Untying the Knot: John Mark Byers and the West Memphis Three (38 page)

All the experts agreed not only on the likelihood of postmortem animal predation causing most of the wounds to the skin but also that there was no indication of sexual abuse—no forced oral or anal sex—to any of the three victims. This latter assertion was also important, since in his confession Jessie Misskelley had made allegations of rape (“Damien and Jason was screwin’ ’em and stuff”) and forced oral sex, and the opinions of the experts rendered those allegations false. Dr. Peretti had stated at trial that anal penetration of one or more of the victims was “possible,” which was contradicted by the findings of Bode Laboratories, which found no trace of semen—or blood—on any of the boys’ clothing. The absence of blood was significant because Misskelley had stated that the attacks on the boys had begun before their clothes had been removed. If this were true, some amount of blood should have been present on the boys’ clothes. Echols’s petition made it clear that Misskelley’s confession was what defense expert Dr. Richard Ofshe had called it years earlier—false and coerced.

As far as the state’s theory of motive—satanic ritual homicide—John Douglas had this to say in his report: “In all my twenty-five years of investigative experience in the FBI, and after eleven years as a private consultant to prosecutors and defense attorneys in a variety of cases, I have yet to see a single homicide case which was determined to be a satanic ritual homicide. Perhaps this will be my first.” Dr. Spitz concurred. He saw no element present that would indicate ritualistic homicide of any kind. The writ took exception with the lower court’s acceptance of Dr. Dale Griffis as an expert in the area of the occult. Griffis’s degree had been obtained without any classes actually being taken, and Echols claimed that absent any reliable evidence that he was an expert, Griffis should not have been allowed to testify.

The issue of excessive pretrial publicity, particularly the printing of the Misskelley statement in the press, had loomed large over both trials, and it was addressed now in Echols’s petition.
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Although West Memphis municipal judge William P. “Pal” Rainey had ordered all court documents sealed—an order challenged unsuccessfully by the
Memphis
Commercial
Appeal—
much damage in this area had been done, so much so that the writ claimed it could not be adequately set aside by a simple “admonition limiting the statement’s admissibility to [Misskelley] alone.”
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There was also the issue of Detective Gary Gitchell’s press conference statement, where he publically and knowingly exaggerated the strength of the case against the suspects. The case against the three, he told reporters, was “eleven” on a scale of one to ten, when Gitchell knew this was far from the truth.
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Echols also raised several charges of juror misconduct, asserting that the voir dire process had been ineffective in assuring Echols of twelve unbiased jurors. During their deliberations, the Echols/Baldwin jury used a “T-chart” display board as a visual aid in their deliberations. Among the items or factors considered by the jury were such pieces of evidence as the lake knife found behind Baldwin’s trailer, the statement of the “softball girls” (who allegedly overheard Echols make an admission of guilt), the fact that the defendants “wore black t-shirts,” and an item that had been blacked out. Years later, Tom Quinn, an investigator for the Baldwin team, located a juror (Juror 7) who had taken “compendious” notes, including an unadulterated facsimile of the original display pages. Toward the bottom of the juror’s notes, the item that had been crossed out on the Echols side of the chart was “Jessie Misskelley Test Led to Arrest.” On the Baldwin side, the chart read, “J. Misk. State.” The petition further identified specific problems with individual jurors. One juror stated that his father had given him details of the case during the trials and that the juror believed that there were supporters in the gallery capable of killing him. Another juror claimed that she had decided the guilt of the defendants prior to closing arguments.

