Why I wrote about Byers, the confidential informant

Some readers have asked why I posted the article below at this time. The answer is that it was prompted by two other articles dealing with confidential informants that I wrote recently for the Arkansas Times: Bullet in the back and a related piece, Death under cover. The obscurity that surrounds confidential informants and their relationships with police has clouded aspects of both of my books and figured in much of my reporting.

The real occult element in the case of the WM3

John Mark Byers, once a suspect in the murders of Christopher Byers, Stevie Branch and Michael Moore, the three boys killed in West Memphis in 1993, was a police informant. Byers was the stepfather of Christopher, the only child who was sexually mutilated in the attack.

In 1994, after three local teenagers were convicted of the crime, based on evidence citing “the occult,” the police file on the investigation became public. It revealed how, in the month between the murders and the teenagers’ arrests, the West Memphis police had checked the backgrounds of dozens of potential suspects, from residents of the boys’ neighborhood to Viet Nam war veterans at a Memphis hospital.

What the file did not contain was any mention of Byers’s police record. To this day, the extent of Byers’ relationship with the police who investigated the murders fits–more than any other part of this case–the definition of the word occult. It remains“hidden; concealed; not exposed to view.”

And that is troubling.

The alliance formed between police and confidential informants is a shady deal. Known criminals are allowed to go unprosecuted in exchange for services they provide to police. All aspects of that relationship–the names of the criminals, the crimes overlooked, or the services supposedly provided–are secret.

Ordinarily, that dark element of law enforcement passes largely unnoticed. But when it becomes known that police had previously formed such a secret alliance with one of the suspects in a murder investigation, and when a pattern of special treatment by police can be seen with regard to this suspect/informant, the public’s confidence in the investigation’s outcome may be justifiably skewed.

Suppose that Byers’s record before the murders had not been cloaked in the secrecy of his informant status. When the murders occurred, reporters checking the record would quickly have discovered:

–that Byers’s first wife had sought a restraining order against him, claiming that he had threatened to kill her;

–that six months later, Byers was convicted of terroristic threatening, a felony, for physically attacking her and, again, threatening to kill her, in the presence of their two children;

–that he was placed on probation, on the condition that he pay child support;

–that, when his ex-wife showed the court that he was not paying his child support, his probation was not revoked;

–that Judge David Burnett, who would later preside at the murder trials, ordered all record of Byers’s felony conviction expunged;

–that nine months before the murders, Byers was arrested in Memphis and charged with felony possession of cocaine and dangerous weapons–but not prosecuted;

–that, six months before the murders, officials at United Parcel Service had asked the West Memphis police to help investigate Byers in the theft of merchandise worth thousands of dollars;

–that, when the West Memphis police failed to take action, UPS had turned to the Arkansas State Police, who established that Byers had, in fact, committed the fraud;

–and that, though Byers admitted his guilt when confronted with the state police evidence, Prosecuting Attorney Brent Davis, who later won convictions of the teenagers in the murder case, decided not to charge Byers with any criminal offense.

While preparing for the murder trials, defense attorneys learned that Byers was a police informant. I discovered some of the details of his career while researching Devil’s Knot. Other episodes may remain hidden. But even what has surfaced establishes that, for years, Byers received special treatment from police, prosecutors and the court.

That allows the question to linger: just how “special” was the arrangement between Byers and the police? In particular, did the nature of the police department’s relationship with Byers color officers’ reluctance to question him, even when a knife he owned was found to be stained with human blood?

Judge David Burnett permitted HBO cameras to film both the murder trials. He said he was proud that he ran such an open court. But cameras and the public were banned from one part of the second trial, and Burnett went so far as to issue a gag order, requiring the attorneys who were present never to speak of it.

This occurred when defense attorneys attempted to call a young man named Christopher Morgan to the stand. Morgan had once confessed to the killings, but had then recanted. Defense attorneys thought that that was something the jurors should know. But Burnett would not allow Morgan to testify. Burnett never stated explicitly why he was barring Morgan’s testimony. The dialogue transcribed in that session was cryptic, deliberately occult. The only thing that was clear was that Morgan was also facing charges in Memphis that related to drugs. As Morgan’s lawyer told Burnett, “I’ve been advised by my client, and I’ve been advised by the attorneys, that there may be also–in addition to possibly incriminating himself pertaining to these events–that there are some overlapping facts regarding the federal court charges.”

Was Morgan also an informant, receiving some kind of special treatment? Maybe. Maybe not. Perhaps Morgan’s attorney simply did not want Morgan to take the stand in this trial and publicly admit that he had lied, however briefly, to police when he said he’d murdered the children. His alternative would have been to plead the Fifth Amendment and refuse to answer questions. But Prosecutors Davis and Fogelman fought that, for fear that it could weaken their case against the three teen defendants.

Whatever the answer, due to the secrecy that surrounds police deals with informants, the public is left to speculate. As an exasperated defense lawyer told Burnett:

“… (T)he court is issuing a gag order which prohibits anyone from telling anybody at all that this court will not allow us to call Chris Morgan, and thus, there is no answer to why Chris Morgan was not called, and you are prohibiting us from telling the press that the state of Arkansas objected to this evidence and this witness, and that you would not allow us to question him and you would not allow us to discuss your ruling at all, and this is a public trial, which has been continually played out in front of the press, and at this point in time, when there is evidence that is detrimental to the state, it is being done in private.”

Instead of addressing the complaint, Burnett issued a complaint of his own. “I’d also want to point out,” he told the defense teams, “that the defendant’s lawyers–Mr. [Damien] Echols’s lawyers–violated one of the rules by disclosing the identity of a confidential source. The court instructed the parties that no mention of–is it Byers?–Mr. Byers’s cooperation with the Memphis Police Department, West Memphis Police Department or the drug task force would be mentioned, and yet it was mentioned.”

What was “mentioned” at the trials–and what was not–proved crucial. The three teenagers were convicted. One was sentenced to death, the others to life in prison. The skimpy police records the teens had developed prior to the murders are open. Byers’s far larger and more serious record is not.

Besides the many other questions that plague the trials in this case, questions about the special treatment accorded Byers have been heightened since the trials.

It is true that he was caught distributing drugs and sentenced to a term in prison, but that arrest was made, not by local law enforcement authorities, but by the state police, after Byers unwittingly placed a call to a trooper, offering to sell him drugs.

But even after Byers moved to another part of Arkansas, charges against him continued to arise–and to be handled in an unusual fashion. For example:

–In 1995, Byers was convicted of contributing to the delinquency of a minor, after instigating a fight in which a boy was injured. He was sentenced to a year in prison, with nine months suspended. But Byers never went to prison.

–A year later, after he was convicted of burglary and theft in his new town, prosecutors made a deal with him, that they would not send him to prison provided he accept banishment; in other words, they would let him remain free so long as he never returned to the county.

The banishment deal is especially odd, since to make it, the prosecutor himself had to break the law. Banishment–a practice common on the frontier–is barred by Arkansas’s constitution.

Key testimony at the trials of Damien Echols, Jason Baldwin and Jessie Misskelley Jr., centered on allegations that the three were motivated to kill the children due to their involvement in “the occult.” In its review of the trials, justices for the Arkansas Supreme Court noted that, “Echols admitted that he has delved deeply into the occult and was familiar with its practices.” They cited the testimony of “Dr. Dale Griffis, an expert in occult killings,” and concluded, “In sum, Dr. Griffis testified there was significant evidence of Satanic ritual killings.” They rejected defense arguments that Burnett should have let Morgan take the stand, even if he had invoked the Fifth Amendment for every question asked. The matter, the justices ruled, had been for Judge Burnett to decide. They found no “manifest abuse” of his discretion.

So the verdicts stand, based on an investigation by a police department that was cooperating with one of the suspects, prosecutions by officers of the court who had, presumably, approved those secret deals, and rulings by a court in which key evidence truly was hidden–proceedings and rites that were, in another word, occult.

A soldier ‘tells’

Talk about military waste. Here’s one shapshot of what we’re squandering with “Don’t Ask, Don’t Tell.” It comes from Pepe N. Johnson, of Dallas, TX, a member of Military Equality Alliance:

I was a sergeant in the Army until I was kicked out in 2003. In 2001 I was selected as the Fort Sill (OK) Soldier of the Year. As far as Rep. [Vic] Snyder saying there isn’t a “big” push – he’s correct – in that there is not a lot of money behind us. I don’t make much more than I did as a sergeant, but I have devoted as much time and money as I can to work to repeal this law. I have a sincere desire to return to the military, but without having to lie and hide and be subject to vicious gossip and rumors. I can’t offer money or influence, just myself.

The award pictured above reads:

Department of the Army

This is to certify that the Secretary of the Army has awarded

The Army Commendation Medal

To Specialist Pepe Johnson

Headquarters and Headquarters Service,

2nd of the 2nd Field Artillery

For exceptional achievement culminating in the selection as the United States Army Field Artillery Center and Fort Sill Soldier of the Year, Fiscal Year 2001. Specialist Johnson’s achievement brings great credit upon him, Fort Sill and the United States Army.