State said to have ‘recently’ tested blood on Misskelley shirt; defense seeks FBI report; location of evidence questioned

A spokesman for Damien Echols said today that “within the last year,” state officials sent a t-shirt that was found in the home of Jessie Misskelley, Jr. in 1993 to a laboratory for DNA testing. The shirt was reportedly tested without defense attorneys’ knowledge and after state officials had notified them that all post-conviction DNA testing was complete.

Lonnie Soury, a spokesman for Echols, said that tests reportedly revealed blood on the t-shirt, which had no connection to the crime scene. The tests determined the blood was Misskelley’s.

Questions about evidence have persisted in the case of Echols, Misskelley and Jason Baldwin since their trials in 1994, when West Memphis police testified that they had “lost” evidence relating to a man seen with blood and mud on him on the night three eight-year-old boys disappeared. The man, who entered a Bojangles’ restaurant near where the boys’ bodies were discovered the next day, was never identified.

Now, almost two decades later, defense attorneys are again questioning the state’s handling of evidence. What exactly was collected? What was done with it? Where is it now? Soury said Echols’ attorneys have not gotten many answers.

Soury said: “It looks like the defense has gotten very little information about what they [state officials] have, what they’ve tested and where the evidence is, and that’s why we’re very concerned.” As a case in point, he added: “We’re still looking for the [victims’] clothes and shoes. We assume they exist, but we’re not sure where.”

Soury said defense attorneys also want to learn more about items that were sent to the Federal Bureau of Investigation for analysis prior to the trials. “We believe it was fingerprints and soil samples” he said.
“We’re not sure when the material was sent off to the FBI. It could have been before the arrests or after. And we don’t know what happened to those test results. We have never seen them.”

He added: “One can assume they found nothing that was of interest to the prosecution. But we don’t know if they found something that could be exculpatory today.”

The defense concerns were conveyed to Judge David Laser in a brief filed last week in support of Echols’ motion seeking additional forensic testing. A footnote in that brief reported that, “In addition to the Arkansas State Crime Laboratory, at various times, certain forensic evidence in this case also appears to have been in the possession of—and could still be in the possession of—the West Memphis Police Department, LabCorp (formerly known as Genetic Design), the Alabama Department of Forensic Sciences, the Southwestern Institute of Forensic Sciences, the University of North Texas Health Science Center and—possibly—the FBI.”

In the brief filed on Mar. 30, attorneys for Echols conceded that, while part of their request concerned “testing of already known and existing biological and physical evidence,” another part constituted “a search to determine the availability of biological material” that may or may not be in the state’s possession. Noting that the Arkansas Supreme Court ruled that evidence from the men’s 1994 trials and “all other evidence” in the case is to be considered at an evidentiary hearing scheduled for December, Echols’ attorneys wrote that, for that to happen, “we must first determine the universe of what ‘other evidence’ exists.”

Typically, a chronological record is kept of all evidence in a case from the moment it is seized. That record documents every time an item is transferred from one person to another, any analyses conducted on it, and any time evidence is disposed of. This chain of evidence (or chain of custody, as it’s sometimes called) is critical for establishing the integrity of evidence.

Before the recent request, there were at least two other times in the West Memphis case when attorneys for Echols, Baldwin and Misskelley sought an accounting of what evidence was held by the state. The first was prior to the trials. The second came around 2002-03, when lawyers for the three convicted men negotiated an agreement with state officials to have new DNA tests conducted. In 2004, Judge David Burnett ordered several items tested.

That material was sent to Bode Technology Group, a laboratory in Virginia. None of it was linked to the men in prison. Defense attorneys believed that that marked the end of the testing. However, according to Soury, correspondence and other information discovered since has led them to believe that state officials sent additional material, including Misskelley’s shirt, to other labs for testing.

“They should not have done anything outside of that agreement,” Soury said. “But I think they have.”

Even today, almost 18 years after the murders, defense attorneys for Echols remain tentative in describing what evidence the state has—or had. As they wrote in their latest brief: “At one point, the state crime laboratory admittedly had possession of ‘skin cuticles’ from the ligatures used to bind the victims. There may be other biological extracts remaining in the possession or control of the state as well.”

Attorneys for all three men in prison want new testing of evidence and money has been raised to pay for it. But Arkansas Attorney General Dustin McDaniel has argued that “additional testing should not be permitted to any petitioner.”

In the view of the American Bar Association, state attorneys, including attorneys general and prosecutors, have an ethical “duty to disclose information that might help defendants fight criminal charges.” The ABA says that a prosecutor’s role as “a minister of justice” carries “specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.”

Echols’ attorneys—Stephen L. Braga, Dennis P. Riordan, and Deborah R. Sallings—noted in their recent filing that Arkansas’s DNA testing law was enacted to further “the mission of the criminal justice system … to punish the guilty and to exonerate the innocent.” They argued further: “The defendants are willing to have this evidence tested now and to live with the results. There is no legitimate reason why the state should not be willing to do so as well.”

Nevertheless, the defense team acknowledged: “It is easy to understand the state’s adversarial reluctance to agree to additional testing in this case. As noted [earlier], … the state made a major point to the jury out of the fact that ‘You’d see evidence out there that didn’t match either one of these [people]. You’d see evidence that didn’t connect. And you don’t have that. There’s just a scarcity of evidence.”

Turning that argument around, Echols’s attorneys concluded: “In a case with scarce evidence, no testing opportunity should be bypassed, especially when the ultimate result in the case is a matter of life or death for one of the defendants.”

But before any testing can be conducted, Laser will have to order it, and the material in question will have to be located. “The fact is that the state has not tracked the evidence over the years,” Soury said. “The information we’ve requested should be forthcoming. But, frankly, we don’t know. We really don’t know. We’ve gotten very little cooperation from the state.”

Laser has ordered all lawyers on the case not to publicly discuss it. The spokesman for McDaniel’s office has said that he will not comment except through press releases.

Photos from the website of the Arkansas State Crime Laboratory.

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