Poem for a Quiet Vigil

Some of you have asked me to post the poem I read at the Vigil for Justice on Sept. 29. Here it is.

Who are we?
Who are we, who, having heard a state say “Guilty,” have the nerve to shout back “No.”
Who are we to pray: “Give these men fair trials or for God’s sake let them go!”

I’ll tell you who we are not.
We are not Internet idiots, with time on our hands, who “don’t really know what transpired.”
Nor are we fools who think evidence at trials is something courts need not require.

Who are we?
We are common people with common sense who dare to expect justice.
We are common people with a common intent who won’t be told that madness
Makes somehow judicial sense—and that the pounding of a judge’s gavel can turn madness
Into justice—It can’t. All that gavel gave us was black-robed, black-day, death-dealing sadness.

Who are we?
We are common people with enough common sense to see through an insidious bluff
And—with lives on the line—who’ve stood up to Power to tell it firmly, “Enough.
Enough. You have taken—and betrayed—our trust.
You cannot feed us nonsense, then imprison and kill for us. No more. Not now. Enough!”

Who are we?
We are Arkansans. We are Americans. We are citizens of the world who care
About matters of actual innocence—and about having courthouses where
What happens inside makes sense—where proceedings don’t mock reason—and where
commoners don’t have to rise up—as we have had to rise up—to damn calling sham trials fair.

Who are we?
We are the commoners who would try to stay the executioner’s anxious hand—and who say,
That every hour an innocent person is locked away is time unconscionably long. Yet Damien,
Jason and Jessie have been imprisoned for years—for thousands upon thousands of days—
While their precious youth—their irretrievable youth—has been shamelessly stripped away.

Who are we?
We are the vigil-keepers, the watchers, the resolute sojourners for truth, who tonight tell
Three innocent men that we are—and we will be—with them until some court their freedom compels.
Awaiting that day, tonight we stand with them—with them again in their cells
And mark the dark passage of 17 years—to the tolling of a bell.

TruTV posts my commentary on the ‘all-wrong’ case of the West Memphis Three

See it here. And, if you read it, let TruTV know what you think about the case too. (Above, victims Stevie Branch, Michael Moore and Christopher Byers.)

Look who’ll be joining us in spirit for tonight’s Vigil for Justice

Want to see some of the amazing folks who are joining in tonight’s Vigil for Justice? They’ve sent pics from Arkansas, across the US and around the world. It was fun for me to get all these photos. Enjoy them here.

Journalism ethics?

Some of you may have seen the column by Linda Caillouet in today’s Arkansas Democrat-Gazette in which she suggests I may be ethically challenged because I both report on the West Memphis case and advocate hard as I can for new trials. Here’s the email I sent her this morning:

Dear Linda,

I’m sorry you didn’t call me to ask about my presumed conflict of interest. I would have been happy to tell you “the rest of the story,” which is this: I have been writing about the West Memphis case since 1994. Most of what I’ve written, including Devil’s Knot, I’ve written as a reporter, holding to what I believe are high standards of fairness and accuracy. Over the years, I have also written columns and opinion pieces about the case, based on what I’ve learned.

As support for the convicted men grew, public officials here in Arkansas began to receive volumes of mail critical of their trials. In turn, as local media began to ask questions the response of many officials was that Arkansans were confident that the right men were in prison. They added that the complainers were people from out-of-state who didn’t know what really happened. About four years ago, upon hearing that response yet again, I decided to speak out. After all, I am an Arkansan and, having reported on this case in depth, I do know what transpired. At a time when few people in Arkansas understood the gravity of this situation, I felt that working to call attention to the case was the responsible thing to do. I wrote to Max Brantley, my editor at the Arkansas Times, and told him that, while I intended to continue to report on the case, I was also going to speak out, denouncing all that was wrong with the trials and advocating for new—and fair—ones. Max said okay, and that is what I’ve done since.

I have been very up-front about this, both in writing and in public appearances. If you took the time, for instance, you could hear me explain this transition in a talk I gave recently at North Little Rock’s Laman Library, http://www.youtube.com/watch?v=KAdH_aB4HJk. I have a good reputation, which I value. Perhaps because of that, and because I have been so forthright about my dual roles in this matter, no one that I know of—until you—has suggested a “problem” with my ethics.

I did enjoy meeting you at the Capitol Hotel bar Saturday night, but I think you took a cheap—and uninformed—shot this morning. I hope you’ll be able to find a few words in a future column to explain that, like many fine journalists before me, I have taken a public stand opposing an abuse of power.


I think that little ethics ball is in her court now. Let’s see how she responds.

2,500 turn out for celebrity concert seeking justice for the WM3

Saturday night was a big one in Little Rock’s Robinson Auditorium, when Eddie Vedder, Natalie Maines, Johnny Depp, Patti Smith and other artists put on a high-energy, near-perfect show to raise awareness about the injustice being suffered by the West Memphis Three. Here’s a good account of it from AOL.com.

