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).


How a man in Denmark, troubled by the case of the WM3, created an invaluable online archive of it

Christian Hansen, a laborer in Denmark, loves Clint Eastwood.  He admires the actor’s work so much that an online friend nicknamed him “Callahan” after Eastwood’s character in the “Dirty Harry” movies.

Christian Hansen

He never imagined that the little website he formed as a repository for documents about the case of the West Memphis Three would become the largest archive of a criminal case in the world. If he had, he says, he would have named it something other than “Callahan.”

But there you have it. A modest Danish guy who likes to work with his hands creates a site named after a fictional San Francisco cop and, over time, the site morphs into a massive online reference library for the nonfiction process that ensnared—and still holds—three kids from Arkansas. Callahan has become the go-to site for anyone wanting to search police, court or media records from the case.

[private]Hansen was a senior in high school, living in a town just outside of Aarhus, the second-largest city in Denmark, when he saw “Paradise Lost” on Danish TV. That experience, in December 1998, was his first exposure to the case. He knew no one else who cared about it. A few weeks after seeing the film, when Hanson got on the Internet, his first search was for the documentary’s title.

Hanson is close in age to Damien Echols. But unlike Echols, he’d gotten a Commodore 64 computer at 13 and by now has played video games for years. He’s also had access to the Internet, which is where he perfected the English he learned in school and from TV.

For about six months after seeing “Paradise Lost,” Hansen couldn’t get the case out of his mind. He’d read a lot of true-crime books, but this case touched a deeper chord. For one thing, he didn’t know—and couldn’t figure out—whether the three were innocent or guilty.

In 1999, he read “Blood of Innocents,” the first book about the case. “There wasn’t a lot of information available on the Internet back then,” he told me via email. “But after reading it all, and particularly after learning that Jessie Misskelley had made a post-trial confession, I came to believe they were guilty.”

Over the next few years, Hansen saw the first message board about the case go online, followed by documents from the West Memphis Police Department, my book, Devil’s Knot, and audio recordings of the trials. Hanson read, watched and listened to everything he could get his hands on.

Hansen has been part of the WM3 online community since 1999, but has rarely participated in online discussions. What perplexed him about what he saw in those discussions was that so many people involved in the case believed that someone would actually confess—not once, but multiple times—to something he didn’t do.

Hansen’s interest in information was stronger than his need to defend his belief that the WM3 were guilty. In October, 2001, his curiosity led him to create the site now simply and widely known as Callahan.  It not only served his own research needs, but grew into a site where organization and neutrality offer others what he calls “a place to read facts without  getting an opinion shoved down their throats.”

When he created Callahan, Hansen never imagined that the site would still be around in 2011. He figured that “either the WM3 would be free or Damien would have been executed within the next decade.”
As sometimes happens, however, Hansen’s pursuit of information led to a change in his views. He came to see Misskelley as “a borderline mentally handicapped boy who was easily manipulated and wanted to please authority figures,”—a boy who “probably never even realized that what he says on June 3, [1993] would land him in a cell, rather than to the police letting him go home.”

Yet Misskelley’s post-conviction statements still bothered him. The more case documents he read, however, the more he felt he understood about Misskelley’s motivation. He now regards Misskelley’s statement to the officers who were taking him to prison as “a desperate attempt to escape the lifetime in prison he had just been sentenced to.”

Hansen writes: “I can see why he went against the advice of his own attorneys on February 17, [shortly after his conviction in 1994]. “He was led to believe they weren’t acting in his interest and, after all, going along with them in the first place had gotten him a life sentence, so it’s easy to see why he would give yet another statement to the prosecutors that day.”

Hansen is aware that many who believe in the guilt of the West Memphis Three also cite a confession Misskelley allegedly made to a teenaged girl, which was reported only in a Memphis newspaper; they also refer to repeated statements of guilt Misskelley is said to have made to his attorney prior to his trial. But Hansen no longer finds these admissions persuasive.

After “several years” of believing that Misskelley, Echols and Baldwin were guilty, Hansen’s quiet pursuit of case documents, led him to believe “otherwise.”  He reached “the realization that what Jessie described in his confessions was a ludicrous scenario that simply didn’t stand up under scrutiny.” Now, Hansen says, “there’s no longer any doubt in my mind that they’re innocent.”

The case has taught him “that people can confess, even multiple times, to something they didn’t do, without having a gun pointed to their head,” he says, “and that the police aren’t always the good guys.” What came to offend him most was the hard but unavoidable fact that sometimes, “a police force will pin a crime on innocent people.”

