by Greg Day
Ten minutes later, public defender at her side, Vicki was advised that there was no statute of limitations on perjury and that she could be prosecuted for past false testimony. Her “lawyer” advised the court that he was recommending that Vicki invoke her right against self-incrimination unless the court was willing to offer some kind of immunity. “I’m not giving her immunity,” Judge Burnett snapped. Without a grant of immunity, her testimony is unlikely to be heard. And if she ever does testify, who is going to believe her?
Mark Byers spent most of the hearings quietly observing the proceedings. During breaks, spectators were allowed extraordinary access to the prisoners, whose handcuffs had been removed. Mark spoke with both Baldwin (when he wasn’t canoodling with an attractive young blonde visitor) and Misskelley, again offering his support and encouragement. He mingled with the attorneys and defense experts and made new friends among supporters, many of whom had traveled great distances to be there.198 Outside the courtroom he took his usual position in front of cameras and microphones, telling anyone and everyone who would listen that the West Memphis Three were innocent. No matter how many times he said it, the media dutifully reported it, and it usually had the intended effect. Mark’s voice was loud, his presence commanding, and he was hard to ignore. One evening after court, Mark treated a group of supporters, including Burk Sauls and Grove Pashley, to a Southern buffet, complete with frog’s legs, chicken, and catfish (all fried of course); hush puppies; and bottomless glasses of sweet tea.
The hearings officially closed on October 2, 2009, with Judge Burnett asking for briefs within sixty days. In a December 28 article in the Jonesboro Sun, Burnett said that he would make his ruling sometime in 2010. On January 20, 2010, he did just that: no new trials. In a sixteen-page decision, Burnett ruled against Baldwin and Misskelley solely on the grounds of their claims of ineffective assistance of counsel. All the forensic experts hired by the defense constituted a “sideshow,” he said, and Burnett would not even grant them consideration, save to say that Frank Peretti was also a “turtle expert” and said the wounds were ante-mortem and not caused by turtles.
There was some controversy in Burnett’s participation as a “special judge” in the Baldwin/Misskelley Rule 37 proceedings because the judge had announced his plans to run for a state senate seat in 2010. In response to a motion filed by the defense requesting that Burnett recuse himself from the case, he said that although he would “love to drop this [case] in someone else’s lap,” he felt that it was his “burden to bear.” Since he had not actually filed the necessary paperwork to run for public office, he said he had broken no laws and denied a motion to recuse himself. He does, however, have plenty to say about the case he adjudicated, his last before retiring. Burnett rightly placed the responsibility for all the post-trial polemics squarely on the makers of the HBO documentaries. “The producers of the film were very one-sided, and it was a mistake” to let them film the proceedings, Burnett said.199 With the ruling on the Baldwin/Misskelley appeals, and his May 2010 election to the Arkansas State Senate (District 15), Judge David Burnett’s seventeen-year stranglehold on the case of the West Memphis Three finally came to a close. Jessie Misskelley Jr. and Jason Baldwin would have to once more put their hopes in Damien Echols’s appeal to the Arkansas State Supreme Court.
CHAPTER 8
John Mark Byers, Damien Echols,
and Terry Hobbs
What though the field be lost?
