Arkansas Supreme Court orders re-examination of case for a new trial for the WM3; “all” evidence must be considered

The Arkansas Supreme Court this morning delivered its opinion that Damien Echols, Jason Baldwin and Jessie Misskelley Jr. did not receive fair hearings when they appeared before Judge David Burnett seeking new trials. The court issued separate rulings in all three cases. Here are some significant parts of those opinions.

In the case of Damien Echols
The court found no merit in the arguments presented in September by the state’s deputy attorney general. It paid particular attention to the claims made by the attorney general and Circuit Judge David Burnett that new DNA evidence need not be considered because it did not prove Echols was innocent. In its unanimous opinion, the court wrote: “We disagree with the circuit court’s reasoning on this point. …

“Furthermore, it is unclear to this court how DNA test results alone could ever produce legally-conclusive evidence of innocence under the State’s interpretation of the statute. The State aruges that ‘without DNA testing results that could be dispositive of the identity of the killers here, the appellant cannot raise a reasonable probability that he was not one of them.’

“Despite this statement, the State fails to provide any example of when DNA evidence could be dispositive of the identity of the killers and states in a footnote to its brief that it ‘believes that the forum the statute provides may well never yield relief due to confidence that the Arkansas criminal-justice system does not convict the innocent.’ We decline the invitation to interpret the statutes in this way because it would render them meaningless.”

On another matter, the court wrote: “By accepting the State’s argument that the DNA test results, standing alone, had to be considered against ‘all other evidence of guilt’ to determine whether Echols was innocent, the circuit court read additional language into the statute. The statute’s plain language makes clear that the circuit court is to consider the DNA test results ‘with all other evidence in the case, regardless of whether the evidence was introduced at trial.

“We likewise reject the State’s contention that ‘all other evidence in the case’ means all other evidence of guilt because … the statute’s plain language indicates that ‘all other evidence’ is to be cosidered. … We hold that ‘all other evidence in the case’ means any evidence, whether inculpatory or exculpatory, that is relevant to a determination of whether the petitioner has established, by compelling evidence, that a new trial would result in an acquittal.”

The high court noted Burnett’s ruling that Echols’ arguments for a new trial “fell well short of the stringent showing of a compelling claim of actual innocence.” The justices ruled: “This holding was in error because the court again applied the incorrect legal standard. … As already discussed [the pertinent law] does not require Echols to present a ‘compelling claim of actual innocence,’ but states that he must ‘establish by compelling evidence that a new trial would result in an acquittal.”

Noting that, “Echols was entitled to an evidentiary hearing,” the court concluded:
“Because we hold that the circuit court erroneously interpreted the Arkansas DNA testing statutes, we reverse and remand for an evidentiary hearing, at which the circuit court shall hear Echols’s motion for a new trial and consider the DNA-test results ‘with all other evidence in the case regardless of whether the evidence was introduced at trial’ to determine if Echols has ‘establish[ed] by compelling evidence that a new trial would result in acquittal. … Furthermore, the statute requires that the court ‘promptly set an early hearing on the petition and response … [for] reconsideration of the motion in light of the proper interpretation of the statutes.”

Voices for Justice documentary now online

Mike Poe’s excellent documentary from the Voices for Justice concert last month in Little Rock is now available online. There’s commentary from Damien’s lawyer, Lorri Davis, a couple of other folks, and me, but the most moving segments are those where Damien, Jason and Jessie speak for themselves. It’s only about 15 minutes—and worth every one of them. Check it out here. (The film will be shown Wednesday night, at the Vigil for Justice in Little Rock, so some of you may want to watch it wherever you are that night.)

Little Rock’s Vigil for Justice takes shape

For anyone coming:
Quapaw Quarter United Methodist Church is located at 1601 S. Louisiana in downtown Little Rock, Arkansas. (Take I-630 to the the Center St./Main St. exit and go south 4 blocks.
The church is on the corner of Louisiana and 16th.)

The vigil will last roughly an hour. Essentially, we’ll have:

Instrumental music while people assemble.
A musical piece to open the vigil.
Showing of the 15-minute video from the Voices for Justice concert.
Readings from the writings of Damien, Jason and Jessie.
Seventeen minutes of silence, with a bell tolling each minute/year of imprisonment.
A closing choral number.

Oral Arguments, Thursday, Sept. 30
The oral arguments begin at 8:55 a.m. CST and will last about 1.5 hours. The courtroom will only hold about 100 people. Please be mindful that there may not be room in the courtroom when you arrive.

Our understanding is that there is an adjoining room with monitors to view the procedings. If I’m not correct our next email will point that out.
You may also view streaming video via this link

