West Memphis Three (Part II): Fearing The Best

Somehow, the kids are always going to the dogs - envied, legislated against and rebuked by their elders. Steps need to be taken. Otherwise, next thing you know, those weird goth kids in their black clothes could be headed around your way to drink the blood of dogs, and ritually slaughter your children.

I'm only slightly exaggerating. Kids, more often than not, are on the receiving end from their elders and betters. I'm not just talking about tribal societies where arranged marriage and genital mutilation are seen as normal rites of passage. Even in most developed countries, the attitudes and laws that impact on youth - at what ages and under what conditions they are allowed to have sex, get access to contraception and abortion, drive a car, kill or be killed in military service, marry, vote in elections, consume drugs of leisure, or are made subject to curfews and boot camps - are wildly inconsistent.

Damien Echols of the West Memphis Three was considered so liable for his actions that he could be sentenced to death at 19 - even though, in most US states, he would need to have waited two more years to be considered mature enough to drink in a bar.

This is not some isolated foible of the US legal system. Last year, the US was the only country in the entire United Nations - the vote was 185 to one - to oppose the abolition of life imprisonment without parole, for children and young teenagers. As of last year, there were reportedly 73 people in US jails serving a term of life imprisonment with no chance of parole for crimes committed when they were younger than 15.

The generational hostility has been played out in the WM3 case, in a way anyone on the planet can recognise. Its one reason why the case continues to attract global attention. The fact is, youth culture has been condemned in the WM3 case, in ways that would be funny, in different circumstances.

When, for instance, Arkansas police searched Jason Baldwin's home and found all his T-shirts were black, this was held to be incriminating evidence. Ditto the fact that Echols wore a black trench coat, even when the weather was warm. Clearly, these boys were bad to the bone, and lit by demon fire.

New Zealand hasn't a whole lot of reason to feel smug. Young people get envied, feared and resented here in different ways, such as the party pills ban. In similar vein, National Party leader John Key's recent boot camp proposals for young offenders played precisely to the same kind of fears held by the angry old brigade.

True, Satan does make a difference. Events in Arkansas do have more in common with the Salem witch trials than with the last decade of the 20th century. If it wasn't medieval, it could almost be postmodern, the way the deep evil that David Lynch imagined in the Twin Peaks woods was seen in West Memphis as why sir, just part of the natural order of things.

Many locals found it believable that the Dark One had been at work in the Robin Hood Hills, in the guise of his teenage servants. Ritual sacrifice to the Devil as a motive? Sure, why not? Just look at those freaks.

To some jurors sitting in judgment, Damien Echols seemed the Devil himself, or one of his human vessels. At one point, the jury foreman even inquired as to whether Damien's name was Satanic.

Given this atmosphere of credulity and panic, it is hardly surprising that Echols should have said in a half ironic, half rueful aside to the HBO cameras that he would most likely now become the West Memphis Boogeyman to a whole generation of local children scared to go to sleep at night from now on, lest he should be lurking under their beds.

For a compelling example of the fears I'm talking about, consider the worldview of Juror Nine - as recounted to Echols' legal team in 2004, and included in their legal brief filed on October 27, 2007.

Apparently, Juror Nine's jury experience at the Echols/Baldwin trial had 'spooked the hell' out of him, and he 'never felt so scared.' He couldn't sleep at night and 'felt he could hear noises outside, and would look out the window.' His fear was the result of the talk of those kids being part of a cult, and of him looking into the audience and seeing the victim's families, and the families of the accused.

The accused had their families there as well as friends, some dressed in black with straight black hair and cult symbols. Juror Nine didn't know who was who, but he was concerned that if they [the jurors] voted for guilt, some of those people might seek revenge and kill him.

Although he was never personally threatened, Juror Nine felt something could happen to him. If those kids could kill, then why, so could their friends. Juror Nine recalled seeing a girl in the gallery with black lipstick, black hair, the gothic look. When he looked into the gallery, where Echols' people were sitting, he saw those kinds of people and thought, 'They're going to kill me.'

