We arranged a series of what we refer to as “pretext calls.” I came over to David’s house and coached him on what to say to Terry on the phone. We wanted to know how Terry would react if he felt his “lifeline” were being severed; in other words, what would he do if he felt he was losing his only alibi.
David called him sounding extremely nervous. There was this former FBI man named Douglas snooping around and asking a lot of pointed questions. He told Terry I was pointing out discrepancies in the timeline that made it clear the two of them were not together all evening and that their stories did not match up.
I was breaking him down, David told Terry. Terry immediately replied that he didn’t have to talk to me and followed it with a string of expletives. “I wouldn’t give him the time of day”; “Tell him he can go to hell”; “Tell him to take a hike”; “Tell him, ‘Look, don’t come ’round here again’ ”; “I’d tell him to hit the road”; and “John Douglas is a jerk and a half,” was some of his advice.
Even though these were pretext calls, as I listened next to him, I could tell David was speaking from his own core of truth. “I felt like I could have done more that night,” he told Terry.
While Terry said nothing to incriminate himself, he tried hard to give David confidence, to boost his belief that everything had been okay and proper between the two of them that night and reassure him that everything was all right. “We weren’t anywhere close to the crime scene.”
David kept saying how he was afraid there would be a new trial and that he would have to testify. Terry counseled him that he didn’t have to talk to anyone and if he was asked he should just say that he couldn’t recall.
And anyway, Terry emphasized, there wasn’t going to be a new trial.
“The police know who done it. They’re sitting in prison.”
CHAPTER 26
A DEAL WITH THE DEVIL?
The events that took place—and those that didn’t—between 2007 and 2011 were difficult to endure for those involved, but relatively straightforward to summarize.
Not long after the press conference, at a rally supporting the West Memphis Three, the Dixie Chicks lead singer, Natalie Maines, commented on some of the recent findings and suggested that Terry Hobbs should be considered a suspect. She posted a similar comment on the band’s website.
In September 2008, Judge David Burnett maintained his near-perfect record of consistency against the West Memphis Three by denying a defense request for a new trial based on DNA testing and what had been learned about the animal predation to the bodies. Burnett ruled the evidence “inconclusive.”
On November 25, 2008, Terry Hobbs filed suit against Natalie Maines, under her married name Pasdar, claiming defamation. Honorably, Natalie insisted on defending the suit. In July 2009, depositions were taken, including one from Mildred French that brought into the open the assault charge that had so thrown Terry during our meeting. He spent two days under oath and did himself no favors. Neither did the testimony of his former wife Pam or his friend David Jacoby, who contradicted his claim that they were together looking for the boys the entire evening. Stevie’s aunt Jo Lynn McCaughey swore that Terry had sexually molested Amanda and that shortly after the murders she had observed him uncharacteristically washing his own clothes. Other relatives described his regular and cruel mistreatment of Stevie.
In her own deposition in the lawsuit, Pam Hobbs said:
After the murders my sister Jo Lynn McCaughey and I found in Terry’s nightstand a knife that Stevie carried with him constantly and which I had believed was with him when he died. It was a pocketknife that my father had given to Stevie, and Stevie loved that knife. I had been shocked that the police did not find it with Stevie when they found his body. I had always assumed that my son’s murderer had taken the knife during the crime. I could not believe it was in Terry’s things. He had never told me that he had it.
The picture that emerged, while not dispositive of murder, was pretty devastating.
On December 1, 2009, Judge Brian Miller, of the Federal District Court for the Eastern District of Arkansas, issued a summary judgment in favor of Natalie Maines Pasdar and ordered Terry to pay her over $17,000 in legal expenses. According to the Jonesboro Sun, Terry’s response was “I don’t give a damn what the judge says, I’m not paying the Dixie Chicks a thing.”
In November 2010, in response to an appeal of Judge Burnett’s ruling, the Supreme Court of Arkansas ordered the lower court to hold an evidentiary hearing to determine whether the now-available DNA evidence might reasonably have exonerated the defendants and whether a new trial should be held. Judge David Laser, of the Second Judicial Circuit, was appointed to replace Burnett, who had been elected to the state senate. By that point, Stephen Braga had begun representing Damien. He was a prominent and high-profile litigation attorney with the Washington, DC, office of the large international law firm Ropes & Gray.
And all the while, Damien Echols, Charles Jason Baldwin and Jessie Misskelley Jr. remained behind bars.
“It had literally gotten to the point where I’d been in prison half my life,” said Damien. “I literally could not remember what it was like to be free anymore. That’s when I started getting that desperate, hollow feeling. I could no longer even envision what it would be like to be out. It gets to the point when you can only see one way, and it goes on forever.”
“It was hard for me to hear Damien say things like that,” Lorri commented, “because I could always see the end. Every day, I knew that it was going to end—not to say that in that last year, that was the hardest year for me because we both knew it was so close and they kept pushing it off. You just have to make yourself stronger.”
Stephen Braga took over the lead role in Damien’s defense in December 2010. By that point, Damien and Lorri had developed the highest regard for him—a regard that I share and certainly continues to this day.
