This week’s exoneration in Colorado: Note how it resembles—and differs from—the case of the WM3

Masters at 15

After 25 years, a Colorado grand jury decided on Tuesday that Timothy Masters is no longer a suspect in the 1987 murder of Peggy Hettrick.

Masters was 15 years old when police in Fort Collins, Colorado brought him in for questioning about the murder of Hettrick, whose sexually mutilated body was found in a field near his house. Masters, a sophomore in high school, was taken from his classroom for questioning after his father told police he had seen the boy walking near the field.

Police found no trace of Hettrick’s blood or hair on anything connected to Masters. But they quickly identified him as their prime suspect after finding knives, drawings of knives and gruesome doodles in Masters’ room.  The teenager, however, consistently maintained that he was innocent, even under intense police questioning, as shown in the video here.

On the other hand, there was evidence that pointed away from Masters. Two hairs found on her body were not his, nor were fingerprints found on her purse.

[private]Masters lived under a cloud of suspicion for more than a decade, part of which he spent working as an aircraft mechanic in the Navy. But police were still working the case. They contacted Dr. J. Reid Meloy, a forensic psychologist from California and asked him to analyze Masters’ writings and artwork. Meloy never interviewed Masters, yet he told police that some of the drawings represented Masters reliving the crime.

With that information, police charged Masters with Hettrick’s murder. Meloy was the main witness against him at his trial in 1999. The prosecutors’ case was circumstantial, based largely on inferences about Masters’ state of mind.

Jurors convicted Masters and sentenced him to life in prison. Some later said that they were convinced by Meloy’s testimony, coupled with Masters’ drawings and writings.

Masters appealed, but in 2001 the Colorado Court of Appeals unanimously affirmed his conviction. The next year, the Colorado Supreme Court denied him a new hearing.

In 2004, Masters was appointed a new team of state-appointed attorneys. Their investigation revealed that critical evidence, including the hairs found on Hettrick and photographs of the fingerprints from her purse had been “lost.” They presented this evidence in court in 2007. (Colorado had no law requiring that evidence be preserved and authorities who destroy evidence after criminal trials were shielded from liability.)

Doubts about Masters’ guilt grew—among members of the public, journalists and even some police officers. Former Fort Collins police investigator Linda Wheeler-Holloway, who was among the first to suspect Masters, told his defense attorneys that, after years of studying the case, she had concluded she had been wrong.

But Lt. Jim Broderick, the investigator credited with cracking the case, said he stood by his investigation. And the city’s chief of police supported Broderick.

Meanwhile, Masters’ attorneys sought new scientific tests of DNA evidence found on Hettrick’s clothing. Tests by the Colorado Bureau of Investigation produced partial profiles that did not match Masters. Further testing at a laboratory in the Netherlands provided a statistical match with another man who had once been considered a suspect.

In light of the new evidence, defense attorney sought a new trial. They argued that no physical evidence linked Masters to Hettrick’s murder and that prosecutors at Masters’ trial had withheld at least four items of evidence favorable to him.

(In separate actions, a Colorado criminal defense attorney filed a civil suit in federal district court against the prosecutors at Masters’ trial, as well as detective Broderick, claiming that they had violated Masters’ civil rights. A Larimer County grand jury indicted Broderick on eight counts of perjury for false statements he made relating to Masters’ arrest and conviction. Those charges were dismissed, however, when a judge ruled that Colorado’s three-year statute of limitations for perjury had expired.

(In addition, the Colorado Supreme Court considered allegations that the two prosecutors at Masters’ trial—Terry Gilmore and Jolene Blair—had failed to provide his attorneys with important police information that supported his claim of innocence. The supreme court censured the two, who by then had become judges, and in elections last November, they were voted out of office.)

Meanwhile, a retired judge, Joseph Weatherby, was appointed to hear all the new evidence in Masters’ case. The Colorado District Attorneys Council appointed Don Quick, a prosecutor from another Colorado County, to represent the state.

At a hearing in 2008, Masters’ attorneys presented evidence that detectives and prosecutors had targeted the teenager and had destroyed or withheld evidence that would have cleared him. Those claims were supported by the attorneys who represented Masters in 1999, as well as by former police officers, investigators and forensic experts, some of whom said police ignored other viable suspects.  

On January 18, 2008, Weatherby vacated Masters’ conviction. He ordered that Masters, who was by then 36, be immediately released from prison.

Quick, the prosecutor, announced that Masters, while not exonerated, should be freed while awaiting the new trial. “We’re going to go upstairs and see if there’s anything that can be done this weekend” to get Masters out of prison, Quick said. “If not, it’ll be done Tuesday morning.” Masters was freed on his own recognizance; no bond was required.

