A Theme Of Schemes

Thumbnail for 611Someone asked me today if any theme connected all my books. “Prosecutors and politics,” I blurted. Then: “And maybe a subtext of drugs.”

My first book, The Boys on the Tracks, is about a corrupt prosecutor who manipulated his position to derail the investigation of two teenagers whose bodies were found run over by a train. The mother of one of the murdered boys trusted him, as did everyone–but he betrayed them all.

Of course, Devil’s Knot examines one of the sleaziest prosecutions in American history, though no official in Arkansas has yet been willing to admit that. I hoped that by writing the book, readers would see how slyly the prosecutors (pictured) and the judge worked together to get juries to send each of the West Memphis Three to death.

Dark Spell focuses on Jason, partly because I simply find his story heroic. But there would have been no story if not for a couple of kill-’em prosecutors (shown) and a likeminded judge. Unlike Jessie, Jason had never confessed, and unlike Damien, he’d never speculated about the murders with the police, or even “dabbled in the occult.” When he was arrested, he was a pretty ordinary kid at the end of his junior year in high school, who had a job lined up at a grocery story that he was to start on the following Monday.

Then, after the convictions, prosecutors fought even the DNA tests that state law allowed and all three of the convicted men requested. The state resisted those tests even though supporters were willing to pay for them! That’s part of the reason the men’s “dark spell” in prison lasted so long.

I’ll end this post with three quotes that I placed at the front of Dark Spell:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it 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.

~ American Bar Association

A prosecuting attorney “may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

~ Berger v. United States

A lawyer should avoid even the appearance of impropriety.

~ Arkansas Supreme Court Rules of Professional Conduct

What’s remarkable about the West Memphis case is how people around the world have noticed “the appearance of impropriety” while the state supreme court has seen none.

‘Start talking about the devil’

Burnett 200On 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.

The big disconnect: official versus public perceptions of the West Memphis case

 

The case of the West Memphis Three is a landmine for Arkansas’s judiciary. When people anywhere learn what has happened to the three Arkansas men, their confidence in the courts—at least in Arkansas—tends to explode. The damage already has been vast, and it’s likely to spread.

Not that any member of the judiciary has ever publicly acknowledged that. Arkansas elects its judges, its prosecutors and its attorney general. Everyone’s wary of shrapnel.

But jurists throughout the United States recognize that public perception of America’s courts is already suffering. In a 1999 national survey, 23 percent of those surveyed reported that they had a “great deal” of trust in their states’ courts, while 7 percent said they had “hardly any trust.”

In Arkansas, the figures are skewed more dramatically. A 2010 survey in Little Rock in 2010 reported that, while 38 percent of those surveyed said they had a “great deal” of trust in the judicial system, a stunning 54 percent said they held “hardly any.”

In a speech last summer to the Arkansas Bar Association, Supreme Court Chief Justice Jim Hannah noted what he called those “troubling” figures. “In every speech I have given since becoming chief justice,” he said, “I have made the statement that the success and viability of our court system is totally dependent upon the trust and confidence of the public.”

Hannah told his audience: “We must take seriously the public’s perception and do all that we can to create and sustain a system which both is fair and impartial in fact and in appearance.” (The stresses are his.)

Unfortunately, as thousands are by now aware, the fact and the appearance of injustice permeate the West Memphis case. The totality of injustice extends from the police who investigated the crime and came up with no evidence; to the prosecutors who nonetheless tried to send three teenagers to death for it; to the judge who mocked his own court by qualifying an uncredentialed witness as an  “expert” in the occult; to the Arkansas Supreme Court, which found not a single flaw in either of the men’s two trials; to the state’s attorney general who insists that it’s his job to support the 18-year-long farce and press for an execution.

In the past few months, I have conducted my own informal survey regarding this case. I contacted several people who have worked for years to see the men’s sentences reversed and asked what, if anything, about the case they found “intellectually offensive.”

Here are some of their emailed responses:

Mark Cowart

“I found the West Memphis Police Department’s tactics, the prosecution’s tactics, the public reaction, Judge [David] Burnett’s actions, and the juries’ verdicts offensive.” –Mark Cowart, DDS., Chattanooga, TN

“[The case] was based on hearsay. If there had been a jury composed of critical-thinking individuals instead of a jury swayed by mass hysteria, the outcome would have been much different.” –Dr. Lanette Grate, Conway, AR

[private]“The so-called defense effort for Jason was intellectually offensive. I’m sorry, but it was. Not a single witness was placed on the stand to help that man and that was morally, ethically, and legally wrong. There were certainly people who could have testified to his alibi and to his character. … No one is ever going to convince me that it was fair, just or acceptable that he received counsel that felt a fly-under-the-radar strategy was reasonable. He was a teenager being tried for the murders of three small children. His life was on the line.” —Anonymous

“It was offensive intellectually in every possible way, from the presumption of guilt (which I’m ashamed to say I initially shared) to the shoddy investigation to the coerced ‘confession’ to the inane testimony of ‘Dr.’ Dale Griffis to the argument that reading horror novels and wearing black are evidence of a lack of a soul to the juror misconduct to the idiotic law that requires that appeals be heard by the very judge who presided over the original trial to—well, you name it. If there was anything that wasn’t offensive about the case, I don’t know what it was.” —Dr. David Jauss, Little Rock, AR

“After viewing the documentary (“Paradise Lost”), I remember having a  discussion with family and friends about how scary the prosecution seemed. It seemed like a witch hut. The crowds outside of the courtroom seemed as though they wanted to lynch the teenagers. They appeared to be in a frenzy of hate. I thought the prosecution and detectives and judge seemed to be a bunch of good old boys attempting to convince the jury of the guilt of the three teenagers because they were easy targets. It reminded me of the Salem village witch trials sent in modern-day Arkansas.” —Capi Peck, Little Rock, AR

“I was with some friends in Hawaii who wanted to visit Arkansas until we watched the film together. Then they changed their minds and never came. The salient intellectual objection at the time, for me and those Hawaii residents, was the prosecutor’s closing arguments.” —Brent Peterson, Little Rock, AR

“The state’s use of Dale Griffis as an expert witness. I find it hard to believe that [Deputy Prosecuting Attorney John] Fogleman and [Prosecutor Brent] Davis weren’t smart enough to realize how ridiculous Griffis was, but they called him anyway to testify about the occult because, in my opinion, they knew they didn’t have enough without playing some “occult” card to the jury. I think Fogleman’s comment in closing about looking into Damien [Echols’]eyes and not seeing a soul is a disgusting parlor trick/game, as well.” –Diana Paulson, Chesapeake, VA

“I thought the satanic panic was most unfortunate because no one cared to delve more deeply into it.” –Marie South, Jonesboro, AR

“I never, for a second, believed those three little boys were killed at the ditch-bank scene where their bodies were recovered. The mere sight of their bodies on the ditch-bank at the beginning of ‘Paradise Lost’ has haunted me ever since. I simply could not, even after repeated viewings, reconcile the way they were discovered—hog-tied and naked—with the idea that this was a satanic killing, with a completely clean ‘crime scene.’” –Bob Tankersley, Atlantic Beach, FL

“I lived in Memphis when this happened, and I was offended at the bungling by police. My own son was a police officer in Kentucky at the time, so I found it offensive to see how West Memphis police were handling the case, losing evidence, doing anything to convict—in the easiest way the could—persons who couldn’t defend themselves.” –Pat White, Fairfield, IL

Though I am glad that it ordered a review of this case, however belatedly, my own prize for “most offensive” would go to the Arkansas Supreme Court. It sets the standard for how law is conducted in Arkansas. It permitted this case’s atrocities, not only to occur, but to drag on for 18 years. As the court’s own rules for professional conduct observe:

“The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.”

Public confidence in Arkansas’s courts is low and getting lower—and the public’s mistrust extends well beyond the West Memphis case. Whatever happens with that in December, confidence in Arkansas’s courts has suffered. Responsibility for the injury—and the “ultimate authority” to heal it—rests with the supreme court.[/private]

A new rule that might have saved the West Memphis Three—and a plea to strengthen it

Jessie Misskelley at his trial

On May 26, the Arkansas Supreme Court issued an opinion stating that, “Whenever practical, a custodial interrogation at a jail, police station, or other similar place, should be electronically recorded.” The opinion proposes changes to the court’s Rules of Criminal Procedure and gives the public until June 30 to comment on what it has proposed.

This is good news—to a point. The opinion announces that courts will no longer automatically accept interrogations that are not electronically recorded or that were only recorded in parts—as in the case of Jessie Misskelley, Jr. The word “should” in the opinion carries some weight, which is an improvement over current practice.

But the court’s proposal falls short of the “best practices” for electronic recording that have long been recommended by professional groups, including the American Bar Association. Instead of “should,” the new rule should read: “shall.”

Without that change, the proposed rule provides no penalty if officers fail to record. To actually have teeth, the rule must stipulate that, barring extraordinary circumstances, unrecorded interrogations will not be admitted in court.

[private] The proposed rule also fails to define “interrogation.” Could officers argue, for instance, that the first four hours or so they spent in a room at the police station with Misskelley were only “questioning”—not an interrogation?

 Finally, the proposal states that a court could accept an unrecorded custodial statement if “electronic recording was not feasible.” But what does that mean? If an officer thinks that the person being questioned might clam up if a recording device were turned on, would that be enough to support a claim that recording was not “feasible”?

 A group of Arkansans, including me, has worked for months to encourage the supreme court to adopt a rule on electronic recording that will be clear and strong enough to serve police, prosecutors and defendants well into the future. We applaud the state supreme court for taking action on this important subject, but we also urge Arkansans to tell the court we want better recommendations.

 Letters from individuals living outside Arkansas will probably have little impact—and might even annoy the court. If you don’t live in Arkansas but know someone here, consider asking them to write. And find out what, if anything, the court in your state requires regarding electronic recording of interrogations.

If you do live in Arkansas, please draft a personal letter from the information below. There is an overview of the need, a very brief statement and a longer letter. Adapt the information as you see fit and send your letter, no later than June 28, to:

Mr. Leslie Steen

Clerk to the Arkansas Supreme Court

Justice Building
625 Marshall Street
Little Rock, AR 72201

 Damien Echols, Jason Baldwin and Jessie Misskelley have spent 18 years in prison, based almost entirely on one error-filled and convoluted confession that was recorded only in part. What might have happened differently for all of them if a recorder had been running the whole time Misskelley was questioned?

 What happened to the West Memphis Three cannot be undone. But similar injustices can be avoided in the future.

 OVERVIEW

It has been three years since the Arkansas Supreme Court requested that the Committee on Criminal Practice study and consider whether police should record interrogations. This request came about in Clark v. State, where the defendant argued that when police interrogated him, they coerced him into confessing to a crime he did not commit. Only the police and the defendant know what truly happened in that interrogation room.

It’s hard to imagine confessing to a crime you did not commit but, in about 25% of DNA exoneration cases, innocent defendants made incriminating statements or confessed to a crime they were later proven not to have committed. Christopher Ochoa and Richard Danziger both spent 12 years in prison for a rape and murder they did not commit. Jurors in their case felt robbed when they did not have a recording of the interrogation, especially since the “confession” was the only evidence against the defendants.

