Printing another letter that a supreme court official has warned me must not be disclosed

Today, the Arkansas Supreme Court ordered the case of Tim Howard back to circuit court to decide whether he should get a new trial. In a unanimous opinion, the court ruled that Howard’s claims of prosecutor misconduct at his 1999 trial have “apparent merit.” I outlined those claims last year in an article for the Arkansas Times.

(You’ll find an outline of the key issues in Howard’s case, as well as video from the recent oral arguments before the supreme court and a student-made video about the case, at the Arkansas Innocence Initiative.)

Last year I also complained to the Arkansas Supreme Court’s Office of Professional Conduct (OPC) about the behavior of Tom Cooper, the prosecutor in Howard’s case, and that of Dustin McDaniel, the state’s attorney general, in defending Cooper’s actions. I published that letter on this site. I immediately received a form letter from the Office of Professional Conduct stating: “YOU ARE PROHIBITED FROM RELEASING ANY INFORMATION OR DOCUMENTS ABOUT YOUR COMPLAINT FILED WITH THIS OFFICE TO ANYONE, INCLUDING THE NEWS MEDIA.” The letter warned: “ANYONE VIOLATING THIS CONFIDENTIALITY MAY BE FOUND TO BE IN CONTEMPT OF THE COURT AND PUINISHED BY FINE OR JAIL.” I posted that letter too on my site, along with my opinion that the order and accompanying threat violated the First Amendment.

In July 2011, the OPC notified me that it was dismissing my complaint against McDaniel but keeping open the one against Cooper, until a court weighed in with a decision on whether evidence had indeed been withheld. Ignoring the notice at the top of that letter that it was “Confidential,” I published its key elements here.

Also last year, I wrote similar complaints against prosecutors in the West Memphis case, received similar warnings from the OPC, and posted similar articles about both. Although the executive director of the OPC told a statewide newspaper that I could be held in contempt of court for writing about my complaints, no action has so far been taken against me.

I consider the OPC’s attempted intimidation to stifle free speech so serious that, last November, I filed a federal civil rights lawsuit. A trial has been scheduled for December 2013.

Now that the Arkansas Supreme Court has found “apparent merit” in Howard’s claims that evidence that might have exonerated him was withheld at his trial, I have again written to the OPC, asking that it investigate Cooper’s actions as prosecutor. (Cooper is now a circuit judge.) I also renewed my request that the office examine its policies regarding the actions of an attorney general in this case. Realizing that I may be “punished by fine or jail,” I here publish today’s letter to the OPC.

April 26, 2012

Mr. Stark Ligon, Executive Director
Supreme Court of Arkansas Office of Professional Conduct
Justice Building, Room 110
625 Marshall Street
Little Rock, AR 72201-1022

Dear Mr. Ligon:

On Feb. 15, 2011, I wrote to you complaining of apparent Brady violations in the case of Timothy Lamont Howard; specifically, that the prosecutor at his trial, Tom Cooper, withheld important evidence, and that the state’s attorney general, Dustin McDaniel, supported the verdict in Howard’s case, despite his office’s tacit acknowledgement that the evidence was withheld.

You responded that your office “has no authority to review the discretionary actions of appointed or elected officials, such as prosecuting attorneys, city attorneys, or sheriffs, in the discharge of their official duties,” and dismissed my complaint against McDaniel, and his subordinate, David R. Raupp.

However, with regard to my complaint against Cooper, who was also an elected official, you noted that you did not see “that any court, state or federal, has actually ruled on this specific issue yet…” You also wrote that, “Because the separate Brady violation issue really involves only Mr. Cooper…,” you would “keep the file open as to him and await any final court determination of that issue before proceeding further.”

This morning, the Arkansas Supreme Court unanimously granted Howard’s motion to reinvest the circuit court with jurisdiction in his case based on two “alleged Brady violations that have apparent merit.” As a result of that ruling, I repeat my request that the Office of Professional Conduct investigate Mr. Cooper’s actions as prosecutor in Mr. Howard’s case.

In light of this ruling and the legal profession’s “special responsibilities of self-government, “I also request that the Office of Professional Conduct re-examine its position of not entertaining complaints about the state’s attorney general, even in instances such as this, when he supported Mr. Cooper’s conduct by defending it. The attorney general did have the discretion to acknowledge the Brady violations, which he did not dispute and which the supreme court has now stated it regards as “apparent.” Had Mr. McDaniel taken that stance, he could have spared Mr. Howard the time—and the state the money—spent on protracted litigation.

Sincerely,

Mara Leveritt

WM3 prosecutor wrote, “There is little in this book that is accurate.”

Judge John N. Fogleman, April 2001

In April 2007, a supporter of the West Memphis Three wrote to Judge John N. Fogleman, asking about the case. Fogleman responded and the supporter sent me a copy of Fogleman’s letter. It was 11 pages long, on the judge’s official stationery.
Now that the men are free, I see several reasons to publish this letter.
1. I want to acknowledge that I did, in fact, make some mistakes in the book. I regret, for instance, that I wrote that Fogleman had once been a juvenile judge, when, in the situation described, he was prosecuting juveniles. In addition, I misidentified members of the judge’s family. I have personally apologized for these errors.
2. Primary sources about this case are important. A letter from the prosecutor reflecting on what transpired–and on my account of it–deserves examination.
3. I believe that, perhaps unintentionally, Fogleman makes a critical point that I myself have been stressing. That is that, in order for the public at large to understand what actually happened at a trial, all trials should be video recorded and made available by the court’s clerk for a reasonable fee.
4. I was recently told that a book club has formed to scrutinize DEVIL’S KNOT. The club includes readers who believe the West Memphis Three to be innocent and others who consider them guilty. This is idea of reading a book, reflecting on it and discussing it is deeply gratifying to me, as I believe it would be to any author. I appreciate the participants’ commitment to understanding this long and tragic case. I am on that road with them. While I cannot participate while I’m absorbed in JUSTICE KNOT, I nevertheless realized that I could at least contribute a review from a key participant in the case–one who is perhaps my book’s harshest critic.
What follows is a transcription of Fogleman’s letter, dated April 6, 2007. The recipient’s name has been deleted, and the spacing here does not replicate the letter’s. The content, spelling and punctuation, however, are exactly as in the letter.

Dear —–:
I received your letter dated April 1, 2007. I have to admit after reading your letter and observing the date I wondered if this was a joke. I have decided to take your letter at face value and try to give you a little insight into the case about which you inquired. You should keep in mind that it has been 13 years since I was deeply involved in this case. It surprises me (although I suppose it should not) that people would form an opinion about the guilt or innocence of a person based on what they read in a book or see in a movie. The only people who know what evidence was presented to the jury are those people who were in court every day during those lengthy trials. There were numerous members of the media present for every day of the trials and not one of them (that I am aware of) has written an article suggesting these defendants’ were wrongly convicted. The author of “Devil’s Knot” was not one of those persons.

There is a great deal of misinformation that has been floating around about this case since the murders occurred. You and your colleagues should not be convinced by a letter from me that these defendants are guilty, but by the same token you should take what you read in a book with a large grain of salt. The following is an example of the type of misinformation that is floating around. A few years ago I was listening to a Memphis radio station. On this radio station, Henry Rollins (a music industry person originally from New Jersey, a vocalist and actor) was promoting a fundraiser for the WMph3. Rollins said something to this effect:

 Jessie Misskelly was questioned without being told he had a right to a lawyer. He was not given due process. As a matter of fact he (JM) didn’t even know what a lawyer was.