Case 93-66-666: Analyzing the Pretrial Publicity of the West Memphis Three Trial

In 1993, three young boys were brutally murdered in West Memphis, Arkansas. Once the bodies were found, The Commercial Appeal, a daily newspaper in Memphis, Tennessee, reported any information regarding the murder investigation, and eventually reported the murder trials of the three suspected killers. The murders were initially suspected of being committed by a person involved with occult practices or a cult, according to the newspaper. This initial finding of suspected occult activity was reported by the newspaper numerous times in the articles about the murder investigation. Repeatedly reporting this initial information could be suspected of framing the pretrial publicity; which could possibly lead to the swaying of a jury, who often refer to information received from the media to create its verdict (Overbeck, 2009). Several studies have concluded that the guilty verdict of trials is based on pretrial publicity. One group of researchers found the jurors exposed to pretrial publicity were more likely to use that information in their conviction (Kline & Jess, 1966). Another study found that the knowledge of the amount of suspect arrests before the current accusation increased the chance of a guilty trial outcome (Riley, 1973). A final study concluded that the amount of information released about the suspect, including the type of crime committed, increased the outcome of a guilty trial (Sohn, 1976). While the effects of the pretrial coverage involved in the West Memphis 3 case will not be able to be effectively studied, the overall quality of the pretrial publicity can be studied using a content analysis. Using the literature stated above and some of the other pretrial literature available, one could conclude that the press failed to provide a fair and balanced presentation of the murder investigation. Therefore, the public was not able to create a balanced idea on the murder investigation. With a content analysis, this study will search to answer two research questions: Crime in the media is a topic that has been discussed since the beginning of news reporting. Media ethics often put a stand-still on crime reporting. According to the Society for Professional Journalists, a reporter should understand that gathering and reporting information may cause harm or discomfort so extra care should be taken when handling these subjects. But the information that is reported to the reader should not make the suspect seem guilty before the suspect can be put to trial. The Sixth Amendment of the United States Constitution guarantees every person the right to a fair trial so one could argue that excessive pretrial publicity impends on that right. An effective reporter will quote the police report and other officials as often as possible and not indirectly add their own speculation when reporting about the case. But even quotes from officials, without opposition statements or views, may bias the reader. In the West Memphis 3, the murder was committed in a Christian-based community; a place where mentioning ‘cult’ in the grocery store will quickly turn heads. Using words like ‘cult’, ‘occult’ and ‘Satan’ in a crime investigation could lead to swayed readers and ultimately, swayed jurors. If these words were used consistently and excessively, the pretrial publicity of the West Memphis 3 murders could have broken the state’s rules regarding pretrial publicity; and ultimately the publicity could be labeled unfair reporting. To complete the study, articles published in The Commercial Appeal from June 3, 1993 to January 23, 1994 were studied. June 3, 1993 is when a suspect is first mentioned in regards to the triple murder and January 23, 1994 is the day before the first trial of the first murder suspect. Studying the articles consisted of an initial skimming to see if there are any loaded words are used repeatedly. Once those words were discovered, another reading of the articles was commenced to see how often the words were used, and note the number of words per article in relevance to the timeline of the investigation. There have not been any studies about the pretrial publicity in the West Memphis 3 murders. The case has drawn international attention because of the alleged innocence of the convicted three murderers. There have been numerous studies about pretrial publicity in murder cases. There have also been studies about the use of the words Satan, occult and cult in newspapers and the recent growth of reporting on this subject.

