news
April 26th, 2012
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
Fogleman letter in 2007 derided DEVIL'S KNOTApril 23rd, 2012
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.
[signature]
John N. Fogleman
January 18th, 2012
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.”