Although it did not show conclusively that Masters was not the killer, Masters became the first Colorado convict to be freed on DNA evidence. What the DNA testing did reveal was a further lack of evidence linking him to the crime, as well as evidence that pointed to another suspect.

Larimer County District Attorney Larry Abrahamson responded by promising to review all “contested convictions” in which advances in DNA testing may prove useful. Due to the allegations of official misconduct, he also said he would review the discovery process to assure “that all information is available to our office and the defense.”

In the end, state officials could not refute Masters’ claims of police and prosecutorial misconduct. In 2010, he received a settlement from the city of Fort Collins and Larimer County for $10 million. Video on that settlement.

This week, a grand jury finally cleared Masters of even suspicion in the case. Colorado Attorney General John Suthers issued a statement that read: “Given the nature and extent of the Grand Jury investigation, the time has come for law enforcement to officially exonerate Timothy Masters.”

Masters in 2010

The mayor of Fort Collins apologized to Masters, and so did Larimer District Attorney Abrahamson. In a press release Abrahamson said:

“Rule 3.6 and 3.8 of The Colorado Rules of Professional Conduct precludes prosecutors from publicly commenting on the guilt or innocence of any individual who may be subject to an ongoing investigation. However, in light of the current [grand jury] statement, I believe it is appropriate as the current District Attorney and on behalf of the criminal justice system in Larimer County to express our apologies to Timothy Masters, his family and friends for the conviction and sentence he endured 12 years ago.”

Hettrick’s murder remains unsolved.[/private]

Poverty and neglect still plague ‘Lakeshore’

University of Memphis journalism student Chelsea Boozer wrote a fine story for yesterdays Memphis Commercial Appeal. Titled “Arkansas trailer park residents find themselves in a dangerous no-man’s land in Lakeshore,” it describes the unincorporated part of Crittenden County where, at various times, Jason Baldwin, Jessie Misskelley and Damien Echols lived, before their arrests.

Boozer, who is president of the Society of Professional Journalists at UM, has already won several journalism awards. She organized this year’s 27th Annual Freedom of Information Congress held at the school in March. It focused on “The Media’s Role in the West Memphis 3 Case” and included a talk by me and a panel discussion.

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

 

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

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

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

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

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

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

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

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

Here are some of their emailed responses:

Mark Cowart

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

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

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

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

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

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

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

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

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

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

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

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

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

The crime lab under a microscope

It’s safe to say that the work of Arkansas’s crime lab, and especially that of Dr. Frank Peretti, one of its medical examiners, will be scrutinized at December’s evidentiary hearing for the West Memphis Three. Defense attorneys have already challenged the scientific accuracy of Peretti’s conclusion that a knife caused the injuries to two of the three victims.

Prosecutors used Peretti’s testimony to support their contention that the children were murdered as part of a satanic ritual. However, in October 2007, seven forensic pathologists testified that the injuries Peretti attributed to a knife were more likely inflicted by animals—possibly dogs, raccoons or turtles—after the boys were killed and their bodies submerged in a water-filled ditch.

Defense attorneys for Damien Echols and some of the pathologists held a press conference to announce those opinions. The group also met with Peretti and other officials at the Arkansas crime lab, seeking a collaborative approach to reviewing the autopsy evidence.

That request was denied. And soon after, Arkansas Attorney General Dustin McDaniel issued a statement that captures the conflicted alliance between politics and science that exists in most crime labs, including Arkansas’s. McDaniel said: “While the state will look at the new allegations and evidence objectively, it stands behind the conviction of Mr. [Damien] Echols and that of his codefendants and does not anticipate a reversal of the juries’ verdicts.”

The question arises: how objectively can a scientist look at evidence if his employer—in this case the state—has already announced its support of the original conclusion?

Channell

I recently raised that question with Peretti’s ultimate boss, Kermit Channell, the executive director of the Arkansas State Crime Laboratory. [private]When Channell noted that he cannot speak of the West Memphis case due to the gag order imposed by Judge David Laser, we agreed to discuss in more general terms how the crime lab responds to findings that conflict with its own.

The lab’s Quality Manual states that, “External complaints that question the analytical results of an analyst will be investigated.” The manual also outlines procedures to be followed if the complaint is found to be valid.

I asked Channell if he would consider a press conference by a group of distinguished pathologists an “external complaint.” Channell said he would not, because, “Experts have differences of opinion. We don’t see those as complaints. We’re faced with dueling experts in court all the time.”

