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Crittenden County Prosecuting Attorney Keith Chrestman’s Shocking Response to Echols Request to Recover Lost or Destroyed Evidence
Echols Reply Memo Alleges that Crittenden County Prosecuting Attorney Keith Chrestman is “Playing Dodgeball with the Facts”
REPLY MEMORANDUM IN SUPPORT OF ECHOLS’ MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF
In a surprising opposition, the Prosecuting Attorney asks this Court to dismiss Echols’ motion for declaratory and injunctive relief, which was founded on recent stunning disclosures – including by the Prosecuting Attorney himself – that “much of” the evidence in the West Memphis Three case has been lost, misplaced or destroyed while in the control of law enforcement authorities. Yet the Prosecuting Attorney’s opposition nowhere even mentions this evidence. In the Prosecuting Attorney’s view, this is all apparently much ado about nothing, even though the Arkansas DNA statute (also mentioned nowhere in the opposition) mandates the permanent preservation of this evidence on pain of potential criminal sanction. There is indeed something of consequence at issue here, the integrity of the Arkansas criminal justice system. And for the reasons set forth below, there is no reason for this Court not to examine the extent what happened here and why.
1. The Prosecuting Attorney claims that Echols’ motion seeks “civil – not criminal – remedies” and therefore “he’s failed to state facts upon which relief can be granted.” Response to Motion (“Resp.”) at 1. But the limited remedies Echols’ motion primarily seeks are full transparency of the horrifying facts surrounding the admitted evidentiary spoliation that has occurred to date and the cessation of any further evidence destruction. Can it really be the case that this Court in which Echols’ criminal case is docketed cannot provide any relief on these egregious facts? Of course not.
2. The Prosecuting Attorney refers to this as a “closed criminal case,” Resp. at 1, but the Court’s sentencing- related orders preserved its jurisdiction over Echols until the expiration of a ten-year period after his Alford plea. That ten-year period expires on August 19th and this Court, therefore, does not “lack[] subject matter jurisdiction.” Id.
3. The Prosecuting Attorney argues that “the State of Arkansas has sovereign immunity against these civil claims.” Resp. at 1. But Echols’ motion makes no civil claims for damages against the State, and it is well-established that there is no sovereign immunity defense to arguments for declaratory and injunctive-like relief.[1] The State is a party to Echols’ motion by virtue of its having been a party since 1993 to the criminal case against Echols. It is understandable, of course, why the State would now like to dissociate itself from this matter rather than answer questions about the regrettable law enforcement conduct at issue. But as the facts recounted in Echols’ motion make clear, there is no warrant for allowing it to do so.
4. The Prosecuting Attorney maintains that Echols’ motion must be denied because he has not named “the City of West Memphis [as] a necessary party.” Resp. at 1. Yet as noted earlier, Echols has not filed any civil claims so there is no necessary party analysis applicable at this point.[2] If the Prosecuting Attorney wants Echols to sue the City of West Memphis, he certainly can do so – and he might well have to do so in light of the City’s continued recalcitrance in responding to Echols’ FOIA request – but there can be no doubt that the Court has ample supervisory power over the West Memphis Police Department in light of its role in this case and in the misconduct at issue herein to order it to provide the Court with the facts concerning the evidence spoliation and to order it to cease any further evidence destruction going forward.
Finally, the Prosecuting Attorney “denies all allegations not otherwise admitted.” Rest. at 2. Unfortunately for him, and as recounted herein, the Prosecuting Attorney has indeed already “admitted” the gravamen of the misconduct at issue on Echols’ motion. He has admitted it orally to Echols’ counsel, Motion at Para 9; he has admitted it in an email to Echols’ counsel, Motion at Para 10, and he has admitted it in a voluntary interview he gave to the media. Motion at Para 13. So why is he playing dodgeball with the factual allegations before this Court? Why can’t he just admit it again in this proceeding and – in the interests of justice – work cooperatively with the Court and counsel to develop a full record of what happened here? At the end of the day, it all really makes one wonder “what else is there to hide?”
