Untying the Knot: John Mark Byers and the West Memphis Three

by Greg Day

  131 Incarceration rates nationally have increased an average of 3 percent in the last ten years, though in Arkansas, a decline of 2.1 percent was reported in 2005 due to a lack of funds for prison expansion; inmates not previously eligible were given early parole.

  132 Arkansas Department of Correction Annual Report FY 2010 http://adc.arkansas.gov/resources/Documents/Annual_Report_FY2010.pdf.

  133 Charlie Frago “13% of State’s Inmates also Gang Members, Officials say” Arkansas Democrat-Gazette, September 14, 2005.

  134 Charlie Frago, “Prison Seen as a Powder Keg,” Arkansas Democrat-Gazette, April 23, 2006. Frago also says, “Prison officials haven’t noted publicly the connection between the riots [at Calico Rock] and a transfer policy that disciplines black inmates by sending them to this medium-security lockup.” In this article, Frago cites Johnson v. California, a case that was heard by the U.S. Supreme Court, in which the Court instructed the California state penal system to cease the practice of segregating inmates by race. Frago quotes former Calico Rock corrections officer Captain Elmer Bolia as saying, “They say you can’t segregate by race. They also say you have to protect an inmate’s safety. Those two things aren’t possible … not together. Not at Calico Rock.”

  135 The fact that Mark’s eight-year-old son had been murdered in a highly publicized case no doubt helped. Child killing is at the absolute bottom of crimes in the cons’ estimation, and there probably was a small measure of sympathy afforded to Mark as a result.

  136 In 1998, Steven Anthony Mays died from heat exhaustion after working one morning on the hoe squad. It was an early November day, with the temperature reported at seventy-two degrees. His estate claims that prison guards ignored his complaints of being ill that day.

  137 A class II inmate earns a one-half-day credit for every day served without a write-up. When—and if—his class I status is approved, he starts earning one full day of credit for each day served.

  138 In the summer of 1999, Mark mounted an effort to have his sentence reduced, pursuant to a provision of Arkansas state law, and on August 5, he filed a “Petition for Reduction of Sentence.” Essentially, the petition requested relief from the courts in the form of a sentence reduction from eight years down to four. In the suit, Mark asserted that the court had unfairly and inequitably imposed his sentence for the original burglary and theft charges in Sharp County on several grounds. First, since Mark was receiving benefits from Social Security, and his benefits would be halted in the event that he was incarcerated for more than one year, he claimed that it should not have been the court’s intent to “harm this petitioner’s only means of support.” The petition further stated that there should have been more consideration given to time Mark had spent in jail awaiting trial. Finally, Mark made an issue of the fact that he was depressed, had bipolar disorder, and suffered from posttraumatic stress disorder. The suit does not specifically state how this last issue affected Mark’s sentencing, though it can be assumed that despite being declared fit to stand trial, Mark was claiming that he was not competent to enter his plea of nolo contendre, or “no contest.” Three weeks later, on August 26, the court rejected the petition on the grounds that first, the trial court had no legal authorization to reduce a valid sentence, and second, Mark had not shown cause that the sentence should be judged anything but valid. It should have been no surprise to Mark; it had been a long shot to begin with. Still, the prospect of eight years in Brickeys did not sit well. That he was less than happy is evident by his September 1 letter home, in which he stated, “Well, today SUCKS!!! I got my results back from Sharp County and the S.O.B. shot me down.”

  139 The back of the card read, “This is not me, but I thought you might like it! Your friend, Julie Ann Eldridge.”

  140 This author bought one of these letters in September 2005. As of June 2007, no more letters were listed for sale on the website.

  141 Edward Lewis “Selenski Wanted to Be a Dirty White Boy,” The Citizen’s Voice (Wilkes Barre, PA), June 23, 2003. The article quotes prison gang and security consultant Robert Walker as saying that the DWB “are not primarily known as a white supremacy group, but they are known to associate with the Aryan Brotherhood, the Texas syndicate and, possibly, the Mexican mafia. They have some white supremacy philosophies, but they’re not out there dealing death to any non-white group.”

  142 According to Dave Maas, although it is still possible to have another inmate—or even yourself—transferred to another facility, the price has gone up considerably; it now costs about $300 “green”, or cash. This kind of transaction can’t be arranged by bartering commissary.

