Devil's Knot: The True Story of the West Memphis Three (15 page)

Nevertheless, Ford pressed on. Arguing that all he and the other defense lawyers wanted was a “level playing field,” he pointed out that Fogleman had recently taken the unusual step of issuing prosecutor’s subpoenas, a seldom-used tool that allowed him to question witnesses under oath before the trials. “It’s rare that you do what I did in that case,” Fogleman later acknowledged.
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But he added, “The prosecutor has a right to conduct their own investigation…and through the subpoena power, a prosecutor can compel people to give testimony, just like in a grand jury…. And there were things that I needed to know.” Most of Fogleman’s mandated interviews were conducted in September, four months after the murders. First, he questioned members of the family that the Echols family had reported visiting on the evening of May 5. The Echolses’ friends confirmed their account. Fogleman next questioned members of Damien’s and Jason’s immediate families. They too supported the boys’ accounts of their whereabouts on May 5. Fogleman then questioned L. G. Hollingsworth, the teenager who, after being polygraphed by Detective Durham, told police that he believed Damien was the killer. But L.G. told Fogleman that he knew nothing about the crime. When Fogleman questioned Damien’s girlfriend, Domini Teer, she testified that contrary to what her aunt Narlene Hollingsworth had claimed, she had not been with Damien on the service road near the Blue Beacon on the night the boys disappeared.

Lax attended the interview when Fogleman questioned Damien’s family, along with a lawyer from West Memphis who had been appointed by Burnett to represent them for that procedure.
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Lax later wrote in his notes that when he introduced himself to the court-appointed lawyer, the attorney informed him that he knew that Damien was guilty. “When I asked him what knowledge he had to lead him to believe this,” Lax wrote, “he stated, ‘They found that boy’s penis and testicles in a glass jar in Damien’s bedroom.’ I attempted to explain to him that that was not true, and he repeatedly told me I needed to check my sources, because it was true.” In fact, Chris Byers’s severed body parts never were recovered. Lax wondered how the attorney had come to be so certain. What “sources” had given the lawyer his misinformation? The exchange suggested to Lax how deeply rumors had taken root in the town. And it made him wonder if some of them had originated with the police.

Since Fogleman was questioning potential defense witnesses under oath before the trials, the defense lawyers wanted a similar opportunity to question Gitchell, Allen, and Ridge. “I am asking it in the interest of a fundamentally fair trial,” Ford said, “the right to due process, that if Jason Baldwin’s mother can be questioned under oath by Mr. Fogleman, the least I can do is to be able to question under oath Inspector Gitchell.” But Fogleman argued that the defense had already been given the officers’ reports, and he again assured Judge Burnett that the defense would receive everything the state had produced. Noting that the state faced the greater burden of proving the defendants guilty, Burnett again denied the defense lawyers’ motion. He ruled that the police would be made available to answer questions for the defense, but that he would not order the detectives to submit to questioning under oath.

Some of the defense motions were long shots, such as those asking Burnett to rule Arkansas’s death penalty statute unconstitutional,
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to prohibit so-called death-qualified juries,
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and to instruct the juries that they could return a finding of first-degree, rather than capital, murder.
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Others, such as attorney Stidham’s attempt to suppress Jessie’s confession due to tactics the police had employed, were thought to at least have a chance. But they failed nonetheless. Stidham took the defeat hard. He felt that the West Memphis police had “scared Jessie Misskelley to death” by showing him the photograph of a corpse and then playing him the eerie recording of Aaron Hutcheson’s disembodied voice. Stidham considered it a tragedy that the court was willing to admit a confession made by a minor under such circumstances.