CONCLUSION
Over eighty years ago, the significant responsibility of the public prosecutor was aptly described by the Supreme Court in Berger v. United States, 295 U.S. 78, 88 (1935):
The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
(Emphasis added). In accord with this responsibility, and in light of the public policy behind the Arkansas DNA statute’s mandatory evidentiary preservation requirements, one would expect a prosecutor focused on “justice” to be hopping mad at what has happened in this case and to demand transparency and accountability for it. But not here.
Here, by contrast, the Prosecuting Attorney has effectively given Echols’ complaints the back of his hand, hoping to “summarily” deflect them away from the Court’s consideration. Resp. at 1. Being a “servant of the law” requires more than that though. This Court will apparently have to be the one to provide it.
Respectfully submitted,
[1] The fact that Echols’ motion also seeks “a post-discovery briefing schedule to address the potential remedies the Court might impose as a result of the misconduct at issue herein,” Motion at 13 (emphasis added), does not transform it into a civil claim for damages at this point.
[2] Likewise, the fact that Echols has not filed any “civil claims” also renders inapplicable the affirmative defenses of “insufficiency of process and insufficiency of service of process” at this point in time. Resp. at 2.
Judge Says Prosecutor in WM3 Case has Obligation to Review New Evidence
Crittenden County Circuit Court Judge Victor L. Hill has ruled that District Prosecutor Scott Ellington, who was party to the Alford plea that led to the release of the West Memphis 3, should continue his investigation into new evidence submitted to him by Damien Echols’s defense team.
In Judge Hill’s decsion dated October 29, 2012, he wrote:
“The only issue here, in the court’s view, is whether the court finds Ellington’s claim of an investigation to be credible. While the fact that others have pled guilty to the Robin Hood Hills murders is relevant, as to whether this is a closed issue that is not determinative. The prosecutor has the right and obligation to ascertain whether a miscarriage of justice might have occurred, or whether there were others who might have acted in concert with those who pled guilty, but who have, as yet, not been brought to justice. That is his prerogative and he might even be said to derelict in that duty if he failed to conduct such an investigation.”
Echols’s defense team received new evidence in the form of sworn affidavits in which Terry Hobbs’ nephew, Michael Hobbs Jr., allegedly told his friends “my uncle Terry murdered those three little boys,” The three new witnesses passed polygraph tests about what they stated Michael Hobbs, Jr. told them.
“One day Michael picked us up in his truck. He was very quiet and upset. Michael then said to us, ‘you are not going to believe what my dad told me today. My Uncle Terry murdered the three little boys.’ According to Michael, his dad called this ‘The Hobbs Family Secret’ and he asked us to keep it a secret and not tell anyone.”
Echols’s attorney Patrick Benca said, “Prosecutor Ellington had agreed to investigate these allegations and the court is encouraging him to move ahead with some very strong language suggesting that he has an ‘obligation’ to determine whether or not there was a ‘miscarriage of justice’ in the conviction of Damien Echols, Jason Baldwin and Jesse Misskelley.”
“The defense has submitted evidence to Scott Ellington and we have additional leads that we are prepared to present to him and his team. Additionally, we have asked the West Memphis Police Department to turn over any confidential calls that they have received concerning who might have been responsible for the murders of Stevie Branch, Chris Byers and Michael Moore. While the WMPD has rejected our request for that information, we ask that they turn the information over to prosecutor Ellington for review as soon as possible.”
Benca also suggests that anyone who has called the West Memphis Police Department with information about the WM3 case, please contact the defense team’s WM3 Confidential Tip Line at (501) 256-1775. “There still remains a $200,000 reward for any information that leads to the arrest and conviction of the person(s) responsible for the murders of Stevie Branch, Michael Moore and Christopher Byers.”
Confidential Calls to West Memphis PD Point to Hobbs?
Damien Echols’s attorneys have made a Freedom of Information Act (FOIA) request for all documents, recordings, logs, calls or tips regarding the West Memphis 3 case. They have requested any potential new evidence in the form of confidential phone calls placed to the West Memphis Police Department’s tip line recorded since August 19, 2011, regarding the involvement of Terry Hobbs or anyone else in the murder of the three children. The West Memphis Police Department currently operates a Crime Stoppers Confidential Tip Line at (870) 732-4444.
According to a sworn statement from Laird Williams, who was visiting the West Memphis Police Department on August 14, 2012, he was told that the WMPD had received numerous confidential calls over the past year, many concerning the possible involvement of Terry Hobbs, stepfather of victim, Stevie Branch.
“On August 14, 2012, I met an associate from the University of Memphis School of Law at the offices of the West Memphis Police Department located at 626 East Broadway, West Memphis, AR, to review materials germane to the 1993 murders of Christopher Byers, Stevie Branch and Michael Moore. While in the WPMD offices, I was informed that the West Memphis Police Department is constantly receiving calls via their tip line regarding Terry Hobbs’s potential involvement in the murders of these three young boys, one of which was his stepson, Steve Branch. I was told one caller, a man who worked with Terry Hobbs when the murders occurred, had called repeatedly. I requested the procedures for dealing with these tips and was informed that the calls are recorded and delivered to the Criminal Investigation Division, headed by Captain Ken Mitchell. What CID does with this information is unknown.”
Based upon this information, which was corroborated by others who were present with Williams on August 14, Little Rock attorney Patrick Benca, who represents Damien Echols, filed a Freedom of Information Act (FOIA) request for “All documents, recordings, logs regarding phone calls or ‘tips’ made to the West Memphis Police Department tip line from August 19, 2011 until the present date regarding what has been described as the ‘West Memphis 3 case.”
Damien Echols, Jason Baldwin and Jesse Misskelley were freed from custody on August 18, 2011.
The City Attorney for West Memphis Arkansas, David C. Peeples, rejected Benca’s request for information in two separate letters. In one letter dated September 19, 2012, Peeples denies that the WMPD has any information, “Please be advised that the West Memphis Police Department does not have any existing records that specifically set out the information sought in your request.”
Patrick Benca said, “We have reason to believe that the West Memphis Police Department has received information in the form of confidential calls to their tip line which has the potential to be very important to Damien Echols’s case, and that information should be made available to the defense team or those legal authorities responsible for reviewing such evidence. If the WMPD continues to refuse to turn over any and all information received that bears on the conviction of Damien Echols, Jason Baldwin and Jesse Misskelley, we would respectfully ask them to turn that information over to District Prosecutor Scott Ellington for proper review.”
Prosecutor Ellington, who agreed to the Alford plea that allowed the three men to go free, has publicly stated numerous times that he would review any credible information regarding the case of the West Memphis 3.
Benca also suggests that anyone who has called the West Memphis Police Department with information about the WM3 case, please contact the WM3 Confidential Tip Line at (501) 256-1775. “There still remains a $200,000 reward for any information that leads to the arrest and conviction of the person(s) responsible for the murders of Stevie Branch, Michael Moore and Christopher Byers.”
The West Memphis 3 Confidential Tip Line has been very effective in obtaining new evidence in the case pointing to the innocence of the three men. Calls made to the tip line by three eyewitnesses have placed Terry Hobbs with the children immediately before they disappeared. Three other callers provided sworn statements that Terry Hobbs’ nephew, Michael Hobbs Jr., revealed the Hobbs family secret: that his uncle Terry was responsible for the murder of the three children.
Damien Echols Statement
Damien Echols
In my book, Life After Death, I describe my childhood, life in prison and the incredible efforts to free me, Jason and Jesse. It is a very honest description of my life and the ways in which I have come to see the world both before and after my release. It is not a pretty picture in many ways, but it is my story. I also discuss my relationship with Jason and anyone reading the entire book will see that it is a very poignant and loving friendship.
In the weeks prior to our release, there were some very difficult times for everyone involved and I describe them at the end of the book. This was without a doubt the most tortuous period of my life – with freedom so close and yet capable of being taken away again at any moment – and my recollections of that period are honestly colored by that torture.
