Devil's Knot: The True Story of the West Memphis Three (23 page)

Tensions were palpable the next morning. All the lawyers met in Judge Burnett’s courtroom in Jonesboro for a pretrial hearing. The prosecutors were not convinced that Jessie was going to stay silent. Jason’s lawyer was pressing again to have Jason’s trial severed from Damien’s. And now Damien’s attorneys wanted Judge Burnett to order the HBO filmmakers to surrender footage they’d heard had been shot of John Mark Byers. The lawyers told the judge that in the segment they wanted, Byers was reportedly shown standing at the site where the boys’ bodies were found, “talking about being accosted when he was eighteen or nineteen years old, tied up, sodomized, and thrown into a ditch.” Burnett rejected the request.
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After the hearing, Fogleman called Jessie’s father, asking that he speak to his son and persuade him to testify. Big Jessie told Fogleman bluntly that Little Jessie had no interest in the deal. Davis then asked Jessie’s lawyer to let the prosecutors put the question to Jessie themselves. Stidham refused. But the prosecutors were not thwarted.

They went to Burnett. Without notifying either Stidham or Jessie’s father, they asked the judge to issue an order for Jessie to be taken out of prison and brought to Jonesboro. Information was leaked to the media that Jessie was moved so that he could be available to testify at the Echols-Baldwin trial, which was still a week away. Stidham learned that his client had been moved while watching the television news. He was furious. He later complained that Judge Burnett had issued the order for Jessie to be moved ex parte, after consulting only with the prosecutors, while Jessie’s attorneys had been excluded. Stidham said the first he’d seen of Judge Burnett’s order was the copy shown on television.

All hell broke loose, legally, during the next three days. On February 17, five days before Damien and Jason’s trial was to start, Jessie was driven from the prison at Pine Bluff to Rector, a town of about three thousand, some forty miles northeast of Jonesboro. At about 5
P.M
., a sheriff’s deputy drove Jessie to the law office of one of Davis’s assistant prosecuting attorneys.
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Davis was already there waiting. At about six-fifteen, the local deputy prosecutor called attorney Stidham at home to report that Jessie was now in Rector—and that he was prepared to make a statement.
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Stidham could not believe what was happening. He told the deputy prosecutor that neither he nor Davis were to take any statement from Jessie. Then Stidham picked up his partner, Greg Crow, and the two men sped through the dark to Rector, in the far northeast corner of the state. Forty-five minutes later, they pulled up in front of the office where Jessie was being held.

Stidham and Crow demanded to speak with their client in private. When the prosecutors left the room, Jessie happily told his attorneys that the deputy who’d driven him to Rector had promised to bring Jessie’s girlfriend to see him in the local jail. Stidham had never encountered a situation anything like this. As he later recalled the night, he and Crow had had fifteen minutes in the conference room alone with Jessie when Davis opened the door, insisting the session must end. He said that Jessie had agreed to make a statement and it was time for him to make it. Stidham and Crow objected strenuously to having their meeting with their client interrupted. Davis left the room but returned a few minutes later. This time, in front of Jessie, he and the deputy prosecutor expressed their concern that Jessie’s two defense lawyers would convince him not to talk. As the argument ensued, Jessie stood up. He announced that he
did
want to make a statement, then, turning his back on his own lawyers, he walked out of the conference room with the prosecutors.

Stidham rushed to a phone to call Judge Burnett at home. He complained that the prosecutors were violating his client’s constitutional rights. He told the judge that Jessie had requested psychiatric help upon his arrival in prison, and asked that Judge Burnett delay any questioning until a psychiatric evaluation could be performed. Burnett refused. Then prosecutor Davis took the phone. Burnett told him that he could inform Jessie that anything he told the prosecutors would not be used against him in court. And that was that. At 8:02
P.M
., with Jessie’s lawyers in the room, Davis turned on a tape recorder and placed Jessie under oath.

