What ‘items that were not requested’ did the attorney general have DNA tested?

AG Dustin McDaniel acknowledged–but did not explain–state’s additional DNA testing

[private]In 1993, after Damien Echols, Jason Baldwin and Jessie Misskelley, Jr., were charged with a triple-murder in West Memphis, Prosecuting Attorney John Fogleman took the unusual step of pursuing his own investigation. Prosecutors normally rely on results of the police investigation. For months after the three teenagers were arrested, however, Fogleman personally conducted interviews and even had police divers search a local lake. That produced a knife that Fogleman presented as evidence.

Now it appears that Arkansas Attorney General Dustin McDaniel has conducted a similarly atypical investigation. His office is not discussing the case, but last year, during McDaniel’s campaign for re-election, he was asked about the DNA tests that were conducted almost a decade after the men’s trials.

McDaniel responded:

“Well, there have been a number of circumstances under which we have addressed additional evidence. There have been requests by the defense, there have been matters that were taken up in front of the court, and there were items that we submitted on our own.

“And so, I wouldn’t want to incorrectly identify which items fell under which purview, but we definitely on our own—because I am the one that gave the instruction—[had] some items that were not requested to be tested otherwise sent off for DNA testing. And then we voluntarily submitted the results. … And that only happened in the last few months.”

Getting the original tests conducted had been a long and complex process. It involved securing lists of all the known physical evidence, establishing which items on those lists attorneys for all sides wanted tested, determining which laboratory would conduct the tests, securing agreement from all parties, and then—for the defendants—raising money to pay for the tests. That took years—from approximately 2000 to 2005.

Finally, Judge David Burnett ordered the agreed-upon tests. The reports from Bode Technology Group are here.

Bode’s conclusions, including its final report in 2007, were that no DNA found on or near any of the three victims came from any of the convicted men. Those results are among the evidence that will be reviewed at an evidentiary hearing that the Arkansas Supreme Court ordered last September.

In October, a few weeks after the supreme court ruling, McDaniel himself obliquely broke the news that he had ordered additional testing within “the last few months.” He made the remark during a candidates’ forum hosted by the Arkansas Educational Television Network.

In the months since, McDaniel’s extemporaneous revelation has given rise to a number of questions:

—What were the “items” that he personally ordered tested?

—Does his statement that the items had not been “otherwise” requested mean that defense attorneys for the West Memphis Three were not consulted?

—Was any evidence destroyed or damaged in the tests?

—When and where were the tests conducted, and when did the attorney general “voluntarily” inform the defense teams?

—Finally, and not incidentally, what were the results?

Last month, at a conference held to schedule the evidentiary hearing, attorneys for the men in prison reported that they still need to have some hair and fiber evidence tested. In an apparent reference to McDaniel’s recently acknowledged tests, an attorney for Jason Baldwin complained to Judge David Laser that, “The state did some testing of its own.”

The attorney asked that no party be allowed to undertake potentially destructive testing of evidence without mutual knowledge and agreement. Laser instructed that all future testing would “be above the table.”

During that conference, Laser also placed a gag order on all attorneys in the case, so they are barred from revealing what they may now know about McDaniel’s tests. And there is another block to disclosure, as well. The Arkansas’s Freedom of Information Act exempts the “unpublished memoranda, working papers and correspondence” of the attorney general.[/private]

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