Fair enough. Then, I asked, is there a form or procedure by which someone can register an external complaint? Channell said there is not, and that he does not know of an external complaint having been filed with the crime lab in the four years he’s been director.

How then, I asked, do scientists at the crime lab respond when others in the scientific community challenge the accuracy of their work?

Channell pointed out that both the Arkansas crime lab and its medical examiners’ office are audited and accredited—something that cannot be said of similar agencies in many other states. Yet it was clear that the issue of his lab’s objectivity was a sensitive one.

“We take pride in our work,” he said. “We don’t work for the prosecutors. We don’t work for the police departments. We are an independent state agency.”

He emphasized: “I don’t report to a chief of police. I report to the governor.” Matt DeCample, spokesman for Gov. Mike Beebe, agreed: “The executive director is appointed by the governor, and the governor can also fire him.” But, Decample added: “The duties, responsibilities, qualifications and compensation of the executive director are all set by the board.”

According to DeCample, the board is charged with defining the executive director’s job and maintaining “direct oversight” of it. What’s more, he noted, the qualifications for appointment to the crime lab board are established by law.

DeCample emailed me a list of the crime lab’s current directors. It included: one circuit judge; a prosecuting attorney, a deputy prosecuting attorney and a former prosecuting attorney; two physicians (one the dean of the University of Arkansas’s College of Medicine and the other a surgeon); a county sheriff and “one seat currently vacant” to be “held by an active police chief.”

So, the board of directors for the Arkansas State Crime Laboratory consists of one judge, three current or former prosecutors, two police officers, and two physicians. Yet even that meager representation of scientist is not accurate. According to Channell, the dean of the college of medicine, though required by law to serve, is not currently on the board.

Does any of this matter? It does.

The crime lab is supposed to be an unbiased scientific entity. “Independent,” as Channell said. And courts regard it as such. Yet the board authorized to define the executive director’s job and watch how he handles it is comprised primarily of police and prosecutors. At present, the one physician on the board is not even a pathologist, and  the board is not required even to have one.

In practice, the crime lab works closely with police and prosecutors. It works in relative isolation and can lack the collegial challenges that confront scientists in larger, competitive institutions.

A report published in 2009 by the National Research Council addressed what it called the “Needs of the Forensic Science Community,” now that DNA tests have proven that the testimony of many forensic scientists resulted in wrongful convictions.

That report, titled “Strengthening Forensic Science in the United States: A Path Forward,” stated this: “Government reports over the years have recommended that a medical examiner system should be an independent agency or should report to a commission so that it avoids any conflicts of interest and so that it reports directly to the jurisdictional governing body.”

Some reformers suggest that a state crime lab should be part of the Health Department; that its services should be available to anyone for a fee, like a university hospital; and finally that the crime lab be managed by a three-person panel, with appointees recommended by the state attorney general, the public defender’s office, and the legislature’s judiciary committee.

No system is going to be perfect. But something is clearly wrong when attorneys for a man facing a sentence of death cannot obtain even cursory information from the crime lab of the state that sentenced him, as has been the case with Echols.

In a pre-hearing brief filed in February, lawyers for Echols told Judge Laser that their efforts to find out from the crime lab how many autopsies Peretti performed in the years 1992, ’93 and ’94 had been ’rebuffed.” According to Echols’ brief, the lab replied that the attorney general’s office said that the records would only be released if Echols’ attorneys got a court order.

Thus, in the February brief, Echols’ attorney, Stephen L. Braga, wrote: “Since the attorney general’s office has already apparently decided not to authorize the release of this information to Echols’ counsel, Echols hereby asks this court to do so.”

Braga also told the court that he had written to Peretti’s boss, Dr. Charles Kokes, on April 21, 2010, requesting “copies of all autopsy reports, photographs, toxicology reports, written notes (including bench notes), field investigator reports, police reports, phone logs and/or communication sheets in the medical examiner’s office file(s) from May 1993 to date relating to the ME office’s work on the autopsies of the victims in this case.”

Braga said he would pay the cost of copying and shipping. But eight months passed without a response.

Braga wrote to Kokes again on January 5 of this year. This time he asked: “Can you please let me know whether you will provide me with access to these materials voluntarily or not?” By Feb. 18, when Braga filed his brief, he wrote that Kokes had still not responded.

In that brief, Braga cited the pertinent section of the Arkansas Code: “The laboratory shall disclose to a defendant or his or her attorney all evidence in the defendant’s case.”

