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’ 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 Davis 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."

As expected by many, Craighead County Circuit Judge David Burnett dismissed Damien Echols’s motion for a new trial. The motion was originally filed in federal court in October of last year, but was remanded to state court by federal judge William R. Wilson. Burnett had scheduled evidentiary hearings to be held during September and October, but abruptly dismissed the motion yesterday. "I’m not at all surprised", Mark Byers said. "It’s pretty much exactly as I expected." Citing sources that he says he is not at liberty to divulge, Mark said, "The real fireworks will be in federal court. Jury misconduct goes to the heart of the Constitution. Federal courts take that kind of thing very seriously." He is referring, of course, to the sealed affidavits concerning allegations of juror misconduct that were a part of Echols’s habeas petition. Echols has claimed that jurors in his and Jason Baldwin’s trial in 1994 relied on the confession of Jessie Misskelley during their deliberations, despite an admonition from the bench to disregard any knowledge of it. The petition also alleges that Little Rock homebuilder Kent Arnold, known officially as "Juror number four", allegedly had a conversation with a "non juror" at the time of the trial, where he asked for advice on how to "correctly" answer questions during voir dire. Once he secured a seat on the jury, and became its foreman, Arnold allegedly used knowledge of facts not in evidence - primarily the confession - to sway fellow jurors toward a conviction.

Burnett flatly ruled against Echols’s claim that new DNA evidence would prove him actually innocent of the 1993 murders of Christopher Byers, Stevie Branch, and Michael Moore. The statute under which Echols filed his original motion for DNA testing in 2002 has since been amended, and the DNA evidence offered by Echols, "does not meet the strictures of the new statute." Echols, Burnett said in his ruling, "cannot produce material evidence raising a reasonable probability that he did not commit the offense, as is now required by the statute."

Mark Byers was not, of course, the only one who wasn’t surprised. Lorri Davis spoke to her husband yesterday about the ruling. "We see this as a blessing", she told KARK in Little Rock. Getting the case out of the hands of retiring justice David Burnett has long been a goal of attorneys for all three appellants. Burnett’s ruling moves Echols’s case to the Arkansas State Supreme Court for appeal. Should he fail there, Echols will move his case to federal district court. Therein, his supporters hope, lies the plum.

The dismissal of Echols’s motion leaves Jason Baldwin and Jessie Misskelley with only Rule 37 petitions to be heard in circuit court. Burnett has scheduled hearings for the two on September 24^th and September 30^th respectively. Mark Byers says he plans on attending at least some of the hearings. "If Jason or Jessie are there, they’ll see me." Mark continues to maintain the innocence of the three men after being convinced that the new evidence points away from the West Memphis Three, and towards someone else.

On February 4^th, 1994, after a trial lasting only eight days, Jessie Misskelley, Jr. was found guilty of one count of first-degree murder in the death of Michael Moore, and one count each of second-degree murder in the deaths of Christopher Byers and Steven Branch. He was given a life sentence plus twenty years for each second-degree count. To many it was an open and shut case. Misskelley confessed; the jury heard it on tape. A confession by the accused is probably the most powerful piece of evidence a prosecutor can offer at trial. It is particularly vital when the state has little else. In its opinion in Moran v Burbine, the United States Supreme Court stated, "Admissions of guilt are essential to society’s compelling interest in finding, convicting, and punishing those who violate the laws." In another case, James v State, the court opined, "An accused person knowingly makes an acknowledgment that he or she committed or participated in the commission of the criminal act. This acknowledgment must be broad enough to comprehend every essential element necessary to make a case against the defendant." Whether or not Misskelley’s confession was broad enough is open to debate, but it surely did not "comprehend every essential element" of the crime. In fact, he couldn't seem to get a single detail correct without the "guidance" of his interrogators. Despite its many troublesome characteristics - exacerbated by the fact that so little of it was recorded either on paper, or tape - the power of his "confession", actually hearing the defendant admit his involvement, was enough for the jury to convict.

Following his conviction, there was a good deal of volleying back and forth on whether or not Jessie would testify at the Echols/ Baldwin trial in Jonesboro. In a series of legal maneuvers (that eventually resulted in a defense motion of prosecutorial misconduct), prosecutors Brent Davis and John Fogleman leaned on Misskelley to testify. Davis and Fogleman were encouraged by sheriff’s deputies who, while transporting Jessie from Clay County to Pine Bluff immediately following his conviction, "asked Jessie if he had anything he wanted to say." In the recounting of this, the "second Misskelley confession", we are asked to believe that the completely dejected eighteen-year-old we saw being placed into a squad car after trial, began to sing like a canary on his ride to prison. What better way for him to endear himself to his captors than by giving them details of the murder of three children, a crime he had plead "not guilty" to? Can we accept that Jessie inculpates himself so readily for the benefit of the two lackeys taking him to prison, after denying for the last eight months that he was ever at the crime scene? But it doesn't really matter. Judge Burnett denied the motion to dismiss, and Misskelley never did testify, steadfastly maintaining his innocence to this day.