Another juror was ferried to and from court while lying on the floor of the car, his family packing a shotgun. On such firm and reasoned foundations, the US justice system confers and carries out the death penalty.

BACK to the events of the case. On April 14, Judge David Burnett has called together a hearing in Jonesboro, Arkansas between state prosecutors and defence lawyers.

Same place, same face on the bench. The judicial review is taking place in the same town, in front of the same judge that presided over the original trials that convicted Damien Echols, Jessie Misskelley and Jason Baldwin. The crime : three eight year old children found dead, naked and savagely beaten in a drainage ditch in the Robin Hood Hills in May 1993. Baldwin and Misskelley got sent to jail for life, and Damien Echols got sentenced to death row.

This initial hearing is unlikely to tackle the mass of new evidence and legal arguments filed last October by Echols' lawyers. That legal brief includes new forensic evidence about the likely causes - predatory animals, dragging the bodies across rough terrain - for the mutilations to the children's bodies.

As mentioned yesterday, the 2007 brief also contains the first DNA test results in this case, 13 years after the original convictions. These tests showed no DNA links exist between the killings and the trio convicted of the crime, while they make DNA connections between the crime scene and Terry Hobbs, stepfather of one of the slain children.

Arkansas attorney-general Dustin McDaniel has already ridiculed the new DNA test results. Still, the April 14 hearing is significant, since it marks the first time in ten years that the courts have taken a fresh look at the evidence on the case.

This will now have to include consideration - for instance - of the discovery in 2004 that facets of the jury deliberations may have have violated the constitutional rights of the WM3 to a fair trial.

To a New Zealander, it seems quite bizarre that the judicial review of the case should be once again entrusted to Judge Burnett - who made key rulings on inadmissibility and issued controversial directions to the jury during his conduct of the original 1994 trials, and who rejected in 1998 Echols' special Rule 37 petition for a retrial.

Burnett, an elected judge, will now be sitting in judgement on his own past performance on this case, at a time when he has declared his intention to run for political office in the Arkansas legislature in 2010.

As Arkansas journalist Mara Leveritt has pointed out to me, it is the norm in Arkansas to return such hearings back to the original trial court. "I share your view that this requirement skews the likelihood that appellants will get an impartial review, since in order to rule on behalf of the appellant, the presiding judge would, in effect, have to find fault with his own decisions made during the course of the trial." Perhaps for that reason, she adds dryly, few Rule 37 petitions ever succeed.

To put it mildly then, the West Memphis Three still face an uphill task. Echols' October 27, 2007 legal brief can be read in full.

Clearly, the 200-plus pages of argument cannot be reproduced here, so I'll simply mention a half dozen or so areas of evidence not considered in the two excellent Paradise Lost documentary films on the case, both rehtable from Aro St. Video. To do so, I've relied on police and court records retrievable at Callahan.8k.com and do offer a substantial hat tip to Martin Hill's diligently neutral analyses of the police and court records, available on his Jivepuppi website.

1. The 'confessions'. Three separate 'confessions' helped clinch the original convictions. Each one is dubious. Yesterday I ran briefly through the overwhelming evidence that the Jessie Misskelley 'confession' was coerced, false on key facts that Misskelley claimed to have witnessed, and made in a misguided effort at self preservation.
Similarly, confession two - that the prosecution claimed Baldwin made to the jailhouse snitch Michael Carson - is also highly dubious, for reasons also cited in yesterday's article. Attorney-General McDaniel has
publicly put great reliance on this confession, and cited its most lurid details.

One strange footnote: in 1996, the WM3 lawyers received a handwritten letter on personalized notepaper purporting to be from Johnny Preston, singer of the 1950s novelty hit record "Running Bear" - and saying that Carson, allegedly then a prospective homosexual partner, had admitted to him to faking the Baldwin 'confession.' The 'Preston letter' was entered into court records, but never properly authenticated.