This time Jessie said that he went to the woods with Damien and Jason after he got off work, which was around “dinnertime.” He’d been drinking whiskey Vicki Hutcheson had bought him. It was “still daylight” when he arrived at the woods “by a bridge…on the service road.” He, Damien, and Jason heard “some noise.” All three of the teenagers hid. “Then three little boys come up and we jumped ’em.” In this recounting, Jessie did not identify any of the victims by name, but he did recall some dialogue. He said that as the younger boys were being attacked they’d yelled, “Stop! Stop!” but that Damien had yelled to Jessie and Jason, “No! No! Don’t stop!”
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Jessie also supplied another detail of the attack, but this one posed a problem for Davis, as it contradicted Fogleman’s theory that the knife taken from the lake behind Jason’s trailer had been the murder weapon. When Jessie told Davis that Jason had been “swinging” a knife at the boys, sending blood “flying,” Davis asked what the knife looked like. “I can’t remember,” Jessie said. Then he added, “All I know is it’s a lock blade.” The knife from the lake was not a folding type, but a fixed-blade survival knife. Davis asked, “When you say a lock-blade, one that folds out and locks?” Jessie answered, “Yeah.”

Davis asked Jessie about his earlier statement to police that the boys were tied with rope. “I made that up,” Jessie said. This time Jessie was clear that the boys were tied with “shoestrings,” but he was vague about how the laces had been removed from the shoes. This time he recalled seeing all three boys thrown into the water, after which he left, still carrying the whiskey bottle. He said he “busted” the bottle on the way home, on “like a slope going down over the overpass,” then he went to a wrestling match with a friend. Davis asked if there were “events that took place that night” that were difficult to remember. Jessie answered, “I can’t remember.”
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The next day, Stidham formally notified Judge Burnett that neither Davis nor Fogleman were to have any further contact with Jessie. But Stidham’s outrage affected nothing. Every day until the start of the trial, one or the other of the prosecutors continued to visit Jessie in jail. Stidham was not told of the visits. Burnett did not intervene.

The furor surrounding Jessie was still raging behind the scenes as prospective jurors arrived at the Craighead County Courthouse for Damien and Jason’s trial. It was February 19, and northeast Arkansas was crackling beneath a second blast of ice. As media and spectators gathered for the long-awaited trial, lawyers on both sides met in the chambers of Judge Burnett for another intense confrontation. Stidham spoke first. He argued that Jessie was being used and that his future appeals were being compromised by the state. He wanted the prosecutors stopped. He handed Judge Burnett a motion citing all of the contacts state officials had had with Jessie, in which the boy had been urged to talk, since the moment of his conviction.

Stidham complained that as Jessie’s attorney, he had notified Davis and Fogleman repeatedly that Jessie
would not
testify at Damien and Jason’s upcoming trial. The prosecutors’ “improper contact” with Jessie, he said, was a “conscious and calculated attempt” to circumvent the boy’s rights to remain silent and to receive the assistance of counsel. Stidham said, “They even promised to bring his girlfriend to see him at the jail, Judge. I think that is the most abhorrent, ridiculous, flagrant violation of my client’s rights that I have ever seen.”
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Again, Stidham asked Burnett to order the prosecutors “not to have any contact whatsoever, directly or indirectly,” with Jessie without Stidham’s knowledge and consent. He also asked that the prosecutors be held in contempt of court and “punished accordingly.” Finally, he asked that a special prosecutor—“preferably one from outside the Second Judicial District”—be appointed to investigate the prosecutors’ behavior.

Davis countered that Stidham had become unreasonable and that Stidham’s interests and Jessie’s “were no longer consistent.” Davis told Burnett that once Jessie started talking after being sentenced to prison, Stidham had “lost his objectivity as to what was in his client’s best interest.” Davis said Stidham no longer understood what to do “to get to the bottom of the truth.”

