Arkansas attorney general to “rely” on statements by Jessie Misskelley

Attorney General Dustin McDaniel

Arkansas Attorney General  Dustin McDaniel told Circuit Judge David Laser this month that prosecutors will “rely” on statements made by Jessie Misskelley, Jr., at the upcoming evidentiary hearing.  “By way of example,” McDaniel filed with the court a statement Misskelley made under oath after his conviction.

Before, after and since his trial, Misskelley has given officials several inaccurate and contradictory statements. At various times he has said that he didn’t know who murdered three West Memphis children in 1993; that he witnessed the murders and assisted in them; that he was “not guilty” of committing the murders; that he helped Damien Echols and Jason Baldwin when they killed the boys; that he had “made up” parts of an earlier confession; and that nothing he ever said about witnessing or participating in the murders was true.

[private]At his trial, prosecutors relied on one of those statements—a recording of Misskelley telling police he’d witnessed and assisted with the murders. When defense attorneys asked a detective about the many points on which Misskelley’ statement differed from what police knew of the crime scene, the officer responded, “Jessie simply got confused.”

Misskelley was convicted based on that recording and sentenced to life without parole. (Two years later, the Arkansas Supreme Court would note that the recording, which it called “a confusing amalgam of times and events” containing “numerous inconsistencies,” was “virtually the only evidence” presented against him. Nevertheless, the high court affirmed his conviction.)

Now it appears that McDaniel, his staff, and Prosecuting Attorney Scott Ellington plan to again use that recorded statement to support Misskelley’s conviction at the evidentiary hearing scheduled for December. And from papers filed with Laser’s court this month, it appears that they intend to use a second statement Misskelley made after his conviction to support the convictions of Echols and Baldwin.

At his own trial, Misskelley pleaded not guilty. But once he was convicted and sentenced—and had gotten a taste of prison—he changed his story again. He told prosecutors that he wanted “something done” and—apparently in hopes of getting it—that he would repeat his earlier confession.

He had nothing to lose and a lot, possibly, to gain. Prosecuting attorneys Brent Davis and John Fogleman could not play Misskelley’s confession at the Echols/Baldwin trial unless Misskelley agreed to testify. Without Misskelley and that accusatory confession, the prosecutors had almost no evidence against the two.

Davis had already told the victims’ parents that he and Fogleman needed Misskelley’s testimony “real bad.” Fogleman explained the situation like this: “All is not lost if he doesn’t testify. But the odds [of winning convictions] are reduced significantly.” They told reporters that Misskelley’s sentence would not become final for about four months. During that time, if Judge Burnett chose, he could reduce Misskelley’s sentence—something that might happen if, for instance, Misskelley were to testify against Echols and Baldwin.

The pressure on Misskelley was intense. At one point during his first week in prison, he desperately told his attorney, Dan Stidham, “I need help.” Stidham promised to arrange for a psychiatric evaluation and urged Misskelley not to talk to the prosecutor until he had gotten it. But by 18 days after his trial, Misskelley did not want to wait. Nor did Davis and Fogleman, who were days away from starting the Echols/Baldwin trial. Over Stidham’s objection, Judge David Burnett ruled that Misskelley’s statement “could be taken before the evaluation.”

On Feb. 17, 1994, Misskelley was driven from prison to a lawyer’s office in Rector, Arkansas. At 8:02 p.m., prosecutor Davis turned on a tape recorder. Stidham again urged Misskelley not to speak. But Misskelley insisted: “I want something done.” Misskelley raised his hand and swore to tell the truth.

Davis assured him that nothing he said would be used “in any proceedings” against him in the future. The prosecutor also noted, for the record, that “at this point, no promises have been made as to any deals or any benefits that will be granted to Mr. Misskelley as a result of his statement.”

With the stage thus set, Misskelley spent the next 40 or so minutes responding to Davis’ questions. He said that he had witnessed Echols and Baldwin commit the murders and that he himself had participated in beating and binding the victims.  

He kept his answers short—often just one word, generally no more than three or four. Many answers were not complete sentences. He was reminded several times, “Jessie, you need to speak up!” At least 18 times he said, “I don’t know” or “I don’t remember.” Brief as his answers were, however, Misskelley  clearly stated that he, Echols and Baldwin had beaten the three eight-year-old boys who were found murdered in West Memphis in May of the previous year, and that he was there when the boys were killed.

Though Misskelley told Davis he would testify at the upcoming trial, ultimately he did not. And, apparently because of that decisions, whatever he hoped would be “done” for him was not. He remains in prison today, serving his life sentence.

The circumstances of Misskelley’s second confession mirror in many ways the statement he made to police on the day he was arrested. In both instances, no one knows what officials may have communicated to him before he spoke. In both, Misskelley was vague. In both, officials modified his answers. And immediately after both, Misskelley said the statements were untrue.

