State versus science: Recent court filings offer glimpse of the hearing ahead

Misskelley before his arrest

The Arkansas Supreme Court has told state prosecutors and attorneys for the West Memphis Three that they can bring “all” the evidence they consider important into the evidentiary hearing set to begin in December. Will the state again introduce Satan, as it did when the men were convicted?

[private]Remember that the arrests were predicated entirely on a statement Jessie Misskelley, Jr. made to police on June 3, 1993, a month after the murders. Police brought Misskelley to the station for questioning based on statements by Vicki Hutcheson that she had seen Misskelley and Damien Echols engage in sexual, occult-related activities. (Hutcheson has since recanted her statements, claiming police pressured her to make them to avoid an unrelated criminal charge.)

Before police interviewed Misskelley, however, they gave him a polygraph test. The officer who administered that test wrote that in a “pretest interview,” Misskelly “said that he has never participated in a Satanic ritual and has never observed one.” However, the officer reported that Misskelley recorded “significant responses indicative of deception” on five questions during the polygraph. Two of the questions concerned Satanism: “Have you ever took part in devil worship?” and “Have you ever attended a devil worship ceremony?”

Armed with a report that Misskelley also lied when he said he had never been to the woods where the bodies of the three young boys were found, that he had not been involved in their murders, and that he didn’t know who killed the children, police began an interview with Misskelley that would last for the next several hours.

Misskelley’s statements changed throughout the day. Ultimately, Misskelley told the detectives that he had witnessed Echols and his friend, Jason Baldwin, kill the children and that, at one point, he himself had helped by catching and holding one of the children who had tried to escape. According to police, Misskelley said the murders were the work of a “Satanic cult.”

Two brief portions of Misskelley’s interview were recorded. Much of what the 17-year-old said was vague, inaccurate or contradictory. None of his incriminating statements has ever been proved. But at the teenagers’ subsequent trials, prosecutors convinced two juries that the teenagers had killed the children as part of an “occult ritual.”

They based that theory partly on Hutcheson’s statement that Echols and Misskelley had taken her to an “esbat,” which she described as something like a witches’ orgy, in a rural area near West Memphis. The rest they based on Misskelley’s statements that he had seen a picture of the murdered boys at a meeting of a “Satanic cult;” that the cult met on Wednesdays in the woods where the bodies were found; and that “as part of a ritual” at those meetings, members built fires “of paper and wood and stuff” and “someone brings a dog, and they usually kill the dog … and eat part of it.”

A jury convicted Misskelley based on his own recorded statements, which were played in court. But since Misskelley had also recanted those statements—and since he would not repeat his accusations at the upcoming trial of Echols and Baldwin that he’d seen them kill the boys—prosecutors drew on the testimony of a self-described “expert in the occult” to link Echols and Baldwin to the murders. Even though the doctoral degree that Dale Griffis claimed to possess was exposed as fraudulent at the Echols-Baldwin trial, Judge David Burnett declared him qualified as an expert. In a case that lacked any typical forensic evidence, the testimony offered by Griffis set the stage for the closing argument by Prosecuting Attorney Brent Davis.

“The Satanic or occult motive thing is kind of a foreign concept to me,” Davis told the jurors. “But when you’ve got people that are doing what was done to these three little boys, I mean, you’ve got—the normal motives for human conduct don’t apply. There’s something strange going on that causes people to do this. I mean, you’ve got some weird people.”

Gesturing toward Echols, Davis continued: “This guy is as cool as a cucumber. He is nearly emotionless, and what he has done in terms of the Satanic stuff is a whole lot more than just dabbling or looking into it for purposes of an intellectual exercise. … And I put to you, as bizarre as it may seem to you and as unfamiliar as it may seem, this occult set of beliefs and the beliefs that Damien had and that his best friend, Jason, was exposed to all the time, that those were the set of beliefs that were the motive or the basis for causing this bizarre murder.”

Davis concluded: “We have presented a circumstantial case with circumstantial evidence, and it’s good enough for a conviction.” The jurors agreed.

But soon, more than 18 years after the murders, Arkansas Attorney General Dustin McDaniel and his staff will face teams of attorneys for Echols, Baldwin and Misskelley at the court-ordered evidentiary hearing. It is uncertain what experts the state plans to call, but the experts the appellants have cited have real doctorates. Where the convictions were based on, as Davis put it, “the occult motive thing,” filings suggest that, this time, attorneys for the men in prison will confront notions of Satanism with science.

After resisting for years defense requests for new DNA tests, the attorney general recently filed papers stating that his office will no longer “object” to new scientific tests. The state’s motion, filed on April 8, notes, however, that “the state doubts that [the] additional testing” will help the convicted men “in the face of [their] admissions to their crimes…”

Echols and Baldwin have never admitted guilt in any official forum. McDaniel claims that they did, however, “confess” to the murders. In Echols’ case, that was when he reportedly boasted at a softball field that he had committed the murders. In Baldwin’s, it was when he bragged about his participation to another prisoner in the juvenile detention facility where he was held awaiting trial. The prisoner and two girls who were at the softball field testified in court that they heard Baldwin and Echols make the self-incriminating remarks. Under the circumstances, Arkansas law allows remarks that, in other contexts would be ruled hearsay, to qualify as confessions.

The state’s attorneys did not mention those two second-hand “confessions” in their most recent filing. They did, however, inform Judge David Laser, who will officiate at the hearing, that they will “rely on” the statement Misskelley made to police before his arrest, as well as a second statement Misskelley made to prosecutors 13 days after he was convicted and sentenced to life in prison. In that statement, Misskelley accused Echols and Baldwin of killing the boys, with his participation.

The state’s attorneys provided Laser with a transcript of Misskelley’s post-conviction confession “by way of example” of the evidence they will ask the judge to consider. Misskelley made his post-conviction confession against the advice of his attorneys, Dan Stidham and Greg Crow, and after he had been sent to prison.

Misskelley after his conviction

Though Misskelley agreed that, “at this point, no promises have been made as to any deals or any benefits that will be granted” as a result of whatever Misskelley might say, the questioning came two weeks after prosecutors told reporters that his sentence to life in prison was not yet final. They explained that Judge David Burnett could still choose to reduce Misskelley’s sentence if, for instance, he agreed to repeat his accusations against Echols and Baldwin at their trial, which, at the time of this questioning, was just five days away.

There are many differences between the statement Misskelley made to police in 1993, four weeks after the murders, and the one he made to prosecutors in 1994, two weeks after his trial. I’ll look at those in postings that follow. But one of the biggest differences traces not to Misskelley, but to the officials who are questioning him. It is glaring in its absence. No one asks—and Misskelley does not speak—a word about Satan, cults, “the occult” or rituals.[/private]

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