It is crucial that the Supreme Court of Arkansas join the 18 other states that have adopted a rule that requires police to record interrogations of suspects. Most police stations in Arkansas already have recording equipment but there are no standard policies about when they turn the recording devices on. 

Your letter to the Arkansas Supreme Court should ask it to improve the accuracy, fairness, and reliability of trials by requiring recorded interrogations.

MODEL SHORT LETTER

The Arkansas Committee on Criminal Practice has issued a recommendation to the Arkansas Supreme Court regarding electronic recording of interrogations. The committee’s recommendation fails to meet best practice standards and falls short of protecting citizens from wrongful convictions because they do not require police to fully record interrogations, they merely suggest recordation.  I/we request that the Arkansas Supreme Court adopt a rule that would require police to electronically record interrogations in their entirety.

MODEL LONGER LETTER

Dear Justices of the Arkansas Supreme Court:

I am writing to urge you to create an evidentiary rule requiring custodial interviews to be video recorded from start to finish. My interest in this issue arises from a desire to improve accuracy, fairness, and reliability of the fact-finding mechanisms within the criminal justice system.

Legal scholars and professional organizations recommend complete recording of interrogations in order to provide decision makers with the tools that will allow them to accurately ascertain the facts surrounding criminal offenses in order to correctly identify perpetrators so that they may be punished and the community may be safe. Having a complete audiovisual record not only protects the rights of suspects, but it also protects municipalities from false claims of police misconduct.  Most importantly, it enhances public trust by adding transparency and accountability to the process of investigating and prosecuting crimes.  

It has been three years since Clark v. State wherein which you referred the issue of electronic recording to the Committee on Criminal Practice for study and consideration. Since that decision, additional states have joined in requiring recordation, including Indiana, whose Supreme Court created this requirement for evidentiary rules.

More than 500 jurisdictions have voluntarily adopted recording policies with 84 percent believing that videotaping improved the quality of police interrogations. A study of the law enforcement perspective on the practice found that “virtually every officer who has had experience with custodial recordings enthusiastically favors the practice.”  The number of police departments that record will only increase over time, and we believe that Arkansas has the opportunity to demonstrate leadership by requiring custodial interviews to be video recorded. 

In short, I ask you to approve a rule that requires recording of police interrogations to create uniformity in the system. As a citizen and potential juror, I urge you to give me access to all the facts of a case by requiring recordation of the interrogation.

Sincerely,

 [Your name][/private]

Are ‘Voices for Justice’ heard?: A star-studded rally on behalf of the West Memphis Three prompts the delicate question

This article appears in the current issue of the University of Arkansas at Little Rock Law Review, Volume 33, Number 2.

 

Mara Leveritt*

For someone who’s not a member of the legal profession, I felt honored to be invited to write an article for the UALR Law Review about the “Voices for Justice” concert held on behalf of the Arkansas prisoners known as the West Memphis Three. I was asked to focus particularly on how—or even if—an event featuring such well-known celebrities as Eddie Vedder, Natalie Maines, Patti Smith, and Johnny Depp might affect the men’s legal appeals.

For the past six years or so, many, including myself, have expressed an opinion that those trials were not fair. I have said Arkansas should either try the men again or set them free, and I was heard saying so again in a short film  about the case that was shown the night of the concert.[1]

Given the scale of that event and its unusual purpose, it’s fair to ask what advocates might hope to gain by assembling some of the world’s biggest celebrities for a performance on behalf of prisoners? Can public support have any effect on a judicial system that, for good reason, is supposed to be insulated from the hue and cry of public fervor?

The stated goal of “Voices for Justice” was to “raise Arkansans’ awareness” of the case. An unstated goal, which I suspect animated many of us, was that the increased citizen awareness would somehow translate into a change in the political climate around the men’s appeals and that that change of atmosphere, however subtle, would be felt by the justices concerned. This article will examine whether such a hope was at all warranted.

I. Background

This concert was not the first media event to shed light on the case of the West Memphis Three. In 1996, the same year the Arkansas Supreme Court unanimously affirmed the convictions of all three boys, Home Box Office released a documentary called Paradise Lost[2] that showed extensive video footage that the trial judge, Second Judicial Circuit Judge David Burnett, had allowed to be recorded during the teenagers’ two trials. The film, which premiered at New York’s Metropolitan Museum of Modern Art, provoked a wave of concern, in the United States and abroad, centering on the prosecutors’ sensational claim that the defendants had killed the children as part of a “satanic” or “occult” ritual. Despite the juries’ findings of guilt, many who viewed the film came away thinking that the prosecution had failed to prove the “occult-ritual” theory of motive, and that they had offered no other evidence of guilt.

In the years that followed, three Californians dubbed the convicted men the West Memphis Three and formed a Website, wm3.org, to archive documents about their cases. Two books were published about the case, including my own, Devil’s Knot,[3] which appeared in 2002. Over time, thousands of people from the United States and several foreign countries held fundraisers for the convicted men, sent money to finance their appeals, and placed documents relating to their cases on what became voluminous online archives. But activism inside Arkansas remained muted. In 2007, Lorri Davis, a landscape architect who had moved from New York to Little Rock to marry Echols, together with Little Rock restaurateurs Capi Peck and Brent Peterson, founded Arkansas Take Action (ATA) to stir a response to the case in the state where the men are held. Just over a year after its formation, ATA orchestrated the “Voices for Justice” concert.

II. The Concert

The event was unprecedented in Arkansas. Few like it have occurred in the United States. On a Saturday night in late August, some 2,500 people poured into Little Rock’s Robinson Auditorium for a one-time-only concert that its organizers called “Voices for Justice: A Rally in Support of the West Memphis Three.” While some who bought the modestly priced $25 tickets might have been hard-pressed to explain exactly who the West Memphis Three were, much less why a rally on their behalf might be needed, there was little doubt about the enthusiasm of the crowd or the stature of the celebrities headlining the event.[4]

Thompson Murray, pastor of Quapaw Quarter United Methodist Church in Little Rock, opened the show with the sobering reminder that the cruel murder of three children rested at the heart of the night and that the guilt of the three men convicted of those murders has not held up well under public scrutiny. Brief comments by leaders of ATA, the group sponsoring the event, and a short film commissioned by ATA, explained more about the evening’s focus. The performers had assembled in Little Rock at the request of an Arkansas Death Row inmate and his wife to call public attention to the case of the three men convicted of killing three eight-year-old boys in the Mississippi River town of West Memphis in 1993. Damien Echols was eighteen at the time. He was sentenced to death. Jason Baldwin and Jessie Misskelley, Jr. were sixteen and seventeen years old, respectively, when they were charged with the murders. Both were sentenced to life in prison.

Though their reminders were subtle, none of the performers at the Voices for Justice concert let audience members forget that this was a show with a mission. When Depp appeared onstage to read from a journal entry by Echols, he was at first almost drowned out by cheers and shouts from the balcony of “We love you, Johnny.” The actor stopped his reading momentarily, leaned closer to the microphone, and looking at the audience over his glasses said softly, “We all know why we’re here, right?”[5] After that, the cheering was mostly kept to first appearances on stage and the closing strains of songs.

Other performers chose other ways to convey their reasons for appearing in Little Rock. Vedder and Maines sang,[6] while Patti Smith, who also sang, used an unexpected moment of silence in performing one of her songs to most sharply express her feelings about the case that had brought the ensemble together—a statement which brought down the house.[7] 

III. The Question

The statewide daily newspaper, the Arkansas Democrat-Gazette, took scant notice of the event, reviewing it the next day as a concert with barely a mention of its unusual purpose.[8] Arkansas Times reporter Gerard Matthews better captured the mood of the night. He wrote, for example, that after finishing her set, Smith stayed onstage for “an incredible finale where every musician came back out onstage for a rousing, almost church-like rendition of her song ‘People Have the Power.’”[9] One Little Rock radio personality predicted that the concert will become legendary and that twenty-five years from now everyone will say, “I was there,” whether they were or not.

But as Depp’s jet took off and the bands busses rolled out of Little Rock, a question lingered behind: If people do have “the power,” as Smith proclaimed, does it, can it—should it—apply to the justice system?

Public activism on behalf of prisoners is rare. Most Americans believe that persons sentenced to prison are, in fact, guilty. Punishment is an accepted part of this culture. Ordinary citizens are usually busy caring for families, trying to earn a living, and maybe taking time to shop or watch a football game. In addition, they are bombarded with requests to devote money and time to causes. Work on behalf of prisoners rarely tops anyone’s list. In that regard, celebrities are no different. They have to field many requests, and partners in their careers—such as agents, publishers, recording companies or even fellow band members—may not see much sense in being identified with a convicted felon, much less convicted child-killers. So requests to take up a prisoner’s cause rarely results in action. And even if an effort is made, the chance that it will actually help the prisoner is modest at best. For all these reasons, the history of public activism on behalf of prisoners, while long, is narrow. There have always been wailers outside of jails, and sympathizers who’ve attempted to smuggle in implements of escape. But broad-based movements have been rare. The record of such public activism in the past fifty years in the United States suggests that only occasionally has it changed a prisoner’s status. A look back on popular movements on behalf of prisoners—what they accomplished and failed to accomplish—might put the hopefulness and the audacity of the Voices for Justice rally in context.

A.    Public Responses to Other Judicial Decisions

When I asked a group of Arkansas historians about instances when Arkansans had resorted to public action to challenge a judicial decision, only a handful were mentioned. Prof. Stephen A. Smith, of the University of Arkansas at Fayetteville, recalled that there had been an unsuccessful public campaign, in the 1930s, for Gov. Carl Edward Bailey to pardon Bubble Clayton and James X. Caruthers, two black men convicted by an all-white jury for the rape of a white woman in Mississippi County.[10] The two were tried in the aftermath of a similar, widely publicized—and much criticized—case in Alabama, which had prompted demonstrations around the country on behalf of the nine Alabama defendants known as the “Scottsboro Boys.” Thousands of people marched on Washington D.C. in May of 1933 in support of the Scottsboro Boys, and they were eventually freed. Though Clayton and Caruthers were dubbed “The Arkansas Scottsboro Boys,” they were executed on June 30, 1939.[11] Perhaps because of Arkansas’s relative isolation and its extremely rural character at the time, public support for Clayton and Caruthers did not benefit from the larger, national movement.

