by Greg Day
Shortly after the ASSC rendered its decision ordering the lower court to “promptly set an early hearing for the petition and response,” Arkansas attorney general Dustin McDaniel responded, saying that he “respect[ed] the decision” of the ASSC but that his office also “intend[ed] to fulfill its constitutional responsibility to defend the jury verdicts in this case.” McDaniel was simply doing what he was paid to do, but the state’s high court had determined that Echols must be allowed to present his case virtually unfettered by further legal obstacles. Echols’s life was at stake, and someone had finally acknowledged it.
If the lower court were to decide that new trials—or a new trial, singular, for all three defendants—were justified, Echols would be hard to beat. The high visibility of the case and the changing social mores that would be alluded to by Judge Burnett, combined with Echols’s high-powered defense team, might be enough to establish reasonable doubt. Echols and Lorri Davis made the “helpful suggestion” that the hearing be skipped and the proceedings move straight to the trial phase. It would save time and money, they said, since, should they prevail at the hearing, a jury trial would have to be held where they would present essentially the same case. Having the hearing waived was unlikely, but it showed the confidence that Echols and his supporters were gaining. A date for the hearing would soon be set for December 4, 2011, in Jonesboro in the former courtroom of the Honorable David Burnett. This time, however, there would be a new face at the bench, and Echols felt good about his chances with Judge David Laser, as indicated by an interview he gave to KATV reporter Heather Crawford.
Reporter: If you do get a new trial and it goes before a new jury, there’s always that chance the jury could say guilty as charged. Do you think about that happening? Do you think that could happen?
Echols: No, I don’t. I don’t think after they hear everything we’ve collected over the past seventeen years—I don’t think there is any chance [at] all of that happening.
Reporter: How confident are you that you will get a new trial?
Echols: 100 percent.
Echols sounded supremely confident, and indeed, it would seem he had reason to be. This was, after all, the biggest break in his quest for freedom since his arrest in 1993. But was the state just going through the motions of justice in order to prevent being reversed upon further appeal? If Echols were to lose in the lower court this time, his appeal would be heard by the US District Court of Appeals where he had originally filed his habeas petition. Who knew how long that would take or what the outcome would be? The granting of an evidentiary hearing by the ASSC could simply be the court acknowledging what most people already suspected: Judge David Burnett had been ready to hightail it from the bench to grab a state senate seat, and he wasn’t going to let the case he was so “tired of” get in his way. Naturally, he denied this. “I made my opinion and they made theirs. That’s the way the system works. I did what I thought was appropriate at the time. Times change and circumstances change, and I guess they had a different view than I did.”211
Little Rock KATV reporter Heather Crawford conducted her fourth interview with Echols on November 17, 2010, to get his reaction to the unanimous decision (7-0) by the ASSC. “I suspected it would [be] sent back. I didn’t think it would be unanimous. That in itself was a huge confidence booster, that every single judge on the Arkansas Supreme Court agreed that this evidence should be heard, and they sent it back to be heard. That in itself felt like almost a miracle to me.” Indeed, unanimous decisions are relatively rare, but the WM3 supporter community has often been characterized by unwarranted optimism, and it probably didn’t surprise them at all. “We are ecstatic and hopeful,” Lorri Davis said when she got the news.
There would be no smoking gun in this case when it came to solving the crime itself. There was no more crime scene DNA to examine, at least nothing that had been disclosed by either side. Proof of juror misconduct would nullify the process, but not the substance. The forensic and circumstantial evidence—with the exception of two hairs—did nothing to identify the killer(s). In anticipation of the evidentiary hearing, the defense was busy searching every avenue for additional evidence to introduce.
On May 17, Dustin McDaniel made it official: the state of Arkansas would not fight the introduction of evidence of juror misconduct at the evidentiary hearing. Another major hurdle in the case had been cleared.
Reviewing the Evidence
So what exactly was the evidence to be presented at the hearing in December? A partial list might include the following:
1. Forensic expert testimony that proved animal predation, not knives, was the cause of the wounds sustained by the victims.
