From Holly Ballard’s blog on www.westmemphis3.org

I left the last round of hearings encouraged by the brilliance of the defense witnesses, sometimes darkly humored by their demonstration of the ridiculous legal proceedings masquerading as justice in this case. However, driving up last night, I began to dread the twisted grasping by the prosecution as it would try to resurrect an unfounded and unconscionable case. So far, it turns out those fears were unfounded. All the prosecution has managed to do is rehash the search that led to the bodies, making a feeble attempt to “prove” that no animals were present at the crime scene. Defense attorneys Blake Hendrix and Michael Burt fairly easily rebutted this testimony. I’d say this has actually been one of the most anticlimactic days in court so far, but it’ll be in the news again, which is almost as important as any bearing it will have on Burnett’s decision.

First witness: Mike Allen

Allen is currently the Asst. Chief of the West Memphis Police Department and was a sergeant in 1993. Testimony began by Allen describing aerial photographs of the area surrounding the “10-Mile Bayou,” the drainage ditch where the boys’ bodies were found. Allen testified that in the process of retrieving a tennis shoe that had been earlier spotted floating in the water, he fell in. He was knee- to thigh-deep in the water when he felt with his leg something in the water. When he lifted his leg, he discovered the first body (Michael Moore), which had not been visible and “kind of floated to the top.” He testified that the water was not totally stagnant but was not moving very fast, that the bottom felt “kind of mucky,” and that he did not see any animals in the woods nor any type of aquatic life in the ditch. When the body surfaced, he backed out of the water and stood on the bank until other investigators arrived on the scene. Detective Bryn Ridge then searched downstream and located the two other bodies. As far as security is concerned, Allen testified that the crime scene was roped off with tape and a log was kept of everyone who entered the crime scene. The bodies were removed from the water and placed on the bank. Detective Ridge found clothing pinned to the bottom of the ditch with sticks. The ditch was sandbagged and the water was pumped over the sandbags. Again, Holt asked Allen if he noticed any aquatic wildlife during the pumping process or that remained after the pumping was complete.

Here’s where I chime in on this issue: ever seen a kid chasing tadpoles? I’d think any five-year-old could tell you that if you stir up water in a creek, wildlife scatter, which Hendrix later pointed out on redirect. Besides that, Allen testified that the floating shoe was the “furthest thing from his mind” after the bodies were found. True, they searched the ditch bed for 6 or 7 hours for evidence (weapons, etc.), but were they focused on looking for turtles, tadpoles, etc.? Would they have noticed if they’d been there? He also testified that the mosquitoes either were not present or he didn’t notice them. Any Arkansan will tell you it had to have been the latter. (Later, following Hendrix’s cross-examination noted below, Jessie’s attorney Michael Burt took and drove these points home. He asked Allen if he was aware that Ridge had been on the scene that morning, I think I heard on a three-wheeler, obviously scaring away animals. Allen testified that it did occur to him that poisonous snakes and other dangerous animals might be in the water, but that he didn’t notice these or any turtles, etc., on the surface of the water. Burt again pointed out that Allen wouldn’t have been able to see to the bottom of the water.)

Once Holt rested, Defense Attorney Blake Hendrix picked up to cross-examine, at which point Allen’s memory suddenly began to fail. I wish I had a dollar for every, “That I don’t recall.” Allen testified that three other people were there when he arrived, but he was the first person to actually get into the water and the only person to do so that day. (At least, that’s what I understood, but maybe I was mistaken because later he testified that it was Ridge who found the last two bodies.) Allen actually fell in the first time he attempted to reach the shoe and then crossed over the ditch and entered the water again. Hendrix pointed out the splash that falling in would have made, and the fact that if the water was murky enough not to be able to see a body, they wouldn’t have been able to see marine life either. Allen testified that he couldn’t say whether, by 1993, he’d had any training in child homicides, and said that he had not had any training regarding bodies found in water. Regarding Ridge’s methods, all Allen could say was that Ridge found the bodies by starting upstream and wading in the water. Hendrix eventually got Allen to concede that all this movement could plausibly have scared any marine life away. Hendrix then asked a pointed question: was Allen aware that animal hairs were found on the bodies? All Allen could say was a quiet, “No sir.” After Burt’s cross and Holt’s redirect, Allen stepped down.

