A Georgia ruling highlights the civil rights abuses ingrained in the West Memphis case

Americans are supposed to be equal before the law. But in practice, racial discrimination was so systemic in this country—and particularly in the south—that it took the sit-ins and marches, beatings and bus rides, speeches and civil disobedience of the 1950s and ’60s  just to begin to curb it. For more than a century after the Civil War, the promise of equality for African-Americans—in schools, voting rights, housing, and even at public water fountains—was empty rhetoric.

As a result, history has tended to link the words “civil rights” to the category of race—and to forget that civil rights are supposed to extend to all. That includes gays and straights, the aged and the mentally ill, eccentrics and middle-of-the-roaders, fat cats and trailer-park kids. Equality before the law extends to religion too. It extends to Baptists, to Jews, to Muslims and to atheists. And it extends, as the Georgia Supreme Court recently noted, to a 15-year-old girl whom prosecutors suggested killed due to “Satanic influences.”

In a ruling issued on May 31, the Georgia court addressed the old but effective courtroom strategy of portraying defendants as guilty, however skimpy the evidence, by stressing that they are different from the good, upstanding jurors. The tactic was artfully presented “To Kill a Mockingbird” when author Harper Lee described how the prosecutor, who had no evidence that a crime even had been committed, reminded the white jurors of the defendant’s status as a Negro in the southern community: “The way that man called him ‘boy’ all the time an’ sneered at him, an’ looked around at the jury every time he answered…”

Lee’s book was fiction. But something darkly similar—and real—happened in the both the trial of Courtney Boring in Georgia in 2006 and the 1994 trial of Damien Echols and Jason Baldwin in Arkansas. Boring, Baldwin and Echols were all teenagers accused of murder; 15, 16, and 18 years old. All denied the charge. No physical evidence existed connecting any of them to the crimes. Yet all were sentenced to die in prison—one by execution—based on evidence that prosecutors claimed linked them to Satanism.

[private]The tactic is ancient and familiar. It is called “othering,” and in its ugliest form, it’s the opposite of the Golden Rule.

Othering is psychologically and socially important—to a point. Children must learn to distinguish themselves from others to develop their own identities. This process reaches its natural glory days in and around adolescence, when cliques form in schools, team spirit thrives, sororities and fraternities ease academic transitions, and gangs coalesce around colors. The process can feel fun and inclusive or lead to shunning and murder.

Ideally, the need to link one’s identity to that of a group wanes as one enters adulthood. When that happens, a well-developed sense of self combines with a maturing social conscience, offering grown-ups the ability to recognize and even appreciate others’ differences without derision, rejection or fear.  

Unlike acne, however, the forces that make cohesion so attractive in high school don’t naturally abate with age. Wherever there is insecurity to be exploited, fear to be mongered or opportunity to be ruthlessly mined, there are preachers, politicians and bosses willing to pit one group against another. The phenomenon has scarred human history. It threatens us today.

It arises wherever a group in power identifies other groups as different, not for benign reasons, but  in order to maintain or extend power or to justify its abuse of power. Othering cheered the slaughter of Native Americans. It permitted slavery. It fed the Holocaust ovens. And it was othering that cast Boring, Echols and Baldwin as killers by portraying them—not as local teens to be presumed innocent—but as weird, soulless losers who existed, barely human, outside the dominant culture.

A major difference between the Echols/Baldwin case and Boring’s is that the Georgia Supreme Court reversed her sentence of life in prison and ordered a new trial a mere five years after her conviction. By contrast, Echols, Baldwin, and their co-defendant, Jessie Misskelley, Jr., have spent 18 years in prison, and despite repeated appeals, the Arkansas Supreme Court has never ruled that the evidence purportedly linking them to the occult or Satanism was, as the Georgia court held in Boring’s case, “irrelevant,” “inflammatory,” “improper” and “prejudicial.”

In their unanimous ruling, the justices noted that, over defense objections, prosecutors introduced various items of evidence seized from Boring’s bedroom. According to the court’s opinion, that evidence included “photographs of her with dyed black hair and dark make-up; a document bearing the words of a ‘curse’ to be recited ‘while burning the letter over a black candle’; and seven different inscriptions, one typewritten and the rest handwritten on the bedroom walls, of song lyrics and quotations attributed to various singers and other artists, bearing themes of anguish, enslavement, atheism and violence.”

 “Though the state elicited no elaboration from any of its witnesses regarding the import of these items,” the court wrote, prosecutors “explicitly sought in both opening and closing to link these items with the so-called ‘gothic lifestyle’ and to characterize them as evidence of ‘Satanic influences.’”

Prosecutors Brent Davis and John Fogleman were not so careless at the Echols/Baldwin trial, 12 years earlier in Arkansas. The items they introduced that were taken from the homes of Echols and Baldwin included cover of heavy-metal record albums, a library book on witches, occultish writings by Echols, and black T-shirts owned by Baldwin. But here, the prosecutors did elicit elaboration from a witness: Dr. Dale Griffis, a self-proclaimed “expert” in the occult.