In the West Memphis case, at least, the laboratory’s actions belie claims of independence. [/private]

A Georgia ruling highlights the civil rights abuses ingrained in the West Memphis case

Americans are supposed to be equal before the law. But in practice, racial discrimination was so systemic in this country—and particularly in the south—that it took the sit-ins and marches, beatings and bus rides, speeches and civil disobedience of the 1950s and ’60s  just to begin to curb it. For more than a century after the Civil War, the promise of equality for African-Americans—in schools, voting rights, housing, and even at public water fountains—was empty rhetoric.

As a result, history has tended to link the words “civil rights” to the category of race—and to forget that civil rights are supposed to extend to all. That includes gays and straights, the aged and the mentally ill, eccentrics and middle-of-the-roaders, fat cats and trailer-park kids. Equality before the law extends to religion too. It extends to Baptists, to Jews, to Muslims and to atheists. And it extends, as the Georgia Supreme Court recently noted, to a 15-year-old girl whom prosecutors suggested killed due to “Satanic influences.”

In a ruling issued on May 31, the Georgia court addressed the old but effective courtroom strategy of portraying defendants as guilty, however skimpy the evidence, by stressing that they are different from the good, upstanding jurors. The tactic was artfully presented “To Kill a Mockingbird” when author Harper Lee described how the prosecutor, who had no evidence that a crime even had been committed, reminded the white jurors of the defendant’s status as a Negro in the southern community: “The way that man called him ‘boy’ all the time an’ sneered at him, an’ looked around at the jury every time he answered…”

Lee’s book was fiction. But something darkly similar—and real—happened in the both the trial of Courtney Boring in Georgia in 2006 and the 1994 trial of Damien Echols and Jason Baldwin in Arkansas. Boring, Baldwin and Echols were all teenagers accused of murder; 15, 16, and 18 years old. All denied the charge. No physical evidence existed connecting any of them to the crimes. Yet all were sentenced to die in prison—one by execution—based on evidence that prosecutors claimed linked them to Satanism.

[private]The tactic is ancient and familiar. It is called “othering,” and in its ugliest form, it’s the opposite of the Golden Rule.

Othering is psychologically and socially important—to a point. Children must learn to distinguish themselves from others to develop their own identities. This process reaches its natural glory days in and around adolescence, when cliques form in schools, team spirit thrives, sororities and fraternities ease academic transitions, and gangs coalesce around colors. The process can feel fun and inclusive or lead to shunning and murder.

Ideally, the need to link one’s identity to that of a group wanes as one enters adulthood. When that happens, a well-developed sense of self combines with a maturing social conscience, offering grown-ups the ability to recognize and even appreciate others’ differences without derision, rejection or fear.  

Unlike acne, however, the forces that make cohesion so attractive in high school don’t naturally abate with age. Wherever there is insecurity to be exploited, fear to be mongered or opportunity to be ruthlessly mined, there are preachers, politicians and bosses willing to pit one group against another. The phenomenon has scarred human history. It threatens us today.

It arises wherever a group in power identifies other groups as different, not for benign reasons, but  in order to maintain or extend power or to justify its abuse of power. Othering cheered the slaughter of Native Americans. It permitted slavery. It fed the Holocaust ovens. And it was othering that cast Boring, Echols and Baldwin as killers by portraying them—not as local teens to be presumed innocent—but as weird, soulless losers who existed, barely human, outside the dominant culture.

A major difference between the Echols/Baldwin case and Boring’s is that the Georgia Supreme Court reversed her sentence of life in prison and ordered a new trial a mere five years after her conviction. By contrast, Echols, Baldwin, and their co-defendant, Jessie Misskelley, Jr., have spent 18 years in prison, and despite repeated appeals, the Arkansas Supreme Court has never ruled that the evidence purportedly linking them to the occult or Satanism was, as the Georgia court held in Boring’s case, “irrelevant,” “inflammatory,” “improper” and “prejudicial.”

In their unanimous ruling, the justices noted that, over defense objections, prosecutors introduced various items of evidence seized from Boring’s bedroom. According to the court’s opinion, that evidence included “photographs of her with dyed black hair and dark make-up; a document bearing the words of a ‘curse’ to be recited ‘while burning the letter over a black candle’; and seven different inscriptions, one typewritten and the rest handwritten on the bedroom walls, of song lyrics and quotations attributed to various singers and other artists, bearing themes of anguish, enslavement, atheism and violence.”

 “Though the state elicited no elaboration from any of its witnesses regarding the import of these items,” the court wrote, prosecutors “explicitly sought in both opening and closing to link these items with the so-called ‘gothic lifestyle’ and to characterize them as evidence of ‘Satanic influences.’”

