by Greg Day
From a remote studio in Memphis, Mark Byers sat listening. At one point King asked, “If the West Memphis Three are innocent, as Damien Echols’ supporters claim, then someone had to have murdered the three boys.”
Mark didn’t even let the host finish the question. “Terry Hobbs. I don’t have any problem with saying his name. In my opinion, yes, I believe he is the perpetrator of this crime.” As to what he thought about Damien Echols’s fifteen years on death row, Mark said, “It’s the worst nightmare you could ever imagine. I know the nightmare that the three in prison feel, to be wrongly accused.”
When King asked Echols to comment on Mark’s support, Echols said, “I really do appreciate that. I appreciate everything he’s been expressing lately. I’ve heard him make comments like that several times on different local news stations, and I’ve heard people repeat that to me. And I really, really do appreciate that. It means a great deal.”
Mark was also interviewed by several local reporters for TV stations in Memphis, Little Rock, and Jonesboro, as well as by numerous newspapers. In one television interview with Stephanie Scurlock of CBS affiliate WREG in Memphis, he and Jacki appeared on the front porch of their home sporting brand new “Free the West Memphis Three” t-shirts. He told Scurlock that although it had taken him quite a while to reach his conclusion, “by looking at the evidence, and the facts that were presented to [him], [he had] no doubt that the West Memphis Three are innocent.” In an apparent inconsistency, Mark stated that although he’d had “question marks” for fourteen years, he had also truly believed that the three in prison were the ones responsible for the crime. He taunted, not for the first time, that he knew something that the media didn’t. “I believe it will be the story of the twenty-first century when this crime is totally uncovered . . . when you know what I know.” When asked if he could relate to “another name that has surfaced” in connection with the murders, Mark said, “I can’t imagine what it would feel like knowing you’re guilty of killing three children and that the hounds are on your tail.”
Mark’s transformation from a staunch believer in the guilt of the West Memphis Three to a hard-core supporter seemed rife with contradictions. Mark was claiming that he had “always had problems” with the trials and had had “question marks for fourteen years.” If that was true, he’d kept those questions to himself. No one who had heard Mark Byers speak over the years would have gotten the impression that he questioned anything. He was known for being the most outspoken of the victims’ parents when it came to the guilt of the three and had been involved in some very heated and public discussions with WM3 supporters over the years. He had nothing but praise for the police investigators and the prosecution team, believing that the right people had gone to trial and ultimately been convicted. He told a reporter outside the courtroom right after the Misskelley conviction, “It’s hard to think of how it would have gone any other way, but you never can tell with a jury of twelve that they could have found a verdict of not guilty.” Yet in interviews fourteen years later, he maintained that he had always stated that if the three were ever proven innocent, he would be one of the first to greet them as they were released from prison. In 2008 he said, “Melissa and I walked out of both those trials back in 1994 wondering how they were able to get convictions,” but in 1994, after the Misskelley verdict, Melissa had said that the WM3 were “three murdering bastards,” with Mark concluding, “One down, two to go.” Be that as it may, Mark took on the role of nouveau spokesperson for the Free the West Memphis Three movement. Likening himself to “an F5 tornado, a force of nature that cannot be controlled,” he said, “I am going full speed ahead for the freedom of the West Memphis Three.” Whatever their private feelings were, publically supporters welcomed Mark to their ranks, at least initially. Having a victim’s parent on their side was a nice plum to bring to the public, and Mark was at least more consistent than Pam Hobbs.
CHAPTER 7
Jason and Jessie
Then I saw Damien hit this one boy real bad.
—Jessie Misskelley’s confession
I’m innocent.
—Jason Baldwin to Judge David Burnett after being sentenced to life in prison
All but forgotten by the public during the hoopla surrounding the filing of Damien Echols’s habeas petition was the fact that the two other men who made up the West Memphis Three were languishing in the ADC. Echols was on death row, and his future was dire compared to the others. Also, the celebrity donations flowing into Echols’s support fund, though benefitting all three convicts, tended to highlight Echols in the public eye. But because Baldwin and Misskelley had filed direct appeals in a timely manner, they were still eligible to file appeals under Rule 37, charging their trial attorneys with ineffective assistance of counsel. Since all the evidence collected by the Echols defense team was “new,” they were able to use all of it in their own appeals. Finally, beginning in 2008, the two men had their day in court.