All is not lost; th’ unconquerable will,
And study of revenge, immortal hate
And courage never to submit or yield
—Satan to Beelzebub
(John Milton, Paradise Lost)
After Judge David Burnett dismissed Damien Echols’s second amended petition of habeas corpus in the Second District Court of Arkansas without an evidentiary hearing, the petition went to the Arkansas State Supreme Court (ASSC) for consideration. The court set a date for oral arguments, September 30, 2010. Should his appeal be denied by the ASSC, the way would be cleared to refile in the federal District Court of Eastern Arkansas, where the motion was originally filed in October 2007, at which time the federal court had informed Echols that he had failed to exhaust all of his state remedies. And thus the case had been remanded to Burnett, whose dismissal pushed the case up one level to the ASSC. If this all seems complicated and somewhat convoluted, it merely represents the sometimes random, sometimes circular route that a case follows through the appellate courts. The right to a speedy trial may be guaranteed by the Sixth Amendment, but there is no such right to a speedy appeal. “How long do I have to sit here?” Echols rhetorically asked in an interview with the Jonesboro Sun.200 According to an Associated Press wire story, a spokesman for Arkansas attorney general Dustin McDaniel said “as litigation goes, this process will take months, possibly years”, and there was every reason to believe he was right.201
As Echols’s case wound its way through the courts, what could possibly cause the state of Arkansas to reopen the case against the West Memphis Three? Echols and Davis’s statements to George Jared of the Jonesboro Sun in early 2000 that they expected Damien to be free within a year seemed to be more groundless optimism. Without the capture and conviction of the “real” killer or killers, all the Echols defense had was the opinions of forensic experts-for-hire and two lone hairs. Any suspect singled out would need to have information known only to him and the police and further be willing to credibly confess that information. After seventeen years of avoiding detection, why would anyone come forward now? In reality, Dennis Riordan would have to convince the judges of the Supreme Court that Echols deserved to have his new evidence heard at the Circuit Court of the Second District, the court that had just denied him.
Lorri Davis
Although it was unquestionably the HBO films that sparked the movement to free the West Memphis three and the WM3.org that gave it legs, it was New Yorker Lorri Davis who galvanized those responsible for the defense fund to use their rapidly growing war chest to hire top legal and forensic talent for her husband’s defense. She has stood at the helm of Echols’s defense effort for the last ten years or so but remains something of an enigma herself. What is really known about her, and what motivated her to leave her friends, job, and home—“the city I loved,” she said—to marry a man convicted of such a ghastly crime? Women who love or marry condemned men are not unheard of, or even uncommon. Charles Manson, Richard Ramirez, the Menendez brothers, Ted Bundy, and Gary Gilmore all had female admirers, marriage proposals, and the like. Davis is different. Raised in West Virginia by conservative, religious parents, she cannot simply be branded as a woman who suffers from some kind of bizarre, long-distance hybristophilia.202 She’s pretty, educated, and articulate. She also fully believes in her husband’s innocence and remained convinced that he would eventually be released from prison as the appeals process continued. (“I believe in him,” she said. “He’s going to get out someday. And we will have a life together.”) Indeed, there isn’t a hint of any aberrance visible in this immaculately groomed, intelligent, and attractive woman, her brilliantly white, easily drawn smile gleaming for the cameras. She is irresistibly charming and irrepressibly positive. She has been referred to in the media as “well-traveled” and “career oriented,” yet she left her life in New York City to marry Echols in December 1999.203 But Davis is also an intensely private person, which is something of a dichotomy in someone who has led a very public campaign. She garnered money and support from some very high-profile people (music and film stars) in order to purchase the advice and expertise of some other very high-profile people (legal and forensic experts) to the tune of what had to be well over $1 million. Clearly, there is a link missing in the chain.
So what caused Davis to leave her job in New York and marry Damien Echols in a Buddhist ceremony on Arkansas’ death row? She says she fell in love. “He’s a fascinating person, so kind and thoughtful,” she told reporter Erin Moriarty on CBS’s 48 Hours Mystery in an interview a
ired on February 27, 2010. She continued, “He’s a pretty handsome guy.”
Moriarty expressed disbelief at Davis’s decision to marry Echols. “That’s a tough decision . . .” she said.