Prosecutors Brent Davis and John Fogleman were not so careless at the Echols/Baldwin trial, 12 years earlier in Arkansas. The items they introduced that were taken from the homes of Echols and Baldwin included cover of heavy-metal record albums, a library book on witches, occultish writings by Echols, and black T-shirts owned by Baldwin. But here, the prosecutors did elicit elaboration from a witness: Dr. Dale Griffis, a self-proclaimed “expert” in the occult.

Under questioning by the defense, Griffis admitted that his Ph.D. was bogus. Nevertheless, Arkansas Circuit Judge David Burnett accepted Griffis as an expert. Thus qualified, Griffis testified that, although no physical evidence found with the bodies was related to the occult, the items taken from the teenagers’ homes, combined with what he called significant details from the crime scene (such as the “three” bodies, the blood and water, and the full moon on the night of the murders) did link the accused both to the occult and to the crime.

In his closing argument, Davis made a point of telling the jurors how “foreign,” “strange” and “weird” all this made the defendants. “The Satanic or occult motive thing is kind of a foreign concept to me,” Davis said. “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.”

The othering went even further for Echols, whom Davis characterized as “nearly emotionless,” into “Satanic stuff,” “bizarre,” and “unfamiliar.” Gesturing toward Echols, he said: “Well, I mean, you can judge him from the witness stand. 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.”

Fogleman told the jury that wearing black, listening to heavy metal music, and reading books by the likes of Stephen King, Ann Rice and Dean Koontz (which were also mentioned at trial), did not necessarily make Echols a killer. But he added, pointing to Echols, that if the jurors “put all that together” and looked at Echols, they would see a person with “no soul.” The Arkansas Supreme Court never noted a problem with any of this portrayal.

More than a decade later, Boring’s prosecutor in Georgia played the same othering card. “We have a bent of mind, things that we think about that make us what we are, our thoughts,” he told her jurors. “We believe there even is a depravity of mind here… We believe you will see some inkling of Satanic influences here.”

He told her jury that, while the evidence taken from her bedroom did not “prove” she killed her mother, actual proof was “not the point.” “The point is that these are pieces of a puzzle and you have to consider all of the evidence together.” Like Davis and Fogleman, he empathized that in a circumstantial case, the items “must be taken as pieces of a puzzle.”

But the Georgia Supreme Court didn’t buy it. In its May opinion that court noted the lack of evidence “affirmatively connecting” Boling to Satanic influences. “Rather,” the court wrote, “that link was forged only via the state’s opening statement and closing argument, which itself was improper.”

The justices observed: “One is left with the feeling that [the evidence in question] was employed simply because the jury would find these beliefs morally reprehensible.” And, “In admitting this evidence, which bore no specific connection with the crime and operated merely to impugn appellant’s character by suggesting she held satanic beliefs, the trial court abused its discretion.”

In reversing Boring’s conviction they wrote, “[B]ecause the nature of this evidence was highly inflammatory, and because the evidence of appellant’s guilt was entirely circumstantial and not overwhelming, we cannot say that it is highly probable that the error did not contribute to the jury’s verdict.”

Prosecutors in Boring’s case now must decide whether to retry her. For now, she remains in a Georgia prison.

In Arkansas, Echols, Baldwin and Misskelley await what could be similar juncture. The Arkansas Supreme Court has ordered a judge to decide whether the three deserve new trials. Circuit Judge David Laser will make that decision after an evidentiary hearing scheduled to begin on Dec. 5. Whatever comes of that hearing, their case of the West Memphis Three already has earned a place in the sad history of discrimination in Arkansas, particularly Crittenden County.

The saga of othering there has been nothing short of tragic. Slavery and the Civil War were followed by lynchings and the Ku Klux Klan. African-Americans were slighted at the polls, in the fields, on the streets and in education. As recently as 1949, West Memphis spent an average of $144.51 for each white child’s education and $19.51 for the education of each black child.

As in “To Kill a Mockingbird,” discrimination also extended to justice. Whether by Satanism or color, the othering could lead, almost nonchalantly, to death.

Isadore Banks

In 1954, Isadore Banks, a prominent African-American landowner, was murdered near Marion, Arkansas, the Crittenden County seat. His body was found tied to a tree, mutilated and burned beyond recognition. John Fogleman, an uncle of the man by the same name who prosecuted the West Memphis Three, was the county’s assistant prosecuting attorney at the time.

