Category: Domestic

Last week I went to the Market Street Cinema to see the free screening of West of Memphis, the newest offering among the documentaries about the West Memphis Three. (It’s offered again later this month for anyone interested, and will be back again later in the fall.)

In the event that anyone reading this has lived under a rock for the last couple of decades and isn’t aware of the case, the West Memphis Three are Damien Echols, Jason Baldwin, and Jessie Misskelley. They were teenagers when they were convicted of the capital murder of three eight-year-old boys in West Memphis, Arkansas.

In 1993 and 1994, there was a media circus surrounding the arrests and the trials. The West Memphis police, ignorant and superstitious, claimed that Echols, who was a weird kid who dressed funny, liked magic, and listened to heavy metal music, was the leader of a Satanic cult that ritualistically killed the little boys. After a nine hour interrogation, the West Memphis Police coached a confession out of Misskelley, a mentally handicapped high school dropout. All three were convicted. Echols was sentenced to death; Misskelley and Baldwin were sentenced to life without parole.

After nearly two decades of legal wrangling, the WM3 were freed from prison about a year ago, when, rather than go through a new trial, they entered pleas pursuant to North Carolina v. Alford, pleading guilty but simultaneously declaring their innocence. It was a long road getting there – 18 years long. That’s half again as long as the Millennium Falcon’s Kessel Run. They took the whole 18 parsecs to get there.

In the film, Prosecutor Scott Ellington repeated his assertion that, despite not having reviewed the evidence in the case, he believes the West Memphis Three are guilty. He was not the original prosecutor. That dubious honor went to John Fogelman and Brent Davis, a pair to whom I have no problem assigning contempt.

Likewise, the judge was not the one who had presided over the case for 18 years. Judge David Burnett repeatedly ruled against the defense at the pretrial, trial, and post-trial proceedings. Had he still been on the bench when this offer was extended, we cannot be assured of the same outcome.

A week before the murders happened, I hung out my shingle and opened my solo law practice. Even though I had been out of law school for five years, I felt like a neophyte when it came to actually practicing law. Oh, there are stories, some of which I’ve told and some of which I will never tell, about how I groped my way to a successful practice. But in 1993 I was uncertain and confused about the practice of law. And like most of the rest of the state, I was riveted by the unfolding case. By the time of the trials eight months later, I was appalled at the travesty of justice I saw. I felt completely impotent. I had no idea that I might have helped, and boy, I wanted to help. I had gotten into the business of law to help the underdogs of the world, and the West Memphis Three defendants were underdogs from the day they were conceived.

When the first appeals were being pursued, Arkansas’s Death Penalty Resource Center, a state agency that provided litigation support and appellate representation in death penalty cases, was defunded and disbanded. One of its attorneys, Al Schay, sublet office space from me. The day he trundled in the boxes that held the transcripts of the Echols-Baldwin trial, he said I could read them. I had read countless transcripts as a law clerk for an appellate judge, and was undaunted by the thousands of pages of testimony and exhibits. I sat on the floor of Al’s office after hours and I read. And read. And became enraged at the prosecutors and the judge who presided over the cases. The fact that those three young men were convicted of capital murder on such flimsy evidence was appalling.  What’s worse, I don’t remember a single motion that went in the defense’s favor – except one. That one favorable ruling was ultimately undermined by juror misconduct. The ruling should have prevented Jessie Miskelley’s coached confession from coming into evidence against his co-defendants. However, the jury foreman in the Baldwin-Echols trial made a special effort to ensure that the jurors were aware of it.

The day the Arkansas Supreme Court upheld the convictions, I realized that the court was nothing more than a calculating political beast. The majority reached its conclusion because that was the conclusion they felt they politically had to make. Three devil-worshipping teenagers had ritually murdered three little cub scouts. It was sensationalism that sold papers. It was sensationalism that provided job security even in the august halls of the Supreme Court, where I had been so proud to work not long before. It sickened me.

Jason Baldwin and Damien Echols should never have been convicted. They did not receive a fair trial. Did Jessie Miskelley? I don’t know. I’ve never read the transcript of his trial. My guess is that with the same people in positions of power, and the same facts, he did not. I know that Dan Stidham, Misskelley’s lawyer, believes he did not.

I met Dan Stidham at a seminar recently. For fifteen years, Dan Stidham was an active hero in the West Memphis Three case.  He was appointed to serve as Jessie Misskelley’s attorney at trial, and was the only attorney who stuck with his client after the trials, even to the point of preparing Jason Baldwin’s appellate paperwork when Jason had no lawyer. Stidham is now a circuit judge, but he was Jessie Misskelley’s lawyer throughout the trial and appellate process until 2008, when he assumed the bench. I told him that I wished I had reached out back in those days. I didn’t because I thought I had nothing to contribute. I realize now that I could have offered my time. I told him that when the trials were ongoing, I had wanted to do something – anything – because I saw what a miscarriage of justice was happening. He gave me a look that said, “Why didn’t you?” and I felt more impotent than ever. I regret not doing something back then, even though I didn’t think I was competent to do anything.

In the years between their convictions and their release, I was peripherally aware of the movement to free the West Memphis Three. I had seen the billboard in West Memphis with its tipline phone number. I read each court’s decision denying any relief at all to the convicted men. I never forgot them, but I believed their case was hopeless. A results-oriented judicial process was at work, one I knew intimately from the inside. It didn’t matter how the judges reached their decision, only that they reached the one most politically appropriate. They had constituents to answer to each election cycle. A case as notorious as the West Memphis Three had to be controlled with an iron fist.

