6. JODEE MEDFORD’S RETRACTION OF HER TESTIMONY
As mentioned earlier, Donna Medford, the mother of Jodee Medford, has signed a sworn affidavit stating that Echols’s so-called “confession” to her daughter at a softball game “was not serious” and that “neither she nor her daughter believes he committed the crime.”196
7. AARON HUTCHESON’S TAPED INTERVIEWS
There is now evidence that police ignored obvious evidence that Aaron Hutcheson did not witness the crimes. Police tapes of their interviews with him, tapes not made available at the time of the trial since Aaron did not testify, make it clear that news reports and people close to the investigation were the sources of the few facts included in his wild imaginings. In his first tape-recorded interview, conducted by Ridge on August 25, 1993, Aaron correctly reports that the boys were beaten, drowned, and submerged in the water (although he says their bodies were held down by bricks, not by sticks), then adds, “I heard that from the news.” He then goes on to say, “Diane, Michael’s mom, said that she seen his face and it had knife stabs on it.” Ridge apparently ignored not only these obvious indications that Aaron did not witness the murders but also his inaccurate description of how the boys were tied. As Tim Hackler pointed out in an October 2004 Arkansas Times article, Aaron “made the assumption most children or adults would make if they heard that someone had been hog-tied. He assumed the murderers had ‘put their feet together and their arms together,’” when in fact each boy’s wrists were bound to his ankles. Hackler concludes that “it would seem that the terrible way that the boys were actually tied up would make a lasting impression” on anyone who had witnessed it.197
According to Hackler, who interviewed the then nineteen-year-old, Aaron was not sure “whether he actually witnessed the murders or whether his mind was playing tricks on him during a traumatic period.”198 He was sure, however, that the police had “tricked” him into saying things that weren’t true and “messed with my words.” He also said he would like to become a lawyer to help people avoid the kind of injustice that took place in the West Memphis Three case.199
8. DEPOSITIONS IN TERRY HOBBS’S DEFAMATION SUIT AGAINST NATALIE MAINES
In November 2008, Terry Hobbs filed suit against Natalie Maines Pasdar (the married name of Natalie Maines) and the Dixie Chicks, whom he claimed had defamed him in letters on the Dixie Chicks website and MySpace page and in a speech at a December 2007 Free the West Memphis Three rally in Little Rock. As a result of the suit, attorneys for Echols, Baldwin, and Misskelley were allowed for the first time to obtain sworn depositions from both Hobbs and those who suspect him of the murders. Hill has stated that “Hobbs was required to defend his past behavior, his criminal record and his actions the night the children went missing. Under scrutiny, Hobbs’s stories became inconsistent and incoherent.”200 The witnesses accused him, under penalty of perjury, of threats of murder; physical and sexual assault of a neighbor; sexual abuse of his daughter, Amanda, and his son from his first marriage; physical abuse of Amanda, his stepson Stevie Branch, and his ex-wife Pam; drug abuse; and lying about his actions the night of the murders. They also discussed the fact that he was arrested for drug possession and convicted of aggravated assault after shooting his unarmed brother-in-law in the stomach (for which he was sentenced to time in the workhouse and probation).201 The suit was eventually dismissed and the judge granted Maines a summary judgment in her favor and ordered Hobbs to pay her $17,590.27 for legal expenses.202
9. AFFIDAVITS FROM TERRY HOBBS’S NEIGHBORS
Suspicions that Terry Hobbs may have been involved in the murders were heightened in October 2009 when three of his former neighbors presented sworn affidavits to the Arkansas Supreme Court stating that they saw the three boys with Hobbs at approximately six-thirty p.m. the day they were killed, making him the last known person to have seen them alive. The neighbors, who lived three doors from Hobbs and were never interviewed by police after the murders, came forward with their statements after learning that Hobbs had denied seeing the three boys the day they were murdered. Hobbs made this claim under oath in a July 21, 2009, civil deposition prompted by his suit against Natalie Maines. Hobbs was asked, “It’s your testimony that you did not see Stevie Branch at all the day of May 5th of 1993, correct?” and he answered, “Correct.” When he was asked, “Did you see any of the three boys that day?” he answered, “No, I did not.”203