One of the more serious allegations of jury misconduct, however, centered on its foreman, a Jonesboro realtor named Kent Arnold. In 2005, Arnold had a conversation with a TV reporter from Little Rock, during which he admitted—or was “tricked” into saying, as he claims—that he and his fellow jurors had considered and discussed the confession of Jessie Misskelley during their deliberations. The reporter, Lyndall Stout, entered an affidavit that was promptly sealed by the court because it mentioned Arnold—“juror number four”—by name. Another affidavit was entered by a nonjuror, Lloyd Warford, who acted as Arnold’s business attorney.
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Warford said that Arnold had discussed the case with him before, during, and after the trial, and this affidavit was also sealed. Echols’s claim of ineffective assistance of counsel, which the lower court (Judge Burnett again) had denied under Arkansas Rule 37 back in 2001, was raised again. Among the conflicts listed was Echols’s contract with HBO, which he claimed he had entered into at Price’s urging. Price wanted to “get the trial over with” prior to the release of the film, fearing the impact it would have on the jury were they to inadvertently view it or hear of it from others. (The fact that the trial
was
the film made this an unlikely claim. The trial would necessarily have to end in order for the film to be completed. At the trial’s conclusion, however, the producers agreed to wait until September—six months—to release the film, presumably to allow for post-trial hearings to be heard.)

Two issues with prosecution witness Michael Carson were raised: first, that his testimony, which was based on allegedly false and uncorroborated statements made to him by Baldwin, was unduly prejudicial toward Echols, and second, that Carson had been previously represented by Val Price in a juvenile matter. Price had not disclosed this representation to his client and did not cross-examine Carson at trial, thus denying Echols the chance of adequately confronting—and discrediting—his accuser, since Price would have had knowledge of Carson’s criminal history.

Echols further claimed that Price was laboring under another conflict of interest in that Price had once represented a business partner of John Mark Byers in a civil matter. The petition held that although Price had questioned Byers on the stand, his “divided loyalties” had prevented him from “actively and zealously questioning and impeaching Byers [at Echols’s trial] on all relevant matters, including the full history of Byers’s criminal past and violent conduct; Byers’s medical condition, including his affliction with brain tumors which, as trial counsel knew, could be associated with violent and criminal conduct; and Byers’s involvement in the civil case in which counsel represented Byers’s co-defendant.” This claim was probably the weakest one in the petition, and the state didn’t even respond to it.

The remainder of Echols’s claims of ineffective assistance of counsel were related to Price’s failure to hire expert witnesses, failure to seek a second change of venue, failure to move for a continuance (to allow publicity to die down, as if it ever would have), and failure to adequately discredit occult “expert” Dale Griffis and his unreasonable introduction of testimony at sentencing from defense expert Dr. James Moneypenny, who testified during the penalty phase as to the mental health of Damien Echols.
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There were other issues involving the jury. According to the defense, sealed affidavits filed with the petition proved that at least seven of the sitting jurors had admitted during voir dire that they had heard, seen on TV, or read in the newspapers details of the case, including specifics of Jessie Misskelley’s statement. Moreover, the accepted jurors had been further influenced by the statements of those who were excused, most of whom were rejected due to their exposure to excessive pretrial publicity. Since voir dire is normally not conducted individually, even if a prospective juror had not heard details of the case—which was next to impossible—he or she would have gotten an earful from those who were excused for cause, and this was another issue put forth in the writ.

Meet
the
Press

What had to rank as one of the most significant events for the Free the West Memphis Three movement—save for the convicts’ eventual release from prison—took place on November 2, 2007, when San Francisco attorneys Dennis Riordan and Don Horgan hosted a press conference in Little Rock to lay out the new evidence in the case for the media.

The victims’ families had been brought together several days earlier in Memphis at the offices of Inquisitor, Inc., to be given a briefing prior to the press conference (which only Mark Byers and Pam Hobbs attended). At the private meeting, Echols’s attorneys and forensic experts sought to sell their theory of the crime to a group of potentially nonsympathetic listeners, though as it turns out, by the time of the Memphis meeting, Mark Byers was convinced. Pam Hobbs was waffling at the time. Todd and Dana Moore had believed in the guilt of the three since the convictions, and nothing was going to change their minds. Their absence from the meeting surprised no one, nor was the absence of Terry Hobbs unexpected.