Under questioning by the defense, Griffis admitted that his Ph.D. was bogus. Nevertheless, Arkansas Circuit Judge David Burnett accepted Griffis as an expert. Thus qualified, Griffis testified that, although no physical evidence found with the bodies was related to the occult, the items taken from the teenagers’ homes, combined with what he called significant details from the crime scene (such as the “three” bodies, the blood and water, and the full moon on the night of the murders) did link the accused both to the occult and to the crime.

In his closing argument, Davis made a point of telling the jurors how “foreign,” “strange” and “weird” all this made the defendants. “The Satanic or occult motive thing is kind of a foreign concept to me,” Davis said. “But when you’ve got people that are doing what was done to these three little boys, I mean, you’ve got—the normal motives for human conduct don’t apply. There’s something strange going on that causes people to do this. I mean, you’ve got some weird people.”

The othering went even further for Echols, whom Davis characterized as “nearly emotionless,” into “Satanic stuff,” “bizarre,” and “unfamiliar.” Gesturing toward Echols, he said: “Well, I mean, you can judge him from the witness stand. This guy is as cool as a cucumber. He is nearly emotionless, and what he has done in terms of the Satanic stuff is a whole lot more than just dabbling or looking into it for purposes of an intellectual exercise… 

“And I put to you, as bizarre as it may seem to you and as unfamiliar as it may seem, this occult set of beliefs and the beliefs that Damien had and that his best friend, Jason, was exposed to all the time, that those were the set of beliefs that were the motive or the basis for causing this bizarre murder.”

Fogleman told the jury that wearing black, listening to heavy metal music, and reading books by the likes of Stephen King, Ann Rice and Dean Koontz (which were also mentioned at trial), did not necessarily make Echols a killer. But he added, pointing to Echols, that if the jurors “put all that together” and looked at Echols, they would see a person with “no soul.” The Arkansas Supreme Court never noted a problem with any of this portrayal.

More than a decade later, Boring’s prosecutor in Georgia played the same othering card. “We have a bent of mind, things that we think about that make us what we are, our thoughts,” he told her jurors. “We believe there even is a depravity of mind here… We believe you will see some inkling of Satanic influences here.”

He told her jury that, while the evidence taken from her bedroom did not “prove” she killed her mother, actual proof was “not the point.” “The point is that these are pieces of a puzzle and you have to consider all of the evidence together.” Like Davis and Fogleman, he empathized that in a circumstantial case, the items “must be taken as pieces of a puzzle.”

But the Georgia Supreme Court didn’t buy it. In its May opinion that court noted the lack of evidence “affirmatively connecting” Boling to Satanic influences. “Rather,” the court wrote, “that link was forged only via the state’s opening statement and closing argument, which itself was improper.”

The justices observed: “One is left with the feeling that [the evidence in question] was employed simply because the jury would find these beliefs morally reprehensible.” And, “In admitting this evidence, which bore no specific connection with the crime and operated merely to impugn appellant’s character by suggesting she held satanic beliefs, the trial court abused its discretion.”

In reversing Boring’s conviction they wrote, “[B]ecause the nature of this evidence was highly inflammatory, and because the evidence of appellant’s guilt was entirely circumstantial and not overwhelming, we cannot say that it is highly probable that the error did not contribute to the jury’s verdict.”

Prosecutors in Boring’s case now must decide whether to retry her. For now, she remains in a Georgia prison.

In Arkansas, Echols, Baldwin and Misskelley await what could be similar juncture. The Arkansas Supreme Court has ordered a judge to decide whether the three deserve new trials. Circuit Judge David Laser will make that decision after an evidentiary hearing scheduled to begin on Dec. 5. Whatever comes of that hearing, their case of the West Memphis Three already has earned a place in the sad history of discrimination in Arkansas, particularly Crittenden County.

The saga of othering there has been nothing short of tragic. Slavery and the Civil War were followed by lynchings and the Ku Klux Klan. African-Americans were slighted at the polls, in the fields, on the streets and in education. As recently as 1949, West Memphis spent an average of $144.51 for each white child’s education and $19.51 for the education of each black child.

As in “To Kill a Mockingbird,” discrimination also extended to justice. Whether by Satanism or color, the othering could lead, almost nonchalantly, to death.

Isadore Banks

In 1954, Isadore Banks, a prominent African-American landowner, was murdered near Marion, Arkansas, the Crittenden County seat. His body was found tied to a tree, mutilated and burned beyond recognition. John Fogleman, an uncle of the man by the same name who prosecuted the West Memphis Three, was the county’s assistant prosecuting attorney at the time.

That John Fogleman is dead now, but his brother, Julian Fogleman, who was Marion’s city attorney when Banks was murdered, was still alive in 2010, when he was interviewed by a reporter for CNN. Julian Fogleman is the father of John Fogleman, who prosecuted the West Memphis Three and who is now a circuit judge.

Julian Fogleman was 89 at the time of the CNN interview and still practicing law. He said he could not remember whether a coroner’s inquiry was ever conducted. “There was some community discussion about who might’ve done it,” he said, “but I never heard any discussion of any name.”

