Prison tense over contraband; five guards attacked at Misskelley’s unit; others ransack Echols’ cell

Gate to Varner complex. Photo by Brian Chilson, Arkansas Times

A source reports that guards ransacked Damien Echols’ cell on Death Row last weekend while the prison’s assistant warden had Echols in his office, where Echols was accused of participating in a video recording shot with a smuggled-in cell phone. The search followed by a week an incident at an adjoining unit during which inmates attacked five guard.

[private]When Echols was returned to his cell, he reportedly found his belongings strewn about, as though the cell had been searched. Nothing was reported taken.

The apparent search of Echols’ cell followed a reported “riot” the previous Saturday, Feb. 26, that resulted in four guards being injured. Dina Tyler, a spokesman for the Arkansas Department of Correction, said the incident at the sprawling Varner complex was sparked when 100 corrections officers conducted a middle-of-night search for contraband cell phones.

Tyler said that during the sweep a group of about 20 inmates “jumped” five guards. One guard escaped unharmed, but four were sent to a hospital. Tyler said four guards were released, but one will require surgery to repair broken bones around his eye.

Tensions are high at the complex, where administrators have not been able to control an influx of contraband cellphones, despite increased restrict ions. The large number of cell phones entering the prison has prompted concerns among prison officials that they face an organized smuggling ring.

In 2010, the Arkansas Department of Correction confiscated 277 cell phones inside the state’s prisons. Seventy-one percent of those phones, including two taken from guards, were found at the two-unit complex known as Varner. The complex, which has one warden, houses the Supermax Unit, where Death Row is located, and an adjoining, lower-security section, called the Varner Unit, where Jessie Misskelley resides.

The attack on the guards occurred at the Varner Unit. Tyler said one barracks was involved. Inside reports say two.

In January, when I reported on the growing problem of illicit cell phones at the Varner complex, Tyler told the Arkansas Times: “Cell phones are probably the biggest security threat we face. Inmates want cell phones so they can have conversations that aren’t recorded… Cases in point: Our last three escapes were orchestrated with cell phones.”

Despite such concern, cell phones continue to penetrate the prison. Two weeks ago, I visited Echols, Misskelley and another inmate at Varner. All three told me that twice within the past week, a large number of cell phones had been discovered at the prison, increasing officials’ alarm. The attack on the guards at the Varner Unit occurred four days later.

The department did not report the incident. It was acknowledged only after a source inside the prison leaked word to me about what he called the “riot.” When asked about the incident, Tyler told the Arkansas Times that it probably “had a lot to do” with the recent discovery of two large caches of cell phones on the prison grounds.

According to Tyler, on Feb. 17, guards found a bag containing 38 cell phones, tobacco, marijuana, rolling papers, and batteries. On Feb. 22 another bag was found that contained 28 cell phones. It is a Class B felony for an inmate to possess a cell phone and for anyone, employee or otherwise, to furnish a cell phone to an inmate.

Thus, it was a serious matter when, a week after the attack on the guards, Curtis Meinzer, the assistant warden who oversees the Supermax Unit, questioned Echols about having been filmed with a contraband cell phone. Echols reportedly denied the charge, but Meinzer claimed that the incriminating video had recently been posted on YouTube.

Since that confrontation, organizers of the website wm3.org have provided evidence that they shot the video in question five years ago, on April 7, 2006, and that it went onto YouTube immediately after.  Three of the site’s four organizers—Lisa Fancher, Grove Pashley and Burk Sauls—traveled from Los Angeles to visit Misskelley at the Varner Unit. At that time, they were also allowed to have a “contact visit” with Echols at the Supermax. Since then, contact visits have been banned for Death Row inmates, except for their immediate families.

Photos courtesy wm3.org

If Meinzer believed that the video in question was indeed recent, the introduction of a video recording device inside a visitation cell with Echols would represent a monumental breakdown of Supermax security. If, on the other hand, the call to Meinzer’s office was a ruse to give guards an opportunity to search his cell, that much, at least, was accomplished.

Though no contraband was discovered in Echols’ cell, there are at least three reasons why tensions at the Varner complex are not likely to abate.

  1. As Tyler noted, the prison is one of the few in the state where, due to the building’s construction, cell phone use is possible.
  2. The source of the recently discovered bags of contraband remains unknown.
  3. And the wardens at Varner are among the system’s toughest.

Warden Jimmy Banks oversees the two-unit complex. Prior to this assignment, he was warden at the ADC’s unit near the town of Calico Rock. Meinzer, a major at the time, was Banks’ chief of security there.

In March and April of 2006, the Calico Rock Unit suffered a series of riots in which five inmates were injured. One man lost an eye. Then, as now, the ADC reported nothing about the riots until news of them was leaked.

The Arkansas Democrat-Gazette filed a number of Freedom of Information requests relating to the riots, and prison policies that may have spawned them. Those requests were denied. But documents were leaked to the paper by staff.

One of those documents recorded a meeting of the warden’s management team on the day of the second riot. In it, Banks instructed his staff: “When discussing [the incident] with outside individuals or entities, it should be with a positive spin.”

The paper quoted a former inmate at the unit as saying: “It seems like the Correction Department just thinks prison isn’t punishment enough. They really like to make it hard on you. And anything they can do to show you who is boss, they will find a way to do it.”

In a lengthy article after the riots ended, reporter Charlie Frago quoted “one veteran correctional officer at Calico Rock” who said the prison had become “a powder keg.”

“Our job is to try to maintain as civil an environment as we possibly can,” the officer told Frago. “But that’s impossible at Calico Rock. I’ve heard the major [Meinzer] say that he will blow the whole prison up before giving up one inch to an inmate.” He added: “Warden Banks and Maj. Meinzer have this attitude of escalation … of flexing muscle.”

At a meeting of the Arkansas Board of Correction after the 2006 riots, the board’s members, who are appointed by the governor to oversee the prisons, gave no indication that they knew anything about the uprising at Calico Rock. The riots were not mentioned. To the contrary, in a packet prepared for board members with reports from each of the units, Banks said all was well. “Inmate morale remains good,” he wrote. “Inmates are looking forward to, and signing up for, the upcoming softball season to begin next month.”

The ADC rewarded that policy of secrecy, spin and denial. Despite heading the Arkansas prison that saw the worst riots in a decade or more, Banks and Meinzer were promoted. Banks now heads the entire Varner complex, and Meinzer, now an assistant warden, runs the Supermax.[/private]

A question of discretion

Last year, after the Arkansas Supreme Court ordered an evidentiary hearing in the case of the West Memphis Three, state Attorney General Dustin McDaniel responded that his office “intends to fulfill its constitutional responsibility to defend the jury verdicts in this case.”

