Dark Spell

by Mara Leveritt

  120 This episode followed earlier investigations of area law enforcement, recounted in Devil’s Knot, that were going on around the time of the murders. Martin Hill elucidated on those more thoroughly on his webisite: http://www.jivepuppi. com/west_memphis_confidential.html. Note that, according to news reports, Judge David Burnett was said to have been a recipient of the misappropriated evidence. Due to a decision at the time by prosecuting attorney Brent Davis, no one involved was charged with criminal activity.

  121 As Sullivan explained, “The interstate turkey shoot has always been lucrative. Cops say that if you want to find drugs, stop the suspicious eastbound traffic. If you’re looking for money, check for Texas or California plates heading home.” He quoted narcotics detective James Sudbury’s remark in his pre-termination interview with the mayor: “Our main objective has been to put money in the bank. And I was doing that as best I could.” “Four accused of pocketing drug money,” July 26, 2002 and “State wants drug inquiry wrapped up,” July 27, 2002, Memphis Commercial Appeal.

  122 The indictments named Barry A. Davis, a Crittenden County sheriff ’s deputy; Louis F. Pirani, a former deputy; E.A. ‘Tony’ Bradley, a former West Memphis police sergeant; and Joseph W. Applegate, who worked at times for both departments.

  123 “The Real Story behind the Controversy,” a research paper by Lindsey D. Fry, 2008.

  124 At first, Hill was disturbed by discrepancies in the trials that he believed pointed to “the falsity of the evidence.” For instance, he noted that, in Fogleman’s summation of the case to the jury, the prosecutor claimed that wax on the victims’ clothes matched wax that had been collected from Damien’s house. Yet Hill recalled that Fogleman had mentioned the alleged wax earlier in the trial, and that when Damien’s lawyer challenged Fogleman to produce the crime lab analyst’s report “—if there is one, regarding any candle wax,” Fogleman had responded: “I don’t know if there is one. She said that what she puts in her report is when there are matches. She claimed that didn’t match anything.”

  125 “Identifying the source of critical details in confessions,” International Journal of Speech Language and the Law, 10, no 1 (2003): The article’s abstract reads: “Interrogations leading to confessions can elicit both an admission of guilt and details to help validate the confession. Using a novel means of analysis, the interrogation was treated as a series of dynamic informational exchanges and the source of key details was identified. Questions and answers were classified according to the degree to which they provided information. Using a test case, in two hundred twelve of three hundred forty questions the interrogators provided details to confirm or deny. In other questions, critical details were provided by the police without requesting confirmation. This pattern was reflected when the confession was divided into individual topics. None of the key, specific, verifiable details were provided by the confessor. This method of analysis is presented as a means of assessing the degree to which a confessor demonstrates guilty knowledge.” https://www.equinoxpub.com/journals/index. php/IJSLL/article/view/563 Hill also noted that the few facts that Misskelley got correct—for example, that the boys had been severely beaten and that one’s genitals were mutilated— had been reported as early as May 7 in both the Memphis and West Memphis newspapers and were common knowledge in the community. Other observations by Hill about the handling of Jessie’s case can be found at: http://www.jivepuppi. com/case_for_innocence_misskelley.html

  126 In the opinion delivered December 23, 1996, in which the Arkansas Supreme Court denied Damien’s and Jason’s direct appeals, Justice Robert H. Dudley wrote: “Both Echols and Baldwin objected to the trial court giving the accomplice instruction. AMI Crim. 3d 401 (Accomplice). They contend that there was no testimony that placed them together on the day of the crime, and, since the jury was instructed to consider the evidence against each defendant separately, an accomplice instruction was precluded. The trial court correctly gave the instruction because there was evidence from which the jury could reasonably find that both defendants said they killed the children; fibers from clothing found in both defendants’ homes were similar to fibers found on the victims’ clothing; the description of the person identified as Domini Teer, who was seen with Echols the night of the murders, also fit the description of Baldwin, who was also very thin and had long hair; Echols and Baldwin were best friends and spent two or three hours together a day; a knife similar to one Echols had owned was found near Baldwin’s residence; sticks similar to the ones both had been seen carrying previously were found at the scene; two different types of knots were used to tie the victims; there were three victims, and there was sufficient evidence from which a jury could have concluded that the murders were not committed by one person. We have said that if there is some evidence to support an instruction, it is appropriate for a trial court to give it. Mitchell v. State, 306 Ark. 464, 862 S.W.2d 254 (1993).” http://web. archive.org/web/20000824033616/http://courts.state.ar.us/ opinions/1996a/961223sc/cr94-928.html