I’m told that Live Nation may eventually make the whole concert available on pay-per-view, and that Sirius radio will broadcast it on some yet-to-be-announced date.

Meantime, thanks to members of the audience who captured good audio of many of the songs with their cell phones, here’s a sense of how the concert unfolded.

Eddie Vedder:


It Rains On Me (Tom Waits)

Lisa Blount:

Mercedes Benz

Video with Damien Echols, Jason Baldwin and Jessie Misskelley, Jr.

Bill Carter and Will Sexton:

Something Made Of Paper

Video from *Henry Rollins *

Johnny Depp reading from Damien Echols’ journal

Eddie Vedder:

The Times They Are A Changin’

Open All Night (Bruce Springsteen)

Fistful of Mercy:

Fistful Of Mercy,

Restore Me

My Father’s Son

Natalie Maines:

Death’s Got A Warrant

If I Had My Way, Free Life

I Smell A Rat

Eddie Vedder and Natalie Maines:

Golden State

You Can Close Your Eyes (James Taylor

Eddie Vedder with Johnny Depp on guitar:


Patti Smith:

My Blakean Year


Dancing Barefoot

Finale (all):

People Have The Power)

Assessing Fogleman’s defeat

Going into the election on May 18, most pundits expected Judge John Fogleman to defeat his opponent, Judge Courtney Henry, for Position 3 on the Arkansas Supreme Court. I too was braced for Fogleman’s win.

After all, the Arkansas Democrat-Gazette, the statewide daily paper, had endorsed him, as had my own paper, the Arkansas Times, despite a cover story I’d written a couple of weeks before on his role in prosecuting the West Memphis Three.

On top of that, Fogleman had won endorsements from every past president of the Arkansas Bar Association. And, as I’d mentioned in my article, the Arkansas Trial Lawyers Association had named him its Outstanding Trial Judge in 2008. It was quite a lineup of support.

Fogleman campaigned on his experience on the bench. He’s been a circuit judge for 16 years—the entire time that Damien Echols, Jason Baldwin and Jessie Misskelley have been in prison. His opponent, by contrast, had almost no such experience, though she currently sits on the state court of appeals.

So what are we to make of Fogleman’s defeat?

First, there is no doubt that Henry campaigned hard—and with a lot of money. Her critics complained, for instance, about the sizeable financial support she’d accepted from the nursing home industry.

Second, she is personable and conservative, qualities that help most candidates in this state. But most observers now think there was more: that many of the votes for Henry were primarily votes against Fogleman.

We’ll never know how many of Henry’s winning votes came from people like me—voters who simply could not mark their ballots for Fogleman because of his decision 16 years ago, as a young prosecuting attorney, to seek death for the West Memphis Three. What we do know is that any politician who looks at that race will conclude that those votes had an impact.

The counties that Fogleman won tell part of the story. His strength was limiited entirely to the eastern part of the state and a few southern counties—essentially the delta, above and below West Memphis; the part of the state once ruled by its plantations.

(See for yourself on an Arkansas county map. The counties Fogleman won are: Ashley, Bradley, Calhoun, Clay, Columbia, Craighed, Crittenden, Cross, Dallas, Drew, Greene, Lawrence, Mississippi, Nevada, Poinsett, Randolph, and St. Francis.)

Henry lives in the northwest corner of the state, and she was very strong there. But Little Rock and all of central Arkansas were up for grabs. Both candidates knew that to win, they would have to win the state’s center.

It looked like Fogleman might have an edge here because so many courts are centered in the capital. But this is also a media center, and in the past several years, the media have reported heavily on the erosion of Fogleman’s case against the West Memphis Three—a case that was weak from the outset.

I doubt there is a politician anywhere in Arkansas who has looked at Fogleman’s loss and not seen the hand of angry voters. I think every supporter who has ever worked to spread the word about the West Memphis injustice can count that as a victory.

Let’s hope it’s also a turning point.

Judge John Fogleman: cavalier and careless on the campaign trail

Judge John Fogleman, who prosecuted Damien Echols, Jason Baldwin and Jessie Misskelley and who is now running for a seat on the Arkansas Supreme Court, has said several times that if the three are innocent, he hopes they will soon be freed. He then notes that he does not believe they’re innocent.

An honest judge—one who sincerely cared about matters of guilt and innocence—would take time to learn the facts.

In a speech on Jan. 20, Fogleman derided the importance of new evidence that has been submitted on behalf of the West Memphis Three. He told the Lions Club and Trumann, Arkansas:

“They found a hair that belonged to a stepfather of one of the [murdered] boys and another hair belonging to a friend of that stepfather.

“But what,” he asked, “is really unusual about finding a hair from a stepfather on his stepson. I would think that would be something expected. … A hair from a stepdad on a stepson shouldn’t be unexpected.”