At a panel discussion shortly after that, a professor of law seemed to agree that this is the AG’s role. However, I believe that, just as prosecuting attorneys Brent Davis and John Fogleman could have opted not to prosecute Jessie Misskelley based on his convoluted confession—or the other two without stronger evidence—McDaniel at any time could have stopped challenging efforts by the WM3 defense teams to bring the men’s cases back into court. Negotiation with the defense teams has been a possibility.

I asked Ken Swindle, an Arkansas attorney who supports retrying the three, if that view was correct. He examined the question in a lawyerly fashion, and I am posting what he wrote. Swindle’s article is more technical than most that appear here, but in light of all the money and effort the state has expended to preserve the WM3 convictions—and how much of both remain to be spent—I think the question he addresses warrants serious discussion.

 

Determining what’s in ‘the interests of the state’

By Ken Swindle

In my opinion, the Attorney General does have discretion in the position that s/he chooses to take in any case. The office of the attorney general is created by the Arkansas Constitution.  Art. 6, Sec. 22.  However, it is left to the Legislature to specifically set out the duties of the Attorney General.  It is true that the Attorney General is a law enforcement agency.  Ark. Code Ann. Sec. 25-16-713.  However, from any minor traffic stop all the way to prosecuting a capital punishment case, we all know that law enforcement agencies have, and use, discretion on how to prosecute cases, or whether to prosecute cases at all. That discretion is used by law enforcement agencies all across this State every single day.

We also know that the Attorney General is required to appear before the state Supreme Court and “maintain and defend the interests of the state in all matters before that tribunal.”  Ark. Code Ann. Sec. 25-16-704(a).  I think that it is significant that the Legislature directs the Attorney General to “maintain and defend the interests of the state”.  What are the interests of the state?  Answering that question necessarily requires the use of discretion. 

The Legislature could have stated that it is the responsibility of the Attorney General to adopt the position of the prosecutor on every appeal, or to maintain the criminal conviction of every criminal defendant on appeal.  The Legislature did not so choose.  Instead, the Legislature chose to direct the Attorney General to “maintain and defend the interests of the state.” 

Everyone should agree that the State has an interest in enforcing the jury verdicts of guilty defendants.  Everyone would also agree that the State has an interest (morally, legally, and financially) in not enforcing jury verdicts against defendants who are not, in fact, guilty, or against whom guilty verdicts were obtained by processes that violate our constitutional rights.  Adopting or advocating enforcement of jury verdicts against defendants who are not guilty or against whom guilty verdicts were obtained by processes that violate our constitutional rights endangers everyone in this State, and therefore, the State would have a very keen interest in correcting such a situation. Determining which side is mandated in order to “maintain and defend the interests of the state” requires discretion.

We also know that the Attorney General “shall be the attorney for all state officials, departments, institutions, and agencies.”  Ark. Code Ann. 25-16-702(a).  However, this only means that the state officials are clients of the Attorney General.  As all attorneys learn in their first semester of law school, an attorney is not bound to follow any directive of a client.  On the contrary, a lawyer “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”  Ark. R. P. C. 3.1. 

Similarly, the “signature of an attorney . . . [on a pleading] constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”  Ark. R. Civ. P. 11(a). 

Any position taken by any attorney in signing a pleading by a client takes some degree of discretion, and the Attorney General is no exception to the code of conduct required by Rule 11.  Indeed, as the Attorney for the State, s/he should be held to a higher standard, not a lower standard. 

The Arkansas Supreme Court has recognized that prosecutors do, in fact, have an even higher role in use of their discretion than other attorneys, as they have passed a special rule just for prosecutors. The Rule states:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this rule.

Compliance with this Rule requires discretion, and the Rule (with the necessary discretion to conform with the Rule) applies equally to the Attorney General. Ark. R. P. C. 3.8, Official Comment [6].  To drive home the point of the heightened standard of conduct to be applied to a prosecutor (and the Attorney General), the Official Comment emphasizes that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate.  This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”  Ark. R. P. C. 3.8, Official Comment [1].

Some argue that the Attorney General cannot use discretion, but struggle to find any law to support such a position. Others argue that they do not want the Attorney General to use discretion, but, instead only want the Attorney General to “enforce the law”, meaning to blindly adopt the position taken by the State prior to the appeal. 

The law cited above clearly shows that the Attorney General is not required to blindly adopt the position taken by the State prior to the appeal—and there is wisdom in allowing the Attorney General to use his/her discretion. If a prosecutor in one small corner of the State makes a blunder, that blunder should not be magnified by forcing the Attorney General to adopt the position as the position of the entire State.

 If the Attorney General were simply the rubber-stamp for any position previously taken by any prosecutor in any little jurisdiction of the State, there would be no point in electing an Attorney General at all.  Of course, the entire reason for electing an Attorney General is that s/he may use her/his discretion in maintaining the interests of the State.

Recognizing the room for discussion here, I invite any Arkansas attorney who disagrees with this article to submit an argument to the contrary—one supporting the idea that the attorney general has an obligation to defend a jury’s verdict. ~ML

IMO: Arkansas Supreme Court oversteps in attempt to squelch citizen concerns

An official letter warns me of punishment ‘by fine or jail’

[private]An office of the Arkansas Supreme Court has instructed me not to report what I reported here last week, in a piece titled “A matter of trust.” The court’s Office of Professional Conduct notified me by letter that a grievance I submitted concerning a former prosecuting attorney, the state attorney general and the senior assistant attorney general—and which I posted here—is by law to be kept “confidential.”

The Office acknowledged receiving my letter. Then, in a paragraph set in bold type and all in caps, it informed me that:

“ANYONE VIOLATING THIS CONFIDENTIALITY MAY BE FOUND TO BE IN CONTEMPT OF THE COURT AND PUNISHED BY FINE OR JAIL. SPECIFICALLY THIS MEANS YOU ARE PROHIBITED FROM RELEASING ANY INFORMATION OR DOCUMENTS ABOUT YOUR COMPLAINT FILED WITH THIS OFFICE TO ANYONE, INCLUDING THE NEWS MEDIA.”

Well, too bad. I am part of the news media, not that that matters at all. I wrote my complaint as an Arkansas citizen. I made my letter public and public it will remain. I find it stunning to be in the position of explaining to an office of the Arkansas Supreme Court that the U.S. Constitution applies even to Arkansans expressing concern about the quality of justice in their state.

The court cannot squelch the First Amendment free-speech rights of a citizen, even if that citizen wants to lodge an official complaint about the actions of a lawyer, an attorney general or a judge. That an office of this state’s supreme court would attempt to do so raises profound questions about its perception of the rights of citizens, the limits on its powers,  and its interest in such secrecy.