Literature Review
Media frames The media have long been criticized for framing newspaper articles and television broadcasts. Media frames are the “organized principles used to construct press accounts” (Boyle, et al., 2006). These principles are used as a guide to the presentation and organization of an issue, topic or event in the media. One explanation of frames is that they influence the cognitions involved when a person is told about a subject (Domke et al., 1999; Iyengar, 1991). When a person is asked to recall information about a subject; whether the recall be conscious or subconsciously, the person will recall the information that is already active or available (Price & Tewksbury, 1997; Scheufele & Tewksbury, 2007). The frame, which is part of the text, activates previous thoughts or ideas about the subject; therefore, the person already has a judgment of the subject, even if the person hasn’t heard all of the facts.
Pretrial publicity
Pretrial publicity framing in the media is especially problematic because pretrial publicity can step on the rights of the press and the suspect. Pretrial publicity raises ethical and constitutional concerns because the jury is supposed to only consider the defendant’s guilt or innocence; not the defendant’s moral ability to commit the crime (Overbeck, 2009). Often times, once a person has been connected to a crime, the media report about the past of the person and speak to neighbors or friends of the suspect. Presenting this information to the public can lead to the future jury members creating an opinion about the suspect before they are given the complete evidence. In every court room, jury members are asked to make their decision based only on the information presented in the trial. Overbeck said, “A defendant’s past record is not ordinarily considered relevant, although there are notable exceptions. But sometimes the media report inflammatory information about a person’s past, information that may not be admitted as evidence when the trial actually occurs” (Overbeck, 2009).
The media’s continuous coverage of an investigation may include unverified information or unnecessary details of an arrest. The media often report the details of a confession, which may
not be admissable in court. This information, once leaked, can make it difficult to find an unprejudiced jury (Overbeck, 2009).
Several studies have concluded that the guilty outcome of certain trials was based on pretrial publicity. One group of researchers found the jurors exposed to pretrial publicity were more likely to use that information in their conviction (Kline & Jess, 1966). Another study found that the knowledge of the amount of suspect arrests before the current accusation increased the chance of a guilty trial outcome (Riley, 1973). A final study concluded that the amount of information released about the suspect, including the type of crime committed, increased outcome of guilt in the trial (Sohn, 1976).
Crime reporting Part of the relevance of news media covering the West Memphis 3 case was because it was a crime story. This crime story only perpetuated the idea that the world is a harsh, mean place; an idea developed by George Gerbner in 1980. Before Gerbner, Stan Cohen and Jack Young concluded studies that crime reporting allows societies to form up against the “deviant groups” (Carrabine, 1999). In other words, crime reporting and other uses of crime in the media, allow the viewer to rally together on the “good side” while going out to catch the bad guy. Also, crime news has a special draw because it is unplanned news. Daniel Boorstin wrote in The Image in 1961 that the excessive use of “torrent” events has taken away the distinction between hard and soft news. Press events are often presented as immediate events; when unplanned news should be the most important news of the day:
Crimes are not pseudo-events, however industriously they may be exploited by the
press. Only seldom are they committed for the purpose of being reported. Our hunger for
crime news and sports news, then, far from showing we have lost our sense of reality,
actually suggests that even in a world so flooded by pseudo-events and images of all
kinds, we still know (and are intrigued by) a spontaneous event when we see one
(p. 252).
Satanism, cults in media
Satanism and cults began their history in newspapers in the 1600s with the witch trials in Salem, Massachusetts. During the witch trials, pamphlets about the trials were spread all over the colonies. The pamphlets sensationalized the trials, thus increasing the amount of fear in the area. One pamphlet even told how a “female robber turned into a ‘tragical midwife’ by ripping open the belly of a pregnant woman with a knife and cutting out a child’s tongue.” Clearly, the pamphlets only circulated to increase the fear and establish a greater difference between the good side and the deviant side (Carrabine, 1999). Satanism and witchcraft increased in popularity in print media in the 1980s. In fact, the increase was so great in the amount of articles published about the subject that a study by Cramp and Damphousee was conducted in 1992 to see how the coverage of Satanism compared to the coverage of witchcraft in eight different newspapers across the United States. The researchers not only looked at satanic worship, and witchcraft, but also at the voodoo practices often associated with African American and European Americans. Through their research, the authors found that the newspapers cast a more negative light on Satanism than witchcraft. Satanism was often seen as the cause of murders and suicides. Even non-crime accounts of Satanism were presented in a negative light. Overall, the authors found there are two reasons for the popularity of stories focused on Satanism. The first reason is just to feed the public what they want. Newspapers are a money-making agency; therefore, they not only must inform the public but they must inform the public of what the public will want to hear to purchase the newspaper
A second way newspapers help increase the concern of Satanism, according to Crouch and Damphousse, is by creating a forum for “experts.” These experts are usually associated with the police department and have had specific training in occult practices. As quoted by the researchers, in a study by Hicks (1990), many of these police officers hold views that are associated with a political group that is focused on bringing God back into society. The officers often exaggerate the Satanism problem; often quickly associating a wrong act with satanic or occult elements (Crouch & Damphousse, 1991; Lanning, 1989). This conclusion by an expert leaves a lasting impression on the reader that Satanism is a clear and increasing danger (Crouch & Damphousse, 1992).
Based on the previous research of pretrial publicity and other matters involved, this content analysis study will seek to answer three research questions:
RQ1: Were there key phrases and/or loaded words that were frequently used and could be linked to bias reporting in the pretrial publicity?
RQ2: How often were these words used?
RQ3: How did their frequency of use change as the investigation progressed?
These research questions were used to create the following three hypotheses, which
correlate with the three previously stated research questions.
H1: There were loaded words that were used frequently in the pretrial publicity coverage and those words include cult, occult and Satan, among other various forms of these words.
H2: The use of these words will average at least one of the loaded words at a frequency of 3 uses per articles.
H3: The use of these words will increase as the time for the first trial approaches.