Judge Burnett quickly settled the matter. He walked into the courtroom, seated himself at the bench, and dealt with the issue in public. Noting that word of the discussions about Jessie Misskelley—and criticisms of the prosecutors’ behavior—had already reached the media, Burnett announced that no prosecutors had engaged in misconduct. As reporters scribbled their notes, the judge added that Jessie would be allowed to testify “if he chooses to do so.”
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A
FEW DAYS BEFORE
the start of Damien and Jason’s trial, the
Memphis Commercial Appeal
reported that a “club” with what appeared to be blood and hair on it had been found in the mobile home where Damien lived at the time of the murders. The trailer’s new renter had found the club and notified police. But though the report created another sensation, it was quietly proven untrue. The stick turned out to be an old axe handle that had been used to stir red paint. The hair was from a dog.

To Damien’s private investigator, the story typified what the defense had been dealing with throughout the case: wild suspicions, false claims, and convenient leaks from police to the press. Ron Lax had been trying since the beginning to find a consistent theory of the crime, a clear motive—something the defense could attack. But the state’s version of the crime had kept changing. Too much about this case was vague, contradictory, confusing. It was hard to find a clear path through it. To Lax, nothing about it seemed fixed. Stories and testimony had kept changing. Documents, such as the first police interview of Byers, had been inexplicably withheld, while possible weapons, such as sticks and the lake knife, had popped up long after the arrests. Amid so much uncertainty, it had been hard for the defense to prepare.

But however crazy the case appeared, Damien and Jason’s lives were now on the line, and with the trial about to start, Lax dove for one last time into the discovery records. Lax had arranged them chronologically and by subject, and added his and Shettles’s notes. While jurors were being selected to judge Damien and Jason, Lax methodically reviewed the now organized police file. In the process, he noted references to several documents that he had never seen, records that should have been part of the file but that had not been turned over to the defense. Among the items Lax would have expected to find but did not were notes from the patrol officer who’d searched the woods with John Mark Byers on the night the boys disappeared; a behavioral profile of the killer that Inspector Gitchell had requested and that had apparently been prepared by the FBI; Don Bray’s notes from his interviews with Vickie and Aaron Hutcheson; any notes, reports, or photographs of the place where Vicki Hutcheson told police she’d attended the alleged esbat, the tape recordings made when detectives had wired Vicki Hutcheson’s trailer; and follow-up notes to the report from Memphis police that both Mark and Melissa Byers had been confidential drug informants. Working with what they had, Lax and Shettles assessed, visited, and in some cases revisited the witnesses whose testimony might prove most damaging.

Vicki and Aaron Hutcheson topped the list—not because Lax found their statements compelling but because the police and prosecution had placed so much stock in them. As recently as the last week of Jessie’s trial, Bray had tape-recorded yet another statement from Aaron, and it had turned out to be the most elaborate yet. This time, Aaron stated that his friends had been beaten with long sticks that had a dragon carved on them, and that Damien and Jessie had poured blood into a glass and made him drink it. The inconsistencies in Aaron’s numerous statements were so many and so profound that Lax could not imagine that Prosecutor Fogleman would call the child to testify, no matter how sympathetic an eight-year-old friend of the victims might appear. But on the other hand, Lax reminded himself, the prosecutors were working feverishly to get Jessie to testify—and his statements had been profoundly inconsistent too.

Aaron’s mother was a different matter. Vicki Hutcheson had already testified at Jessie’s trial, and she would probably be called again. Lax urged Damien’s and Jason’s attorneys to press Hutcheson about her past and about her own inconsistencies, especially with regard to her reports of the esbat. At one point she’d said that she, Damien, and Jessie had arrived at approximately 6
P.M
. In another, she’d said that it was “really dark” when they arrived. Lax also wanted someone to zero in on her claim that Damien had driven the car. The investigator noted that in the police interviews, “there was no discussion regarding the fact that Damien is not capable of driving any type of vehicle.” Recalling Bray’s report that Hutcheson told him in advance that she was going to attend the esbat, Lax wrote, “It seems odd that if she was conducting this ‘investigation’ and she informed the police that she was going to attend a Satanic cult meeting with their primary suspect, they would not have placed surveillance on her.”