The historians also remembered the more recent execution of Barry Lee Fairchild, another black man, on August 31, 1995. His case raised particular concern about the police conduct surrounding his confession. Fairchild was convicted of the rape and murder of a U.S. Air Force nurse, based on two conflicting confessions he gave to investigators at the Pulaski County Sheriff’s Office.[12] During his trial, Fairchild, whose IQ was said to be in the low sixties, recanted his confession, testifying that when he denied any knowledge of the crime, then-Sheriff Tommy Robinson and Major Larry Dill beat him and threatened to kill him if he did not confess.[13]  A former deputy in the sheriff’s office testified: “Tommy Robinson and Larry Dill wouldn’t come out and say, ‘go back out there and whup him,’ you know, ‘go back there and hit him in the head.’ He’d say, ‘You know what I mean. Go on and do what you need to do. I want a confession. You know what I mean.’”[14]

Newspapers reported at length on the allegations of police abuse raised in his appeals. But there were no popular protests. Only a handful of members of Amnesty International in Arkansas and other opponents of the death penalty assembled on the steps of the state capitol to condemn his execution. Now, fifteen years after Fairchild’s execution, the entry on him in The Encyclopedia of Arkansas History and Culture lingers as a troubling epitaph: “No fingerprints in [the victim’s] car or on her belongings could be matched to his; a hat found near the crime scene and identified as Fairchild’s contained strands of hair, none of it belonging to him; and semen found on the victim’s body was consistent with blood type O, while Fairchild was blood type A.”[15]

Like Clayton and Caruthers, Fairchild was a poor, black man. He was also mentally handicapped. While a few people voiced deep concern about the allegations of police abuse and lack of physical evidence against him, Fairchild, like most prisoners, had nothing going for him in terms of advocacy around which popular support might have coalesced.

1.  The exception

James Dean Walker was different. He was a white man charged with killing a North Little Rock policeman during a shootout that erupted after a traffic stop in 1963. Though evidence was presented early on that the fatal bullet had been fired by another police officer, Walker was convicted and sentenced to life in prison. A decade later, conditions in Arkansas’s prisons—rather than concerns about Walker’s possible innocence—made his case a cause célèbre.[16] 

Walker had served barely five years of his life sentence when, in 1970, U.S. District Judge J. Smith Henley ruled Arkansas’s prisons unconstitutional, noting that imprisonment in the state constituted “banishment from civilized society into a dark and evil world.”[17] While a resident of that world, Walker had become an engaging, born-again Christian.[18] In that capacity, he was allowed out of prison occasionally to preach, but the prison’s faith in him was not rewarded.

In 1975, Walker failed to return from one of his ministerial furloughs and fled to California. Walker remained there, free, for four years, until he was arrested on drug charges in 1979 near his home at Lake Tahoe. Walker vigorously fought extradition to Arkansas, claiming that conditions in the state’s prisons were unconstitutional and that a warden there, A.L. Lockhart, had threatened to kill him.[19] While his extradition fight wore on, Twentieth Century Fox released the movie Brubaker,[20] starring Robert Redford as a semi-fictional Arkansas warden who was trying to clean up the state’s corrupt prison system. The film was loosely based on the 1969 nonfiction book Accomplices to the Crime: The Arkansas Prison Scandal[21] by Joe Hyams and Thomas O. Murton. Murton had been hired as a prison warden in the late 1960s to modernize Cummins and Tucker state prison farms. The controversial book and movie brought national attention to issues such as prisoner abuse, inhumane conditions, and the need for modernization.

Jessica Mitford, a journalist best known for her 1963 expose of the funeral industry, American Way of Death,[22] became an outspoken critic of conditions in southern prisons and one of Walker’s most outspoken advocates. In 2007, while reviewing Mitford’s papers, now housed at Ohio State University, New York Sun reporter Josh Gerstein found among them a letter from Blytheville lawyer Oscar Fendler, who had represented Walker. Fendler told Mitford in the letter that, when he urged Gov. Bill Clinton to drop Walker’s extradition proceedings, the governor had responded by asking, “how the public would react to him favoring a cop killer.”[23]

For her part, Mitford wrote several letters to First Lady Hillary Clinton, with whom she had had a brief acquaintance. Mitford wrote: “Tom Murton, former head of the Arkansas prison system, is prepared to testify that Walker would be in mortal danger if returned to Arkansas.”[24] Because of the publicity, the California Supreme Court, on April 9, 1980, halted Walker’s extradition until a California judge could conduct a hearing on the conditions of Arkansas prisons.[25] According to press clippings in the Mitford collection, Clinton was incensed. “I am so angry,” he reportedly said. “Who do they think they are—are we under their jurisdiction? It’s just outrageous. We’re going to fight this action until the last dog is hung.”[26] On July 24, 1980, Clinton appeared on NBC’s “Today” show to defend Arkansas’s handling of Walker’s case, as well as conditions in his state’s prisons, which he said had greatly improved.[27]

In August, Mitford came to Little Rock to interview Clinton for an article in New West magazine. According to her notes, the governor insisted that Walker would be safe if returned to Arkansas.[28] Asked why Lockhart was still running a prison despite repeated allegations against him of brutality, Clinton reportedly told Mitford: “Lockhart is seen by a majority of the Board of Corrections—who are in charge of everything—in charge of the hiring and firing —as a link of stability running through the prison. He has strong support by numerous legislators, they think he’s held the prison together.”[29] By the time of that meeting with Clinton, Arkansas had appealed Walker’s extradition case to the U.S. Supreme Court.[30] According to Mitford’s notes, Clinton told her: “If the [California] claim is upheld in the U.S. Supreme Court—think of the consequences! Escapers would flock to California.”[31] But the high court sided with Clinton. Blocking the California court’s attempt to assert jurisdiction over Arkansas jails, Justice William Rehnquist wrote: “The proper forum for respondent’s challenge to Arkansas prison conditions is in the Arkansas courts.”[32] Later in 1980, the Supreme Court ratified Rehnquist’s action.

Walker was returned to Arkansas, where a federal court hearing was held on his petition to be housed out of state. His lawyer at the time, Bill Bristow of Jonesboro, told Gerstein that he remembered Mitford attending the hearing, along with actor Mike Farrell, who is best known for his role as B.J. Hunnicutt on M*A*S*H.  “All I knew,” Bristow told Gerstein, “was these famous people were coming into Arkansas and supporting Mr. Walker.”[33] Walker was ultimately ordered jailed outside Arkansas, at a prison in El Reno, Oklahoma. However, he continued his campaign to assert his innocence, and in 1985, following publicity about new evidence in his case, the U.S. Eighth Circuit Court of Appeals overturned his conviction.[34] Walker ultimately pleaded guilty to manslaughter and was released based on time served. He retired to Boise, Idaho.

Here we have an example of the sheer luck that, while eluding the vast majority of even deserving appellants, can bring an incredible amount of attention to a few. Walker’s escape, coupled with a federal ruling against Arkansas’s prisons, combined with Mitford’s fame and zeal to keep him out of Arkansas, led ultimately to his conviction being overturned.

2.  The media

Americans have protested court decisions since the country’s beginnings, but, as the Walker case demonstrated, celebrity involvement could enhance media attention, and vice versa. By the middle of the past century, cases outside of Arkansas began to demonstrate the emerging power of the electronic media. Caryl Chessman was sentenced to death in California in July 1948 for robbery, kidnapping, and rape.[35] The kidnapping charge, which triggered the death penalty, was based on California’s 1933 “Little Lindbergh” law because prosecutors argued that that during the rape, Chessman had dragged his victim a short distance from her car.[36] During his twelve years on Death Row, his case attracted support among leading criminologists, liberal intellectuals and ordinary citizens, many of whom engaged in protests to halt Chessman’s execution. He wrote four books while on Death Row, including a memoir, Cell 2455, Death Row,[37] published in 1954. Chessman’s books became bestsellers and ignited a worldwide movement to spare his life, while focusing attention on the politics of the death penalty in the United States at a time when most Western countries had already abandoned it, or were in the process of doing so. Among the many notables who supported Chessman’s fight against execution were First Lady Eleanor Roosevelt; writers Aldous Husley, Ray Bradbury, William Inge, Norman Mailer, Dwight MacDonald, Christopher Isherwood, and Carey McWilliams; and evangelist Billy Graham.  Despite that support, and eight stays of execution, Chessman died on May 2, 1960 in California’s gas chamber.[38]

Chessman’s story offers no encouragement for celebrity support of prisoners. He had plenty of that. What he did not have was broad-based public support. He was suspected of being the “Red Light Bandit,” responsible for a series of robberies and sexual crimes, and the public at large did not join in the calls to spare his life.[39]

By contrast, Mumia Abu-Jamal, who was also sentenced to die, remains alive and continues to attract international attention. Before his arrest, Abu-Jamal was a member of the Black Panther Party, a radio journalist, news commentator, and part-time cab driver. He was sentenced to death in Pennsylvania on September 8, 1981 for the murder of a Philadelphia police officer.[40] His memoir, Live from Death Row, was published in May 1995.[41]

In 1999, after Abu-Jamal had spent eighteen years on Death Row, a man claimed in an affidavit that he and another man had shot the officer as part of a contract killing because the officer was interfering with payoffs to corrupt police.[42] Because of that statement and discrepancies in the case that were apparent earlier, labor unions, educators, and organizations such as Human Rights Watch and Amnesty International have expressed concern about his case. Abu-Jamal has been made an honorary citizen of several cities around the world, including Paris, Montreal, Palermo, and Copenhagen.[43] Despite such support, Abu-Jamal remains in prison. Perhaps because of it, he has not been executed. In 2008, a federal court ordered a new sentencing hearing for Abu-Jamal.[44] State officials vowed to fight it. In 2009, the U.S. Supreme Court denied Abu-Jamal’s separate petition for a new trial, and in January 2010, the high court tossed out the lower court ruling that nullified Abu-Jamal’s death sentence.[45]

This case sees the coming together of public support on a national scale, particularly among African Americans, and high-level international support. But Abu-Jamal’s supporters have also drawn powerful opposition. The National Fraternal Order of Police (FOP) organized a boycott “of persons, products and companies associated with the supporting of convicted cop killer Mumia Abu-Jamal.”[46] In 2010, The Barrel of a Gun, a film about the case, was released. Its tag line read: “A Philadelphia cop is murdered. A convicted killer is praised. And the controversy continues.”[47]

Remarkably, another of America’s most passionately supported prisoners is also held in Pennsylvania. Leonard Peltier was sentenced to two consecutive life terms for the killing of two FBI agents on the Pine Ridge Indian Reservation in South Dakota on June 26, 1975.[48] Two years later, Peltier, who was an activist for Native rights and a member of the American Indian Movement at the time of the shootout, was convicted in federal court of the murders.[49] Since then, former United States Attorney General, Ramsey Clark has served pro bono as one of Peltier’s lawyers and has aided in filing a series of appeals on his behalf. The Eighth Circuit Court of Appeals, however, has repeatedly affirmed Peltier’s conviction and sentence.

Yet concern about the fairness of Peltier’s trial persists. And so does FBI opposition to Peltier’s parole. In 1993, the Pennsylvania Parole Commission, which presides over the federal prison in Lewisburg, Pennsylvania, where Peltier is held, denied him parole based on its finding that he “participated in the premeditated and cold blooded execution of those two officers.”[50] However, the Parole Commission has since stated that it “recognizes that the prosecution has conceded the lack of any direct evidence that [Peltier] personally participated in the executions of the two FBI agents.”[51]

Peltier is considered by the American Indian Movement to be a political prisoner and he has received support from many well-known individuals and groups. They include: Nelson Mandela, Rigoberta Menchú, Amnesty International, the United Nations High Commission for Human Rights, the Zapatista Army of National Liberation, Tenzin Gyatso (the fourteenth Dalai Lama), the European Parliament, the Belgian Parliament, the Italian Parliament, the Kennedy Memorial Center for Human Rights, Archbishop Desmond Tutu, and Rev. Jesse Jackson. Libel lawsuits brought by an FBI agent and the governor of South Dakota blocked the book, In the Spirit of Crazy Horse[52] by Peter Matthiessen for eight years before the lawsuit failed.[53] The book was finally published in 1983.