In order to study the possible bias in the pretrial publicity of the newspaper coverage of the West Memphis 3 murder, articles from The Commercial Appeal were content analyzed for loaded words and then those results were compared in five groups, based on the time frame before the first trial of one of the suspects. The articles examined were dated June 3, 1993 to January 23, 1994¸which was when Jessie Misskelley, one of the convicted men, was put on trial for his alleged involvement with the murders. June 3, 1993 is the first article that mentions the possibility of a suspect in the triple murder. Since the study is analyzing the pretrial coverage around the suspects, it is necessary to begin at this date instead of any earlier. Studying earlier articles could not mention any loaded words and possibly lead to a insignificant results. Miskelley was the only suspect given a separate trial and his trial was first, so article examination concluded with the beginning of the first trial. Any articles published after Misskelley’s trial will only be related to the proceedings in the trial and will not qualify as pre-trial coverage. The articles came from The Commercial Appeal because it was the major newspaper in Memphis, Tennessee and it was the main news source on the night the bodies were discovered, though it was called The Memphis Commercial Appeal at that time (Leveritt, 2002).
The Commercial Appeal has a circulation of more than 146,000 on a daily basis and more than 184,000 on Sundays (BurrelsLuce, 2007). The newspaper has been in Memphis since the 1860s and has been known to cover controversial topics such as the Ku Klux Klan and the 2008 release of the names of all Tennessee gun owners. This newspaper was studied, instead of a television news broadcast, because it was frequently discussed in The Devil’s Knot, which chronicles the finding of the three bodies until the end of the three trials. When writing this book, the author consulted this newspaper for information; in fact, it was the only newspaper she referenced. Because of the author’s continuous use of this source, and her reference to the newspaper in her book, this newspaper was the only newspaper used in this study and the only source analyzed. In the book, the author illustrated that the newspaper was the command center of information for the WM3 case; therefore, this researcher believes this newspaper will have the most extensive coverage of the case, as compared to other newspapers in the state that would have possibly covered the story.
The Internet was still new at the time of the murders; therefore, stories about the murders were not placed on the Internet once the bodies were found. The articles about the murders have now been archived on the website for The Commercial Appeal and those articles will be referenced for the research in this study. However, the articles will not come directly from the archives of The Commercial Appeal. A support group for the three men convicted of the murders has uploaded all of the articles onto its website and the articles uploaded onto that website will be used for this study because of the cost factors associated with the Appeal’s website access. It is uncertain if this is all of the articles in the newspaper involved with the pretrial publicity of the case; but an examination by the researcher and an advisor have led both parties to believe that the support group archive is comprehensive and complete.
In this content analysis, specific loaded words were counted in each article that relates to the WM3 case before the first trial of a suspect and recorded on a chart as seen in Table 1.0. While often times coding sheets are used in a content analysis, this researcher found that a chart like this would make the information more accessible and easier to tabulate, instead of having to go through 70 different coding sheets and count frequencies. Also, the chart allowed the researcher to draw lines and organize groups, quickly count frequencies and then record the observed frequencies for each time period group. In the table, the loaded words were recorded once and then tally marks were placed next to each word in order to keep track of the repeated use of the same word.
Table 1.0 omitted.
Loaded words are defined as words such as cult, occult, Satan, ritual and any form of related words. These initial words were chosen after a quick skimming of the articles showed that these words were repeatedly used in many of the articles. A loaded word would tell about the past of the suspect and lead possible jury members to have a pre-determined idea about the suspect. Loaded words could lead to a bias in the jury and possibly lead the jury to a guilty conviction of the suspects. The effects of the loaded words were not studied; however, the frequency of the loaded words was studied.
Between the dates stated previously, there are 71 articles published relating to the WM3 in the Commercial Appeal. These 71 articles were divided into five groups; but since 71 does not divide evenly, an article published on January 22, 1993 was excluded from the content analysis because it was merely a list of the witnesses to be called in the trial. The published list did not have contributions from a member of the newspaper staff. By removing this article, 70 articles remain and will be broken into four groups with 14 articles per group. The first group date ranged from June 3, 1993 to June 8, 1993. The second group date ranged from June 9 to July 8, 1993. The third group ranged from July 14 to September 24. The fourth group ranged from September 25, 1993 to November 17, 1993 and the fifth group ranged from November 18, 1993 to January 23, 1994.
Five groups were studied because the number of articles could be divided evenly into multiple groups. Also, five seemed to be an acceptable number of groups; with two groups being too few with too large of samples in each group and 7 or more groups having too few of samples in each group. Five groups would give a large sample in each individual group in order to figure a chi-square test.
With all of the articles broken into groups, the articles were content analyzed to see how many of the loaded words were in each article. The words were counted for a frequency per article and then the total from each article in each group was added together to create the frequency for each group.
To determine the significance of these results, a chi-square test was conducted to measure the observed frequency and compare it to the expected frequency. A chi-square test is best used for this content analysis because only two variables are being compared; time after a suspect was named to the first trial and the frequency of loaded words in each article. The independent variable was the above mentioned time periods and the dependent variable was the frequency of the loaded words. The observed frequency will be the amount of loaded words per article, which will be added together per time period to create the frequency per time period. The expected frequency will be figured by averaging the grand total frequency (which is the combined number of loaded word occurrences) and dividing that total by the amount of articles studied.
If the chi-square is significant, then this supports the hypothesis that the frequency of the loaded words had a significant change over time and could have lead to a bias in reporting. If the chi-square has a result of being not significant, then the frequency of the loaded words in the articles were randomly used and were not used excessively.