  127 Many of the men’s supporters have questioned why the state opposed new forensic tests if the state did not have to pay for them. The answer touches a sensitive area of law. Prosecutors, including attorneys general, who are the top prosecutors in a state, properly consider it their duty to represent the state’s interests, much as private attorneys represent people who hire them. That duty blurs, however, when one asks, “in situations like this, what are the interests of the state?” The American Bar Association has established what it calls “standards” for prosecuting attorneys. One of those standards states, “The prosecutor is an administrator of justice, an advocate, and an officer of the court.” That is a widely held view of the job, though many states, like Arkansas, have not adopted the ABA standards. A more problematic standard is one that says that, as an officer of the court, it is a prosecutor’s “duty to seek justice, not merely to convict.” In the West Memphis case, like many others, Arkansas’s attorneys general have seen their role as advocates for the state, bound to uphold the state’s convictions, more than as officers of the court with a “duty to seek justice.” Thus, the attorney general opposed any testing that might produce evidence that could erode those convictions. In part, because of this case, this limited stance is encountering increasing public resistance, particularly in light of another ABA standard which maintains, “It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, he or she should stimulate efforts for remedial action.” Some groups believe that is not happening. For example, the Center for Prosecutor Integrity, http:// www.prosecutorintegrity.org, was formed to combat ethical complaints against prosecutors, including what Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals called an “epidemic” of prosecutor misconduct.

  128 The Arkansas State Crime Laboratory’s record of Fogleman’s call: http://callahan.8k.com/pdf/bm_rule37_pet/bm_rule37_ pet_exh77.pdf

  129 By the time the memo was written, the crime lab had examined the knife that John Mark Byers had given to a member of the HBO film crew. Had he been asked, Peretti presumably could have said that the weapon in question referred to that knife. The most troubling issue concerning the reference to a “transparency” was that no report of it was provided to the defense, thus precluding them from questioning what “weapon” was at issue.

  130 Caryn Coleman and her husband, Sean Bonner, hosted the exhibit, titled “Cruel and Unusual: An Exhibition to Benefit the West Memphis Three,” at their gallery, sixspace. Coleman said later that the event raised more than twenty thousand dollars.

  131 The student bar association at the University of Arkansas’s Bowen School of Law in Little Rock had first invited me to speak about Devil’s Knot. I explained why people around the country—and, by then, around the world—had begun questioning the verdicts in the case. If the evidence was strong enough to sentence a person to death and tw
o others to life in prison, I asked, shouldn’t it have been apparent to the filmmakers who attended and recorded both trials and to me in researching my book? What were we to make of the apparent disconnect between ordinary people who could not make sense of the case and the state’s Supreme Court’s position that both trials were without error? I suggested that, if I had indeed missed key details or misrepresented facts in my book, critics by then had had two years since its publication to refute them, but no such criticisms had arisen— at least not publicly. After that appearance, the school invited Fogleman to speak.

  132 Unfortunately, this inaccuracy also made it into the film of Devil’s Knot. But I was not the only person confused about what oral exams were given—or not given—to Jason on the night of his arrest. In 2013, Jason told me that, while it is true that no x-rays were taken, he’d believed going into his trial— and for several years thereafter—that “an impression” had been taken of his teeth while he was at Crittenden County Hospital. “They gave me something like a wafer and told me to bite down on it,” he said. In hindsight, particularly after dental impressions of all three prisoners were made following claims that wounds on the face of Stevie Branch appeared to be human bite marks, Jason reflected that the material put in his mouth on the night of his arrest may have been intended not for a dental impression but to absorb saliva.

  133 In a letter dated April 6, 2007, Fogleman responded to a letter from a man in California who asked for his views on the case. That correspondent later sent me a copy of Fogleman’s letter, which I posted on my website in 2012. http://maraleveritt. com/2012/04/2007-fogleman-letter-panned-devils-knot/

  134 “The Architect and the Inmate,” Arkansas Times, Jan. 9, 2004. http://www.arktimes.com/arkansas/the-damien-i-know¬the-architect-and-the-inmate/Content?oid=964930. In that piece, as in most of what I wrote about the case by this time, I acknowledged my personal involvement with many of its participants. I’d befriended Lorri and grown fond of Jason. I admired the supporters, especially in Arkansas, who had the courage to speak out on behalf of men who were mostly reviled. Like the HBO filmmakers, who, when asked, made their film of the trials available to the defense teams. I also provided some of my records upon request to attorneys representing Damien. During the two years after Devil’s Knot came out, I announced that, while I would continue to report on the case, I was now personally involved and would publicly advocate for new trials.

  135 Order for DNA Testing, http://callahan.8k.com/wm3/ motions/de_jb_order_dna_testing.html.

  136 The book’s title referred to part of a grimoire, or textbook of magic, that was believed to have been written during the Italian Renaissance. Editors Brett Alexander Savory and M.W. Anderson explained, “The Seventh and last Pentacle of the Sun from the Key of Solomon is for freeing those unjustly imprisoned: ‘If any be by chance imprisoned or detained in fetters of iron, at the presence of this Pentacle, which should be engraved in gold on the day and hour of the sun, he will be immediately delivered and set at liberty.’” My contribution was a piece intended to challenge writers Dean Koontz, Ann Rice, and Stephen King about why not one of them had commented on the real-life horror story of Damien and Jason’s trial, in which prosecutors had exploited the fact that Damien read their books. I had been impressed by the response of musicians, who’d opposed the prosecutors’ persecutions built partly on two of the defendants’ tastes in music. At a fairly desperate time in the men’s incarceration, I wished that at least one of these three famous authors would use his or her celebrity to press for a closer look. It never happened.