Jason’s lawyers were just as dismayed by Burnett’s unwillingness to separate Jason’s trial from Damien’s. They did not want Jason’s case to be affected in any way by evidence or perceptions that might apply to Damien alone. “There has been considerable media coverage of Mr. Echols and particularly his having taken the nickname of Damien,” Ford told the court, “and that nickname has been associated overwhelmingly with a movie by the name of
The Omen,
where the main character in that movie, Damien, is the Antichrist.” Pointing out that “there has been an awful lot of publicity and speculation as to occult activities and whether or not this was a killing that was associated with an occult type ritual,” Jason’s lawyer argued that “the publicity as to that occultic type activity has been predominantly centered around Mr. Echols, as opposed to Mr. Baldwin.” He added, “If the two cases are tried together, Baldwin could be associated with activity that there is no evidence he ever participated in.” He did not want Jason to be painted with the same broad brush as Damien.

Though Burnett refused to sever, or separate, the trials, Ford continued to raise additional issues to support that contention. At another pretrial hearing, he raised the subject of Narlene Hollingsworth’s expected testimony that she had seen Damien, not with Jason but with Domini, on the service road on the night of the murders. Noting that Arkansas law required that cases be severed when their defenses were antagonistic, Ford explained that Hollingsworth’s testimony “places Mr. Echols at or near the crime scene” and that because of that, Jason’s trial strategy was at odds with Damien’s. The lawyers representing Damien asked that the trials be severed, as well. But Burnett was not persuaded. Citing the need for “judicial economy” and stating that he could find “no reason that either defendant would be unduly jeopardized by a joint trial,” he denied all motions for severance. He addressed the lawyers’ concerns by advising them that “the jury, of course, will be instructed that they are to treat each defendant separately in viewing and evaluating the evidence.”

Another major battle, waged by the attorneys for both Jason and Jessie—and another that was lost—concerned their status as minors. Since Jessie was seventeen and Jason just sixteen, their lawyers wanted them to be tried as juveniles, rather than as adults. Though Arkansas law allowed the state to prosecute juveniles as adults when they were accused of serious crimes, Ford argued that the court should consider Jason’s record and try him in juvenile court. “In this case, there is a bare minimum, if not an absence, of criminal activity on the part of Jason Baldwin,” Ford said. “And also, Your Honor, Mr. Baldwin is a good student. He has not been a discipline problem at home. He has not been a discipline problem in the school system. He has made good grades…all of which would indicate an ability to live up to certain codes of conduct.” But Burnett was unimpressed. “I find that the seriousness of the offense was most serious, grievous, heinous,” he said. “The fact that there were three eight-year-old boys murdered in the fashion depicted to the court, the violence exhibited—that certainly alone is enough to warrant that this charge be heard before a jury in circuit court.”

Stidham fought the same battle for his client, only he argued that Jessie was not mentally mature enough to stand trial as an adult. “I am convinced,” Stidham told Burnett, “that Mr. Misskelley is of limited intellect.” To make the point, he called Dr. William E. Wilkins, a psychologist, to testify at one of the pretrial hearings.
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Wilkins, who had examined Jessie, told the court that the boy’s IQ scores hovered at around 70 and that, scholastically, he had achieved a “maximum level” no higher than the third grade. “He’s never passed the Arkansas minimum standards test,” Wilkins told the court.

Burnett asked Wilkins if he believed Jessie had developed what Burnett called “street smarts.” “Even though his intelligence capacity is borderline,” the judge asked, “did he not function in society well?” Wilkins answered that he did not. “He functioned marginally,” the psychologist said.

Fogleman sought to counter Wilkins’s testimony by calling Jerry Driver, who recited Jessie’s record, which included the theft of band flags from the school. Fogleman then called Detective Ridge, who described the injuries he’d observed on the victims. As with Jason, Burnett ruled that due to the seriousness of the crime, Jessie would have to “answer to the circuit court as an adult.”