In order to analyze the possibility of a bias in the pretrial coverage of the West Memphis 3l, loaded word frequencies and tabulated to create five different groups of frequencies, based on the time period between the first naming of a suspect and the beginning of the first murder trial.
The analysis of the 70 articles found that 230 loaded words were used in the seven month time period. Of the 70 articles, 37 articles contained at least one loaded word.
With these results, two out of the three hypotheses are supported while one was not supported. Hypothesis 1, which stated what type of loaded words and the frequency of the uses of the words, was supported because there were loaded words in 37 of the articles, which is more than half of the articles, as originally hypothesized. The most often used loaded words included: cult, devil, Satanism, evil and occult. Other words that were used, but not as often as the first list of loaded words, include: slaying, antichrist, witch and Lucifer. Some words, such as worship, ritual, and ritualistic were used frequently as well but were not coded because if the adjective “devil” or “Satanic” was removed from in front of those words, then worship, ritual and ritualistic can be associated with any type of religion and do not carry negative connotations. The highest frequency of loaded words in an article was 31 with a low of 1 word per article. The two most common words were “cult” and its various forms, and Satanism and its various forms; which were used as either an adjective or a noun. Cult was used 8 times in one article and various forms of Satan were used 11 times in another article. Also, the headlines of all 70 articles were analyzed and found that 15 of the headlines used at least one loaded word. Between the 15 headlines, 20 loaded words were used. The headlines were important to analyze because in newspapers, the headline is what draws the reader’s attention to the article. Therefore, one of these headlines could have been in a large font at the top of newspaper page, evident for readers and even newsstand passers to see. If words like this were often seen in large in multiple newsstands, even those who don’t read the paper would have known there was some type of alleged cult connection to the case. Because there were so few words and so few headlines, a statistical test was not figured; rather, just the descriptive statistics were given, as seen. The use of the most popular loaded words is seen in the Table 1.2. The table displays the four most used loaded words; a form of cult, a form of the word Satan, devil and a form of occult, and how the percent of the use in the 37 articles which contained at least one loaded word. A pie chart was the best type of graph to use for this information because it shows how many times each word was used out of the whole group of words. Other types of charts, such as a line, plot, or bar, show a change over time; while this chart showed how much one part was compared to the whole.
Table 1.2 omitted.
Hypothesis 2 was also supported from these results, which said there will be at least three uses of a loaded word in each article. After finding 230 uses of the loaded words mentioned above, and with 70 articles analyzed, each article averaged 3.28 uses of the loaded words.
Hypothesis 3 was not supported by these results because the frequency of the use of words decreased as the trial approached, as illustrated in Table 1.3. The frequencies per each group are listed on the left side of the table and the group amounts are shown by the bars in the graph.
Table 1.3 omitted
In order to analyze a possible bias in the pretrial publicity of the newspaper coverage of the West Memphis 3 murders, a chi-square test was performed following the collection of the data. The data studied was the frequency of the loaded words in each of the five time period groups, which were set based on the time following the first naming of a suspect in the investigation to the day before the first trial. A chi-square test compared the observed frequencies for the time period groups to the expected frequencies for the time period groups.
Following the results of the chi-square test, df=4, X² =66.22, which means that the null hypothesis is accepted and the results are significant.
The expected frequency was figured by dividing the amount of words (230) by the number of groups (5). Dividing the amount of words by the amount of amount of articles only gave an average use of words per article (3.28). But with 14 articles per group, the amount of words per article would need to be multiplied by the average amount of words per article, which would equal 46, the expected frequency.

A chi-square test was performed in order to analyze a possible bias in the pretrial publicity of the newspaper coverage of the West Memphis 3 murders. The test showed that the amount of loaded words in the pretrial articles was significant because there were enough words in each group to have significant chi-square result.
If the chi-square test was not significant, this would have shown that there were not enough uses of the loaded words, which would have created a significant difference between the groups over time, and there was not a bias in the articles. However, because the chi-square test proved significant, then the differences between the group frequencies over time were high enough to be measured and reflect a large enough different to create a significant chi-square. While the group frequencies did decrease over time and did not support one of the hypotheses, the group frequencies, once squared, were significantly higher than the expected frequencies.
Because the chi-square proved significant, thus illustrating the differences in the frequencies, this information supports that there is a bias in the pretrial publicity of the West Memphis 3. There was at least 1 loaded word in more than half of the articles and there is a significant chi-square, which lends enough support to the idea of a bias being present in the articles.
While the first group of articles did have 86 loaded words, within 14 articles, the loaded words were used less frequently as the trial approached because there were more articles about the expected content of the trial than there were articles about the suspects. As the first trial neared, many articles started to focus more on the suspect in the trial, Jessie Miskelley. According to police reports, Miskelley confessed to witness the murders and said that the murders were part of a satanic ritual. His story to the police is the only time that Miskelley is associated with any types of cults so any articles relating to him only mentioned cults in relation to the story he told police. However, not every story mentioning Miskelley mentioned the story he told police. As the trial approached, a few of the articles were written about the lawyers and their plans for the trial. Some of the articles about the lawyers included personal information, such as how many children they had or what their hobbies were.
One of the articles about the lawyers in the case included an interview where a defense lawyer addressed the press and told the press to stop writing as much about the possibility of a cult or occult being involved in the murder. In the article, headlined, “Lawyers look at coverage of slayings in WM,” printed on August 29, 1993, defense lawyer Daniel T. Stidham said in a roundtable discussion that the media was excessively covering the case: “’My criticism of the media is what’s going out is dug-up tabloidism. And (why) do they go out and interview people who have nothing to do with this, or make up stories or publish things that are going to do nothing else but sell newspapers and media time and prejudice the defendant, and I think that’s improper,’ he said (Sullivan, 1993). In one story, The Commercial Appeal spoke to people from across the country about Satanism, cults and how teenagers are involved. No one in the story had anything to do with the case; rather, the paper was taking the cult possibility and having “experts” weigh in on the possibility that the cult angle was true. From Stidham’s quote, it is clear to see that the lawyers were getting frustrated with the amount of loaded words reported in the articles about the murder investigation, though they weren’t the only frustrated party. In another article, published prior to Stidham’s statement, Damien’s mother explains why her son changed his name from Michael to Damien, a reason that had nothing to do with occult movies, as previously published. She also told the media that its continued printing of her son’s alleged involvement with a cult was limiting his ability to a fair trial.
Several articles in the pretrial publicity of the murder investigation were news feature stories about cults, Halloween and other aspects of the lives of the three convicted boys. One article headlined, “Satanic Dabblers can become deadly disciples,” the reporter paraphrases a statement given by “experts.” “’As several recent murders in this country have painfully illustrated, satanic “dabblers” can become brutal killers, experts say” (Johnson, 1993). A statement like this can only add fuel to the heavily burning fire and can lead readers to even further believe that the murders were committed by people involved with cults.
Many of the articles contained repeated information, which some reporters use as background information in a story. Some of the repeated information was not necessarily background information; rather, it seemed that the information was repeated by the reporter to make a point about the possible cult involvement.
One article that did present new information was the story of a protest march in Jonesboro that was led by the owner of a Wicca bookstore. Steve Branch, the father of one of the murder victims, actually organized a group to oppose the march and sing hymns while the people walked down the street. A story like this could also be seen as contributing to the cult allegation because there is obviously more people in the area that practice another religion besides Christianity. The story illustrated the emotion of Branch, thus increasing the need to name a murderer in the death of his young son.

