As Tim Howard trial nears, defense team claims prosecutor abusing power

Jury selection will start Thursday in Ashdown (Little River County) in the re-trial of Tim Howard, whose 1999 conviction and death sentence for murdering two friends was vacated in 2013 due to prosecutor misconduct.

Circuit Judge Charles Yeargan is also expected to rule that day on a second defense motion that alleges further prosecutor misconduct in the run-up to this new trial, as well as on my motion to be relieved of a prosecutor’s subpoena that could prevent me from reporting on the trial.

In the first motion alleging misconduct, Howard’s attorneys claimed that Prosecuting Attorney Bryan Chesshir had not provided them with required evidence, such as a coroner’s report, crime scene photos and police interviews. That motion also argued that subjecting Howard to a second trial after the state had engaged in misconduct at his first trial amounted to double jeopardy. Yeargan denied that motion.

In a motion filed last week, defense attorneys charged that Chesshir was engaging in additional misconduct.

Bryan Chesshir

Tim Howard Trial Prosecuting Attorney Bryan Chesshir

They asked the judge to dismiss the charges against Howard due to claims that Chesshir has abused his official powers by subpoenaing defense witnesses “to determine what their testimony will be at trial,” by “subjecting some of these witnesses to numerous prosecutor subpoenas to elicit information from them regarding their conversations with the defense team,” and by using the prosecutor subpoena to put witnesses in a room together, with an investigator and a prosecutor, to compare their testimony and to cajole answers from witnesses.”

According to the latest motion, one defense witness whom Chesshir subpoenaed subsequently told Howard’s attorneys “that he was unaware of many of the facts in the case until he heard it from the other witness who was being asked questions right in front of him.”

Another defense witness questioned by Chesshir reportedly “indicated that she felt as though the prosecutor was attempting to get her to adopt the version of events” that was outlined by her ex-husband, who was questioned with her.

Little Rock attorney Patrick Benca argued in the motion to dismiss that Howard “is being denied equal protection of the law by the state asserting a power to coerce defense witnesses to testify before trial and under oath, and the defendant not having this equal power.”

Benca also argued that Chesshir’s practice of subpoenaing defense witnesses as he has “runs a serious risk of witness intimidation” and of violating of laws that require prosecutors to disclose to the defense information learned in interviews conducted by state officials.

Chesshir reportedly has not provided such information to the defense. Nor has he filed a written response to Benca’s recent motion.

Similarly, Chesshir has not filed a written response to the motion I filed on March 16, asking the court to relieve me of a subpoena by Chesshir to appear as a witness for the state at Howard’s trial and and to bring with me all “notes and recordings” of interviews I’ve conducted with Howard.

As before, Chesshir asked the court to hold a hearing on this motion, and Yeargan agreed. That hearing is scheduled for Thursday, at which time I expect to learn whether I will be allowed to attend and report on the trial.

Chesshir’s subpoena to appear at Howard’s trial was the second I’ve received from him. The first commanded that I appear to be interviewed by him the last week of February. I complied and for an hour answered questions about my reporting as a state police investigator listened and Chesshir’s secretary took notes.

I told Chesshir I knew nothing about Howard or the victims at the time of the crime and had no knowledge of the case beyond what I had written or what had already been presented in court. Yet, as I was leaving the courthouse, deputies served me with the subpoena to appear at the trial starting later this week.

That subpoena means that, as a potential witness, I could be excluded from the courtroom during the trial of a case on which I’ve reported for 13 years. During my questioning, Chesshir told me he did not intend to bar me from the courtroom, but while under subpoena, I have no assurance that I will be allowed in.

In my motion to quash the subpoena, my attorney, Matt Campbell, wrote that, “Given that the trial in this case is a re-trial, for which a conviction was already previously obtained, logic dictates that nothing in Ms. Leveritt’s notes is essential to Mr. Chesshir’s ability to present the State’s case, and there is no ‘clear and imminent threat to the fair administration of justice’ that would support Mr. Chesshir’s infringement of the freedom of the press.”

He also wrote that the subpoena was “at best, a fishing expedition by the prosecuting attorney, which has been expressly disallowed by the Arkansas Supreme Court.”

Update: Max Brantley has witten about this at the Arkansas Times.

Tim Howard trial delayed; Judge fumes over evidence issues

George 'Birc' Moreledge, Tim Howard and Patrick Benca

Tim Howard with attorneys George ‘Birc’ Moreledge (left) and Patrick Benca (right)

Tuesday, an Arkansas circuit judge ordered the Tim Howard trial delayed on charges of murder because a key witness will be unavailable the week of March 2, when the new trial was to begin. It is now scheduled to start on April 23.

