5. SEXUAL MOLESTATION
Misskelley claimed that two of the boys were sodomized both before and after they were killed and also that they were forced to perform oral sex.81 At various times Misskelley said that only Echols raped Chris Byers, that only Baldwin did, and that neither of them did.82 Asked if the autopsy revealed any evidence that the boys had been sodomized, Dr. Peretti said, “If the penis enters the anal canal, I would expect to find bruises and abrasions to the opening. I couldn’t find any physical evidence of that.”83 Furthermore, microscopic analysis of the boys’ anuses failed to reveal even broken capillaries, much less bruises and abrasions. There was also no bruising to the backs of any of the boys’ mouths, as Peretti said would be expected with forced oral sex, nor was there any semen found in the boys’ mouths or rectums.84 Additional forensic tests conducted later confirmed Peretti’s conclusions.85
6. CAUSE OF DEATH
Misskelley stated that one boy was hit and choked with “a big old stick.” In fact, there was no evidence that anyone was choked, with a stick or otherwise, and “no splinters or trace evidence [was] found to confirm the victims were struck with sticks.” Misskelley brought up the stick only after the police asked him if sticks were used in the attack. He likewise mentioned knives and belts as possible causes of the boys’ wounds only after the police had suggested them.86 Led by the detectives’ prompts, he stated that Baldwin had cut two of the boys with a knife. As will be discussed in detail later, six nationally renowned forensic experts, each working independently, concluded unanimously that the cuts, lacerations, gouges, and scratches on the victims’ bodies were caused by postmortem animal predation, not by a knife. Only bruises and fractures could be attributed to human causes.
Hill has noted that of the thirteen statements made by police about Misskelley’s “inside knowledge” of the murder in Exhibit B of their request for a search warrant, the only one supported by the evidence is that all three boys were severely beaten, and that was a matter of public record well before Misskelley’s statement. Hill concludes: “The other statements were provided by the police during the interrogation, were unsubstantiated, contradicted the evidence or were simply invented when composing the search warrant.”87
According to the Arkansas Supreme Court, which upheld Misskelley’s conviction in 1996, his confession was “virtually the only evidence” against him, “all other testimony and exhibits serving primarily as corroboration.”88 As I hope this summary of the implausibility of the confession reveals, there actually was no legitimate evidence—none—that Misskelley, Echols, or Baldwin were guilty of the crimes.
You might think that the discrepancies between the facts and Misskelley’s confession, coupled with the lack of any physical evidence tying Echols, Baldwin, or Misskelley to the murder scene, would have made those who investigated and prosecuted the West Memphis Three at least a little cautious about claiming they’d arrested the right people. But you would be wrong. When a reporter asked Gitchell the day after the confession to rate on a scale of one to ten how solid his case was, he said, “Eleven.”89
There is good reason to believe, however, that Gitchell knew just how little evidence he actually had, or at least that the prosecutors did, for after the arrests the prosecution took the unusual step of asking the court to seal the documents supporting the search and arrest warrants. Because the court complied, the public was unable to discover just how meager the evidence was. An editorial in the West Memphis Evening Times criticizing the decision concluded: “The case remains shrouded in secrecy, and the public’s questions remain unanswered. We hope, above all else, that our faith in the law enforcement and judicial system is justified. We just wish we knew for sure.”90 Now—too late—I believe we do know for sure that the people’s faith was not justified. In fact, I think it’s fair to say that the case against Gitchell and the others responsible for coercing Misskelley’s false confession, then hyping the so-called “evidence” of the three teenagers’ guilt, is an eleven.