As its authority for demanding silence, the office cited “SECTION 6.A OF THE ‘ARKANSAS SUPREME COURT PROCEDURES REGULATING PROFESSIONAL CONDUCT OF ATTORNEYS AT LAW.’” I find at least three points about this interesting.

  1. I am not an attorney, as the office knows—or would know if it took the time to check. Therefore, I am not subject to this big, bold threat. But there is no mention anywhere in the letter that this warning does not apply to non-lawyers who write to inform the court of suspected improprieties in the legal profession.
  2. Even knowing that the threat does not apply to me, I can assure you that receiving such a letter has “a chilling effect.” I know of another instance when an ordinary citizen like me wrote to complain about the illicit actions of a judge, and received in response the same form letter I just got. She was frightened. The letter so alarmed her husband that he instructed her to drop the issue and say nothing more about the judge. Threats of “fine or jail” tend to have that effect, especially when they come on stationery that says “Supreme Court of Arkansas” at the top. (Approximately two years later, the supreme court did order the judge in question removed.)
  3. And then there’s the matter of “Section 6.A” itself, the part that actually does stifle attorneys. Must Arkansas lawyers surrender their rights to free speech if they want to hang onto their licenses? Attorneys are often the very people who witness most of what transpires within their own profession. They are expected to report improprieties to the Office of Professional Conduct for investigation. But when complaints from within the profession are investigated secretly within the profession, and when lawyers are not allowed to voice their concerns in public, how are citizens to make informed choices in a state where judges are elected?

The allegations of prosecutorial misconduct were first raised in court in Howard’s case almost four years ago. Did anyone before me report them to the Office of Professional Conduct? If so, what happened? If not, why not? The prosecutor in question, Tom Cooper, is now a circuit judge.

The question of oversight—or lack thereof—also pertains to former Judge David Burnett, who officiated at the trials and subsequent circuit court hearings of the WM3. Serious questions have been raised about his conduct in office. But again, we don’t know if anyone ever complained to the office that regulates judges, the state’s Judicial Discipline and Disability Commission, or what came of it if someone did. Last November, Burnett was elected to the Arkansas Senate.

The supreme court wants nothing to erode citizens’ confidence in their courts and the legal profession, in general. Its Rules of Professional Conduct instruct Arkansas lawyers that they owe a “solemn duty” to “inspire the confidence, respect and trust of clients and the public.” They are to to “strive to avoid not only professional impropriety, but also the appearance of impropriety.” As recently noted in a brief filed on behalf of Jessie Misskelley, one state court has ruled that, “The appearance of impartiality is as important, if not more so, than actual impartiality.”

The court fears that if lawyers hurl charges of misconduct at each other in public, ordinary folks might get the impression that there’s a hurly-burliness to the business and that all is not quite as august as the benches and black robes suggest.  But if that is the rationale behind letters such as I just received, our intelligence is being insulted. Confidence is not won by secrecy and threats.

To the contrary, when serious issues go unaddressed, as many believe has happened in both the West Memphis and Howard cases, the resulting appearance can be one of self-protective chumminess, indifference or isolation. That sense of—dare we say?—“cultishness” is what erodes confidence in the courts, and that is exactly what the Rules were intended to prevent.

The final paragraph of the two-page letter I received advised that my complaint would be assigned to a staff attorney for a preliminary evaluation of its merits, a process that could take “weeks or even months.” I am to be notified of the result. I will keep you posted.

Office of Prof Conduct and JD&DC letters[/private]

‘Evidence that points the finger’

Judge to consider whether ‘non-match’ DNA would ’cause a careful person to pause’

[private]In the pre-hearing brief that lawyers for Damien Echols filed last week, they centered their argument for why he and his accused accomplices, Jason Baldwin and Jessie Misskelley, Jr., deserve a new trial. It was all about “reasonable doubt.”

As succinctly explained by the Arkansas Supreme Court, the question that Circuit Judge David N. Laser will have to decide in the yet-to-be scheduled evidentiary hearing is “whether a new jury would find Echols guilty beyond a reasonable doubt.” They quoted an earlier state supreme court ruling that attempted to define what “beyond a reasonable doubt” meant.

According to that ruling, to join in such a verdict, a juror would have to “reach a subjective state of near certitude of the guilt of the accused.” Instructions given to Arkansas juries further explain what is meant by “near certitude.”

“Reasonable doubt,” they are told, “is not a mere possible or imaginary doubt. It is a doubt that arises from your consideration of the evidence and one that would cause a careful person to pause and hesitate in the graver transactions of life. A juror is satisfied beyond a reasonable doubt if, after an impartial consideration of all the evidence, he has an abiding conviction of the truth of the charge.”

Two Arkansas juries decided in 1994 that the West Memphis Three were, indeed, guilty beyond a reasonable doubt, and the state’s attorney general’s office has supported those verdicts ever since. Testimony since the trials that most of the victims’ visible injuries were inflicted, post-mortem, by animals and that jury at the Echols/Baldwin trial considered information that was barred from the trial has not altered the AG’s stance.

The state supreme court’s recent observation that DNA from a hair discovered in the bindings of victim Michael Moore was “consistent with Terry Hobbs,” the stepfather of victim Stevie Branch, did not sway the AG, either. Nor did what the high court called the “undisputed” fact that “results conclusively excluded Echols, Baldwin and Misskelley as the source of the DNA evidence tested.”

To the contrary, Attorney General Dustin McDaniel maintains that the testing results are “inconclusive” because they “do not show a reasonable probability” that Echols, Baldwin and Misskelley did not commit the murders. That thorny double negative is what attorneys for the WM3 will attack at the evidentiary hearing. And they have a state prosecutor’s own words to help them do that.

As Echols’ attorney Steven L. Braga noted in the brief filed last week, evidence that points to someone else while excluding the accused is called “non-match” DNA. Braga argued that, “courts have recognized the ‘long shadow’ that such non-match DNA evidence casts over the integrity of convictions obtained without its consideration,” and some courts have ordered new trials based on such evidence.

“There is no reason for any different result here,” Braga wrote, especially when the lead prosecutor in the Echols [and Baldwin] trial emphasized to the jury in his closing argument  that there was no such evidence pointing to anyone else as the potential perpetrator of these crimes.”

Braga then quoted what Prosecuting Attorney Brent Davis told the jury in his closing argument at the Echols/Baldwin trial:

“There’s no evidence out there that points to anybody else. There’s no evidence that points the finger—if someone else did it, and that’s their argument, you know. ‘There’s just not a whole lot of evidence out there that connects to our clients.’ But if someone else had committed the crime, then you’d see fibers out there that didn’t match, didn’t come back to one of these people. You’d see evidence out there that didn’t match either one of these. You’d see evidence that didn’t connect. And you don’t have that. There’s just a scarcity of evidence.”

