Gordon Campbell on Peter Jackson and the West Memphis Three

At first glance, the news earlier this week that Peter Jackson has just completed a documentary on the West Memphis Three case might seem somewhat odd. After all, the three Paradise Lost documentaries made by Joe Berlinger and Bruce Sinofsky on the WM3 case have already been one of the most exhaustive and successful pieces of advocacy journalism in the history of cinema.

Moreover, the third Paradise Lost doco was released only a few months ago at the Toronto Film Festival and – now equipped with an added coda about the release from jail of Damien Echols, Jason Baldwin and Jesse Miskelley – the doco is being shown in Europe, and elsewhere.

However, Jackson is right. The need remains to push on and maintain the pressure for a complete pardon. In order to get out of jail – and when we’re saying jail we’re talking in Echols’ case about being locked away on dearth row amid sensory and social deprivation in one of America’s hideous Supermax prisons – the trio had to take a so-called ‘Alford plea’.

An Alford plea means they were able to plead guilty, while simultaneously maintaining their innocence of the acts for which they had been convicted. Essentially, an Alford plea is a face-saving mechanism for the prosecuting authorities, and some of the repercussions for the trio of taking that route are already apparent.

During Echols’ recent stay in New Zealand, he was consistently described in the media as a convicted killer. For Jessie Miskelley, the consequences have gone beyond name-calling. After his release, Miskelley moved in with his fiancée Susie and her two sons, and they all began living in a house with a divorced friend who also had a child – but as a convicted killer, Miskelley became subject to legal action which saw the court intervene and order the child removed from the divorced friend’s custody. The website operated by investigative journalist Mara Leveritt has reported that Jackson and Fran Walsh have since quietly paid Misskelley’s rent for the next year, which has enabled him, Susie and the children to move to another location.

The Jackson doco will see daylight next year. According to the IMDB website, a feature film on the case directed by the Canadian film-maker Atom Egoyan (who made The Sweet Hereafter) is also due for release in 2012. Egoyan talked at some length here to the Hollywod Reporter about his film.

While it will be based on The Devil’s Knot ( Leveritt’s best selling non-fiction book about the case ) Egoyan’s film is a drama that will focus on the community response to the killings of the three children and will treat the case as, quote, “ a contemporary Salem witchhunt”.

So looking ahead, the Jackson film should enable the WM3 to retain ownership of the narrative of the case – which has to be about gaining complete exoneration and (hopefully) a re-opening of the hunt for the real killer or killers, 18 years on.

At the evidential level, what will there be left for Jackson to consider? Quite a lot, actually. Great as they were – and I’m writing this without the benefit of seeing the third Paradise Lost film – the first two Paradise Lost films were, with hindsight, hampered by their reliance on the lurid figure of John Mark Byers, father of one of the murdered children, and at one time a prime suspect. Inevitably, this overshadowed the other flaws in the state’s case – some of which I tried to deal with in my own interview with Mara Leveritt in 2008.

These flaws will now have to form the basis of the drive for a pardon. Briefly, the main flaws in the state’s case were:

1. There is no DNA evidence linking the WM3 to the crime, and there is DNA evidence linking others.The total lack of DNA evidence from Echols, Baldwin and Misskelley at, or near, the site not only supported their innocence, but also – along with circumstantial evidence – should have led investigators to conclude the children were killed elsewhere, and dumped in Robin Hood Hills.

In other words, the lack of DNA totally undermines the claims that the children were killed onsite in a Satanic ritual in the woods. The belated finding of DNA evidence of a hair from Terry Hobbs, the stepfather of one of the murdered children may, or may not be relevant – but could have been an innocent by-product of family contact between father and child, and be unrelated to the murders. Having seen the state jump to presume the WM3’s guilt on sketchy evidence, one would not want to do the same thing to Hobbs. Or to John Mark Byers.

2. There was strong evidence of jury tainting. Miskelley had been tried separately and convicted before Echols and Baldwin were tried. Misskelley’s conviction had been won largely on the basis of a notorious 'confession' extracted while the 17 year old teenager was held for 12 hours for interrogation, without a lawyer present and with only 41 minutes of the latter part of the interrogation being recorded. (Reportedly, Misskelley had an IQ of only 72.)

Subsequently – and despite the vast publicity surrounding his conviction – the local jurors were told to put Miskelley’s confession and conviction out of their minds, and told by the trial judge that such matters were to play no part in the trial of Echols and Baldwin. Subsequent affidavits filed by jury members however, showed that both the confession and the conviction had featured prominently in jury deliberations.

3. The forensic “experts” produced by the state were inadequate. One “expert” had obtained his certification by mail order. The inadequacy of the state’s forensic experts – and the inadequacy of the initial defence team in challenging them – continues to be relevant. Subsequent to the trio’s release from jail, at least one newspaper in Arkansas has sought to exonerate the forensic experts and their testimony. A strong rebuttal by defence team lawyer John Philipsborn can be found here.

Briefly, one of the main failings of the forensic evidence – at the initial trial and in subsequent hearings before Judge David Burnett – was with regard its claims that one of the children had been castrated as part of the alleged Satanic ritual, when (for nearly a decade) there has been far stronger forensic evidence that the damage to the bodies had been caused by animal predation after the bodies were dumped in the woods.

Jackson’s documentary could also draw upon other, very dramatic elements in the WM3 saga – such as the healing and supportive relationship between Damien Echols and Lorri Davis, and the tireless heroic work for 15 years of the people behind the WM3 website. Moreover, Jackson’s film may be doubly useful in that it will emerge at what looks like a turning point in US attitudes to capital punishment.

Despite the recent execution in Texas of Troy Davis, the overall trend in the US may be slowly turning against the death penalty. The commutation on Tuesday of the death sentence that has hung for 30 years over the former Black Panther leader Mumia Abu-Jamal can only be seen as a welcome step in that direction.

In that respect, the reliance on forensic evidence in US death penalty cases has never fully recovered from the 2004 execution in Texas of Cameron Todd Willingham – who was convicted and executed for the arson murder of his three children, on the basis of what are now regarded as discredited forensic theories about the nature of arson. Three subsequent reviews and an exhaustive New Yorker magazine investigation have found the deaths of the children to have been accidental. Subsequent claims by Willingham’s ex-wife that he ‘confessed’ are analysed and discredited here.

For now – and if Jackson has any energy and resources left over – one other person in need of support could be Joe Berlinger, one of the two film-makers behind the Paradise Lost films that have been crucial to the success of the global campaign. As I reported in May 2010, Berlinger has run afoul of Chevron Oil for a documentary he made about the company’s responsibility for massive social and environmental damage in Ecuador. Subsequently, Chevron sued for access to 600 hours of his raw footage in a fishing expedition intended to discredit the lawyers representing the Ecuadorian victims of the oil pollution.

The case has major implications for the US freedom of the press, and for journalism’s ability to protect its sources. Unfortunately, Chevron has found a judge in New York who has been every bit as sympathetic to their cause as Judge David Burnett was to the state’s persecution of the WM3.

Finally, it still seems remarkable that the campaign to exonerate the WM3 continues to inspire support from all over the world. From Jackson in New Zealand to Egoyan in Canada. Amsterdam, just as New Zealand did with Echols, recently waived its immigration procedures to allow Jason Baldwin to attend film festival screenings of the third Paradise Lost film. Clearly, the rest of the world is treating Echols, Baldwin and Misskelley as being innocent. It is well past time that the US courts did likewise.

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