The First Trial
Because Misskelley retracted his confession and refused to testify against Echols and Baldwin, two trials were required—one in which the confession could legally be used, to determine Misskelley’s guilt or innocence, and another in which the confession was not admissible, to determine Echols’s and Baldwin’s. The confession was not admissible in the second trial because Misskelley’s refusal to testify would have deprived Echols and Baldwin of their Sixth Amendment rights to confront and cross-examine their accuser. The prosecutors had offered Misskelley a deal to testify, but he refused. Although the details of the offer were never divulged, his attorney described Misskelley’s decision as “the most difficult . . . he will ever make,” a statement that implies that testifying would have significantly reduced his sentence.91
The first trial began in January 1994 and took place at the Clay County Courthouse in Corning, Arkansas. The presiding judge was David Burnett, and the prosecutors were John Fogleman and Brent Davis. Misskelley was represented by two court-appointed public defenders, Dan Stidham and Greg Crow, neither of whom had served as the lead lawyer in a capital case. Stidham, the lead attorney, was only twenty-seven.92 The defense had virtually no budget to pay for experts to testify on behalf of their clients. In fact, the total budget for investigations and expert witnesses for the three accused teenagers was a mere $7,500.93 Stidham paid for the few experts he was able to bring in by using his own credit card.94
Misskelley’s trial was lost even before it began. In repeated pretrial motions, Stidham argued that Misskelley’s case should be tried in juvenile court since he was a minor, and that his confession should not be admitted into evidence because he was mentally challenged and the confession had been coerced. Burnett rejected all of these motions. As a result, Stidham was faced with the difficult task of convincing a jury that his client’s confession was false. This task was difficult not because he lacked evidence of its falsity; it was difficult because most people simply cannot imagine confessing to a crime they didn’t commit. But, as counterintuitive as it may seem, false confessions are far from uncommon. According to The Innocence Project, more than half of the eighty people convicted of murder and later exonerated through DNA evidence had given false confessions.95
Stidham made a valiant effort to convince the jurors that Misskelley’s confession was false and coerced. He brought in Warren Holmes, a nationally recognized polygraph expert who had conducted polygraph tests in such high-profile cases as the John F. Kennedy and Martin Luther King, Jr., assassinations and the Watergate break-in. Holmes, who received no payment for his appearance, was prepared to testify that Misskelley had passed the polygraph test, showing deception on only one question, the question of whether he had ever used an illegal drug. However, Burnett refused to allow Holmes to express an opinion on the validity of the polygraph examination.96 Consequently, the jury never learned that Misskelley had in fact passed the polygraph, and they were left to believe that he had failed it.
Similarly, Burnett ruled that Dr. Richard Ofshe, an acknowledged expert on false and coerced confessions who received the 1979 Pulitzer Prize for Public Service, could not testify before the jury that he believed Misskelley’s confession was involuntary. “I’ve already ruled it was voluntary,” Burnett said. “Now, am I going to let a witness get up here and contradict my ruling?” In several bench conferences, Burnett also stated that he would not allow Ofshe to express an opinion on the validity of Misskelley’s statement, but after the prosecution referred to coercion while cross-examining Ofshe, Stidham asked the judge if he could “use the word coercive like the prosecutor used,” and Burnett gave him permission to ask Ofshe about possible evidence of coercion. However, Ofshe was not allowed to express his opinion that police coercion rendered the confession involuntary or invalid, and Burnett allowed Ofshe to testify for only a few minutes on the subject of coercion, ostensibly because it was late in the day (approximately three p.m.) and the court reporter was getting tired.97
It was left to Stidham, then, to attempt to convince the jury that Misskelley’s confession was false. The fact that Ridge misrepresented the confession, both in Exhibit B of the search warrant and in his testimony during the trial, was a significant obstacle. For example, Ridge said that Misskelley “told us that it was Steven Branch that received the cuts to the face.” Misskelley did say “one of the little boys” was cut in the face, but in neither the taped statements nor Ridge’s notes of the unrecorded parts of the interrogation does he say which one.98 The fact that a child’s face had been cut was already common knowledge, and Ridge had shown Misskelley a photograph of Michael Moore, who also had a laceration on his face, so Misskelley could have been thinking of Michael.99 Similarly, Ridge stated that “Misskelley also described the area where the murders occurred very specifically,” when in fact, as the recording makes clear, Ridge himself was the one who described the crime scene.100
Stidham pointed out that details of the crime that the police claimed “only the killer would have known” had in fact been leaked by the investigators and been widely reported,101 and he further pointed out the numerous discrepancies between the facts and the confession. When Gitchell was questioned by Stidham, he shrugged off these discrepancies by saying, “Jessie simply got confused. That’s all.”102 This response was evidently enough for the jury, especially after Vicki Hutcheson took the stand and, in testimony reminiscent of the Salem Witch Trials, falsely claimed that she had gone to a witches’ esbat with Echols and Misskelley, thus “proving” to the jurors’ satisfaction that the murders were part of a satanic ritual.