In a footnote, Braga mentioned what he termed “other post-trial ‘non-match’ evidence.” According to his brief:

“Well after the trial, Tony Anderson, the fingerprint expert on the crime scene when the victims’ bodies were discovered, confirmed” in an interview with the West Memphis police, “that one print taken at the crime scene was within five to 10 feet of where the first body was located and that it was located at an angle which made it clear that it had been left there by someone who had been in the water. Anderson compared this print to Echols, Baldwin and Misskelley, as well as to the victims and every police officer at the scene and found no match.”

Recalling Davis’ statement to the jury that, if someone else had committed the murders, they’d “see evidence that didn’t connect” to the defendants, Braga wrote: “Well, now there is such evidence from the crime scene pointing toward someone else, and away from Echols, and its presence would be just as important for a new jury to consider as its absence was in the prosecutor’s opinion at Echols’ original trial.”

Attorneys for all three men in prison have asked Judge Laser to order further DNA testing and said they would pay for it. Attorneys for the state have asked the judge not to allow it.

That stance by McDaniel’s office raises issues that, though vague at the moment, could become problematic:

  1. McDaniel has acknowledged that he personally ordered additional DNA testing beyond what were agreed upon by the attorneys for all sides.
  2. Attorneys for the men in prison appear to have been unaware of the tests the AG ordered until after their completion.
  3. Even the complete inventory of items the state collected and holds as evidence—which was to have been revealed during the pre-testing negotiations—now appears less than certain, at least the defense. Another footnote reported:

“In addition to the Arkansas State Crime Laboratory, at various times, certain forensic evidence in this case also appears to have been in the possession of—and could still be in the possession of—the West Memphis Police Department, LabCorp (formerly known as Genetic Design), the Alabama Department of Forensic Sciences, the Southwestern Institute of Forensic Sciences, the University of North Texas Health Science Center and—possibly—the FBI.”[/private]

New appeal blasts Burnett’s ‘bias’ in Misskelley case due to judge’s ‘politicking’ and professional censure of a witness

Attorneys list 11 points in appeal to state supreme court for a new Rule 37 hearing.

[private]Jeff Rosenzweig, an attorney for Jessie Misskelley, Jr., filed an appeal on Friday with the Arkansas Supreme Court in which he argued that Judge David Burnett violated the U.S. Constitution, the Arkansas Constitution and the Arkansas Code of Judicial Conduct by continuing to rule on Misskelley’s case, even though Burnett was an announced candidate for a political office and had filed a professional complaint against one of Misskelley’s witnesses.  

“For this court to hold that a judge has no requirement to recuse when he or she has declared himself (or herself) to be a candidate for a partisan office would be an awful precedent,” Rosenzweig wrote. “This would repoliticize the judicial system in a way that the Code of Judicial Conduct and Amendment 80 [to the state constitution] have striven to avoid.”

The appeal asks the state’s high court to order a new Rule 37 hearing for Misskelley because Burnett’s announced intention to run for a seat in the Arkansas Senate, which he later won, was “contrary to due process guarantees” of the nation’s 14th Amendment as well as “the spirit, if not the letter” of Arkansas’s Amendment 80, which abolished partisan judicial elections.

“Judge Burnett had the right to politick and run for partisan legislative office;” the appeal notes, “what he did not have was the right to sit on this case, over the objections of a party, while politicking and running.” Rosenzweig specifically asked the court to clarify “the impact of Amendment 80’s ban on partisan judicial activity” as it relates to judicial recusal.

He also argued that Burnett should have recused from Misskelley’s case because the judge had filed a complaint against Dan Stidham, who had represented Misskelley at trial. Stidham was later elected a circuit judge and when Misskelley filed his Rule 37 Petition, alleging that his trial lawyer had been ineffective, Stidham testified that he agreed with that assessment.

It is now known, however, that at some point, Burnett filed a judicial misconduct complaint against Stidham with the state’s Judicial Discipline and Disability Commission. Because such complaints are not open to the public, lawyers for Misskelley filed a motion to obtain a copy, but Burnett denied that motion.

The judicial discipline commission dismissed Burnett’s complaint, but, according to the recent appeal, the commission’s dismissal “indicates that the thrust of Judge Burnett’s complaint focused on Stidham’s July 2003 comments to the press regarding the 1993-94 Misskelley trial,” specifically an article in which “Stidham maintained his client’s innocence and reiterated a number of facts from the trial that were a matter of public record.”

The current appeal notes that “Judge Burnett’s unsubstantiated complaint against Stidham creates the appearance of bias such that a reasonable person might question his ability to impartially hear and weigh Stidham’s testimony.” It continued: “The judicial proceedings in this case are particularly susceptible to creating an appearance of impropriety given the public’s intense exposure to the case.”

In addition, the appeal argues, Burnett was Stidham’s “immediate supervisor” in the district where the two judges practice. Rosenzweig wrote that, although Burnett also should have disqualified himself from Misskelley’s case, “because of the supervisory relationship” between himself and Stidham, Burnett instead heard the petition and issued an opinion that “rejected Stidham’s confessions of error essentially in toto and accused him of dissembling.”

Rosenzweig cited several instances when attorneys for Misskelley asked Burnett to recuse, all of which were denied. Attached to two of the motions were newspaper articles—an interview in the Arkansas Democrat-Gazette, an interview in the Jonesboro Sun, and a column by John Brummett—in which Burnett was quoted discussing the West Memphis case, criticizing media coverage of it, and stating that he was “definitely” running for the Senate.

The appeal notes that the comments by Judge Burnett “evinced a bias and/or the appearance of bias, as well as unseemliness when defense counsel were under Judge Burnett’s gag order.”

Included in the appeal is part of the transcript from a hearing before Burnett at which one of the newspaper articles mentioning Burnett’s candidacy was discussed. Rosenzweig asked Burnett to recuse. When Burnett asked for the state’s position, David Raupp, of the attorney general’s office, said, “We chose recusal to rest on the conscience of the court.”

Burnett then observed: “I guess you’ve got a legal argument, but I certainly don’t feel any compulsion to recuse the case. I mean, frankly, I’d love to drop it in somebody’s lap, but I feel like it’s my burden to bear. I’m the one that tried the case originally; I’m the one that has the familiarity with a case that’s been going on for 15 or 16 years, and I think it’s appropriate that I finish it.”

When Rosenzweig again stated his concerns relating to Misskelley’s “constitutional rights of due process” due to the judge’s candidacy “for a partisan political office,” Burnett asked: “And what would that have to do with it?”