Was JM’s questioning by the police his first exposure to law enforcement, his right to a lawyer and the courts?
1. In Aug of 1988, at 13, JM was in Juvenile Court on a charge of theft of property. JM had been advised of his Miranda rights and was represented by a lawyer in court.
2. In Nov. of 1992, at 17, JM was in Juvenile Court on a charge of Criminal Mischief in the 1 degree. On Oct. 27 and 28th JM was advised of his Miranda rights. JM was again represented by a lawyer in court.
3. In April of 1993, at 17 and just a month before the murders, JM was back in Juvenile Court on a charge of Battery in 3rd degree when JM attacked a teenage boy and girl. Again defendant had been advised of his Miranda rights and was represented by a lawyer in court.
4. Prior to JM’s confession he was advised of his rights 3 different times.
At page 78 of this book, “Devil’s Knot” there is a long quote purportedly of Jessie’s carrying over to pg 79. In this quote JM claimed that detective Gitchell told him what to say in his confession. This quote is total nonsense.
There was a full hearing on the Motion to Suppress. There was complete testimony in regard to everything that occurred in the questioning of Jessie. This allegation by Jessie that Gitchell told him what to say was never made until long after the trial. Jessie had a right to testify in the suppression hearing. If there had been such testimony the Author surely would have referred to testimony under oath rather than an interview of Jessie years after the crime.
This is simply an example of how the WM3′s supporters mislead. What it boils down to is they talk about things they know nothing about.
The book “Devil’s Knot” is a book that is filled with errors and mistakes and should not be relied on at all. Her book is filled with incorrect information. For example:
1. SLOPPINESS
The author is sloppy as reflected by a lack of concern for accuracy. The following 2 examples show this sloppiness. The author contacted me as she was writing her book requesting an interview. I granted her an extensive interview that was tape recorded.
     A. JUVENILE JUDGE
In regard to Jason Baldwin’s (hereafter JB) prior criminal activity and problems in Juvenile Court, the author states at page 56:

Fogleman, now a juvenile judge, placed Jason on probation and ordered him to pay nearly $450 in restitution, a huge some for him and his mother.

I have never served as a juvenile judge. I am a Circuit Judge hearing civil and felony criminal cases. In addition, a prosecutor in Juvenile Court simply makes recommendations to the Judge. I had no power to place anyone on probation.
     B. FATHER–SCHOOL BOARD & ARK. BAR ASS’N
In discussing my background the author states at page 159:

Fogleman’s father had served on the Marion School Board for 45 years; . . . . and his father had once been president of the Arkansas Bar Association

My father was never on the Marion School Board. The person referred to was my grandfather. My father was never the president of the Arkansas Bar Association. My uncle was the president of the Arkansas Bar Association.
2. BIAS–MPH TRIP
One example of Mara Leveritt’s bias is reflected on page 33 of her book. She criticizes the police for not challenging Byers’ assertion that he had gone to Memphis (Popular and Highland) and back in an hour and 10 minutes. Tucked away in a footnote she tells that the drive takes at least an hour at rush hour. If she herself says this why should the police have challenged Byers?
3. BLOOD ON KNIFE
The author in an effort to make it look like the Byers’ knife had some importance to the case wrote at page 148:

The sudden appearance of a knife–one owned by John Mark Byers and bearing traces of blood that was consistent with Christopher’s–was the most significant development in the case since Jessie Misskelley’s contorted confession.

What Leveritt fails to mention, until later in an aside, is that the blood was also consistent with Byers’ as well. The knife came from Byers’ home and had blood on it which could have come from either Byers or his step-son. As a result, the results were basically useless.
4. DISCOVERY MESS
Throughout the book the author write about a “discovery mess.” If there was a mess it was simply a result of the volume of material turned over. Ron Lax made numerous claims against the state for misconduct in the book, but none of these claims were presented in court. Why? They were meritless. He claims we did not give them everything. We gave the defense everything.
5. Warren Holmes
The author in Devil’s Knot at page 180 in discussing a defense witness, Warren Holmes (with the Miami Police Department 13 years) complains:

“The closest Holmes was able to come to addressing the issue at hand was to observe that Jessie Misskelly “certainly knows the difference between shoelaces and a rope. That was all the jury heard from Warren Holmes.”

This is absolutely false. Holmes was allowed to testify to numerous elements of false confessions and what he found in Jessie Misskelly’s (hereafter JM) statement that was troubling.
Warren Holmes testified that the only explanation for the things that JM got wrong was that JM either had memory problems or had abused alcohol or drugs. As a matter of fact, there was testimony that JM had huffed gas, smoked pot, abused alcohol and the psychologist found severe memory deficits.
Holmes also testified (see Pg 178) to the things you look for in a coerced confession and a true confession:
1. Indication of relief is expressed by the suspect when they finally confess–after JM finally admitted he was there he cried.
2. If the police are wrong in a supposition the suspect will correct–
a. A detective asked “Whose car were you in?” JM said “We walked”.
b. A detective asked “Did they take 1 picture of 1 boy”? JM says “no, they were in a group”.
c. A detective asked “had the boys been in the water”? JM said “No they did not get in the water.”
3. A suspect relates conversation with others–
a. JM tells about telephone call from Jason to JM and relates conversation.
b. JB called JM and asked if he would go to WMPH
c. JB called and asked why JM ran off
d. JB called and said “We done it, we done it”.
4. Something that corroborates the confession–
a. Testimony of witness the night of the murder who saw Damien and girlfriend on service road. Girlfriend with jeans with holes in knees. JM described Jason Baldwin’s pants with holes in his knees.
b. Fibers from victim’s clothing–shirt from JM’s and robe of Jason’s.
5. JM tells some inconsequential matter–
a. JM says he gave his shoes to Buddy Lucas–white and blue adidas.
6. Injuries to victims
JM says 1 cut in face and another cut in groin area. (Newspapers reported that all V’s had been sexually mutilated). (No info on cuts to the face). JM says V’s were grabbed by their ears. (ME shows extensive bruising to ears). ME says at least 3 weapons–2 club type weapons and 1 knife. There were at least 3 different types of knots used in tying the victims.
7. It is natural for a guilty person to try to lessen involvement–
JM says he ran down V (MM)–only V of three to not have torture injuries.
6. INTENTIONAL DISTORTION
     1. Photographs in Book
          a. 4 pg JB @ arraignment?
This picture was not taken at Jason Baldwin’s arraignment. When JB was arraigned he had long hair and was wearing jail coveralls.
          b. 6th pg DE @ sentencing?
If you look at the picture Damien Echol’s is wearing prison whites. In Arkansas juries arrive at sentencing recommendations. The defendant is then sentenced with the jury present. A defendant is not tried in jail clothing but in street clothes. At Damien’s sentencing he was wearing a black T-shirt and slacks.
          c. 2nd pg ditch where bodies found?
This is not the ditch were the victim’s bodies were found. The ditch where they were found was wooded and smaller. The ditch pictured was where the bicycles were found.
DISTORTION
At page 92 the Author states, “At 10:28 p.m., with a full moon high above them, dozens of police cars from several agencies pulled into three trailer parks.” If she means 2 doz., that is 8 cars per trailer. If 3 coz, that is 12 cars per trailer. The police would have been falling all over themselves. This is simply not true.
At page 94 the Author claims Jason Baldwin was driven to a local hospital where technicians took dental x-rays. I reviewed every shred of information gathered by the police. There were no–NO–dental x-rays taken. That is not a routine part of any investigation.
At page 120 the author refers to a “few mass produced fibers from items available at Wal Mart.” This is true but the police searched four (4) different residences. At Jason’s residence 1 fiber from the scene matched a fiber from a robe of his mother’s. There was no other match to hundreds of other fibers examined from the other residences. A fiber found on V’s clothing matched 1 garment from Damien’s residence. It matched none of the other garments examined.
JURY SELECTION
In Chapter 18 the author suggests that after selecting 9 jurors Judge Burnett suddenly made the jury selection secret. This jury selection was handled in the same manner many capital murder cases are handled. Because of space limitations (and so the entire panel is not tainted by sensitive information or responses of jurors to questions) the jurors were questioned individually by the lawyers 3 at a time in the jury room. We could not have cleared the courtroom of all prospective jurors except the three because there was no other place to put them. The author acts like this procedure was a bad thing, yet the defense joined in the request.
The author complains about jury selection–its fairness–secrecy and slowness. In view of the nature of the trial and the number of attorneys involved this jury selection proceeded rapidly. The entire jury selection only took 3 or 4 days. What about fairness? The defense did not complain. They only asked for a change of venue, but then did not use all their strikes.
NEGATIVE EVIDENCE
The author asserts that after I told the jury I was going to be using a lot of “negative evidence” and that I would explain later, I did not. The author was not paying attention. In any criminal case, the defense invariably spends a lot of time criticizing the state’s case for what the police did not do. For example, “If only they had checked for fingerprints we would know whether the defendants were guilty” etc. As a result we put on evidence of everything the police did, and the results, even if they did not point to anyone.
“OTHER CONFESSION”
In Chapter 19 the author spends a great deal of time writing about Chris Morgan’s “confession”. The defense called his statement a confession every time they mentioned it. The statement by Chris Morgan was no confession. If she had bothered to listen to the tape she would find that what he said after being questioned by California police for 17 hours was,