The question of how to treat John Mark Byers was vastly more complex. Since the appearance of Byers’s knife, additional bits of information about Byers’s past had come to light. Among the police records that were turned over to the defense was a tip from the television program
America’s Most Wanted,
which had aired a segment on the West Memphis murders. An unidentified woman had called in to report that Byers had beaten his wife and children in the past, and that on the night the boys were missing, he and Melissa had argued and he’d hit her several times.
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By the end of Jessie’s trial, Lax and the defense attorneys had also learned of Byers’s conviction for terroristic threatening. Lax located Byers’s ex-wife, Sandra Slone, who had remarried and now lived in Missouri.

She was cooperative but reserved when he telephoned her.
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In his notes on the call, Lax wrote that when Byers’s ex-wife heard about the West Memphis murders, she’d said, “she immediately suspected Byers was responsible. She described him as extremely violent and said her children were deathly afraid of him. She stated he used to beat her and the children, but did so in a way which left no visible marks or bruises, when dressed.” Lax wrote that the woman told him she had reported her fears for herself and her children to Inspector Gary Gitchell, but that the detective had “assured her Byers was not a suspect and was not connected with the murders. He told her any problems with Byers were personal problems, with which she would have to deal and he could not help her further.”

Accustomed as he’d become to peculiarities in the case, Lax found the woman’s statement astonishing. Byers’s attack on her six years earlier had been proven in court, his stepson had been brutally murdered, his account of his activities on the night of the murders conflicted with accounts of other family members, and a knife belonging to him had recently turned up with blood on it that might have been Christopher’s. Yet here was Byers’s ex-wife saying that when she told Gitchell that she feared for herself and her children, her concerns had been rudely ignored.

The conversation illustrated what had become a fundamental dilemma for the defense—the question of how to handle Byers. His status as a police informant, combined with Gitchell’s delicate questioning of him about the bloodstained knife—and now Slone’s reported suspicion that he’d long had police “connections”—heightened Lax’s and the lawyers’ suspicions. But they shared the same concern that had dogged Stidham in Jessie’s trial—that if they even hinted that Byers was the killer, without hard evidence to prove it, they risked inflaming the jury.

On the eve of the trial, Lax also tracked down another teenager who’d told police he’d heard Damien discussing the murders.
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The sixteen-year-old was one of the witnesses Fogleman had subpoenaed to testify at the upcoming trial. After the boy admitted to Lax that what he’d told the police was “wrong,” Lax videotaped an interview with him and his mother. The woman said that she’d been asked to bring her son to the police station in September 1993, four months after the murders. She said Detective Bryn Ridge questioned him briefly, then had him take a polygraph test. After that, Ridge and Durham had questioned him again.
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The mother told Lax that though she went to the police station with her son, she’d been asked to sit in the hall. The woman said she did not know—and police did not tell her—that she had a right to be with her son while he was being questioned. Lax noted in his taped interview that statements the boy made to the police before he was polygraphed differed from those he made after. Lax asked him why that was. The teenager answered, “Because in the first part, I was telling the truth, that I didn’t know nothing. The second part, they took me to the, uh, polygraph, and went downstairs and got fingerprints, and when I came back, they told me I was lying and everything. Just kept on and kept on and kept on about Damien this, Damien that…”

The boy said the officers had not hit him, but that they had “kept on and kept on” yelling, “like I was fixing to get arrested or something.” In his statement after the polygraph, the boy told Ridge and Durham that he’d heard Damien say he’d been present “when the little boys got killed.” Lax asked if he’d been frightened, and the boy nodded yes. He said he was afraid “that they was going to try and say I was there and…that I knew them. Then I thought I was going to, like, get involved and have to go to court, you know, like they are.”

The list of prospective witnesses that Fogleman had given the defense contained more than two hundred names. More than a tenth were police officers; a few more worked at the state crime lab. One of those would deal another blow to the case Fogleman was trying to make.