And the third confession? Leveritt referred yesterday to the 'softball girls' confession made by Echols to a crowd of girls at a softball park. Two of these girls, aged 12 and 15, testified, and their account was later cited by the Arkansas Supreme Court as 'the most significant evidence' put forward against Echols at the original trial, and listed among the state court's grounds for rejecting Echols' original appeal.

The whole incident however, seems hopelessly tainted by hearsay. Martin Hill has written a hilarious dissection of the softball girls episode.

Initially, as Hill reports, the records indicate the police were originally told by Jenni Deacon, 13, that she had heard Echols confess. Well, not quite. On further inquiry, it transpired that Jenni had heard it from her friend Rachael Myers who heard it from Shelly Wolfe, who said she'd heard it from Shannon Boals. Shannon however told police that she'd heard it from Michelle Carter - problem being, Michelle had already told police months before that she'd heard it from Shannon.

Given the heavy hearsay traffic, whatever it was Echols did or didn't say clearly risked getting lost in translation. What was definitely lost was whether it was said out of bravado or with sarcastic irritation, during a time when Echols was receiving nearly daily attention from the police.

None of the softball informants shed any light on why Echols would have chosen to suddenly, seriously confess to them what he'd been consistently denying until then, and ever since.

The two girls who testified in court said that Echols had replied when asked that yes, he'd killed those little boys and would kill two more before he was done, and had one of them picked out already. From this distance, that sounds like the sarcasm of a smart-mouthed 19 year old boy. Incredibly, it helped put Echols on death row.

2. The Knives There were always alternative options for the police to consider, at least until the Misskelley 'confession' allowed them to fixate on the WM3. The Paradise Lost films contain some startling and self-incriminating footage of John Mark Byers, stepfather to one of the slain children, whose wife Melissa died a few years later under mysterious circumstances, on which the coroner delivered an open verdict.

John Mark Byers from the film Paradise Lost 2

Among his eccentric actions, Byers handed over to the Paradise Lost film-makers a blood encrusted serrated knife. Many other knives were collected during the investigation, including the serrated one found in a lake and linked to Baldwin and Echols - primarily because it looked similar in some respects ( ( while being different in others) to one that Echols had once owned.

Later, 14 knives were alleged by Hobbs' estranged wife to be owned by Terry Hobbs. Hobbs' stepson Steven Branch was also said to always carry a knife, never found after his death. However, forensic analysis now indicates that predatory animals caused many of the mutilations claimed in court to have been inflicted with a knife, during the Satanic 'rituals' so central to the prosecution's case.

3 Suspects, suspects A 19 year old ice cream vendor called Christopher Morgan confessed to the crimes, telling detectives : " Maybe I freaked out, blacked out and killed those boys" but police did not regard Morgan as credible.

A local convicted child molester called James Kenny Martin had a dubious alibi, and drove an older make Toyota akin to the car reported near the crime scene. Moreover, Martin failed polygraphs on two key questions : "Do you know who killed those boys" and " Do you know what was used to tie them up ?" Martin also volunteered that the children may have been tied up by their own shoelaces, a fact not in the public domain at the time - but police later decided that this could have been a logical deduction.

There were still other fringe players, and potential suspects. As Hill revealed in one of his analyses of the police/court records, a house opposite the Robin Hood Hills entrance had been moved into during the same week as the murders by two colourful characters called King David Beasley and Prince Mikael Williams, a 37 year old black man who regularly wore an ankle length robe decorated with a cross.

After an initial doorstep interview, police reported Beasley had a 4 inch long fresh scar on his chest. The pair's alibi was that they were at a nearby building used for pentecostal services. This was confirmed by their pastor, the late Joe Willie Holder, who as the tireless Hill diligently reports, had been convicted of a sexual assault on a child the year before.

Oh, and did I mention the mystery hitchhiker, who was dropped off at 3:30pm right near the Robin Hood Hills entrance where the children's bodies were found the next day, and who had a huge Satanic tattoo on his left forearm ?

