The only appeals that were not rejected were the result of a 2001 Arkansas law (Act 1780; amended in 2005 by Act 2250) granting prisoners access to DNA testing to prove their innocence. The law states that the court may grant a motion for a new trial if DNA test results exclude a person as the source of the evidence and if those results, “when considered with all evidence in the case regardless of whether the evidence was introduced at trial, establish by compelling evidence that a new trial would result in an acquittal.”160 In July 2002, Echols filed a motion seeking DNA testing on crime scene evidence, and in June 2004, after several court-instigated delays, Burnett finally issued an order allowing DNA testing. After further court-instigated delays, the testing began in December 2005 and continued into 2007.
In July 2007, Echols’s attorneys filed a status report with initial DNA test results, indicating that those results excluded Echols, Baldwin, and Misskelley as possible sources, and in October of that same year they filed an amended Petition for Writ of Habeas Corpus in federal court calling for a new trial. This petition included not only the results of the DNA tests but also, as the Arkansas DNA statutes allow, all of the additional evidence of Echols’s innocence discovered since his conviction. The federal district judge returned the case to the state circuit court, and in September 2008, Burnett denied the petition. In March 2009, Echols’s attorneys filed an appeal with the Arkansas Supreme Court, arguing that Burnett’s decision violated the state’s DNA law. The court heard oral arguments in the case on September 30, 2010, and on November 4 the justices issued a unanimous ruling reversing Burnett’s decision, which they said “erroneously interpreted the Arkansas DNA testing statutes,” and remanding the appeal to the circuit court. They instructed the court to “hear Echols’s motion for a new trial and consider the DNA-test results ‘with all other evidence in the case regardless of whether the evidence was introduced at trial’ to determine if Echols has ‘establish[ed] by compelling evidence that a new trial would result in acquittal.’”161 Although the motion was filed by Echols’s attorneys, the justices ruled that Baldwin and Misskelley were also entitled to a similar evidentiary hearing. This hearing was assigned to Craighead Circuit Court judge David N. Laser, who had replaced Burnett after he was elected to the state senate, and it was scheduled to begin December 5, 2011.
Following is some of the evidence and testimony that Judge Laser was ordered to consider, in addition to the previously discussed evidence that Misskelley’s confession was false, in determining whether the West Memphis Three would receive new trials.
1. DNA
If the prosecution’s claim that two of the boys had been sodomized was accurate, it would have been impossible for the perpetrator not to leave DNA evidence. Yet when nearly seventy pieces of crime scene evidence were finally tested in 2007, the results excluded Echols, Baldwin, and Misskelley as possible sources.162 Five hairs recovered at the scene were found to have different DNA profiles from those of the convicted men and the victims.163 Thomas Fedor, a forensic serologist with the Serological Research Institute in Richmond, California, reported that possible sources for two of these five hairs had been determined: Terry Hobbs, the stepfather of Stevie Branch, and Hobbs’s friend David Jacoby, who was with him the day the three boys disappeared.
