeting, there were the defense experts on camera.”
It is a measure of the distance that exists between the attorneys and crime lab officials that Philipsborn’s letter to Ellington concluded:
“At the very least, our hope is that you will communicate with the Arkansas State Crime Laboratory to ensure that it improves its quality assurance protocols such as to avoid the kind of demonstrably unreliable testimony on forensic science issues that was offered in this case.”