“What do you want me to do lie, and say I did it. Okay I did it. I must have blacked out and killed those three kids.”

The police immediately asked “Did you really do it”? Morgan immediately said “NO, I did not do it”.
The author suggests that Morgan’s attorney said that the drug charges Morgan faced might somehow relate to the murders. This was nonsense. The attorney was saying the events that he would be questioned about related to the drug charges, the trip to California, its timing and purpose.
I could go on and on about the factual inaccuracies in this book but this letter might never end. There is little in this book that is accurate. The inaccuracies do not prove that the defendants’ were guilty but they clearly show that the author had no regard for factual accuracy.
ALLEGED DAMIEN ECHOLS TUNNEL VISION
One of the most popular misconceptions is that the West Memphis Police Department focused almost exclusively on the defendants’. The defense used this theme arguing that the police had “Damien Echols tunnel vision”. Approximately 90 suspects were looked at. Many had a far worse background and appearance than the three who were convicted. WMPD pulled the arrest reports on everyone arrested in WMPH for the prior 3 years on sex charges. All were checked out.
The following are just some of the possible suspects the police department looked at. I have only given you their initials but their names are contained in the case file and are a matter of public record.
1. TW
On May 11, 1993, a file was found in Phoenix, Arizona. In this file was a WMPH map and copies of articles about the WMPH murders, along with notes in regard to the murders.
Investigation revealed that this file belonged to TW, a Phoenix resident. Approximately 10 years before TW had been investigated by the Phoenix PD for molesting several young boys. WMPD investigated.
2. RC
On May 9, 1993, WMPD received a letter from a person in regard to a strange man who lived in an apartment near the scene of the murders. This man drilled holes through the wall into the bedroom of the apartment next to his so he watch his neighbor. The man had kept copies of newspaper articles in regard to the WMPH murders.
This man had moved from Norwich, NY. A few years before a 12 year old boy had been murdered in Ithaca NY (appx. 1 hour from Norwich). The boy had been found nude and bound, hand and foot.
WMPD checked and cleared.
3. MF
In May 1993, WMPD received a call from a mother whose son had been approached by MF a couple of years before. MF fold son he was a sex killer. MF talked to police and told them he was a white witch and had a coven or group of witches who met.
WMPD checked out and cleared.
4. JKM
On May 10, 1993 JKM came to attention of WMPD. JKM was a convicted child molester who had served time in the Colorado penitentiary system. JKM was released in 1991. As early as August of 1991 Ark. DHS received a letter from Miss.DHS in regard to suspicions of abuse by JKM toward children in his care. JKM had been repeatedly raped while he was held in jail on another offense.
WMPD investigated JKM and found no evidence to implicate this suspect.
5. WJ
WMPD received information in regard to WJ who was paroled from San Quentin approximately 1 year prior to the murders. This information came in shortly after the murders.
This suspect was in prison for brutal sexual offenses. He admitted to numerous incidents where he had drugged victims and castrated them while he was overseas. In 1989, a staff psychologist at San Quentin wrote in regard to WJ:

He has a persistent pre-occupation with castration and peotomy . . . . The severity of his sexual pathology is “severe” in that it not only acknowledges that he experiences intense fantasies and urges to experience sexual sadism, but also that he intends to repeatedly act upon these fantasies . . . .

WMPD investigated and cleared.
Much of the information above was compiled for a presentation I did at the University of Arkansas School of Law at Little Rock shortly after this book came out. I am aware that I have not given you any information to convince you of the defendants’ guilt. It would take a book to recount the evidence presented to the juries in these 2 cases. One of the trials took 2 full weeks to complete and the other took 3 weeks. Regardless of what I told you I would expect you or anyone else to question it. What I can tell you is that these cases were appealed to the Arkansas Supreme Court and were upheld on appeal. You might want to go on the Arkansas Judiciary web site and read the opinions for yourself.

Little Rock attorney Lloyd Warford sent the following message, in response to my article yesterday stating that a Connecticut lawyer had filed a complaint against him with the Arkansas Supreme Court’s Committee on Professional Conduct. The complaint criticized Warford for failing to immediately report knowledge he later acknowledged having that Kent Arnold, the jury foreman at the trial of Damien Echols and Jason Baldwin, considered the teenagers guilty before the start of their trial.

“I can’t comment on the ethics complaint directly, but here is what I think I can say about the case in general and the not so sealed, sealed affidavit. I was initially hired to represent Gerald Arnold by Kent Arnold. At a later date (exact date unknown but during or shortly after the trial) I was hired to represent Kent Arnold. I represented Kent Arnold for around a year.

“I have spoken with Kent Arnold about all this and he has asserted in no uncertain terms that he considers all of our communications to be covered by privilege. Therefore, until such time as a court of law, the ethics committee or some other lawful body rules there is no privilege, I will abide by my former client’s assertion of attorney/client privilege.

“I know it is hard for people to understand, but I was Kent Arnold’s attorney; it was my job to advise and to protect him. I continue to have a duty to protect him as to things that occurred during that time period. As far as I am concerned, the only circumstances where I would have been ethically compelled to report Kent Arnold’s conduct or statements to authorities would be if he had indicated to me in advance he was about to a commit a crime, and that never happened.

“I want to say that I understand the frustration of those who have fought so hard for the WM3 with how slow and unfair our system can be. I also applaud their perseverance and victory.

“I have to add that I deeply regret the fact this case has caused so many liberal thinking people to take so lightly the confidentiality of communications between attorneys and clients. The vast majority of the time it is the prosecution that is seeking to force an attorney to testify against their client. The attorney/client privilege is at the very heart of what I do and it is not generally in the interest of defendants to undermine the privilege.”

A Connecticut attorney today faxed a complaint to the Arkansas Supreme Court’s Office on Professional Conduct claiming that Little Rock attorneys Lloyd Warford and Gina Reynolds had an ethical obligation to report allegations of juror misconduct in the trial of Damien Echols and Jason Baldwin.