There are also notable differences between the two statements. Inaccuracies that appeared in his confession to police were corrected in the statement he gave after he’d heard police testimony at his trial. References to an anal rape that police believed had taken place when they questioned him were eliminated after Jessie had heard testimony about the autopsies reporting no such evidence.

Reliable, Misskelley was not. Yet it now appears that his two recorded statements will form the crux of the state’s case at the evidentiary hearing ahead.

For years, ever since the convictions of the West Memphis Three, police and state officials have vaguely alluded to evidence that was never presented in court that confirmed the teenagers’ guilt. This statement appears to be that “evidence.”

In the past 17 years, while attorneys for Echols, Baldwin and Misskelley, and thousands of supporters, have challenged the lack of physical evidence linking the three to the crime, state officials have not produced any new physical evidence or suggested any motive for the murders, other than the motive of Satanism presented at the Echols/Baldwin trial. Now, because the Arkansas Supreme Court has ordered a review of “all” the evidence in the case, state officials have notified Judge Laser that they will depend heavily on “Misskelley’s post-conviction statement inculpating the defendants.”

In December, when Laser holds the evidentiary hearing, lawyers for the West Memphis Three will scrutinize the circumstances, inaccuracies and contradictions in the statements that he made before and after his conviction. But, while Misskelley’s statement to police before his trial has been subjected to intense public analysis, his second statement—the one made after his conviction—has not.  So it’s worth taking a look at what Misskelley told Davis in that nighttime deposition at Rector.

Once again, the scenario Misskelley described is, as the supreme court said of his confession to police, “a confusing amalgam of times and events” containing “numerous inconsistencies.”  But here goes. According to the deposition:

Misskelley met Echols and Baldwin met at Lake Shore trailer park on the day the boys were murdered. (At another point, he said he met the two “by the interstate.”) The meeting had been planned. Misskelley had talked to Echols “a couple of times and he wanted me to go to West Memphis with him and Jason to find some girls, and I went.”

Somehow, however, the three ended up in Robin Hood Woods. Davis did not ask why, when or how the plan got changed.

“It was still daylight.” The teenagers entered the woods “by a bridge … on a service road.” (Since there is no bridge on the service road close to where the bodies were found, Davis corrected: “Okay, you entered the woods by a bridge near the service road,” to which Misskelley responded, “Yes.”)

Misskelley was drinking Evan Williams whiskey that he had obtained from Vicki Hutcheson. Echols and Baldwin were drinking beers. To Misskelley, they seemed drunk. He himself had “drunk to the point that [he] was sick.” He didn’t know what was going to happen.

Davis asked: “Okay, now, where were you in relation to the creek that runs through the woods? Do you know what I am talking about when I say that there is a creek running through it?”

Misskelley responded: “Yea, because it goes up under the bridge.”

But there was that problem with the bridge again. Davis: “Okay, the creek that runs under the …”

 “Bridge,” Misskelley repeated.

Davis said: “Service Road. Okay.”

Wherever they were, the teenagers sat “for a while” drinking.

“All of a sudden we heard some noise. Me and Jason hid and Damien sat there and he hid, and three little boys came up and he jumped them. … He was just sitting there waiting for them.”

(Elsewhere, Misskelley said he first knew children were in the woods was when he “heard some kids holler.” He said nothing happened at first, but then “Damien started making some noises to get their attention and they came over to where we was at.”)

When the boys approached, “Damien jumped on them and the other two started beating on Damien and me and Jason jumped on them.” Misskelley grabbed the boy wearing “something with Boy Scout on it,” Misskelley said he was “too messed up” to remember which of the boys Baldwin grabbed but that he and Baldwin “started hitting them” with their fists.

Then Misskelley saw Baldwin “cut one of them on the face, on the left side, just a little bit, like a scratch.” From there the scene grows murkier: “And then they went to the other one and got on top of him, starting hitting him, and pulled his, one of them’s pants down, and got on top of him and cut him.” While this was happening, Misskelley “was still hitting” the boy he’d grabbed. He hit him “a bunch” in the face.

(At no point in the questioning did Davis ask Misskelley why he grabbed and hit the boy, or why the teenagers did any of the things Misskelley described. No reason was sought or offered. Misskelley spoke as if describing a dream.)

While Misskelley was beating his boy, Echols “stuck his finger” on the cheek of the boy who’d been cut “and licked the blood off of it.” Then Echols “grabbed one of them by the ears … trying to pull his ears off or something, and grabbed them pretty tight till they turned red.” The children “were saying, ‘Stop! Stop!’”