In 1989, U.S. Court of Appeals Judge Gerald Heaney, who’d written the Eighth Circuit’s most recent opinion on Peltier’s case, appeared on the CBS show West 57th. He told an interviewer that the Peltier case was “the toughest decision I ever had to make in 22 years on the bench.”[54] Heaney made this statement three years after he noted the “possibility that the jury would have acquitted Leonard Peltier had the records and data improperly withheld been available to him in order to better exploit and reinforce the inconsistencies casting strong doubts upon the government’s case” in his Eighth Circuit Opinion.[55] Heaney also wrote an extraordinary letter, in 1991, to Hawaii senator Daniel Inouye, chairman of the Senate Committee on Indian Affairs. In that letter, Heaney noted that “the FBI used improper tactics in securing Peltier’s extradition from Canada and in otherwise investigating and trying the Peltier case. Although our court decided these were not grounds for reversal, they are, in my view, factors that merit consideration in any petition for leniency. . .”[56] Inouye made an overture to then-President George Bush for a commutation. Fifty Congressmen signed an amicus brief on Peltier’s behalf. The president ignored the request. Meanwhile, Amnesty International, year after year, has kept Peltier on its political prisoners list, citing not just Peltier’s case but “FBI misconduct” in the trials of other AIM members.

Peltier’s indictment is the subject of the 1992 documentary Incident at Oglala,[57] a film by Robert Redford and Michael Apted. On June 26, 1994, a crowd estimated at three thousand demonstrated peacefully in Washington, D.C., for Peltier’s freedom. Many supporters hoped that then-President Bill Clinton would pardon Peltier before leaving office, but he did not. In 2007, when billionaire David Geffen detached his financial support from Hillary Clinton’s presidential campaign and backed Barack Obama instead, Geffen explained that he was disillusioned by Bill Clinton’s decision to pardon commodities trader Marc Rich, while refusing to pardon Peltier.[58] Songs about Peltier have been written by U2, Rage Against the Machine, Toad the Wet Sprocket, Renaud, and Buffy Sainte Marie. Other songs have been recorded and sung on Peltier’s behalf by the Indigo Girls, Bonnie Raitt, and Sarah McLachlan. So far, none of that has affected Peltier’s sentence.

Peltier’s case may exceed even Abu-Jamal’s in its breadth of popular support and level of celebrity involvement. But like Abu-Jamal, Peltier stands convicted of killing agents of the state, and government officials have vigorously opposed his release. As Thomas J. Harrington, an assistant director of the FBI, told a federal parole commission in 2009: “We in the Federal Bureau of Investigation vehemently oppose granting Mr. Peltier parole. The intentional and vicious attack by Mr. Peltier was not simply a blatant attack on two FBI special agents; it was an attack on law enforcement as a whole—an attack on the rule of law.”[59]

3.  Another exception

On the other hand, the saga of Rubin “Hurricane” Carter may offer the best case of public support helping to free someone from prison. Carter was arrested in 1966 for the murder of two men at a New Jersey bar.[60] At the time, he was a top contender for the world middle-weight boxing title.[61] A jury sentenced him to three life terms in prison.[62] In 1974, the only two witnesses to place Carter at the scene of the murders separately recanted their statements.[63] The men claimed they were pressured by police to give false testimony, and that they were offered financial inducements and promises of lenient treatment in criminal charges they faced in exchange for lying.[64]

The following year, Bob Dylan announced a benefit concert, Night of the Hurricane, for Carter at Madison Square Garden.[65] The concert sold out in five hours, and was presented again, twice, at the Houston Astrodome. It was at these events that audiences first heard Dylan’s song that began:

“Here comes the story of the Hurricane

The man the authorities came to blame

For somethin’ that he never done

Put in a prison cell, but one time he coulda been

The champion of the world.”[66]

The next year, in 1976, the New Jersey Supreme Court unanimously overturned Carter’s convictions, ruling that the prosecution had withheld evidence favorable to the defense.[67] The state put Carter on trial again, and this time, the prosecution argued that the murders were motivated by racial revenge, a theory of the crime that had never been suggested before. Amid the highly charged racial climate of the Boston busing riots of the mid-1970s, Carter was reconvicted and the same life sentences were imposed.[68] As Carter appealed his convictions, he was supported with rallies, marches, and other events by a stunning lineup of musicians, poets, actors, writers, politicians, and political activists. They included:  Joan Baez, Muhammad Ali, Coretta Scott King, Ramblin’ Jack Elliott, Ronee Blakely, Allen Ginsberg, Joni Mitchell, Robbie Robertson, Ellen Burstyn, Dyan Cannon, The Who, Richie Havens, Stevie Wonder, Johnny Cash, Stephen Stills, Isaac Hayes, Ringo Starr, Nelson Algren, Norman Mailer, Gay Talese, George Plimpton, Jimmy Breslin, Pete Hamill, Edward I. Koch, Ramsey Clark, Andrew Young, Jesse Jackson, Julian Bond, Benjamin Hooks, Dick Gregory, Harry Belafonte, Melba Moore, Cleavon Little, Hank Aaron, Walt “Clyde” Frazier, and Earl “The Pearl” Monroe.

Still, another eight years would pass before, in 1985, a U.S. circuit court judge overturned Carter’s second convictions, finding that the prosecution had committed “grave constitutional violations” and that the convictions were based on “racism rather than reason, and concealment rather than disclosure.”[69] The judge advised the state, “in the interests of justice and compassion,” against seeking a third trial.[70] He ordered Carter freed without bail, noting that, “Human decency mandates his immediate release.”[71] Carter had been imprisoned for nineteen years. His years as a boxing contender were over. Though Carter was not tried a third time, the state of New Jersey continued to fight the ruling overturning his convictions for the next two and a half years. In January 1988, the United States Supreme Court denied the state’s final appeal.[72] A decade later, in 1999, actor Denzel Washington played Carter in the film, The Hurricane.[73]

Carter would seem to have had it all: personal fame, evidence of police and prosecutorial misconduct, huge popular and celebrity support. He even won a second trial. But none of that could prevail against the storm of racism in which his arrest and convictions were set. For nineteen years, Carter’s story demonstrated in a stark, negative way, how porous courthouses can be to the climate outside. It is almost certain that, without the public support he received, which began with a group of Canadians, he would still be in prison today. 

B. Public Response to the West Memphis Arrests

Supporters of the West Memphis Three want nothing less than what Carter’s supporters won for him. They are confident that if the men’s convictions are overturned, even if retrials are ordered, they will not be reconvicted. That sentiment is a far cry from what confronted Echols, Baldwin and Misskelley in 1994, at their trials. Public activism then was all against them. It amounted mainly to jeering and spitting at the teenagers, who wore shackles and bullet-proof vests as they entered and left the courthouse. When support for the men began to form, after the release of the HBO documentary, it appeared mainly as a large archive of case documents that critics of the case began to assemble on the Internet. Availability of those records sparked further concern about the convictions, and that concern led to financial contributions for the men’s appeals.

But in Arkansas, confidence in the convictions remained strong, strengthened by police and other officials who dismissed the developing support as coming from sympathizers outside Arkansas who didn’t know what they were talking about. During the first decade the men were in prison, only a handful of Arkansans organized events on their behalf, and most of those were simply attempts to raise awareness about the case. Several modest events featuring local bands were held at Vino’s restaurant in Little Rock, an instructor at the University of Central Arkansas organized a student speakers’ bureau about the case, and once, on an anniversary of the arrests, a rally was held on the grounds of the Crittenden County Courthouse. In general, though, Arkansas remained an island of silence on the case, while people from other states and many other countries were deluging state offices with letters decrying it.

The quiet in Arkansas began to seriously change in October 2007, with the formation of Arkansas Take Action. One of the group’s first public activities was a large rally on the steps of the state capitol, at which Natalie Maines spoke. The events that followed her appearance illustrate one potential benefit of local publicity for the defense. In her remarks at the capitol, Maines mentioned that new DNA testing had been conducted on items collected with the victims’ bodies.[74] The singer stated that, while none of the tests produced a match with any of the three men in prison, a hair found in the ligatures was identified as probably having come from Terry Hobbs, the stepfather of one of the victims.[75] Hobbs sued Maines for defamation. When her lawyers deposed Hobbs in preparing to defend her, he told them that he had not seen the victims at all on the day they died.[76] When news of that statement was made public, two women who lived near Hobbs at the time of the killings came forward.[77] The women subsequently signed affidavits saying that they, in fact, had seen Hobbs with the children a short time before the boys disappeared.[78] When asked why they had not reported the fact before, the women said that police had never questioned them and that, until the recent news report, they had not known that Hobbs had denied having seen the children that day. In December 2009, U.S. District Judge Brian Miller dismissed Hobbs’ lawsuit against Maines, but by then, the new witnesses against Hobbs had come forth.[79]

Nor was that the last discovery to result from an ATA initiative. In early 2008, a few months after the rally at the capitol, ATA’s leaders invited a group of Arkansas lawyers to a dinner at Trio’s restaurant, where the attorneys were given a brief introduction to the West Memphis case. During that event, one of the lawyers mentioned knowing another Little Rock lawyer whom she said had “talked about this case a lot.” That attorney turned out to be Lloyd Warford, a former prosecuting attorney who has since also signed an affidavit for the defense. In it, Warford outlined contacts he had with the jury foreman during the trial of Echols and Baldwin. Warford’s affidavit and associated evidence have now become part of a defense appeal alleging serious juror misconduct.[80]

By 2010, as Echols’s final appeal was approaching a hearing before the Arkansas Supreme Court, ATA had a core group of about a dozen members, including myself. Echols’s wife, Lorri Davis, contacted some of the entertainers who had been most active in supporting the West Memphis Three and broached the idea of staging a big event in Little Rock shortly before the date set for oral arguments. Vedder, Depp, and Maines readily agreed. Henry Rollins, who could not break away from an engagement in Scotland, offered to participate via a video recording. Smith, Carter, and the band Fistful of Mercy signed on after learning of the event from the other performers. At first, Davis imagined holding it in a church. The pastor and governing body of Quapaw Quarter United Methodist Church agreed to offer their sanctuary. But as plans developed, it became obvious that the church was too small for the audience that such a lineup of talent would attract. The date for the event had been established, and the performers were locked into it. With that date fast approaching, ATA learned that no one had booked Robinson Auditorium, with its 2,500 seats, for that last Saturday night in August. ATA reserved the auditorium and, because the performers were all donating their time, set a ticket price of $25. Within days, the event was sold out.

