On March 3, 1994, John Fogleman, then a deputy prosecuting attorney, was preparing to call Damien’s probation officer, Jerry Driver, to the stand to question him about Damien’s alleged involvement in “the occult.” Damien’s and Jason’s defense attorneys were fighting hard to block that testimony. As I write in Dark Spell, the official transcript of that discussion reflects only that Burnett said he would allow Fogleman to question Driver about having seen “Damien, Jason and Jessie walking in Lakeshore wearing black coats and carrying staffs.” But we now know, thanks to a recording of the exchange that was picked up by HBO’s microphones, that that was not all the judge said.
HBO’s audio file of the trial was released to an archive of the West Memphis case a few years ago. An astute listener later caught a comment that the court reporter did not record. On the audio, Burnett can be heard chortling, apparently to the prosecutors, “If y’all want to spice it up a little bit and start talking about the devil, I’ll listen.”
That was the turning point, an opening that, as the case developed, would prove critical for the state. When Damien and Jason appealed their convictions to the Arkansas Supreme Court, the court cited the “testimony of Dr. Dale Griffis,” whom they described as “an expert on ritual killings,” and unanimously found that there was sufficient evidence “by which a jury could find that the crimes were a ritual killing.”
Though the Ph.D. Griffis claimed was discredited even at trial for having come from a mail-order college, Burnett allowed him to testify as an “expert.” And so the die was cast. I had not known of HBO’s recording of Burnett’s “spice it up” comment until this year. But I’m glad it’s in Dark Spell, because I find it the most revealing piece of this entire tawdry case. Listen here.