He concluded: “This was a difficult case. But it was investigated thoroughly. Many people were looked at in this case. But I will say, every piece of evidence we had pointed to those three.”

The problem with all this is that none of it is true.

The hair of a stepfather was found—but not on his own stepson, as Fogleman said, but in the bindings of another of the three murder victims.

If the judge is going to talk about this very important case, he owes it to his audiences to, at least, get his facts straight.

Fogleman also strains credibility with his claim that the case was thoroughly investigated. It was not.

The stepfather whose hair has been found on one of the victims was not even questioned as part of the investigation. And the questioning of other important parties was cursory, inept, or both.

But where Fogleman really mocks his audiences—and everyone in this state who risks having him elected to the supreme court—is with his claim that “every piece of evidence we had pointed to those three.”

He must believe we’re all so ignorant that we don’t know about the evidence left in a Bojangle’s restaurant on the night of the murders by a bloody, muddy man, who tried to clean up in the restroom.

Fogleman must think nobody remembers that when police were asked what happened to the bloody items they’d collected from the restroom, they testified that that critical evidence had been “lost.”

That evidence would have pointed away from the three who were convicted, but it conveniently never made it into court.

Fogleman’s cavalier attitude about the facts and the conduct of this case are chilling.

But the worst of his remarks is this: If losing evidence is so okay with Fogleman that he’s willing to call an investigation in which that happens “thorough,” Arkansans should have grave fears about what kind of judgment he will bring to cases that come before him on the high court, if he’s elected.

Above the law, Part 2

While America and the world look on, we here in Arkansas are struggling with a capricious state supreme court that increasingly has come to symbolize our tattered legal system. Here’s my latest attempt in the Arkansas Times to explain just a little bit of what the WM3—and the rest of us—are up against.

Arkansas high court displays contempt for its own rule

A column I’ve written about the latest example of shoddy court practices, especially as they relate to the West Memphis case, appears in this week’s Arkansas Times. It’s titled Above the law.

Arkansas, Scalia and Thomas would execute despite innocence

Last week, an Arkansas prosecuting attorney refused to grant Victoria Hutcheson immunity when she wanted to recant her earlier testimony in the shameful prosecution of the West Memphis Three.

If there was any lingering doubt, that act erased it: Arkansas officials are not interested in either truth or justice in this case. They care only about preserving the ill-gained convictions won in Judge David Burnett’s court 15 years ago.

The matter of actual innocence is growing hotter as scientific advances prove more and more convictions to have been wrong. In the process we get to see how our officials react to the new information.

Do they try to correct the wrong as swiftly as possible, as some prosectors are doing? Or do they resist the new information, fighting to keep it out of court, as we in Arkansas witnessed with last week’s aborted testimony by Ms. Hutcheson?

At the furthest extreme, we get to witness the chilling logic of two members of the U.S. Supreme Court, Justice Clarence Thomas and Justice Antonin Scalia, who recently wrote that courts have no obligation to assure that they are not sending an innocent person to death.

Arkansas, with its disregard of Hutcheson’s attempted recantation, appears to join Thomas and Scalila in a degree of calousness that’s beyond the pale.

The following editorial appeared in the New York Times on Wednesday, August 19, 2009

The Court’s Duty

We are relieved that the Supreme Court has ordered a lower court to reconsider the conviction of a Georgia death row inmate who may be innocent. In a shocking dissent, Justices Antonin Scalia and Clarence Thomas dismissed the idea that the courts have a duty to ensure that they are not putting an innocent man to death.

We hope that the Georgia court will see that justice is done. And that the other justices will make clear in future cases that the Constitution prohibits the execution of death row inmates who can produce convincing evidence that they are innocent.

Troy Davis was convicted of the 1989 murder of an off-duty Savannah police officer. Seven key witnesses have since recanted, and several people have charged that the main prosecution witness was the shooter. Rather than arguing that there were procedural flaws in his trial, Mr. Davis is making the more basic claim that he is innocent and that new evidence proves it.

The Supreme Court ordered a federal district court to “receive testimony and make findings of fact” about whether the new evidence clearly establishes that Mr. Davis is not guilty. Such a hearing is the best vehicle for getting at the truth — and for possibly rescuing an innocent man. There is no excuse for not having one.

In their extraordinarily cold dissent, Justices Scalia and Thomas argued that the Supreme Court has never held that the Constitution prohibits executing an inmate who had a full and fair trial but is later able to convince a court that he is actually innocent. To the contrary, they argued that a federal law — the Antiterrorism and Effective Death Penalty Act of 1996 — prevents the courts from intervening on behalf of a death row inmate who claims to have proof of his own innocence.

This reading of the law is incorrect, as Justice John Paul Stevens ably explained in a separate opinion. It is also unconscionable. For the state to put a person to death is, in our opinion, always wrong. To do so in the face of clear evidence of innocence is barbaric.