None of the defendants waived their rights to a speedy trial, so Burnett announced that they would be tried early the next year.
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By November 1993, the defense lawyers mounted a series of last-gasp pretrial efforts. They achieved partial success on only one of them: the motion to get the trials moved—at least out of Crittenden County. Jessie’s lawyers, Stidham and Crow, argued that large parts of Jessie’s confession had been printed in the
Memphis Commercial Appeal
and quoted repeatedly in other media throughout the district. They told the court that when they’d asked residents of the region to sign affidavits in support of moving the trials, they’d met with intense hostility.
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Arkansas law allowed for the trials to be moved to another county within the judicial district but Stidham asked for more. “It is quite possible,” he wrote in one of his motions, “that this case has attracted more media attention than any other criminal case in the history of the Second Judicial District, and perhaps even in the entire state.” Noting that members of Jessie’s family had received death threats, he reported, “People say we don’t need a trial, we need a lynching.” Claiming that Jessie could not get a fair trial anywhere in northeastern Arkansas, due to the extent of the pretrial publicity, Stidham argued that the law requiring that he be tried there was unconstitutional. Later he told reporters that he would like to see Jessie’s trial moved “as far away from West Memphis as possible.”

Jason’s lawyers took another approach to the publicity problem. Worrying that the pretrial motions they were filing might “reveal the essence of the defendant’s defense,” Ford and Wadley asked Burnett to seal all subsequent filings in the case. The
Commercial Appeal
was already concerned about the level of secrecy shrouding the case. When reporters learned of efforts to further restrict access to information, the paper filed a lawsuit. It objected to any future seals and asked Burnett to remove those that had been imposed at the time of the arrests. Burnett split the difference; he left the earlier, state records sealed but refused to seal pretrial motions.

Damien’s lawyers filed affidavits showing results of a mini poll they’d conducted, in which all twenty-six of the respondents said they doubted the defendants could get a fair trial anywhere in the judicial district. Asked what “the motive for the murder is believed or known to be,” those questioned in the survey had answered: “cults,” “devil worshiping,” “Satan worship,” “hate,” and “cruelty.”

Jessie’s lawyer asked, “Would the Court consider moving the case outside the district?”

“I don’t really see the need to do that,” Burnett responded. “Granted, I keep seeing these revealing reports on all the TV channels, and the
Commercial Appeal
is having a field day. It would seem to me that the news media could exercise a little restraint and maybe we could go on with the business at hand.”

“Your Honor, that is the exact point,” Stidham implored. “That is why I want to leave the district.”

But Burnett would not be moved. He announced that Jessie would be tried in January, in the tiny town of Corning, a few miles south of the Missouri border. Damien and Jason would be tried the following month, in Jonesboro, the district’s largest city.

As 1993 drew to a close, the defense attorneys were still begging Judge Burnett to let them question detectives Gitchell, Ridge, and Allen under oath. The lawyers wanted to understand precisely what had led the police to these three particular defendants. Stidham argued that Fogleman, through the use of his subpoenas, had “the right to go out and force people to come into their offices and put them under oath, ask them questions and have a court reporter there. We don’t have that power, and it inhibits our ability to represent our client.” But again, Fogleman insisted that the state was reporting everything it learned to the defense attorneys.

“Your Honor,” the prosecutor complained, “they keep talking about a level playing field. We’ve provided them everything that we have. We have no right to find out what their investigation discloses, and so the playing field is not level, and it is balanced in their favor, as far as discovery is concerned.”

“Judge,” Stidham countered, “Mr. Misskelley was interrogated by the West Memphis police for somewhere around twelve hours, yet the transcript is nowhere near twelve hours long. We should be entitled under due process, equal protection, and other constitutional requirements and safeguards to talk to these officers and find out what happened in this other time.”

“You have got my permission to talk to them,” Burnett responded.

“Do we have permission to ask them questions under oath and have a court reporter present?”

“No. No, you don’t…. I would like to know if there is any Arkansas case where you are permitted to do that.”

“Your Honor,” Stidham began again, “even a civil defendant has the right to conduct depositions. It seems like someone who is facing the death penalty should be afforded the same opportunity to depose the witnesses against them.”

Jason’s lawyer joined in the request to depose Gitchell, Ridge, and Allen. Ford told Burnett, “I want to have the opportunity, just like Mr. Fogleman has the opportunity, to question them under oath, and then, if necessary, send out that dragnet to poke holes in their story the way they are trying to do to the parents of my client.”