The courthouse at 511 South Main Street in Jonesboro is a new building, situated directly across from the building where Damien Echols and Jason Baldwin were tried and convicted in 1994. The old courthouse, built on the former site of the Malone Theater and dedicated in 1935, is still operating, a genuine Arkansas Historical Site, and proceedings there are often presided over by former prosecutor and now judge John Fogleman. A plaque outside the courthouse ominously quotes scripture, reminding visitors of the source of the court’s authority:
“For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil” (Romans 13:4).
With the exception of one day in September 2008, all of Baldwin and Misskelley’s Rule 37 hearings were held in the new courthouse—referred to as the “annex”—in Courtroom A, on the fourth floor. Foregoing wood paneling, the courtroom is instead bright, simple, and somewhat institutional. The walls are carpeted in light gray fabric, and at three quarters up the wall, a six-inch-wide dark gray stripe runs completely around the room. It’s a small room—ten hardwood benches seating about six or seven people each. The business side of the bar is tight for space, and the defense tables are clumped together in a way that often forces attorneys to cross the bar and travel through the gallery to get from the jury box to the podium on the other side. The limited floor space is often cluttered with boxes of evidence, audio and video equipment, easels for drawing or presenting evidence, and all manner of wires, cables, and plugs. This was to be the setting for the Rule 37 hearings of Jason Baldwin and Jessie Misskelley, originally scheduled for September 24-26 and September 29-October 1, 2008. In actuality, there ended up being four groups of hearings. In a case involving four defense attorneys, two assistants, and two investigators, as well as a bevy of high-profile expert witnesses—not to mention the state’s own docket of cases—scheduling conflicts were inevitable. Thus, the hearings were heard in multiple sessions between September 2008 and October 2009.
Unlike Damien Echols’s Rule 37 hearings conducted in 1998-99, the appeals for Baldwin and Misskelley were being heard together, despite their having been tried separately in 1994. As they were escorted into court—the first time either of them had been in court or seen each other in fifteen years—the difference in their demeanor was striking. Misskelley looked already beaten, downcast, and at least on the first day, nonresponsive to reporters’ inquiries or the calls from well-wishers on either side of the sally port (there were no hecklers). He was heavier than one would expect, given his fifteen-year incarceration (“the food [at Varner Unit] is pretty good,” he said). His head was clean-shaven, showcasing a circular tattoo acquired during his stay in prison.196 Baldwin, on the other hand, was smiling, standing straight—he had grown several inches in prison—and nodding at supporters. He replied to a question called out from the small crowd, saying only, “I’m feeling pretty good. Feeling hopeful.”
The first group of hearings wa
s designed to get at the heart of the matter—that is, the lack of criminal defense experience the defense attorneys had when they were tapped for the case and their failure to provide competent representation for their clients. Both Dan Stidham (attorney for Misskelley) and Paul Ford (attorney for Baldwin) took the stand, one contrite, the other defiant. As Jessie’s court-appointed trial attorney, Stidham had originally taken the case believing that he was handling a plea agreement. The Arkansas Public Defenders Commission has minimum requirements for the lead chair in a capital case. Among them are that the attorney must “have prior experience as lead counsel in no fewer than five jury trials of serious and complex cases where tried to completion, as well as prior experience as lead counsel or co-counsel in at least one case in which the death penalty was sought.” Neither Stidham nor Ford met those guidelines.
Stidham first attacked the state for its handling of his former client in trying to get a confession. He told the court that his client would say anything anybody wanted him to say, particularly when interacting with anyone he perceived as an authority figure. Stidham testified as to Misskelley’s suggestibility and said that whenever Jessie provided a detail that was inconsistent with the known facts of the case (as defined by detectives Gitchell and Ridge), they would stop the questioning and start over until they were able to record a confession without contradictions, though even the short portion that was taped had its share.
