Devil's Knot: The True Story of the West Memphis Three (14 page)

T
HE WORDS
“
OBEDIENCE TO THE LAW IS LIBERTY
” are etched in stone above the entrance to the Crittenden County Courthouse at Marion. On August 4, 1993, two police officers led Damien, Jason, and Jessie, all wearing handcuffs and shackles, into the heavily guarded building for their first pretrial hearing. The courtroom was called to order, and Judge David Burnett, with black robes flowing and cornsilk-colored hair curling slightly at his collar, climbed to his seat at the bench.
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Burnett told a reporter he’d read a book about satanism “for information purposes,” in preparation for the case. Now, in his official capacity, he told the defendants that they were each charged with three counts of capital felony murder. He asked them, how did they plead? Each replied, “Not guilty.”

Burnett cut a familiar and genial figure at the two-story courthouse. Earlier in the summer, he and the three other judges in Arkansas’s Second Judicial District had met to discuss who would officiate in the already sensational case. The fifty-two-year-old Burnett had been selected. He was a native of the region, the son of a tire dealer in Blytheville. After high school, where he was an Eagle Scout, Burnett attended the University of Arkansas and then its school of law. As soon as he’d graduated from law school, in 1966, he’d entered the army, not as a military lawyer but as a police officer. His first tour of duty was at Fort Ord in California, where, he once said, “I was essentially the police chief for the base.” He was awarded a Bronze Star for later service in Vietnam.

After leaving the army, Burnett returned to northeast Arkansas, where he started a private practice. He soon ran for and was elected prosecuting attorney for the Second Judicial District, and eight years later, in 1983, he was elected to the bench.
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One Arkansas reporter described Burnett as “a low-intensity judge whose idea of a good time is raising prize-winning tea roses.”
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Within his profession, opinions were mixed. While he was regarded in some circles as affable, smart, and one of the best of the region’s good ol’ boys, critics complained that he was still a policeman and prosecutor at heart, and one local politician called him “a political alligator.” Burnett made no secret of his skepticism toward testimony in the field of psychology. As the West Memphis case headed toward trial, Burnett was working on his thesis for a judicial master’s degree. He unabashedly told a reporter for the
Commercial Appeal
that his thesis centered on his belief that the expert opinions of psychiatrists and psychologists “shouldn’t be given the great weight that it’s normally given by courts, juries, and what have you.”
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The first ruling Burnett made was that Jessie would be tried separately from the two teenagers whom he had accused.
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Another concern Burnett promptly addressed dealt with mental competency. Perhaps anticipating that one or more of the defendants would plead not guilty by reason of insanity, the judge noted that so far, none of the lawyers had sought mental evaluations for their clients, and he gave them fair warning. “Gentlemen,” Burnett announced, “I’m concerned with the possibility of a motion to seek mental examinations and the inevitable delay that that causes…. If you don’t request it within thirty days, you’re waiving it. You’re on notice that the court is drawing a deadline as far as that defense goes.” The deadline came and went. By then it had been decided that none of the teenagers wanted to plead not guilty by reason of insanity.
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The lawyers planned to base their defenses on claims of actual innocence.

In the months ahead, Burnett would wade through a stack of motions more than a foot thick, and he’d issue more than fifty pretrial rulings. Most concerned the trials ahead. But one addressed an issue that was of personal concern to the lawyers. It asked Burnett to explain how—and how much—the court-appointed defense attorneys were to be paid. At the time, the matter was extremely murky.
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The six court-appointed lawyers told Burnett that they expected to spend hundreds of hours on the case, and that they wanted the question cleared up. Jessie’s attorney argued that he was already working full-time on his client’s defense, and that not being paid would impose a serious hardship on his family and on his legal partner. Jason’s lawyer pleaded, “I don’t feel we should have to self-finance this case until it’s over and then be reimbursed.” Burnett told the lawyers not to worry.
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“Obviously,” he said, “the attorneys are going to be paid reasonable fees.” But he offered them no specifics about when those fees might be paid.

Four times between August and November, Damien, Jason, and Jessie were hauled back and forth from the boredom of their respective jail cells to various scenes of fury as they were led into court. Jessie, the smallest of the three, hunched, as though trying to make himself even smaller, as deputies marched him past the crowds. Jason walked head down and silent. But Damien seemed unable to ignore the angry taunts. Onlookers lining the sidewalks at the courthouse remarked that he looked sullen. Lax and Damien’s attorneys warned him that his demeanor could harm his defense. When Shettles visited Damien after one of the hearings, she showed him a copy of that morning’s
Commercial Appeal
.
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Afterward, she wrote:

Damien told Shettles that the sheriff’s deputy who’d transported him from the jail to the courthouse and back had been “very kind” to him. Damien chuckled that the media had wanted to take his picture, but that the photographers had seemed to be afraid of him. Recalling how, upon his arrival to court, a “circle of guards” had surrounded him, one with a sawed-off shotgun, Damien marveled to Shettles that he was considered so dangerous. As tactfully as she could, Shettles let Damien know that rather than protecting people from him, the guards had been protecting him.

