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]

State said to have ‘recently’ tested blood on Misskelley shirt; defense seeks FBI report; location of evidence questioned

A spokesman for Damien Echols said today that “within the last year,” state officials sent a t-shirt that was found in the home of Jessie Misskelley, Jr. in 1993 to a laboratory for DNA testing. The shirt was reportedly tested without defense attorneys’ knowledge and after state officials had notified them that all post-conviction DNA testing was complete.

Lonnie Soury, a spokesman for Echols, said that tests reportedly revealed blood on the t-shirt, which had no connection to the crime scene. The tests determined the blood was Misskelley’s.

Questions about evidence have persisted in the case of Echols, Misskelley and Jason Baldwin since their trials in 1994, when West Memphis police testified that they had “lost” evidence relating to a man seen with blood and mud on him on the night three eight-year-old boys disappeared. The man, who entered a Bojangles’ restaurant near where the boys’ bodies were discovered the next day, was never identified.

Now, almost two decades later, defense attorneys are again questioning the state’s handling of evidence. What exactly was collected? What was done with it? Where is it now? Soury said Echols’ attorneys have not gotten many answers.

Soury said: “It looks like the defense has gotten very little information about what they [state officials] have, what they’ve tested and where the evidence is, and that’s why we’re very concerned.” As a case in point, he added: “We’re still looking for the [victims’] clothes and shoes. We assume they exist, but we’re not sure where.”

Soury said defense attorneys also want to learn more about items that were sent to the Federal Bureau of Investigation for analysis prior to the trials. “We believe it was fingerprints and soil samples” he said.
“We’re not sure when the material was sent off to the FBI. It could have been before the arrests or after. And we don’t know what happened to those test results. We have never seen them.”

He added: “One can assume they found nothing that was of interest to the prosecution. But we don’t know if they found something that could be exculpatory today.”

The defense concerns were conveyed to Judge David Laser in a brief filed last week in support of Echols’ motion seeking additional forensic testing. A footnote in that brief reported that, “In addition to the Arkansas State Crime Laboratory, at various times, certain forensic evidence in this case also appears to have been in the possession of—and could still be in the possession of—the West Memphis Police Department, LabCorp (formerly known as Genetic Design), the Alabama Department of Forensic Sciences, the Southwestern Institute of Forensic Sciences, the University of North Texas Health Science Center and—possibly—the FBI.”

In the brief filed on Mar. 30, attorneys for Echols conceded that, while part of their request concerned “testing of already known and existing biological and physical evidence,” another part constituted “a search to determine the availability of biological material” that may or may not be in the state’s possession. Noting that the Arkansas Supreme Court ruled that evidence from the men’s 1994 trials and “all other evidence” in the case is to be considered at an evidentiary hearing scheduled for December, Echols’ attorneys wrote that, for that to happen, “we must first determine the universe of what ‘other evidence’ exists.”

Typically, a chronological record is kept of all evidence in a case from the moment it is seized. That record documents every time an item is transferred from one person to another, any analyses conducted on it, and any time evidence is disposed of. This chain of evidence (or chain of custody, as it’s sometimes called) is critical for establishing the integrity of evidence.

Before the recent request, there were at least two other times in the West Memphis case when attorneys for Echols, Baldwin and Misskelley sought an accounting of what evidence was held by the state. The first was prior to the trials. The second came around 2002-03, when lawyers for the three convicted men negotiated an agreement with state officials to have new DNA tests conducted. In 2004, Judge David Burnett ordered several items tested.

That material was sent to Bode Technology Group, a laboratory in Virginia. None of it was linked to the men in prison. Defense attorneys believed that that marked the end of the testing. However, according to Soury, correspondence and other information discovered since has led them to believe that state officials sent additional material, including Misskelley’s shirt, to other labs for testing.

“They should not have done anything outside of that agreement,” Soury said. “But I think they have.”

Even today, almost 18 years after the murders, defense attorneys for Echols remain tentative in describing what evidence the state has—or had. As they wrote in their latest brief: “At one point, the state crime laboratory admittedly had possession of ‘skin cuticles’ from the ligatures used to bind the victims. There may be other biological extracts remaining in the possession or control of the state as well.”

Attorneys for all three men in prison want new testing of evidence and money has been raised to pay for it. But Arkansas Attorney General Dustin McDaniel has argued that “additional testing should not be permitted to any petitioner.”

In the view of the American Bar Association, state attorneys, including attorneys general and prosecutors, have an ethical “duty to disclose information that might help defendants fight criminal charges.” The ABA says that a prosecutor’s role as “a minister of justice” carries “specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.”

Echols’ attorneys—Stephen L. Braga, Dennis P. Riordan, and Deborah R. Sallings—noted in their recent filing that Arkansas’s DNA testing law was enacted to further “the mission of the criminal justice system … to punish the guilty and to exonerate the innocent.” They argued further: “The defendants are willing to have this evidence tested now and to live with the results. There is no legitimate reason why the state should not be willing to do so as well.”

Nevertheless, the defense team acknowledged: “It is easy to understand the state’s adversarial reluctance to agree to additional testing in this case. As noted [earlier], … the state made a major point to the jury out of the fact that ‘You’d see evidence out there that didn’t match either one of these [people]. You’d see evidence that didn’t connect. And you don’t have that. There’s just a scarcity of evidence.”