4. The black guy at Bojangles. Among the rich cast of alternative suspects though, the Bojangles figure stands out in a class of its own. On the May 5th evening the children went missing, staff reported a muddied, bleeding black man entered the Bojangles restaurant, situated a mile away from the Robin Hood Hills crime scene.

He left behind in the women's toilets a muddy mess and a toilet roll soaked through with blood, before staggering off. Police, still busy in the search for the missing children, came to Bojangles but did not enter it. After the bodies were found, the police returned, tramped contaminating mud and debris from the nearby crime scene right through the restaurant, took some samples, inexplicably ignored the bloody toilet roll and did nothing further - and then later admitted that they'd lost the samples. The DNA tests done last year detected a hair from a black person on the covering to one of the bodies.

This was not the sole case of police carelessness. The sticks that held down the children's clothing - and which must have been handled by the killer or killers - were left at the scene, and not retrieved for months afterwards.

5. Too Many Baldwins. At his trial, several factors told heavily against Echols with the jury. The prosecution claimed that four days after the bodies were found, Echols told police he'd heard that one of the children (Chris Byers) had been mutilated worse than the others - something perhaps only the killer would know, the jury were told.

In fact, John Mark Byers had stated the information about his stepson in a widely published media interview on May 7th, before Echols repeated the information back to police. In his own public statements this year, state attorney-general McDaniel has kept on repeating the myth of Echols' inside knowledge of the injuries inflicted on Chris Byers.

In reply to a further police query about who he thought might have committed such horrible crimes , Echols had also indicated, apparently damningly, that Jason Baldwin could have. However, as Hill has pointed out from the police records, there were two Jason Baldwins in the vicinity.

One Baldwin was Echols' slightly built best friend and subsequent co-defendant [Charles] Jason Baldwin. The other was a 300 pound local heavy and minor criminal known to police, also called Jason [Howard] Baldwin - whose uncle was on parole at the time, for the aggravated rape of his two daughters.

This 'other' Jason Baldwin's friends Robert Burch and Jerry Nearns had both figured among the initial police roster of possible suspects. More than once, the police and media had mixed up the Baldwins, including during the media coverage of Misskelley's trial that was published just before jury selection for the Echols/Baldwin trial began.

It is even possible that in Misskelley's infamous confession, his damning mention of 'Jason Baldwin' as a perpetrator could also have been meant to refer to Jason Howard Baldwin and not to the Jason Baldwin now in jail - whose main ' crime' seems to have been his friendship with Damien Echols.

6. The wounds. The children were brutally beaten and one child - John Mark Byers' stepson, Chris - had been virtually emasculated. The prosecution claimed this as part of its general evidence that the crimes were committed as part of a Satanic ritual sacrifice. Their 'expert' witness Dr. Dale Griffis - a Satanic cult specialist who had earned his qualifications by mail order - testified at length to that effect.

Later, the second Paradise Lost film headed in the opposite direction. A forensic scientist and crime scene profiler called Brent Turvey employed by the defence claimed to find evidence on the autopsy photos of bite marks on the children, potentially matchable to the killer. John Mark Byers had removed all his teeth a few months before these speculations became public, and the film hinted (unfairly, I think) that this was suspicious.

Both theories now seem out the window. Just as Griffis managed to get almost every detail of what Satanists believe and do completely wrong, Turvey also seems to have exceeded his level of expertise. As outlined in the October 2007 legal brief, recent forensic investigations strongly indicate that the terrible wounds in question were most likely inflicted after death, by predatory animals at the site where the bodies were found.

If this is now accepted as plausible expert testimony, it should significantly undermine the theory of Satanic ritual mutilation described in court at the original trials.

7. The legal options. Even if goodwill existed, the legal avenues to correct a miscarriage of justice can be lacking. Echols has now almost exhausted all procedures available to him under Arkansas law. Barring a dramatic retraction of the state's case, Echols may eventually need to seek leave to appeal to federal courts, and ultimately to the US Supreme Court.

For the benefit of the Arkansas courts, the October 2007 legal brief outlines the mechanisms available to the Supreme Court to hear and overturn the state court rulings, despite the time that has now elapsed.