Bruce Matzkin, who practices civil law in Branford, Conn., complained that Warford signed an affidavit in May 2008 in which he stated that he had learned that Kent Arnold, who became foreman of the Echols-Baldwin jury, planned, in Matzkin’s words, “to infect the trial with his pre-determined conclusion of guilt, even, if necessary, bringing up the confession of the third defendant, Jessie Misskelley.” Mention of Misskelley’s confession was not permitted at the Echols-Baldwin trial.

Matzkin argued that Warford and Reynolds should have reported the juror misconduct in 1994, when they became aware of it during the Echols-Baldwin trial, rather than 14 years later, when contacted by defense attorneys, or even later, when interviewed by HBO filmmakers for the newly released documentary “Paradise Lost: Purgatory.”

Matzkin’s complaint states that in the documentary about the West Memphis Three now showing on HBO, Warford and Reynolds both “emphaticfally assert that they were aware beforehand of the juror’s plans and intentions.” Yet, Matzkin wrote, “Mr. Warford waited 14 years to say anything … and Ms. Reynolds never said anything publicly until appearing in a movie.”

Warford explained in his 2008 affidavit that he was representing Arnold’s brother in an unrelated case at the time of the Echols-Baldwin trial, that Kent Arnold was paying for his brother’s defense, and that Warford believed he was bound by attorney-client privilege not to reveal Kent Arnold’s remarks to him, including remarks he made about his role as a juror. Warford reported that he filed his affidavit outlining those remarks only after he was contacted by Echols’ attorneys, and after another lawyer from whom he sought counsel advised that he would not be violating his client’s right to confidentiality by filing the affidavit.

Matzkin took a different view of Warford’s role. Noting that Arkansas’s Rules of Professional Conduct require lawyers not to “engage in conduct that is prejudicial to the administration of justice,” the Connecticut lawyer wrote:

“I submit that when a lawyer omits to take action on knowledge that a juror in a capital case plans to railroad the defendants and waits 14 years to brint this up—especially in light of all that transpired in those 14 years in the WM3 cae—that lawyer is engaging on [sic] conduct prejudicial to the administration of justice. It would not matter if the person was the lawyer’s client or not.”

Matzkin wrote that Warford and Reynolds were were “professionally, and morally, obligated to speak up” about what they had heard from Arnold. Citing Arkansas’s Rules of Professional Conduct, Matzkin asked the supreme court’s Committee on Professional Conduct  to find that Warford and Reynolds  engaged in “serious misconduct” by not coming forward at a time when they were “in a position to prevent a travesty of justice.” Such a finding by the committee could result in the restriction or revocation of Warford’s and Reynolds’ licenses to practice law.

Matzkin has encountered a similar issue in his own career. According to Ethics Scoreboard, a website that assesses ethical issues in several professions:

“In 2005, Connecticut attorney Bruce Matzkin was fired from his law firm because he insisted on reporting another lawyer, an
adversary in a case Matzkin was defending, to the Bar disciplinary committee for unethical conduct. He sued for wrongful discharge, despite the fact that lawyers are usually unable to make that claim: an employer or client can hire or fire a lawyer at will, for any purpose at all…

The article continued: “But in a reversal of the usual logic, the Connecticut court backed Matzkin. The ethics rules governing lawyers in Connecticut ( and most other jurisdictions) make it mandatory for attorneys to report serious ethical misconduct by colleagues. Matzkin’s firm had a non-reporting “policy,” essentially to avoid retaliatory reporting of their own lawyers….

“But the policy was invalid, said Superior Court Judge Carmen Lopez. ‘Because the legal profession is self-regulated and relies upon its members to police itself, no lawyer’s employment should be conditioned upon turning a blind eye to violations of the Rules which are applicable to all lawyers,’ she wrote in her decision.”

(I must note that I have filed a federal lawsuit against the Arkansas Supreme Court’s Office of Professional Conduct regarding its policy of insisting that persons filing complaints with it may not speak about them–a requirement that Matzkin has violated by releasing his complaint (Ethics Complaint vs. Warford & Reynolds) to me.

(Persons who file complaints are warned, as I have been, that they “may be found to bin in comtempt of the court and punished by fine or jail.” That warning is not limited to attorneys, as I am not one, nor does its wording appear to limit it to Arkansans. Today, trial in my federal lawsuit was set for Dec. 9, 2013.)

Jessie before recent court action

As many of us feared, there has been some unfortunate fallout for Jessie Misskelley due to his decision to remain in Arkansas so he could be close to his dad. After his release from prison, Jessie, his fiancee Susie, and her two children were living with a friend he’d known since before his arrest–a divorced man who had custody of his child.

Three weeks ago, police turned up to take the child away. At a court hearing the following week, a judge told the friend that he could have his child back–but only on the condition that Jessie, a confessed child killer, leave the house. Since then, Jessie, Susie and the kids have struggled to find a place to live–a situation made more difficult because Jessie still does not have a job.

When word of the problem was relayed to filmmakers Peter and Fran Jackson in New Zealand, the couple offered to pay Jessie’s rent for a year. With that, they recently located a house near a longtime friend of the family. They have gotten the utilities turned on with the help of donations supporters sent to WM3.org. and will be moving in this week. Jessie and Susie have asked me to extend their thanks to the Jacksons and to everyone else who has helped during this difficult time.

On a personal note, I’d like to add that, while an Arkansas court saw fit to remove Jessie from a stable home he shared with friends, officials of other countries have seen so little risk in the two men who also confessed to murders as part of last August’s Alford plea, that they admitted Damien Echols into New Zealand and Jason into The Netherlands, where no restraints have been placed on their associations. Yet, while most of the world sees through the lie inherent in the August plea, the punishment of Jessie Misskelley in Arkansas goes on.

John Philipsborn, one of the attorneys who represented Jason Baldwin, today sent the following letter. I publish it with his permission.

A newspaper article with a very poor overall description of the problems involved in the forensic sciences analysis of the West Memphis Three case, together with your initial response were just forwarded to me. Ironically, I am in the midst of litigation in another capital case in which forensic science issues are being litigated, with much more openness and purpose than in the West Memphis case.

I would hope, since you have commented on the problems related to the West Memphis case, that you and others who know about the case will continue to underscore that the intersection between some poorly analyzed scientific evidence and lack of inquiry and consultation by State experts and by defense counsel left a number of matters improperly addressed for years.

I applaud the Arkansas Crime Lab Director Kermit Channell who seems to recognize that the cautionary tale from the case is that errors need to be avoided–and who, when compared to other experts used by the State at trial, had done his bench work correctly, and documented it properly–even though (as pointed out in the Baldwin/Misskelley hearings in 2008-9) his testimony left the impression that there was identifiable biological material on some cuttings from victims’ pants when there was no clearly identifiable material there. The fault, on the point, however, was that defense counsel had not obtained Lab notes/or bench notes of his analysis, and consulted with knowledgeable experts to gain information about how his testimony was being shaded–and could be corrected. In other words–if asked by properly prepared defense counsel, Mr. Channell would likely have clarified that there was no way of identifying biological material on the pants because of the level of bacterial contamination on them by the time they got to the Lab.

Same with the State’s pathetic DNA expert, who was not employed by the Crime Lab, and who since has left the DNA experts’ ranks because of incompetence and erroneous testimony. His testimony about having been able to identify male biological material on the pants cuttings was not only erroneous–but if properly clarified, Kermit Channell’s findings would have contradicted those.

