Wednesday, February 1, 2012

The West Memphis Three

The notion of "due process" is often little more than a speed bump in an overcrowded criminal justice system. Those accused of crimes are expected to admit their culpability and accept the consequences for their behavior. Plea bargaining is an accepted and necessary part of American jurisprudence and, in its absence, the courts would effectively shut down. The majority of criminal defendants are, in fact, guilty of something and, to their credit usually, if not begrudgingly, accept responsibility for their behavior. The legislature and courts provide rewards for doing so in the form of diversionary programs and reduced or suspended sentences. When a defendant claims he is "innocent", but wants to avoid a trial, the court requires what is called an Alford plea where he acknowledges his understanding that the legal system is designed to grind him into submission and it is in his best interest to accept whatever daily special the prosecutor is offering. The defendant who insists on his day in court is a monkey wrench in this slow grinding process and treated in the same manner one would treat an annoying hemorrhoid.

The government, with its seemingly unlimited resources, will spare no expense to remove this hemorrhoid tissue from society. Those with the resources to adequately defend against the onslaught are cynically accused of using their wealth to manipulate the process; those that are acquitted are vilified for "beating the system". The public assumes that government resources are being used appropriately and are more likely to direct their ire at those that would defy it than those charged with its administration. Confident of the public's support, the police and prosecutors often behave like children that have been bestowed with super powers and charged with the task of removing the blight of crime from society. Unfortunately, the gift of infallibility is not a power that can be granted by legislative fiat. Even more unfortunate, is the inability of these bureaucrats to acknowledge this legislative deficiency.

On August 19, 2011, three Arkansas men, Damien Echols, Jason Baldwin, and Jessie Misskelley, collectively known as the West Memphis Three, pleaded guilty under the Alford doctrine to charges stemming from the deaths of three eight-year-old boys. More than most, these men knew the painful and slow grinding process that the innocent must endure in an "infallible" criminal justice system. They had spent more than eighteen years behind bars for these crimes despite the fact that most reasonable people concluded long ago that their convictions were unjust. The american public watched as numerous documentaries disabused the evidence that had established their guilt. That same public witnessed the transformation of these defendants from confused and troubled teenagers into mature, articulate, and intelligent adults. As mature adults, they understood that maintaining their innocence would result in further incarceration; only a guilty plea would bring them the freedom they sought.

The pleas were made possible in November, 2010 when the Arkansas Supreme Court granted the three convicted men the right to present evidence of their innocence in a habeas petition. During their original trials in 1993, the science of DNA (deoxyribonucleic acid) was in its infancy and the juries did not hear that there was no DNA to connect any of these defendants to the crime scene or the victims. While a major victory for the West Memphis Three, the decision meant that they must return to the trial court and present "compelling evidence that a new trial would result in acquittal"-a process that could take years to complete. The prosecutors, knowing that a new trial would likely be granted, offered a deal that would free, and hopefully shut up, the three men and also save the state of Arkansas millions of dollars.

Accepting responsibility for one's misdeeds can be a costly proposition and the Arkansas bean counters were probably happy with this result. The guilty pleas meant an end to almost two decades of costly litigation and precluded the three from filing wrongful-imprisonment suits for the time they spent in prison. Unlike their counterparts in Arkansas, prosecutors in Illinois admitted their mistake in the case of Thaddeus "T.J." Jimenez after another man confessed to the murder he had been convicted of. Recently, a federal jury awarded Mr. Jimenez $25 million dollars after he had spent sixteen years in prison for a crime he did not commit. While the specter of civil liability was one factor, the cost of having to retry an eighteen year old case based on tenuous evidence would not sit well with any prosecutor. But there is another cost incurred by society when the innocent are wrongly convicted-a guilty person has been allowed to go unpunished.

It is doubtful the authorities in Arkansas will ever prosecute any other person for the deaths of these children. The DNA evidence that was not available in 1993 did implicate two other people-Terry Hobbs and his friend David Jacoby. Hobbs, the step-father of Steven Branch, was not initially considered a suspect but the evidence against him is compelling to say the least. He has a history of violent and sexually deviant behavior and cannot be eliminated as the source of a hair fiber found in a ligature binding Michael Moore. Additionally, he gave several different accounts of his whereabouts during the time the boys went missing and has no verifiable alibi. Natalie Maines Pasdar, a singer for the Dixie Chicks and supporter of the West Memphis Three, was sued by Hobbs in 2008 for defamation after she publicly reiterated the evidence against Hobbs. The case was a disaster for Hobbs. The previous allegations and innuendo became sworn depositions as Hobbs was required to defend his past behavior, his criminal record and his actions the night the children went missing. Under scrutiny, Hobbs stories became inconsistent and incoherent. The case was dismissed a year later and Hobbs was ordered to pay over $17,000 in legal fees to Pasadar.