Capi Peck, a key organizer of the event, said she felt it was necessary, “because so many in the state have chosen to avoid looking at this important case.”[81] Singling out the Arkansas Democrat-Gazette, in particular, Peck noted that seventeen years after the arrests, and despite international attention to the case, “the largest newspaper in the state of Arkansas has all but remained mute about it.”[82] Another volunteer, John Hardin, observed: “We needed to make clear to our governmental and judicial officials that support for justice in this case is now more widespread than ever. We have local faith and business leaders, everyday Arkansans, and international celebrities that want those officials to know that the eyes of the state and world are demanding they bring an end to this injustice.”[83]

Did it work? Peck believes the event surpassed ATA’s goal of focusing attention on the case. She noted that an hour-long interview with Davis, Vedder, Maines, and Echols’s attorney, Dennis Riordan, on Larry King Live the night after the concert had developed “at the last minute,” as news of the event spread nationally.[84] “And broadcast of the concert over Sirrius XM radio essentially fell into our laps,” she said.[85] Poe noted that several segments of the concert, as well as his film, have now been placed on YouTube, where they are reaching what he called the case’s “future audience.”[86]

1. The parallels

Support for the West Memphis Three was only possible because of some remarkable luck that the state unwittingly embedded in their prosecution and trials. Without it, they would have been nothing more than three poor white kids blending in for the rest of their lives with all the other anonymous men in Arkansas’s prison complex. The luck was, in fact, multi-layered. First, officials leaked a transcript of Jessie Misskelley’s confession, with its allusions to the occult activities. News reports of that unusual aspect reached New York, prompting the HBO filmmakers to ask permission to film the trials. In another unlikely turn of events, that permission was granted, leading to release of Paradise Lost. Finally, in another improbable twist, Davis saw the film at its premier in New York, contacted Echols, and eventually married him. She has emerged as a tireless and articulate advocate, one who was able to form and sustain friendships with the celebrities who appeared at the Robinson concert.

With financial help from supporters, Davis was also able to hire a publicist to further spread the word. In 2008, Lonnie Soury, of Soury Communications, Inc., a New York-based media relations firm, signed on as a public relations consultant to the Echols defense team. Just months earlier, in December 2007, Soury had been present when a former client, Marty Tankleff, was freed from prison, after serving nineteen years of a fifty-years-to-life sentence for the murders of his parents in their home on Long Island, New York.

Soury saw a number of parallels between Tankleff’s case and that of the West Memphis Three. Tankleff had just turned seventeen when he was arrested in 1988 and charged with murdering his parents;[87] all the defendants in the West Memphis case were teenagers when they were arrested. Tankleff’s prosecution rested heavily on an unsigned “confession” extracted from him following hours of interrogation;[88] the West Memphis arrests were based entirely on the “confession” of then-seventeen-year-old Jessie Misskelley, Jr. As with the West Memphis case, there were other obvious suspects who were never investigated by police. Tankleff’s father’s business partner owed Mr. Tankleff half a million dollars, and as Mr. Tankleff lay unconscious in the hospital before dying, the partner faked his own death, changed his appearance and fled to California.[89] In 2003, a private investigator, Jay Salpeter, tracked down the getaway driver for the actual murderers. But the county prosecuting attorney refused to investigate the new evidence.[90] Soury helped arrange a press conference and gave advance notice of it to the New York Times, which ran an article on the morning of the press conference about the new evidence to be presented. Television news organizations covered the press conference, and that led to a program about the case on CBS’s 48 Hours.

One aspect of Tankleff’s ordeal, however, stood in marked contrast to that of the West Memphis Three. As information became available about the severity of the errors in his case, several members of the New York bar joined the effort to have his conviction vacated. According to Soury, thirty-six former U.S. attorneys, federal judges, Supreme Court justices, local New York prosecutors, and the district attorney of Queens County signed an amicus brief supporting Tankleff.[91] In contrast, members of the Arkansas bar, with the exception of the convicted men’s lawyers, so far have taken no public stance with regard to the West Memphis case. When I have asked attorneys why this is, I have received three general answers. One suggestion is that attorneys here are afraid to speak out, lest their comments be viewed as weakening public confidence in the state’s judicial system, an offense that is in violation of the Supreme Court’s Rules of Professional Conduct and which could lead to censure or disbarment. Another response is that lawyers who practice in the district where the cases were heard, and who might conceivably have the greatest insight on events, could be viewed as possibly harming their future clients’ cases if they made public comments critical of a judge, for instance, and the judge’s possible resentment were to color his rulings. The third, and perhaps grimmest response I’ve heard was that the kinds of abuses that the public is decrying in the West Memphis case are not too different from what many defense attorneys encounter routinely in their own practices, and they have their hands quite full enough dealing with those issues.

By 2006, the mounting attention on the case prompted the New York Investigation Commission to begin quietly gathering legal documents for review. That year, Tankleff celebrated his thirty-fifth birthday in prison. James Gandolfini, star of the HBO series The Sopranos, drove four hours to share the day with him. The actor also attended Tankleff’s oral arguments and offered him other support. Finally, in December of 2007, an appeals court vacated Tankleff’s convictions, ruling that extensive new evidence pointing to other suspects probably would have changed the jury’s verdict.[92] Following Tankleff’s release from prison, New York authorities launched an official inquiry into law enforcement’s handling of the investigation that led to his conviction. The state investigators concluded that police and prosecutors had done nothing illegal or improper in Tankleff’s case.[93] Soury called the report “a shocking whitewash.”[94]

Not surprisingly, Soury believes that the role of public advocacy in cases of wrongful conviction “cannot be overstated.”[95] As he put it, “The challenge of overturning convictions and obtaining post-conviction justice is almost insurmountable and necessitates a combination of legal, evidentiary and public advocacy efforts to succeed. Only a handful of cases benefit from this combination of resources and, even with them, it often takes years—even decades—to free the innocent.”[96] Indeed, a review of the cases outlined above suggests that a winning combination, however long that might take, is almost miraculous.

2. The effects

But the real question facing supporters of the West Memphis Three is whether members of the legal establishment, especially in Arkansas, think rallying popular support is a helpful—or harmful—tactic. Ken Gallant, a professor at UALR’s Bowen School of Law, recognized both possibilities. “There are times when it can raise money for a defense fund,” Gallant said. “There are also times when it can make it politically impossible for the relevant authorities to grant clemency; that’s the downside.” With regard to courts, he added: “I have to admit that, if it creates a backlash, I would not want judges to feel shut-down because they think they’re receiving political pressure. Political pressure sometimes, humanly, creates a negative impression. And in the case of a populist state like Arkansas, if there is, say, public support for an inmate, that could also give rise to political pressure coming from, for instance, the anti-crime faction.”[97]

Steven A. Drizin teaches at Northwestern University School of Law in Chicago, where he also directs the Bluhm Legal Clinic’s Center on Wrongful Convictions. Drizin and Laura H. Nirider, a staff attorney at the center, co-authored an amici curiae brief filed on behalf of Echols that was filed with the Arkansas Supreme Court in September 2009. Both attended the concert. Drizin said, “What was special about the event was the fact that so many folks from Arkansas were present. It was important that the Supreme Court realize that this effort to free the WM3 enjoys tremendous local support. Supreme Court justices do not live in a bubble. They read the newspapers. They watch television. They shop at grocery stores and eat at restaurants. They are aware of public perception and have some sense of the pulse of the community in which they serve.”[98]

 Drizin said that during the twelve years he’s been involved in the West Memphis case, he has seen “the perception among folks in Arkansas shift tremendously.”[99] He credited the availability of public records plus celebrity involvement for part of that. “But most of it,” he said, has to do with the new evidence of innocence and new understandings about the causes of wrongful convictions. Twelve years ago, it was simply unfathomable that members of the victims’ families would ever voice support for the WM3. The fact that many are now calling for a new trial for Damien, Jessie and Jason is the most palpable evidence of the sea change in public opinion.[100]

The central irony of the Voices for Justice concert is that the men on whom the event was focused could not attend. Echols, Baldwin, and Misskelley could not watch the many video recordings that members of the audience shot with their cell phones and loaded onto YouTube. They could not see the video in which they themselves appeared. Nonetheless, I wrote to each of them, asking what they thought of the event.

Misskelley responded in the short, declarative sentences that are his style. “What did I hope Voices for Justice might accomplish? I hope it will open people’s eyes. Do I think it might somehow affect my appeals? This shouldn’t affect any of my appeals. This is just people trying to do the right thing. What effect, if any, do I think publicity had on my arrest and trial? To me, back then, the public made us out to be something we’re not. We wasn’t going to get a fair trial no matter what. Since then, what has public support meant for me, or my case or both? Well, things have changed a lot since then. More people each day is trying to help. They know it’s wrong. They just want justice done to the right people, that’s all. It’s sorry that it went this long.”[101]

Baldwin’s responses were more philosophical. He wrote: “Mohandas Ghandi once said, ‘A nation’s culture resides in the hearts and souls of its people.’ Every time there is a rally or someone stands to speak up in defense of an innocent, that tells me that America and the world has a growing culture of heroes. In society, especially America’s, wherever innocents suffer injustice, it is the people who come first to the rescue. It is only later that the government does so. This case is no different in that regard.”[102]

Baldwin also noted a more personal effect of the support he’s received. “I’ve done the math,” he wrote, “and at this point in my life, I’ve lived 55 percent of it in prison. Sometimes the pain of all that I lost, all that I’ve not been able to experience, nearly overwhelms me. Each year that passes makes it more and more difficult to battle the bitterness that threatens to sweep me away into one of those dark isolation cells. As difficult as it is, I never give up. Each day letters arrive from all over the world carrying to me a message of hope. It is that message that I cling to for dear life.[103]

Echols’s responses were to the point, perhaps befitting a man on death row.”You had some of the most famous people in the entertainment world doing this concert, with nothing to gain by it,” he wrote.[104] “They didn’t make a pile of money or boost their careers in any way. Hopefully, people will want to know why they would put so much work and energy into this concert, and spend a few minutes doing some research. If the event affects our appeals, it will be due to two things. One is the level of transparency that will be encouraged by it. The second would, hopefully, be to have those within the system realize that these people wouldn’t put their reputations on the line for no reason, and be encouraged to take a hard, close look at the case.”[105]

Echols sees both a negative and positive effect of public perceptions regarding his case. “The local media had a tremendous amount to do with our initial convictions,” he wrote.[106] “They focused on making the story as sensational as possible while paying little to no attention to the actual evidence. It made it impossible for us to receive a fair trial. The only exception was the Arkansas Times. Since then, it is public support that has prevented the state from murdering me. If not for that support, the state would have killed me and swept this case under the rug long ago.[107]

 Obviously, this is not a scientific—nor even a scholarly—review of cases that have attracted public concern. But I believe it does suggest that Lady Justice, while blindfolded, is not also deaf. The number of persons freed from prison on appeal is infinitesimally small. There are many cases, such as those of the “Arkansas Scottsboro Boys,” Barry Lee Fairchild, and California’s Caryl Chessman, that failed, even with widespread publicity, to stave off execution or result in an inmate’s freedom. On the other hand, there is no doubt that James Dean Walker, Rubin “Hurricane” Carter, and Marty Tankleff would be either dead or still in prison were it not for supporters’ efforts. Yet it is the cases of Leonard Peltier and Mumia Abu-Jamal, both of whom were convicted of killing law enforcement officers, that may best illustrate the judiciary’s sensitivity to the political clime. Both men remain in prison despite long-term, widespread, high-profile and even international activism on their behalves. Both have also experienced intense public opposition to their release—from police organizations in Abu-Jamal’s case and from the FBI in Peltier’s.