At Tuesday’s hearing, Circuit Judge Charles Yeargan denied a motion by Howard’s attorneys to dismiss the charges against Howard. Defense attorney Patrick Benca had argued that, because the prosecutor failed to provide several “important” pieces of evidence as required, it will be impossible for the new trial to be fair.

When Prosecuting Attorney Bryan Chesshir acknowledged that several items of evidence sought by Benca could not be provided, Yeargan interjected:

“It’s frustrating for me to sit here and listen to all this. As you know, this court took a giant leap to order this new trial.

“We all agreed that there would be full and complete discovery. Now we’ve got all these holes that you’ve come up here with. It’s very frustrating—I swear—it’s frustrating to this court.”

When Yeargan acknowledged that the situation was probably frustrating for the attorneys as well, Howard, who has been jailed for the past 17 years and who has thus far sat quietly throughout every proceeding, spoke up. “It’s frustrating for me!” he said.

Yeargan admonished him to let his attorneys do the talking.

Finally, Yeargan dismissed Howard’s argument that he is being subjected to double jeopardy because he was tried unfairly once and now faces the prospect of an unfair second trial because of “continuing” misconduct by state officials. That issue, the judge said, was for a court higher than his to decide.

Before the hearing began, sheriff’s deputies served me with a subpoena, ordering that I appear at the trial and bring “all notes and recordings, both audio and visual”—presumably of my interviews with Howard. I told Chesshir I would not comply.

He has listed me as a prosecution witness, despite my acknowledged friendship with Howard. When asked whether that would bar me from the courtroom, making it impossible for me to report on the trial, Chesshir said that “at this time” he thought he would allow me to attend.

The conduct of prosecutors in this case has been at issue for years. A finding of prosecutor misconduct led Yeargan to vacate Howard’s original conviction and death sentence, handed down in 1999. And complaints about misconduct by Chesshir since Howard was granted a new trial have dominated recent hearings.

Patrick Benca and Tim Howard

Patrick Benca and Tim Howard

Yeargan has heard it all.

He officiated at Howard’s first trial in 1999. Fourteen years later, in 2013, it was he who vacated Howard’s conviction and death sentence.

Yeargan took that unusual step after finding that Tom Cooper, the prosecutor at the original trial, had not provided Howard’s public defenders with notes about DNA the state presented as evidence.

At Howard’s original trial, Cooper told jurors that DNA found on a pair of boots was of “monumental” importance in linking Howard to the murders. Years later, however, attorneys appealing Howard’s death sentence learned that the technician who tested the DNA had made notes about contamination that had occurred while the tests were being conducted.

Those notes were never provided to Howard’s defense counsel. Even when their existence became known, the Arkansas Attorney General’s Office resisted releasing them for years.

A court finally ordered state officials to surrender the notes. Once they were obtained, Howard’s attorneys took his claim of prosecutor misconduct to the state supreme court. That court eventually sent the case back to Yeargan for review.

Yeargan concluded that Cooper’s failure to provide the lab notes to Howard’s attorneys had been “inadvertent.” Nevertheless, he ruled that, as the violation did constitute misconduct, Howard’s conviction would be vacated and a new trial granted.

At that point, Howard officially became an innocent man, a man never convicted of a crime. Chesshir could have declined to charge Howard again—a decision that might not seem outrageous in light of the fact that when Howard filed the direct appeal of his sentence, three of the state’s seven supreme court justices wrote that they found the evidence presented by Cooper insufficient to sustain a conviction.

But Chesshir chose to charge Howard with the murders again. He now has the burden of proving Howard’s guilt.

Among the items of evidence that Howard’s attorneys said have not been provided and that Chesshir said cannot be found are:

  • A tape recording of a witness made at Millwood Lake by Sheriff Danny Russell and Arkansas State Police Investigator Hays McWhirter
  • Russell’s interview notes of another witness who said the sheriff questioned him
  • A report by a state Game and Fish officer who assisted at the scene where Brian Day’s body was found in a U-Haul truck and later at the Days’ home, where Shannon Day’s body was found in a closet
  • The coroner’s report for Shannon Day
  • X-rays that were taken of Brian Day’s body
  • Photos that were taken of the Brian Day crime scene by Jim Williamson, a reporter for the Texarkana Gazette who at the time was also an auxiliary police officer. See below.

Texarkana reporter assisted police in Tim Howard case

The headline in today’s Texarkana Gazette, above an article by reporter Jim Williamson, reads: “Second trial on hold for convicted killer.

There are at least three problems with that.

