CORRECTION: This post stated that Judge Burnett's denial of the defense's claim that post-mortem animal predation applied to both Baldwin and Misskelley, when in fact it only applied to Jason Baldwin.  The claim may logically apply to both defendants, but legally, since Baldwin was tried with Echols, it only applies to Baldwin. 

With his ruling today against Jason Baldwin and Jessie Misskelley in their motions for new trials, Judge David Burnett is officially finished with the case of the West Memphis Three. After almost sixteen years, two trials, countless hearings and appeals, and an HBO documentary that he said was "one-sided", the book is closed on what to many is a most bewildering conflict of interest.

When Damien Echols, Jason Baldwin, and Jessie Misskelley were convicted in early 1994 for the May 5^th, 1993 murders of eight-year-olds Steven Branch, Christopher Byers, and Michael Moore, most of the public expected Judge Burnett’s role in the case to be over. Not so. Not only did he preside over the immediate post-conviction hearings, including one for prosecutorial misconduct (ruled in favor of the prosecution), but over the years has overseen every appeal for relief made by each defendant. This was true even after Burnett retired in January of 2009. He agreed to stay on the case as a "special" judge, reasoning that it would place an impossible burden on a new judge to pick up the appeals at that time. Maybe so. But given Burnett’s statement in the December 26^th Jonesboro Sun, the public has a right to wonder just what his motives really were. "I can tell you one thing", Burnett said. "I’m tired of this case." Burnett also said that it was a mistake to allow the HBO crew into the courtroom to film the trials in 1994 (Paradise Lost.) A mistake perhaps, but it was his to make. It was apparently okay with co-prosecutor John Fogleman. During jury selection at the Echols trial, Fogleman said, "Because of the high interest in the area, the state, the nation, we felt like it would be appropriate to have cameras in the courtroom to record the proceedings, rather than have ’em outside the courtroom and hundreds of ‘em just hovering around everyone who goes in and out." Perhaps it was only because the local media didn't question the verdicts that Burnett has a problem with the documentary.

Although Judge Burnett - or should we start calling him Senator - later apologized for his remarks in the Sun, he didn’t retract them, and it probably would have made little difference to those who believe that the idea of a judge making rulings on his own rulings is preposterous.

Burnett’s decision not only denies Baldwin and Misskelley’s claim of ineffective assistance of counsel, but also the defense’s theory that post-mortem animal predation - not knives - caused most of the wounds to the victims.

Appeals for Baldwin and Misskelley are surely forthcoming. Meanwhile, Damien Echols still awaits a ruling from the Arkansas Supreme Court (ASC) on his own motion for a new trial. In October of 2007, Echols filed a second motion for a new trial in federal court, claiming that there was new evidence that would prove his innocence. The federal court ruled that Echols had not exhausted his state remedies, and the case was sent back to circuit court. Burnett promptly refused to even hold an evidentiary hearing. The ASC has not given a date on which it expects a decision.

Jozef De Veuster, better known to Catholics by the religious name he chose - Damien - was canonized on Sunday by Pope Benedict XVL. The ceremony, which conferred upon De Veuster the title of "saint", took place in St. Peter’s Basilica in Rome, 120 years after the priest’s death from leprosy in 1889.

Born in Belgium in 1840, De Veuester’s ministry, assigned at his request, was in Hawaii on the island of Molokai where he tended to the needs of some 600-800 lepers who were quarantined there. The government provided food and clothing assistance for those infected with the loathsome disease, but little else. Father Damien not only administered the "consolations of religion" to those in the colony, but also provided what little medical attention he could, treating their ulcers, even building coffins and digging their graves. He was a builder of roads, schools, a church and a hospital. He was considered tough, even headstrong, by his peers, but was, and is, venerated on the little-visited Hawaiian island. Of the newly canonized saint, the Pontiff said yesterday:

Saint Damien chose to be among those considered the most "repugnant" of outcasts, eventually giving his life in caring for them.

"I WANT TO GO WHERE THE MONSTERS GO"

When as a teenager Michael Wayne Hutchinson took the surname of his adoptive father, he also changed his first name to Damien, allegedly after the leper priest he came to admire during a fleeting but intense interest in Catholicism. Knowing the loneliness and separateness that characterized the life of Damien Echols, it isn’t hard to see how he could have come to admire, and eventually take the name of, the Patron Saint of Molokai who sacrificed his life for the ultimate misfits. Over the years, many have asserted that Echols’s choice of a name was something more sinister, possibly deriving from a character in Richard Donner’s 1976 film The Omen. In it, five-year-old Damien Thorn (Harvey Stephens), the heir apparent to a British family’s diplomatic and financial dynasty, is depicted as the coming antichrist, or Great Beast, of the apocalyptic biblical book of Revelation. The antichrist of the bible has "the number of the beast, for it is man’s number. His number is 666." (Revelation 13:18) The arrival of the antichrist foretells the return of Jesus on earth and the ensuing battle of Armageddon. In the film, when told by the enigmatic Carl Bugenhagen that the boy must bear "the mark" somewhere on his body, Damien’s father, Robert Thorn, searches for the mark, and eventually finds it in the form of a birthmark on the young Thorn’s scalp. Armed with the seven daggers of Meggado, all Thorn has to do is kill his son.