The boy Misskelley was hitting was “telling” him to stop, too. And Misskelley did stop. But “then Damien told me, ‘No. No. Don’t stop.’ and I got on it again.” (Though he’d mentioned earlier that one of the boys had had his pants pulled down, Misskelley now said that “while we were hitting them,” the children’s clothes were on.)

Eventually, “Damien, he hit one of them in the head with a stick.” Misskelley could not describe the stick because he “was a pretty good ways from them” and he “didn’t look at them.” Nevertheless, he added: “I know that it was a stick like somebody had carved something into it or something” and it was “longer than a baseball bat.”

The boys were still conscious. Misskelley realized that “Damien was going to screw one of them.” But, he said, “as I could see, he didn’t. … He was going to [do] it, then he didn’t.” Damien had pulled the boy’s pants down and the boy “was kicking his feet.”

When Davis asked if Echols had done anything besides pulling the boy’s pants down that made Misskelley think he was “going to screw him,” Misskelley answered, “No.” But when pressed, Misskelley added that Echols “had his pants unbuttoned.”

Jason too had “pulled one of the boys’ pants down and got on top of him … swinging his arms … hitting him … like you were swinging a swing blade.” The boy was lying “face up,” and Jason had a knife. “The blade was opened … it looked like he was swinging the knife at [the boy’s] legs. … I seen blood fly. … After he got through I noticed … the boy that was missing everything.”

Davis asked, “Where did the blood go?” “Grass,” Misskelley answered. “I mean, not grass, weeds. Like sticks laying around.”

The injured boy “started hollering and Jason put a shirt over his mouth. … Then he came over where I was at. …. He wanted to do that one that I was hitting. He wanted to do him the same way, and I would not let him. … I told him, I said, after I seen what he did to the other boy, I said, ‘No. You are not doing this one like that.’”

Baldwin looked at Misskelley “real weird,” showed him the knife, and “just walked off.” Misskelley could not remember what the knife looked like.

While this was going on, “Damien was squeezing … still messing with that boy’s ears.” Baldwin went back to the boy he’d castrated and started “hitting him some more.”

By this point, Misskelley said, “I had done stopped what I was doing.” The boy he’d been hitting was unconscious, but Misskelley was holding onto him “by the hand.” When he let go of the boy, “Damien told me, ‘Don’t.’ So I keep holding on to him and then I hit him some more.”

Now, “Damien was messing with one of those boys’ penis. … Pulling on it.” But then, without explaining why, Misskelley said the teenagers tied up the children. He never mentioned removing their clothes. (Misskelley initially said, “We tied them up.” But when asked, “Did you help tie them up?” he told Davis, “No.”)

Misskelley stood beside Echols and Baldwin, as they tied the boys, “right hand, right leg, left hand, left leg” with “shoestrings.” (When reminded that during his confession to police a year earlier, he had said the boys were tied with rope, Misskelley responded, “I made that up.”)

When asked, “Who got the shoe strings out of the shoes?,” Misskelley said, “Damien and Jason and … I handed them the shoes.” But when asked, “Were Damien and Jason taking the strings out of the shoes too or were you doing that?” Misskelley replied, “I was doing that.”

By this time, the boys were “ not moving no more.” Echols and Baldwin threw them into the water. Davis asked Misskelley, “Were you there when that happened?”

“I was getting ready to leave,” he said.

Davis asked: “Why was you getting ready to leave?”

Misskelley answered: “Because I was going to wrestling.”

He left the woods before the other two did, taking his whiskey bottle with him. On the way home, he threw up “in the grass” because he’d “drunk until I got sick.” He “busted” the bottle and left it “on the side of a, like, a overpass” where a bridge goes over one of the interstate highways.”

Davis wanted to know about what time it was when Misskelley left the wood. Misskelley answered: “I would say about dark, close to dark. It was still light outside a little. Not much.”

He walked to his house, got his wrestling mask and went with a friend to his wrestling match.

When Misskelley saw Echols and Baldwin several days later, “they just looked at me and they never said nothing to me.” He didn’t mention what had happened either. “I did not want to say nothing to them after what I had seen.”

Echols and Baldwin were tried without Misskelley’s testimony. They were convicted. So far, prosecutors have presented no sound physical evidence connecting Echols, Baldwin or Misskelley to the murders. Yet they have fought for 18 years to see Echols executed and to assure that Baldwin and Misskelley die in prison. Now, preparing for the evidentiary hearing, they report that they will “rely” on the statement of a mentally challenged teenager who said he met some other boys to go looking for girls, got sidetracked into committing a triple-murder, then walked drunkenly home to go wrestling.

When Davis concluded his questions that night at Rector, while the tape recorder was still running, Stidham and his co-council, Greg Crow, noted that they felt obligated to inform the court that they thought their client was lying. “I have a very strong opinion,” Crow said of Misskelley, “that he is perjuring himself.”[/private]

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