  143 Marc Perrusquia, “West Memphis Three Dad Puts on a New Face,” Memphis Commercial Appeal, November 26, 2007. According to Perrusquia, Byers told him he had nicknamed his tumor “Harvey.” Perrusquia was one of the authors of the 1995 book Blood of Innocents, the first book published on the murders.

  144 Director Peter Jackson of Lord of the Rings fame didn’t disclose his involvement in the case until 2011, and the amount of any money contributed has not been disclosed. His pockets are likely deeper than Vedder’s, however, and his financial contributions may have been much more extensive, though much lower-profile, than Vedder’s.

  145 Mara Leveritt, “The Damien I Know—The Architect and the Inmate,” Arkansas Times, January 9, 2004. This was the first interview in which Davis agreed to discuss her wedding to Echols.

  146 Something of a profile had been given to the West Memphis Police Department in 1993 by FBI Special Agent Tom Salp, although it appears to have been “unofficial” and probably done over the phone. For some reason, Salp told them they should be looking for a Vietnam veteran. According to John Douglas, the prosecution had also contacted FBI Special Agent Kenneth Lanning, who had written a paper in 1992 titled “Satanic Ritual Abuse.” Lanning stated in the paper that he had not seen a single case—not one—of a so-called satanic ritual killing. He further told the prosecution that they should not consider using satanism as a motive unless they wanted to be “laughed out of the courtroom.” He never heard back from them.

  147 Arkansas Act 1708 16-112-201. This act, like others adopted by different states, was inspired by the case of Earl Washington in Virginia, a mentally challenged inmate who had come within nine days of execution in 1985. Although Washington’s sentence was commuted to life in 1994 by Governor Douglas Wilder, Washington had DNA evidence that excluded him as a suspect as early as 1993. Under Virginia’s draconian “21 day rule,” however, he was not able to have that evidence considered. Washington was pardoned by Governor James Gilmore on the capital murder charges in October 2000 and was released from prison on February 12, 2001, after spending almost seventeen years in prison.

  148 According to Terry Hobbs in his June 21, 2007, interview with the West Memphis Police Department, he and Pam were paid $25,000 for “life rights,” and since the couple had divorced some time in 2003, they split the payment evenly between them.

  149 In what is most likely a recreated scene in Paradise Lost, the following dialogue takes place between Lax and Echols’s attorneys Val Price and Scott Davidson:

  Price: Ron, how do you think this has gone so far, with the Mark Byers aspect? Obviously, we thought long and hard about mentioning a father as a possible suspect.

  Lax: I hate having to do that, but the way the circumstances are, it’s just coming out whether we really want to or not. I mean, you know, we had suspicions even before the knife showed up.

  Price: Do you think anybody realizes the reason for the three-day delay in Jessie’s trial, waiting on the DNA to come back on that Byers knife?

  Davidson: I doubt it.

  Lax: And even after the results came back, and it showed that it could be Mark’s blood as well as Chris’s blood, that doesn’t alleviate the fact that he said no one had ever cut themselves on the knife … and it shouldn’t have had blood on it at all.

  Price: [What] do you think [about] the theory, or the argument at least, that
it wasn’t that the blood was on the blade that could easily be wiped off, but it was back in the hinges, where you wouldn’t think, if you were wiping off the blood—you wouldn’t think the blood would be inside the hinges—and that’s where they found that particular blood?

  Davidson: How do we get that in?

  Price: Well …

  Davidson: Just ask Gitchell?

  Price: Ask Byers. I mean, we could put Byers up on the stand.

  Davidson: I think the jury expects to see him now. They want to see him up there, see what he has to say. [To Lax] Don’t you think so?

  Lax: I think so. Yes.

  150 Among other matters, the contract stipulated that “Clear Pictures Ent. agrees that Bruce Sinofsky/Joe Berlinger will have no involvement in this production.”

  151 Although the up-front money was paid, the contract, after being renewed once, was eventually allowed to expire in 2009 while the fate of the film was up in the air. Communications between Mark and Liz Fowler have been sporadic, and as of this writing, media outlets have been reporting that the film will begin filming in spring 2012, under the supervision of veteran director Atom Egoyan.