  137 “Complete fabrication” by Tim Hackler, Arkansas Times, Oct. 7, 2004. http://www.arktimes.com/arkansas/complete¬fabrication/Content?oid=1886107

  138 “‘They messed with my words’” ibid. http://www. arktimes.com/arkansas/they-messed-with-my-words/ Content?oid=964537 In the article, Hackler reported on the incident before the arrests, when Hutcheson decided to “play detective” by inviting Damien to her house. Police obtained her permission for them to install a listening device under her bed, with the microphone attached to a lamp in the living room. She described the device as “a fancy one with several reels of tape, so that one would begin when the other was filled.” Hutcheson said she turned the recorder on when Damien showed up a few days later, that she told him she wanted to become a witch, and that he’d laughed at that. She said she’d heard that he liked to suck blood. According to the article, “Damien said he encouraged such stories as a ‘mechanism’ to keep people from prying into his life. ‘What’s a mechanism?’ she’d asked. She says Damien replied, ‘It means leave me the fuck alone.’” Hackler also interviewed Hutcheson’s son Aaron, who was now eighteen, but who’d been eight at the time of the murders. He also repudiated statements he’d made to police. Aaron told Hackler that police “tricked” him and led him to say things that were not true. Aaron’s voice had been heard only at Jessie’s trial—and then, only on a tape-recording that Gitchell played that allowed jurors to hear the boy saying, “Nobody knows what happened but me.” (Fogleman later told me he had not called the child himself to testify because he was not “comfortable” with the roles Vicki and Aaron had played in the investigation. Nevertheless, interviews police conducted with Aaron helped shape both their investigation and the prosecutors’ claim that the slayings had arisen from the occult.

  139 The hiring of Riordan and Horgan represents another of the many points where media impacted this saga. After publication of Devil’s Knot, the USA network optioned it and hired Anna Hamilton Phelan, who’d written the Oscar-nominated script for Gorillas in the Mist, to write a screenplay for the book. I later sued the network in federal court over a payment issue. That dispute was settled out of court, and the project was dropped. But while Phelan was working on the screenplay, I had introduced her to Lorri Davis, and Phelan, in turn, had referred Davis to her friend, Dennis Riordan.

  140 Kent Arnold, the jury foreman, has disputed the general accuracy of this claim. https://web.archive.org/ web/20050505030756/http://www.kark.com/news/default. asp?mode=shownews&id=4434

  141 Petitioner’s Motion to Recall the Mandate and to Reinvest Jurisdiction in the Trial Court to Consider Petition for Writ of Error Coram Nobis or for Other Extraordinary Relief, filed with the Arkansas Supreme Court. http://callahan.8k.com/ wm3/motion_to_recall_mandate.html

  142 Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765—1769. Chicago: University of Chicago Press, 1979. http://press-pubs.uchicago. edu/founders/documents/a1_9_2s4.html

  143 Petition for a Writ of Habeas Corpus by a Person in State Custody, filed in U.S. District Court, http://callahan.8k.com/ pdf/echols_usdc/Habeas_Petition_Echols.pdf

  144 Motion to Dismiss Petition for Writ of Habeas Corpus for Non-Exhaustion, Mar. 2, 2005. http://callahan.8k.com/pdf/ echols_usdc/Motion_to_Dismiss_Echols.pdf

  145 Less than a month before Beebe filed his argument in federal court, Damien, Jason and Jessie each signed documents giving up their right to have crucial evidence in their cases preserved. The waiver was ironic, considering how hard the men’s lawyers had worked to assure that the evidence was preserved. But now it was necessary, because the tests that they wanted conducted might destroy some of that evidence. (State officials had been required to sign similar waivers, which explained part of their hesitation during negotiations.) The men’s decisions were not made lightly. At the time of their trials, in 1994, most of the technologies that were about to be used did not exist. What if using the current technologies produced nothing of value and, at the same time, destroyed the irreplaceable evidence, putting it out of reach of any science that might be developed in the future that might be able to probe it more deeply? It was a risk the men felt had to be taken. Each signed a document that acknowledged that he had been informed by his lawyers that, should the proposed testing go forward, “it is likely that a number of hairs which were obtained as part of the investigation of my case will be completely destroyed .
. . and that there are no similar hairs that could be used for further testing” if the results were unsatisfactory. Each agreed that, with this waiver, he was “freely, knowingly, and voluntarily” consenting to the use of “destructive DNA testing. “Petitioner Jason Baldwin’s Acknowledgment of information on Destructive DNA Testing Waiver of Statutory Rights to Retain Specific Biological Evidence for Retesting,” filed Feb. 8, 2005. http://callahan.8k.com/wm3/ motions/img/jb_waiver.html. Damien Echols’s petition, filed the same date, http://callahan.8k.com/wm3/motions/ de_waiver.html;