Damien Echols was plagued with chronic depression - or more accurately "dysthymia syndrome", as it was diagnosed - throughout his youth. His home environment, dominated by a man Damien once described as "the most hateful individual I’ve ever known", was characterized by extreme poverty, emotional instability, religious extremism, and the sexual abuse of his sister by Jack Echols. His mother was unable, or unwilling, to stop what was happening to her children. Damien became increasingly antisocial as he grew older, and began to develop what he describes as a defense mechanism for protecting himself against others he deemed threatening. Dark goth clothes including his signature black trench coat, fingernails filed to points, and an open obsession with heavy metal music were enough to convince many in West Memphis that Damien Echols was someone best left alone. These things, along with Echols’s assertion that he was involved in "witchcraft" - not, he insisted, black witchcraft or Satanism - convinced many that the choice of Echols’s new name may have sprung from a more malevolent motive than the mimicry of a future saint. Echols described to his therapist his disassociation with society, his interest in witchcraft, and a near obsession with death and the afterlife. He also told tales of blood drinking, which he claimed gave him power and made him "feel like a god." His poetry, which his therapist encouraged him to bring to their sessions, was often brimming with death and anger:

So the question is, from where did Damien Echols actually draw his new name? Was he attempting to honor the father-figure saint who might serve to protect him from evil, like some sort of personal gargoyle? Or did he wish to embody the evil and power of a bloodthirsty demon, bent on becoming someone who "influenced the world", someone who would be remembered, perhaps as the West Memphis Boogeyman?

As cynical as anyone following the case of the West Memphis Three might be, last week’s ruling by the Arkansas Supreme Court remanding their cases once again to the circuit court was sure to elicit a massive groan by supporters. Although it should only take Judge David Burnett of the 2^nd district a matter of weeks to turn the case around (he is listed as a "special" judge, and as such has no regular caseload), any additional delay in this case is wholly unacceptable. Damien Echols has been on death row for 15.6 years - 12.8 is the average span between sentencing and execution - and with conditions being what they are, years of uncertainty for an inmate and the families of the victims is unconscionable. Our current president has decided that repeatedly holding the heads of foreign-born enemy combatants under water is torture. What must he think of inmates, U.S. citizens, spending years - or decades - sequestered in tiny, airless cells for 23 hours a day. The incidents of suicide and attempted suicide by death row inmates is 113 per 100,000, about 6 times the rate among U.S. males in the general prison population ("Suicide on Death Row", David Lester and Christine Tartaro, Journal of Forensic Sciences.) Our corrections system is based upon justice, not vengeance. At least that’s what it says in the text books. Guilty or innocent, in the words of Barack Obama, "The United States does not torture people."

But to the issue at hand: why did the high court remand the case? The October 1 opinion reads, in part, "Although the record in Baldwin v. State . . . reflects that Baldwin Exhibit Nos. 1-71 and 75-77 were filed under seal, we are unable to determine whether these exhibits were also filed under seal in Echols v. State . . . and Misskelley v. State. Likewise, the records in each case do not indicate whether any of the pleadings were filed under seal . . . [as such] we remand the above-captioned cases to the trial court to settle the record concerning which portions of the respective records are under seal."

Is this for real? If the court received a record that was sealed, it should remain sealed. Why is this even a question? The lone dissenter, Justice Paul Danielson, agreed, writing that " . . .such an inquiry at this point is a simple one. Either the records, or portions thereof, were filed under seal . . . or they were not." Danielson said the decision to send the records back to Burnett means, in essence, that the higher court is " providing the circuit court with a second opportunity to seal portions of those records." On this issue the circuit court should not have another bite at the apple, particularly in a case where Judge Burnett has had the opportunity to eat the entire apple, core and all, although in fairness, he surely wishes it would go away as well. Could it possibly be - say it ain’t so - that the higher court is dodging the difficult decision of whether or not to grant new trials to the three men? Of course, on the positive side, and there is one, Damien Echols is still alive.

Let’s hope it stays that way.

Two prominent legal organizations joined forces and filed an Amicus Curiae brief with the Arkansas State Supreme Court today on behalf of Damien Echols, taking the next step toward obtaining a new trial for their client, who has been on death row for the past fifteen years. Echols was convicted in 1994 for the triple murder of Steve Branch, Christopher Byers, and Michael Moore. The three eight-year-olds were found nude and bound in a drainage ditch after disappearing from their homes on the evening of May 5^th, 1993. Echols was sentenced to death, while his codefendants, Jason Baldwin and Jessie Misskelley, were sent to prison for life. Misskelley’s error-ridden confession led to the arrests and convictions of the three then-teenagers, though he recanted almost immediately. There was no physical evidence linking the three to the crime scene, and they have maintained their innocence over the years.

This latest filing could at last free the way for the State of Arkansas to reconsider the validity of the Misskelley confession, which defense attorneys have long claimed was coerced. It would also allow the court to hear, for the first time, new physical and circumstantial evidence collected by Echols’s defense team over the last few years, including DNA evidence collected from the crime scene. Most incendiary of all are charges of juror misconduct on the part of Echols/Baldwin jury foreman Kent Arnold. Arnold has been accused by the defense of introducing the Misskelley confession to his fellow jurors, as well as obtaining legal advice during the trial on how to move the jury towards a conviction. Judge David Burnett dismissed Echols’s appeal without an evidentiary hearing in September of 2008. Echols originally filed his habeas petition in the Federal Court for the Eastern District of Arkansas in October of 2007, but the federal court determined that Echols had not exhausted remedies at the state circuit court level. In other words, back to Burnett. Co-defendants Jason Baldwin and Jessie Misskelley revisited Burnett’s courtroom yet again in August, but were unable to complete the hearings due to scheduling conflicts with the state’s expert witnesses. The hearings are set to resume - and hopefully conclude - during the first week of October.

Any predictions?