2. DNA evidence excluding the defendants but not Terry Hobbs and David Jacoby.
3. Evidence of juror misconduct, particularly in the case of Kent Arnold.
4. The Misskelley confession. When allowed to be examined with respect to all three defendants and given the critical expert examination it should have had at trial, the confession, or confessions, could crumble. This represented the entire case against Jessie Misskelley, and its secret, inadmissible entry into both the trial and the jury deliberations at the Echols/Baldwin trial was sufficient cause for a mistrial, something that was moved for, but dismissed by Burnett.
There would likely be more evidence presented, but the most critical factor was probably not in the case at all, but in the jury box. If jurors had been influenced by excessive publicity in the 1994 trials, as they surely were, how much more so would they be influenced now, with sixteen years—beginning with the 1996 release of Paradise Lost—of overwhelmingly sympathetic press? The state had a problem. They were facing the very real possibility that the West Memphis Three not only would be granted new trials but even would win. The unanimous decision of the ASSC must have been weighing heavily on the district attorney and attorney general’s minds with December 4 approaching.
Florid Delirium
Judge David Laser of the Second Judicial District held a meeting with the WM3 attorneys in January of 2011 to decide how to proceed with the evidentiary hearing ordered by the ASSC the previous November. One of the more pressing issues had to do with the preservation of any evidence left that might be subjected to DNA or other lab testing. The state had done some testing on its own—in secret, according to Baldwin counsel John Philipsborn. That, Philipsborn said, had to stop. Laser agreed and ordered that all testing be done “above the table.”212 Some basic groundwork was laid, and Laser ordered that the attorneys submit briefs to him within forty-five days. On February 18, 2011, briefs were submitted, and Laser set the hearing date for all three appellants for December 4, 2011. Those hearings would never happen.
“Immediately” after the [ASSC] ruling that remanded the case of the WM3 to the lower court, Lorri Davis and Damien Echols “startled” supporters by disclosing that they had “replaced” San Francisco lead attorney Dennis Riordan with Washington, DC, lawyer Stephen L. Braga.213 Braga himself says that Riordan was not replaced, rather that his role simply changed. “Dennis stayed on as a member of the team”, Braga said. “In fact, at my request he thereafter briefed the juror misconduct issues for the Echols team in the proceedings before Judge [David] Laser.”214 Braga had actually first taken on the case in the spring of 2009, becoming Echols’s lead counsel in the winter of 2011. Shortly thereafter, Arkansas co-counsel Deborah Sallings resigned. She was replaced with Little Rock attorney Patrick Benca. Both of the attorneys were working pro bono. Davis and Braga admitted that they’d had trouble finding an attorney willing to represent Echols at the evidentiary hearing in Jonesboro. But was it Damien Echols that attorneys had a problem with or the paycheck? It was no secret to anybody that the defense fund had been hauling it in. Why should the attorneys work for free?
Braga says it was out of principle. “The case presented significant issues of importance to the criminal justice system, not the least of which was the potential execution of an innocent man.” As it turned out, the defe
nse was also running out of cash because remaining funds had all been earmarked for “experts, DNA testing and expenses.”
Benca was interviewed by Braga and Lorri Davis, who both felt he would be a good fit for the team. It was a good case for an up-and-coming lawyer like Benca to have on his résumé; Benca himself said that he didn’t understand why other attorneys had turned it down.
There was also the relationship that Benca had with Attorney General Dustin McDaniel. The two had gone through college and law school together at the University of Arkansas, Little Rock. This relationship was pivotal to the case because it paved the way for a meeting between the West Memphis Three attorneys and District Attorney Scott Ellington of the Second District, a meeting McDaniel had said he did not have the authority to arrange. In January Benca set up such a meeting, and the parties began to hammer out a deal.