Turning that argument around, Echols’s attorneys concluded: “In a case with scarce evidence, no testing opportunity should be bypassed, especially when the ultimate result in the case is a matter of life or death for one of the defendants.”

But before any testing can be conducted, Laser will have to order it, and the material in question will have to be located. “The fact is that the state has not tracked the evidence over the years,” Soury said. “The information we’ve requested should be forthcoming. But, frankly, we don’t know. We really don’t know. We’ve gotten very little cooperation from the state.”

Laser has ordered all lawyers on the case not to publicly discuss it. The spokesman for McDaniel’s office has said that he will not comment except through press releases.

Photos from the website of the Arkansas State Crime Laboratory.

IMO: Media’s role in the case of the West Memphis Three–my speech at The University of Memphis

If you shut your door to all errors, truth will be shut out. —-Rabindranath Tagore, poet, philosopher, author, songwriter, painter, educator, composer, Nobel laureate (1861-1941) 

On Thursday, Mar. 24, I was the featured speaker at the 27th annual Freedom of Information Congress sponsored by the University of Memphis Chapter of the Society of Professional Journalists. Organizers, including Society president Chelsea Boozer (of Marion, Arkansas) and faculty advisor Tom Hrach, also assembled a panel to examine the media’s role in the case of the WM3.

The panel included Lorri Davis, wife of Damien Echols; Judge Dan Stidham, who represented Jessie Misskelley at trial; Henry Stokes, who, as managing editor of The Commercial Appeal, who oversaw coverage of the murders and trials; Holly Ballard, a labor organizer who, as a student, wrote “The Court of Public Opinion,” analyzing pretrial coverage of the cse; and Ashley Wislock, a graduat student in journalism at The University of Memphis, where she too is examining the case.

[private]The evening was remarkable in many respects. I hope that parts will appear on YouTube. Meanwhile, for anyone interested, here is what I said:

Tonight we are looking at injustice and asking whether it ruined the lives of three young men. Frankly, I don’t believe the lives in question here have been ruined. Each in his own way, Damien Echols, Jason Baldwin and Jessie Misskelley, Jr. has risen above life in prison. The years they have spent there can never be given back. But have their lives been ruined? I hope they have many, many years of freedom ahead to enjoy.

Execution at Salem

But tonight, we are looking particularly at media and the role they played in furthering the injustice that put these men in prison. Before we look at what began in West Memphis, Arkansas in 1993, let’s go back 300 years to 1692, when two girls in Salem, Massachusetts identified three local women as witches. The girls were nine and 11 years old. When one of the accused was questioned by a magistrate, obviously under pressure, she confessed to being a witch. In the four months that followed, 20 people were tried, sentenced to death and executed as part of the hysteria. But the madness did not last. Within 15 months of the first arrests, confidence in the convictions had eroded to the point that charges against everyone still accused of witchcraft were dropped. And four years after that, the state General Court ordered a day of fasting and soul-searching over what had transpired at Salem.

The case we will address tonight bears remarkable similarities to that horrific episode. Panic filled the air in both. In both, the accusers were mostly minors. In both, people were tried and condemned on the basis of improbable—even impossible—confessions. In both, supporting evidence was non-existent. In both, prosecutors sought sentences of death, and juries granted them.

But there are also major differences between the cases of Salem at the end of the 17th Century and West Memphis at the end of the 20th. One is that, while dust long ago settled over the graves of Salem’s condemned, in Arkansas, the men convicted in the West Memphis case still live, although they have been locked away in prison for almost 18 years. While it took justice less than a year and a half to acknowledge its mistake in Massachusetts, in Arkansas, the state’s attorney general is still fighting to hold the men known as the West Memphis Three in prison and to see that the one who was sentenced to death is executed.

Yet, even as the legal battle continues between Arkansas officials and the defenders of the West Memphis Three, this event tonight marks what is, to my knowledge, the first reflection on their case by a group that played a key role in it: that being the media. I believe that, as with Salem, the story of what happened in West Memphis—and how it happened—will be examined for decades, if not centuries, to come. But tonight, we have the opportunity to do what the General Court ordered in Massachusetts. We can ask our question about injustice, look at the role of media and perhaps do a bit of soul-searching.

Many of you here, and especially some of you on this panel, were much closer to the events I’m about to recount than I was, two hours away in Little Rock. You know how the story went down. But in the context of a look at the media, let me offer this bit of set-up.

On the evening of May 5, 1993, three eight-year-old boys went missing. Their bodies were found the next day, naked and bound wrists-to-ankles with their own shoelaces, in a water-filled diversion ditch. Apparently, at the suggestion of two people—a WMPD narcotics officer and a county juvenile probation officer—police quickly focused on a half-dozen local teenagers as the likely suspects. Within two days of the murders, police interviewed 18-year-old Damien Echols and his 16-year-old friend, Jason Baldwin. Numerous other interviews followed, but nothing supported arrests. Tensions, needless to say, were mounting.

Then on June 3, almost a month after the murders, police brought 17-year-old Jessie Misskelley, Jr., to the station for questioning. And here, right at the beginning, is where we see the first of many doors—doors that could have led to information—start to close in this case. We see media’s access to what actually happened begin to disappear.