The Center on Wrongful Convictions of Youth (CWCY), the unique collaboration launched by the Northwestern University School of Law’s Bluhm Legal Clinic, filed the friend of the court brief. The University paired their Children and Family Justice Center, with the Center on wrongful convictions to draw attention to the special needs of wrongfully convicted youths, making it the first organization of its type in the U.S. Steven A. Drizin and Laura H. Nirider of Northwestern University are the attorneys who filed the brief. Drizin is co-editor of a new book, "True Stories of Wrongful Convictions."

With all the hype surrounding Terry Hobbs’s defamation suit against Natalie Maines Pasdar and the Dixie Chicks, it is easy to miss the fact that beneath all the bulky legal documentation lies what just may be a whole lot of nothing. A brief examination of the salient facts should put the suit in perspective.

In November of 2007, Pasdar published a letter on the Dixie Chicks website, "Letter from Natalie Maines:WM3 Call to Action", in which she implored her fans to support the West Memphis Three with cash donations to their defense fund. "DNA and forensic tests are expensive", she said. "They are also what will finally set these men free."



The letter goes on to highlight several of the evidentiary items that were in Damien Echols’s federal filing, including the discovery that hairs found at the crime scene were linked by DNA testing to Steve Branch's stepfather Terry Hobbs and Hobbs's friend David Jacoby. Pasdar’s letter also made the following informational points:

- Sworn affidavits outlining new evidence uncovered by Pam Hobbs (the ex-wife of Terry Hobbs) who found a knife in Terry Hobbs’ [sic] drawer that her son (one of the victims) had carried with him at all times. After her son was killed, the knife was not among his personal effects that police gave to the Hobbs family, and Pam Hobbs has always assumed that her son’s murderer had taken it during the crime.

- New information implicating Terry Hobbs - including his own statements made to police in recent interview where he acknowledged that several of his relatives suspect him in the crime. The filing also includes a chronology of Hobbs activities on the night of the crimes, when he washed his clothes and sheets at odd hours for no reason other than to hide evidence from the crimes. [Emphasis added]

This last statement may have pushed Hobbs over the edge. A year later, in November of 2008, Hobbs filed suit against Natalie Maines (Pasdar) individually, and the Dixie Chicks collectively (with Emily Robinson and Martha Seidel.) Hobbs charged the Chicks with "recklessly" making "malicious, libelous, slanderous, and false statements" about him on the "world-wide internet via an open letter on the Defendant Dixie Chicks website." This, Hobbs asserts, amounted to an accusation that he comitted the murders of Christopher Byers, Steve Branch, and Michael Moore, and caused Hobbs to "suffer personal injuries, injury to his reputation and professional and business damages for which he is entitled to recover compensatory and punitive damages as determined by a jury."

The offending statement about Hobb’s laundering routine was actually made by Pam Hobbs’s sister, Jo Lynn McCoughey. On May 6^th, 1993, she was at the Hobbs’s house and observed Terry washing clothes, bed linens, even curtains. " . . . he was not just washing the dirty laundry", McCoughey said, "but was taking clothes out of the dresser drawers and washing those too. . . [I]t was my opinion that there was no other reason or pressing need that I am aware of for Terry to do that laundry at that time other than to hide evidence of the crimes." She’s right. It’s weird. Really weird. Why was Hobbs allegedly washing everything in sight hours after his stepson was found brutally murdered?

The problem for Hobbs is that Pasdar didn’t make the original statement; Jo Lynn McCoughey did, in a declaration made under oath to defense investigators. Pasdar just reported it. Nothing Pasdar said or wrote represented an original thought. Pasdar 's knowledge of the case is limited to what she gleaned from two HBO movies - Paradise Lost and Revelations: Paradise Lost 2, and what she has been told by Lorri Echols and the defense team. Hobbs disagreed, charging that the statement constitutes defamation, particularly in light of Pasdar’s celebrity, which caused the statement to be reported by Fox News, ABC TV, The Memphis Commercial Appeal, the Huffington Post and others. Pasdar’s lawyers countered on Friday September 4^th, 2009 by asking the federal court charged with hearing the case for a summary judgement.  This one could be over before it starts.

Size Matters

Terry Hobbs’s lawsuit, filed with the Ninth Circuit Court in Pulaski County, Arkansas, ran to six pages. Six pages. To date, Pasdar has dumped thousands of pages of documentation on Hobbs and his attorney, J. Cody Hiland of Conway, Arkansas. Unless Hobbs has unlimited financial resources to retain Hiland to review and respond to all that documentation, and possibly appear in court should it get that far, this suit will disappear faster than Jimmy Hoffa. Hiland was almost surely hoping for a settlement, but Pasdar apparently isn’t even considering it.

All that being said, a more fundamental question comes to mind: Did Terry Hobbs actually have anything to do with the murders of Steve Branch, Christopher Byers, and Michael Moore? Mark Byers believes that although it may take years for the law to answer that question, he already knows. "Terry Hobbs killed my son and needs to take responsibility for that." When asked by Memphis reporter Stephanie Scurlock if he could relate to what Terry Hobbs might be feeling, Mark said, "I can’t really relate to what he’s going through. I don’t know what it would be like to be guilty of killing three children and knowing that the hounds are on your tail."

The appellate hearings for Jason Baldwin and Jessie Misskelley continued on August 10^th in Jonesboro, and for drama and poignancy, this round probably stands apart from the first three. Although one got the impression that the witnesses were being called somewhat piecemeal and in no specific order, it was clear that attorneys Michael Burt and John Phillipsborn had a strategy and were prepared to carry it out. The following is just a minimal overview, since the day-by-day details are covered at other websites.

Dr. Werner Spitz took the stand on Monday in a continuation of testimony he had begun last November. The upshot of his testimony was the same as it was in his affidavit in the Echols habeas petition: animal bites, not knife wounds, were present on the three victims’ bodies. Furthermore, all the wounds, with the exception of basil fractures to the skulls of all three victims, were inflicted post-mortem. Spitz also was of the opinion that Christopher Byers, Stevie Branch, and Michael Moore drowned.