Scott Ellington, the current prosecuting attorney, has stated that he would re-examine the case and, if credible evidence was produced, re-open the case. The West Memphis Three are well advised not to hold their collective breaths waiting for any official action. While prosecutors are quick to assign blame, they are reluctant to accept responsibility. History has taught that the best response to claims of "actual innocence" is simply ignore them and hope they go away. Three men have admitted that the state has sufficient evidence to prove their guilt and, under the circumstances, it would be political suicide to initiate a prosecution with a the central theme of "oops, we made a mistake." The reputations of the police and prosecutors involved are far more important than the rights of the three convicted felons.

It has been said that the best revenge is to live well and towards that end, I can only wish the West Memphis Three a long, happy and prosperous life.

NOTE: Much more has been written and publicized about these cases than I could possibly write. Professor James Elkins, of the West Virginia College of Law has compiled a list of resources concerning this case including the trial transcripts as well as links to the various media reports about the cases. I first became aware of the West Memphis Three in 1996 after watching HBO's documentary Paradise Lost, The Child Murders at Robin Hood Hills. At that time, while I was not convinced that the boys were factually innocent, I had grave reservations about the proof that had convicted them of these crimes, particularly the evidence against Damien Echols and Jason Baldwin. Jessie Miskelly, Jr., had given the police a statement that implicated Echols and Baldwin as well as himself in these crimes He later recanted this statement and claimed it had been coerced.

Because the statement implicated the other co-defendants, Miskelly was tried first and convicted. Faced with a sentence of life, plus forty years, the prosecutors believed he would testify against the co-defendants in exchange for a reduction of that sentence. It appears that there were negotiations between Miskelly and the prosecution but, for whatever reasons, no deal was made and he was not called as a witness. Without his testimony, and based on my limited knowledge of the case, it was my opinion that while these three probably committed the crimes, I didn't think the state had proved its case against two of the defendants.

At the time, my view was that this was one of those cases where there was "probable cause" to believe the defendant's guilt, but not proof "beyond a reasonable doubt". This is they type of case which should, but usually does not, create an ethical dilemma for a prosecutor. The Rules of Professional Conduct, § 3.8(1), applicable in Connecticut, prohibit a prosecution only where the case is not supported by "probable cause". Other jurisdictions have adopted the ABA standards which are more stringent and state that a prosecutor should decline prosecution in the absence of "sufficient admissible evidence to support a conviction". See, ABA, Criminal Justice Standards, § 3-3.9. In applying this standard, appellate courts will view the evidence in a light most favorable to sustaining the conviction. As such, appellate courts are ill equipped to deal with a wrongful conviction based on an error of fact. It simply looks to see if the direct and circumstantial evidence, if believed, establishes each element of the charged crime.

Notwithstanding the legal sufficiency of the evidence, the ABA standards allow a prosecutor to decline prosecution, when he or she has a "reasonable doubt" about the accused' guilt. This is a gate keeping function where the prosecutor, with regard for the presumption of innocence, is expected to use his or her judgment and examine and weigh all the evidence, whether inculpatory or exculpatory. In this situation, the standard leaves the decision of whether or not to prosecute to the discretion of the prosecutor.


  1. The West Memphis 3 did admit that there was evidence sufficent to again condemn them. However, it was the same evidence that convicted them in the first place. The chances are they would be convicted again. They had no other choice than Alford... the prosecutor was looking that that dollar sign and that being the best interest of the pocket book of Arkansas. That why he would think that Arkansas would rather execute an innocent man than to retry him.
    Next, in pointing to the is reported that Damien stomped a dying dog to death... a Great Dane in a trailer park in West Memphis or somewhere not specified. No such dog was missing. No such rotting carcas was reported stinking to high heaven and Damien was not sent home from school for wearing entrails around his neck. Little girls reported him say he killed the children and was scoping out new victims. Yet, they were not intimidated, did not report this story to any ballcoaches who could protect the children, and Damien was not escorted away. They were not frightened at all. They remained and enjoyed the games. And, to date, nobody has ever been identified as to who Damien made the statements to when those faces should have been well known. It was a witch trial very much akin to The Crucible. Plus, add in all those Jessie confessions. They go along with what the police knew. As they discovered more, then the confessions changed to add that in. You and I, in reading the news accounts could have well been brought in and given the same "confessions". So goes with the knife theory that was invented to account for the wounds that were now debunked as bites and claw marks from predation by Arkansas wildlife... including alligator snapping turtles which the prosecution claims do not bite on humans. The lady who said she observed them at some kind of witch orgy admitted she lied. Evidence shows that the jail snitch lied.
    Then we have left the video deposition of Mr. Hobbs, new evidence of confessions added to the one made to his girlfriend which he didn't deny. He does not deny his DNA at the scene but excuses it. And, the DNA at the scene of his friend with whom he spent that day is not denied but the same excuse is given even though this man never even knew two of the boys and only saw them that day from his window. Evidence is now given that he was the last person seen with those boys that day, too. The video of the Pasdar lawsuit is very informative and should never be passed off as not important to this case.
    This case reeks of Good Ole Boys gone bad... as if they ever were bad and excuses their behavior now as what Arkansas voters would be proud to stand behind as representing something they would themselves do and approve of.
    Our founding fathers knew this could happen. That is the beauty, not only of the Alford, but of the whole appeals system. Not only can two juries get it wrong on the local level, our founding Dads claimed, but they can get it wrong clear up to our supreme Supreme Court of the nation. They can get it wrong, local, state, federal, and some believe even the Supreme can still get it wrong and it stand for years that way.
    The good and moral thing to do is to finally set these boys free and clear their good names. West Memphis didn't like them. History doesn't like whole generations of the youth. Johnny Cash wrote about them in What is Truth. Yet, these generations of weird children who wear their hair differently, dress differently, and listen to foul music to our ears have made us the fine nation we are today. They are the ones who have gone to war in our names and died for our freedom. These three and the other three if allowed to have lived, could well have made our country better just like those other generations if they had the chance that was taken from them. Already these are making it better just by the lessons we can learn from the case itself and their plans for their own futures.
    We might has well let the wheels of justice righted start turning and get that part over with.