The only physical evidence Fogleman presented were fibers found at the crime scene: two green fibers taken from a Cub Scout cap and a single red fiber taken from a white shirt.103 According to Lisa Sakevicius, an employee of the Arkansas State Crime Laboratory, the green fibers were “microscopically similar” to fibers from a size six Garanimals T-shirt that belonged to Echols’s stepbrother, and the red fibers were likewise “microscopically similar” to fibers from a robe that belonged to Baldwin’s mother.104 As Leveritt commented, “In light of the bloodiness of the crime, its hands-on physicality, and the number of victims and defendants, the discovery of a few mass-produced fibers from items available in Wal-Marts and other clothiers all over the country” constituted “an infinitesimal amount of evidence.”105 Sakevicius acknowledged that many fibers are microscopically similar and that the similarity “proved nothing.” She further said she was not contending that the fibers came from the garments in question.106 The fact that the shirt and robe did not belong to Echols or Baldwin made the suggestion that the clothing linked them to the crime even more tenuous. Essentially, the State was arguing that the only evidence the killers left behind at the scene of this grisly murder were three fibers from garments owned and worn by other members of their families.107
Despite this lack of convincing physical evidence, on February 4, 1994, Misskelley was convicted and sentenced to life plus forty years. After the trial was over, juror Lloyd Champion told the Memphis Commercial Appeal that he believed Misskelley’s confession was not coerced. He added—with, as Leveritt has noted, “irony that was apparently not intentional”—that he wasn’t surprised that Stidham didn’t have Misskelley testify on his own behalf because, if he had, “I think that prosecuting attorney could have tore him apart and made him say anything.”108
The Second Trial
The trial of Echols and Baldwin began on February 28, 1994, and was held at the Craighead County Courthouse in Jonesboro. As with the first trial, the defendants were represented by court-appointed public defenders with minimal budgets for forensic experts and tests. Echols was represented by Val Price and Scott Davidson, and Baldwin by Paul Ford and George Robin Wadley. Again, the prosecutors were Fogleman and Davis, and the judge was Burnett.