Two death row precedents - House vs Bell and Schlup vs Belo - have cleared a pathway, and given the Supreme Court a threshold test to apply to the WM3 case. House for instance,was the first US Supreme Court case to consider the impact of DNA evidence on a death penalty conviction issued before scientific advances enabled DNA evidence to be generated.

In House, as the Echols' brief relates, the defendant raised a number of federal constitutional claims that the Tennessee courts had argued could not be addressed on their merits because they were 'procedurally defaulted' - that is, they were brought up too late in the course of the state proceedings.

Thankfully, the Supreme Court had agreed in Schlup v. Delo that yes, claims defaulted in state court due to procedural rules generally cannot be heard in federal court - but the Supremes also ruled that a 'miscarriage of justice' exception should exist for extraordinary cases where it appears likely the defendant is innocent.

Step by step, this course is one that Echols' lawyers will now have to follow, to earn a retrial. First they need to establish, as in Schlup, the existence of doubt sufficient to clear the normal state vs federal procedural barriers.

This level of doubt, as Justice Kennedy explained when writing the Supreme Court majority verdict on House, is considerable. "It must raise sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial [thus removing] the assurance that that trial was untainted by constitutional error."

In such cases, the Supreme Court would be able to review whether the constitutional claim to a fair trial had been met. As Justice Kennedy continued: "A petitioner's burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt - or, to remove the double negative, that it is more likely than not any reasonable juror would have reasonable doubt."

That's the rub. Does Echols' legal brief really contain grounds for a reasonable presumption of his innocence - which is the necessary notch or two above the existence of just casting a reasonable doubt about his guilt ? It's a really tough call, either way.

Looking on the bright side, the House ruling should serve to remind the Arkansas authorities that it should not now be adopt a narrow response, and limit itself to what was said and done back in 1993 and 1994. In its House ruling, the Supreme Court had emphasized that "the habeas court must consider 'all the evidence,'" old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under "rules of admissibility that would govern at [the original] trial."

Based on this total evidential record, the court must make 'a probabilistic determination about what reasonable, properly instructed jurors would do.'" In sum, if Echols can get a Schlup-House claim up on the rails, this would trump any procedural default objections put up by the state of Arkansas.

All of which does give some cause for hope about the chances of a retrial. Even so, it needs to be emphasized - the Schlup threshold test of likely innocence is very high, and puts the onus on the claimant to prove that their conviction amounted to a violation of the US constitution.

The Echols lawyers are tackling that requirement head on, and claiming this is indeed the case. In particular, they have pointed to Judge Burnett's direction to the jury to ignore a witness' reference to the Misskelley confession. The brief then goes on to cite the jurors' written affidavits that regardless, the jury did in fact rely on the Misskelley confession for reaching a guilty verdict, a fact only disclosed in 2004.

This would indicate that Echols and Baldwin were denied the right to a free trial - because they were never able to challenge in court the authenticity of the confession that sealed their conviction.

It is hard to see any winners, whatever happens. If the WM3 are eventually released, the victims and their families will be virtually back at square one in the quest for justice. As for Echols, Baldwin and Misskelley, they will be in their mid 30s at the earliest, if and when they ever get released - having had their entire youth sacrificed for something they didn't do, while being forced to endure the usual atrocities of prison life.

For this very reason, Echols told Larry King in the CNN interview screened last December that he has not mentally put his life 'on hold' until when he is vindicated.

Instead, Echols accepts that his death row existence IS his life - and makes the most of the love and support of his wife and friends, every day. Compared to this level of stoicism, the ordinary hassles we encounter in the outside world do look pretty insignificant.

People can make donations to the ongoing WM3 legal campaign either by money order payable to :
Damien Echols Defense Fund,

PO Box 1216
Little Rock, AR 72203
USA.
Or, consult the WM3 Injustice Project on payment details at http://westmemphis3.net/index3.html

Gordon Campbell is a former Listener journalist, and editor of Scoop's election coverage, Pulse08.

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