  2. Thank you for your attention to this case. They may be afraid to admit to their mistake because it might involve admitting to not one but numerous mistakes they made which should be a criminal act of itself. The fact that the court limited the testimony of an expert witness with a PhD because he could discount the state's theory & help the defendant but allowing the state's witness with a mail order degree unlimited testimony shows the predjudice of the court. In the Miskelly trial Dr. Richard Ofshe, (professor of sociology; expert testimony on police interrogation)was limited to the point of not being very useful as the defense witness. In the Echols/Baldwin trial Dale Griffis with his mail order degree was allowed unlimited testimony as the state's witness. Yes, that "good ole boy" legal system got away with it for 18 yrs. but it's time for them to be accountable. Unfortunately for Mr. Ellington, he was not involved with this until now but has a huge decision to make. Does he right the wrong of the "good ole boys" or find reason to back them? Hopefully he will do what Homer Cummings did. Mr. Cummings stood for justice & even though it was political suicide on the local/state level,he became the US Attorney General under Roosevelt.

    I also would like to thank you you for opening my eyes to Homer Cummings from your previous blog. I believe all law schools need a new chapter on Ethics & he should be the example.

  3. I've always found this case fascinating. Great article!

  4. I've watched a video too. They're guilty. Have a nice day.

    1. Thank you for saying it so well. I agree with you and so many others about their guilt.

  5. I wonder if the last poster is unembarrassed enough to reveal his/her true name... or even to provide any rational explanation for their assertion (other than that two juries said so, which voids the true question of whether they were WRONGFULLY convicted). I doubt it.

    1. check out to get the facts and the reasons behind the majority knowing they're guilty.
      We could be referred to as "anonymous masses" if that suits you better - too many of us out here to name.

    2. People may post anonymously or under any pseudonym they choose whether they agree with me or not.

  6. J. Gomez / Saratoga, CAFebruary 3, 2012 at 12:56 AM

    Anyone who cannot understand why a man sitting on death row would enter into an Allford plea instead of banking on the likelihood that he will get a second trial, in short order, and have it be fair after already being unfairly convicted ... well, you're just dumb. What they did is very imperfect. However, I recall watching what the actual judge who presided over that Allford Plead hearing had to say to the spectators after the parties to the trial left the courtroom. He practically said that he understood that the WM3 were not guilty when he stated that there had been 2 tragedies ... the death of the 3 young boys and the conviction of the WM3.

    I cannot say what to think about the Terry Hobbs evidence and what it all might mean. However, I can only pray that a new, more modern, and intellectually honest prosecutor would come along and take up the challenge to objectively look at the evidence that seems to continue to emerge. And ... if there is going to be any justice in Arkansas, take up the case and prosecute Terry Hobbs if there is sufficient evidence to prove he is the guilty party. This is the ONLY way that justice will be done for the 3 victims of this brutal murder and consequently vindication for the WM3 who have given up all rights to hold the state accountable for their wrongful imprisonment. The state can now convict the true murderer without any fear of financial repercussions from the WM3. The only people that have anything to lose are the original law enforcement officers, prosecutors, and judge that allowed themselves to deviate from the practice of blind justice. Their reputations are the only currency that we can seek. But, perhaps that is the most valuable in the grand-scheme of life.

    1. J. Gomez, "What you said!"
      Damien Echols has been regularly saying in interviews that there will not be closure to this tragedy until three things: (1) complete exoneration, (2) the real killer is in jail, and (3) the CORRUPTION IS EXPOSED. I am not sure what there is to be done about the police involved, but as for the prosecutors and judge, as you say, "Their reputations are the only currency that we can seek." And unless/until their conduct is scrutinized in the context of a formal disciplinary proceeding (and for Sen. Burnett, perhaps an impeachment), supported by documentable misconduct (of which it seems there is much), there will be no deterrent against abuse by too-young, too-inexperienced, over-ambitious, unprincipled prosecutors willing to wield their power when their discretion cannot rightly be exercised. If you are interested in efforts towards such accountability for the WM3 prosecutors, you should get in touch.

    2. Bruce, I am very interested in the efforts to exonerate and push the prosecutors.

  7. Sorry J, I had not checked back. Please feel free to email me: