‘Evidence that points the finger’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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