From the first day of the investigation, police had acted on the assumption that the victims had been sodomized. One reason for that was that the crime looked sexual. The boys’ nakedness suggested that, as did the way they were tied: bound behind their backs, with their genitals prominently exposed and their backsides accessible. Of course, Christopher’s castration was a violent sexual assault. The other factor that led police to believe that the boys had been sodomized was that their anuses had appeared dilated, or unnaturally open, when the bodies were removed from the water.

Though the autopsies were performed the next day, the medical examiner’s inexplicable delay in releasing the autopsy reports forced Gitchell and his detectives to proceed on their suppositions. Weeks passed without a definitive answer on the question of rape, which was why, in his letter to the medical examiner almost a month after the murders, Gitchell still had had to ask, “Were the kids sodomized?” He did not have an answer when Jessie was interrogated. But the strength of the detectives’ assumption that the boys had been sodomized was reflected in Detective Ridge’s questions. Jessie told the police he’d seen Damien and Jason “screwing” the boys, and that aspect of his statement had contributed to the loathsomeness of the crime. Yet after the arrests, when the belated autopsy reports finally arrived, all three of them stated that “no injury” had been found to the boys’ anuses.

At Jessie’s trial, Dr. Peretti, the associate medical examiner who’d performed the autopsies, testified that while he could not rule out that the boys had been raped in the attacks, there was no physical evidence to support the contention. When Stidham asked Peretti if he would expect to find injuries to the children’s anuses if an eyewitness had reported seeing them raped, the pathologist said he would. “If it were forcible, I would expect to find injuries,” Peretti said. “If the penis enters the anal canal, I would expect to find bruises and abrasions to the opening. I couldn’t find any physical evidence of that.”

Because of Peretti’s testimony, the defense lawyers had asked Judge Burnett to bar the prosecutors from claiming that the boys had been raped—an allegation that, the defense lawyers knew, carried intense emotional weight with the jury. But Peretti’s testimony posed no problem for the prosecutors because, despite the lack of evidence to support the claim, Judge Burnett allowed them to say that the boys had been sodomized.

The sodomy question remained one of the case’s numerous ambiguities. Jessie’s most recent statement had made it even murkier. In Jessie’s confession to the West Memphis police, given at a time when the police believed the boys had been sodomized, Jessie’s story had conformed to that belief. He said he’d seen Jason and Damien “screwing” the victims “in the ass” and “in the mouth.” But a few nights before, in Rector—after Jessie’d heard Peretti testify at his trial that he’d found no evidence of sodomy—Jessie’s story had changed. “They didn’t do it,” Jessie’d told Davis, when the prosecutor asked. “He was going to do it, then they didn’t.” If Jessie decided to testify at the trial that was about to start—a question that was still not completely resolved—Lax and the defense lawyers had a hard time trying to imagine what the state’s contention on the sodomy issue might be.

Another question concerned what evidence the state planned to present against Jason. Lax knew that Lisa Sakevicius, the crime lab analyst, would testify, as she had at Jessie’s trial, that fibers found with the victims bodies were “microscopically similar” to fibers from a shirt foundin Damien’s house and from a bathrobe found at Jason’s. But Lax anticipated that the fibers would be easy to discount. They were too common, for one thing. For another, Lax found it a stretch to think that the only evidence Jason had left behind at the crime scene was a fiber from a garment that did not even belong to him. Lax figured that even the prosecutors probably realized that this argument for secondary transfer of fibers was a skimpy one, at best.

As evidence, the knife from the lake didn’t look much better. Lax figured that Fogleman would tell the jury that that was the knife used on Christopher Byers, and that its location, in the lake behind the trailer where Jason lived, connected him to the crime. But again, if Jessie testified, the knife would present new problems, since it bore no resemblance to the folding knife that Jessie had described to police. To try to connect Jason to the murders with nothing more than the lake knife and a fiber from his mother’s bathrobe looked to Lax like a long shot. But then, less than a month before the start of Damien and Jason’s trial, in a turn of events almost as remarkable as the discovery of the knife, a new witness suddenly emerged. Like the knife, the witness would link Jason to the crime.