The media press conference was held right on the heels of the filing of the Echols habeas petition and just prior to other media events devised to raise awareness and garner support for the expensive forensic, investigative, and administrative work needed to file and ultimately argue Echols’s case before the court. Present at the conference were representatives of each technical area of the petition. Riordan and Horgan presented the overview, replete with multiple assertions of Damien Echols’s “actual innocence.” Thomas Fedor of SERI explained the findings of the DNA analysis done on hair samples obtained from Terry Hobbs and David Jacoby, also emphasizing, as Riordan had, that none of the evidence tested linked Echols, Baldwin, or Misskelley to the crime scene. Forensic pathologist Dr. Werner Spitz and forensic odontologist Dr. Richard Souviron both addressed the numerous lacerations and other injuries found on all three victims. The prosecution, via medical examiner Dr. Frank Peretti, had insisted in 1993, and still maintained, that the cuts were knife wounds, possibly from the “lake knife” recovered by divers behind Jason Baldwin’s trailer.
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But Spitz and Souviron reaffirmed their opinions that the wounds were instead the result of “post-mortem animal predation.”

John Douglas’s report was significant because it was able to bridge the gap between the DNA and other forensic evidence being presented in the writ and an actual personality type, or “profile.” “The person responsible for the crime on May 5, 1993, just didn’t wake up one morning and decide, ‘Today I’m going to go out and kill,’” Douglas said. There would be precipitating factors leading up to the crime, and the background of the offender, when checked, would show a history of violence, a failed marriage or two, and probably financial difficulties as well. “I did see these factors . . . [they were] very obvious to me,” Douglas said, speaking of Terry Hobbs. Although he softly attempted to qualify his statements as “not being specific,” they were very much so. Douglas met twice with Hobbs, once before conducting a background investigation and once after. He interviewed what he described as two different people in Hobbs, and he reiterated that for the press. He said of the WMPD, “Had the police back in 1993 done a background check and come to me or one of my colleagues and said, ‘So, what do you think about this guy?’ I would say, ‘Put him on the front burner.’” The biggest problem with Douglas’s report is that he was fully aware that Hobbs was a suspect (in the defense’s view) before he wrote it, and thus the objectivity is questionable. Although the rest of the defense team focused on the evidence and only indirectly implicated Hobbs, Douglas’s message was straight on: the police had made a major blunder by failing to interview Hobbs.

Riordan, ever the defense attorney, did his best to rehabilitate Douglas’s blatant indictment of Hobbs. He cited the “rush to judgment” made by the West Memphis police in 1993 in telling the district attorney’s office that the crime was solved “without question, within hours of the Misskelley confession.” Riordan now cautioned, “No one is saying that we have developed in this case evidence that establishes the guilt, much less the guilt beyond a reasonable doubt, of anyone else.” It became evident throughout 2010, however, that if Riordan was not pursuing an alternate subject, just about everybody else on the defense team
was
. Without nuclear DNA, an unimpeachable eyewitness, a rock-solid confession, something proving the guilt of someone else and excluding Echols, Echols’s appeal would be an uphill battle all the way.

The press conference was important and probably quite expensive. The question was, what would it accomplish? Riordan indicated that it was simply a way to consolidate the more than three hundred requests for information that they had received from various media. But was that all? It would certainly have no effect on the trial judge, David Burnett, who had stated publically that he “just wanted to get [the habeas hearings] over with.” Arkansas attorney general Dustin McDaniel was already on edge about the publicity given the case, calling it a “misleading press campaign.” McDaniel saw no revelations in the petition and stood by the conclusions reached by Peretti and the prosecution in 1993-94. Riordan, however, emphasized that Brent Davis had been of a mind to agree to submit evidence to any testing requested because he wanted to be sure “they had the right man.” For the defense, that man was Terry Hobbs. But if Damien Echols—and Mark Byers as well—wanted Hobbs to take the fall for the murders, they had some fundamental problems to overcome, the most basic being that Hobbs was presumed innocent, and the police and prosecutors had no incentive to rock that boat. Hobbs, however, was getting sick of the accusations and innuendo and was preparing to make a move of his own.