The legal fate of the West Memphis Three remains to be decided. I see several effects—some certain, some possible—of the support that has developed for them so far.

The certain effects are that:

  • The support has buoyed their spirits.
  • It has generated money for their appeals.
  • It has funded new investigations and DNA testing.
  • It has led to the development of new witnesses (relating to Hobbs) and to new information (regarding juror misconduct).
  • It has reached a critical mass, with high-level celebrity involvement and a professional publicist, that can keep attention focused on the case.

 The possible effects are that: 

  • As Echols noted, it may have prevented, so far, his execution.
  • It may have contributed to the defeat of Circuit Judge John Fogleman, in his bid for a seat on the Arkansas Supreme Court.
  • It may have reversed, by 180 degrees, the climate surrounding the case in Arkansas, from certainty of the men’s guilt in 1994 to widespread doubt about it today.
  • By changing the political atmosphere outside the courthouse, it may—may—affect the deliberations of elected judges inside.
  • It may be subtly reshaping the debate about Arkansas’s death penalty.

There is one other consequence of which I am certain. The case of the West Memphis Three has generated skepticism about the quality of justice in this state. Confidence in our appellate courts has been weakened. Young people who never did so before have read police files, trial transcripts, and entire Supreme Court opinions. They watched Echols’s oral arguments before the Supreme Court on the Internet. People who once never would have dreamed of doing so have now stood in opposition to judicial decisions. They have come to believe that public opinion matters—and that, however indirectly, it might affect the opinions handed down by appellate courts.

IV. Conclusion

It will never be easy for men and women convicted of crimes to muster public support. To the extent that the public has confidence in the many levels of its judicial system, it is willing to accept juries’ verdicts and courts’ orders. Ordinary people can spare little time in their busy, complex lives to champion the cause of a convicted criminal, even when a small number of people publicly question the processes that led to that conviction. However, if the questions raised by that small group gain traction, and the issues begin to appear egregious to enough other people, and genuine concern is aroused about the quality of justice in a particular situation—especially if what transpired has been endorsed by a supreme court—then public activism gets some muscle. Where one or two voices on the street cannot be heard inside courtroom walls, the voices of thousands, perhaps, can be.

When citizens become so concerned about decisions of their courts that great numbers of them devote time, effort, and money to raise a cry, seeking court review, I believe their cry should be heard. Not because any court is obliged to listen to public dissent.  And certainly not because courts should be guided by public passion, for they could as easily be misguided by it. No, I believe that in those rare instances when large numbers of citizens go to the trouble to confront their courts respectfully, reasonably, and insistently, courts should heed the message, and its inherent warning that confidence in them has been shaken.

At such times, courts might remember the words of former U.S. Supreme Court Chief Justice William H. Rehnquist and former U.S. Supreme Court Associate Justice Sandra Day O’Connor, when they addressed the National Conference on Public Trust and Confidence in the Justice System in Washington, D.C., in May 1999. In his keynote address, Rehnquist said: “Next to doing right, the great object in the administration of justice should be to give public satisfaction.”[108] O’Connor supported that idea in her concluding address. “Sometimes, in the pressure of doing what judges have to do and running a tight ship in the courtroom and deciding tough issues,” she said, “we forget that, in the last analysis, it is, after all, the public we serve and that we do care about how the courts are perceived generally.”[109]


         *   An Arkansas journalist who has won numerous awards for investigative reporting, and in 1994 was named Arkansas Journalist of the Year. She has written about the West Memphis Three since 1994, just after the two trials where they were convicted, including a book, Devil’s Knot, in 2002. She has also authored the book, The Boys on the Track, another non-fiction book focusing on an Arkansas criminal case. Both of her books received the Central Arkansas Library System’s Booker Worthen Prize.

        [1].   On November 4, 2010, The Arkansas Supreme Court handed down an opinion which called for a new evidentiary hearing. See West Memphis 3 Cases Reversed and Remanded, http://arkansasappeals.com/2010/11/04/arkansas-supreme-court-west-memphis-3-cases-reversed-and-remanded/ (last visited Jan. 25, 2011).

        [2].   Paradise Lost (Home Box Office June 1996).

        [3].   Mara Leveritt, Devil’s Knot: The True Story of the West Memphis Three (Atria Books 2002).

        [4].   Eddie Vedder, frontman for the rock band Pearl Jam, served as de facto emcee. During the course of the three-hour show he was joined onstage by Natalie Maines, lead vocalist of the alternative country band Dixie Chicks; Texas song-writer Bill Carter; actor Johnny Depp; Rock and Roll Hall of Fame singer Patti Smith; Arkansas actress and producer Lisa Blount; and the new band, Fistful of Mercy, made up of Ben Harper, Dhani Harrison (son of Beatle George Harrison) and Joseph Arthur.

        [5].   Gerard Matthews, Voices for Justice, Ark. Times, Sept. 2, 2010.

        [6].   Vedder sang Bob Dylan’s song The Times They Are A-Changin’, and his own composition Rise Up. Maines started her set by offering a veiled reference to the criticism her band had endured after she had bad-mouthed then President George W. Bush while abroad on tour, saying “This song’s for, well… don’t want to get myself in trouble again, so it goes out to Whom It May Concern.” Few veteran supporters of the West Memphis Three, many of whom had come from outside Arkansas, had little doubt that she meant Arkansas court officials when she strummed a chord and launched into a song that began, “I smell a rat, Baby.” Matthews, supra note 5.

        [7].   While performing her song, My Blakean Year, she stumbled on her guitar fingering twice. When she hit the wrong chord a third time, she set the guitar aside and continued a cappella, after leaning into the microphone to say, “Well, I fucked up, but I haven’t fucked up as bad as the judicial system.” More cheers accompanied the lines from her closing song, People Have the Power, that went: “The people have the power/to redeem the work of fools.” Matthews, supra note 5.

        [8].   See, Bobby Ampezzan, Music Review: Pearl Jam, Depp, others elevate Voices for Justice, Ark. Democrat-Gazette, Aug. 29, 2010.

        [9].   Matthews, supra note 5.

      [10].   See, Marlin Shipman, Forgotten Men and Media Celebrities: Arkansas Newspaper Coverage of Condemned Delta Defendants in the 1930s, 31 Arkansas Review: A Journal of Delta Studies 110 (2000).

      [11].   See id.

      [12].   See, Fairchild, Barry Lee, http://encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=4586.

      [13].   See, Michael Kroll, Killing Justice: government Misconduct and the Death Penalty (Death Penalty Information Center 1992).

      [14].   See id.

      [15].   Fairchild, supra note 12.

      [16].   See, Josh Gerstein, Hillary Clinton’s Left Hook: Jessica Mitford is Rebuffed by a Friend, N.Y. Sun, Nov. 27, 2007.

      [17].   Holt v. Sarver (Holt II), 309 F.Supp. 362 (1970).

      [18].   See, Gerstein, supra note 16.

      [19].   See id.

      [20].   Brubaker (Twentieth Century Fox Film Corporation 1980).

      [21].   Tom Murton & Joe Hyams, Accomplices to the Crime: The Arkansas Prison Scandal (Grove Press 1969).

      [22].   Jessica Mitford, The American Way of Death (Buccaneer Books 1963).

      [23].   Gerstein, supra note 16.

      [24].   Id.

      [25].   See id.

      [26].   Id.

      [27].   See id.

      [28].   See id.

      [29].   Gerstein, supra note 16. (Lockhart was later indicted on federal fraud charges related to prison contracting.) Id.  

      [30].   See id.  

      [31].   Id.

      [32].   Id.

      [33].   Id.

      [34].   See Gerstein, supra note 16.

      [35].   See, Peter R. Brooke & Art Seidenbaum, Blunt Talk of Convict and Accusers, Life, Feb. 22, 1960.

      [36].   See, Caryl Chessman, Cell 2455, Death Row: A Condemned Man’s Own Story (De Capo Press 1953).

      [37].   See id.

      [38].   See, Edmund Gerald Brown & Dick Adler, Public Justice, Private Mercy: A Governor’s Education on Death Row (Grove Press 1989).

      [39].   See, Brooke & Seidenbaum, supra note 35.

      [40].   Mumia: A Case for Reasonable Doubt (Otmoor Productions Limited 1997).

      [41].   Mumia Abu-Jamal, Live from Death Row (Harper Perennial 1996).

      [42].   See, Malik Russell, New Strategy in Abu-Jamal Case, The Crisis, Jul-Aug 2001.

      [43].   See, Cathy Ceibe, Dans le couloirs de la mort, Mumia dérange [USA Sues Paris: From Death Row, Mumia Stirs Up More Controversy], l’Humanité, Nov. 23, 2006, available at http://www.humaniteinenglish.com/article423.html.

      [44].   See, Bill Mears, No Death Sentence for Mumia Abu-Jamal Without New Hearing (Mar. 27, 2008), http://articles.cnn.com/2008-03-27/justice/mumia.appeal_1_mumia-abu-jamal-officer-daniel-faulkner-appeals-court?_s=PM:CRIME.

      [45].   See, Bill Mears, High Court Dismisses Ruling on Abu-Jamal Death Sentence (Jan. 19, 2010), http://articles.cnn.com/2010-01-19/justice/scotus.abu.jamal_1_black-panther-mumia-abu-jamal-death-sentence-capital-sentencing?_s=PM:CRIME.

      [46].   Convicted Cop Killer Mumia Abu-Jamal, http://www.guazabara.com/Convicted_Cop_Killer.htm.

      [47].   The Barrel of a Gun (Dacua Communications 2010).

      [48].   See, Scott Anderson, The Martyrdom of Leonard Peltier, Outside, July 1995.

      [49].   See id.

      [50].   Parole Hearing to be Held Tuesday for Imprisoned Native American Activist Leonard Peltier (July 27, 2009) http://www.democracynow.org/2009/7/27/parole_hearing_to_be_held_tuesday.

      [51].   Id.

      [52].   Peter Matthiessen, In the Spirit of Crazy Horse (Viking Press 1983).

      [53].   See, Anderson, supra note 48.

      [54].   Peter Matthiessen, Mean Spirit: Are Peltier’s Supporters—or His Attackers—the True “Merchants of Myth”?, Outside, Oct. 1995.

      [55].   US v. Peltier, 800 F.2d 772 (1986).

      [56].   Matthiessen, supra note 54.

      [57].   Incident at Oglala (Spanish Folk Motion Picture 1992).

      [58].   See, David Schoetz, Why David Geffen Dislikes the Clintons—Meet Leonard Peltier (Feb. 22, 2007), http://abcnews.go.com/US/story?id=2899764&page=1

      [59].   Thomas J. Harrington, Executive Assistant Dir., Criminal, Cyber, Response & Servs. Branch, FBI, Statement Before the United States Parole Commission Re: United States v. Leonard Peltier (July 28, 2009).

      [60].   See, Sam Chaiton & Terry Swinton, Lazarus and the Hurricane (St. Martin’s Griffin 2000).

      [61].   See id.

      [62].   See id.

      [63].   See id.

      [64].   See id.

      [65].   See id.