The first, as noted in the accompanying article, is that Howard is no longer a “convicted killer.” When Judge CharlesYeargan vacated Howard’s conviction in 2013, he rendered it void. Legally, Howard became an innocent man; he ceased being a “convicted killer.”

The second problem is that this grossly inaccurate headline appeared in the biggest paper in the region where Howard’s retrial is to take place. It may complicate seating a jury.

The third—and perhaps biggest—problem is that Williamson may have an unacknowledged conflict of interest. (I acknowledge mine.)

Howard’s attorneys believe that Williamson may have assisted police at the time of the murders.

In his motion alleging prosecutor misconduct, Patrick Benca described photos of the site where Brian Day’s body was found that Benca says the prosecutor has not provided. The motion notes that Investigator Hays McWhirter testified that he took the photos.

“However,” the motion says, “the defense has learned that to not be accurate.”

Rather, Benca wrote, “Jim Williamson, who at the time owned part of the Ashdown newspaper and was an auxiliary police officer, took photographs of the scene as well. It was common for Williamson to take pictures of crime scenes back then because he had better photography equipment and access to a dark room.”

At Tuesday’s hearing, Benca told the court that Williamson had provided defense attorneys with negatives of photos of the crime scene they had never seen before. Benca also quoted Williamson as saying that, after he shot the photos, “he was asked to ‘develop these asap.’”


Testy session points to hard-hitting retrial of Tim Howard

Retrial of Tim Howard, February 13, 2015

Tim Howard retrial

The chance of a new death sentence for Tim Howard was taken “off the table” today as the judge and attorneys on both sides prepared for the retrial of Tim Howard on charges of murdering a man and woman in Little River County in 1997.

Howard spent 14 years on death row before a court granted him a new trial in October 2013 after finding that the prosecutor at his original trial had failed to disclose potentially exculpatory evidence.

At a pretrial hearing in Ashdown this morning, Circuit Judge Charles Yeargan accepted Prosecuting Attorney Bryan Chesshir’s decision to seek a sentence of life without parole for Howard at his new trial, which will start Mar. 2.

Earlier today, Howard’s lead attorney, Patrick Benca of Little Rock, submitted to the court a motion to dismiss the case entirely, due to what Benca called “further violations” of the state’s duty to disclose “exculpatory and/or potentially exculpatory information.”

For example, Benca noted in his motion that, though his team has sought for more than a year to examine the panties and sweat pants worn by the female victim, those items were said to have been lost until, “They were finally located on January 28, 2015, in the evidence storage room of the Ashdown Police Department.”

Retrial of Tim Howard, with Attorney Patrick Benca

Tim Howard with Attorney Patrick Benca

Another “newly discovered” item Benca cited was a document that mentioned a 911 call made to the Sheriff’s Office about the murdered woman before her body was discovered.

The motion claims that, although Chesshir told defense attorneys “that 911 did not exist in December of 1997,” the newly discovered report was dated Dec. 13 of that year. “To date,” the motion said, “no 911 tape has been turned over to the defense.”

In total, Howard’s attorneys listed 13 items of evidence, including the coroner’s report for one victim and X-rays of the other, that they say the state is required to provide but has not.

Benca argued in his motion that, because of the “misconduct done by the prosecution before, during and after the original trial, and since Mr. Howard has been granted a new trial,” Howard cannot receive a fair trial and the charges against him should be dismissed.

Judge Yeargan scheduled another hearing for Feb. 24 to hear arguments on the 21-page motion to dismiss.

Prosecutor Bryan Chesshir

Prosecutor Bryan Chesshir

Earlier this week, Chesshir filed a motion to compel Howard’s attorneys to provide the state with the names, addresses and phone numbers of witnesses the defense intend to call “and all written or recorded statements made by these persons and a brief narrative of each witnesses [sic] testimony.”

Benca responded that the names and addresses would be provided today. The rest of what Chesshir wanted, he wrote, was not legally required.

Voices rose and the discussion before the bench became agitated this morning, as attorneys for Howard and the state debated what must and need not be provided and what should and should not be introduced at trial. At one point, Yeargan interrupted them to shout: “Alright! Stop!”

He called a recess and instructed the attorneys to “calm down,” which they did. Howard sat alert and quiet, taking notes throughout.

Tim Howard Motion To Dismiss February 13, 2015 (21 pages)

Tim Howard Motion To Dismiss February 13, 2015 (21 pages)






Quiz for Dustin McDaniel

Attorney General Dustin McDanielIn light of the state attorney general’s recent, successful arguments against paying Gyronne Buckley the $460,000 that the Arkansas State Claims Commission said Buckley deserved because he’d spent more than 11 years in prison due to a conviction obtained by bad behavior on the part of state officials, we think an exercise parsing Dustin McDaniel’s logic may help him think a bit straighter.