That John Fogleman is dead now, but his brother, Julian Fogleman, who was Marion’s city attorney when Banks was murdered, was still alive in 2010, when he was interviewed by a reporter for CNN. Julian Fogleman is the father of John Fogleman, who prosecuted the West Memphis Three and who is now a circuit judge.

Julian Fogleman was 89 at the time of the CNN interview and still practicing law. He said he could not remember whether a coroner’s inquiry was ever conducted. “There was some community discussion about who might’ve done it,” he said, “but I never heard any discussion of any name.”

CNN reported that, “Though Julian Fogleman followed his brother as deputy prosecutor in the 1950s, he said he never pursued Banks’ case.” Banks’ descendants do not know how the hundreds of acres Banks owned were disbursed after his murder.

Another infamous killing occurred less than a decade later. In 1963, a white woman in Crittenden County said she saw Andrew Lee Anderson, an African-American teenager, try to rape her eight-year-old daughter. According to a New York Times report, a mob of white residents, including six sheriff’s deputies, chased Anderson into a soybean field, where the unarmed 17-year-old was shot in the leg.

The Civil Rights and Restorative Justice Project (CRRJ) at Northeastern University’s School of Law in Boston which monitors developments in “civil rights-era murder cases from 1955 through 1969.” It reports  that, “Anderson’s family stated that he was questioned for several hours after the shooting before finally receiving medical attention. By the time he was taken to Crittenden County Memorial Hospital it was too late.”

T.H. McGough, the same coroner called to the murder of Isadore Banks, ruled that Anderson’s shooting was a “justifiable homicide.” According to the New York Times, McGough said the ruling was based on an Arkansas law that gives any private citizen or officer the right to attempt to capture a felon, and that “there was no testimony during the coroner’s inquest as to who had fired the shot.”

CNN reported that the coroner’s jury consisted of 19 white men who “took just 20 minutes” to decide that the killing was justifiable. At the time of Anderson’s death, Julian Fogleman, then an assistant county prosecutor, told the Arkansas Gazette: “We don’t think the decision was wrong and don’t plan to go any further with it.”

Julian Fogleman’s now-deceased brother John was elected to the Arkansas Supreme Court, where he eventually served as chief justice. Last year, his nephew, Judge John Fogleman of the West Memphis case, ran for a seat on the state’s high court. When asked during his campaign about the scarcity of evidence at the teenagers’ trials, Fogleman told a reporter for the Arkansas Times, “I completely stand by every step I took in that case.” He lost the election.

Echols, Baldwin and Misskelley are not African-Americans. But they were trailer-parks kids, living on the county’s economic and social fringe. They were kids. They were poor. And, though Baldwin would later recall that he and Echols thought that they were “the coolest people in school,” they were seen by others around Marion as “different.”

In school, Baldwin said, “Others didn’t like us. They’d been accusing me of being a Satanist since the sixth grade. It was because I had long hair and wore concert T-shirts, with bands like Metallica and Guns n’ Roses, and Ozzy Osbourne and U2. Damien and I kind of dressed different. I basically wore blue jeans or Bugle Boy jeans with concert shirts. He liked straight clean black clothes with nothing printed on them. But the way we dressed was one of the things people criticized.

“Most of the other kids, they either wore sports clothes, like Tommy Hilfiger stuff, or if they were country people, they wore flannel shirts and cowboy boots and belts with giant buckles. So we stood out because, even though Damien and I dressed different from each other, we was also different from everybody else.”

In Georgia, police interviewed more than 20 people, including Courtney Boring’s teachers and school officials, but could find no one who said she had any history of violence. On the other hand, according to the Georgia Supreme Court’s opinion: “The condition of the Borings’ home, as observed by responding investigators and documented in photographs admitted at trial, was filthy and, according to the testimony of one investigator, not fit for a child to inhabit.

“A neighbor of the Borings testified that he had on previous occasions heard arguments coming from their home and had seen patrol cars at the house. There was also evidence that Rodney [Boring, Courtney’s father and the victim’s husband, who reported the shooting,] was verbally abusive to both his wife and daughter.”

Nevertheless, police and prosecutors concluded that it was Courtney who murdered her mother. And, without any physical evidence to support that conclusion, photos of the 15-year-old with dyed black hair and dark makeup, a piece of paper with the word “curse” on it, and quotations that prosecutors attributed to the “founder of the Satanic Church” were enough to convince a jury that the girl was not at all like them—that, in fact, she was a killer.

Only othering allows such conclusions. In “To Kill a Mockingbird,” Atticus Finch tried to evoke its opposite when he addressed jurors, whom he knew to be racist, before they decided the fate of the innocent black man he represented.

