‘Guideposts’ and a ‘razor thin’ case—Part 1

Lawyers for the WM3 outline expectations for the evidentiary hearing; the state mainly resists.

[private]Attorneys for the West Memphis Three described the case against their clients as “razor thin” in 60-plus pages of briefs that were submitted to Arkansas Circuit Judge David N. Laser’s court yesterday. The filings outlined what one called an “entire new mix of evidence” in the case, any part of which, the attorneys said, should suffice to warrant new trials for Damien Echols, Jason Baldwin and Jessie Misskelley, Jr.

The Arkansas attorney general’s office filed six pages of what it called “guideposts” on how Laser should conduct the evidentiary hearing ordered last September by the Arkansas Supreme Court. The only point on which attorneys for all sides agreed was that the hearing for the three men should be held jointly. At a scheduling conference in January, Laser said this was his preference as well.

Attorney General Dustin McDaniel’s office recommended a joint hearing for “judicial economy and convenience to the parties.” It noted that, “given the scope of possible evidence to be considered, hearing dates may need to be scheduled starting this fall and will not conclude before well into the next calendar year.”

The brief by Echols bore a sharper sense of urgency. It sought one continuous hearing that they estimated could last three weeks. They said they would be ready in October—one of the months Laser said he had open. If necessary, they wrote, the issue of juror misconduct could be separated from the others “for initial handling.”

Lawyers for Baldwin and Misskelley, who filed a combined brief, said they hoped to be ready to proceed “with some hearings” by October. They estimated that the hearing’s length “could range from a few weeks” to “much longer” and that “components of the case … could take lengthy periods of time,” depending on how the judge conducts it.

While lawyers for the men in prison said they were preparing to present their case in person, McDaniel’s staff suggested that Laser allow the sides to argue three key points through rounds of written motions and responses “prior to the onset of the hearing dates.” Specifically, state attorneys asked the judge to order “adversarial briefings” with “cut-off dates” on:

  1. whether the court should permit additional DNA testing,
  2. what evidence the court should consider “relevant” to the hearing,
  3. and how it should “receive” evidence in the hearing—whether orally, through transcripts of previous proceedings, or in other ways.

In its brief yesterday, state attorneys were adamant about only the first of those three. On the issue of possible new DNA evidence, they wrote that “additional testing should not be permitted to any petitioner.” They stressed that the requests for such testing made by all three “should be denied.”

It is clear from the briefs that a battle over forensic evidence lays ahead. It is also clear that Arkansas officials have been blocking the prisoners’ efforts to obtain state information since long before the evidentiary hearing was ordered.

One exhibit submitted with Echols’ brief is a letter dated April 21, 2010, from Echols’ attorney Stephen L. Braga to Dr. Charles Kokes, Arkansas’s chief medical examiner, seeking “copies of all autopsy reports, photographs, toxicology reports, written notes (including bench notes, field investigator reports, police reports, phone logs and/or communication sheets in the Medical Examiner’s Office file(s) from May 1993 to date relating to the ME’s Office’s work on the autopsies of the victims in this case.”

A second letter from Braga to Kokes is dated Jan. 5. 2011. Noting that, “To date, I have not received any response from you,” it asks whether the medical examiner will provide access to the requested materials “voluntarily or not.”

Braga writes in the brief for Echols that, “It cannot be argued that the requested records are somehow ‘confidential and privileged’” because Arkansas law specifically states with regard to crime lab records that: “The laboratory shall disclose to a defendant or his or her attorney all evidence in the defendant’s case.”

Braga told the court that a Freedom of Information request filed on behalf of Echols’ wife, Lorri Davis, was also refused. Davis asked for “records identifying the number and dates of autopsies performed by Dr. Frank Peretti for the Arkansas State Medical Examiner’s Office” during the years 1992, 1993, and 1994. Peretti performed the autopsies of the victims in the West Memphis case. Braga asked the court to order Kokes to provide prompt access to the requested records.

Braga claims that another letter—this to Assistant Attorney General David R. Raupp—has been similarly ignored. This letter, dated Jan. 20, 2011, requested a conference call to discuss testing of additional evidence. In particular, Braga sought Raupp’s “cooperative immediate agreement” to allow testing of two ounces of “green vegetable-like material” that was found “partially digested” in the body of Stevie Branch.

Lawyers for Echols want tests “to determine exactly what the … material is.” However, Braga wrote, Raupp “has not responded” to that request. 

Next: ‘Certain forensic evidence’[/private]

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