According to Fedor, a hair found on a tree root at the crime scene contained mitochondrial DNA that matched Jacoby’s, and a hair tied into a knot that bound one of Michael Moore’s wrists to one of his ankles contained mitochondrial DNA that matched Hobbs’s. Since mitochondrial DNA is common only to a maternal line, it is not possible to say with absolute certainty that the hairs belong to Hobbs or Jacoby; they could have come from relatives of either men. Fedor estimated that approximately 7 percent of the population could be the source of the hair on the tree stump and about 1.5 percent the source of the hair in the ligature.164
The mitochondrial DNA sequence of a third hair, this one recovered from beneath Chris Byers’s ligature, was also successfully determined, but as yet no possible source has been identified. According to Fedor, however, the following can be excluded as possible sources: the three victims, the mothers and siblings of the victims, Terry Hobbs, and the West Memphis Three.165
Fedor also discussed the fact that a piece of genetic material—an allele—that could not have come from any of the West Memphis Three or the three victims was found on Stevie Branch’s penis. Unlike the hairs, this allele could be tested using a method called STR (short tandem repeat), which, if there is sufficient information, can identify with virtual certainty the individual who is its source. At present, STR testing is not sophisticated enough to identify the source of the allele, but Fedor said that new DNA technology, which can “work with samples that are even smaller and more degraded,” is in development, and the allele “has much greater potential for identifying a person than the hairs.” For now, however, all we can say with certainty is that the DNA evidence excludes the convicted men and potentially implicates Hobbs and Jacoby.166
In July 2011, additional DNA testing revealed that human DNA discovered on Byers’s shoes and Branch’s body167 came from two individuals who remain unidentified. Once again, Echols, Baldwin, and Misskelley were conclusively excluded as possible sources.168
2. POSTMORTEM ANIMAL PREDATION AND THE CAUSE OF DEATH
As mentioned earlier, six prominent forensic experts, each working independently, unanimously determined that the numerous lacerations, cuts, and gouges on the boys’ bodies were not inflicted by a knife, as Dr. Peretti and the prosecution contended, but were the result of postmortem animal predation. Because the wounds were postmortem, the experts concluded, Chris Byers did not die as a result of blood loss, as the prosecutors had argued, but instead had drowned, as had the other two boys. Unlike Peretti, who has never passed the exam for board certification in forensic pathology,169 the six experts who reviewed the evidence and Peretti’s reports are among the most eminent authorities in their fields. They included Dr. Werner Spitz, considered the “grandfather” of forensic science; Dr. Michael Baden, the former chief medical examiner for New York City; Dr. Vincent Di Maio, author of the textbook Forensic Pathology; Dr. Janice Ophoven, a pediatric pathologist; Dr. Robert Wood, the chief of forensic dentistry of the Ontario Forensic Pathology Service; and Dr. Richard Souviron, a forensic odontologist who was instrumental in the conviction of serial killer Ted Bundy. At a press conference held on November 1, 2007, to announce their findings, Dr. Spitz stated that “the injuries on the body surface of all three victims . . . including the emasculation of Chris Byers, were produced by animals, after death. None of the injuries were caused during life, and none were caused by a serrated knife, or any knife for that matter.” And Dr. Souviron said, “You don’t have to be a rocket scientist to look at these things and know that these are bite marks and that they occurred postmortem.” He added, “There are no stab wounds. If somebody’s going to use a knife, what do you do with a knife, you run around and scrape with it like this? I mean, come on. You stab with a knife. There are no stab wounds on these bodies.”170
According to these forensic experts, what the prosecutors insisted was a castration performed with a knife was actually a “degloving” caused by an animal. (This would explain the scrapings around Stevie Branch’s genitals, which the autopsy report had noted were consistent with teeth marks.171) Riordan summarized the scientists’ conclusions, saying, “It is well established in the medical literature that if . . . an animal pulls on the testes, the skin of the penis comes off like a glove, leaving the corpus of the penis on the body, which is exactly what happened in this case.”172 Dr. Spitz later said, “There is no question in my mind” that the genital mutilation “was from animal predation.”173 Further, “the injury in the groin area was almost bloodless or was bloodless for all intents and purposes. And showed ripping, chewing by a predator animal, a carnivorous animal, a large animal with evidence that this did not occur during the life of the boy. So there could not have been bleeding from
that source.” Spitz concluded, “I think the medical examiner was wrong. I think they all drowned.”174
3. JUROR MISCONDUCT