Also during this time, Damien Echols and Mark Byers exchanged written apologies for having accused the other of being a killer. Mark started wearing FREE THE WM3 T-shirts and attending rallies. What he wanted, he said, was what he had always wanted: justice for Chris and his two close friends.
The evidentiary hearing was postponed several times for administrative reasons, sending Damien, Lorri and the others on an emotional roller coaster. Each time the light at the end of the tunnel grew a little brighter, the tunnel stretched longer in front of them. Finally the hearing was set for December 2011, but they worried that the prosecution would somehow stall indefinitely.
There was another worry. Damien’s health had been steadily declining. Even if they won the hearing, the prospect of a year or more preparing for a new trial, finding unbiased jurors, the trial itself—all seemed daunting.
Facing the prosecution’s intransigence and knowing his clients were correct about Damien facing incarceration well into the future, even if they were successful, Braga agonized over a way to bring the entire legal fiasco to a rapid end. The ultimate decision maker on the prosecution side would be Scott Ellington, the new prosecuting attorney for the Second Judicial District. Braga’s narrative of what happened is a fascinating and illuminating inside story:
As the defense prepared for the evidentiary hearing—a point at which considerable resources would have to be expended—Steve Braga’s local counsel Patrick Benca said he would soon be having his annual lunch with his law school classmate Dustin McDaniel, who happened to be the attorney general of the state. Was there anything about the case Steve wanted Patrick to bring up with him?
“Now, McDaniel’s office wasn’t prosecuting the case, but they were helping Scott Ellington. And we thought strategically that we would ask McDaniel if he would agree to dispense with the evidentiary hearing in December and just go right to a new trial. Why should the state of Arkansas have to pay twice? Why should the defendants have to wait twice as long? Clearly, there’s enough evidence for a new trial. Why don’t we just go right to it?”
McDaniel wouldn’t a
gree to that, but he was interested and perceptive enough to ask Patrick what the real bottom line was: What was he really after?
“And that made Patrick and me think, and what we really wanted was, we really had to get Damien out of prison. I mean, he was really suffering. And the thing that I don’t think a lot of people appreciate is that the death sentence makes a difference. If you can reach a certainty that he’s not going to be executed, that’s a big deal!”
Aside from the obvious stresses of living so long on death row and never knowing if or when he might face the lethal injection, Damien’s health was deteriorating significantly. His eyes were failing because of the perpetually dim lighting and poor nutrition, and he was not allowed outside into the sunshine. His mouth and jaw hurt all the time because of untreated injuries from guards having repeatedly smashed him in the face. And he had developed alarming symptoms of cardiovascular disease.
“So we went through Patrick and told McDaniel that we wanted to get our guy out. He said, ‘Well, if they’re willing to plead guilty, I’ll get them out in two weeks.’ ”
Braga didn’t want Damien and the others to plead guilty, because they weren’t guilty; and even if he were willing to go that route, he didn’t think he could get them to agree. But what about a nolo, he wondered.
Nolo contendere is an alternative to pleading either guilty or not guilty. However, it has the same effect as a guilty plea and is generally construed as an acknowledgment, if not an admission, of guilt.
Both Braga and Ellington were relative newcomers to the case and carried none of the potentially paralyzing emotional burdens of past history. Steve was hoping to open up some room for compromise.
“The message came back to us that they would accept a nolo plea.
“So then I decided after talking to Patrick and thinking about it, a nolo plea still might be a tough sell. But an Alford plea would be a step better—right?—because the way I look at it is a nolo plea, plus an affirmative manifestation of innocence. You get to state it on the record, and the world knows you’re proclaiming your innocence.”
In 1970, the U.S. Supreme Court heard the case of North Carolina v. Alford, in which Henry Alford pled guilty to second-degree murder in the shooting death of another man, even though he steadfastly maintained his innocence. In explaining his unusual plea, Alford stated, “I pleaded guilty on second-degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.... I’m not guilty, but I plead guilty.”
The High Court recognized the right of a defendant to plead guilty while not confessing and still asserting his innocence. It is an extremely arcane legal maneuver.
“I actually don’t expect them to accept the Alford plea. I’ve been doing this for thirty years—no one does an Alford plea. They say, ‘If you’re going to plead guilty, plead guilty. If you’re not going to plead guilty, go to trial.’ ”
Surprisingly, the prosecutors responded that they would consider the Alford, but only if all three defendants would agree. Clearly, the state was looking for a way out of the legal morass, but they didn’t want to be done with two and still have to try the third.
Damien said yes, and then Jessie agreed. But Jason balked.
For all the years he had suffered in prison, Jason remained as adamant as he had been when he’d originally rejected a plea deal. He said he would stay in jail the rest of his life if need be rather than admit to something he didn’t do.
Ultimately, though, Jason softened his position when presented with the facts of Damien’s health and the reality that if he didn’t go along, it would ruin the deal for everyone. In an act of great moral character and compassion, Jason agreed to take the Alford plea for the sake of his friend.
“To me,” said Stephen Braga, “Jason’s withholding of the Alford plea until literally the eleventh hour is one of the clearest indications that these guys are innocent, because anybody guilty would take it in a heartbeat.”
On August 19, 2011, Damien, Jason, Jessie and their attorneys appeared in a packed courtroom before Judge Laser. He vacated the previous murder convictions, heard from representatives of the prosecution and defense, and ordered a new trial. Then he asked each of the defendants to stand and made sure they each understood the proceedings and what they meant.
“Mr. Echols,” he asked, “how do you wish to plead in this case?”
In a voice that was measured and unemotional, Damien replied, “Your Honor, I am innocent of these charges, but I’m entering an Alford guilty plea today based on the advice of my counsel and my understanding that it’s in my best interests to do so, given the entire record of this case.”
Judge Laser asked the other two in succession and received similar responses. As had been agreed to by the parties, he sentenced them to time served—eighteen years and seventy-eight days—and released them.
After these moments of high legal drama, Judge Laser spoke from the bench, gracefully summing up the entire case over which there continued to be so much disagreement. One had the feeling that had Laser been the original presiding judge, the outcome might have been completely different, and almost two decades of nearly unimaginable trauma might have been avoided.
“I’m aware of the controversy that’s existed,” he began. “I’m aware of the involvement of the people in this case. I don’t think it will make the pain go away to the victim families. I don’t think it will take away a minute of the eighteen years that these three young men served in the Arkansas Department of Corrections. What I just described is tragedy on all sides. And I commend the people in the case that have assisted toward the end of seeing that justice is served to the best that we can do.
“Sometimes outside help is, in fact, a big help, and for those of you who have been participants in that regard here, I commend you personally and publicly for having done that.”
Lorri smiled with pride and relief.
For Stephen Braga, Dennis Riordan and the rest of the defense team, the Alford plea represented an act of grace, an inspired and humane solution to an ongoing and intractable miscarriage of justice that still had the potential to send his client to an early grave.
Without the deal, Braga told us, “It would be at least two and a half years or three years before there’d be closure. So you’d have to go through the following hoops: You’d have your December hearing. If we won that, the state had an opportunity to appeal, so they could have appealed up to the Arkansas Supreme Court. That would take a year or so. If we won that, it would come down to Judge Laser and we’d have a new trial. We’d have to win that before a jury of Arkansas citizens, who, to this day, remain pretty polarized in this case. My view of the world is it’s pretty clear what happened to these guys, that they were wrongfully convicted and they’re innocent. But there are a lot of people who don’t think that. And if you have a criminal trial and you don’t get everybody unanimously—one holdout—then you’ve got to do it again. And so the risks were just too severe. Nothing was going to happen in the short run, and I didn’t think Damien was going to survive.”
For the prosecution, in my view, the plea arrangement represented a deal with the Devil: a face-saving scenario that essentially indemnified them for the nearly two decades of suffering they had inflicted on three young men, and the denial of justice and truth to three dead boys and their loving survivors.
In what we can only hope was a statement of uninformed ingenuousness rather than cynical duplicity, Scott Ellington declared, “I have no reason to believe that there was anyone else involved in the homicide of these three children but the three defendants who pled guilty today.”
Come on, folks! Does anyone for one nanosecond believe that a responsible district attorney, under any circumstances, would let three men out of prison who, he honestly believed, had brutally slain three 8-year-old boys and denied it?
As Steve Braga told us, “It’s part of the calculus of the Alford plea—and this goes to my strategy and my discussions with Patrick and my selling it to Damien and thinking it all through—that if this works, what’s it going to look like? What’s the public going to say? Is the public going to say, ‘They pled guilty to get out, they’re guilty,’ which I don’t want, or is the public going to say, ‘They must be innocent because they never would have let them out if they thought they were guilty.’ And that’s what we concluded would happen, and that happened in ninety-nine-point-nine percent of the reactions. And I do believe that no true-believer prosecutor would have let these men walk out if he thought they were triple child murderers.”
Ellington got to the real heart of the matter a little later when he candidly told reporters, “When the [state] supreme court handed down this decision on November the fourth of last year, reopening issues of juror misconduct and all these other matters on the basis of new DNA, then that caused some troubles. And this judge was most likely going to grant a new trial. And if this judge granted a new trial, the defendants, most likely—I mean, we would do the best we could to put on the evidence—but most likely these defendants, to say the least, could very easily have been acquitted.”
Despite this rationalization, to his credit, Ellington did not glory in his three technical guilty pleas, but he explained his decision on the basis of: (1) terminating prolonged litigation, (2) avoiding another potentially prolonged appeals process, and (3) preventing a possible “civil lawsuit against the state that could have resulted in many millions of dollars.”
John Mark Byers wasn’t concerned about what it might cost his state when he told the press outside the courtroom, “This is not right, and the people of Arkansas need to stand up and raise hell because three innocent men are going to have to claim today that they’re guilty for a crime they didn’t do. They’re innocent. They did not kill my son and it’s wrong what the state of Arkansas is doing. And I’m sick of it, because the real killer is walking around free!”
Law & Disorder Page 35