  152 According to the state crime lab in Little Rock, “hairs do not possess a sufficient number of unique microscopic characteristics to be positively identified as having originated from a particular item to the exclusion of all other similar items.”

  153 According to the United States Department of Justice, Bureau of Justice Statistics, for the years 1976-1994, children between five and fourteen years of age who were victims of a homicide had a 22.6 percent chance of suffering death at the hands of a family member. Further, less the 3 percent of all persons incarcerated for violent crimes against children are female.

  154 While the “new evidence” obtained by the Echols defense team, including the Hobbs and Jacoby hairs, was being evaluated, Echols successfully petitioned to have his existing appeals held in abeyance while his habeas petition was being prepared. Echols’s motion states, “It has previously been established that Hobbs was never questioned by police during the original investigation of the crimes, despite the fact that the lead detective in the investigation of the murders has conceded that when a child homicide occurs, police should always consider the parents of the child as potential suspects”, and that it is “statistically proven that homicide victims are usually the result [sic] of family, close friends, [and] known acquaintances.”

  However, in his 2009 deposition in his lawsuit alleging defamation on the part of Dixie Chicks singer Natalie (Maines) Pasdar, the following exchange took place between Hobbs and Pasdar’s attorney, D’Leslie Davis:

  Q. You were not interviewed by the West Memphis Police Department in 1993, correct?

  A. I was.

  Q. Okay. And it was a formal interview?

  A. Right.

  Q. Do you know if they recorded it?

  A. I don’t remember that

  Q. Did they read you your rights?

  A. No.

  Q. Do you recall which police officer interrogated you?

  A. No.

  Q. Do you recall where the interview happened?

  A. West Memphis Police Department.

  Q. And did they call you down there to interview you?

  A. They did.

  Q. Were you alone or with anyone else?

  A. Me and Pam went.

  Q. So the two of you were interviewed together?

  A. Maybe separate, but we went together.

  Q. Other than that one interview in 1993, do you recall any other interviews with West Memphis Police Department in 1993?

  A. I can’t recall any.

  Q. Can you recall any in 1994?

  A. Not really.

  155 In the January 4, 1994, report from the Arkansas State Crime Lab, no mention is made of any hair in or on the ligature binding Michael Moore. There is also no mention of ligature hair in Echols’s 2002 motion for forensic DNA testing, though there is mention of the ligature itself. In the 2005 report from Bode Laboratories in Springfield, Virginia, an item labeled “Hair from M. Moore ligature” was received and tested. This was the hair that “could not exclude” Terry Hobbs as the donor, meaning the mitochondrial DNA found in the sample matched that of Hobbs. In the case of the Hobbs sample, the lab states that all but 7 percent (although this number seems to vary) of the population can be excluded.

  156 Ron Lax refused to provide any information regarding any subject to this author. I was referred to Echols’s attorney, Dennis Riordan, who was under a gag order by Judge David Burnett, as were the other attorneys involved in the case.

  157 Interview of retired Officer Tony Anderson with Captain Ken Mitchell and Lt. Chuck Noles, June 22, 2007. Although Anderson says that all he had was a photograph—he couldn’t recall what kind of camera was used—he didn’t mention the existence of a mud cast. On May 13, 1993, Kathy Healey of the WMPD released evidence to the state crime lab described as “1 box w/a fingerprint in mud.” It was received by the lab and given lab case number 9305716.

  158 Ibid. Mitchell asked rather sheepishly if Anderson had compared the print with his own. “I sure did,” Anderson replied.

  159 David Ashbaugh, Quantitative-Qualitative Friction Ridge Analysis (Boca Raton, FL: CRC Press, 1999), cited in John D. Clark, “ACE-V: Is It Scientifically Reliable and Accurate?” http://www.latent-prints.com/ACE-V.htm#_ftn1. See also http://en.wikipedia.org/wiki/Fingerprint. The FBI hasn’t used a system of fixed points—also known as “Galton points”—for identification in many years. Rather, the fingerprint analyst evaluates the print in its totality to determine whether it matches a reference sample. This system, known as ACE-V (analyze, compare, evaluate, then verify), is based on a system developed by David Ashbaugh of the Canadian Mounted Police more than twenty years ago. Still, the Galton points serve as a basis for beginning the analysis, which includes three levels of detail for comparison. It is also significant that since many latent prints found at a crime scene are partials, using ACE-V makes obtaining a match more likely than does evaluating Galton points alone.

