West Memphis, Arkansas- On Wednesday May 5, 1993 three eight your old cub scouts and best buds Michael Moore, Stevie Branch and Chris Byers ventured into the RobinHood Hill Woods after 6:30 PM.
While their worried parents made numerous calls to police and actively looked for them in the area into the late evening, there was no sign of them in spite of neighbors going door to door. Unfortunately there was a shift change at the West Memphis Police Department, and no detectives were called in until the following morning.
That critical error by the WMPD is the start of a voluminous list of mishaps and negligence that would plague this case from the onset, and quite possibly earn Damien “Icky” Wayne Echols (a/k/a Michael Wayne Hutchison) Charles Jason Baldwin, and Jessie Lloyd Misskelley, Jr, a new trial.
I was asked to review this case and present my findings to a colleague who had been privately retained in this case, with the agreement that I would publish my investigative report regardless of the conclusions I reached
In the interest of disclosure, I am admittedly a big fan of Johnny Depp and Eddie Vedder and I wanted nothing more than to let them know they could count me in as the newest advocate for “free west Memphis 3”.
First, The Good News?
At the onset of my research, I thought it was pretty clear that there absolutely was juror misconduct in the Echols/Baldwin trial, which has yet to be ruled on for the defense team, and I agree that the same judge who heard the instant case should not have heard the appeal, especially in a capital case.
As a practical matter, lawyers, specifically defense attorneys, are charged with extracting the “guilt or innocence fact” as it relates to the crime and zealously defending their clients rights and presumption of innocence.
Conversely, the prosecution is charged with presenting a case they believe will result in a conviction of the indictment as presented, while adhering to the rules of criminal procedure under the Arkansas supreme court.
I think it is a fair statement to say that in both trials, neither endeavor was accomplished and we should all be uncomfortable with how it could threaten our collective rights under our constitution should it go unaddressed in general, and not just in this case with these defendants.
The larger issue at hand, is changes to DNA statutes and the states plain language misapplication of the “actual claim of innocence” under rule 37.
Simply put, it means that the new evidence, testing, the evidence of any jury misconduct, when evaluated with all other evidence both inculpating and exculpatory whether or not it was presented at trial, is a second bite of the apple- FOR BOTH SIDES.
The burden, however, is on the defense to argue that a new jury would likely acquit all three based on the totality of that evidence today. It should be noted that the Supreme Court will rule on this hearing as to whether or not a new trial is warranted giving EQUAL weight to direct, physical and circumstantial evidence, which is also the charge to a jury.
I support the hearings to begin December 5, 20011, with cameras present because I believe in transparency and the law is clear that it provides for “higher burdens” in capital cases.
I purposely studied trial transcripts pleadings and filings in advance of all actual evidence and exhibits because I did not want any basis I had for procedural errors to influence my opinion.
My advance apologies for those reading that are new to the facts of this case for leading with the caboose, there is a method to my engineering.
To an extent, I can bifurcate the issues of guilt or innocence vs. our rights under the constitution to due process.
I am less open to it given the recent verdict in the murder trial of Casey Anthony, where the similar problem but different verdict of no direct physical evidence tied to the accused resulted in her jury acquittal, but that is not the only topical comparison one can make between these two cases, more on that in the final installment of this series.
Brief Background: West Memphis Three Support
The HBO Series Paradise Lost, a documentary filmed by Joe Berlinger & Bruce Sinofsky’s company Creative Thinking International with the full participation of both the prosecution and the defense, paid for a portion of the defense of Echols and Baldwin directly to their lawyers and to them by way of a trust in the name of their attorneys. Once the victim’s families learned of this, each of the victim’s families was paid an undisclosed honorarium for their participation in 1994, prior to its airing in 1996.
Although Baldwin and Echols benefited financially from the arrangement, they sued their attorneys Dan Stidham and Val Price for ineffectiveness of counsel and conflict of interest.
Loosely translated, they have accused them of not hiring defense expert witnesses and well, ineffectiveness.
It is due to that ruling we are sort of “where we are now.
That said, the funding for expert witnesses for these proceedings have been and continue to be paid in part by Arkansas Take Action (ATA), founded by Lorri Davis, Echols wife.
The major celebrity fundraisers and contributors to West Memphis Three via ATA cite “Paradise Lost” as the impetus for their personal advocacy and sponsorship.
I can’t say that I would have blamed them then, as it was not until the series aired, and the “slant” of innocence of the accused by the producers became known to the prosecution and the families, and all but one family member of one of the victim’s declined participation in its sequel. Naturally my first reaction to various organizations, including ATA post conviction fund raising for the defense of 3 convicted murders was a violation of the son of Sam law.
Not in Arkansas. A convict can use funds raised on its behalf for its defense. Let’s hope recently elected Senator David Burnett, the former judge on this case has amending that law on his action item list this year.
Playing to The CSI Effect- Excellent Strategy
Last November, In response to a united appeal decision by the Arkansas supreme court, previously denied by the circuit court in 2007 and argued by famed attorney Dennis Riordon on behalf of Echols, Baldwin and Misskelley, the west Memphis three were granted a new evidentiary hearing to take place on December 5, 2011 based on further DNA, fiber and hair analysis.
It is the goal of the defense team to use the hearing to win a new trial.
Last month, the case status update reports new DNA findings exclude all three suspects. There are 2 spots on a victim’s shoe that are the profile of a common unidentified male, and another spot with a different male profile.
It is the defense’s position that this exonerates Echols, Baldwin and Miskelley, because it does not belong to them, which was stated similarly in just about every news article as well.
It does nothing of the kind, as there were over a dozen WMPD personnel on scene who could absolutely be the origin of the DNA.
The defense claims it is “not their job as a defense team” to establish whose DNA it is.
While that is true, presenting that evidence as exculpatory has already been addressed by the court on it’s own merit. Consideration by the court of this evidence, and all other evidence whether presented at trial or not is in effect, giving the state the power to decide guilt or innocence and makes the rule 37 “ruling” moot.
This is a very wide berth for both sides, and in this author’s opinion, a “be careful what you wish for situation” for at least one defendant, if not all three, ultimately. (more…)