In recent years, substantial evidence of juror misconduct in the case has been discovered. Both notes taken by one of the jurors and statements by the jurors themselves make it clear that Misskelley’s inadmissible confession played a key role in the jury’s deliberations in the Echols/Baldwin trial.175 And although no juror admitted knowledge of the confession during the jury selection process, many, if not all, did know of it—a fact that Burnett himself acknowledged when he said during the trial that every juror had no doubt learned of the confession from media reports.176
Even more significant, Lloyd Warford, a prominent Arkansas attorney, revealed in a sworn affidavit to the Arkansas Supreme Court that the jury foreman, Kent Arnold, phoned him repeatedly while the trial was in progress, in violation of Burnett’s orders that the jurors not discuss the trial with anyone. According to Warford’s May 2008 affidavit, Arnold admitted that he had prejudged the defendants’ guilt on the basis of news reports of Misskelley’s confession177; misled the court about his opinions in order to secure his selection as a jury member; and planned to use Misskelley’s confession to sway the jury to return a guilty verdict.178 Arnold also stated that the prosecution had presented a “weak, circumstantial” case179 and that “if anyone is going to convince this jury to convict it is going to have to be me.” Warford concluded that “Kent Arnold saw himself as the real hero of this trial” because he had won the conviction by introducing the confession into the jury’s deliberations.180
Warford’s affidavit is supported by two other affidavits, both sealed because they contain the names of jurors. In one, Lyndall Stout, a former Little Rock television news anchor, states that Arnold “admitted to her in the spring of 2005 that he and his fellow jurors discussed” Misskelley’s confession.181 In the other, two Arkansas attorneys say that Arnold defended the jury’s consideration of the confession, saying he found the judge’s instruction to ignore it “unreasonable.” They also report that he stated that the confession was “a known event” and, moreover, that it was the “primary and deciding factor” in the decision to convict Echols and Baldwin since the evidence introduced by the prosecution in the trial was “scanty” and “extremely coincidental.”182
In a June 2008 article in the Arkansas Democrat-Gazette, Arnold publicly acknowledged that he may have asked Warford “questions about procedures during the trial”—something Burnett had expressly forbidden the jurors to do—and that the confession “may have been one” of the subjects on a “large list of pros and cons” the jury compiled.183 (A large flip chart that the jurors used during deliberations and a small chart in a juror’s notes prove that this inadmissible evidence was indeed on the list of pros and cons.184) He acknowledged no guilt or shame for these actions, however. Instead, he expressed frustration at the fact that the confession was ruled inadmissible. “Why not let the decision-makers have all that information?” he complained.185
Riordan has stated that “the jury foreman’s misconduct is shocking and convincingly proves that Damien Echols and Jason Baldwin could not possibly have had a fair trial. The jury foreman engaged in deceit and bias from his first contact with the court during jury selection, throughout the trial testimony, during jury deliberations and, finally, during the penalty phase after conviction, when Damien Echols was sentenced to death and Jason Baldwin to life without parole.”186 Representatives of both the Center on Wrongful Convictions of Youth and the National Association of Criminal Defense Lawyers seconded Riordan’s conclusion in their joint amici curiae brief, saying: “Echols’s conviction and death sentence have been gravely tainted by the jury’s consideration of the extraordinarily prejudicial—and extraordinarily unreliable—confession of Jessie Misskelley. If any reasonable juror were confronted today with evidence of the Misskelley confession’s unreliability, he would surely conclude that Echols is not guilty.”187
4. VICKI HUTCHESON’S PERJURY
In an interview contained in Amy Berg’s 2012 documentary West of Memphis, Vicki Hutcheson admits that her testimony at the Echols/Baldwin trial was false. But this is just the latest in a series of admissions that she lied on the witness stand. As early as April 1994, she began making self-incriminating comments about her testimony. After the trials ended, she contacted Ron Lax, a Memphis private investigator, several times about the case. She told Lax that Detective Ridge had promised that the police would “take care of her hot checks in return for her testimony,” a promise which, if it was indeed made, would provide her an additional motive to perjure herself beyond the $35,000 reward she apparently expected to receive.188 Then, in May 1994, she called Glori Shettles, who worked with Lax, and according to Shettles, “she stated she was thinking of calling Channel 13 News in Memphis to advise she had, in fact, perjured herself.” She did not make that call, nor did she admit to perjury when Stidham interviewed her that August about her conversation with Shettles, but later in the decade, she consented to an interview with Burk Sauls, one of the founders of wm3.org, who briefly posted a transcript on the website. (The posting made Hutcheson fear for her safety, she said, and so it was removed from the site.) In that interview, she said that “basically I said what the West Memphis police wanted me to say. And that was that I went to the meeting. The esbat meeting. It was all their stories.” She also said, “You know what I want to say more than anything? I want to say that I’m sorry. I just want to tell Jessie and Jason and Damien that I’m sorry.”189