The reporters at The Commercial Appeal walked a fine line between biased pretrial publicity and balanced reporting; however, because of the presence of loaded words in more than half of the articles and a significant chi-square result, this study supports the idea that there was a bias present in the pretrial coverage of the trial. By reading the 70 articles in the pretrial coverage, one could see by that the newspaper went with the possible cult connection and ran with the angle. As stated in the literature before, Satanism and cults often made newspaper headlines in the late 1980s and early 1990s, the same time period as this triple murder. Perhaps the coverage of this murder was a way for The Commercial Appeal to jump on the bandwagon and now cover one of the national news topics of the day. The coverage of this murder trial should serve as a warning to other reporters to watch the background information that is reported in a story and to seek and print only the truth from reliable sources that are part of the case. Reporters should use local sources as experts and not use sources that are unaware of the various tips in a case and all of the other information that could be involved. Part of the ethics of a journalist is to do the most good and do the least amount of harm. While the paper thought it was doing the most good for the community by continuously reporting about possible cult activity in the area, the findings from this study support the idea that the continuous cult reporting ultimately lead to bias reporting. As seen in the previous literature, pretrial publicity has been linked to guilty verdicts in cases. Though this study did not look at the effect of the publicity, the findings of this study could lend support to the possibly link between the bias pretrial publicity and the guilty verdict of all three trials of the murderers of the West Memphis 3.

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48 Hours does it right

Tonight, CBS presented the finest program on the West Memphis murders since HBO’s “Paradise Lost” aired almost 14 years ago. It’s not easy to tell such a complex story well, but “48 Hours” did the job well. Among many high points, it was a pleasure to see Johnny Depp speak so passionately about the injustice of this case. Watch A Cry for Innocence.

In addition, the “48 Hours” website is hosting additional footage showing interviews with some of the Arkansas people, including me, who are resisting their state’s march to execute Damien Echols and keep Jason Baldwin and Jessie Misskelley in prison until they die. See supporters.

People often ask me what we supporters can do to help. The first and best answer is always to spread the word. With this program, “48 Hours” has given us an excellent link to share.

One quibble: I wonder why, when they got just about every other detail so right, they repeatedly identified John Mark Byers as Christopher’s father. Byers was Christopher’s stepfather.

For four months, retired judge Burnett ignored Arkansas Supreme Court order

Retired Circuit Court Judge David Burnett ignored for more than four months an order from the Arkansas Supreme Court regarding what portions, if any, of Damien Echols’ appeals should be sealed.

The matter stemmed from a Freedom of Information request I submitted to Leslie Steen, the clerk of the supreme court, for access to those appeals. In responding to my request, Steen told me that, because parts of the record were sealed, he himself had ordered the entire file to be sealed, thus my request was denied.

Steen also said that, “in an excess of caution,” he had taken the liberty of sealing the records of Jason Baldwin and Jessie Misskelley as well.

When I questioned Steen’s authority for sealing records, he replied that the members of the supreme court were aware that he did it and had never stopped him.

I wrote a column for the Arkansas Times describing the situation and my outlining my belief that Steen and the high court were flaunting Arkansas law, which grants the authority to seal records only to judges.

Following that column, on Oct. 1, 2009, the supreme court took the unusual step of ordering Burnett to “settle the record” as to which parts of the three men’s appeals were sealed and which were not. In an unsigned opinion, the justices wrote that they had been “unable to determine” this matter for themselves.

Only one judge dissented. Justice Paul Danielson pointed out that asking a circuit judge to explain what had been sealed and what hadn’t “vastly deviates from the typical procedures of this court.”

“Either the records, or portions thereof, were filed under seal at the circuit level, or they were not,” hDanielson wrote. “If the record does not indicate that certain exhibits or pleadings were filed under seal, then it seems clear they were not and are public record.”

There the matter stood until last week, when I renewed my FOI request to Steen for the records. I also asked Steen to let me know what Judge Burnett had ruled and when he’d made his ruling.

The next day, Feb. 5, Steen sent me an email that said: “We received Judge Burnett’s order today settling the records in Echols, Misskelley, and Baldwin.” He told me I could come to his office and see the records, along with Burnett’s ruling.

WM3 supporters upstage Fogelman’s campaign announcement

Members of Arkansas Take Action, a group critical of the trials that resulted in murder convictions for Damien Echols, Jason Baldwin and Jessie Misskelley, Jr., walked out of a press conference held Monday at the state capitol by Judge John Fogelman to announce his candidacy for the Arkansas Supreme Court. (See video here.)

In 1994, Fogelman, then a deputy prosecuting attorney, helped win the convictions of Echols, Baldwin and Misskelley, who were teenagers at the time. In the years since, Fogelman has often stated that he believes the three are guilty.