There is little doubt that the State’s expert on pathology Dr. Perretti is of the view that he was right about his initial findings, and that he is of the opinion that more than 5 other experts in pathology and odontology (for our purposes tooth mark expertise) are wrong and ‘paid hacks’. Of course, because of our own budget limitations, some of these ‘paid hacks’ were paid much less than their going rate to work on the case, and travel to Arkansas to testify. The pathologists who reviewed the case at our request included: two from New York; one from Texas; one from Minnesota; one from Michigan; one from California. The odontologists included the Chief of Odonotology at the Miami/Dade Medical Examiner’s Office; the odontologic consultant to the Goudge Inquiry in Canada which involved leading experts who were inquiring into mistakes made in child death cases in Ontario, Canada; a Chief of Odontology from Tennessee. The defense pathologists included three prior head pathologists from three separate Medical Examiner’s Offices.

These are not people who need business, or attention. They already have it. Several have contributed to leading textbooks and literature on forensic pathology. Indeed, the writer of the recent newspaper article failed to find out how the subject of possible errors in the findings by Dr. Perretti were first discussed. They came up in a hearing involving Damien Echols in 1998, though no one but the Judge (Judge Burnett) actually seemed to notice the issue. A pathologist from the New York Medical Examiner’s Office was testifying about another subject and mentioned in passing that he thought that some of the injuries to one of the victims looked to him as though aquatic animals had caused them. Given the number of autopsies done yearly in New York (where there are a number of rivers), one can readily understand that a pathologist with the Medical Examiner’s Office there would sometimes focus on damage that has been done by animal life.

This observation led me, after I read it and thought a bit about it, to contact a pathologist with expertise in pediatric cases (child deaths). I sent her photos and the autopsy reports, and asked her simply to tell me what she thought. I was representing Jason Baldwin, along with my colleague Blake Hendrix, who is from Little Rock. On our first consultation after looking at the material, the pathologist said that she wanted to look at better quality photographs, and tissue slides, but that it appeared to her that there had been animal predation. One of the other lawyers, Dennis Riordan (who was then representing Damien Echols) and I agreed that it made sense to have another pathologist review the same evidence. That pathologist, from Michigan (the first one was from Minnesota) said that he saw what he believed to be clear evidence of animal predation. I did not discuss the first doctor’s findings with the second one. I did not speak with the second one until well after he was hired by Dennis Riordan, and it was clear that we might present that doctor as a witness. In fact, even after the second doctor told us about animal predation, we went to still other experts from other places in the u>S. and Canada. None of the persons I contacted was paid anything for the initial consultations.

We did what defense lawyers are trained to do–where such training is available. We reviewed literature on pathology, and conferred with known experts. When we got an opinion, we sought to have it verified. We tried to get access to people who had written well known treatises on pathology.

No one (yourself included, I believe) had gone to the Crime Lab to review all of the evidence notebooks about the case before the post conviction teams did that. When we did, we again consulted with Lab experts from around the country. We actually had two criminalists (experts on Lab evidence related to court matters) with us when we looked at all of the evidence at the Lab. One runs a large DNA Lab. The other was with a major police department’s crime lab for many years. One of our Lab experts took photos of all of the evidence. No one from the prior defense teams had done that. There hadn’t been the time, money, or knowledge of the importance of reviewing all of the pertinent evidence with a Lab expert or criminalist. Lawyers, for the most part, do not have the kind of scientific training to understand where the problems in Lab work may be. That is why we are told, during training sessions, to consult with people who know such matters.

During post conviction review, the legal teams did the same when looking at fiber evidence. We sought out a former trace evidence expert from the FBI Lab and just asked him to look at the fiber testing results initially reported. He noted that the initial reports were not supported by some of the documentation that was in the Lab’s notebooks. We then consulted with another fiber expert, who agreed that some of the initial fiber testing needed to be re-done–and that if properly analyzed, the fiber expert testimony initially provided at trial likely established little that could have reliably identified fibers from the crime scene as similar to fibers found on clothing from suspects’ houses (not specifically clothing that the suspects would have worn…)

Indeed, the problem with the way the pathology evidence was presented was, frankly, less Dr. Peretti’s opinions (which could have been better challenged by better prepared counsel), than the failure to present contrary expert opinions, referring to the known literature in the field . One of the trial lawyers had begun to find the literature, but didn’t know how to use it–this was his first homicide trial. Moreover, had the Medical Examiner’s files been inspected by defense counsel, they would have found evidence (brought out in post conviction hearings) that the State had tried to put together a transparency of a suspected murder weapon (a serrated knife) to display during trial–but that transparency was never used at trial. Why ? Well, as the Chief Odontologist at Miami/Dade, Dr. Souviron, pointed out during his testimony in 2008 and 2009, it could not be matched to the pattern injuries found on the bodies–the knife serrations were not the right size in a one on one matching attempt. If that point had been adequately covered, the State could not have (in a smart but unsupported move) used a grapefruit, and the suspect knife to illustrate wound patterns that accurate Lab work would have exposed as unrelated to one another.

There is more–but my point here is basically this: while some of the forensic science work done in this case by the Crime Lab can be taken to task, the point is that it is in part up to prosecutors and defense counsel to make sure that such evidence is challenged were necessary, and re-done correctly (if evidence is still available) if not done right the first time. The problem with the pathology here was in part the failure of the Crime Lab, and defense, to have Dr. Perretti’s findings reviewed. A number of his findings have been described as correct–but there is disagreement about some of the critical ones. It is regrettable that Dr. Perretti feels that the effort here was to take him down. The effort here, by us during the post conviction litigation, was to try to get it right. And what Dr. Perretti seems to disregard is that there is no incentive for other pathologists from various parts of the country to take him down. None of them was asking for an excuse to spend time in Jonesboro, Arkansas, where the late 2000 hearings were held.

The reason that there have been many notable screw ups in forensic science issues is that there are cases, like this one, in which there was an absence of double and triple checking. Part of the problem, clearly, was that not enough was done by defense counsel to have the Lab work reviewed prior to trial. This is part of what Jack Lassister, a well respected lawyer from Little Rock, testified when he explained that there were a number of things that the defense had no done in preparation for the trials of the West Memphis Three.

Last Saturday night was the greatest night of my life. That morning, I got up early and went to Amsterdam. That’s a pretty typical road trip for a young guy in Europe, but my destination was the International Documentary Film Festival. They were showing Paradise Lost 3: Purgatory. Jason and Joe Berlinger attended the screening.

I’m still not sure if I can articulate how amazing it was. Even now, I feel a rush just thinking about it. I’ll try to convey just how special it was to me.

The film itself was fantastic. As with the entire trilogy, it is both a terrifying display of our tragically broken justice system and a moving document of the lives of both the wrongfully imprisoned men and the families affected by the murders. Watching the footage taken over the last 18 years, I saw tragedy, fear, hope, love, hate, evil, heroism, friendship, and injustice all cumulate into a profoundly bittersweet ending. Of course, even after the movie ends, the case for exoneration continues, and the lives of those wounded by the murders still do not get any true resolution.

This was my first time seeing a Paradise Lost film with  n audience, and the surge of emotions being felt by the entire crowd was truly powerful. Once the film ended, Jason and Joe appeared for a 30-minute Q + A session. We all erupted with applause when they came out, and I doubt I was the only one moved to tears. Jason told us that Joe was a hero (despite Joe’s humble claims that he was “just a filmmaker”) and that he loved him. As they hugged, I could only think of how truly heroic they both were, as well as Damien, Jessie, you, and everyone who worked so hard and sacrificed so much for their sake.