It wasn’t until 2004, however, that Hutcheson followed through on her 1994 desire to admit her perjury. In an Arkansas Times interview, she said that “every word” of her testimony “was a lie.” She wanted to set the record straight, she said, because she could no longer carry the burden of being responsible for the conviction of three innocent men. Hutcheson, who was being investigated for hot checks and credit card fraud at the time of the murders, said she had felt “scared to death” by the police and that they told her what to say during their taped interviews with her. “It was like this: I was either going to say exactly what they needed—or else. ‘We’re going to make this easy on you, Victoria, and you’re just going to say exactly what we need or things can get rough on you. You could be implicated in this murder. You could lose your son.’” She said the detectives would turn off the tape if she said something they didn’t want her to say and tell her, “No, that’s not the way it happened, Victoria. You come up with something better.” She also said that the esbat story was dreamed up by Jerry Driver at a meeting detectives held with her. In addition, she refuted the police’s claim that their secret recording of a conversation she had with Echols and Misskelley in her home was inaudible. “The quality of the tape was excellent. You could hear Jessie, you could hear me, you could hear my roommate Christy. You could hear Damien excellent because he was sitting right next to the lamp” where the microphone was hidden. Neither Echols nor Misskelley said anything incriminating on the tape, she said. The police later claimed the tape had been lost.190
Hutcheson repeated her statements in a sworn, videotaped affidavit to Nancy Pemberton, Misskelley’s private investigator, in 2004, and this affidavit was entered into evidence at Misskelley and Baldwin’s 2009 hearing for a new trial.191 On August 14, 2009, Hutcheson attended the hearing and said she wanted to take the stand to set the record straight. Burnett informed her that there is no statute of limitations on perjury in Arkansas, so if she testified she could be found guilty of a class C felony. She requested immunity, but it was denied, an act that suggested the State was more interested in enforcing its perjury laws than in correcting an injustice that might cause innocent men to be imprisoned for life or executed. As Leveritt commented, “If there was any lingering doubt, that act erased it: Arkansas officials are not interested in either truth or justice in this case. They care only about preserving the ill-gained convictions.”192 Given the likelihood of a felony convict
ion for perjury, and a long prison term, Hutcheson decided not to testify at the hearing.
5. MICHAEL CARSON’S PERJURY
Like Hutcheson, Michael Carson also recanted his testimony against Baldwin. Interviewed in Berg’s West of Memphis, he apologizes to Baldwin and blames his lies on LSD and other drugs he was taking at the time.193 But even if he had not recanted, substantial evidence has surfaced since the trial that he lied on the witness stand. Danny Williams, the former counselor who warned the prosecutors that Carson was about to commit perjury, wrote to Baldwin shortly after Christmas in 1994, stating that “every word” of Michael’s testimony came from him. “We were discussing the case in a meeting,” he wrote, “and I told him what people were saying about the victims and about what was allegedly done to the bodies. This young man then went to the police and stated that you had confessed these details to him while [you were] in detention together.”194
Furthermore, in a May 29, 2008, Writ of Error Coram Nobis, Baldwin’s attorneys reported that their investigators had “interviewed all available staff or detainees who were in the facility with Baldwin and Carson (a total of approximately 10 persons)” and “none could corroborate Carson’s story.” What’s more, Joyce Cureton, who was the facility’s unit supervisor at the time, said, “There was only one log entry of Baldwin and Carson being together and this was under staff observation.” She also “reported that she was actually told by law enforcement personnel to leave town at or near the time that she might have been called as a witness for the defense.” And in a May 30, 2008, Petition for Writ of Habeas Corpus and Motion for New Trial, Baldwin’s attorneys reported that when Cureton was asked to speak on his behalf during sentencing, she “was told by the sheriff that she should not be in court.” As this evidence indicates, law enforcement officers put pressure on an employee of the detention facility in order to prevent her from testifying to her belief that Carson’s testimony was false.195 If she and Williams had been allowed to testify, the jury might well have discounted Carson’s testimony and Baldwin might never have been convicted.
Life After Death: The Shocking True Story of a Innocent Man on Death Row Page 37