Later she wrote, “Michael stated that once inside, there was no holding area, and he, Jessie, and Jason were placed in an office with guards. He said Jason smiled and shook his head, but Jessie never looked up at either of them. Once again, Michael did not display open hostility toward Jessie and stated he felt the police had put words into Jessie’s mouth to implicate him and Jason.”

While Damien’s lawyers worried, Jason’s lawyer Paul Ford became furious. During one of Ford’s visits with Jason, the boy had told Ford that Detective Ridge had recently come to the jail, to collect court-ordered samples of hair and blood from him.
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The incident that Jason then described struck Ford as “extremely troubling.” Ford fired off a letter to Gitchell, in which he explained:

Ford continued:

But neither Damien’s behavior nor the behavior of the police concerned the defense lawyers as much as the condition of the discovery files that Fogleman was slowly releasing. One of the defense attorneys’ earliest motions—and one that would be often repeated—urged Judge Burnett to order Fogleman or the police to help them clarify what they called “the discovery mess.”
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“The state has presented us literally mounds of evidence,” Ford told Burnett. “There’s no heads or tails of it. There’s no consistent order to it.” Ford asked Burnett to order Fogleman to reveal to the defense what portions of the police investigation were relevant to the prosecution.
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The other lawyers joined with Ford in arguing that the state should reveal its theory of the case so that they could prepare their defense, but Fogleman objected. He maintained that the law did not require him to reveal either what material was relevant or his theory of how the crime had been committed. Burnett listened. Then he addressed the prosecutor: “I understand you’re giving them everything that is in the file.”

“That’s correct, Your Honor,” Fogleman replied. He then promised that by the end of August, the defense would have everything the police and prosecutors had developed to that point. Judge Burnett considered that was good enough and denied the defense lawyers’ motion.

From then on, the defense launched motions like arrows at a fortress, and most were easily deflected. At one of the hearings, attorneys attempted to suppress evidence taken in the nighttime search—a search that they argued had been both unnecessary and illegal. Jason’s other attorney, Robin Wadley, noted that the warrant itself had been vague. He pointed out that the “blue, green, red, black (or) purple fibers” listed on the warrant were items that could generally be found “in any home in Crittenden County.” Moreover, he said, police had misled Judge Rainey by claiming that the accused were “friends and members of a close-knit cult group.” Arguing that nothing in Jessie’s statement had indicated that Jason was Jessie’s friend or had “ever participated in occultic activities,” Wadley called Detective Ridge to the stand. To Wadley’s surprise, as the officer was being questioned, he testified that municipal judge Rainey had not only approved the search warrant but had come to the police station to advise police on how to prepare it. This was highly unusual, as it later placed the judge in the position of ruling on the legality of a document that he had helped prepare. “Judge Rainey was assisting in preparing the search warrant affidavit,” Wadley said incredulously to Ridge. “Is that what you’re telling me?”

“Yes sir,” Ridge responded.

As the questioning continued, Ridge also disclosed that Rainey had reviewed Jessie’s statement and found some problems with it. Wadley asked Ridge: “You would agree with me Judge Rainey had some serious, serious concerns about discrepancies in Mr. Misskelley’s statement at the time he was to issue this search warrant?” Again Ridge replied, “Yes sir.”

Wadley next attacked the document’s ambiguity with regard to the search for “cult materials.” Wadley asked Ridge what that phrase “cult materials” meant to him. “As a definition,” the officer stammered, “a cult material, as a cult would be a group, and the cult materials would be any kind of groups with symbolism, writing, paraphernalia, that would agree with that cult.”

“Be specific,” Wadley demanded. “What are you talking about? You have ‘cult materials’ and then in parentheses you have ‘Satanic materials.’ Are you talking about specific items?”

“Books,” Ridge answered. “Reading materials. Drawings. Knives. Anything of that nature.” He then added that during the search at one home, police had found a poem that was “of a questionable nature.”

Still trying to suppress items found in the search, the defense lawyers called to the stand Lisa Sakevicius, an analyst from the state crime lab. She revealed that, in yet another unusual turn of events, she had driven from her office in Little Rock to assist the police in their search. Under questioning by Paul Ford, Sakevicius acknowledged that she would have been “surprised” if any of the fibers found with the dead boys’ bodies had been found at Jason’s house.
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When Ford asked, “Was there any scientific reason that this search needed to be conducted at night?” Sakevicius answered, “Not to my knowledge.”

To refute the assault on the warrants, Fogleman called Judge Rainey to the stand. The municipal judge contradicted the testimony by Ridge. Though Rainey admitted that he had been called to the police station after police finished questioning Jessie, he insisted, “I had no participation in the preparation of the affidavit. I had no participation whatsoever.” Rainey told Judge Burnett that he had approved the search warrant because of the “close relationship between the alleged perpetrators” and “the fact that the evidence possibly could be removed or destroyed if it was not attempted to be gathered immediately.”

Ford argued further that, as a judge, Rainey had not been independent and detached enough to properly rule on the warrant. He insisted that the U.S. Supreme Court “has been quite strict” in setting limits on nighttime searches. But Judge Burnett rejected both arguments. “It is the court’s opinion and ruling,” he declared, “that Judge Rainey was on very sound ground.”