After the film, I had the honor of meeting Jason, Joe, Holly, and the Berlingers. Seeing Jason so full of joy for life and so optimistic about his future even after an unimaginable struggle is an experience that I will cherish forever. I truly believe that his outlook, as well as his freedom, can be attributed to the work that you and everyone else did so tirelessly. You truly are a hero!

—Michael Sevigny

Ramstein, Germany

On Sunday, Nov. 27, the Arkansas Democrat-Gazette carried a front-page article about the effects of the 1993 West Memphis murders on two men at the Arkansas State Crime Lab. The article was headlined: ”2 at crime lab carry scars of 3 boys’ deaths.” I wrote a response that appeared on the Arkansas Times blog. Here is another reaction, from Dr. David Jauss, a longtime member of Arkansas Take Action:

C.S. Murphy’s recent Arkansas
Democrat-Gazette article about Dr. Frank J. Peretti, the medical examiner
who performed the autopsies on the three children murdered in West Memphis in
May, 1993, and Kermit Channell, the serologist who worked with Dr. Peretti on
the case, contains numerous factual errors and misleading statements.  Most of these errors seem to result from
Peretti and Channell’s desire to save their reputations, which were seriously
damaged by criticism leveled at them and their conclusions by seven nationally
renowned forensic experts hired by the defense to re-examine the evidence.

According to the article, Peretti said that these expert
witnesses “came into court” and claimed that “wild dogs grabbed [the dead boys]
and shook their heads and hit them against a tree.”  This claim is not true.  None of these seven experts testified during
either of the trials; they presented their findings at a press conference held
at the UALR Law School on Nov. 1, 2007, and they made no such comment at that
time either.  If Peretti was referring to
some other expert witness who did testify in court, I have not found the claim
he mentions anywhere in the trial transcripts.
Unless Peretti can point to a passage in a trial transcript that I’ve
overlooked, I can only assume that he’s succumbed to one of the oldest
rhetorical tricks in the book—debunking your critics by attacking them for
words you’ve put in their mouths.  In any
case, Murphy seems to have accepted Peretti’s claims about the expert
witnesses’ testimony without any apparent attempt to discover their truth or
falsehood, for she says that these experts “descended” on the case, a word that
implies that these distinguished experts are themselves like the pack of wild
dogs Peretti claims they blamed for the boys’ injuries.

The article accurately describes the position in which the
dead boys were found—naked, their hands tied to their feet by their shoelaces
and their backs unnaturally arched, exposing their genitals—but it inaccurately
suggests that all three boys suffered “intimate harm” to “their genitals.”  The delicate phrase “intimate harm” might
seem to imply that the boys were sexually molested, but Peretti testified in
court that there was no evidence to support that claim, and no one else who has
examined the evidence has found otherwise.
But even if the phrase “intimate harm” is not a reference to sexual
molestation but merely an overly polite euphemism for “castration,” there was
only one boy—Christopher Byers—who suffered such harm to his genitals.  The other two boys’ genitals were
unharmed.  Furthermore, while Peretti
argued that Christopher was castrated with surgical precision by a teenaged boy
wielding a serrated knife in a muddy creek in the dark, the seven forensic
experts who reviewed the evidence unanimously determined that the damage was
due to postmortem animal predation and was a common occurrence called
“degloving.”

The article also states that Peretti and Channell “haven’t
been free to talk about [the case] until now” and that Peretti has been
frustrated for the past eighteen years because of “his inability to discuss the
case” while attorneys and experts have been “free to pick apart his forensic
conclusions.”  To the best of my knowledge,
there neither is nor was any law or court-imposed gag order preventing Peretti
from speaking out.  If there were such a
law or court order, Peretti was apparently planning to violate it a few years
ago when he was scheduled to give a talk on the West Memphis 3 case at
UALR.  When he found out that several law
students and Mara Leveritt, the author of a book and numerous articles on the
case, were in the audience, he refused to give the talk and changed his
topic.  As this fact suggests, Peretti
wasn’t “unable” to discuss the case, just unwilling, especially if there were
people in the audience who could potentially challenge his claims.

The article is misleading not only because it contains
falsehoods but also because it leaves out important information.  For example, Channell says “we looked for
blood and semen and anything that could be beneficial to the case,” but the
article doesn’t add that he didn’t find any evidence connecting the three
convicted men to the crime.  Similarly,
the article points out that Channell “became an expert in DNA analysis” and
“helped re-examine the evidence using newer science and technology,” but it
doesn’t go on to report that Channell’s re-examination likewise found no
evidence connecting the men to the crime.
There has been extensive testing of numerous articles of evidence, and
in every case, Damien Echols, Jason Baldwin, and Jessie Misskelley, the three
men convicted of the crime, have been excluded as potential sources for the DNA
found at the scene.  The article is grossly
remiss for not making this point.

The article also leaves out some important information about
the experts who disputed Peretti’s findings.
While it does acknowledge that seven of our country’s most distinguished
forensic experts debunked Peretti’s autopsy reports, saying that the “hundreds
of gouges, punctures, lacerations, abrasions, and scratches” were not caused by
a knife before death but by animal predation after death, the article doesn’t
point out that these seven forensic experts reached this conclusion
independently of each other.  Who are you
going to trust—seven nationally acclaimed experts who independently reach
exactly the same conclusion or one assistant medical examiner who isn’t even
board-certified?  (Peretti may be “a
court-certified turtle expert,” as the article notes, but he has never passed
the examination for certification by the American Board of Pathology.)

The article says that Peretti and Channell are “frustrated
that no one is in prison for killing the boys.”
Well, so am I—and so are the thousands of other West Memphis 3
supporters.  Peretti calls us “groupies”
and says the West Memphis 3 “are being worshipped as child killers,” but that’s
obviously the irrational raving of someone who’s let his self-pity and
petulance get the better of him.  The
fact is that all of us—West Memphis 3
supporters and non-supporters alike—want to see the person or persons
responsible for this horrible crime punished.
But many of us believe that the West Memphis 3 are manifestly innocent
and the true killer or killers are still free.
And why, we wonder, given the absence of forensic evidence against these
three men, would Peretti and Channell wish they were still behind bars?  Is it because they think their reputations
are more important than justice?  It
seems to this reader that the answer is yes.

David Jauss

Wouldn’t you know, George Carlin was one of the few comics who’s ever told a good execution joke. He asked the
rhetorical question: why do they swab down the site for the lethal injection with alcohol? And answered: “Because they don’t want the guy they’re killing to get an infection.”

Well, irony aside, we in this room are fighting an infection. In my view, it’s a political infection, an infection spread by fear—and our response to that infection must be political too. As a case in point, let me speak for a few minutes about what happened just three months ago in the case of the West Memphis Three. One day in August, two men who were sentenced to life in prison
and a third who was sentenced to die, were taken in chains from their prisons. The next morning, they appeared in suits in a Jonesboro courtroom. Before the clock struck noon, they walked from the building free men, not even on probation.

What happened? Three men who’d spend almost 18 years in prison confessed to killing three children—something they had steadfastly denied in their trials. And Arkansas officials just as suddenly released them from prison—something the state had resisted since 1993, when the then-teenagers were  arrested.

What happened? Politics happened. Politics in the most basic sense of the word: meaning “of, for or relating to citizens.” Citizens got involved—and that involvement was so powerful that, in the final analysis, the state of Arkansas acknowledged (albeit, in an
underhanded way) that it mistrusted its own chances of winning convictions against the three if, as was expected, a judge ordered them retried.

Let’s parse that yet more closely. Arkansas—and in particular this state’s attorney general—did not feel confident that it could support its claim that the three were guilty if the question were put to new juries. Nevertheless, Arkansas—in the person of the
attorney general—consistently pressed to avoid new trials and proceed on the march to execute Damien Echols.