In her affidavit, neighbor Jamie Clark Ballard stated:
Between 5:30 p.m. and 6:30 p.m., I saw Stevie Branch, Michael Moore and Christopher Byers playing in my backyard. I am absolutely, completely and totally positive that I saw Terry Hobbs hollering at Stevie, Michael and Christopher to get back down to the Hobbs house at approximately 6:30 p.m. If Terry Hobbs said he did not see Stevie Branch, Michael Moore or Christopher Byers on May 5, 1993, he is not telling the truth. I know for a fact that Terry Hobbs saw, was with and spoke to Stevie, Michael and Christopher on May 5, 1993.204
Sworn statements from Brandy Clark Williams, Ballard’s sister, and their mother, Deborah Moyer, corroborate her testimony.205
10. AN FBI PROFILER’S ASSESSMENT OF THE EVIDENCE
As an October 11, 2009, motion prepared by Echols’s attorneys notes, “Hobbs was never questioned by police during the original investigation of the crimes, despite the fact that the lead detective in the investigation of the murders [Gary Gitchell] has conceded both that when a child homicide occurs, police should always consider the parents of the child as potential suspects, and that it is ‘statistically proven that homicide victims are usually the result of family, close friends, [and] known acquaintances.’”206
At the request of Echols’s defense team, Special Agent John Douglas, a criminal profiler who was chief of the FBI’s Investigative Support Unit for twenty-five years, interviewed Hobbs twice in 2007. Douglas reported that “I had one interview where he was very, very credible because I didn’t have any background information on him. But then five days later, when we get this more detailed information, specific information, I talked to a total liar. . . . He’s a total liar, the guy I’m talking to now is being confronted with his lies, and it’s a totally different type of bird. The person responsible for this crime can look at you right in the eye, can look at a camera and say ‘I didn’t do it’ because he’s a psychopathic personality. There is no remorse.”207
After analyzing all of the case evidence, Douglas concluded, “I would say put him on the front burner.” He explained that “it was pretty easy . . . to define this case as Personal Cause Homicide. This is not a homicide . . . perpetrated by a stranger. The person responsible for this crime . . . knew these victims relatively well,” and “the initial intent . . . was not to kill but to taunt and to punish.” However, the killer lost control, perhaps because of “comments made by one of the children,” and then “went beyond just the taunting, the teaching these kids a lesson,” and killed them. The killer hid the boys, their clothes, and the bicycles so carefully because “he lives nearby” and wanted to delay the discovery of the crime so he would have time to establish an alibi. Teenagers aren’t “criminally sophisticated” enough to commit “crimes like this” without leaving substantial physical evidence, he added, so the killer was likely an adult “who’s been violent in the past, who’s violent now . . . and would also be violent in the future.”208 Since Hobbs was charged with physical and sexual assault in 1982 (the charges were dismissed when he agreed to undergo counseling),209 and charged with aggravated assault, fined, and given probation for shooting his brother-in-law in 1997,210 Douglas determined that Hobbs fit this profile.211
11. PAM HOBBS’S DISCOVERY OF HER SON’S POCKETKNIFE
According to an October 21, 2009, article by George Jared in The Jonesboro Sun, Pam Hobbs said that she found her son Stevie’s pocketknife in her ex-husband Terry’s drawer in 2002. Her father had given Stevie the pocketknife, she said, and he carried it with him at all times. The knife had not been among Stevie’s personal effects
after his murder, and she had always assumed that it had been taken by her son’s killer. She sent the knife, along with more than a dozen others from the drawer, to one of the defense lawyers rather than to the prosecutors because, as she said, she “didn’t trust the prosecution . . . because of the evidence that was not presented at the trials.”212
Pam Hobbs also told Jared that she had suspected Terry Hobbs from the beginning. Her sister Jo Lynn McCaughey also told Jared she had suspected him from the start, pointing out that he had “repeatedly washed already clean clothes and other items around the house” the night Stevie vanished.213 Another sister, Judy Sadler, has likewise reported that Hobbs uncharacteristically washed curtains, bed linens, and items of clothing that night.214 Hobbs has denied these claims.