1. As you have never been convicted of a crime, when you get out of bed in the morning, are you guilty?

Careful. We know you’re our state’s top prosecutor and that “could be” jumps right to mind. But remember you represent the law and this is a legal question. We suggest “no” for the right answer.

2. If a police officer looks at you but concludes you’ve done nothing wrong, did you get off on a “technicality”?

Slippery question, we know. Hint: the answer is “no.”

Bring A Prosecutor To Justice

lying 200If there is one thing I’ve learned reporting on our criminal justice system it is that we have too many prosecutors playing fast and loose with the law. As a result, I am proud to serve on the Board of Advisors for the Center for Prosecutor Integrity.

We have undertaken a huge, fascinating, and very important task, as our executive director, Ed Bartlett, explains below. Imagine what a difference this Registry will make! Please support us if you can.

Here’s Ed’s letter:

How many times have you heard about a rogue prosecutor who was let off the hook after a wrongful conviction caused by prosecutorial misconduct?

How often have you heard about a win-at-all costs prosecutor who was later feted as “Prosecutor of the Year,” elevated to the bench, or even elected to high political office?

According to the CPI report, “An Epidemic of Prosecutor Misconduct,” prosecutors who engage in misconduct are punished in fewer than 2% of cases. But now, there’s a way to bring a measure of justice to these cases – the Registry of Prosecutorial Misconduct.

Every prosecutor who is added to the Registry now finds himself or herself subject to public accountability. In fact we’ve been told that prosecutors in some states have already begun to think twice before withholding exculpatory evidence, knowing that they may end up being listed in our Registry!

There have been an estimated 16,000 cases of prosecutorial misconduct since 1970. Right now, the great majority of these cases are buried in appellate court opinions and dusty bar disciplinary records. We need to change that deplorable state of affairs.

The Center for Prosecutor Integrity is now launching a two-week campaign called “Bring a Prosecutor to Justice.” We plan to add 400 new cases to the Registry. Each case costs $50 to locate, research, verify, and enter the information into the database. So we need to raise $20,000 to accomplish the goal of 400 new cases.

While most malfeasant prosecutors will never face official sanctions, now we can shine the light of accountability on their behavior. And that will help turn the tide.

Your tax-deductible gift, large or small, will make a difference in the lives of millions of innocent Americans. You may donate here.

Thank you.

E. Everett Bartlett, PhD, Director

Center for Prosecutor Integrity
Working to end wrongful convictions through the enhancement of prosecutor ethics

P.O. Box 1221
Rockville, MD 20849
Office: 301-801-0608
Cell: 301-670-1964

Email | Website | Facebook

‘Start talking about the devil’

Burnett 200On March 3, 1994, John Fogleman, then a deputy prosecuting attorney, was preparing to call Damien’s probation officer, Jerry Driver, to the stand to question him about Damien’s alleged involvement in “the occult.” Damien’s and Jason’s defense attorneys were fighting hard to block that testimony. As I write in Dark Spell, the official transcript of that discussion reflects only that Burnett said he would allow Fogleman to question Driver about having seen “Damien, Jason and Jessie walking in Lakeshore wearing black coats and carrying staffs.” But we now know, thanks to a recording of the exchange that was picked up by HBO’s microphones, that that was not all the judge said.

HBO’s audio file of the trial was released to an archive of the West Memphis case a few years ago. An astute listener later caught a comment that the court reporter did not record. On the audio, Burnett can be heard chortling, apparently to the prosecutors, “If y’all want to spice it up a little bit and start talking about the devil, I’ll listen.”

That was the turning point, an opening that, as the case developed, would prove critical for the state. When Damien and Jason appealed their convictions to the Arkansas Supreme Court, the court cited the “testimony of Dr. Dale Griffis,” whom they described as “an expert on ritual killings,” and unanimously found that there was sufficient evidence “by which a jury could find that the crimes were a ritual killing.”

Though the Ph.D. Griffis claimed was discredited even at trial for having come from a mail-order college, Burnett allowed him to testify as an “expert.” And so the die was cast. I had not known of HBO’s recording of Burnett’s “spice it up” comment until this year. But I’m glad it’s in Dark Spell, because I find it the most revealing piece of this entire tawdry case. Listen here.

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


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

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

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

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

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

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

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

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

Here are some of their emailed responses:

Mark Cowart

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Attorney General Dustin McDaniel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 “Bridge,” Misskelley repeated.

Davis said: “Service Road. Okay.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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