Misskelley was told he was not a suspect, but the questioning continued for seven hours. Here is where a blanket begins to fall over the case, a covering through which reporters have never been able to see. We do not know what transpired for most of those seven hours. Only two segments, totaling less than one hour, were recorded. And what Misskelley said—even in the recorded parts—is riddled with inconsistencies.

We do know that, eventually, like the so-called witches at Salem, Misskelley confessed that he witnessed Echols and Baldwin kill the three little boys, and that at one point he had helped. Prosecutor John Fogleman decided that Misskelley’s accusation and self-incrimination provided probable cause to arrest the teenagers and search their homes. A local judge signed the warrants. Misskelley never left police custody. By midnight, Echols and Baldwin were behind bars too.

Gitchell announces arrests

At nine the next morning, Chief Inspector Gary Gitchell of the West Memphis Police Department held a press conference about the arrests. Television stations throughout the delta interrupted their regular schedules to carry Gitchell’s statement live. Reporters fired questions. What could he tell them about the accused? Had they known the victims? How had police cracked the case?

Gitchell would not comment. Did he know the motive for the killings? Gitchell said he did but he would not elaborate. One reporter zeroed in on the rumor that had dogged the case since the first body floated to the surface. Were the defendants members of a cult? Gitchell shook his head. “I can’t comment on that,” he said.

The sensational press conference was drawing to an unsatisfying close. Finally a reporter asked the chief detective, “On a scale of one to ten, how solid do you feel your case is?” This one Gitchell could answer. He smiled and said, “Eleven.”

The police were releasing no details. While that is not unusual, in this case it hid a serious fact. Gitchell’s claim that his case was an “eleven” was based on nothing more than Misskelley’s strangely error-filled confession.

Yet here, in the first hours after the arrests, another door of that unusual secrecy that would come to mark this case was judicially slammed. A municipal judge issued an order denying reporters access to the search and arrest warrants he’d signed the night before—warrants that are supposed to be public record. The judge’s order did not sit well with newspaper editors on either side of the Mississippi. Suddenly, the battle for information became part of the story. In response to the official clamp on information, the Commercial Appeal here in Memphis filed a formal request for the records, citing Arkansas’s Freedom of Information Act. The paper’s managing editor, who is with us tonight, said that the records were needed “to help sort out facts alleged in the case from a growing supply of rumors.” The smaller West Memphis Evening Times echoed the complaint.

But the editors’ cautions changed nothing, and shortly after the records were sealed, a state judge affirmed the unusual order. That judge explained that the information contained in the records was “inflammatory” and that “it would be prejudicial to the defendants to have those documents released to the public prior to the trial.” In fact, the records contained nothing more inflammatory than the statements of Jessie Misskelley, but the media, and therefore the public, didn’t know that.

So here we have a judge telling the public that the record contained information so “sensitive and inflammatory” that it could ruin the chances of a fair trial. Yet—and here is one of the most insidious twists of this story—by the time he said that, officials had already leaked the only thing those records contained—a transcript of Misskelley’s recorded statements—to the media. Through extraordinary but officially sanctioned secrecy, officials were able to simultaneously present a dire image of what the sealed record contained, keep reporters from realizing how little it contained, and preserve an appearance of concern for justice while improperly leaking the little—but sensational—evidence they had.

The next day, the Commercial Appeal ran a copy-righted front-page article outlining Misskelley’s so-called confession. The headlines read: TEEN DESCRIBES ‘CULT’ TORTURE OF BOYS and DEFENDANT MISSKELLEY TELLS POLICE OF SEX MUTILATION. For days, a blizzard of news broadcasts and articles blanketed the area. Even someone who did not buy a paper could read headlines such as these, just in passing a newsstand:

ONE SUSPECT WAS ‘SCARY,’ TALKED OF WORSHIPING THE DEVIL

WORSHIP OF EVIL DEBATED AS MOTIVE IN KILLINGS

YOUTHS COULD FACE THE DEATH PENALTY

The articles that accompanied the headlines told a public hungry for information that Echols “carried a cat’s skull around with him at school and routinely dressed in black,” that Baldwin was said to be “shy and artistic” but “into that devil stuff,” and that Misskelley was “tough” and “a bit troubled” but had been considered “kind to kids.”

In the absence of official information, Satanism beat skepticism. The West Memphis paper reported that Echols wore the number 666 and “a sign of the devil” inside his boots. It quoted two boys who claimed to have heard of ghosts in Baldwin’s house. It quoted an unnamed girl who claimed that she had seen Echols drink Baldwin’s and a girlfriend’s blood, and another who said Echols had once “threatened to cut a boy’s head off and put it on a doorstep.” It quoted a woman who’d linked the observation that, “last year, there were some dogs that turned up missing” with “the Echols boy always wore black.”

In editions on three consecutive days, the Jonesboro Sun quoted a local Baptist minister who said that Echols had made a pact with the devil and would be going to hell. “I’ve never witnessed to anyone any harder,” the minister was quoted as saying. “He didn’t reject me. He rejected Christ.” Reporters did also quote a few contrary views. One of my favorites was by a friend of the Misskelley family who told USA Today that, “Jessie wasn’t into Satanic worship. He was into country music.”