That relentless march began 18 years ago, when Echols was 18 years old, and his co-defendents, Jessie Misskelley, Jr., 17 and 16 years old respectively, were charged with capital murder for the deaths of three eight-year-old boys in West Memphis. The trials of the teenagers were sensational from the start, first because of the horror of the murders, and then because prosecutors told jurors that the teenagers murdered the children as part of an occult or satanic ritual.

The only evidence that ever existed in this case was a contorted statement Misskelley made to police after hours of questioning, without a parent or attorney present. As most of you know, I’m sure, that statement was riddled with inaccuracies about the
murders—errors about when and how the murders took place—that a police officer explained away by saying, “Jessie just got confused.”

There was no other evidence. But Satanism won the day. The prosecutors prevailed. And, though they had asked jurors to sentence all three teens to death, the jurors only gave that sentence to Echols, who was portrayed as the murderers’ ringleader. That was in 1994. Consider how much life we all have lived since then.

In the years since those convictions, the Arkansas Supreme Court unanimously affirmed the men’s convictions—finding no error at all in the trials. Defense attorneys presented evidence that wounds the state said were inflicted by a knife had actually
resulted from postmortem animal predation. The defense presented evidence that new tests of evidence from the scene found nothing that traced to the men in prison, but two items that likely came from the stepfather of one of the victims and a friend who was with him the night of the murders. Finally, the defense teams presented compelling evidence of gross juror misconduct during
the Echols/Baldwin trial.

Throughout, the trial judge, who was also the judge who received this new evidence, disregarded it. And even when the issue of the new DNA evidence was brought to the Arkansas Supreme Court, the state’s attorney general argued that it should not weigh against the convictions. Furthermore, Attorney General Dustin McDaniel claimed, Arkansas’s
law allowing the examination of new DNA evidence in a case “may well never yield relief due to confidence that the Arkansas criminal-justice system does not convict the innocent…”

Fortunately, the Arkansas Supreme Court disagreed with McDaniel’s interpretation of the statute. Late last year it ordered the evidentiary hearing that McDaniel and other state officials feared would result in new trials for the three. From that date, a year ago this month, to mid-August of this year, prosecutors in northeast Arkansas at in Little Rock at the AG’s office were preparing to fight tooth-and-nail to prevent the judge from ordering those trials. A hearing on the matter was scheduled to begin three weeks from now.

But suddenly, last August, something happened that was unprecedented in the history of American law. Patrick Benca, one of the attorneys for Echols, approached the attorney general and proposed a deal. State officials accepted it. And in a matter of days, the
remarkable Alford plea that set the men free was arranged. Echols, Baldwin and Misskelley were allowed to plead guilty while maintaining their innocence, whereupon prosecutors asked that they be sentenced to time-served and released from prison.

I don’t believe the magnitude of that deal has yet set in. It’s not that an Alford plea is particularly unusual. It’s been used fairly regularly since 1970, when it was approved by the U.S.  Supreme Court. What is unusual –in fact, shocking—in this case is when the plea was used. As we all know, plea deals are usually struck before a defendant goes to trial—and in lieu of going to trial.

Here, the plea was used after men had been incarcerated for 18 years. When the conviction were in hand.  When no new trial had been ordered. When the state merely faced the possibility of a new trial.

It was a rare set of circumstances, to be sure. But I think the state’s willingness to enter the Alford deal exposes two terrible truths: On one hand, our state officials were intent on seeing the convictions hold, to the point of executing Damien Echols. On the other, they had no confidence in those convictions.

This, my friends, is the malignancy we fight when we oppose the death penalty. Even now, the legal system in Arkansas remains in denial about the depths of disgrace shown here.

Scott Ellington, the local prosecutor, whom McDaniel said made the final decision, told reporters the case was closed. Nobody would be suing for damages. There was no need to re-investigate the murders. In a few strokes of the pen, three horrific murders
were wrapped up neat and tidy. But Dennis Riordan, another of the men’s attorneys, threw water on that pronouncement with his question at the press conference: “Does anyone believe that if the state had even the slightest continuing conviction that Damien Echols, Jason Baldwin and Jessie Misskelley were guilty, that they would let these men free today?”

Since that day—August 19—I have spoken with people who believe the men are guilty and others who believe they are not. In fact, a poll shortly after the ruling showed Arkansans about equally divided on the matter. The one view that all seem to share is cynicism. An editorial in the Arkansas Democrat-Gazette could do no better than conclude: “Such is justice, or at least the law, in this world.”

So I ask again: What happened? After 18 years and all the power of law the state could throw at this case, what force so dramatically changed the legal equation here?

I’ll tell you in a word: People. People who were outraged. People who were committed to years and years of work. People who recognized the wrong that was happening here and who determined to change it.

It began remarkably when HBO was allowed to film what producers thought would be the trials of teenage satanic killers. It began to spread when the resulting HBO documentary, Paradise Lost, first aired in 1996. It leaped onto the Internet when three Californians began a website with documents about the case. I like to think that my own book, Devil’s Knot, added fuel to the fire, by examining the legal underpinnings of the convictions that were, by 2002, already being widely condemned.

All that concern, however, remained mostly outside of Arkansas. It is rather astonishing, I think, that so many thousands of people—and I have met and exchanged email with hundreds of them—in the U.S. and other countries, would work so long and hard to correct a perceived injustice in a small judicial district in Arkansas.

But work they did. They made available accurate information. They raised money. They held concerts, made art, wore t-shirts and wrote letters to support three young men in Arkansas prisons. The money paid for lawyers, new investigations, and expensive lab
work. Ultimately, some of the best attorneys in this country signed on to represent the men pro bono.

Even with all that, however, Arkansas was unmoved. Rumors persisted—and were allowed to persist—that documents never revealed at the men’s trials proved beyond doubt that the three convicted men were the killers. Police dismissed the ever-growing number of supporters as outsiders who, however well-intentioned, really didn’t know the facts.

Eventually, that statement, which had been repeated again and again to reporters, led me to notify my editor at the Arkansas Times and my readers that, while I would continue to report on this case, I was also going to speak out as an advocate. I am an Arkansan. I did know the facts. And I knew that the trials of the West Memphis Three were not fair.

But, brilliant as I am, my word on the matter made no difference, either. What changed in Arkansas was the formation of Arkansas Take Action. Lorri Davis, who had married Damien Echols, explained the situation involving her husband to two friends, Capi Peck and Brent Peterson. After getting thoroughly informed, those two restaurant owners took the risk that few people—let alone business owners—are willing to shoulder: they spoke out publicly on behalf of three convicted child-killers.

Other Arkansans gathered around this nucleus of in-state support, and from that moment on, the dynamic here was changed. I am not going to claim that there is a direct cause-and-effect relationship between the series of events that followed, but let me just
outline what occurred.

In 2007, ATA organized a rally at the state capitol. Natalie Maines, of the Dixie Chicks, who is another supporter, came and spoke at it. The next year, ATA hosted a dinner at Trio’s restaurant for several local attorneys, to bring the case to wider attention. That dinner led to the discovery of the juror misconduct I mentioned earlier.

In 2009, when Judge John Fogleman, who prosecuted the WM3, announced his candidacy for the Arkansas Supreme Court at the state capitol, ATA members attended. As the judge began speaking, the members stood silently and removed their outer shirts to reveal t-shirts that read: “Abuse of Power” or “West Memphis Three.” I followed the following April with an article in the Arkansas Times that detailed the abuses of power I believe characterized Fogleman’s prosecution of the case. (The paper, incidentally, supported Fogleman, as did much of the state’s legal establishment.) I think Fogleman’s loss in that election last year was a political wake-up call heard around Arkansas.

