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.