With the devil so prominent in news reports, ministers were quoted as experts. Reporters for the West Memphis paper wrote about a lecture in which a minister identified the “six indicators of Satanic involvement.” (Cannibalism was one of them.) They also contacted so-called experts in the occult and, based on those interviews, the paper reported that “Echols’s reading habits could help determine the nature of his thinking and possible cult activities.”

Now here’s where, had they known about it, the work going on behind the scenes could have alerted reporters to the absence of evidence prosecutors faced. But as any of you know who have tried to follow preparations for a trial, neither side generally wants to talk much.

Diver with knife

 The trials were set for early 1994. In the months after the arrests, Prosecuting Attorney Fogleman launched an unusual and unannounced “prosecutor’s investigation” in a search for evidence to support Misskelley’s statements. He had no murder weapon, no indication that the accused knew any of the victims, and no evidence from the scene where the bodies were found that linked to any of the accused. Fogleman personally questioned dozens of people—and again, as in Salem, most were children and teenagers. In October 1993, with the trials just a few months away, Fogleman had divers search a small lake behind the trailer park where Baldwin lived. That search produced a knife. Fogleman would later suggest in court that the knife had been used on the victims, though no forensic evidence supported that claim. Years later, Fogleman told me that that search of the lake was kept secret. However, the fact was that even that event had been manipulated. In searching the records of the West Memphis Evening Times I found a front-page story about the search, complete with a photo of the diver, mask on and still in the water, clearly holding a serated knife.

Misskelley was tried first. He had recanted his statement to police soon after his arrest, but that made no legal difference. Because Echols and Baldwin both maintained they were innocent, Misskelley could not be tried with them. The state supreme court would later acknowledge that the recording of Misskelley’s statement to police constituted all the evidence against him. Judge Dan Stidham here can tell you all about that trial, where he served as Misskelley’s attorney, but a crucial part of it for me came when Stidham asked an officer to explain the errors and inconsistencies in Misskelley’s confession. The officer replied: “Jessie just got confused.” And the jurors accepted that. But, though the prosecutors asked them to sentence Misskelley to death, they instead sentenced the 17-year-old to life in prison plus 40 years.

After the trial, Judge David Burnett complimented the news media, noting that he was “well pleased” with the way they had covered the trial. Stidham announced he’d appeal. And the prosecutors dropped the word to reporters that Misskelley’s life sentence might not be exactly final. Noting that Damien and Jason’s trial was just 18 days away, they explained that Jessie’s sentence would not become final for about four months. During that time, if Judge David Burnett chose, he could reduce Misskelley’s sentence. They explained that such a thing might happen if, for instance, Misskelley agreed to testify against Echols and Baldwin at their upcoming trial.

Despite the offer of a reduced sentence, Misskelley refused to repeat his claim that he’d seen Echols and Baldwin murder the boys. A similar offer of a term of years, rather than the death penalty, was made to Baldwin. The 16-year-old also refused—not once, but twice—prosecutors’ offer of a reduced sentence if he would testify that Echols had done the killing.

Jason Baldwin at 16

Think about it. Jason Baldwin is 16 years old. He’s been in jail for months, and he’s about to enter a trial where the prosecutors are going to seek his death. He’s offered two deals—in secret. He tells the prosecutors “No. That would be a lie, and my mother raised me better than that.” As I see it, there was some monumental integrity shown here, and it wasn’t on the part of the prosecutors.

Reporters and the public, of course, knew nothing about the offers to both Misskelley and Baldwin—offers that could have gotten them out of prison by now had they accepted them. Nor did anyone know the reason those offers were made: The prosecutors had a problem. They could not play the tape of Misskelley’s statement at the second trial. Even as they prepared to seek the death penalty for Echols and Baldwin, they knew that without some corroborating testimony, they had virtually no evidence against the two. But as the trial for Echols and Baldwin began, all the public knew was that Misskelley had accused Echols and Baldwin, and Misskelley had just been found guilty.

Now, yet another door of secrecy was about to slide between the proceedings in a courtroom and the public’s right to know. Judge David Burnett was having trouble seating a jury because so many prospective jurors said they could not be impartial. Noting that some prospective jurors had said that they were afraid, Burnett told reporters that, as jurors were selected, their names would be made public, but he asked that they not be published. “Because of the magnitude of this case,” he said, “some are fearful that it could affect their business. One or two have asked to remain anonymous.” Partly because of those concerns, Burnett explained that he was taking the further unusual step of having prospective jurors questioned privately in his chambers, rather than in open court.

I am sorry to say that no Arkansas newspaper protested. But the Commercial Appeal did. Lawyers for the Commercial Appeal cited Arkansas law, which, they argued, provided for all trials and hearings to be public. But the prosecutors and the attorney for Baldwin argued for keeping the voir dire process secret. Baldwin’s attorney said, “We’re far more likely to get a fair jury, which is what we’re after, in private.” Judge Burnett agreed and carried on with the trial. The Commercial Appeal took the issue to the Arkansas Supreme Court, which scheduled an emergency session for the following Monday morning. But by then, a jury of eight women and four men had been impaneled.