I never saw Paradise Lost: The Child Murders at Robin Hood Hills  or Paradise Lost 2: Revelations, the HBO documentaries about the West Memphis Three. I never read Devil’s Knot, investigative reporter Mara Leveritt’s book about the case. I had read news articles about the case, though, and read each judicial opinion at every level, both state and federal, as the fruitless appellate process lumbered on over the years.

Then, in the spring of 2011 I heard from Ken Swindle, an attorney in the northwest part of the state, whose contributions to a listserv for trial lawyers I had admired for several years. Would I sign a petition asking for a new trial for the West Memphis Three? I didn’t have to think about it. Hell, yes, I would! The West Memphis Three case exemplifies for me what is wrong with the criminal justice system on so many levels: cronyism among law enforcement officials and the State Crime Lab, results-oriented judicial decision-making, religious bigotry, a lack of critical thinking skills among the population at large (which make up our juries), prejudice, bad science, superstitious ignorance, the lack of resources available to all but the wealthiest criminal defendants, and the complete failure of standards of reasonable doubt and the assumption of innocence.

There’s no way I could ever practice criminal law. I would stroke out in very short order from the stress caused by the rampant injustice. The assembly-line attitudes I have encountered in family court and in juvenile court are bad enough without compounding it with the inequities of the adult criminal justice system.

But finally, the Arkansas Supreme Court did the right thing. Finally, it agreed that DNA evidence had to be considered in light of all the rest of the evidence – including evidence that at least four trial witnesses had recanted in the intervening years, and possibly including evidence that the Echols-Baldwin jury was tainted by the published confession they were never supposed to consider – and which the jury foreman made sure they did. And when the Arkansas Supreme Court sent the case back to the trial court this time, there was a new judge in town.

Judge David Laser acknowledged in open court that the release of the West Memphis Three pursuant to the Alford pleas wasn’t justice for anyone – not for the defendants, and not for the victims – because innocent men remained convicted, and were robbed by the State of nearly two decades of their lives.  The terms of the plea agreement allowed three victims of a miscarriage of justice to finally go free, albeit under the burden and stigma of probation. Judge Laser said,

I don’t think it will make the pain go away to the victim families. I don’t think it will make the pain go away to the defendant families. I don’t think it will take away a minute of the eighteen years that these three young men served in the Arkansas Department of Corrections.

Since their release, I have seen the first two Paradise Lost documentaries as well as the third one, Paradise Lost 3: Purgatory, which was being made just as the WM3 were freed. I have read Devil’s Knot. The thing is, it didn’t take any of these efforts to convince me that justice was not served. While they told me more than I knew before, I knew when I read the transcripts and looked at the evidence on the first appeal that the West Memphis Three were innocent. Not just “not guilty,” which can mean that they probably did it but the state didn’t prove the case, but innocent. 

And that leads us to the real question: who killed Chris Byers, Stevie Branch, and Michael Moore?

West of Memphis left me with more questions than ever before. In December 2011, three new witnesses came forward with hearsay evidence that Terry Hobbs, Stevie Branch’s stepfather, has admitted guilt to members of his family. It’s my understanding that, despite his strong assertion that he would look into anything the defense brought him, Ellington has not done a single thing in the last nine months to look into those allegations. Hearsay is plenty good enough for investigators to launch investigations in much less serious crimes. If it is true that the “Hobbs Family Secret” is that Terry killed those boys, Arkansas is denying justice not only to the WM3, but to the victims and their families.

That having been said, West of Memphis did not show conclusive evidence of Terry Hobbs’s guilt. I don’t think it intended to. It raised serious, valid questions that need investigation, though. Someone killed those kids, and that someone has never done a single day’s worth of prison time for their murders.

Also disconcerting to me were David Jacoby’s on-camera statements and his willingness to allow recordings of his telephone conversations with Terry Hobbs about the night the boys disappeared. Jacoby is a friend of Terry Hobbs, and was with Hobbs for part of the evening and night when the families and police searched for the missing children.  He stopped short of saying outright that he wasn’t with Hobbs during the time Hobbs claims. Since he is Hobbs’ alibi, I wish Jacoby had been asked that tough question directly, and I wish he had given a straight answer. The implied answer is there, but the lawyer in me wants it airtight.

I don’t know if Terry Hobbs did it. I don’t know if there was someone else in those woods who killed the children. But “beyond a reasonable doubt” and “innocent until proven guilty” have to mean something. They just HAVE to. And despite two juries, and despite the affirmed decisions of the appellate courts, the West Memphis Three were not proven guilty.

As a postscript, my hat goes off to Ken Swindle, who didn’t stop working on the case when the West Memphis Three walked out of that courtroom last August. Ken has filed requests for disclosure of evidence under the Freedom of Information Act on behalf of two of the victims’ parents. The West Memphis Police Department maintains that the case is closed, so the information is fair game under FOIA. The problem is, they won’t deliver. The plaintiff parents, Pam Hobbs, ex-wife of Terry Hobbs and mother of Stevie Branch, and Mark Byers, adoptive father of Chris Byers, are both very outspoken supporters of the West Memphis Three. Today, Ken requested a hearing on the FOIA request, which has been resisted by both the West Memphis PD and Scott Ellington, the current prosecuting attorney.

You go, Ken. Call me if you want help.