Rosenzweig replied: “Because, because, you are, as any candidate would be who is wanting to appeal to the votes of at least the majority of his electorate, which is a totally different motivation from attempting to apply the law. And that’s why certain matters are regarded as implied or structural bias … just as in the same way you can’t sit on your first cousin’s case, because even though you may not have talked to your first cousin for a hundred years, you can’t do it because the law says there are certain structures (sic). And it’s our position this would be one of those strictures.”

Burnett responded: Well, I don’t have any biases, and your motion is denied. I’m going to hear it through to the end.”  

Misskelley’s latest appeal raises 10 other points for the supreme court to consider. One is that Stidham, his trial lawyer, failed to “properly raise and preserve” Arkansas’s rule that “when a law enforcement officer requests someone to accompany him to the police station, he shall make it clear that there is no legal obligation to comply with such a request.” Had Stidham properly raised Rule 2.3, as it is known, the action, according to the appeal, “would have resulted in automatic suppression of Misskelley’s statements to police.”

Other points include criticisms that Stidham: “failed to properly handle the false confession issue;” failed to “utilize a forensic pathologist;” failed to properly challenge the fiber, serology and DNA evidence; failed “to object to improper argument and/or prosecutorial misconduct during closing argument;” failed to investigate; and “failed to impeach Victoria Hutcheson.”

The full appeal submitted Friday (RULE 37 FINAL) is hundreds of pages long.The 50-page key portion is here: Misskelley Argument.[/private]

‘Guideposts’ and a ‘razor thin’ case—Part 1

Lawyers for the WM3 outline expectations for the evidentiary hearing; the state mainly resists.

[private]Attorneys for the West Memphis Three described the case against their clients as “razor thin” in 60-plus pages of briefs that were submitted to Arkansas Circuit Judge David N. Laser’s court yesterday. The filings outlined what one called an “entire new mix of evidence” in the case, any part of which, the attorneys said, should suffice to warrant new trials for Damien Echols, Jason Baldwin and Jessie Misskelley, Jr.

The Arkansas attorney general’s office filed six pages of what it called “guideposts” on how Laser should conduct the evidentiary hearing ordered last September by the Arkansas Supreme Court. The only point on which attorneys for all sides agreed was that the hearing for the three men should be held jointly. At a scheduling conference in January, Laser said this was his preference as well.

Attorney General Dustin McDaniel’s office recommended a joint hearing for “judicial economy and convenience to the parties.” It noted that, “given the scope of possible evidence to be considered, hearing dates may need to be scheduled starting this fall and will not conclude before well into the next calendar year.”

The brief by Echols bore a sharper sense of urgency. It sought one continuous hearing that they estimated could last three weeks. They said they would be ready in October—one of the months Laser said he had open. If necessary, they wrote, the issue of juror misconduct could be separated from the others “for initial handling.”

Lawyers for Baldwin and Misskelley, who filed a combined brief, said they hoped to be ready to proceed “with some hearings” by October. They estimated that the hearing’s length “could range from a few weeks” to “much longer” and that “components of the case … could take lengthy periods of time,” depending on how the judge conducts it.

While lawyers for the men in prison said they were preparing to present their case in person, McDaniel’s staff suggested that Laser allow the sides to argue three key points through rounds of written motions and responses “prior to the onset of the hearing dates.” Specifically, state attorneys asked the judge to order “adversarial briefings” with “cut-off dates” on:

  1. whether the court should permit additional DNA testing,
  2. what evidence the court should consider “relevant” to the hearing,
  3. and how it should “receive” evidence in the hearing—whether orally, through transcripts of previous proceedings, or in other ways.

In its brief yesterday, state attorneys were adamant about only the first of those three. On the issue of possible new DNA evidence, they wrote that “additional testing should not be permitted to any petitioner.” They stressed that the requests for such testing made by all three “should be denied.”

It is clear from the briefs that a battle over forensic evidence lays ahead. It is also clear that Arkansas officials have been blocking the prisoners’ efforts to obtain state information since long before the evidentiary hearing was ordered.

One exhibit submitted with Echols’ brief is a letter dated April 21, 2010, from Echols’ attorney Stephen L. Braga to Dr. Charles Kokes, Arkansas’s chief medical examiner, seeking “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’s Office’s work on the autopsies of the victims in this case.”

A second letter from Braga to Kokes is dated Jan. 5. 2011. Noting that, “To date, I have not received any response from you,” it asks whether the medical examiner will provide access to the requested materials “voluntarily or not.”

Braga writes in the brief for Echols that, “It cannot be argued that the requested records are somehow ‘confidential and privileged’” because Arkansas law specifically states with regard to crime lab records that: “The laboratory shall disclose to a defendant or his or her attorney all evidence in the defendant’s case.”

Braga told the court that a Freedom of Information request filed on behalf of Echols’ wife, Lorri Davis, was also refused. Davis asked for “records identifying the number and dates of autopsies performed by Dr. Frank Peretti for the Arkansas State Medical Examiner’s Office” during the years 1992, 1993, and 1994. Peretti performed the autopsies of the victims in the West Memphis case. Braga asked the court to order Kokes to provide prompt access to the requested records.

Braga claims that another letter—this to Assistant Attorney General David R. Raupp—has been similarly ignored. This letter, dated Jan. 20, 2011, requested a conference call to discuss testing of additional evidence. In particular, Braga sought Raupp’s “cooperative immediate agreement” to allow testing of two ounces of “green vegetable-like material” that was found “partially digested” in the body of Stevie Branch.

Lawyers for Echols want tests “to determine exactly what the … material is.” However, Braga wrote, Raupp “has not responded” to that request. 

Next: ‘Certain forensic evidence’[/private]

IMO: It’s a matter of trust

Arkansas’s legal profession is allowed to be self-governing. But who’s minding the store?

[private]If the West Memphis Three are ever freed from prison, the Arkansas judiciary will have to face serious questions as to how such a travesty was allowed to happen in the first place and how it was allowed to continue for so long. Almost since the men’s trials in 1994, concerns have been raised regarding actions by the police, prosecutors and judges in their case. Until late last year, those concerns were routinely dismissed.

As in many states, the legal profession in Arkansas is supposed to be self-governing. This is a tremendous privilege. It also places a grave responsibility on members of the bar, not only to practice law with integrity, but to call attention to those instances when they observe other attorneys or judges who are not a credit to their profession.

As the state supreme court explains: “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.”

Thus, the Arkansas Supreme Court manages two offices charged with overseeing the conduct of its lawyers and judges.  If the West Memphis Three are eventually freed, one of the questions that will have to be answered is: what were those offices doing while the wheels of Arkansas justice ground the lives of three men to pieces? And already at hand is this, closely related question: how many cases that didn’t attract publicity have been similarly mishandled?

The Arkansas Judicial Discipline and Disability Commission is supposed to watch over judges, holding them to the standards outlined in Arkansas’s Code of Judicial Conduct. That code’s preamble explains that “inherent” in all its rules “are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.”