Days later, the Arkansas Supreme Court ruled that Burnett’s questioning of prospective jurors in private had been error. The court said state law strictly limited the discretion of judges to close jury selection. “Members of the public,” it ruled, “have the right to hear the voir dire examination of individual jurors. Cases have been reversed in this court because of answers given by prospective jurors which subsequent investigation established were false, or at least incorrect.” But coming when it did, the decision had no impact on the trial that was already underway in Jonesboro. The improperly impaneled jury remained seated and the trial continued.

Nor did the block on open records and proceedings end there. Now that Misskelley stood convicted, the Commercial Appeal also filed a Freedom of Information request, seeking access to the investigative file police had compiled in his case. Arkansas law requires release of police investigative files once a case is closed, a point that is clearly marked when a defendant is sentenced. But Burnett denied that request too. He said that, even though the cases of Echols and Baldwin had to be legally separated from Misskelleys, the files of all three defendants were combined and, “the right of a fair trial supersedes the right for the press to have access.”

The "occult expert" testifies

As the Echols/Baldwin trial progressed—and its lack of evidence grew increasingly apparent—the prosecutors chose a strategy whose possible success rested entirely on all the earlier media attention: the reports that appeared for weeks after the arrests on cults, the occult and Satanism. Lacking Misskelley’s statement, and anything else of substance, they attempted to establish a motive for the slayings: a motive of “cult activity.” They called a technician from the state crime lab who testified that she’d found “a trace of blue wax” on one of the victims’ shirts. Other witnesses said a book titled Never on a Broomstick was found in Echols’s home and 11 black T-shirts were in Jason’s. And then the prosecution’s star witness, a self-proclaimed “expert on the occult,”—who we now know claimed a fraudulent Ph.D.—took the stand. Fogleman asked him if he could describe the appearance of “young people involved in the occult.”

The witness testified: “I have personally observed people wearing black fingernails, having their hair painted black, wearing black T-shirts, black dungarees, that type of thing. Sometimes they will tattoo themselves. Then they’ll use some earrings which have occult symbols on them that you can buy through mail-order houses.”  

A teenaged girl testified that, at a softball game, she’d overheard Echols say he’d murdered the children. That, the knife from the lake, and the so-called occult expert seemed enough for the jury. Finding both of the teenagers guilty, it sentenced Echols to death and Baldwin to life in prison.

And that, so far as most of the media were concerned, was that. The court had ruled. The three were no longer the alleged murderers. They were now convicted killers. To my knowledge, only one reporter—one newspaper—who’d attended the trial voiced any doubt about it. Writing in my paper, the weekly Arkansas Times, Bob Lancaster observed:

“The prosecutors convicted Echols of checking certain suspicious books out of the public library, and copying dark passages (”full of sound and fury, signifying nothing”) from the likes of William Shakespeare. God help him if he’d ever discovered Poe. And yet this vague proposition of the murders as an expression of an ignorant boy’s conception of the demands of demonology was the state’s entire case. That’s all we had… And it proved exactly nothing—except that Deamien Echols was being tried for lack of anything better, for ‘thoughtcrime.’ With Jason Baldwin being dragged along as an afterthought.”

By this time, I had two children who had just entered college. My daughter, who majored in philosophy, was into heavy metal. My son, who’s now a lieutenant colonel in the air force, was into Dungeons and Dragons. Like many parents who have gotten involved in this case, I could imagine them on trial.  Almost immediately after the convictions, when the case record finally became public, I drove to West Memphis to see the police files. I wanted to see for myself if there was some real evidence that the media reports had missed. There wasn’t. I next interviewed Echols at his new home on Arkansas’s Death Row, and I have been reporting on this case ever since. But back then, in the mid-90s, I was just a voice in the provincial wilderness.

HBO "Paradise Lost" poster

The media heavy-weight in this case was HBO: specifically, “Paradise Lost, an extraordinary documentary made by Joe Berlinger and Bruce Sinofsky, who had obtained permission from Judge Burnett to film both of the trials. It is ironic that the same judge who questioned jurors in secret, who later imposed gag orders on all the attorneys in the case, and who, even later, sealed a crucial document that could have spare the men years in prison—this same judge, David Burnett, was also the one who allowed the cameras into his courtroom that would eventually bring what happened in his courtroom to the attention of the world.

 HBO released “Paradise Lost” in 1996, two years after the trials. That was the same year the Arkansas Supreme Court affirmed all three men’s convictions. The film had—and continues to have—a profound impact on viewers. It took no sides, offered no opinion. But in presenting actual footage of what occurred at the trials, it prompted thousands of viewers to want to know more. Was this what really happened? Was there more than we saw in the film? What has happened since?

Viewers were shocked—by the murders, by the trials, and by the layers of unanswered questions. A group of artists in Los Angeles created a website—wm3.org—to serve as a hub on the Internet for others interested in the case. A man in Denmark started a site that may by now be the largest archival record of any criminal proceeding on the Internet. Along with every record that has now been discovered you can see there a record of almost every media report on this case, including the Commercial Appeal’s.