As he rose for his closing remarks, Finch did something he did not usually do in public. As Lee wrote, “He unbuttoned his vest, unbuttoned his collar, loosened his tie, and took off his coat. … Atticus put his hands in his pockets … his voice had lost its aridity, its detachment, and he was talking to the jury as if they were folks on the post office corner.”

He was talking to them on equal terms. He was talking about equal rights.

“Gentlemen,” Finch said, “a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty.”

Finch was asking the jurors to move beyond othering, to deal his client the sort of justice that they would hope to receive themselves. He was asking them to do something diametrically opposed to what the prosecutors of the West Memphis Three and Courtney Boring asked at those trials.

Finch wanted the jurors simply to remember that, as he had taught his children: “You never really understand a person until you consider things from his point of view—until you climb into his skin and walk around in it.”[/private]

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

Jessie Misskelley at his trial

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

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

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

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

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

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

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

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

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

Mr. Leslie Steen

Clerk to the Arkansas Supreme Court

Justice Building
625 Marshall Street
Little Rock, AR 72201

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

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

 OVERVIEW

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

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

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

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

MODEL SHORT LETTER

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

MODEL LONGER LETTER

Dear Justices of the Arkansas Supreme Court:

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

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

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

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

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

Sincerely,

 [Your name][/private]

The politics of death

Arkansas requires more training for drivers, cosmetologists and mold investigators than it does for coroners. In fact, the state requires nothing—no training, no testing, not even a background check—for county officials who investigate deaths.

I raise this topic now because, presumably, according to Circuit Judge David Laser’s order, certain evidence from the case of the West Memphis Three is now being tested. Court filings in the next few weeks are likely to focus attention on the work of the crime scene investigators and the state crime lab.

This lull, as we await results from the laboratory analyses now underway, is a good time to revisit the earliest moments at the drainage ditch where the bodies of Christopher Byers, Michael Moore and Stevie Branch were found. This is what records tell us about the coroner who pronounced them dead.

[private]Crittenden County’s coroner, Kent Hale, was called to the scene at 3:20 p.m. on May 6, 1993, an hour and 50 minutes after the boys’ bodies were discovered. Hale, who worked for Roller-Citizens Funeral Home in West Memphis in addition to his job as county coroner, was accompanied to the scene by another of the funeral home’s employees.  

Hale noted in his report that when he arrived, he found all three bodies out of the water and lying on the bank covered in black plastic. The air temperature was approaching the high eighties. Fly larvae were starting to appear in the victims’ eyes and nostrils.

Hale pronounced the boys dead at 3:58 p.m., by which time the bodies had been lying in the open for more than two and a half hours. In his brief report, part of which was on a form, Hale noted the position of the bodies as he found them, the temperature of the water in which they’d been found, and that they were tied hands-to-ankles “by shoelaces.”

Hale also noted what appeared to be injuries to the boys, including bruising, cuts, abrasions, a “stab wound” to the head of Christopher, and signs that the boys ‘may have been sexually assaulted.” He wrote that the bodies were sent to the office of the Arkansas Medical Examiner in Little Rock. (Hale’s report.)

Hale left many parts of the form blank, including one for “Causes of Death.” He would leave that determination to the state crime lab, which is permissible under Arkansas’s dual coroner/medical-examiner system. The criminal investigation was already in the hands of the West Memphis Police Department.

The role of coroner originated in England before the signing of the Magna Carta. The word itself comes from “crown,” as the coroner was supposed to represent the interests of the king at a subject’s death. Today, expectations of coroners vary greatly.

In England, coroners must be either a physician or a lawyer with at least five years of practice. They are expected to investigate any deaths that are unnatural, violent, sudden with unknown cause, or that occur in police or prison custody.

In the U.S., coroners may be either elected or appointed, or the coroner’s job may be part of another job, such as that of prosecuting attorney. In some states, the titles of coroner and medical examiner are used interchangeably.

Requirements for both positions are established locally. A coroner’s duties, however, always include determining the cause, time, and manner of death.

The Arkansas County Coroner’s Procedures Manual states that, “The county coroner is charged with the responsibility of determining the cause of death for those deaths properly the responsibility of the coroner.” It adds, however, that if the medical examiner accepts the case, the coroner is relieved of that responsibility.

Friction can develop between police working a crime scene and a coroner, who is required to conduct “a good, thorough investigation” and file a report on the death within five days. As a result, Arkansas officials have interpreted the state’s law as providing that “law enforcement officials must give the county coroner access to all scenes of deaths…” because “… the coroner must satisfy himself as to whether the death was the result of a crime.”