This time, the prosecutors would have a more difficult burden of proof. Because Misskelley had informed the State that he would not testify against Echols and Baldwin, his confession was, in theory at least, inadmissible evidence, for to admit it would deny the defendants their Sixth Amendment right to confront their accuser. (I say “in theory at least” because Ridge did mention it during the trial, and there is evidence that the jurors discussed it during their deliberations.) Misskelley had made the decision not to testify despite the fact that he had been strongly pressured to do so. Shortly after his conviction, he was taken, without the permission or knowledge of either his attorney or his father, to a small town near Jonesboro, where Davis tried to persuade him to testify.109 Misskelley said he was told that if he didn’t testify, Echols and Baldwin would walk free and then they’d “go after” his girlfriend. Misskelley’s father and stepmother helped talk him out of perjuring himself, saying that if he lied he would have to live with that fact for the rest of his life. Because he refused to lie, he said, “if I ever do get out, my name will be clear, and I can live pretty much a decent life.”110
Because Misskelley’s confession was inadmissible evidence, the prosecution had to rely on dubious physical and hearsay evidence to secure a conviction. Again they submitted as evidence the three fibers introduced at the first trial. Fogleman said he believed this evidence was strong, but admitted, “We can’t say it came from that particular garment to the exclusion of all others.”111 The prosecution also introduced two sticks that the police took from the crime scene nearly two months after the murders,112 but as Peretti testified, there were no wood fragments or splinters or anything else in the boys’ wounds to connect these sticks to either the murdered boys or the defendants.113
In addition, Sakevicius testified that blue wax was found on one of the victims’ shirts and one of Echols’s books, Frank Donovan’s Never on a Broomstick: The True Story of the Faith, Mystery, and Magic of Witchcraft, Classical and Contemporary. In a bench conference held out of the presence of the jury, the defense asked why they hadn’t received a crime lab report about the wax, and Fogleman stated that Sakevicius “said that what she puts in her report is when there are matches. She claimed that [the wax] didn’t match anything.” The jury never heard this statement. What it did hear was Fogleman’s claim, in his closing argument, that the waxes could be matches and that candle wax was evidence of a satanic ritual. According to notes taken by jurors, the wax was cited as one of the reasons for Echols’s conviction.114
Most important, the prosecution also introduced as evidence a knife that was found in Lakeshore Lake, near Baldwin’s home, under suspicious circumstances. According to Fogleman, he had a hunch—six months after the arrests—that the killers had disposed of the murder weapon in the lake, and he contacted the Arkansas State Police, which sent a dive team there on November 17. Fogleman described the discovery of the knife that day as “quite a coincidence” and dismissed any suggestion that the knife had been planted by saying that no one but the investigators knew they were going to search the lake, much less “when we were going to do it.” But if no one but the police knew when they were going to search the lake, how was it that a reporter for the West Memphis Evening Times happened to be on the scene to take a photo of the diver surfacing with a knife in his hand? Was that, too, “quite a coincidence”?115 To make this “coincidence” seem even more suspicious, a member of the dive team has since stated that the divers “were given precise directions on where to find the knife.”116
The “Lake Knife,” as it came to be called, was a nine-inch non-folding Rambo-style survival knife that did not match the description of the six-inch folding knife that Misskelley had claimed was the murder weapon.117 It did, however, roughly resemble a knife Echols was reported to have once owned, and that fact was evidently good enough for the prosecution.118 Still, no testimony was introduced in court to connect the knife in any way to the crime scene, for Peretti had said (wrongly, as we shall see later) that the boys’ wounds could have been inflicted by any serrated knife.119
The absence of testimony linking the knife to the crime did not prev
ent Fogleman from performing an experiment during his closing argument that strongly implied that the Lake Knife was the murder weapon. He held up a grapefruit and whacked it with the knife, then showed the jury the marks and claimed that they matched an autopsy photo of the wounds to Chris Byers’s groin. “I submit the proof shows this knife caused this,” Fogleman said, then corrected himself—but not until after he’d already given the impression that he was holding the murder weapon in his hand—“Well, true, it could be another knife like this, but I submit to you the proof—the circumstantial evidence—show [sic] that this knife, State’s exhibit seventy-seven, caused those injuries.”120 One of Echols’s later attorneys, Dennis Riordan, has said that this was “a classic instance of prosecutorial misconduct.”121 In an October 29, 2007, filing, he and fellow attorney Donald Horgan wrote: “No evidence in the record permitted the conclusion that the Lake Knife was used in the crime, yet Fogleman informed the jury in closing that he was able to reduplicate the marks on Byers’s body by cutting into a grapefruit with the knife in question. The prosecutor’s unsworn testimony in this regard violated petitioner’s Sixth Amendment right to confrontation.”122 Dr. Richard Souviron, a prominent forensic odontologist who examined the autopsy records, also expressed outrage at Fogleman’s claim that the knife marks on the grapefruit matched those on Byers’s skin. “That is the most ridiculous statement that I’ve ever heard anybody make. And to sell that to a jury is unconscionable, in my opinion.”123
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