The role of the Internet and “new media” cannot be understated. At least seven sites, including my own, report regularly on this case, and there are at least eight active message boards where it is discussed down to the minutest detail. In addition, many artists have come  on board, using their celebrity to focus media attention on the case. Metallica contributed its music to “Paradise Lost.” A Seattle band, the Supersuckers, organized a compilation CD titled “Free the West Memphis Three” that included songs by, among others, Tom Waits, Steve Earle and Eddie Vedder of Pearl Jam.

When a reporter for the Village Voice asked why they were doing this, an organizer of the CD explained that he felt an obligation to the “kids” who listened to his music, especially if their fans’ appreciation of their music might someday be used against them in court.  In Little Rock, the editor of the weekly Free Press wrote that musicians worried that anyone who bought their records and T-shirts could be considered “a devil worshiper and become a scapegoat in a legal system that fears the unknown vistas of [so-called] ‘dark music.’”

“Dark music.” Those are practically iconic words here in Memphis. As many of you know, there was a time when the music of Elvis Presley, now so very mainstream, was also considered “bad.” Presley, like many of the blues musicians now lionized on Beale Street, at first outraged Memphis, with music that flaunted the big taboos: sex, drugs and—worst of all—subliminal notions of evil. Thirty years later, police in West Memphis ransacked the homes of Echols and Baldwin and hauled out record albums of Metalica, Megadeth and Slayer—all of which would be used to suggest the boys’ murderous state of mind.

About 10 years ago, Pearl Jam appeared in concert at the Pyramid Arena here in Memphis. At the end of the concert, after two encores, Vedder came back onstage. “This last song is for a friend I haven’t met yet,” he announced. “He’s from West Memphis. I’m going to meet him tomorrow.” The band then launched into a biting rendition of the Who’s “Teenage Wasteland.” The next day, Vedder rode in a limousine across the Mississippi River, into the Arkansas delta, to the maximum security prison holding Echols.

There is not time enough here tonight to list all of the artists—in music, film and comedy—who have risked their professional reputations to publicly support three convicted child-killers. Many artists have also contributed generously to the support fund established to further investigate and appeal the West Memphis cases. In addition, the list of ordinary people from around the world who have contributed money online, year after year, to that fund is enormous—as has been the need for that money.

As publicity about the case spread via the entertainment world and the Internet, various print and electronic media began reporting on the developing supporter phenomenon. The angle was generally: “While police and state officials maintain that the West Memphis Three are guilty, a new movement has emerged supporting the men in prison.” Until recently, most national reporting has continued in that vein, “balancing” the official convictions against the unofficial voices challenging them.

Four reporters have written books about the case. Three Commercial Appeal reporters who had covered the investigation and trials—Guy Reel, Marc Perrusquia and Bartholomew Sullivan—wrote the first, “Blood of Innocents.” My own book, “Devil’s Knot,” came out two years later.

The Canadian anthology

A Canadian company published an anthology titled: “The Last Pentacle of the Sun: Writings in Support of the West Memphis 3.” And six years ago, Echols’s supporters published his own book, “Almost Home,” about his life and how he experienced the events that sent him to prison. 

Yet three writers who could have lent enormous support have kept silent. Stephen King, Dean Koontz and Anne Rice all have a special relationship to this case, in that Echols cited them when a prosecutor asked what type of books he read. Earlier in the trial, a police officer, when asked about Echols’s reading, replied: “Stephen King seems to be horror movies, horror books, and if you’re asking if I felt that was strange, yes sir, I did.” I sent a copy of my book to King, Koontz and Rice as soon as it came out, explaining that these men had been pilloried in part for having read their work. But as of yet, apparently, none has seen a need to speak out.

For the most part, newspapers have joined in their silence. News—true to the word—is about what’s happening now. And for most newspapers, the West Memphis case had become history. Once the trials were over, the West Memphis Evening Times reported only on the men’s occasional appeals, the resignation of the West Memphis detective who’d led the murder investigation, and the conviction for fraud that led to the resignation of the juvenile officer who had first named Echols, Baldwin and Misskelley as possible killers. To my knowledge, the Arkansas Times is the only paper that has editorialized on behalf of new trials for the men.

By contrast, very little about the case has appeared in the statewide daily, the Arkansas Democrat-Gazette, since the trials. The one columnist there who did address them voiced—unwittingly, I believe—exactly the attitude that, until recently, has prevailed in my state and at that paper.

Columnist Philip Martin

In 2001, Philip Martin, the paper’s chief writer on cultural affairs, noted the support that was building nationally and even internationally for the three inmates, including that from musicians and what he called “Hollywood types.” Martin wrote that he realized that many of the West Memphis Three’s supporters were “well-meaning and sincere,” and that “reasonable, decent people can disagree.” Still, he wrote that he believed that Echols, Baldwin and Misskelley were guilty.

Martin went to lengths to acknowledge the supporters’ concerns. He said that, like them, he had not been convinced of the defendants’ guilt “beyond a reasonable doubt;” he too had harbored “some misgivings about the way the police identified the suspects;” he’d been “troubled by the Satanist hysteria surrounding the case;” and he realized that the West Memphis trials had been “messy” and “largely circumstantial.”