  160 Interview of Hobbs by WMPD, June 21, 2007.

  161 He told detectives Ken Mitchell and Chuck Noles the same story. According to Terry, he received a fifty-dollar fine for the incident.

  162 Serological Research Institute (SERI) report to attorney Michael Burt in San Francisco, May 11, 2007. Burt is an attorney who represented Jason Baldwin in his appeals. The report reads, in part, “A search of the FBI’s Mitochondrial DNA Database of 4839 samples (consisting of 1674 Caucasians, 686 Hispanics, 848 Asians, 326 Native Americans, 1305 Africans and African Americans) showed three (0.06%) to have the same mitochondrial sequence as the cigarette butts [taken from the front yard and ashtray at Terry Hobbs’ residence in Memphis].” At a press conference in Little Rock in November 2007, Thomas Fedor from SERI said that the hair would exclude all but 1.5 percent of the population but would not be enough for a positive identification.

  163 Douglas claims that it was he who discovered that Hobbs had never been interviewed by police. Ron Lax would not comment.

  164 Inquisitor Inc. website, www.inquisitorinc.com.

  165 According to court records, Lax was paid $1.19 per hour to testify for the state at Damien Echols’s Rule 37 hearing in either 1997 or 1998. It is doubtful that he ever received any direct payment for his work in the original investigation; there simply wasn’t any to be had.

  166 The reporter was Cathy Frye of the Arkansas Democrat-Gazette.

  167 Stephanie Scurlock “Mother of Young West Memphis Three Victim Arrested” WREG news, Memphis. Originally posted November 11, 2007.

  168 Hobbs was subsequently bailed out of jail by a “business acquaintance.”

  169 Along with Ann W. Burgess, Allen G. Burgess, and Robert K. Ressler, Douglas authored Crime Classification Manual: A Standard System for Investigating and Classifying Violent Crimes, now in its second edition (San Francisco, CA: Wiley, 2006). He also coauthored Sexual Homicide
: Patterns and Motives with Ressler and Ann W. Burgess. Both are tools for law enforcement to aid in the development of offender profiles and to assist in crime scene investigation and interrogation of suspects.

  170 John Douglas “Triple Homicide Analysis” as presented in Damien Echols’s October 29, 2007, second amended petition for writ of habeas corpus, exhibit “UU.”

  171 Cathy Frye, “Reputation Is Ruined, Says Stepdad of Boy Killed in ’93,” NWAnews.com, Arkansas Democrat Gazette Online, February 3, 2008.

  172 For John Douglas, that was a near-perfect scenario, the only downside being that he knew that a suspect was presently being looked at and in fact had already interviewed him twice before putting together his profile.

  173 In their Crime Classification Manual, 2nd ed., Douglas, Burgess, Burgess, and Ressler define victimology as “the complete history of the victim.” They ask, “Was the victim known to the killer? What were the chances of the victim becoming a target for violent crime? What risk did the offender take in perpetrating this crime?” The relationship between the offender and the victim is a critical component of the analysis of the crime and is a key aspect of solving it.

  174 According to Hobbs in a conversation with this author in October 2010, it was the Hobbs family who refused to talk with Douglas and Herot, not the Hickses. Both Douglas and Herot verified that Herot spoke with Hobbs’s sister, mother, and two brothers in Kokomo, Indiana, in September 2007. Either Hobbs was misinformed by his family, or he was lying. There is a third possibility, of course—that both Herot and Douglas were being untruthful.

  175 Beth Warren, “Top Court to Hear Damien Echols’ Plea Today for New Trial in ‘West Memphis Three’ Case,” The Commercial Appeal, September 30, 2010. Ms. Warren couldn’t recall the exact dates of her interview with Cindy Hobbs but was sure it was well after Herot had spoken with her.

  176 Cathy Frye, “Reputation Is Ruined.”

  177 Declaration of Pamela Marie Hobbs, Hobbs v. Pasdar, US District Court, Eastern District of Arkansas, Western Division, filed August 21, 2009. Pam said that Terry’s first wife’s name was Angela Timms.