That need for “confidence in the legal system” also underpins Arkansas’s Rules of Professional Conduct for attorneys. The state supreme court’s Committee on Professional Conduct is charged with seeing that Arkansas attorneys meet standards of “honesty, trustworthiness and fitness.”

Two weeks ago, I wrote a cover story in the Arkansas Times titled “Forensic façade.” It tells the story of Tim Howard, a man on Arkansas’s Death Row whom Damien Echols—and I—believe is innocent. Howard is seeking an evidentiary hearing in his case, similar to what the state supreme court ordered last September for the West Memphis Three.

Arkansas’s attorney general, Dustin McDaniel, however, is strenuously opposing that review, as he did the one sought by the West Memphis Three. But there’s an interesting twist in Howard’s case. It appears that the prosecuting attorney withheld important DNA evidence.

David Raupp, the assistant attorney general who argued against Echols at his supreme court hearing last August, also wrote the AG’s response to Howard’s petition to the court, which was based in part on the discovery that evidence was withheld. In that response, Raupp told the supreme court that the attorney general’s office was “assuming without conceding” that Howard was “correct” on his “withheld evidence claims.” Nevertheless, Raupp argued that the supreme court should deny Howard’s petition for a new hearing because he had not filed it soon enough and his lawyers had not demonstrated that Howard’s conviction and death sentence “would have been prevented, had the information been disclosed at trial.”

The Arkansas Supreme Court has not handed down its ruling in Howard’s case. But I am troubled  that, although information about the “withheld evidence” has been presented to courts for at least three years, neither of the judiciary’s self-governing offices seems to have found any problem with a prosecutor withholding evidence—even in a case that resulted in a sentence of death.  To the contrary, the prosecutor is now a judge, McDaniel was recently re-elected, and Raupp is preparing to represent the attorney general in the yet-to-be scheduled hearing for the West Memphis Three.

Since my article about Howard appeared, I have been thinking about what could have happened in his case and in the West Memphis case that would have supported—rather than diminished—“confidence in the legal system.” That process led me to the two judicial committees charged with governing the state’s legal profession. Today I sent a letter to each.

Both bodies work in secret. I may never be told what action, if any, they take in response to my letters, which contained essentially the same information. I am publishing one of them here to provide a bit of insight into how the legal system is supposed to operate—and into a culture that, when things run afoul, often appears not to notice. If either letter produces a response, I will let you know.

My letter:

February 16, 2010

Mr. Stark Ligon

Office on Professional Conduct

625 Marshall Street

Justice Building, Room 110

Little Rock, Arkansas 72201-1022

Dear Mr. Ligon:

This is a formal complaint to the Arkansas Supreme Court’s Committee on Professional Conduct. As an Arkansas citizen I ask the Committee to investigate breaches of the state’s Rules of Professional Conduct by former Prosecuting Attorney Tom Cooper of Little River County, who is now a circuit judge, and by Arkansas Attorney General Dustin McDaniel and David R. Raupp of the attorney general’s office.

In October 2010, attorneys for the United States Public Defender’s Office filed a petition with the Arkansas Supreme Court on behalf of Timothy Lamont Howard, a prisoner on Arkansas’s Death Row. The petition claims that as Mr. Howard was preparing for trial, state officials “withheld” important DNA evidence from his defense attorney.

At Mr. Howard’s 1999 trial, Mr. Cooper relied on reports from Bode Technology Group and on testimony by the laboratory’s analyst that purportedly linked DNA from Mr. Howard to an incriminating pair of boots. Mr. Howard’s attorneys were handicapped in challenging the Bode testimony because they were not provided the lab’s complete reports. This failure occurred despite a pretrial court order, issued in response to a motion by the defense, that all evidence available to the state be provided to Mr. Howard’s attorneys.

I write to you in the belief that the prosecuting attorney not only defied a court order, but violated the “due process” clause of the U.S. Constitution, as articulated in Brady v. Maryland. It further appears that at least two state officials, having knowledge of these violations, have failed to report them.

In 2006, Howard’s federal public defenders discovered that reports from Bode were withheld. Specifically, they found that, although the analyst from Bode testified unequivocally that DNA from Howard “matched” DNA found on the boots, the testing had been seriously flawed. Handwritten notes from the technician who conducted the tests and who testified at Howard’s trial included the following admissions:

  1. “Cap had flipped open while spinning, resulting in sample loss.”
  2. “Note: Lane data for 2098-064 from this gel was inadvertently erased from the sequencer hard drive. Therefore, it was not able to be analyzed. Samples were re-run on 4-29-99.”
  3. “As evidenced by the right ladder, the right side of the gel did not run properly. Therefore, PS IV samples will be re-run.”
  4. “All negative controls gave a positive result. An experiment will be done to find the source of the problems.”
  5. “All negatives are clean, indicating the previous results were most likely a result of a random, spurious contaminants (sic).”

Mr. Raupp and the Arkansas Attorney General do not contest that these notes were withheld from the defense. To the contrary, in response to Mr. Howard’s current petition, Mr. Raupp told the supreme court that the attorney general’s office was “assuming without conceding that [Mr. Howard] is correct” on his “withheld evidence claims.” But, rather than investigate those claims—or call them to your Committee’s attention, Mr. Raupp and the Attorney General have argued that the claims were neither “meritorious” nor timely filed.[/private]

Those matters of merit and timing now rest before the court. However they are decided, I ask that the Committee on Professional Conduct examine whether its Rules allow a prosecuting attorney to withhold evidence in any case, but especially one in which the judge has ordered full disclosure. I also ask that the Committee review the conduct of Mr. McDaniel and Mr. Raupp, in light of the provisions that:

  1. “Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.”
  2. “A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”

I am copying this letter to the supreme court’s Judicial Discipline and Disability Commission with a request that it too consider Judge Cooper’s conduct, both in the prosecution of Mr. Howard and in the years since. To my knowledge, Judge Cooper has never addressed the fact that evidence he called “monumental” at trial was not fully released to Mr. Howard’s defense. Unless I am mistaken, that neglect—both at and after the trial—raises what the Code of Judicial Conduct calls “a substantial question as to the judge’s fitness for office.”

Respectfully,

Mara Leveritt[/private]

Surviving by magick—Part 2

Damien Echols recalls his ‘horrific’ introduction to prison as having been ‘almost a blessing’

[private]Late on a Saturday afternoon, in March 1994, Damien Echols stood in a courtroom and heard himself sentenced to death. Within hours, he was delivered, cuffed and shackled, to an Arkansas prison, there to be held in “safe-keeping” until his appeals were over and his execution could be carried out. He was given a white prison uniform and the number SK—(for safe-keeping)—931.