      [66].   Bob Dylan, Hurricane (Columbia 1975).

      [67].   See, Chaiton & Swinton, supra note 60.

      [68].   See id.

      [69].   See id.

      [70].   See id.

      [71].   See id.

      [72].   See id.

      [73].   The Hurricane (Universal Pictures 1999).

      [74].   Edecio Martinez, Dixie Chicks’ Natalie Maines Wins “West Memphis Three” Defamation Suit (Apr. 19, 2010), http://www.cbsnews.com/8301-504083_162-20002775-504083.html

      [75].   See id.

      [76].   See, Lonnie Soury, Dixie Chicks’ Natalie Maines is a Hero, Free West Memphis 3 Blog (Dec. 22, 2009).

      [77].   See id.

      [78].   See id.

      [79].   Soury, supra note 76.

      [80].   See, Beth Warren, Jury Foreman in West Memphis Three Trial of Damien Echols Accused of Misconduct, Com. Appeal, Oct. 13, 2010, available at http://www.commercialappeal.com/news/2010/oct/13/echols-trial-juror-accused-of-misconduct/.

      [81].   Interview with Capi Peck (Aug.-Sept. 2010) (on file with author).

      [82].   Id.

      [83].   Interview with John Hardin (Aug.-Sept. 2010) (on file with author).

      [84].   Interview with Capi Peck (Aug.-Sept. 2010) (on file with author).

      [85].   Id.

      [86].   Id.

      [87].   See, Bruce Lambert, No Retrial in ’88 Double Killing on Long Island, N.Y. Times, July 1, 2008.

      [88].   See id.

      [89].   See, Bruce Lambert, New York is Said to Have Inquiry in Tankleff Case, N.Y. Times, Dec. 29, 2007.

      [90].   Id. (West Memphis police and Arkansas Attorney General Dustin McDaniel have said they see no need to investigate new DNA evidence in the West Memphis case.).

      [91].   Interview with Lonnie Soury (Aug. – Sept. 2010) (On file with author).

      [92].   See, Lambert, supra note 89.

      [93].   See id.

      [94].   Interview with Lonnie Soury (Aug. – Sept. 2010) (On file with author).

      [95].   Id.

      [96].   Id.

      [97].   Interview with Ken Gallant (Aug. – Sept. 2010) (On file with author).

      [98].   Interview with Steven A. Drizin (Aug. – Sept. 2010) (On file with author).

      [99].   Id.

    [100].   Id.

    [101].   E-mail from Jessie Misskelley, Jr., to Mara Laeveritt (Sept. 2010) (on file with author).

    [102].   E-mail from Jason Baldwin, to Mara Leveritt (Sept. 2010) (on file with author).

    [103].   Id.

    [104].   E-mail from Damien Echols, to Mara Leveritt (Sept. 2010) (on file with author).

    [105].   Id.

    [106].   Id.

    [107].   Id.

    [108].   William H. Rehnquist, Address at the National Conference on Public Trust and Confidence in the Justice System (May 13-15, 1999).

    [109].   Sandra Day O’Connor, Address at the National Conference on Public Trust and Confidence in the Judicial Sysytem (May 13-15, 1999).


Threatened again: Can the Arkansas Supreme Court hold me in contempt for complaining about shabby justice?

Last week I wrote a letter to the Arkansas Supreme Court’s Committee of Professional Conduct, the body that is supposed to make sure that Arkansas attorneys are practicing law as they should. I asked the committee to investigate whether it was proper for Arkansas Attorney General Dustin McDaniel to advocate on behalf of convictions that were improperly obtained.

I specifically cited evidence of serious juror misconduct in the trial of Damien Echols and Jason Baldwin. In the three years that that evidence has been before Arkansas courts, it has not been refuted. So I asked the committee to investigate the propriety of pressing for an execution, and the continuation of two life sentences, in the face of such important evidence.

Yesterday, I received a form-letter response from the committee acknowledging receipt of my “grievance.” The letter’s second paragraph advised me that “all information” I had submitted to the committee was “confidential.”

The letter further warned, in capitalized, bold-face type: “ANYONE VIOLATING THIS CONFIDENTIALITY MAY BE FOUND TO BE IN CONTEMPT OF THE COURT AND PUNISHED BY FINE OR JAIL. SPECIFICALLY THIS MEANS YOU ARE PROHIBITED FROM RELEASING ANY INFORMATION OR DOCUMENTS ABOUT YOUR COMPLAINT FILED WITH THIS OFFICE TO ANYONE, INCLUDING THE NEWS MEDIA.”

This means that I was in contempt of the Arkansas Supreme Court when I published my letter on this site last week. I supposed that Arkansas Times editor Max Brantley became complicit in my alleged crime when he posted a link to my letter on the paper’s Arkansas Blog.

Last evening, I guess my misdeed rose to the level of a veritable crime spree when I spoke to a reporter for the Arkansas Democrat-Gazette about my complaint. In willful violation of the letter’s warning, I did indeed speak with a member of the news media about information I had submitted to the committee.

This morning, the paper carried an article by reporter Alison Sider about my complaint. She reported that McDaniel declined to comment on it and that the committee’s executive director, Stark Ligon, said that “Leveritt could be held in contempt of court for publicizing the letter.”

As to the warning I’d received from the committee, Sider wrote: “Leveritt said the contempt notice was a ‘threat,’ and said she would assert her constitutional right to freedom of speech.”

[private]So far, I have not been charged with a crime. However, this morning one supporter of the West Memphis Three did email me his opinion that my complaint against McDaniel was “frivolous” and “damaging” to serious attempts to have these wrongful convictions overturned.” Tony Kelpine suggested I wage my battles “with the pen…not with legal filings.”

We ended up having a good exchange. I told him that the only way my action could be seen as damaging to the men’s cases would be if we presume that judges and the attorney general will react out of spite; that is, take out their anger at me on the West Memphis Three. If that’s the level of jurisprudence we expect, I wrote, we’re in deeper trouble here than we imagined.

I also explained that I intended to press for clarification about the role of the attorney general because I want to know, as I told the reporter: “Is it his duty to support a verdict in a trial even if it’s illegally obtained, just because the state won? Or is his obligation higher than that?”

Imagine. If McDaniel viewed his job as trying to assure a high quality of justice in this state, he could have dropped his opposition to new trials as soon as the juror misconduct evidence was presented—and he saw he could not dispute it. That single act could have spared the West Memphis Three at least three years of their prison ordeal.

 I also think my complaint is worth pursuing because, it appears, the supreme court attempts to stifle the speech, not only of attorneys in Arkansas, but even of the state’s non-lawyer citizens. There is a reason that until recently, no Arkansas attorney who was not involved in the defense of the West Memphis Three voiced a critical word about the men’s cases. The attorneys know they could be punished—just as the supreme court’s committee advised me I may be.

It’s one thing for the court to threaten the attorneys it licenses. It’s another for the court to threaten an individual citizen merely because she has the audacity to write out a complaint to a public agency and then to speak of that complaint in public. I don’t think it’s frivolous to challenge that.

Arkansas’s legal system has nurtured a culture of secrecy and intimidation—with, of all institutions, the supreme court as its enforcer. This deeply rooted culture is, I believe, why people in Arkansas have been so shy about raising their voices regarding the West Memphis case, while people everywhere else have been hollering.

But what is the court’s basis for its bold-faced threat? What law requires me—a lay person—to be silent? What law forbids me to say out loud what I have written to a public office in a letter? What law bars any ordinary citizen from talking to the news media?

And most important: Does the Arkansas Supreme Court believe the Bill of Rights applies to Arkansas citizens?

The prosecutors of the West Memphis Three exploited the defendants’ right to free expression when they were tried for murder. Books, clothing, music, personal writings—all were used in court to convince juries to convict the men.

For years, the state has insisted that the trials were sound and that Echols, Baldwin and Misskelley all should die in prison. So far, no Arkansas court has found a single thing wrong with what occurred at their trials. The state has acted with impunity.

But let one ordinary citizen write a letter questioning a public official’s role—and dare to write or speak about it—and the judicial hammer is raised. I am warned that I may be held in contempt of court “and punished by fine or jail.”

That is a bluff. It is baloney. And it is a shame. Any court that so disregards the rights of citizens—both  to justice and to free speech—can itself be held in contempt.[/private]

Moral twilight zone: Complaint of ‘impropriety’ filed against Arkansas Attorney General Dustin McDaniel

Today, I sent the following letter to the Arkansas Supreme Court’s Committee on Professional Conduct. It asks the committee to investigate whether Arkansas Attorney General Dustin McDaniel and his deputy attorney general, David Raupp, have violated their constitutional duties and the court’s rules of professional conduct for attorneys by continuing to support the jury verdicts in the trial of Damien and Echols and Jason Baldwin, despite unrefuted evidence that those verdicts were tainted by gross juror misconduct—evidence that has been before Arkansas courts for more than three years.

I write this not to be petty, but in the belief that the culture of legal practice in Arkansas needs changing. If state officials reach the point that they believe it’s okay–or even their duty—to press for the imprisonment—and even the execution—of a citizen whose conviction was obtained under illegal circumstances, we have entered a moral twilight zone. It’s time for someone to tell the attorney general that he’s parading around in it without clothes.

Mr. Stark Ligon

Committee/Office on Professional Conduct

625 Marshall Street
Justice Building, Room 110
Little Rock, Arkansas 72201-1022

Dear Mr. Ligon:

This is a formal complaint to the Arkansas Supreme Court’s Committee on Professional Conduct. As an Arkansas citizen I ask the Committee to investigate impropriety, in violation of the state’s Rules of Professional Conduct, by Arkansas Attorney General Dustin McDaniel and David R. Raupp of the attorney general’s office.

I further ask the Committee to investigate whether, by supporting jury verdicts that were obtained by processes that violated the defendants’ constitutional rights, Messrs. McDaniel and Raupp are also violating their constitutional duty to “maintain and defend the interests of the state.”

[private]This letter assumes that few interests of the Arkansas Supreme Court supersede that of due process. It further assumes that willful violations of due process by an attorney constitute impropriety, and that actions that knowingly deprive a citizen of “life, liberty or property without due process of law” are also against the Rules. If those assumptions are incorrect, please let me know.

Like most Arkansans, I am not an attorney. However, I can assure you that for many of us who do not belong to the profession, the position taken by the attorney general in support of tainted verdicts presents, not just the appearance of impropriety, but impropriety itself.

This is what concerns me: In 1994, Damien Echols and Jason Baldwin were convicted of a triple murder. Echols was sentenced to death, Baldwin to life in prison. Since then, evidence has been discovered that their jury considered evidence that was constitutionally barred from introduction into that trial.

This evidence concerned incriminating statements made to police by Jessie Misskelley, Jr. about himself, Echols and Baldwin. Because Misskelley would not repeat those statements in court, and because Echols and Baldwin never incriminated themselves, Misskelley was tried separately. He was convicted.

Misskelley refused to testify against Echols and Baldwin at their trial, which immediately followed his own. Because Misskelley’s hearsay statements were inadmissible under state and federal law, no mention of them was to be allowed in that second trial.