Davis shook her head vigorously, flashing that smile again. “Ah, hmm-mmm. No. It wasn’t a tough decision at all. And there’s never been a moment of doubt about it.” She said that the decision to leave New York and her job as an architect had been easy. But what, she was asked, if he never got out? “He’ll get out,” she said, adding that she never even entertained the other possibility. She added that her parents, who had been understandably reluctant to accept her choices, were now supportive of her decision and had gotten to know the “real” Damien Echols. If Davis is hiding something up her sleeve, it hasn’t shown. Mysterious and baffling as she may be, if there’s a chink in her armor, no interviewer has been able to expose it, though the fact that she grants interviews sparingly serves as a warning to those she speaks with to tread with care when asking questions. “My personal life is my personal life,” she has cautioned.204
48 Hours
On February 27, 2010, CBS aired a segment of the show 48 Hours Mystery called “A Cry for Innocence,” and it was dedicated to the case of the West Memphis Three. Appearing before cameras for the first time as a WM3 supporter was actor Johnny Depp. Though his name had been batted around for quite some time, the actor hadn’t made any public statement indicating even his awareness—let alone his support—of Echols, Baldwin, and Misskelley’s case. The producers of Paradise Lost say that they have been in touch with Depp for years. “I’ve gotten an e-mail from Johnny probably once or twice a year since ’96 wanting updates on the case,” said Joe Berlinger in a recent interview. “He was one of the first people to say, ‘These guys aren’t still in prison, are they?’ He was blown away by the movie when it first came out, and he couldn’t believe that nothing had changed.”
But until 48 Hours, few in the general public knew of the depth of Depp’s involvement in the case, although Lorri Davis claimed, “[Depp] knows this case inside and out.” The West Memphis Three had been convicted, Depp said, out of a need for “swift justice,” and “every single piece of evidence points to their innocence, not to their guilt.” “My biggest fear,” Depp declared on 48 Hours, “is that justice is not served, not only for those three innocent men in prison, but for three little innocent boys.” How did Depp suggest justice be served? “People need to stand up and say, ‘Yeah, let’s find the real killers.’” So despite Dennis Riordan’s emphatic assertion at the DNA press conference in 2007 that there would be no “rush to judgment” against anyone in order to clear his client, that Echols would be cleared by the evidence alone, it was clear that many believed the forensic evidence alone was not going to be enough to clear the West Memphis Three.
Invariably, the show turned to the subject of Mark Byers. From the very beginning, reporter Moriarty said, “some” (most?) supporters of the West Memphis Three had suspected Mark’s involvement in the crime. There was a quick recap of the “shooting pumpkins” scene from Paradise Lost to demonstrate how Mark Byers had become a suspect in the eye of the public. Byers, Moriarty said, was “volatile” and “acted oddly” in the film. In her interview with him, she predictably confronted Mark with the “terroristic threatening” assault of his first wife, Sandra Sloane. “Don’t you have some violence in your past? Your first wife accused you of assault.”
Mark, of course, admitted to the assault, as he has all along. In case viewers missed the innuendo, Moriarty made sure to add the non sequitur regarding the untimely death of Melissa Byers from “undetermined causes.” There was a recap of Mark’s downhill spiral that had culminated in his stay with the Arkansas Department of Corrections. “I brought it mostly on myself because of the rage and anger,” he told her. “When I got up in the morning, I was mad, and when I went to sleep, I was mad.” Asked how he regarded Echols’s behavior at trial in 1994, Byers said Damien was “arrogant, like it was a big game to him.” The show segued into the DNA analysis of the two hairs found at the crime scene, which until 2006-2007 had gone untested. Byers, she said, was “eliminated.”
The subject of Terry Hobbs was introduced to the show through Inquisitor, Inc.’s Rachel Geiser. Lax had been retained by the defense team in 2007 (or possibly earlier) to reinvestigate the fourteen-year-old crime. For reasons not stated—perhaps because of the persistent rants of the Hicks clan accusing Hobbs of murder, or maybe because Dan Stidham had spoken up about the knives Pam Hobbs had sent him several years earlier—Hobbs had shown up on someone’s radar. Lax sent Geiser to the home Hobbs was renting in Memphis, where she collected several cigarette butts from the front yard. During a personal interview with Hobbs some three weeks later, the first such interview ever conducted with Hobbs, Geiser grabbed a few more butts from an ashtray inside the house. These were all sent out for analysis and compared with hair recovered from the crime scene in 1993. “I was immediately floored,” Geiser told Moriarty, speaking of the test results, “and a lot of everything from then on turned to Terry.”