He was 19 years old. And he was reviled—the convicted murderer, and presumed torturer, of three eight-year-old boys.

Today, Echols can still vividly describe his introduction to prison. But “safe” is not a word he uses. He recalls being in the infirmary, where all new prisoners are sent, and where an exam revealed that he was more than just frightened. His heart was skipping beats. He recalls “five or six guards standing around,” smirking and asking each other, “Did you welcome him already?”

“They literally planned on killing me,” Echols says. After he was moved to Death Row, he recalls getting beatings that left him with “nerve damage” and “pissing blood for a few days.” He recalls a guard holding a knife to his throat, and he recalls being thrown into “the hole”—an isolation cell—where he says he was “starved” and might have died had not a few inmate porters secretly slipped him food. This went on for a week, Echols says. “Then, before they let me out, I had to sign an affidavit saying they hadn’t hurt me or denied me medical care.”

Another time, a guard approached him with “a rolled-up, cut-up Coke can,” Echols says. “He asked me, ‘What do you think will happen if I cut myself with this?’ I said, ‘I don’t know. I guess you’ll bleed.” And he said, ‘Yeah. But I didn’t do it. You did.’” Echols took the exchange to mean that even lethal retaliation for such an “attack” would have been deemed justified.

Now, almost 17 years later, Echols sees that initial ordeal, during which he almost lost his teeth, as part of the foundation for the man he’s become in prison. “It was horrific,” he says, “but in a way, it was almost a blessing. I had to seek out ways to help me deal with what was happening to me. I needed ways to help me heal from the trauma, the stress and the abuse I’ve been through.”

Alone and injured, Echols turned to what he knew: the kindling bits of energy work that he’d discovered before his sudden infamy, the introduction to “magick” he’d gleaned from a book called “The Golden Dawn.” Echols says he found the book by Israel Regardie when he was about 12 and that he still cherishes it as the book that first exposed him to “alchemy,” “the God work,” “the principle of raising vibration”—the way of living that some adherents call “the Path of Light.”

The Hermetic Order of the Golden Dawn was established in the late 1880s to explore the evolution of human consciousness through a structured experience of magic. This interest in “occultism” or “the occult sciences,” as it was called, attracted many prominent thinkers and artists of the time. The poet W.B. Yeats was among them. So, as Echols dryly notes, was “the infamous Aleister Crowley.”

Almost a century later, Crowley, an Englishman, would figure in the 1994 trials of Echols, Jason Baldwin and Jessie Misskelley, Jr., when prosecutors in West Memphis, Arkansas charged that the teenagers had murdered the children as part of an “occult ritual.” At one point, when Echols was on the stand, Prosecuting Attorney Brent Davis showed Echols a sheet of paper on which Echols had written several names, including that of Crowley.

When Davis asked who Crowley was, Echols said that he was a well-known writer on witchcraft. When Davis asked if Crowley was not also “a noted author in the field of satanic worship” and a writer who “believes in human sacrifice,” Echols did not disagree. Instead, he volunteered that he had never read any of Crowley’s books, and added: “I would have read them if I had saw them.”

Regardie’s book “The Golden Dawn” appeared in 1937, after the secret Order of the Golden Dawn had been largely disbanded. Today it is regarded as “an encyclopedia of practical occultism.” Regardie believed the secret order’s symbols, ceremonies and teaching served to complement the work of academic psychology, and particularly that of Carl Jung.

An introduction to the current fifth edition offers this observation: “Thinking through and fully understanding the usage of such terms as ‘occult’ or ‘magic’ apart from their historically negative or even lurid connotations is fundamental. The association of these words with ‘black’ magic or Satanism has uniformly been the result of hysteria, narcissistic theatrics, capitalization by the media, or psychosis.

“To truly explore the ‘dark arts’ (or in other words, apprehend the archetype of the shadow) through systematic ritual work demands not only extraordinary knowledge, discipline and training, but a great deal of plain hard work toward which would-be dabblers never seem inclined. For any of us to integrate our ‘darker’ side is a lifelong and necessary process, but a process which yields toward a more fullness of Self.” (Italics are from the text.)

Echols believes that, lacking any physical evidence connecting him to the murders, prosecutors used his spiritual interests—which were not the region’s norm—to win his conviction and death sentence. Ironically, he now says that without those interests and their corresponding practices, he might already be dead, and he certainly would have lost his teeth. “Everything had been taken away from me,” he says. “The only way I could survive and learn to heal myself was by traveling inside—journeying inside—and I absolutely love it.”

As a prisoner, Echols has had abundant opportunity to explore society’s “darker” or “shadow” side. He has used systematic ritual work based on the writing of Regardie—and by now, many others—to heal, to cope and to learn. For example, he says, “My son is almost the same age now as I was when I was locked up. If I thought about that all the time, I’d have gone stark raving mad.” Instead, the monkish life of solitary confinement to which he was condemned has allowed him, “in a way, time to focus on this energy work.”

Echols expects to be released, and when he is, he says, the magick he began to study long before being sent to prison will remain at the center of his life. “For the most part,” he says, “the more this case moves to the forefront for a lot of other people, the more it moves to the background for me.

“It’s so powerful. I get so excited. It’s one of those things that makes you want to do a flip, because you’re so glad you’ve got another day.”

Next—Turning lead into gold[/private]

What ‘items that were not requested’ did the attorney general have DNA tested?

AG Dustin McDaniel acknowledged–but did not explain–state’s additional DNA testing

[private]In 1993, after Damien Echols, Jason Baldwin and Jessie Misskelley, Jr., were charged with a triple-murder in West Memphis, Prosecuting Attorney John Fogleman took the unusual step of pursuing his own investigation. Prosecutors normally rely on results of the police investigation. For months after the three teenagers were arrested, however, Fogleman personally conducted interviews and even had police divers search a local lake. That produced a knife that Fogleman presented as evidence.

Now it appears that Arkansas Attorney General Dustin McDaniel has conducted a similarly atypical investigation. His office is not discussing the case, but last year, during McDaniel’s campaign for re-election, he was asked about the DNA tests that were conducted almost a decade after the men’s trials.

McDaniel responded:

“Well, there have been a number of circumstances under which we have addressed additional evidence. There have been requests by the defense, there have been matters that were taken up in front of the court, and there were items that we submitted on our own.

“And so, I wouldn’t want to incorrectly identify which items fell under which purview, but we definitely on our own—because I am the one that gave the instruction—[had] some items that were not requested to be tested otherwise sent off for DNA testing. And then we voluntarily submitted the results. … And that only happened in the last few months.”

