‘Negative evidence’ should cut both ways

In the case of Damien Echols, at least, the Arkansas judiciary is facing its last opportunity to do something right. If history is any guide, we should expect that it will fail.

Judge David Burnett above stayed true to form, and now the Arkansas Supreme Court will be asked to consider whether, when considered with the other evidence brought against Echols, new DNA findings would likely be compelling enough to result in an acquittal if he were granted a new trial.

First, one has to ask: What other evidence? What evidence was ever presented against Echols that even connected him to the murders, let alone warranted a sentence of death?

The new DNA findings are more nothing, more absence of evidence linking him to the crime. Yet the state argues that that very absence, rather than eliminate him as a suspect, as it should have in the first place, does not prove his actual innocence.

Lawyers for Echols will do battle, as they must, using the technicalities of the law. But a larger question faces us Arkansans. How flimsy a case are we willing to accept in support of an execution?

The state’s argument for why Echols should be executed reads like an academic debate: all practiced and punctuated, yet as cold-blooded as Pontius Pilate, doing his bureaucratic best. It takes a smooth operator, and maybe one with with ice in his veins, to apply the principles of law to the case of the WM3 and conclude that the evidence against them was sound. It takes an employee, a cog in the machinery of death, to argue that inconclusive DNA evidence in a case that was spurious at best should do nothing but hurry the date when the state can put Echols to death.

All this reminds me of what John Fogelman, the deputy prosecuting attorney at the Echols-Baldwin trial, said in his opening statement to the jury: “I want to tell you in advance, there’s going to be some—there’s going to be a lot of testimony from the Arkansas Crime Laboratory. And some of this evidence is going to be what we call, I guess you call it ‘negative evidence.’ It doesn’t really show a connection to anybody. … For instance, there will be proof, like on the bicycles, there aren’t any fingerprints; on some things in the kids’ pockets, no fingerprints. Things like that. And you may wonder why we’re putting on evidence of a negative, but we’ll explain that to you later.”

Neither Fogelman nor Brent Davis, the other prosecutor, ever did explain why most of the evidence they presented against Damien Echols and Jason Baldwin was “negative.” And since that trial, many reasonable people have indeed wondered why prosecutors would bring a case at all, let alone one seeking the death penalty, in which most of the evidence they had to present was what Fogelman himself termed “negative. ”

If negative or inconclusive DNA evidence is not enough to exonerate on appeal, a trial that, by the prosecutor’s own admission, relied heavily on “negative evidence” should not have been enough to convict.

But, for a jury, it was. And so far, that “negative evidence” has been enough for the Arkansas Supreme Court. Now, faced with even more “negative evidence” linking Baldwin, Echols, and Misskelley to the murders, Arkansas prosecutors remain hell bent on making something—an execution—out of nothing.