When Moriarty asked Hobbs how the hair had come to be at the crime scene, he said, as he has since their discovery, “[The boys] played in our homes; it got there by transfer, and that’s how it happened . . . if it was even my hair. The police have never told me it was my hair.”
Moriarty then discussed the interview Hobbs gave to West Memphis police in June 2007, during which Hobbs told police that he had first gone into Robin Hood Hills to look for Stevie somewhere between 6:00 and 6:30 p.m. on the night the boys had gone missing and that David Jacoby was with him. Moriarty seized the moment to confront Hobbs about inconsistencies.
Moriarty: Do you know that David Jacoby says that you went off by yourself?
Hobbs: I went off with David. David left with me.
Moriarty: Is he then lying when he says that?
Hobbs: David didn’t say that.
Moriarty: So you say you were never by yourself?
Hobbs: Correct.
Pam Hobbs figured prominently in the show, which is no surprise, given that over the last few years she had dominated the local media among the families of the victims. Perhaps she was featured simply because she is a mother, and mothers tend to elicit a more sympathetic response from the public. It is more likely, however, that her accusations against her ex-husband as a killer, as well as her own antics and those of her sisters, are what keep her in the media. Most importantly to the show’s producers, who appeared to be overwhelmingly supportive of the West Memphis Three, Pam was also the only victim’s mother who believed—depending on when you asked her—in the possibility that the wrong men were in prison. “I want the truth,” she told Moriarty, “and maybe then I can sleep a little easier.” She was also crystal clear on one point: she didn’t trust her ex-husband as far as she could throw him. When asked by Moriarty whether she thought Terry Hobbs was an honest man, Pam fired back, “No . . . I’ve caught him in quite a few lies over the years.” Pam also told of “whoopins” given frequently by Terry to both Stevie and his younger half-sister, Amanda. Terry denied the frequency—every other night, according to Pam—but acknowledged that the children were spanked with a belt.
And then, in a déjà vu of years past (when it was highlighted that Mark Byers had hit Christopher with a belt on what would turn out to be the last time he saw his son alive), Moriarty asked Pam, “Do you think that Terry is capable, or was capable, of killing your son?”
“It’s a possibility,” Pam answered.
So did the defense’s case rely on finding the “real” killer? The answer, according to Lorri Davis and Dennis Riordan was yes and no. “Proof beyond a reasonable doubt against Terry Hobbs?” Riordan asked rhetorically. “Perhaps not. Proof that would absolutely lead to the acquittal of these defendants at their trial? Absolutely. Absolutely.” The absence of any DNA belonging to the WM3, Riordan said, proved that his client could not have abused the victims in the manner described in
the Misskelley confession. Davis waffled in weak support of the “finding the real killer” scenario. “It’s not our job as a legal team to prove who committed these murders,” she said, “but I want to know who did it. I think everybody does.” For Damien Echols, the answer was much more succinct. “The fact that I’m not guilty,” he told Larry King in 2007, “means that a child murderer has been allowed to walk the streets for sixteen years.”
The show was extremely well produced and was essentially a summary of what was in Damien’s second amended habeas petition, with some “persuasive” steering by Erin Moriarty and plenty of celebrity name-dropping. Mark Byers was shown at the Rule 37 hearings for Jason Baldwin and Jessie Misskelley, greeting demonstrators from the Arkansas Take Action group in a show of solidarity and support. “I’m here strictly for the truth,” he told them. Pam Hobbs stood firm when she said, “Arkansas will never admit that they made a mistake. They’re gonna stand on ‘they did it’ [and] ‘we got the right ones,’ and that’s the way it is. I want the truth and nothing but, and once the truth and nothing but is known, I think I can rest a little easier.” But courts are not persuaded by all these things. They are persuaded by the law, by evidence, and by precedent, although Pam Hobbs might have had it right when she suggested the likelihood of some good old-fashioned ass-covering by the state of Arkansas. It seemed likely to many that the petition would meet the same fate in the ASSC as it had in the Second District Court presided over by Judge David Burnett, but the court’s decision caught many off-guard, particularly attorney general Dustin McDaniel.