For Hansen, a change of view about the West Memphis case led to other changes. Where he had once been “in full support” of the death penalty, he isn’t anymore. Now he hopes that the West Memphis case, like “all other cases of injustice in the world, will teach people that the justice system is fallible, and that just because a jury says you’re guilty, that doesn’t necessarily make it so.”

None of those personal views—from when he believed the men guilty or now that he thinks they’re innocent—appear on Callahan.  The site has been—and he wants to keep it—“the ‘Switzerland’ in the WM3 cyberland.”

But maintaining that piece of cyberland has not been easy. There came a time, in late 2004, when Hansen “totally lost energy.”  He posted online that he was no longer interested in supporting Callahan. An Arkansas computer programmer who’d grown up near West Memphis offered to take over. When I contacted him, the programmer asked to be known only as “Greg” because, he writes, “It’s not about me.”  

For Greg, the work was about information and innocence. “I didn’t think they received a fair trial,” he writes. “And I didn’t believe that they were guilty. It was my old neighborhood.”

He began paying the site’s rent and adding new files as supporters found them. But the arrangement didn’t last long. Hansen “regained some motivation,” as he put it, and came back, to take over most of the work. Greg writes that since then, he and Hansen have shared the rental duty on the site, with some help from other supporters.

Monte Walker

In the spring of 2007, Monte Walker, a resident of Tennessee, who’d grown up in Mississippi, wrote to Hansen to tell him how much he appreciated the site and to volunteer his help if needed. At the time, Walker says, he was under the impression that all of the evidence files were on the website.

In the correspondence that followed, Walker learned that Callahan had only about half the case file. He responded by pulling together a team of volunteers to go to the West Memphis Police Department and copy every piece of evidence from the case for Callahan.

Walker estimates that over the course of about a year, he and his group copied 15,000 documents, 100 audio and 20 video tapes—all of which he and Hansen uploaded to the site. The entire process took about two years.

In the fall of 2009, Walker and Greg together spent several days at the Arkansas Supreme Court library in Little Rock, copying transcripts from Misskelley’s trial that were missing from the site. Walker and other volunteers have also transcribed images of records into word documents so that the site’s search engine can access them.

“Callahan is the only unbiased source of WM3 case information on the web,” Walker says, “and it is also the largest collection of information. For people interested in learning about the case, I think Callahan lends credibility to the online experience.”

Hansen “absolutely” wants for Echols, Baldwin and Misskelley to be freed and “the real killer(s)” to be  found. Yet he has never contacted the men. “I’ve thought of doing so in recent years,” he writes, “but I don’t know what to say to them.”[/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]  

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]

Arkansas attorney calls for justice in a Jonesboro paper

The following letter appeared on Mar. 21 in the Jonesboro Sun, the newspaper published in the town where Damien Echols and Jason Baldwin were convicted and where the hearing for them and Jessie Misskelley, Jr. will be held in December. The letter to the editor was written by Ken Swindle, who is from Jonesboro but who now practices law in Rogers, Arkansas.

Aside from Dan Stidham, who represented Misskelley at trial, Swindle is the first Arkansas attorney to speak publicly about the case outside of court. Swindle has also begun assembling a group of other Arkansas attorneys who are concerned about the case.

You probably recall the atmosphere surrounding the trial of Jason Baldwin and Damien Echols. I remember after finishing my first year of law school returning to Jonesboro the month after the trials had completed. We all believed that Jason and Damien were guilty. We knew that the murders of the children were unspeakably horrible, and we had heard that Jason and Damien were involved in an occult ritual sacrifice. 

I also recall that, even then, there were whispers in the community about the complete lack of evidence. Like most people in the community, I quickly brushed those doubts aside. These defendants must be the “other,” the outsider.

It was not until the case was in front of the Arkansas Supreme Court last year that I began to look more critically at the evidence. Maybe like many of you, those tough questions kept coming back. I began to re-examine the trial from a new perspective. The Arkansas Supreme Court sent the case back to the trial court for new findings. Jason and Damien’s attorneys are asking for a new trial based upon review of new evidence as well as a request for new scientific examination of evidence at their own expense. This testing was scientifically unavailable in 1994. However, there is one piece of evidence already before the court that should make the granting of a new trial automatic: juror misconduct. 

 The right to a jury trial is a fundamental protection to our communities. To create a fair and impartial jury, judges make all potential jurors take an oath to follow four safety rules: (1) to answer the questions truthfully when being chosen to sit on a jury, (2) not to discuss the case with anyone until the case is over, (3) not to make up one’s mind before the jury deliberates, and (4) not to interject into the jury deliberations evidence not presented at trial.