In 2008, attorneys for Echols and Baldwin filed a motion in circuit court for a new trial. They included in that motion voluminous documentary evidence supporting their contention that the men’s trial in 1994 was marred by gross misconduct on the part of the jury foreman. You will find a thorough explanation of that evidence in a brief filed by Echols in the Circuit Court of Craighead County on April 29, 2011.

McDaniel and Raupp have never disputed that evidence. Instead, they have sought to nullify it by arguing, in circuit court and before the state supreme court, that the evidence was inadmissible under the law of the case doctrine.

The recent brief by Echols asks, among other things, that the state be ordered to submit in documentary form any evidence that would contradict the evidence of juror misconduct that Echols and Baldwin have submitted. It has until May 15, 2011 to file response. I write to you in advance of that response to alert the committee that other Arkansans and I will be watching to see if the attorney general changes the position he has held for three years and decides to acknowledge the seriousness of and the harm done by the juror misconduct in this case.

If, in his response, Messrs. McDaniel and Raupp continue to insist that the matter of jury contamination is for any reason inadmissible or of no importance, I will see no way of interpreting their position other than that they support verdicts that favor the state, whether properly obtained or not. I believe that public confidence in Arkansas justice is weakened by such a perception.

I call the Committee’s particular attention to the fact that this complaint is not about ordinary attorneys. As a constitutional officer, the attorney general bears an added responsibility to represent the legal profession, and that responsibility extends to his staff. They are charged with defending “the interests of the state.”

I assume that justice is the state’s paramount interest with regard to its legal system. (Again, please let me know if that’s wrong.) If the attorney general and his staff interpret their “client” only as the state’s prosecutors, courts or judges, I believe that they are abandoning their larger responsibility to the citizenry to its collective interest in justice.  

The Arkansas Legislature could have charged the attorney general with the responsibility to adopt the position of the prosecutor on every appeal, or to maintain the criminal conviction of every criminal defendant on appeal.  The legislature did not so choose.  Instead, in Ark. Code Ann. Sec. 25-16-704(a), the legislature gave the attorney general the higher and broader mission of defending “the interests of the state.” 

The Arkansas Supreme Court requires prosecutors to refrain from prosecuting a charge that they know is not supported by probable cause. By the same logic, prosecutors—and especially attorneys general—must also refrain from defending a conviction that they know was not fairly obtained.

To drive home the point that a heightened standard of conduct applies to a prosecutor (and attorneys general), the Court has emphasized that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate.  This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” (Ark. R. P. C. 3.8, Official Comment [1].)

This comment requires the attorney general to rise above provincial politics or error. It requires that the attorney general recognize that, if a blunder has occurred, that blunder should not be magnified by an attorney general who adopts and defends the error as the position of the entire state.

For a state attorney general to support jury verdicts that were obtained by processes that violate our constitutional rights endangers everyone in this state. I hope, therefore, that the Committee on Professional Conduct will take a keen interest this situation.

If the committee finds that Messrs. McDaniel and Raupp do, in fact, owe a higher duty to the cause of justice in Arkansas than they do to supporting state actions, even—and especially—when those are shown to have been wrong, I hope that it will make that finding public. Our current and future attorneys general would be served, and so would the Arkansas public.

Sincerely,

Mara Leveritt[/private]

A juror’s affidavit: ‘Damien Echols seemed to me to be Satan walking alive’

‘Satan walking alive’

On June 7, 2004, one of the jurors in the trial of Damien Echols and Jason Baldwin signed an affidavit that will become a key piece of evidence at the evidentiary hearing in December. The affidavit supports other evidence of juror misconduct at the men’s trial and illustrates the effectiveness of prosecutors’ contentions that the murders were committed as part of an “occult ritual.”

[private]In the affidavit, Peggy Vanhoozer Nicholson said she kept notes throughout the trial and during the jurors’ deliberations. At one point in her notes, she said, she wrote the word “Satanic” regarding Baldwin. She said she then crossed out that word and wrote “follower.”

On the line above those words, Nicholson said: “I wrote ‘J. Misk. State.’ That was my shorthand for ‘Jessie Misskelley statement.”

The statement Misskelley made to police formed the basis of his conviction at a trial that was recently concluded. The statement was not, however, supposed to be used or referred to in the subsequent trial of Echols and Baldwin because Misskelley refused to appear at that trial and testify in support of it. Evidence that the jury foreman improperly discussed Misskelley’s statement during jury deliberations at the Echols/Baldwin trial will be presented by defense attorneys as part of the reason they are seeking new trials for the men.

Nicholson provided attorneys with her notes from the Echols/Baldwin trial. In her affidavit explaining the notes she said: “In my view, based on my own background and beliefs, Damien Echols seemed to me to be Satan walking alive.”

Prosecutors at the Echols/Baldwin trial presented Satanic involvement as the pair’s motive for murdering three West Memphis children in 1993. At one point, deputy prosecuting attorney pointed to Echols and said, “You see inside that person, and you look inside there, and there’s not a soul in there.”

(On a personal note: The segments shown here are enlargements from photos of Nicholson’s affidavit, which was provided by the Arkansas Supreme Court in response to a Freedom of Information request. I appreciate Nicholson’s  integrity in providing her statement and notes. That quality has not been seen enough in this case.) [/private]  

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 versus science: Recent court filings offer glimpse of the hearing ahead

Misskelley before his arrest

The Arkansas Supreme Court has told state prosecutors and attorneys for the West Memphis Three that they can bring “all” the evidence they consider important into the evidentiary hearing set to begin in December. Will the state again introduce Satan, as it did when the men were convicted?

[private]Remember that the arrests were predicated entirely on a statement Jessie Misskelley, Jr. made to police on June 3, 1993, a month after the murders. Police brought Misskelley to the station for questioning based on statements by Vicki Hutcheson that she had seen Misskelley and Damien Echols engage in sexual, occult-related activities. (Hutcheson has since recanted her statements, claiming police pressured her to make them to avoid an unrelated criminal charge.)

Before police interviewed Misskelley, however, they gave him a polygraph test. The officer who administered that test wrote that in a “pretest interview,” Misskelly “said that he has never participated in a Satanic ritual and has never observed one.” However, the officer reported that Misskelley recorded “significant responses indicative of deception” on five questions during the polygraph. Two of the questions concerned Satanism: “Have you ever took part in devil worship?” and “Have you ever attended a devil worship ceremony?”

Armed with a report that Misskelley also lied when he said he had never been to the woods where the bodies of the three young boys were found, that he had not been involved in their murders, and that he didn’t know who killed the children, police began an interview with Misskelley that would last for the next several hours.

Misskelley’s statements changed throughout the day. Ultimately, Misskelley told the detectives that he had witnessed Echols and his friend, Jason Baldwin, kill the children and that, at one point, he himself had helped by catching and holding one of the children who had tried to escape. According to police, Misskelley said the murders were the work of a “Satanic cult.”

Two brief portions of Misskelley’s interview were recorded. Much of what the 17-year-old said was vague, inaccurate or contradictory. None of his incriminating statements has ever been proved. But at the teenagers’ subsequent trials, prosecutors convinced two juries that the teenagers had killed the children as part of an “occult ritual.”

They based that theory partly on Hutcheson’s statement that Echols and Misskelley had taken her to an “esbat,” which she described as something like a witches’ orgy, in a rural area near West Memphis. The rest they based on Misskelley’s statements that he had seen a picture of the murdered boys at a meeting of a “Satanic cult;” that the cult met on Wednesdays in the woods where the bodies were found; and that “as part of a ritual” at those meetings, members built fires “of paper and wood and stuff” and “someone brings a dog, and they usually kill the dog … and eat part of it.”

A jury convicted Misskelley based on his own recorded statements, which were played in court. But since Misskelley had also recanted those statements—and since he would not repeat his accusations at the upcoming trial of Echols and Baldwin that he’d seen them kill the boys—prosecutors drew on the testimony of a self-described “expert in the occult” to link Echols and Baldwin to the murders. Even though the doctoral degree that Dale Griffis claimed to possess was exposed as fraudulent at the Echols-Baldwin trial, Judge David Burnett declared him qualified as an expert. In a case that lacked any typical forensic evidence, the testimony offered by Griffis set the stage for the closing argument by Prosecuting Attorney Brent Davis.

“The Satanic or occult motive thing is kind of a foreign concept to me,” Davis told the jurors. “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.”

Gesturing toward Echols, Davis continued: “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.”

Davis concluded: “We have presented a circumstantial case with circumstantial evidence, and it’s good enough for a conviction.” The jurors agreed.

But soon, more than 18 years after the murders, Arkansas Attorney General Dustin McDaniel and his staff will face teams of attorneys for Echols, Baldwin and Misskelley at the court-ordered evidentiary hearing. It is uncertain what experts the state plans to call, but the experts the appellants have cited have real doctorates. Where the convictions were based on, as Davis put it, “the occult motive thing,” filings suggest that, this time, attorneys for the men in prison will confront notions of Satanism with science.

After resisting for years defense requests for new DNA tests, the attorney general recently filed papers stating that his office will no longer “object” to new scientific tests. The state’s motion, filed on April 8, notes, however, that “the state doubts that [the] additional testing” will help the convicted men “in the face of [their] admissions to their crimes…”

Echols and Baldwin have never admitted guilt in any official forum. McDaniel claims that they did, however, “confess” to the murders. In Echols’ case, that was when he reportedly boasted at a softball field that he had committed the murders. In Baldwin’s, it was when he bragged about his participation to another prisoner in the juvenile detention facility where he was held awaiting trial. The prisoner and two girls who were at the softball field testified in court that they heard Baldwin and Echols make the self-incriminating remarks. Under the circumstances, Arkansas law allows remarks that, in other contexts would be ruled hearsay, to qualify as confessions.

The state’s attorneys did not mention those two second-hand “confessions” in their most recent filing. They did, however, inform Judge David Laser, who will officiate at the hearing, that they will “rely on” the statement Misskelley made to police before his arrest, as well as a second statement Misskelley made to prosecutors 13 days after he was convicted and sentenced to life in prison. In that statement, Misskelley accused Echols and Baldwin of killing the boys, with his participation.

The state’s attorneys provided Laser with a transcript of Misskelley’s post-conviction confession “by way of example” of the evidence they will ask the judge to consider. Misskelley made his post-conviction confession against the advice of his attorneys, Dan Stidham and Greg Crow, and after he had been sent to prison.

Misskelley after his conviction

Though Misskelley agreed that, “at this point, no promises have been made as to any deals or any benefits that will be granted” as a result of whatever Misskelley might say, the questioning came two weeks after prosecutors told reporters that his sentence to life in prison was not yet final. They explained that Judge David Burnett could still choose to reduce Misskelley’s sentence if, for instance, he agreed to repeat his accusations against Echols and Baldwin at their trial, which, at the time of this questioning, was just five days away.

There are many differences between the statement Misskelley made to police in 1993, four weeks after the murders, and the one he made to prosecutors in 1994, two weeks after his trial. I’ll look at those in postings that follow. But one of the biggest differences traces not to Misskelley, but to the officials who are questioning him. It is glaring in its absence. No one asks—and Misskelley does not speak—a word about Satan, cults, “the occult” or rituals.[/private]