So, although testimony was relatively tame, there were a few surprises. I was surprised, for example, to see Pam Hobbs in the courtroom today, since I hadn’t seen her here before (though she’s been openly supporting the WM3 for a while now). I spoke with her briefly during lunch recess, and she said she was here to request a chance to speak in court. She hopes to tell the court that this case was a rush to judgment, and to consider this new evidence rather than the scant circumstantial evidence presented in 1994. I expressed to her how impressed I am with her courage, and I think I speak for all of us in telling her that I hope for justice for her son as well as for the West Memphis 3. As I left the courtroom, she was speaking to Cecilea Pond-Mayo from Channel 4, and I believe 7 and 11 were filming as well.) I was also surprised not to see John Mark Byers, and more surprised still that I was able to win a staring contest with Judge Burnett (not so much because I won, but because he had his eyes open at all). Also, I just overheard that a suited gentleman I’ve been wondering about all morning is a representative from Attorney General’s office. (For those of you who don’t know, Dustin McDaniel is notoriously unsupportive of this case and is connected to those who helped convict the WM3 in the first place.)

Right before they kicked me out of the courtroom, I overheard Holt say that Bryn Ridge was bringing him something, so I’ll be interested to see what comes out after recess. I actually passed Ridge getting into the elevator, and I hear Peretti is waiting in the wings to testify. It’s so bizarre seeing these people face to face after all this time.

Recess has ended, and the prosecution is carrying in several blown up maps and photos. I’ll update again at the next recess or after the hearings end today.

Free the 3!

The Center on Wrongful Convictions at Northwestern University School of Law, and the 13,000 member National Association of Criminal Defense Lawyers have jointly filed an amicus curiae brief with the Arkansas Supreme Court asking that the justices grant Damien Echols a new trial in his appeal currently before the court. The amicus briefs were filed on Thursday, September 17, 2009 along with the complete appeal file.

This unprecedented support from two of the country’s leading legal organizations sends a very strong message that many in the legal community believe a grave injustice has been perpetrated, and it must be rectified.

The brief cites the violation of Echols and Jason Baldwin’s constitutional rights when the jury was exposed to Jessie Misskelley’s false confession by jury foreman Kent Arnold, who not only lied about his knowledge of the confession but felt compelled to introduce the false confession into jury deliberations.

The amicus curiae brief states, “It is now known that Echols’ jury violated the constitution and the judge’s instructions by discussing Misskelley’s confession during deliberations, not long after one juror told his attorney that he was growing frustrated by the state’s weak collection of circumstantial evidence and that if prosecutors did not present something powerful soon, it would be up to him to secure a conviction.

“Echols’ conviction and death sentence have been gravely tainted by the jury’s improper consideration of the extraordinarily prejudicial – and extraordinarily unreliable -confession of Jessie Misskelley.

“Compounding the jury foreman’s misconduct is the fact that the Misskelley confession is highly unreliable,” said Steven Drizin, Legal Director of Northwestern University School of Law’s renowned Center on Wrongful Convictions, who co-authored the amicus brief. “Juveniles and the mentally retarded are much more likely than adults to falsely confess when pressured by police, and Misskelley’s confession bears all of the hallmark traits of a false confession.”

With all the new evidence of their innocence, including the blatant jury misconduct, DNA linking others to the crime scene, forensic testimony from the country’s leading pathologists and, what is universally recognized as a false confession, what more does the state of Arkansas need to free these innocent men? It is time for the justices on the Arkansas Supreme Court to right a terrible wrong. Overturn these convictions and find and prosecute those guilty of the murder of the three young boys in West Memphis in 1993.

http://freewestmemphis3.org/download/finalamicusbrief_signed.pdf

Lonnie Soury

The hearing in Jonesboro, Arkansas which ended a few weeks ago represented a watershed in the effort to overturn the convictions of  Jason Baldwin, Jessie Misskelley and Damien Echols.  Although the Rule 37 hearing for ineffective counsel involved only Jason and Jessie, the evidence presented had a very strong impact on innocence of all three wrongfully convicted young men.