On Tuesday the defense called Dr. Michael Baden. Chief Medical Examiner for the New York State Police, and consultant on numerous high-profile homicide cases. Although Baden seemed a bit sluggish and unsure of himself during the morning, in the afternoon session he came out blazing, firing off technical details with authority, clarity, and simplicity, details that would prove impossible to challenge during cross examination. He was also very critical of Dr. Frank Peretti’s autopsy reports on the three victims, saying that, among other things, Peretti seemed to have great difficulty distinguishing between peri-mortem and post-mortem wounds. His assessment of the injuries was the same as Spitz’s: post-mortem caused by animal predation. He agreed with Spitz about the causes of death, but added his belief that the head wounds would have been fatal in and of themselves.

Tuesday’s biggest surprise came when Mark Byers took the stand. After an impromptu hallway meeting, Michael Burt decided to call Mark in order to get it into the record that the types of carnivores that Baden testified were responsible for most of the injuries to the victims - primarily large turtles - were common to the area of Robin Hood Hills. Mark testified that he often found snapping turtles in the pool at his home on East Barton, a few blocks from the crime scene. He would fish the turtles out of the pool with a net, and put them down storm drains (Arkansas version of catch and release.) Later, outside the courthouse and away from cameras and reporters, Baden and Mark embraced and shared a few private words.

Wednesday opened with testimony from the very colorful forensic odontologist for the Miami/Dade Medical Examiner’s office, Dr. Richard Souviron. Although he is still a practicing dentist, Souviron’s trial expertise these days involves the analysis and identification of bite mark evidence, both human and animal. "I still do fillings and root canals", he says, "but these days 75% of my business is in the area of law enforcement." Today his business was to testify on behalf of the defense about what has by now become familiar fare: that post-mortem animal predation by land and/or aquatic animals, was responsible for the overwhelming majority of the wounds found on the three boys. Souviron testified that he reviewed the reports or testimonies of three doctors - Dr. Peretti, Dr. Kevin Dugan, and Dr. Harry Mincer, all expert witnesses called at Damien Echols’s 1997-1998 Rule 37 hearings - and found them lacking. None of the three men stated that they saw any evidence of bite mark activity (except for the superficial bites noted by Peretti on the "mucosal surfaces" of Christopher Byers’s cheeks, and Michael Moore’s tongue.) Perhaps the most interesting thing brought out by Dr. Souviron was his opinion that the insides of Steve Branch’s upper and lower lip had been bruised, ante-mortem. While Peretti had noted the lips to be "abraded, with multiple superficial lacerations . . . and multiple contusions", he made no notation of when or how he thought Stevie had sustained those particular injuries. According to Souviron, Stevie Branch had been "struck" on the mouth prior to his death.

Prosecutor Kent Holt’s cross examination did little to undermine Dr. Souviron’s testimony. Holt asked Dr. Souviron about the injury to the left forehead of Steve Branch. To case watchers, this was the famous "dome-shaped patterned injury" that some, including defense witness Dr. Thomas David (in 1998), believed was caused by a human bite.

Holt: Do you know Dr. Thomas David?

Sourviron: I do

Holt: Are you aware that Dr. David is of the opinion that the mark on Stevie’s forehead was a human bite mark.

Souviron: I am, and he’s wrong.

Holt: You know Dr. David? Know who he is?

Sourviron: Yeah, I know who he is, he’s a friend of mine, I recently had dinner with him, but he’s flat wrong.

Souviron stuck to his testimony that the theory that any injuries found on the boys’ bodies were made by any kind of knife was "bunk."

Pediatric forensic pathologist Dr. Janice Ophoven, M.D. testified on Thursday. The primary purpose of her testimony was to dispel any notion of sexual injuries sustained during the attack on the boys. She testified that there was "no evidence of human agency" regarding the injuries to the groin area of Christopher Byers, and that there was not "one shred of evidence" that any of the boys had been sexually assaulted. Her opinion as to the cause of death? "Blunt force trauma and drowning."

The next two days probably were the most dramatic. Gail Grinnell was called testify, the purpose being to establish the alibi for Jason that Paul Ford did not present at the criminal trial.

She looked like she had aged thirty years in the past fifteen. Her hair hung limp on her face, and her eyes darted back and forth suspiciously. She was clearly terrified. Although she had been present in court for a good part of the day, Judge Burnett allowed her to testify. Today, Jason’s mother would finally get to tell the court where her son was when three eight-year-old boys were being murdered on May 5, 1993. She told essentially the same story that police had heard in 1993; that Jason was in school all day, had come home to check on his brothers, gone over to mow his uncle’s lawn, played video games at Wal-Mart with a friend, and was home for the night by 9:00 p.m. But Gail was in no shape to testify. She tried to answer John Philipsborn’s questions, but often acted as if she didn’t hear them, staring off into space, finally managing to squeeze out an, "Excuse me?" This pattern repeated over and over again, along with her tendency to look to Jason before answering almost every question. She would give random answers to questions not asked. "He had a Nintendo." "When he was arrested he was my height." The only time she really seemed to light up was when she talked about her job. "I did data entry for a transportation company in Memphis, answered the phone, worked in offices, sent out parts." She hasn’t been able to work in years.