 We now know that the jury foreman in Jason and Damien’s trial violated all four of these safety rules. This fact alone should be sufficient for a new trial. The right to a new trial protects our communities by enforcing the right to a fair and impartial jury that follows the safety rules given to it by the judge. If a new trial with a fair and impartial jury is allowed, especially if a jury is allowed to consider all of the DNA evidence, then maybe, just maybe, those lingering doubts that many of us had in 1994 may finally be put to rest.

 Ken Swindle, J.D.

Rogers, Arkansas

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photos from the website of the Arkansas State Crime Laboratory.

Nostalgia and Marlou, by Damien Echols

Art by Sebastian Yingling

Nostalgia was completely unlike the other girls in her class. She was a secret girl, a tiny sorceress with black eyes and bones like razors. While the other girls played hop-scotch and jump rope, Nostalgia had tea with the ghosts that haunted the caterpillar tree.

The caterpillar tree stood at the farthest edge of the playground, and every spring it would be completely covered in wriggling caterpillars, from its snake-like roots to its highest branches. They would inch their way across Nostalgia’s lap as she sat cross-legged on the ground and chatted with the ghosts who were drawn to the tree.

Nostalgia felt pity for the ghosts, who whispered that their skeletons were buried far beneath the school. They had been there so long that no one remembered them, and they were constantly disturbed by the running, screaming children who played games of tag and kickball. Nostalgia nodded in sympathy as the ghosts shrieked and wrung their hands.

The other girls in Nostalgia’s class called here “weird” and “gross,” but she paid them no mind. She had no desire to be part of their group, and the things they were interested in bored her. What interested Nostalgia was Halloween. When she got out of bed every morning, the first thing she did was mark an “X” through another day on the calendar. Seeing the “X” gave her immense satisfaction, as if one more barrier between her and Halloween had fallen.

To Nostalgia, every day that passed was just one more step taken on the path to October. The other kids snickered when she did her schoolwork with orange and black pencils that said “Happy Halloween” in the middle of February. They smirked at the laughing skull stickers Nostalgia put on her notebooks in May. They thought her black-cat hair barrettes were odd, and her backpack strange—covered as it was in jack-o-lantern patches. She paid them no mind.

Nostalgia’s best friend was Marlou—an abandoned house on her street. While walking home from school one day, Nostalgia heard a voice in her head say, “Come and sit on my porch.” And so she did.
Nostalgia loved Marlou dearly. She loved the spiked Iron Gate that hung from on hinge on the path to Marlou’s front door. She loved the honeysuckle vines that crept up and around Marlou’s windows. She even loved the way Marlou smelled, because it reminded her of an old mummy in a dusty crypt. She spent every moment she was not in school with Marlou, listening as the house told her secrets.

Marlou had many things to tell, and all of them were of interest to Nostalgia. She told Nostalgia magick things, things that no one else knew. She told her to never trust the color red, because it was the color of madness and was always looking for a crack to seep through. She told her about certain days where the year was thin, and how it was possible to disappear into one of those thin spots and never be seen again. She said that there was a place where December is a man, and that magick was like a machine that you push reality into, and t comes out the other side changed.

Other times Marlou told stories about people who had lived in her rooms during days long past. She composed poems about them, often in haiku form.

Each day, Nostalgia wrote down all that Marlou told her, letting her hands become Marlou’s voice. She scribbled Marlou’s secrets between the lines of her science book. She copied Marlou’s stories into the blank spaces in her spelling book. She crammed Marlou’s poems into the margins of her math book. Summer gradually turned to fall, but Nostalgia and Marlou still never ran out of things to talk about.

Marlou was like a maze; her hallways never took Nostalgia to the same place twice. Nostalgia made a game of trying to count how many rooms Marlou had, but the number was always different. One time Marlou had nine rooms, another time she had fourteen. Once Nostalgia even discovered an attic that she could never find her way back to, no matter how long she searched. It became their game, much like hide-and-go-seek.

Marlou’s rooms were full of treasures and artifacts that Nostalgia loved to spend hours examining. There were things that looked like rusted tubas and rotting accordions. There were sets of bone china made of real bone, and stacks of photographs that were as yellowed as ancient teeth. There were scores of trunks and boxes and bags. There were piles of clothes and heaps of jewelry. There were books in very language ever spoken, and some that were never spoken at all. There were voodoo dolls and shrunken heads, coffin nails and graveyard dirt, all the things that make a little ghoul’s heart go pitter-patter. There were things on shelves which made Nostalgia feel ill when she looked at them for very long—masks which made her insides squirm and figurines that made her stomach lurch. Once she looked away she could never quite remember what she had just been looking at.