Pam Hobbs is not the only parent of a murdered child who believes Terry Hobbs may have been involved. According to another of Jared’s 2009 Jonesboro Sun articles, “John Mark Byers has also said he thinks Terry Hobbs was involved with the murders, and he now adamantly supports efforts to free the so-called ‘West Memphis Three.’”215 “They’re innocent,” Byers said. “They did not kill my son.”216 As he told People magazine, “I was fooled for 14 years. But now I know an injustice was dealt upon these boys by the State of Arkansas.”217 Also, Rick Murray, the biological father of Chris Byers, has expressed his belief that the West Memphis Three were wrongly convicted. In a letter posted on wm3.org, he said, “I want to know who murdered my son. . . . I don’t want three innocent people to suffer for something they didn’t do.”218
12. “THE HOBBS FAMILY SECRET”
The most recent new evidence was not discovered until December 11, 2011, when the evidentiary hearing was scheduled to be in session. As West of Memphis reveals, three witnesses came forward after watching a 48 Hours special on the case and testified under penalty of perjury that Michael Hobbs, Jr., the nephew of Terry Hobbs, told them his uncle was responsible for the murders. All three witnesses subsequently passed polygraph tests. According to one witness, “Michael [Jr.] said to us, ‘You are not going to believe what my dad told me today. My Uncle Terry murdered the three little boys.’ According to Michael, his dad called this ‘The Hobbs Family Secret,’ and he asked us to keep it a secret and not tell anyone.”219 A second witness said that Michael Jr. told him the same thing the winter before while they played pool in his basement and that “Michael was dead serious when he said this.”220 The third witness said that when he was at Michael Jr.’s house in 2003 or 2004, he and Michael stood at the top of the stairs and listened to Michael Hobbs, Sr., and Terry Hobbs talking about the murders in the basement. He said, “I heard two men talking. One appeared to be very upset, even crying, and he said, ‘I am sorry, I regret it.’ The other man was trying to console him and said, ‘You are in the clear, no one thinks you are a suspect, those guys are already in prison.’”221
All of the evidence and testimony recounted above strongly supports the claims of innocence of the West Memphis Three, and strongly points to a possible suspect for further investigation. But none of this new information would be presented at the evidentiary hearing scheduled for December 2011. Before the evidence and testimony could be heard, the State agreed to release the West Memphis Three, and on August 19, 2011, the three men walked free under highly unusual and controversial circumstances.
The Alford Plea and the Release of the West Memphis Three
Shortly after the Arkansas Supreme Court ordered the circuit court to hold an evidentiary hearing, Stephen L. Braga took over Riordan’s position as the defense team’s lead attorney. Braga asked Little Rock attorney Patrick Benca, another new member of the defense team, to meet with Arkansas attorney general Dustin McDaniel and ask the State to agree to skip the evidentiary hearing and hold new trials instead. Braga and Benca believed it was virtually a foregone conclusion that Judge Laser would order new trials on the basis of juror misconduct alone, and they believed the prosecution, like the defense, would prefer to avoid presenting the same evidence once for Judge Laser at the evidentiary hearing and again for jurors at new trials. Benca met with McDaniel on August 3, and although McDaniel had always staunchly defended the convictions and vehemently opposed the motion for new trials, he agreed to raise the issue with David Raupp, the deputy attorney general, and Scott Ellington, the prosecuting attorney for Arkansas’s Second Judicial District, who had been assigned to argue the State’s case at the evidentiary hearing. At a second meeting two days later, Benca suggested that they avoid not only the hearing but the trials as well and, through negotiation, simply resolve the case. McDaniel said, “If you’re interested in resolving it, I can make arrangements for you guys to present your argument to Mr. Ellington.”222