SO WHAT’S IN A LOOK?

There is a scene in the first Paradise Lost film that has always intrigued me. Jessie and his very large family are waiting in what appears to be someone’s office for the verdict to be handed down. Big Jessie is on one side of the room, seated, and Shelby Misskelley is on the other side. In between is a gaggle of sisters, cousins, friends - I don’t know who all the people are, but they are there to try to keep Jessie’s sprits high as they await the return of the jury. Jessie complains that people in the gallery were heckling him, " 'Why are you always keeping your head down, Jessie?’ I was told to, that’s why." Shelby remarks that "if you had your head up and were looking around they’d have said something about that, so it really don’t matter." Big Jessie adds, "Just like they’re saying about Damien, always twisting his neck around." Then, out of the blue, Jessie’s sister, who is standing immediately to his right wearing a yellow ribbon on her sweater, says, "Oh, Damien’s a good kid." Jessie whips around to face her with a look that says, "Are you crazy?" She quickly backs down, saying, "I guess, I don’t know", as Shelby chimes in, "I don’t know Damien." What did this exchange mean? Ever since first noticing it, I couldn’t get it out of my mind. I’m not a big believer in body language interpretation, but this meant something. But what?

Could it mean that Jessie, at that point in time, believed that Damien was guilty of the murders, as in "He’s the one who got me into this mess"? And could that mean, "He got me into this mess by talking me into coming with him that day", or, alternately, "If I hadn’t said I was there with him, I wouldn’t be here right now"? If only we had a recording, transcript, some good notes, or even some not-so-good notes - anything - of the interrogation on June 3^rd, rather than the selected snippets the police saved, we wouldn’t have to guess and resort to things like trying to read body language. We don’t have these things, however; the WMPD apparently wasn’t able to pull off this rudimentary step in the prescriptive interviewing process. In my second home state of Connecticut (New York is my first, Virginia my third), there was a case in 1973 where an eighteen-year-old came home one day to find that his mother had been murdered. The police, rather than begin an investigation, began a "marathon" interrogation of Peter Reilly, the height of which was a polygraph examination. "The charts tell us you killed your mother, Pete", he was told (read, "he’s lying his ass off!") "Aren’t those things ever wrong?", he asked. The examiner told him, "The machine is never wrong, only the operator, and I’ve been doing this for twelve years without an error." Peter Reilly was convicted of manslaughter, remaining free on an appeal bond,  before the new prosecutor (the previous one had died) discovered crucial exculpatory evidence that had been withheld from the defense. The case against Reilly was dismissed. A key factor in the dismissal of the charges was that the grilling he had undergone at the hands of the Connecticut state police had been completely taped. What a concept. Police tried, unsuccessfully, to build a new case against Reilly, unable to admit that they had made a mistake the first time.

Richard Lapointe was not so lucky. In another Connecticut case, Lapointe was convicted of the rape and murder of eighty-eight-year-old Bernice Martin, his wife’s grandmother. After the crime, allegedly set her apartment on fire. For two years following the murder, there were no solid leads. Police decided it was time to get a confession from someone. Although he had no history of violence, the police zeroed in on Lapointe as a suspect because he would periodically ask police if they had caught anyone yet. He had an alibi for the time of the murder, an alibi that police ironically taped during an interview with Lapointe’s wife. He had other, more serious problems, however. Lapointe was born with "Dandy-Walker" syndrome, a birth defect in which the sufferer is born with part of the cerebellum missing, causing poor motor coordination and problems with "cognition of a higher order." Although his intelligence is measured at 92 - low normal - Richard Lapointe lacks any sense of social intelligence, and posseses an extreme vulnerability to the type of psychological pressure brought to bear during a police interrogation - nine grueling hours in Lapointe’s case - during which time he signed three confessions, all pre-written for him by police. He would sign, recant, sign, recant . . . does any of this sound familiar? These confessions, when introduced in court, contained "such inconsistencies and contradictions at to make one conclusion inescapable. He said what the police wanted him to say. Lapointe has been in prison for twenty-one years.* It doesn’t require much deductive reasoning to conclude that the police didn’t want the bulk of the nine-hour interrogation of Richard Lapointe open to public scrutiny.