Those protesting at Fogelman’s announcement wore T-shirts that read “Abuse of Power.” The protesters walked out of the confenence room as Fogelman read his campaign announcement to the media.

After the event, Brent Peterson, a Little Rock restaurateur, said that members of ATA believe Fogelman abused the power of his office when he prosecuted Echols, Baldwin and Misskelley.

Fogelman said his candidacy was about who was the best candidate for the state supreme court—not about the trials of the men now known as the West Memphis Three. Members of the ATA countered that decisions Fogelman made as a prosecutor are relevant to the campaign and speak to his character.

Tim Howard sidebar

What happens when key police files are found in the trunk of an officer’s car as the case is heading to trial?

Before Tim Howard’s case went to trial, his lawyers complained to the judge that the prosecutor had not turned over important information he had about other possible assailants. The surrender of such information to defense attorneys is required by law.
Howard’s lawyers came across the information by accident late in their preparation for trial. Incensed, they asked the judge to dismiss the charges against Howard. The lawyers argued that by improperly withholding the information–legally called “discovery”–the prosecutor had violated the laws guaranteeing defendants a fair trial. But the judge denied their motion. Moreover, he told Howard’s lawyers that they could not let the jury know about “the piecemeal fashion” in which the information had been released.
After Howard’s trial and conviction, his lawyers challenged the judge’s ruling in their appeal to the Arkansas Supreme Court.
Chief Justice W.H. “Dub” Arnold considered the problem in light of the law on discovery. He observed that the prosecuting attorney is required to turn over to defense attorneys any information in his possession “which tends to negate the guilt of the defendant” and that prosecutors are bound to disclose the exculpatory information “in sufficient time to permit the defense to make beneficial use of it.”
There was no dispute about the chronology. Here’s how Chief Justice W.H. “Dub” Arnold outlined it in his opinion:
Jan. 17, 1998 (three weeks after the murders)–Howard’s defense attorneys filed a motion for discovery, seeking all information about the case that was known to the prosecuting attorney.
Jan. 27, 1998–The prosecutor sent Howard’s attorneys a file containing 101 items, along with a cover letter from the prosecutor stating that he would provide any additional information that he acquired.
November 1998–One of Howard’s defense lawyers went to the Ashdown Police Department to review photographs concerning the investigation. “After a long delay,” Justice Arnold wrote, “the defense was told about interviews with nine witnesses who were previously unknown to the defense.” The witnesses’ statements “included information stating that Brian Day was dealing in stolen merchandise; Brian Day was seen arguing with a Caucasian male about money; Brian Day was dealing with non-local people; a new Corvette was seen in the Days’ driveway the morning of the murders; and, Brian Day owed someone about $2,000.”
Shortly before one of the pretrial hearing, Arnold noted, “There was also a part of the Howard file found in the trunk of a police car.” This too was then turned over to Howard’s legal team.
But Arnold and the justices who sided with him saw no problem in what had transpired. They ruled that Howard’s right to a fair trial had not been adversely affected, since the prosecutor had, in fact, surrendered the information once the defense team stumbled upon it.
As Arnold interpreted the law, Howard’s right to a fair trial would have been jeopardized only if the exculpatory information had never been provided.
“Here,” he explained, “the information was turned over to Howard when the state was presented with the information, or when the state learned of the information.”
Since Howard’s attorneys had received all of the information seven months before the trial, “there was no discovery violation.”
Of the seven justices who reviewed the case, only Ray Thornton even noted what Thornton called “the state’s last-minute responses in producing evidence sought during discovery.” And all Thornton said was that was that he was “troubled” by the situation. (End.)