Marlou said that all her treasures had belonged to the old captain that had built her. His name was Captain Henderson, and he had sailed a ship all over the world. He had visited places that had never been on any map, and brought back things for which there were no names. Some people said that Captain Henderson was never a real person, but only a myth or a story. No one had heard from him in over 200 years. When Nostalgia asked where Captain Henderson was, Marlou was quiet for a very long time before finally answering, “Exploring.”

When Halloween finally arrived, Marlou and Nostalgia decided to celebrate in grand style. It was the day they had waited for all year, so they wanted to make it more special than any Halloween before. Nostalgia spent days carving dozens of jack-o-lanterns, which were placed on every step and window sill. Marlou groaned and creaked, sighed and whispered. From deep within the walls came the faint sounds of pounding and shouting, yet no matter where Nostalgia went inside the house, the noise still sounded just as far away.

No kid can resist a haunted house on Halloween, especially one like Marlou. They came in droves, dressed as ghosts and ghouls, devils and witches, werewolves and vampires. Nostalgia met them at the door to hand out candy and give them a guided tour. She led them through Marlou’s corridors and told them hair-raising stories of haunts and wraiths, pointing out the rooms where the spirits still lingered. In the backyard kids gathered around a witch’s cauldron and bobbed for apples. In the parlor, Nostalgia told them their futures, using an ancient deck of cards she found on one of Marlou’s shelves. All the while, Marlou continued to clink and rattle, gibber and chuckle, and generally carry on like a ship full of tormented souls. It was the greatest Halloween any of the children would ever know, and they would remember it forever. As adults they would even dream of it, and awake with a delicious sense of unease. None would ever be certain if all their memories were true, or if some were only imagined.

After that Halloween, Nostalgia’s schoolmates no longer considered her odd or weird—at least not in a bad way. On Valentine’s Day, she always received the most gifts from secret admirers. They left sugar skulls in her desk and big black spiders in her locker. They hung velvet vampire bats from Nostalgia’s coat hook and left handfuls of candy corn in her lunchbox. In fact, Nostalgia had so many new friends and admirers that she no longer had as much time to spend with Marlou. The days melted into weeks, and the weeks merged to form months. Marlou sank into a deep sleep and dreamed her way through the passing seasons. There are things for which time holds no meaning, and Marlou is one of those things. She could pass centuries dozing like a mother hen with its head beneath its wing, if that was her wish.

As all little girls must do, Nostalgia grew older. She began to forget much of the magick she had once felt. Sometimes she would pass by Marlou and get the feeling there was a secret right on the tip of her tongue, but could never quite remember what it was. It scurried across her brain like a hairy spider, causing her memory to itch like a madman with fleas.

One October day, as Nostalgia was passing by Marlou, she saw men wearing hard hats and tool belts. They had trucks and carts and lots of machinery which seemed to serve no purpose other than to make loud, obnoxious noise. They were carrying Marlou away, piece by piece, like ants on a chocolate bar. Suddenly, all of Nostalgia’s memories came flooding back, as she felt as if the men were carting away pieces of her heart along with the rusty nails and dusty boards.

Nostalgia knew that it was time for Marlou to be moving on, collecting more stories and having more adventures. As the men carried parts of Marlou off in every direction, Nostalgia her speak one last time… “Don’t forget,” she said. And Nostalgia wouldn’t. She would never forget again. Even after she grew to be a little old lady, Nostalgia continued to live ferociously. She never wasted her time on the monotonous, the mundane, or the mediocre.

Nostalgia lived so long that even she forgot her true age. All of the little girls in her neighborhood loved her and would come to hear her stories. Nostalgia taught them how to snatch coins from the moon’s reflection and how to make the wind blow by whispering into their fists. She showed them how to make good luck charms out of chickens’ bones and crow feathers. And no matter how many times they heard it, the girls still clamored to hear the story of Marlou again.

As for Marlou, pieces of her traveled all over the world. Her doorknobs and floor boards went east. Her books and furniture went west. Her trinkets and treasures went north. Her boxes and trunks and chests made their way south. Every single piece of Marlou, right down to the pipes and plumbing, was incorporated into some new structure or building. Future generations of little girls would hear Marlou’s whispers coming from the drain on cold October nights. They would open books to find messages from Marlou just for them. They would hear Marlou’s voice coming from their closets once the lights were out. They heard Marlou speak to them from inside the walls and from under the bed. Marlou’s presence could be felt in basements and crawl spaces, in attics and boiler rooms. Little girls everywhere would hear Marlou’s voice, and they would carry her magick in their hearts.

The End

Click here to watch the video version of Nostalgia and Marlou.

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

 
 
 

Sen. David Burnett

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

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

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

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

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

When asked about his testimony, Rosenzweig replied by email:

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

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

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

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

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

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