After our release from prison, Jason and I had a disagreement over how I was to be portrayed in the film Devil’s Knot. The movie unfortunately has driven a wedge between us, but I will always respect Jason and love him as a friend.
I believe Jason was selfless in his decision to go along with the Alford plea that freed us, and I understand how difficult this decision was for him. For that, I will be forever grateful. My intention was not to hurt anyone, but to write honestly about my struggle.
Reward Upped to $200,000 To Find Killers in WM3 Case
Another anonymous donor has come forward and, as a result, Damien Echols’s defense team has doubled the amount of the reward to $200,000 to find the real killers of the three young boys in the West Memphis 3 case. The donors have chosen to remain anonymous and have placed a time limit on the reward offer. If no direct evidence emerges, the funds will be allocated toward further DNA and investigative efforts.
Evidence will be turned over to Scott Ellington, District Prosecutor, who has committed to review evidence presented to him from Echols’s defense team.
Little Rock attorney Patrick Benca said, “We are encouraged by the response to the original reward offer and have received some very important leads as to who may have killed these three little boys. Now that another supporter has stepped forward to pledge even more reward money, we feel confident that we will get to the bottom of this case.”
Capi Peck, founder of Arkansas Take Action, said, “It is time that those who know who committed this terrible crime come forward and provide information that can put this stain on the Arkansas criminal justice system to rest. It is just the right thing to do now. We do not intend to stop until those responsible are brought to justice, and those who spent half their lives imprisoned are exonerated.”
Confidential Tip Line 501.256.1775 or send information to PO Box 183, 6834 Cantrell Road, Little Rock, AR 72207. See www.westmemphis3.org.
$100,000 Reward for Information on Real Killer in WM3 Case
In an effort to find the real killer of the three boys in the West Memphis 3 case, an anonymous donor has offered a $100,000 reward for new information that leads to the arrest and conviction of the person or persons responsible for the murders of Stevie Branch, Christopher Byers, and Michael Moore on May 5, 1993.
Billboards and radio advertising will promote the reward and encourage those with credible information to contact the confidential tip line as soon as possible. The confidential tip line number is 501.256.1775 or information can be sent to PO Box 183, 6834 Cantrell Road, Little Rock, AR 72207. Attorneys for Damien Echols will review all calls and verify the information provided. All credible evidence will be turned over to Scott Ellington, District Prosecutor, who has said that he will review evidence presented to him from Echols’s defense team.
Little Rock attorney Patrick Benca, said, “There are people in Arkansas who have information about who killed these three little boys and we encourage them to come forward now. We want to bring those responsible to justice. We are not looking for theories, but for real information that can put the true criminal(s) behind bars.”
Damien Echols, Jason Baldwin and Jessie Misskelley were freed in August 2011, after serving eighteen years in the wrongful conviction murder of the three children in 1993. Their freedom was based upon a plea agreement in which, while maintaining their innocence, the three agreed to an Alford plea. They were released based upon time served. The three, men, who unequivocally claim they are innocent, nevertheless accepted the deal to get out of prison. They have vowed to continue to fight to seek justice in the case and want the real killers to be found.
Capi Peck, founder of Arkansas Take Action, said, “We know Damien, Jason and Jessie were not involved in this crime, and that those responsible are still in our community. It may be difficult to provide information about a murder, but it is the right thing to do. We are hopeful that this reward will motivate someone to help put an end to these tragic events.”
THE WEST MEMPHIS THREE ARE FREE
Damien Echols, Jason Baldwin and Jessie Misskelley were freed today from prison after serving eighteen years in the wrongful conviction murder of three children in 1993. Their freedom was based upon a plea agreement with prosecutors, in which, while maintaining their innocence, the three agreed to an Alford plea to the original charges. The three men appeared before Judge David N. Laser, in Craighead County Court in Jonesboro, Arkansas, where their original trials took place and were immediately released As part of the plea agreement, Damien Echols capital murder conviction was vacated.