Getting the original tests conducted had been a long and complex process. It involved securing lists of all the known physical evidence, establishing which items on those lists attorneys for all sides wanted tested, determining which laboratory would conduct the tests, securing agreement from all parties, and then—for the defendants—raising money to pay for the tests. That took years—from approximately 2000 to 2005.

Finally, Judge David Burnett ordered the agreed-upon tests. The reports from Bode Technology Group are here.

Bode’s conclusions, including its final report in 2007, were that no DNA found on or near any of the three victims came from any of the convicted men. Those results are among the evidence that will be reviewed at an evidentiary hearing that the Arkansas Supreme Court ordered last September.

In October, a few weeks after the supreme court ruling, McDaniel himself obliquely broke the news that he had ordered additional testing within “the last few months.” He made the remark during a candidates’ forum hosted by the Arkansas Educational Television Network.

In the months since, McDaniel’s extemporaneous revelation has given rise to a number of questions:

—What were the “items” that he personally ordered tested?

—Does his statement that the items had not been “otherwise” requested mean that defense attorneys for the West Memphis Three were not consulted?

—Was any evidence destroyed or damaged in the tests?

—When and where were the tests conducted, and when did the attorney general “voluntarily” inform the defense teams?

—Finally, and not incidentally, what were the results?

Last month, at a conference held to schedule the evidentiary hearing, attorneys for the men in prison reported that they still need to have some hair and fiber evidence tested. In an apparent reference to McDaniel’s recently acknowledged tests, an attorney for Jason Baldwin complained to Judge David Laser that, “The state did some testing of its own.”

The attorney asked that no party be allowed to undertake potentially destructive testing of evidence without mutual knowledge and agreement. Laser instructed that all future testing would “be above the table.”

During that conference, Laser also placed a gag order on all attorneys in the case, so they are barred from revealing what they may now know about McDaniel’s tests. And there is another block to disclosure, as well. The Arkansas’s Freedom of Information Act exempts the “unpublished memoranda, working papers and correspondence” of the attorney general.[/private]

Surviving by magick—Part 1

Damien Echols breaks his long silence on the occult

[private]Later this year, when a court in Jonesboro holds the evidentiary hearing ordered last September by the Arkansas Supreme Court, Damien Echols, Jason Baldwin and Jessie Misskelley, Jr., will have been behind bars for 18 years. Echols has spent almost all of that time on Arkansas’s Death Row. At that still-unscheduled hearing, everything that happened at the men’s 1994 trials will be up for review. Echols thinks the prosecutions boiled down to this:

 “If you took everything else out and just kept the way I dressed, the books I read, my hair, and the music we listened to—that was enough to convict us,” he said in a November 2010 interview. “All they  needed was the scary picture.”

Indeed, it is fair to question whether Echols and Baldwin, in particular, would have been convicted of the triple homicide if prosecuting attorneys had not evoked “the occult” as the sinister background influence that served as their motive to kill. At first, in the prosecutors’ opening statements, they did not suggest any motive. But as the Echols-Baldwin trial was entering its third week, Prosecuting Attorney John Fogleman suddenly announced that he was going to call to the stand “an expert in cult-related crimes.”

When defense attorneys objected, Judge David Burnett called a conference in his chambers. There, West Memphis Police Detective Bryn Ridge testified that he had believed from the start that the murders were “cult-related.” As reasons he cited “the fact that there was overkill—more injuries to the boys’ bodies than what was needed to kill them,” the “damage to the left side of one of the boys’ faces,” and the facts that the victims were eight years old and male. To Ridge, each factor was “a sign of the occult.”

At one point, Judge David Burnett asked two of the attorneys: “Can either one of you define ‘occult’ for me.” The judge then murmured, “It sounds like something bad, but I’m not sure what it is.”

Fogleman told the judge: “It is my understanding that part of the involvement deals with obsession with heavy metal music, change in forms of dress, wearing all black.”

Back in the courtroom after that meeting, the prosecutors called to the stand an Ohio man, Dale Griffis, who billed himself as an “expert in the occult.” Although Griffis claimed to have a Ph.D., that claim was quickly shown to be bogus. Nevertheless, Burnett certified Griffis as an expert witness and allowed him to testify at length about aspects of the murders that he said “bore trappings of the occult.”

Burnett repeated his earlier question to Griffis: “What is the difference in occult or cult?”

Griffis replied: “An occult group is a group that is involved in some form of esoteric science, and they have been around prior to Christianity.” He then described cults as “those who follow a particular belief style under a charismatic leader, and, in and among their belief style, they do break the law.”

From then on, the prosecutors sought to combine Griffis’ testimony about the murders—that there were three victims, there was a full moon on the night the boys disappeared, and their bodies were found in water—with testimony that Echols wore black and read books about Wicca, while Baldwin, as Fogleman put it, “had 15 black T-shirts with the heavy-metal thing.” Years later, Fogleman would explain that Griffis’s testimony about “the occult” was relevant at the trial “to show the mind-set, particularly of Damien.”

Though prosecutors sought the death penalty for both teenagers, jurors declined it for Baldwin, sentencing him instead to life in prison. But, having heard Echols portrayed as the cult’s “charismatic leader,” they did sentence him to death.

Looking back, Echols sees his conviction as hinging on the unknown but frightening notion that he, especially, was somehow caught up in the vague but frightening “occult.” In fact, by the definition that Griffis offered—that the occult is “some form of esoteric science” that has “been around [since] prior to Christianity”—Echols was, and still is today.

At his trial, prosecutors questioned Echols about his interest in Wicca, the neo-pagan religion that is often referred to as Witchcraft. Echols says he “fell in love” with Wicca when he was young because it was “more easily accessible to a teenager” than the similar but more obscure course of study he has since pursued.

Echols now says that, though he could not have expressed it when he was tried at 18, he was pursuing esotericism—a combination of spiritual traditions that include alchemy, mysticism, astrology, tarot, Rosicrucianism, and ritual magic or “magick.” “It’s the thing I have always loved,” he says, “ever since I was 12 years old.” 

Books and some people he has met while in prison have allowed him to pursue that passion further. Now Echols says that magick—the occultish interest that helped to convict him—is what has allowed him to survive on Death Row.

“I don’t know how these other guys do it,” he wrote recently. “I truly don’t. If it wasn’t for magick, I would have been dead long ago.

“It gives me the ability to erect psychological and etheric boundaries that keep the darkness at bay. It’s a proactive way of handling the lack of things like medical care. And it’s very cleansing on the subtle energy bodies—sort of like a psychic shower.

“I honestly don’t know how the others here manage to survive without it. Some of these people radiate an energy so foul I literally want to hold my breath when I’m forced to be near them. What do you do if you have no means of protecting yourself against that? What happens when you spend day after day, year after year, being saturated by that hatred and blackness?”  

Next—Part 2: ‘They planned on killing me’[/private]