Stidham’s co-counsel, Greg Crow, testified that prosecutor Brent Davis pressured Misskelley to testify against Damien Echols and Jason Baldwin at their upcoming trial and did so without Misskelley’s attorneys present. (This situation eventually had led Stidham and Crow to file a motion that alleged, among other things, prosecutorial misconduct; Judge Burnett dismissed the motion on February 22, 1994.) Although it had been generally known that the state was trying to work a deal with Misskelley to testify against Baldwin and Echols in exchange for a sentence reduction, a specific number wasn’t made public because Misskelley eventually had refused to testify. Both Stidham and Crow testified at the hearing that there was a verbal agreement that Jessie would receive fifty years and that the state would not object when he came up for parole. In the end Jessie refused to testify. Stidham was particularly critical of his own cross-examination of state witnesses, especially of Vicki Hutcheson and medical examiner Frank Peretti. “When I look back on it, my crosses were poor.”
When asked by Brent Davis if he thought he had been “incompetent” in his defense of Misskelley, Stidham replied, “I never felt incompetent, only ineffective.”
Paul Ford had a different take on how he had represented his client. “I did the best I could,” Ford said. His reason for not putting on alibi witnesses for Baldwin—one of the principal complaints about his representation—was that he had felt they were “weak” and would not withstand cross-examination. His strategy had been to offer no alibi at all. “As much as I wanted to see Jason go free, I cannot imagine I would not have put on a witness if I thought it would help his alibi.”
Jason Baldwin remembers it differently. “I remember always telling them I was innocent. I would tell [the lawyers] every time, ‘There are people who know where I was on May 5th and May 6th,’” he said from the stand, but “they just kept shrugging me off.”
Jason had also wanted to testify on his own behalf at trial, but his attorneys wouldn’t allow it. Fourteen years later—much too late for it to do him any good—Jason was able to take the stand in his own defense. He complained about his attorneys trying to pin blame on Damien. “They always asked me about Damien. It was like they thought he was guilty, and I was not.” There is little doubt that this is exactly what the trial strategy was. At trial Ford had called a single witness for Jason, fiber expert Charles Linch, who was put on the stand to unsuccessfully rebut the state’s witness, Lisa Sakevicius.197 In the film Paradise Lost, Ford is filmed essentially telling his client that Echols committed the crime alone and that he should be glad Ford never put him on the stand. In his zeal to separate his client from Damien Echols, Ford failed to take advantage of some of the resources Echols had, such as the pro bono services of Ron Lax and Inquisitor, Inc. That the investigators turned up nothing useful for Echols didn’t excuse Ford from cooperating with them, or so Jason Baldwin claimed in his appeal.
On August 13, 2009, Jason’s mother, Gail Grinnell, was called to testify, the purpose being to establish the alibi for Jason that Paul Ford had not presented at the criminal trial. She looked like she had aged thirty years in the past fifteen. Her hair hung limp on her face, and her eyes darted back and forth suspiciously. She appeared to be terrified. Although she had been present in court for a good part of the day, Judge Burnett allowed her to testify. Today, Jason’s mother would finally get to tell the court where her son was when the three eight-year-old boys were being murdered. She told essentially the same story that police had heard in 1993—that after being in school all day, Jason had come home to check on his brothers, gone over to mow his uncle’s lawn, played video games at Wal-Mart with a friend, and come home for the night by 9:00 p.m.
But Gail was in no shape to testify. She tried to answer attorney John Philipsborn’s questions but often acted as if she didn’t hear them, staring off into space and then finally managing to squeeze out, “Excuse me?” This pattern repeated over and over again, along with her tendency to look to Jason before answering almost every question. She would give random answers to questions not asked. “He had a Nintendo.” “When he was arrested, he was my height.” The only time she really seemed to light up was when she talked about her former job. “I did data entry for a transportation company in Memphis, answered the phone, worked in offices, sent out parts.” By the time of the hearing, she hadn’t been able to work in years.