North Carolina v. Alford
Henry C. Alford was an illiterate black man with a criminal record living in North Carolina at the height of the civil rights movement, and his first-degree murder case was said to be “fraught with racial overtones.”215 One night Alford went to a bar to visit with a prostitute. While he was there, he had an argument with another man. Alford left the bar, went back to his room, and told witnesses that he was going to kill the other man. He retrieved a shotgun, went to the bar, and shot and killed the victim. He then returned to his room and stated that he had carried out the killing. Alford was indicted for first-degree murder. His lawyer interviewed the witnesses involved and was convinced of his client’s guilt. With Alford’s long criminal history taken into account as well—including a previous murder conviction—the case against him was strong.
North Carolina law at that time carried a penalty of death for first-degree murder. Alford’s attorney told him that if he pleaded guilty to second-degree murder, he would be sentenced to thirty years. While continuing to proclaim his innocence, he told the court that after conferring with his attorneys and his family, he felt it was in his best interests to take the deal. The court accepted his plea, but Alford immediately appealed, claiming that he had been coerced into accepting it. The case was ultimately heard before the United States Supreme Court. The court ruled that if there had been no more evidence against Alford than his plea of guilty, then that plea would have been invalid, but because there was other evidence—chiefly the statements he had made to witnesses—the court ruled in a 6-3 decision that the Constitution did not prohibit a defendant from entering a guilty plea while proclaiming innocence. Today, forty-seven out of fifty states allow the use of the so-called Alford plea at some level.
On August 18, Mark Byers received a call from District Attorney Scott Ellington in Jonesboro. He asked Mark to pay close attention to what he was about to tell him. Mark’s stomach churned. Now what? The attorneys for Damien Echols, Jason Baldwin, and Jessie Misskelley, Ellington began, had reached an agreement with the state. This agreement, he said, would allow the men to be freed from prison the next day. In order for that to happen, however, the three would have to plead guilty to the murders, while being allowed to proclaim their innocence. Although the arrangement would preclude them from bringing any kind of wrongful imprisonment suit against the state, it would allow the three to pursue and introduce new evidence of actual innocence at a later time—the Alford plea in action. Echols, Baldwin, and Misskelley would plead guilty to three counts each of first-degree murder. “Do I have any say in this?” Mark asked.
“No,” Ellington told him. “This is a courtesy call.” The state felt that they had the right men and stood by the convictions. Ellington conceded, however, that with the introduction of evidence of juror misconduct expected at the evidentiary hearing, Judge Laser would have no choice but to order new trials. Ellington also felt that it would be “impossible to put on a proper case against the defendants,” given eighteen years of “extended litigation,” as well as the fact that “two of the victims’ families [had] joined forces with the defense.”
Mark should have been overjoyed that the state was considering his efforts as part of the reason for the freeing of the West Memphis Three. But he wasn’t. “I felt like I’d been used, like I looked like an idiot for putting myself out there. I’m still a suspect in some people’s eyes, and Terry Hobbs is sitting there laughing his ass off. He can never be prosecuted.” The freeing of the three might be uppermost in most people’s minds, but Mark Byers still had his sights set on Terry Hobbs, perhaps now more than ever.
The following day, August 19, 2011, there was a hearing at the circuit courthouse annex in Jonesboro. Papers were shuffled, lawyers murmured, the press scribbled, and then the three most celebrated convicts in recent history gave their guilty pleas to the judge. The pleas were accepted, and the three were convicted and sentenced to time served plus ten years’ suspended sentences, during which time any violation would result in twenty-one years in prison.
A press conference was held where only Jason Baldwin was smiling. “I’ve been smiling so much my face hurts,” he would say that night, but it was a smile that belied a deep bitterness. Baldwin was clearly the least satisfied with the outcome. Fully realizing that his chances at a new trial were good, he had wanted to roll the dice and clear his name. He’d been in for eighteen years. He could do another year. “This was not justice,” Baldwin said at the press conference. “At the very beginning we told them nothing but the truth, and they put us in prison for the rest of our lives for it. And then we had to come here, and the only thing the state would do for us is say, ‘Hey, we’ll let you go only if you admit guilt,’ and that’s not justice no matter how you look at it. They’re not out there trying to find 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.”