He further acknowledged that “confessions can be false,” that Jessie’s confession was “hardly convincing,” that the teenager probably had “an extremely low IQ,” that he disliked “the state’s insistence on dragging a self-styled expert on Satanic rituals” into the second trial, that “police routinely cut corners,” that “there are innocent (or at least ‘not guilty’) people in our prisons,” and that “if you are poor and friendless you are treated differently than if you are wealthy and well connected.” He said he knew the Arkansas judicial system was “capable of atrocity” and was “probably capable of convicting and even executing the wrong person.”

Nevertheless, Martin said, two juries had found the defendants guilty and he had seen no convincing evidence that those verdicts were wrong. “It makes a good story,” he wrote: “Yokel cops crucify the misfit. It could sell some books. But it ignores the facts.”

And this raises an aspect of “media” that we never consider enough: the grapevine. It’s so close to the ground, so unorganized and so familiar that we hardly see it. But in Arkansas, with regard to this case, word of mouth—rumor—has always prevailed over what was—or was not—professionally reported.

In Martin’s case, he did not cite what “facts” he believed had been ignored. Rather, he explained that all his doubts about it had been laid to rest by what he called “a couple of back-channel conversations.” Without divulging his sources or what in those conversations he had found so persuasive, Martin assured his readers: “Their word was good enough for me. The cops had the right guys.”

Echols at arraignment/Steve Jones/The Commercial Appeal

And he didn’t stop there. While granting that he “wouldn’t mind too much” if Echols, Baldwin and Misskelley “somehow” managed to get new trials, Martin wrote that he didn’t “much care” if their case was never reviewed. “While I’m opposed to capital punishment,” he wrote, I don’t think Damien Echols is a particularly good argument against it. I could be wrong, but he seems thoroughly calculating and cynical about all this, he seems to be enjoying the attention. He seems evil. Which, I imagine some of his supporters would argue, is what got him into all this trouble in the first place—Echols seems evil.”

On a personal level, I like Martin, but I find that a despicable piece of writing. Yet I don’t mind telling you that Martin and that column nailed the sense of the times. Awareness was growing that the case was riddled with problems; that the trials were far less than what they ought to have been. Like many of his readers, no doubt, Martin was able to acknowledge that intellectually, at the same time he was able to pronounce with confidence that certain information, which he did not disclose—and which had never been introduced at the trials—convinced him, as he wrote, that, “The cops had the right guys.”

I cannot tell you how many times I heard that line of thought repeated. If that’s so, I would ask, why do you think the prosecutors did not present this damning information at the three men’s trials? There was never a good answer. Instead, I heard responses that again echoed Martin: “Well, whatever happened, you can just look at Damien Echols and tell that he’s evil.”

So what is a girl to do? When reporters from papers such as the New York Times came to Arkansas to explore the growing support for the three convicted killers, West Memphis police had a ready, easy answer. The supporters, they said, meant well, but they were uninformed. They were not from Arkansas and they didn’t know what had really happened.

After a while, I’d heard that enough. I am an Arkansan. I do know the facts. And I am a citizen. In my roles as a journalist and as a citizen, I concluded that I had an obligation to speak out against trials that I, along with much of the world by then, had come to view as travesties. I became an advocate. My paper, the Arkansas Times was fine with that, and so, apparently, were my readers. Now, in addition to relating the facts of the case at every venue to which I was invited, I began to also offer my opinion: Arkansas should give these men new trials or Arkansas should set them free.

A columnist in, of all places, the Arkansas Democrat-Gazette, has criticized me for abandoning objectivity. But I am not much bothered by that. For one thing, I believe in fairness but not objectivity. I believe that some of our country’s greatest journalists have opposed government abuses and stood for human rights. I do not believe that the right to express opinions is reserved only for media’s owners. And, while I still write for the Arkansas Times, I do so as an independent journalist. I am responsible only to my readers and to my own conscience. With regard to this case, I have acknowledged my perspective up front; I try to be truthful and accurate; I don’t ignore those who disagree with me; I try to be fair and thorough. Am I to be trusted? I let readers make that call.

Fortunately, I am not alone. There are others in Arkansas who care about this case—at least as much as I. Some are here tonight. A few of them, led by Lorri Davis, formed a group called Arkansas Take Action. It has become the most potent support group inside Arkansas and its demand is simple: that the multiple doors to access in this case be opened once and for all. If that happens, we believe, some prison doors will open too.

Thanks to information developed by ATA, I was able to break a story last year that brings this talk full circle. Remember those challenges to the judge’s decision to keep the questioning of potential jurors secret, and how the Arkansas Supreme Court ruled that it had to be open, but the trial went ahead nonetheless? Well, there is now significant evidence before the court—part of it in the form of an affidavit—that the foreman at the Echols/Baldwin trial had pre-judged the case, that he had not revealed that fact during questioning, that he introduced illegal information to the other jurors (regarding Misskelley’s confession) and that he discussed the case outside of the jury room—all in violation of the judge’s instructions. Even attorneys for the state do not dispute this.