In August of 2010, ATA organized a rally and concert called Voices for Justice at Robinson Auditorium. It featured Maines, along with fellow artists Eddie Vedder, Johnny Depp, Lisa Blount, Patti Smith, Ben Harper and Dhani Harrison. Some 4,000 Arkansans
attended that event. They saw a brief video by ATA member Mike Poe about the West Memphis case, and contributed thousands of dollars for the men’s defense.

Now, the earth had shifted. Whereas Arkansans were not engaged in this case for about a decade and a half—suddenly they were. And that—together with wholliping fine lawyers—made all the difference. In November 2010, the Arkansas Supreme Court ordered the evidentiary hearing that, we now know, would rattle the state’s attorneys enough that a deal to free the men became possible.

This is what I mean by political action. If we want to change the status of the death penalty in Arkansas, I believe we must be as bold, unified, and energetic as the heroes of the movement that freed the West Memphis Three. A year ago, no one would have
believed it possible. Just as now, one can hardly imagine Arkansas joining the states that prohibits executions. But I am here to tell you that we can make that happen!

Exonerations have pushed the number of Americans who support the death penalty to its lowest level in nearly four decades. While the release of Echols from death row is not an exoneration—and our governor has said he will not make it one—for the general public, it comes close to being one. As Riordan said, no one believes that if state officials believed they had evidence to convict Echols and sentence him to death again they would ever have let him go.

What we must show is solidarity. There are many groups represented here tonight and I’m proud of what all of you do. I know that your work focuses on many aspects of our frail justice system. If we believe that the death penalty represents the worst of that system—the most extreme and abusive use of its power—then we must work together to end it. In doing so, we will immediately create a more temperate justice system, and thereby make all of our other efforts for justice more fruitful.

So, yes, we must stand together. We must also demand accountability. Some of you may have seen that I recently filed a federal civil rights lawsuit against the Arkansas Supreme Court’s Committee on Professional Conduct. The legal establishment in Arkansas is supposed to be self-policing. The Supreme Court established the Committee on Professional Conduct to take complaints from attorneys and other citizens about practices that are believed or suspected to be unethical.  In a nutshell, my lawsuit demands that the committee be required to honor the First Amendment when it comes to allowing citizens to both complain about legal misconduct and speak publicly about those claims.

I complained to the committee about Attorney General McDaniel’s decision to press for executions in the cases of Damien Echols and another death row inmate, Tim Howard, despite strongevidence that their trials were unfair. In response to both those complaints, I received letters from the committee, on Supreme Court letterhead, warning me that I must not reveal the content of those complaints to anyone, including the media. If I did, the letters warned, I could be held in contempt of court and punished with a fine or imprisonment.

I consider this a terrible and unconstitutional form of intimidation. I also believe that, were it not for this heavy hand from the state’s high court, attorneys in Arkansas would have been speaking as freely and with as much outrage about what transpired in these cases as people around the country and the member of ATA have. Of course, attorneys who speak out about complaints they make to the Committee on Professional Conduct are also threatened with loss of their law licenses. I don’t believe citizens foresake their First Amendment rights merely by filing a complaint with a committee of the Arkansas Supreme Court.

My attorney, Jeff Rosenzweig, noted in my lawsuit that Arkansas’s high court is attempting to limit free speech about elected officials and how they perform their duties. We elect our prosecutors and judges, yet if we complain to the committee about the conduct of elected members of the judiciary, it responds by threatening us with a fine or jail, should we dare to speak of those complaints.

We must be able to speak about the ills of our system of justice. There is an element of politics in the judiciary, no matter how much its members try to deny that. And we must be able to hold elected officials accountable.

A few weeks ago, Radley Balko wrote this in the Huffington Post: “There’s still no political price to pay for defending executions, for carrying out questionable one or, in the case of [Texas Gov. Rick] Perry, for stifling attempts to investigate whether an
innocent person has been put to death.”

We must set the political price. And tonight, on the shoulders of the recent release of Damien Echols from death row, I’d like to ask that you join me in taking action yet again for another case of innocence. A few weeks ago, I attended a welcoming of my friend Dr.
Joseph Jones, of Philander Smith College, as the school’s new director of Social Justice Issues. He said the party was bittersweet because that night coincided with the execution in Georgia of Troy Davis.

“We have our own Troy Davis in Arkansas,” Dr. Jones said, “and his name is Tim Howard.”

At your tables you will find information about Howard. I know him personally, as I’ve known Damien, Jason and Jessie. I can tell you that, like them, he’s a good guy. Howard too has excellent lawyers. And his case too is now before the Arkansas Supreme Court, which could order a new hearing, as it did in the West Memphis case.

Do we want to change the death penalty in Arkansas? Let’s show this state that Echols was not a fluke—and that Dustin McDaniel was wrong when he said that “the Arkansas criminal-justice system does not convict the innocent…”

We have a template. Arkansas-Take-Action has shown us what can be done. We have another worthy focus in Tim Howard. We have each other—this growing band of advocates. And we have passion. We’ve seen the impossible happen. Let’s make it happen again. And, together with abolitionists around this country, let’s put the death penalty to death.

Thank you.

[Note: the website for GetTimOut.org will be live soon.]

PRESS RELEASE: Nov. 8, 2011

Mara Leveritt, mara@maraleveritt.com, 501-350-9797

Civil Rights Lawsuit Filed Against Committee of Arkansas Supreme Court

Today, Little Rock attorney Jeff Rosenzweig filed a civil rights lawsuit on my behalf in U.S. District Court. The defendants, sued only in their official capacities, are the Arkansas Supreme Court Committee on Professional Conduct and Stark Ligon, its executive director. The complaint asks the federal court to declare unconstitutional portions of the Arkansas Supreme Court’s Procedures Regulating the Professional Conduct of Attorneys at Law (commonly called the “Procedures”) and to bar any attempt to  hold  me in contempt under those procedures or punish me with a fine or jail. I am not an attorney.

The lawsuit arises from two letters I wrote this year to the committee, in which I questioned the actions of three Arkansas attorneys, two of whom are elected officials and one a senior appointed official.  In both instances, I received a response from Ligon, warning me in a paragraph that was capitalized and in bold lettering that the procedures prohibited me from releasing “ANY INFORMATION OR DOCUMENTS” about my complaint “TO ANYONE, INCLUDING THE NEWS MEDIA.” His letters added: “ANYONE VIOLATING THIS CONFIDENTIALITY MAY BE FOUND TO BE IN CONTEMPT OF THE COURT AND PUNISHED BY FINE OR JAIL.” These statements are basically an accurate paraphrase of the procedures.

In the belief that these procedures are unconstitutional restraints on free speech, I published on my website key parts of the correspondence between me and the committee.  In May, the Arkansas Democrat-Gazette reported that when Ligon was asked about those posts, he reiterated that I could be held in contempt of court—a crime—for publicizing the correspondence.

So far, no attempt has been made to enforce these procedures, although I assume that some process could be started at any time.  I abhor this rule restricting a citizen’s free speech about the conduct of public officials. I am appalled that an attack on a principle so basic as to be enshrined in the First Amendment should issue from this state’s supreme court. I am particularly concerned that the court’s procedures inhibit informed debate about persons who are or may become candidates for office.

Here are the Complaint and Motion to file exhibits under seal.

Max Brantley references the lawsuit’s links to the cases of the West Memphis Three and Tim Howard on the Arkansas Blog.