by Greg Day
The Petition
Finally, on October 29, 2007, after three years of preparation by Dennis Riordan and his legal, investigative, and forensics teams, Damien Echols filed his second amended writ of habeas corpus with the Eastern Arkansas District Federal Court. Here is where hundreds of thousands of dollars—perhaps millions—had been spent and where he could finally present to the court evidence in support of his claim of actual innocence. He would assert that for the past fourteen years, he had been wrongfully imprisoned for the murders of Christopher Byers, Stevie Branch, and Michael Moore. The DNA results were back from the lab at last, the forensic experts and investigators had submitted their reports, and the lawyers had assembled their case. The petition, officially titled Echols v. Norris, made the sweeping claim that “every iota of the state’s evidence is destroyed or gravely weakened by the new evidence presented in support of this petition.”
Unlike many habeas corpus petitions, Echols was petitioning the court with a claim of “actual innocence.” He would not be arguing his case from the standpoint of procedural error on the part of the lower courts, resulting in a violation of his constitutional rights, but rather with the assertion that the evidence collected by the defense would show that he was actually innocent of the crime for which he had been convicted. Stated another way, presented with this new evidence—along with all of the old evidence, it turned out—a jury of reasonable men and women would be unlikely to convict him were he to be retried. Dennis Riordan called this a “quirk” of federal appellate law, a filing based on a claim of actual innocence. Quirk or not, it represented Echols’s best chance to date of obtaining a new trial. The petition itself ran to some two hundred pages with more than fifty exhibits, five of which were sealed affidavits from jurors and others giving testimony regarding the most damaging of the claims, those of jury misconduct.
Summary of the Evidence
First, a mistrial should have been declared, Echols claimed, because, “despite the importance of insulating the Echols-Baldwin proceeding from any taint of the Misskelley statement . . . a reference to the [Jessie Misskelley] statement was injected into the Echols trial through a prosecution witness, Detective Bryn Ridge.”
In the original trial, Ridge was questioned by Echols’s attorney Val Price regarding the recovery of the “sticks” that the state had introduced into evidence as possible murder weapons. These sticks had not been recovered from the crime scene until after Misskelley’s June 3, 1993, confession to police, when he stated that Echols and Baldwin had hit the victims with “sticks and stuff.” This had caused police to return to Robin Hood Hills and search the crime scene again. When Price asked Ridge if he had put the sticks into evidence at the time the bodies were recovered, Ridge answered, “No, sir. I didn’t take this stick into evidence until the statement of Jessie Misskelley in which he said a stick . . .”
At this point Price jumped from his seat and shouted, “Your Honor! Move for a mistrial!” Over strenuous objections from Price and Paul Ford, Judge Burnett denied the motion, declaring that an admonishment to the jury to disregard the statement would be sufficient. This would become a part of the jury misconduct allegations, though it is possible that Price’s cross-examination was deliberately designed to evoke the damning statement by Ridge. Whatever Price’s intentions were—the judge believed that the question had “invited” the response—Burnett refused to grant both defense motions for a mistrial trial, stating, “I don’t think there’s a soul up on that jury or in this courtroom that doesn’t know that Mr. Misskelley made a statement.”
Next, under a new Arkansas law, Echols introduced DNA evidence that he claimed excluded himself, Baldwin, and Misskelley from the list of possible donors of samples taken from the crime scene. Echols had begun this process back in July 2002 with the filing of a motion for forensic DNA testing that would compel the court to have DNA samples previously tested with RFLP and PCR methods retested with newer technology using the current STR (short tandem repeat) testing. Some of the evidence was tested for mtDNA, which could exclude Echols from the group of potential donors. Among the items to be retested were hairs recovered from the victims, fingernail scrapings, articles of clothing from the victims that were stained with what was thought to be semen, and perhaps most importantly, hair samples found at the crime scene. The original motion to have evidence subjected to DNA testing was filed on behalf of Echols by attorneys Barry Scheck of New York (working with the Innocence Project), Edward Mallett of Houston, and Al Schay of Little Rock. The order to have the selected samples of DNA tested was finally issued in June 2004. As stated previously, the mtDNA testing could not exclude Terry Hobbs from the hair found in the ligature binding Michael Moore or David Jacoby from the hair found on the tree stump. Most importantly to Echols, however, was the fact that all evidence tested did exclude him, Baldwin, and Misskelley as donors.