Some of the country’s leading forensic experts, Drs. Werner Spitz, Michael Baden, Richard Souviron and Janice Ophoven, presented compelling scientific testimony that the murders of the young boys in 1993 were not committed with a knife, which was the basis of the prosecution’s entire case.  The testimony that the terrible wounds on the children were, in fact, the result of animal bites and scratches while their bodies were in the drainage ditch in Robin Hood Hills, undermines both the cause of death assertions, as well as the prosecution’s motive of a ritualistic killing.

Furthermore, the appearance of Vicki Hutcheson on the witness stand during the last day of the hearings, prepared to testify that she lied in the original trial implicating Jessie, Jason and Damien in satanic cult activity, was chilling.

While Judge Burnett refused to grant her immunity from perjury prosecution and she therefore refused to testify under oath, she confirmed outside the courtroom that she had been virtually forced by the police investigators in West Memphis to make up the story of cult activity and falsely implicate the defendents. 

The evidence presented by the forensic experts and other witnesses was so strong and the DA’s office so unprepared to refute it, Judge Burnett quickly postponed the hearings until October to allow the DA to “find” someone to challenge the evidence.  Good luck.

New DNA evidence establishing that there was none of the three young men’s DNA at the crime scene while implicating others, new forensic testimony by the country’s leading pathologists, recantations by important witnesses and shocking evidence of juror bias and misconduct during the trials, establishes beyond a reasonable doubt that Damien Echols, Jason Baldwin and Jessie Misskelley are innocent.  It is time that the Arkansas Supreme Court intervenes and do what is obvious to every impartial observer: overturn the convictions and grant these men a new trial

Hearings are underway before Judge David Burnett in Craighead County court seeking a new trial for Jason Baldwin and Jessie Misskelley based upon ineffective counsel, known as Rule 37 in Arkansas. Burnett was the judge who presided during the original trial and who ruled against these young men in their post conviction efforts seeking a new trial. Several of the country’s leading forensic pathologists have testified in Jonesboro, Arkansas, ground zero today in the efforts to free the West Memphis 3. The testimonies of Dr. Werner Spitz, Dr. Michael Baden, and Dr. Richard Souviron have been unequivocal in that there were absolutely no knife wounds found on the bodies of the three young victims, and that those wounds that appeared to have been inflicted by a knife were all post motem animal bites and scratches. After reviewing thousands of pieces of evidence, all three pathologists (Souviron is a odontologist) agree that the prosecution’s case against Damien , Jason and Jessie, based upon the belief that a knife was used in this crime, is false. Dr. Janice Ophoven, a pediatric forensic pathologist is scheduled to testify today.

According to Lisa Fancher of WM3.org., and Holly Ballard of Arkansas Take Action, both of whom are monitoring the hearings, the pathologists testified that the wounds on the bodies (except for the blows to the head which contributed to their deaths) were caused by animals, not knives. That the state pathologist’s autopsy was not competent and that his opinions and testimony at the original trial were incorrect, and the case the state presented was false, as no knives were used to create the injuries on the bodies. They are not the cause of death. Blunt force trauma and drowning caused their deaths and animals damaged their bodies.

This is very powerful testimony that in itself should be enough for any unbiased judge to grant a new trial for Jason and Jessie. Generally, the standard for a new trial consists of whether new evidence presented at the time of trial would have resulted in a different decision by the jury. If the standard for granting a new trial in this hearing is that their original trial attorneys failed to utilize expert pathologists and therefore the jury was not exposed to crucial testimony that the cause of death and the wounds found on these youngsters was wholly inconsistent with the prosecution’s case, then Jason Baldwin and Jessie Misskelley should have their convictions overturned and be granted a new trial. The Arkansas Supreme Court should then follow suit and grant Damien Echols a new trial.

Lonnie Soury