Like Ford, Grinnell tried to distance her son from Damien Echols, claiming he had not been Jason’s “best friend,” an unbelievable statement in that this was one of the few things about the entire case that had never seemed to be in question. In his 2005 book Almost Home, Echols himself states that shortly after the two met, they were nearly inseparable. They were together nearly every day after school, and every weekend, one would sleep over at the other’s house. Summers were spent fishing, playing video games, and sneaking out at night with Jason’s brother Matt (“Sometimes I think I miss Matt almost as much as I miss Jason,” Echols said). On the stand, Gail could remember only one of Jason’s other friends by name, one Kenneth Watkins, the boy Jason had allegedly played video games with early in the evening on May 5. She looked off into space from the witness stand, repeating, “He had other friends . . . other friends . . .” and looked around the room, as if she might see some familiar faces in the gallery. She looked like the ghost of Paul Ford, still trying to disassociate Jason from Damien.
For Gail, this was her chance to finally tell the court about the boy she knew, her son, the one who would take care of his two younger brothers, feeding them dinner after Gail left for work, getting them ready for bed. The young boy who had loved animals and whose pet green snake was the top attraction in the neighborhood. The teenager she had tried to protect from the police after his arrest by telling him not to talk until she could somehow get him a lawyer. Her oldest son, whose innocence she had never doubted. “We just want Jason to come home.” But words seemed to elude her. After so many years of waiting to be allowed to address the court, she struggled to concentrate. “What I’m tryin’ to say,” she managed to get out, “is that we prayed that they would find out who killed those kids. I never dreamed in my wildest dreams that he would be arrested.” When she was asked by the state if she had been hospitalized for mental illness, her face hardened. “That was a long time ago.” As she stepped down from the stand and walked past her son, she leaned in and meekly asked, “Was I all right?”
Many of the experts retained by the Echols defense team got their turn at bat: Drs. Werner Spitz, Michael Baden, Richard Souviron, and Janice Ophoven all gave their opinions as to the
nature of the injuries to the victims, contradicting the opinion of the medical examiner, Dr Frank Peretti. For the state, Dr. Peretti took the stand, as did WMPD detectives Allen and Ridge (now assistant chief and detective sergeant, respectively). As expected, their stories were utterly unchanged from 1994.
There were two surprise witnesses. On Tuesday, August 11, after an impromptu hallway meeting, Michael Burt decided to call John Mark Byers to the stand in order to get it into the record that the types of carnivores that Baden had testified were responsible for most of the injuries to the victims—primarily large turtles—were common to the area of Robin Hood Hills. Mark testified that he had often found snapping turtles in the pool at his home on East Barton, a few blocks from the crime scene. He would fish the turtles out of the pool with a net and put them down storm drains.
But by far the biggest buzz of the hearings began Friday morning, with speculation that none other than Vicki Hutcheson was going to take the stand. As the person who had arguably set the wheels in motion leading to Damien Echols’s arrest, Vicki had been the focus of case-watcher folklore for years. Her role in “playing detective” to entrap Damien Echols; her criminal record—four prison stints for drugs and writing bad checks; her Christian conversion; and her revelation in 2004 that everything she’d said at the trial “was a lie” combined to make Vicki one of the most enigmatic figures in the case of the West Memphis Three. It was assumed that on this day she was going to testify that she had lied about almost everything she’d testified to in 1994, apparently out of some crisis of conscience.
All eyes were on her as she was finally called. She was wearing a breezy, light green chiffon pantsuit, her long, reddish-blonde hair flowing behind her as she floated down the aisle. After being sworn in, she confidently took the stand, and with her chin slightly raised, she gave her full name to the court. Because she was to be a witness for Jessie Misskelley, Michael Burt began the questioning. “Your honor, before we can continue, Ms. Hutcheson has a question for the court. Go ahead and ask the judge, Vicki.” The question she asked stunned the gallery. What, she wanted to know, was the statute of limitations on perjury in Arkansas? This prompted an immediate bench conference, followed by a ten-minute recess to find out what the statute actually was.