Echols then thanked Jason—they don’t even know each other anymore—and the two men embraced. The moment seemed extremely awkward for Misskelley, who was seated in between the two. If he had not confessed, this scene would not have been taking place. Jason seemed to notice the look on Jessie’s face and put an arm around him and shook him a little. “It’s okay, Jessie,” he seemed to be saying. Misskelley looked appropriately sheepish and sat mute during the press conference.
Echols looked as dark and unhappy as ever. His chalk-white skin tone was slightly offset by a red cold sore at the corner of his mouth and a pair of blue-tinted glasses. “I’m still in shock,” he said, explaining that after having been in solitary confinement for the past ten years, he wasn’t used to being around people, “especially this many.” Asked about the deal he had taken, he said, “It’s not perfect by any means, but it brings closure to some aspects.” He believes that it will be easier for him to assist in clearing his name from outside prison. He also acknowledged that being out gives him access to better nutrition and medical care. “I’ve lost a great deal of my eyesight,” Echols told CNN’s Piers Morgan a month later. “Whenever you’re in a confined space, you never get to see anything far away, so I gradually started to lose my ability to see anything further than a couple of inches away.” He added, “I haven’t seen sunlight in ten years.” In Amy Berg’s newly released documentary West of Memphis, Echols, now thirty-seven said “It’s odd now when they tell me things like, ‘You’ve got arthritis’, or when I see my hairline is receding and my hair is thinning.” Others were no less somber, but for different reasons. Steve Branch Sr. had to be removed from the courtroom, much as he had back in 1994. Before a judge slapped a gag order on him the night before the hearing, Branch was fuming. “Just because you have a high-priced lawyer, a lot of money, and a few celebrities that say you’re not [guilty], that doesn’t make you innocent. They’re still guilty. Twelve people found them guilty; they’re guilty.”
Terry Hobbs preferred to issue a long rambling statement, filled with religious overtones, stating clearly that he was moving on, “leaving this part of the nightmare as part of the past.” He contin
ued, “From this point on I will talk about my love for Stevie, what he has always and will continue to mean to me, and look forward to seeing him again in heaven, where there will only be peace and joy and love forever.”
Mark Byers was, as usual, loud and clear outside the courthouse after the three men were freed, a crowd of supporters and the media surrounding him. “It’s a travesty,” he told the press, Jacki at his side. “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 know, and that’s bullshit!” Choking up a little, Mark told reporters that he was looking for the families of the recently freed men so he could hug them. “They got their sons back. Maybe I couldn’t get mine back, but they got theirs.” As far as Mark was concerned, the entire case had been “botched” by “corruption of the highest degree.” When asked who he thought the killer was, he immediately replied, “Terry Wayne Hobbs. I don’t know how much clearer I can make it.”
The deal was indeed far from perfect; Alford pleas never are, and attorneys tend to hate them.216 Such pleas have been decried as undercutting the process of “conviction, repentance, and closure” for victims, their families, and the public at large, and they further risk innocent defendants pleading guilty. The Alford plea also risks the encouragement of coerced pleas as pressure is applied to vulnerable defendants. For the West Memphis Three it was their chance for immediate freedom. All they had to do was admit they’d killed three eight-year-old boys 1993—a Hobson’s choice.
On the night of their first day back in the free world, Echols, Baldwin, and Misskelley attended a party thrown by Eddie Vedder on the rooftop of a Memphis hotel. Celebrities, Kathy Bakken, Grove Pashley, and Burk Sauls of the WM3 Support Group, Mara Leveritt, and the attorneys—all were there feeling vindicated. In the weeks following their release, the three men returned to life on the outside, a world that looked nothing like the one they had left in 1993. There were cell phones, iPods, HDTV, the Internet—for Damien, Jason, and Jessie, these things must have seemed magical. It’s a big world out there, and time will tell how well they adjust.