CNN reported that, “Though Julian Fogleman followed his brother as deputy prosecutor in the 1950s, he said he never pursued Banks’ case.” Banks’ descendants do not know how the hundreds of acres Banks owned were disbursed after his murder.

Another infamous killing occurred less than a decade later. In 1963, a white woman in Crittenden County said she saw Andrew Lee Anderson, an African-American teenager, try to rape her eight-year-old daughter. According to a New York Times report, a mob of white residents, including six sheriff’s deputies, chased Anderson into a soybean field, where the unarmed 17-year-old was shot in the leg.

The Civil Rights and Restorative Justice Project (CRRJ) at Northeastern University’s School of Law in Boston which monitors developments in “civil rights-era murder cases from 1955 through 1969.” It reports  that, “Anderson’s family stated that he was questioned for several hours after the shooting before finally receiving medical attention. By the time he was taken to Crittenden County Memorial Hospital it was too late.”

T.H. McGough, the same coroner called to the murder of Isadore Banks, ruled that Anderson’s shooting was a “justifiable homicide.” According to the New York Times, McGough said the ruling was based on an Arkansas law that gives any private citizen or officer the right to attempt to capture a felon, and that “there was no testimony during the coroner’s inquest as to who had fired the shot.”

CNN reported that the coroner’s jury consisted of 19 white men who “took just 20 minutes” to decide that the killing was justifiable. At the time of Anderson’s death, Julian Fogleman, then an assistant county prosecutor, told the Arkansas Gazette: “We don’t think the decision was wrong and don’t plan to go any further with it.”

Julian Fogleman’s now-deceased brother John was elected to the Arkansas Supreme Court, where he eventually served as chief justice. Last year, his nephew, Judge John Fogleman of the West Memphis case, ran for a seat on the state’s high court. When asked during his campaign about the scarcity of evidence at the teenagers’ trials, Fogleman told a reporter for the Arkansas Times, “I completely stand by every step I took in that case.” He lost the election.

Echols, Baldwin and Misskelley are not African-Americans. But they were trailer-parks kids, living on the county’s economic and social fringe. They were kids. They were poor. And, though Baldwin would later recall that he and Echols thought that they were “the coolest people in school,” they were seen by others around Marion as “different.”

In school, Baldwin said, “Others didn’t like us. They’d been accusing me of being a Satanist since the sixth grade. It was because I had long hair and wore concert T-shirts, with bands like Metallica and Guns n’ Roses, and Ozzy Osbourne and U2. Damien and I kind of dressed different. I basically wore blue jeans or Bugle Boy jeans with concert shirts. He liked straight clean black clothes with nothing printed on them. But the way we dressed was one of the things people criticized.

“Most of the other kids, they either wore sports clothes, like Tommy Hilfiger stuff, or if they were country people, they wore flannel shirts and cowboy boots and belts with giant buckles. So we stood out because, even though Damien and I dressed different from each other, we was also different from everybody else.”

In Georgia, police interviewed more than 20 people, including Courtney Boring’s teachers and school officials, but could find no one who said she had any history of violence. On the other hand, according to the Georgia Supreme Court’s opinion: “The condition of the Borings’ home, as observed by responding investigators and documented in photographs admitted at trial, was filthy and, according to the testimony of one investigator, not fit for a child to inhabit.

“A neighbor of the Borings testified that he had on previous occasions heard arguments coming from their home and had seen patrol cars at the house. There was also evidence that Rodney [Boring, Courtney’s father and the victim’s husband, who reported the shooting,] was verbally abusive to both his wife and daughter.”

Nevertheless, police and prosecutors concluded that it was Courtney who murdered her mother. And, without any physical evidence to support that conclusion, photos of the 15-year-old with dyed black hair and dark makeup, a piece of paper with the word “curse” on it, and quotations that prosecutors attributed to the “founder of the Satanic Church” were enough to convince a jury that the girl was not at all like them—that, in fact, she was a killer.

Only othering allows such conclusions. In “To Kill a Mockingbird,” Atticus Finch tried to evoke its opposite when he addressed jurors, whom he knew to be racist, before they decided the fate of the innocent black man he represented.

As he rose for his closing remarks, Finch did something he did not usually do in public. As Lee wrote, “He unbuttoned his vest, unbuttoned his collar, loosened his tie, and took off his coat. … Atticus put his hands in his pockets … his voice had lost its aridity, its detachment, and he was talking to the jury as if they were folks on the post office corner.”

He was talking to them on equal terms. He was talking about equal rights.

“Gentlemen,” Finch said, “a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty.”

Finch was asking the jurors to move beyond othering, to deal his client the sort of justice that they would hope to receive themselves. He was asking them to do something diametrically opposed to what the prosecutors of the West Memphis Three and Courtney Boring asked at those trials.

Finch wanted the jurors simply to remember that, as he had taught his children: “You never really understand a person until you consider things from his point of view—until you climb into his skin and walk around in it.”[/private]

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