The case for killing Tim Howard, part 3

*The purse, boots, gun, etc. *

As for statements that Howard had been seen with Shannon’s purse and later disposed of it, Hannah wrote: “His disposal could mean he wanted to dispose of evidence that he had murdered her–or that he did not want to be caught with the purse, given that someone else had killed her.”
Turning to the boots, Hannah noted that, while the majority had interpreted the trial record to read that “a Negroid hair” in one of the boots had been found to be “compatible with Howard’s DNA,” Hannah’s read the testimony to say that the hair had been described only as having been only “microscopically similar to Howard’s.”
The difference could be significant, especially since, as Hannah noted, “Other Caucasian hairs were found in the boots that were never identified.”
Hannah was also concerned about the location and position of the boots, standing side-by-side in plain view from a highway. Noting the prosecutor’s claim that Howard had thrown them from the car as he he’d passed, Hannah dryly observed, “If the state’s argument were correct, this would have been a pretty remarkable throw.”
Hannah continued: “Also, Howard was wearing the same clothes on Saturday morning as he had been wearing the night before. There was no blood on them. If he had worn the boots, the blood would have been on his pants leg.”
Hannah noted that police found “no bruises or other marks” when they questioned Howard the day after the murders, even though there was evidence that Shannon had put up a fight and that, in Hannah’s words, Brian was known to have been “a fellow who did not back down.”
And what about the gun? Hannah noted that Brian was shot with a .38 and that Howard had been seen with a .38 shortly before the murders. But Hannah questioned the significance of the gun, given that something dangerous was expected to happen and that, as Hannah wrote, “there is probably not a more common caliber than .38.”
The prosecutor had put forth two theories for why Howard had killed the Days. One was that Howard had wanted to collect all of the money from the scheduled drug deal, not just the $4,500 he reportedly was to have gotten.
The other theory was that Howard had murdered the Days because he believed he’d gotten Shannon Day pregnant.
Neither made much sense to Hannah. Moreover, he argued that the testimony about Shannon’s alleged pregnancy had been both unsubstantiated and so tenuous that it should not have been admitted into the trial.
Doctors who performed the autopsy on Shannon’s body concluded that, in fact, she was not pregnant when she was murdered. And even if she had been, Hannah observed, there’d been no testimony at the trial that Howard had ever been told she was.
Hannah believed the prosecutor wanted the jury to hear the unsupported claim merely to increase its outrage, and that, when Howard’s attorney’s objected, Circuit Judge Charles A. Yeargan should have agreed with them.
But Yeargan did not agree, and as a result, Hannah wrote, “An Aftican-American was tried for the capital murder of a white woman. Then … the jury is told that he might have gotten her pregnant as well. The obvious potential prejudice is so apparent it needs no discussion….”
Nor was Hannah convinced that the money Howard spent on the weekend of the murders constituted what Justice Arnold had called “large amounts of cash.” Hannah pointed out that Howard had spent only “a few hundred dollars” that weekend on the toolbox and motel rooms and that no sizeable stash of money had ever been connected to him.
Justice Hannah concluded, “The persons with whom Brian met on the night of the murders had a great deal more to gain from the murders and assault, either by making him an example of what happens when a person does not meet his obligations, or in gaining Brian’s ‘white’ and keeping their ‘green.’”

*‘The realm of fantasy’ *

Two other aspects of the case disturbed Hannah enough that he added them to his dissent. One was the prosecutor’s decision to show the jury a pair of fur-covered handcuffs.
Jennifer Qualls had testified that she once saw a pair of fur-covered handcuffs in Howard’s possession. Investigators never found those cuffs, and the handcuffs found on Brian and Shannon Day were ordinary metal ones.
There was no sign of glue on the handcuffs that were found on the Days’ bodies–nothing that would indicate that the cuffs had once been covered with fur. And there was no testimony that Howard had ever owned more than one pair of handcuffs.
Nonetheless, the prosecutor had gone to a local lingerie store, purchased a pair of fur-covered handcuffs and introduced them at the trial, explaining that they were “identical” to the pair that Howard was said to have owned. Howard’s attorney objected, arguing that the newly purchased handcuffs were just props for the prosecution and had no connection to the case, but Judge Yeargan sided with the prosecution.
So did the supreme court’s majority. But Hannah wrote that the judge’s decision was an error–and one serious enough that it warranted granting Howard a new trial.
Finally, Hannah attacked the prosecutor’ closing argument, in which he’d told the jury how “probably the most horrible thing that happened that night” was that, as Shannon Day died, she had been forced to watch “her seven-month old child being strangled in front of her.” The prosecutor had urged the jury to consider that image while deciding whether Howard should be sentenced to death.
That statement would have been fine, Hannah wrote, if what the prosecutor described was known to have actually occurred. As it was, Hannah argued, “The prosecutor entered the realm of fantasy.”
He explained, “While there is no question Trevor was strangled, there are no facts which would support any inference that he was hanged, or that he was hanged before his mother’s eyes. The closing argument was based on pure fiction.”
Noting that “the child was not even found in the same room as Shannon’s body,” and that “there was no evidence to show” who’d been assaulted first, “or for that matter, where within the home the assaults occurred,” Hannah concluded: “This was not evidence. It was pure speculation and conjecture.”
Rejecting the majority’s opinion that the issue was insignificant, he continued, “The state’s attorney was not going beyond the record to argue evidence that he thought should have been admitted. Instead, he testified to fictional facts. This is a serious problem that calls the very legitimacy of the trial into question.”
In the end, Hannah concluded that the opinion written by Arnold “stretches and reaches to assert
unsupported conclusions.”
He wrote, “In large part, this is so because in the [majority’s] analysis, the lives of Howard, Brian, Shannon, and Trevor Day are deftly lifted and separated from a virtual cesspool of crime teeming with any number of vermin who quite likely had both cause and motive to harm Shannon and Brian, as well as Howard and others.
“In this way, Howard and the Days can be viewed in isolation, and therefore the facts are not too difficult.
“However, if this case is viewed as it ought to be, the record we have received is hopelessly complicated, and to dive into the facts of all the witnesses is to nearly drown in a nether world of any number of threats, of drug dealers dealing one drug for another, of trips to other states to view other drug operations, of mysterious unidentified out-of-state drug dealers, of such fear among witnesses that they are careful not to be seen by anyone talking to the police.”
Far from supporting the verdict that Howard was guilty, Hannah concluded that the evidence presented by the state pointed clearly to no particular killer. “The most reasonable hypothesis that the evidence will support,” Justice Hannah wrote, “is that Brian was trying to do a deal with those to whom he was deeply indebted, and it went bad.”
. . .
In light of the extreme penalty Howard faces–death–and the extreme differences that arose among the justices who reviewed his case, Tim Howard’s lawyers have asked the court to look at his appeal again. As of this writing, the court had announced no decision on Howard’s petition for a rehearing. (End of Part 3.)