The Arkansas Supreme Court had recently reopened the case in a unanimous decision that directed the lower court to review all new DNA and other evidence of their innocence in establishing whether or not there should be a new trial. That hearing was scheduled to begin in December.
Damien Echols said, “I cannot believe that this day has come. Despite my innocence, I doubted whether the system would ever actually set me free. I have spent half my life behind bars as Prisoner No. SK 931. Today, I can start to live the rest of it as Damien Wayne Echols. While this plea agreement is imperfect, to be able to walk through the doors of death row is something I have dreamed about since the day we were wrongfully convicted.
“To my wife Lorri Davis, my attorneys, friends and supporters from Little Rock to Seattle to New Zealand, thanks to all of you who have stood by us and helped make this day a reality.”
Jason Baldwin said, “As an innocent man, this is not what I thought justice would look like. But I am incredibly grateful for our freedom, and for all those countless people who worked so tirelessly to help us obtain it.”
“This is a compromise resolution which brings an end to eighteen years of litigation and, most importantly, frees the West Memphis 3 to reclaim their lives. Damien, Jason and Jessie maintain their innocence, but recognize that it was in their ‘best interests’ to accept a certain resolution like this before another eighteen years passed while they were fighting for their freedom in an imperfect criminal justice system,” said Echols’s attorney Stephen Braga, of the law firm of Ropes & Gray.
“We could not have gotten to this point without the support of so many of our good friends and family, the incredible legal work, and all those who have stood behind us throughout this entire ordeal. I would not have been able to do this without the strength, tenacity, discipline and intelligence that Damien has exhibited over all these years. That is the man who he is.” said Lorri Davis, Echols’s wife.
Eddie Vedder said, “We are so grateful for the release of these three innocent men through the ‘Alford plea,’ a plea which essentially exists to right the wrongs of an imperfect system of justice. While we are celebratory today for their freedom, we are also mindful that justice has been only half served with their release. In our hearts remains a special place for the three young boys who were tragically murdered 18 years ago, and the never ending hope that one day their real killers will be brought to justice.”
An Alford plea is a rarely used agreement that recognizes the imperfection in the legal system and allows there to be some measure of justice in a case. The defendants plead to the charges, but maintain their innocence. It is similar to a sentence commutation in many ways. The plea deal does not preclude new evidence of their innocence from being presented to authorities leading to a full pardon. The agreement does not include any parole and it completely removes the death sentence. There are some stipulations that the men must not commit a felony during a certain period following the deal or they could be returned to prison.
Hair DNA Found with WM3 Crime Scene Evidence Excludes Echols, Baldwin & Misskelley
In a final report on DNA testing filed in the court of Second Judicial District Judge David N. Laser, mitochondrial DNA testing of hair found with crime scene evidence conclusively excludes Damien Echols, Jason Baldwin and Jessie Misskelley.
Most of the hairs tested were from the victims. However, one hair found with one of the victim’s blue jeans and wallet has a DNA profile that remains unidentified. In a DNA report filed last week, it was revealed that human DNA found on the shoes of murder victim Chris Byers also conclusively excluded the three men, but was linked to two unidentified male individuals.
According to the report, “Bode’s (Bode Technology) further comparative testing analysis also (once again) excludes Echols, Baldwin or Misskelley as the source of this new, non-victim hair.” A scientific analysis of the shoelaces used to bind the three children is expected shortly.
It was previously established that a hair found in the ligatures that bound one of the victims is linked to Terry Hobbs, stepfather of victim Stevie Branch. According to three new eyewitnesses who have come forward, Terry Hobbs was with the three children at his home at approximately 6:30 p.m., shortly before the boys disappeared and were murdered. Hobbs has denied under oath that he was with the children at any time on the day of their murders.
Capi Peck, co-founder of Arkansas Take Action, said, “This newly discovered DNA evidence that excludes Damien, Jason and Jessie, combined with all other evidence of their innocence, will hopefully lead to a new trial for the three young men who have now served close to 18 years in prison for a crime many Arkansans believe they did not commit.”