The most puzzling thing about Gail Grinnell’s testimony was her statement that Damien Echols was not Jason’s "best friend." It was the one thing about the entire case that never seemed to be in question. In his 2005 book, Almost Home, Echols himself states that shortly after the two met, they were nearly inseparable. They were together nearly every day after school, "listening to music, talking, laughing at other people until we reached a fevered, manic pitch.". Every weekend one would sleep over the other’s house, Summers were spent fishing, playing video games, sneaking out at night with Jason’s brother, Matt ("Sometimes I think I miss Matt almost as much as I miss Jason.") And yet on the stand, Gail could remember only one of Jason’s other friends by name, one Kenneth Watkins, the boy Jason allegedly played video games with early in the evening of May 5^th, 1993. She looked off into space from the witness stand, repeating, "he had other friends . . . other friends . . ." , and looked around the room, as if she might see some familiar faces in the gallery. She looked like the ghost of Paul Ford, still trying to distance Jason from Damien. For Gail, this was her chance to finally tell the court about the boy she knew, her son, the one who would take care of his two younger brothers, feeding them dinner after Gail left for work, getting them ready for bed. The young boy who loved animals, and whose pet green snake was the top attraction in the neighborhood. The teenager she tried to protect from the police after his arrest by telling him not to talk until she could somehow get him a lawyer. Her oldest son, whose innocence she has never doubted. "We just want Jason to come home." But words seemed to allude her. After so many years of waiting to be allowed to address the court, she struggled to concentrate. "What I’m tryin’ to say", she managed to get out, "is that we prayed that they would find out who killed those kids. I never dreamed in my wildest dreams that he would be arrested." When she was asked by the defense if she had been hospitalized for mental illness, she answered - twice - "That was a long time ago."

As she was dismissed from the stand, she walked by Jason and said, "Was I all right?"

Also taking the stand on Jason’s behalf was Sally Ware, Jason’s high school art teacher. She was essentially a character witness. Jason was a good boy, nice, polite, did his schoolwork, wasn’t disruptive in class, had good attendance. Unfortunately, Ms. Ware could testify to nothing about Jason’s life outside of school.

Surely the biggest buzz of the hearings began Friday morning with speculation that none other than Vicki Hutcheson was going to take the stand. It was assumed that she was going to testify that she lied about almost everything she testified to in 1994. All eyes were upon her as she was called. She was wearing breezy, light green-colored matching pants and blouse, her long, reddish- blonde hair flowing behind her as she flounced down the aisle. She was sworn in, took the stand, and confidently gave her full name to the court. She was to be a witness for Jessie Misskelley, so Michael Burt began the questioning. "Your honor, before we can continue, Ms. Hutcheson has a question for the court. Go ahead and ask the judge, Vicki." The question she asked stunned the gallery. What, she wanted to know, was the statute of limitations on perjury in Arkansas? This prompted an immediate bench conference, followed by a ten minute recess to find out what the statute was in Arkansas. Ten minutes later, flanked by a public defender, Vicki was advised that there was no statute of limitations on perjury and that she could be prosecuted for past false testimony. Her "lawyer" advised the court that he was recommending that Vicki invoke her right against self-incrimination unless the court was willing to offer some kind of immunity. "I’m not giving her immunity", Judge Burnett snapped. What will Vicki Hutcheson do next? As usual, nobody knows, but without a grant of immunity her testimony is unlikely to be heard.

On Friday at 4:10 p.m., the defense announced it had no more witnesses to call. The State responded by informing the court that it had two expert witnesses to call (one of whom is perennial favorite Dr. Joshua Perper of Anna Nicole Smith fame) and they were both unavailable at the present time. Despite complaints from the defense, Judge Burnett set October 1^st and 2^nd as the next two dates for the hearings. The judge has asked for briefs from the attorneys 45 days after the hearings end, at which time he will be able to render a decision.

As most of you are aware, many things have changed between the middle of 2007 and today. Although we had hoped to publish Untying the Knot: John Mark Byers and the West Memphis Child Murders by late 2008, we underestimated the pace at which the case of the West Memphis Three would crawl through the courts. There have been events and delays which have necessitated our decision to keep any publishing date open in order for the book to conclude with the true end of the story. We also did not - could not - foresee how Mark Byers would react to new evidence collected as part of the Echols habeas petition. As it becomes more and more likely that after interminable delays, the case is finally - at least for Damien Echols - winding its way out of the Arkansas courts and probably into federal court, we think it makes sense to wait. Regardless of your opinion on the guilt or innocence of the West Memphis Three, they are entitled to their day in a court that is not presided over by the same judge who convicted them. That day is coming, and we want it included in the book.

The fates of Damien Echols, Jason Baldwin, and Jessie Misskelley are intertwined with that of Mark Byers, as it is with the other victims’ families, and the families of the convicted men. The deep divisions that exist between these factions are understandable and complex, but this much is certain: at the end of this tragic story, nobody really wins. The victims’ families will still be without their sons. The families of the West Memphis Three have been without their boys for all these years as well. "I grew up without a brother", says Matt Baldwin today. The careworn face and obvious mental duress of Gail Grinnell, Jason’s mother, tells the story. If the law decides that the West Memphis Three are indeed guilty of the crimes for which they have been convicted, thousands of supporters, as well as the Echols, Misskelley, and Baldwin families will have lost, as will Mark Byers, who has come to believe so fervently in the innocense of the three. There is also the possibility that they will be granted new trials. The prevailing legal and popular opinion today reveals a belief that new trials would result in acquittals for all three men. Probably so. But an acquittal is not a verdict of innocense, as in the case of a pardon. An acquittal merely reflects the jury’s decision that the prosecutor failed to prove guilt beyond a reasonable doubt. Sam Sheppard knew all about that; some say it killed him. Without a smoking gun, there’s always a lingering doubt.

Perhaps most problematically, if the West Memphis Three are declared innocent - or rather "not guilty" - we would then be forced to face the reality that there is a killer on the loose.  What kind of resources can we expect the State of Arkansas to devote to solving a sixteen-year-old murder? Has their competence risen to a level where the police and prosecutors can be trusted to launch an effective investigation? And what about the current members of the "Free the West Memphis Three" movement - will they simply disappear?

An investigation must be opened, but the trail is ice cold. If the only person to be physically linked to the crime scene - Terry Hobbs - is ever investigated and cleared, there is a likelihood that the killer or killers will never be caught.   Jack the Ripper. The Lindberg Kidnapping. The murder of Marilyn Sheppard. The Black Dahlia. JonBenèt Ramsey. It happens more frequently than we’d care to think about. Pray it doesn’t happen here.

We’ll keep you updated.

GCD August 21, 2009

As the modern, TV recording equipped auditorium filled with more than 120 high school students (only one of whom was late), the room started buzzing with anticipation. They’d been waiting over two months to hear the speaker, and few knew exactly what to expect. They’d seen the films. They’d studied the case. Now they were going to meet the man. The house lights went down, and all eyes were focused on the big screen on stage. The images, so familiar to anyone who has followed the case for any length of time, began to fill the stage with scenes that made the speaker a household name among the faithful. The "Pumpkin Shoot," the flag-draped evangelist, bible in hand, sitting in front of his Jonesboro apartment ("I hate you. Forever and a day, shall I hate you"), the "Grave Stomping." A parade images showcasing the man at his flamboyant best raced across the screen to a fixated crowd of impressionable youths. Then, the booming audio fades, the lights go up, and Blackman High School (Murfreesboro, TN) Criminal Justice teacher Rich Kimberly takes center stage. "Ladies and Gentlemen", he announces dramatically, "John Mark Byers." Like a contestant on The Price is Right, Mark comes bounding down the steps, grabs the microphone, and begins to talk. And lord knows he can talk.

"Who out there believes, or ever believed, that I killed my son?", he asked, unsmiling. Nervous glances were exchanged, but Kimberly reassured them. "It’s ok", he said. Pretty soon a group of students began to grin, all pointing to one poor soul who suddenly felt very alone.

"C’mon up here, son", Mark called out. The student was soon on the stage facing a suddenly huge John Mark Byers. "It’s ok, buddy. I forgive you." After an awkward silence, Mark breaks out laughing, and bear-hugs the startled student. Slapping him on the back, Mark gives the boy a "Free the West Memphis Three" bumper sticker and mouse pad, and says, "From now on don’t go believing everything you hear!"

The November 19^th - 21^st (2008) round of the Rule 37 hearings for Jason Baldwin and Jessie Misskelley - covered in another article - were attended by Kimberly and a handful of very curious high school students. The class had watched Paradise Lost in their Criminal Justice class, and six of the brightest students had been selected to make the 250 mile trek to Jonesboro to observe the hearings. They had quite a day. After bumping into Judge John Fogelman, and having an impromptu Q&A with Burk Sauls of the WM3 support group, they eventually found themselves face-to-face with the towering figure of John Mark Byers. "We were hoping we’d get to see him", said Kimberly, "but we weren’t even sure he was coming." Mark and Kimberly went to lunch together, and the students were treated to a private debriefing with the man who had made such an impression on them during their study of the case of the West Memphis Three. The lunch ended too soon, and Kimberly had to head back to Murfreesboro right after court. "I asked Mark if he’d be willing to speak to my class back in Tennessee, and he said he would."

The students in Kimberly’s Criminal Justice I and II classes had not only viewed the Paradise Lost films, but had also gone over, "line by line", Damien Echols’s Second Amended Writ of Habeas Corpus. The writ was submitted to Arkansas’s Second Circuit Court in October of 2007, a subsequently dismissed without a hearing. "Almost all my students were convinced of the innocence of the West Memphis Three after viewing Paradise Lost", Kimberly said, "but they weren’t sure what to make of Byers." Many in the class believed that Mark had something to do with the murders. (Now why does this all sound so familiar? Is there anyone who comes away from a viewing of the HBO movies with a different opinion?) And shoulders shrugged across the board when the topic came to Terry Hobbs. "They didn’t know quite what to think."

Mark spent the better part of three and a half hours taking the students through his odyssey, with particular emphasis on his changed beliefs regarding the innocense of Damien Echols, Jason Baldwin, and Jessie Misskelley. He also talked about Terry Hobbs, and the recent evidence that has been identified regarding Hobbs’s DNA being found at the crime scene, culminating with a showing of the video of Hobbs’s June 2007 interview with the West Memphis Police Department. He talked about his time in prison, and the years he spent under a cloud of suspicion that he has to shake every time a new wave of believers are indoctrinated, always by a viewing of Paradise Lost, into a case that simply won’t go away.

When asked if he had viewed, or gone over with his class, the State’s Response to Echols’s habeas petition (5/30/08), or Echols’s Reply in Support of his Motion for a New Trial (8/12/08), Kimberly said, "I didn’t know they were out there."

As the Jason Baldwin and Jessie Misskelley Rule 37 hearings resume later this month, our attention will again be focused on the concept of justice as applied - or not - in the fifteen-year-old case of the West Memphis Three. Using the power of the law, the two men convicted of the first-degree murders of three eight-year-old boys in 1993 will continue in their attempt to obtain new trials, despite having found that the two - justice and the law - don’t always coincide. Justice relates to righteousness, fairness, and impartiality. The law, on the other hand, defines a set of rules, codified rules of conduct that society has agreed to live by (government by consent of the people.) The objective of any civilized society is to attain the former via the latter. The law is an impersonal construct, while justice is very personal indeed. Where they come together - the battlefield - is in the criminal court, in this case the Craighead County Circuit Court in Jonesboro, Arkansas.

A criminal case is a contest between the state and the accused, both represented by attorneys, with the proceedings presided over by the judge. The lawyers are advocates, one representing the accused, the other ostensibly representing the people (us.) The judge is a referee, assuring that both sides play by the rules. Justice is the expected outcome, but in practice, neither side is particularly interested in justice; they want to win. This is how their performance is measured, and how they advance their careers. In his 2003 book The Wrong Men, a study of 102 wrongful death row convictions, Stanley Cohen said, "The ideal of justice that once favored our best instincts has been turned against itself. The great fear of a politician or prosecutor is not that an innocent man may be convicted, but that a guilty one might walk free. For which candidate seeking public office today will be ready to chance the prospect of being called soft on crime?" In order to give a defendant a fighting chance against the power of the court and the prosecutor, the Sixth Amendment levels the field by guaranteeing the accused the right to a trial by an impartial jury of his peers. The job of the jury is to decide the relative merit of each side’s arguments, tempered by the admonishments and instructions given by the judge, decide whether or not the state made its case beyond a reasonable doubt, and if so, what punishment is to be meted out in accordance with the law. If any one of these critical components - the attorneys, the judge, or the jury - are compromised, the result will be injustice. In the overwhelming majority of cases, the system works. Were this not so, we would have ceased to exist as a nation long ago.

When Alexander Hamilton wrote Federalist #78 - the second most quoted of the Federalist Papers (Madison’s #42 is the first) - in 1788, he was attempting to assuage anti-federalist fears over the power the judiciary would wield in the new republic (eventually defined in Article III of the Constitution.) Hamilton believed that the judiciary should exist as a "barrier to the encroachments and oppressions of the representative body." In other words, the judicial branch was designed to protect the citizenry from the legislative branch. But who protects us from the judiciary? Hamilton (as "Publius") wrote, "All judges who may be appointed by the United States are to hold their offices during good behavior." [Original emphasis from Clinton Rossiter’s edition.] Judges can be impeached, as can all elected officials. It just isn’t done often enough. The Constitution was designed to afford the judiciary with the least power; Hamilton himself believed that it was the "least dangerous" of the three branches of government. To Damien Echols, Jason Baldwin, and Jesse Misskelley, Jr., those concepts are like hollow platitudes. Indeed, James Madison and George Mason - author and "father" of the Bill of Rights respectively - would have cringed at the flagellation of the Sixth Amendment - the heart of a Rule 37 petition - that took place in the Craighead County Circuit Courthouse in 1994. On November 19^th, Misskelley and Baldwin are getting another bite at the apple in the continuation of their Rule 37 hearings. (Echols had his denied in 2001.) Their former attorneys - as well as presiding Judge David Burnett - will be on the hot seat as the appellants’ new attorneys take center stage for round two.

The questions being raised by the Arkansas legal procedure known as a Rule 37 petition all relate to the ineffective assistance of counsel, in this case by Daniel Stidham (Misskelley) and Paul Ford (Baldwin.) Misskelley’s case has been perhaps the most troubling, due to the fact that he confessed to the crimes, and further implicated Damien Echols and Jason Baldwin, who were tried separately. The problems with Misskelley’s confession - which the Arkansas State Supreme Court (ASSC) called a "confusing amalgam of events", despite affirming the convictions - form the core of his petition for a number of reasons, including a list of "inconsistencies":

Perhaps central to the petition - indeed, to the entire case - is the question of Jessie’s alleged mental impairment at the time he gave his statement, and Dan Stidham’s alleged failure in bringing it out in court. At trial, Stidham tried to bring that information to the jury through the testimony of discredited psychologist William Wilkins. Wilkins testified that Misskelley’s "full scale" IQ was 72, putting Jessie in the "borderline retarded" range (normal being 84-116.) The fact that Wilkins was currently on probation and prohibited from practicing in cases of child sexual abuse, led Misskelley’s new attorney to conclude that Stidham was negligent in allowing Wilkins to testify to what was a key element to the Misskelley confession, i.e., that his mental state caused him to be especially susceptible to coercion. Wilkins was also barred from testifying to the results of a so-called "suggestibility" test given to Misskelley - the Gunderson test - on the grounds that not only was it an unscientific exam, according to Judge Burnett, but that Wilkins was not qualified to administer the exam or interpret the results. Misskelley’s new attorney, Michael Burt, questioned why Stidham would put someone of Wilkins’s credentials on the stand without properly vetting him. In a gross understatement, the petition cites Stidham’s failure to "prepare for and object to Wilkins’s unreliable opinion."

These hearings are about ineffective assistance of counsel. The issue Misskelley brings before the court is a direct attack on Dan Stidham’s competence. As the only attorney to have stuck by his former client over the years - he hasn’t officially represented him since his 1996 direct appeal to the ASSC - Stidham should have been stung by the allegations. Instead, he took the stand in September and repeatedly stated his lack of readiness to defend a capital case, that he had, in fact, never tried a major felony as lead attorney. He admitted to being inadequately funded, and being unaware that there was actually a provision in the law to provide him with funding for Misskelley’s defense. Co-counsel Greg Crow testified, "We prefaced everything [when asking experts to testify] that ‘we can’t promise we’ll get you travel expenses.’ " Stidham was accused of having erred in his failure to prevent the introduction of damning testimony, including that of Vicki Hutcheson, his failure to timely raise a motion to suppress Misskelley’s statement, and a general failure in investigating Jessie’s mental health history, resulting in an ineffective trial strategy. Stidham took it on the chin. Paul Ford was more defiant, insisting that he did the best he could, laying everything else off on the court (he may, of course, be right.)

Summing up their allegations of ineffective counsel, the petition states, "Every facet of counsel’s performance in this case violated then-existing national norms as expressed by the American bar Association guidelines for the appointment and performance of counsel in death penalty cases." But that’s not the standard. In Strickland v Washington, the court held that, "the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." That’s a tough standard, one that most ineffective assistance of counsel claims can’t meet.

Wednesday, September 24^th marked the first time that Jason Baldwin had been in a courtroom since his conviction for three counts of first-degree murder in March of 1994. He looked much older, very thin, perhaps less than hopeful as he was led into court by sheriff’s deputies. When Judge David Burnett dismissed the motions for new trials for all three defendants on September 11^th, Jason could hardly have been surprised. Still, when asked by reporters what his hopes were for Wednesday’s proceedings, he replied, "For justice to finally be served." Burnett’s ruling left both Baldwin and Jessie Misskelley Jr. with only their Rule 37 petitions left to be heard.

Jason’s claim of ineffective counsel - a "Rule 37" petition in Arkansas - centered on several issues. To begin with, Baldwin claims that the search and arrest warrants issued on June 3^rd, 1993, were faulty. The petition alleges that circuit court judge William P. "Pal" Rainey had "abandoned his detached and neutral role" by coaching WMPD Detective Bryn Ridge in the preparation of those documents. The petition also cites attorney Paul Ford’s failure to obtain a separation of Baldwin’s trial from that of co-defendant Damien Echols, as well as his failure to properly discredit the testimony of jailhouse snitch Michael Carson, whose juvenile record and LSD abuse should have been more vigorously pursued by Ford. During an in camera session during the trial, Burnett had ruled that Carson’s medical records were obtained inappropriately - though inadvertently - by the defense, and because it was the source of information about Carson’s drug abuse, it was inadmissable. Baldwin also claimed that Carson had been given information about the case by counselor Danny Williams, information that Carson later used to incriminate Baldwin from the witness stand. Burnett had ruled that Williams’s communications with Carson were of a counseling nature, and thus were considered privileged and inadmissable, and further ruled that Williams could not be called as a witness. He did, however, allow Ford to cross-examine Carson on whether or not he had a conversation with Williams about the case. Carson said that he did, but that it was after his "soft heart" compelled him to contact prosecutor Brent Davis in February of 1994, some seven months after he allegedly heard Baldwin’s incriminating statements.

That Ford was on the hot seat on Wednesday was to be expected. Baldwin’s new attorney, John Philipsborn, is responsible for proving that Jason received ineffective and incompetent counsel at his trial in 1994. While Ford surely knows the drill, it’s a bitter pill. Saying that he was "diligent" in developing alibi witnesses for Baldwin, in the end they were simply too unreliable to put on the stand. "I did not find successfully what I was looking for - an alibi that would not unravel on me." He said that he still believes in his former client’s innocence. "As much as I wanted to see Jason go free, I cannot imagine I would not have put on a witness if I thought it would help his alibi." Jason remembers it differently. "I remember always telling them I was innocent. I would tell [the lawyers] every time, there are people who know where I was on May 5 and May 6", he said from the stand, but, "they just kept shrugging me off."

Mark Byers was on hand to watch the proceedings that he hopes will lead to Jason’s and Jessie Misskelley's freedom. "I believe that finally there is an opportunity for a wrong to be made right. I do not believe Damien Echols will get the death penalty; I believe Jason and Jessie will walk free." Few believe that this hearing will make that happen. Claims of ineffective assistance of counsel are almost automatic in capital cases, and also rarely succeed, but Mark is still hopeful. "When Echols and Baldwin were convicted, I thought they had good lawyers. I started asking questions. I took Police 101 and realized there were a lot of things not answered." And once again, Mark took head on the issue of his so-called "change of heart" with regard to the innocence of the West Memphis Three. "One of the hardest things I've ever done in my life is accept the fact of being wrong. No one likes to admit you're wrong. No one wants to choke on crow, and all of the things you've said and done, and realize that you're wrong. I've always learned it took a lot bigger man to stand up and admit his mistakes, than to hide behind a lie."



Whether or not Burnett rules in his favor, Jason still has avenues for appeal. Matt Baldwin, who was fourteen at the time of Jason’s arrest, was in court to support his brother. "If Burnett doesn’t do his duty and free him, he knows that he will be freed by a federal court." Many predict that the case will indeed go that far, but Matt still has trouble accepting that the case ever got to court in the first place. "I think that it really had to do with [the fact that] he didn’t have enough money to hire the right experts and everything to show that it was impossible for my brother to have committed those murders. My brother and them should never even have been questioned." Matt echoes the beliefs of many of the West Memphis Three supporters that the three were targeted from the beginning, and that no amount of exculpatory evidence would steer the police or the prosecutors toward another suspect. On that subject, Mark Byers isn’t shy: "Terry Hobbs killed my son, and needs to take responsibility. I cleared my name with a polygraph test and if he’s innocent, why hasn't he done the same?"

For Jason Baldwin, Thursday marked the first time in the long history of the case that he took the stand in his own defense. He had difficulty talking about the events of fifteen years ago, but felt compelled to do so. "I felt I had to do it. It was necessary." It was of some comfort to his family for him to have a day in court, but what they really want is to bring him home. "It’s really been hard watching him grow up in there knowing that he’s innocent", Jason’s mother, Gail Grinnell said outside the courthouse, "and I’m really hoping that the judge will grant his release or a new trial." Saying that "It’s got my hopes up", she nonetheless lamented the nightmarish life that the family has lived for all these years. "It’s been horrible. Very horrible. Because knowing that he was innocent and he was so young, he had just turned 16. He was still a child."