Perhaps most significant were the findings of the pathologists that postmortem animal predation had caused the wounds to the victims, rather than knives, as the prosecution alleged at trial. The animal predation theory, if accurate, destroyed the Misskelley confession. If there were no knife wounds present on any of the victims, then Misskelley could not have witnessed the killings in which he implicated himself, Baldwin, and Echols. How could the original pathology team who performed the autopsies on the three boys have mistaken animal bites for knife wounds? Of course, the original team had access to the actual bodies, whereas the new defense experts had to make do with pathology reports and photographs. Still, these men, along with pediatric pathology consultant Janice Ophoven, an expert hired by the Baldwin team, represented some of the best and most experienced in their fields. Could they all be mistaken or—dare we ask—bought? All the forensic experts, to a person, agreed with the animal predation theory. Spitz said, “When these [autopsy photographs] first came to me, I couldn’t understand what this issue was all about because it was so obvious that these are animal product . . . It took maybe seconds [for me] to make that observation.” He also noted that animal claw marks were “obvious” and not consistent with a knife or any other weapon.
Possibly the most startling claim, and most damning to the prosecution’s case, was the determination by Dr. Robert Woods, supported by Spitz, that the genital mutilation suffered by Christopher Byers—the penile skin “degloving” from the shaft, with the complete removal of the testes—was due to animal predation as well. The Misskelley confession had made very specific reference to this injury, allegedly inflicted by Jason Baldwin. At trial, Frank Peretti had brazenly asserted that the injuries had been made with superhuman surgical precision, admitting that he himself would have had difficulty simulating the injury in operating room conditions. It must have required a suspension of belief for the juries to accept the means and motive for this mutilation; why “surgically” deglove the skin of a victim’s very small penis when, according to the Misskelley confession, there was so much chaos going on? Why—and how—would three teenagers perform such a difficult yet meaningless act? The trial jury also apparently bought into some loosely knit motive involving ritual killing that included genital mutilation.
Dr. Richard Souviron was of the same opinion as Spitz regarding the nature of the injuries. “You don’t have to be a rocket scientist to see [that] these are animal bites and that they occurred postmortem.” When he addressed the injuries allegedly made by the “lake knife,” or a knife like it, Souviron was blistering in his attack on Peretti and the prosecution. “[How can you] look at the serrations on the back of that knife and see these marks [on the victims’ bodies] and say that the back end of that knife made these marks? I mean, give me a break. That is the most ridiculous statement that I have ever heard anybody make, and to sell that to a jury is unconscionable.”180
All the experts agreed not only on the likelihood of postmortem animal predation causing most of the wounds to the skin but also that there was no indication of sexual abuse—no forced oral or anal sex—to any of the three victi
ms. This latter assertion was also important, since in his confession Jessie Misskelley had made allegations of rape (“Damien and Jason was screwin’ ’em and stuff”) and forced oral sex, and the opinions of the experts rendered those allegations false. Dr. Peretti had stated at trial that anal penetration of one or more of the victims was “possible,” which was contradicted by the findings of Bode Laboratories, which found no trace of semen—or blood—on any of the boys’ clothing. The absence of blood was significant because Misskelley had stated that the attacks on the boys had begun before their clothes had been removed. If this were true, some amount of blood should have been present on the boys’ clothes. Echols’s petition made it clear that Misskelley’s confession was what defense expert Dr. Richard Ofshe had called it years earlier—false and coerced.
As far as the state’s theory of motive—satanic ritual homicide—John Douglas had this to say in his report: “In all my twenty-five years of investigative experience in the FBI, and after eleven years as a private consultant to prosecutors and defense attorneys in a variety of cases, I have yet to see a single homicide case which was determined to be a satanic ritual homicide. Perhaps this will be my first.” Dr. Spitz concurred. He saw no element present that would indicate ritualistic homicide of any kind. The writ took exception with the lower court’s acceptance of Dr. Dale Griffis as an expert in the area of the occult. Griffis’s degree had been obtained without any classes actually being taken, and Echols claimed that absent any reliable evidence that he was an expert, Griffis should not have been allowed to testify.
The issue of excessive pretrial publicity, particularly the printing of the Misskelley statement in the press, had loomed large over both trials, and it was addressed now in Echols’s petition.181 Although West Memphis municipal judge William P. “Pal” Rainey had ordered all court documents sealed—an order challenged unsuccessfully by the Memphis Commercial Appeal—much damage in this area had been done, so much so that the writ claimed it could not be adequately set aside by a simple “admonition limiting the statement’s admissibility to [Misskelley] alone.”182 There was also the issue of Detective Gary Gitchell’s press conference statement, where he publically and knowingly exaggerated the strength of the case against the suspects. The case against the three, he told reporters, was “eleven” on a scale of one to ten, when Gitchell knew this was far from the truth.183
Echols also raised several charges of juror misconduct, asserting that the voir dire process had been ineffective in assuring Echols of twelve unbiased jurors. During their deliberations, the Echols/Baldwin jury used a “T-chart” display board as a visual aid in their deliberations. Among the items or factors considered by the jury were such pieces of evidence as the lake knife found behind Baldwin’s trailer, the statement of the “softball girls” (who allegedly overheard Echols make an admission of guilt), the fact that the defendants “wore black t-shirts,” and an item that had been blacked out. Years later, Tom Quinn, an investigator for the Baldwin team, located a juror (Juror 7) who had taken “compendious” notes, including an unadulterated facsimile of the original display pages. Toward the bottom of the juror’s notes, the item that had been crossed out on the Echols side of the chart was “Jessie Misskelley Test Led to Arrest.” On the Baldwin side, the chart read, “J. Misk. State.” The petition further identified specific problems with individual jurors. One juror stated that his father had given him details of the case during the trials and that the juror believed that there were supporters in the gallery capable of killing him. Another juror claimed that she had decided the guilt of the defendants prior to closing arguments.
One of the more serious allegations of jury misconduct, however, centered on its foreman, a Jonesboro realtor named Kent Arnold. In 2005, Arnold had a conversation with a TV reporter from Little Rock, during which he admitted—or was “tricked” into saying, as he claims—that he and his fellow jurors had considered and discussed the confession of Jessie Misskelley during their deliberations. The reporter, Lyndall Stout, entered an affidavit that was promptly sealed by the court because it mentioned Arnold—“juror number four”—by name. Another affidavit was entered by a nonjuror, Lloyd Warford, who acted as Arnold’s business attorney.184 Warford said that Arnold had discussed the case with him before, during, and after the trial, and this affidavit was also sealed. Echols’s claim of ineffective assistance of counsel, which the lower court (Judge Burnett again) had denied under Arkansas Rule 37 back in 2001, was raised again. Among the conflicts listed was Echols’s contract with HBO, which he claimed he had entered into at Price’s urging. Price wanted to “get the trial over with” prior to the release of the film, fearing the impact it would have on the jury were they to inadvertently view it or hear of it from others. (The fact that the trial was the film made this an unlikely claim. The trial would necessarily have to end in order for the film to be completed. At the trial’s conclusion, however, the producers agreed to wait until September—six months—to release the film, presumably to allow for post-trial hearings to be heard.)
Two issues with prosecution witness Michael Carson were raised: first, that his testimony, which was based on allegedly false and uncorroborated statements made to him by Baldwin, was unduly prejudicial toward Echols, and second, that Carson had been previously represented by Val Price in a juvenile matter. Price had not disclosed this representation to his client and did not cross-examine Carson at trial, thus denying Echols the chance of adequately confronting—and discrediting—his accuser, since Price would have had knowledge of Carson’s criminal history.
Echols further claimed that Price was laboring under another conflict of interest in that Price had once represented a business partner of John Mark Byers in a civil matter. The petition held that although Price had questioned Byers on the stand, his “divided loyalties” had prevented him from “actively and zealously questioning and impeaching Byers [at Echols’s trial] on all relevant matters, including the full history of Byers’s criminal past and violent conduct; Byers’s medical condition, including his affliction with brain tumors which, as trial counsel knew, could be associated with violent and criminal conduct; and Byers’s involvement in the civil case in which counsel represented Byers’s co-defendant.” This claim was probably the weakest one in the petition, and the state didn’t even respond to it.
The remainder of Echols’s claims of ineffective assistance of counsel were related to Price’s failure to hire expert witnesses, failure to seek a second change of venue, failure to move for a continuance (to allow publicity to die down, as if it ever would have), and failure to adequately discredit occult “expert” Dale Griffis and his unreasonable introduction of testimony at sentencing from defense expert Dr. James Moneypenny, who testified during the penalty phase as to the mental health of Damien Echols.185
There were other issues involving the jury. According to the defense, sealed affidavits filed with the petition proved that at least seven of the sitting jurors had admitted during voir dire that they had heard, seen on TV, or read in the newspapers details of the case, including specifics of Jessie Misskelley’s statement. Moreover, the accepted jurors had been further influenced by the statements of those who were excused, most of whom were rejected due to their exposure to excessive pretrial publicity. Since voir dire is normally not conducted individually, even if a prospective juror had not heard details of the case—which was next to impossible—he or she would have gotten an earful from those who were excused for cause, and this was another issue put forth in the writ.
Meet the Press
What had to rank as one of the most significant events for the Free the West Memphis Three movement—save for the convicts’ eventual release from prison—took place on November 2, 2007, when San Francisco attorneys Dennis Riordan and Don Horgan hosted a press conference in Little Rock to lay out the new evidence in the case for the media.
The victims’ families had been brought together several days earlier in Memphis at the offices of Inquisitor, Inc
., to be given a briefing prior to the press conference (which only Mark Byers and Pam Hobbs attended). At the private meeting, Echols’s attorneys and forensic experts sought to sell their theory of the crime to a group of potentially nonsympathetic listeners, though as it turns out, by the time of the Memphis meeting, Mark Byers was convinced. Pam Hobbs was waffling at the time. Todd and Dana Moore had believed in the guilt of the three since the convictions, and nothing was going to change their minds. Their absence from the meeting surprised no one, nor was the absence of Terry Hobbs unexpected.
The media press conference was held right on the heels of the filing of the Echols habeas petition and just prior to other media events devised to raise awareness and garner support for the expensive forensic, investigative, and administrative work needed to file and ultimately argue Echols’s case before the court. Present at the conference were representatives of each technical area of the petition. Riordan and Horgan presented the overview, replete with multiple assertions of Damien Echols’s “actual innocence.” Thomas Fedor of SERI explained the findings of the DNA analysis done on hair samples obtained from Terry Hobbs and David Jacoby, also emphasizing, as Riordan had, that none of the evidence tested linked Echols, Baldwin, or Misskelley to the crime scene. Forensic pathologist Dr. Werner Spitz and forensic odontologist Dr. Richard Souviron both addressed the numerous lacerations and other injuries found on all three victims. The prosecution, via medical examiner Dr. Frank Peretti, had insisted in 1993, and still maintained, that the cuts were knife wounds, possibly from the “lake knife” recovered by divers behind Jason Baldwin’s trailer.186 But Spitz and Souviron reaffirmed their opinions that the wounds were instead the result of “post-mortem animal predation.”