That is a heavy responsibility. As noted in the “Coroner’s Creed,” published on the website of the Arkansas Coroner’s Association, “Death is the most important legal event for all human beings. … Both the deceased and the survivors may be greatly affected legally by how death occurred, what actually happened, why it occurred, and precisely when it occurred. … Only when these questions have been answered correctly can all the proper legal issues arising at death be effectively handled for the proper administration of justice.”

Consider: If a corner concludes, correctly or not, that someone slipped and fell, the death may never be investigated as a crime. If the coroner concludes that a death was an accident, insurance may be collected, even if the death was actually a suicide. A coroner has the power to determine whether a baby’s death in the crib was a tragic accident or a criminal act.

Yet, in Arkansas, the requirements for someone to hold the job of coroner are less than minimal. According to the Coroner’s Procedures Manual, “The coroner is elected for a two-year term of office with the requirements that he/she be a qualified elector and resident of the county.” That’s it. To be a county coroner in Arkansas, all a person must do is register to vote and win election.

By contrast, to drive a car in Arkansas, a person must pass a vision, written and driving test. Auctioneers must sit for a written exam and conduct a mock auction for an oral exam. To be licensed as a cosmetologist, a person must have completed the 10th grade and successfully completed a 1,500-hour course of instruction at an approved school of cosmetology.

Massage therapists must pass a background check by the state police and the FBI, in addition to completing 500 hours of massage therapy classes with test grades of at least 75 percent. And to be licensed as a mold inspector, a person will have to be certified as an industrial hygienist by the American Board of Industrial Hygiene; as a microbial consultant or indoor environmental consultant by the American Indoor Air Quality Council; or have successfully completed at least 20 hours of college-level microbiology.

It could be argued that, after existing for a thousand years, the coroner’s job has become obsolete. But in the poor state of Arkansas, at least, where a government job is a job, and an elected post is a job with status, discussion of eliminating coroners is a non-starter.

The alternative is to improve requirements for the job, in hope of improving its standards. A state representative attempted that in the legislative session this spring. His bill, titled “An Act to Modernize the Office of Coroner,” did not pass.[private]

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

Attorney General Dustin McDaniel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 “Bridge,” Misskelley repeated.

Davis said: “Service Road. Okay.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Execution at Salem

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

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

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

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

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

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

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

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

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

Gitchell announces arrests

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

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

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

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

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

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

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

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

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

WORSHIP OF EVIL DEBATED AS MOTIVE IN KILLINGS

YOUTHS COULD FACE THE DEATH PENALTY

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

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

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

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

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

Diver with knife

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

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

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

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

Jason Baldwin at 16

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

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

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

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

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

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

The "occult expert" testifies

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

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

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

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

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

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

HBO "Paradise Lost" poster

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

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

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

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

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

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

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

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

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

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

The Canadian anthology

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

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

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

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

Columnist Philip Martin

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

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

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

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

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

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

Echols at arraignment/Steve Jones/The Commercial Appeal

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

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

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

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

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

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

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

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

The sealed affidavit

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

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

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

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

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

Laser foresees three-week hearing in fall; sets time limits for requesting and testing DNA; wants briefs on juror misconduct by May 25

Circuit Judge David Laser

In a three-page order issued on Mar. 15, Arkansas Circuit Judge David Laser set deadlines for attorneys representing the West Memphis Three and the state attorney general’s office, in preparation for an evidentiary hearing that he said will be held “for up to three weeks (continuous)” between Oct. 1 and Dec. 15 of this year. Laser said he will announce the specific dates by Mar. 29.[private]The judge also said he will rule on “whether or not additional DNA or other forensic evidence is to be obtained” after attorneys for the defense have submitted motions requesting the testing and the state has had a chance to respond. All requests, responses and replies are to be submitted by early April.  

Laser ruled that any additional DNA or forensic testing he may order “is to be complete and reported back within 90 days” of his order granting the new tests. His ruling alerted state officials that, should he order the tests defense attorneys have sought, the “materials for testing are to be made available” within seven days of his order granting the tests.

In what was titled the “Court’s First Scheduling Order,” Laser told the attorneys that “the question of alleged juror misconduct will be resolved by the court upon adversarial briefs,” all of which are to be submitted to him by May 25. The order gave no indication of when the judge expects to rule on that issue.

Laser ordered that all requests for discovery, all evidence depositions, all motions and all responses are to be filed by Sept. 25. He noted that, “The evidentiary hearing will, by agreement of the parties, be held jointly and in Jonesboro.[/private]