The sealed affidavit

Yet—and here we go again—Judge Burnett sealed that explosive affidavit. When I filed an FOI request with the state supreme court, seeking access to the files containing the document, I was told, to my astonishment, that the clerk for the supreme court had, on his own initiative, sealed the entire case record. There followed some extraordinary back-and-forth between the supreme court and Judge Burnett, at the end of which, almost a year later, I renewed my request for the files. This time it was granted. I went to the supreme court clerk’s office. The affidavit in question was on the top of the pile that was handed to me. It was still stamped sealed in two places. I did not know if I’d been given it by accident or not. But I wasn’t taking any chances. I carried the pile to a desk in a corner of the clerk’s office, pulled a lamp close to the pages, took out my cell phone and photographed the entire affidavit. The court has since said that the document was released to me in error, but by then, I’m glad to say, I had reported all its contents. They alone may be serious enough to warrant a new trial. One door, at least, got opened.

So, yes, there have been high points—at least for those of us not in prison. Last fall, ATA organized an astonishing concert called Voices for Justice: A rally for the West Memphis Three. Little Rock’s 4,000-seat auditorium sold out fast for a show at which Eddie Vedder, Natalie Maines, Johnny Depp, Patti Smith and many other artists performed. It was a remarkable night for an unprecedented cause. But again, the Democrat-Gazette barely mentioned it. An even greater high point came just a few months later, near the end of last year, when the Arkansas Supreme Court, responding to appeals from all three men, finally ordered a review of their case. That review, called an evidentiary hearing, is to begin Dec. 5 in Jonesboro. It is to be comprehensive, covering everything that’s been discovered from the murders to this day. The judge has set aside three weeks.

But please don’t get the impression that we’ve suddenly got sunshine in Arkansas. Especially with regard to police, courts and prisons, we still face many freedom of information issues. There was something of a riot a few weeks ago in the prison where Echols and Misskelley are held. They were not involved, but four guards were attacked by inmates. One suffered broken bones in his face that will require surgery. Did prison officials report that four state employees had been injured when prisoners temporarily got the upper hand? Of course not. Only after word was leaked out of the prison and I reported it, did the prison spokesman confirm the incident had occurred. 

And there’s this. If all the efforts of supporters of the West Memphis Three were to fail, and Echols were to be executed, Arkansas citizens would not be allowed to know how he is killed. As our state law now stands, the procedures for execution in Arkansas are exempt from the Freedom of Information Act.

That said, I don’t believe Echols will be executed. I believe that many of the doors that have been shut in this case will be opened at the upcoming evidentiary hearing, and that after it, Echols, Baldwin and Misskelley—now all men in their 30s—will finally be freed. Then we will confront the question that you have initiated tonight: how did this injustice happen? That is when, for Arkansas, the soul-searching will have to begin.[/private]

Misskelley’s attorney publicly opposes ‘confession’ bill introduced by former judge, now senator, Burnett

 
 
 

Sen. David Burnett

In his first term as a state senator, former circuit judge David Burnett, who presided at the trials of the West Memphis Three, has introduced a bill in the Arkansas Legislature titled: “An Act Regarding Evidence and a Defendant’s Confession.”

[private]The bill would change existing Arkansas law which now states simply that a confession made by a defendant outside of court “will not warrant a conviction” unless it is “accompanied with other proof that the offense was committed.”

Burnett’s Senate Bill 684 would provide an alternative way that a confession not made in open court could result in a conviction. The proposed law would allow a conviction if the “other proof” was presented “or” the confession was “supported by substantial independent evidence which would tend to establish the trustworthiness of the confession.”

Since its introduction, Arkansas attorneys have expressed confusion about both the bill’s intent and potential impact. However, in an appearance at the capitol this week, attorney Jeff Rosenzweig, who represents Jessie Misskelley, Jr., spoke unequivocally against it.

(Though there is no evident relationship between Burnett’s bill and the West Memphis case, the Arkansas Supreme Court observed that Misskelley was convicted and sentenced to life in prison based entirely on a confession he made outside of court. That confession also served as the basis for arresting Damien Echols and Jason Baldwin and charging them with the 1993 murders of three West Memphis children.)

When asked about his testimony, Rosenzweig replied by email:

“Yes I spoke against it. I pointed out that it would remove the requirement that the prosecution prove that a crime had been committed and that the corroboration in his proposal did not even have to go to the crime. (Even they admitted that.) 

“I also pointed out  several problems with his claim that the statute was a vestige of the days of coerced confessions.  One is that although he says coercion  no longer happens, it does. This, of course, was the same week that a Chicago police officer went to prison for torturing people into confessions.

“The other is that there is  no requirement that the ‘confession’ be in writing or recorded, that one lying policeman could just claim a defendant said something and that would be enough under the statute.   If they were serious about the reliability of statements, they would require that all statements be recorded.  (Of course, this is something that law enforcement and prosecutors have resisted.)” 

Rosenzweig, one of the state’s most prominent criminal defense lawyers, added that Burnett had earlier told another defense attorney that he was not going to pursue the bill. “He reneged,” Rosenzweig wrote.

Another criminal defense attorney, who asked not to be identified, wrote that Burnett’s proposal was a “bad bill.” He elaborated that the “language ‘substantial independent evidence’ is too ambiguous and could mean the interrogator’s testimony that the confession was good.”

The Arkansas Association of Criminal Defense Lawyers opposes the bill. One of its members wrote: It “allows a conviction based solely on a ‘trustworthy’ confession, whatever the hell that is. Doing away with the need or requirement for independent corroboration. Nothing else needed to connect the defendant to the crime.”[/private]