There is another nagging question about Jessie Misskelley’s statements. Twice during his February 27^th statement - the infamous "third confession" that prompted his filing a motion to dismiss based on prosecutorial misconduct - Jessie was advised against making any statement to the prosecution (once each by Greg Crow and Dan Stidham.) He had been taken under court order by sheriff’s deputies to the office of attorney Joe Calvin in Rector, Arkansas, at which time prosecutor Brent Davis began taking his statement about the night of the murders. Davis was preparing to offer him a grant of use immunity in return for his testimony at the Echols/Baldwin trial. In fact, Judge Burnett granted immunity to Misskelley that night. Jessie then gave his third, contorted statement, with some details changing and some staying the same. There was much heated dialog between the attorneys, and at one point Burnett was called at home. "Y'all were asking me to make a ruling from my den where I was watching TV in my underwear", he recalled, "and you popped all this on me where everybody was angry with each other . . ." The issue at hand was whether or not Davis had the right to have Misskelley transported from prison to give a statement without approval from his attorneys. Burnett eventually ruled that once a defendant has been convicted, the state can talk to him pretty much whenever they want to, especially since Greg Crow had been made aware -  after the fact -  that Jessie was on his way to Rector to talk. Shortly after that very weird session in Joe Calvin’s office, Misskelley decided once and for all that he would maintain his innocence and proceed with his appeals. His case will be heard along with Baldwin’s and Echols’s in Jonesboro Circuit Court between September 8^th and October 3^rd.

So here’s the question. Both times that Misskelley was asked that night in Rector if he wanted to make a statement, against the advice of counsel, his answer was, "Yes, because I want something done about it." What exactly was "it?" According to Officer John Moody of the Clay County Sheriff’s Department, in the statement made during transport to Pine Bluff after his conviction, Jessie said that "he has felt sorry for what has happened and talks as if he wants to testify against the other boys so they will not go free, and to help himself." Hmm. So is that the "it" that Jessie was referring to? An altruistic desire to see justice done combined with a healthy dose of saving his own ass? If this were true, why did he change his mind? Was he, as Dan Stidham and Greg Crow maintained, perjuring himself during the February 17^th statement in Rector? Is it possible that Jessie Misskelley - who tested a full twenty IQ points under Richard Lapointe - was being pulled apart by the enormity of the situation, something that even a person of higher intelligence would find unbearable? Was he, as was charged with Richard Lapointe, merely saying what the police wanted him to say? Dan Stidham had requested of Judge Burnett that a psychiatric evaluation be performed on Misskelley before he was allowed to make any further statements to prosecutors. Jessie himself said he wanted "help." If Jessie lied, the consequences of that lie are incalculable. And since he never told the same story twice, well, you know the saying: A lie changes with retelling, but the truth remains the same.

So what was Jessie Misskelley trying to say with his eyes when they shot daggers into his sister when she said, "Damien’s a good kid?"

As Damien Echols’s latest appeal works its way through the court system, it’s hard not to reflect on one of the principal components, not only of his appeals, but of the original trial as well. That component is, of course, the confession of Jessie Misskelley, Jr. While much public attention has been focused on the validity of the statement itself - was it "coerced", why were so many details incorrect, etc. - it must be noted that were it not for the leaking of the confession to the press, it may have been possible to voir dire a jury for the Echols/Baldwin trial that wasn't  so familiar with the details that first appeared in the Memphis Commercial Appeal on June 7^th, 1993. West Memphis municipal judge William P. "Pal" Rainey had ordered the sealing of "all investigative files in the triple slaying" on June 4, 1993. Two days later, however, a twenty-seven page transcript of Misskelley’s statement was "obtained" by the Commercial Appeal, and excerpts were published three days later.

Fifteen years and fifty-six days later, we still don’t know who leaked that statement to the press, or why. The newspaper has confirmed that the source of the leak was never made public, and that they are still unable to reveal his or her identity.

The issue of the press and their confidential informants is one that has been argued many times with mixed results. The press relies on its confidential sources. Were it not for the assurance of anonymity, these informants would never come forward with information that is often vital to the public interest. Besides, the First Amendment guarantees that congress will pass no laws "abridging the freedom of the press." But are there limits?

Sure there are. But they’re slippery. In 1972 when William Farr of the Los Angeles Times refused to reveal a source who provided information that he used for an article on the Charles Manson murders, the notorious Justice Charles Older sent him to the cooler for forty-six days. Most recently, New York Times reporter Judith Miller was ordered to jail by a federal justice for refusing to reveal her source of information about the Valerie Plame "outing", believed by prosecutors to have been someone in the Bush administration (ThinkProgess.org names twenty three such persons.) But more often than not, the press is protected, and that is how it should be. That’s why the First Amendment was, well, the first amendment.

So what about Bartholomew Sullivan and the Commercial Appeal? The leak of the Misskelley confession was in direct violation of the order of the court. Why was there no effort by the Municipal Court to find out where the leak came from? Or dothey already know? Perhaps the system was overwhelmed with the sheer size of the investigation. The cat was, after all, already out of the bag. But even fifteen years later, wouldn’t you like to know who thought it was good idea to sabotage the most difficult case that the West Memphis Police Department had ever investigated? Didn't they know exactly what they were doing?