On August 9, Braga, Benca, and Blake Hendrix and Jeff Rosenzweig, the Little Rock attorneys for Baldwin and Misskelley, respectively, met with McDaniel and Ellington and their teams. Braga and Benca proposed that “the state and three defense teams not only agree to new trials, thereby avoiding the hearing, but that they also avoid the risks of new trials . . . by negotiating a plea agreement to be entered as soon as the new trials were ordered.”223 New trials posed serious risks to both sides. The defense was worried that jurors might once again be swayed by Misskelley’s false confession, and the prosecution feared that the men would be acquitted224 and the State would become liable for wrongful-conviction suits that could cost it as much as $60 million.225 What Braga and Benca proposed, specifically, was “an Alford plea with time served.”226
The term “Alford plea” derives from the U.S. Supreme Court’s 1970 ruling in the case North Carolina v. Alford, which involved a man who, in order to avoid the possibility of a death sentence, pled guilty even though he insisted that he was innocent. The Supreme Court ruled that a defendant could plead guilty while maintaining innocence if that plea was in his best interest.227 Hence the Alford plea is also known as a “best-interest plea.” It allows a defendant who has reason to believe he might be convicted despite his innocence to register “a formal claim neither of guilt nor innocence” while accepting “the ramifications of a guilty verdict,” all in order to avoid the possibility of receiving a more severe punishment if he pled innocent and were convicted.228 As Riordan has said, an Alford plea is by its very nature oxymoronic: before it can be accepted, the judge must decide that there is sufficient evidence both to acquit and to convict the defendants.229 Because of its oxymoronic nature, an Alford guilty plea doesn’t resolve the question of guilt or innocence. In the words of Loyola Law School professor Laurie Levenson, “Alford pleas resolve things legally but leave a huge question mark in the air about what really happened.”230
The State agreed to the deal Braga and Benca proposed, provided Judge Laser and all three of the imprisoned men approved the deal. Ellington approached Laser ex parte—i.e., outside a formal hearing—and Laser accepted the plan. Both Echols and Misskelley also immediately accepted it. Baldwin, however, initially refused.231 When Blake Hendrix approached him with the deal on August 10, he “turned it down flat, saying he didn’t want to be saddled with convictions for crimes he didn’t commit.” Hendrix has noted that Baldwin’s refusal was a clear sign of his innocence. “Rejecting an offer that let him immediately get out of jail? That’s one of the for-surest signs that he’s innocent,” he said.232 On August 16, however, Baldwin agreed to abandon his principled stand after he learned that Echols’s health was deteriorating because of “the conditions and abuse he suffered on death row.” As he said, “Once I realized that this could save Damien’s life, it was a no-brainer.”233 But he continued to be angry about having to accept the Alford plea as a condition for release, as did Echols and Misskelley. On the day the three men were released, he said, “This was not justice. In the beginning we told nothing but the truth—that we were innocent—and they sent us to prison for the rest of our lives for it. We had to come here and the only thing the state would do for us is to say ‘Hey, we will let you go only if you admit guilt,’ and that is not justic
e any way you look at it. They’re not out there trying to figure out who really murdered those boys, and I did not want to take the deal from the get-go. However, they are trying to kill Damien, and sometimes you just got to bite the gun to save somebody.”234
After Baldwin approved the deal, the legal teams for both the defense and the prosecution spent the next two days preparing the complex Alford plea agreement that would allow the three men to be released in exchange for pleading guilty to reduced charges (while legally maintaining their innocence) and agreeing not to sue the State for false arrest and imprisonment. Echols and Baldwin, who had been convicted of capital murder, would plead guilty to three counts of first-degree murder, and Misskelley, who had been convicted of one count of capital murder and two counts of first-degree murder, would plead guilty to one count of first-degree murder and two counts of second-degree murder.235
Life After Death: The Shocking True Story of a Innocent Man on Death Row Page 38