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The West Memphis Three

The notion of “due process” is often little more than a speed bump in an overcrowded criminal justice system. Those accused of crimes are expected to admit their culpability and accept the consequences for their behavior. Plea bargaining is an accepted and necessary part of American jurisprudence and, in its absence, the courts would effectively shut down. The majority of criminal defendants are, in fact, guilty of something and, to their credit usually, if not begrudgingly, accept responsibility for their behavior. The legislature and courts provide rewards for doing so in the form of diversionary programs and reduced or suspended sentences. When a defendant claims he is “innocent”, but wants to avoid a trial, the court requires what is called an Alford plea where he acknowledges his understanding that the legal system is designed to grind him into submission and it is in his best interest to accept whatever daily special the prosecutor is offering. The defendant who insists on his day in court is a monkey wrench in this slow grinding process and treated in the same manner one would treat an annoying hemorrhoid.

The government, with its seemingly unlimited resources, will spare no expense to remove this hemorrhoid tissue from society. Those with the resources to adequately defend against the onslaught are cynically accused of using their wealth to manipulate the process; those that are acquitted are vilified for “beating the system”. The public assumes that government resources are being used appropriately and are more likely to direct their ire at those that would defy it than those charged with its administration. Confident of the public’s support, the police and prosecutors often behave like children that have been bestowed with super powers and charged with the task of removing the blight of crime from society. Unfortunately, the gift of infallibility is not a power that can be granted by legislative fiat. Even more unfortunate, is the inability of these bureaucrats to acknowledge this legislative deficiency.

On August 19, 2011, three Arkansas men, Damien Echols, Jason Baldwin, and Jessie Misskelley, collectively known as the West Memphis Three, pleaded guilty under the Alford doctrine to charges stemming from the deaths of three eight-year-old boys. More than most, these men knew the painful and slow grinding process that the innocent must endure in an “infallible” criminal justice system. They had spent more than eighteen years behind bars for these crimes despite the fact that most reasonable people concluded long ago that their convictions were unjust. The american public watched as numerous documentaries disabused the evidence that had established their guilt. That same public witnessed the transformation of these defendants from confused and troubled teenagers into mature, articulate, and intelligent adults. As mature adults, they understood that maintaining their innocence would result in further incarceration; only a guilty plea would bring them the freedom they sought.

The pleas were made possible in November, 2010 when the Arkansas Supreme Court granted the three convicted men the right to present evidence of their innocence in a habeas petition. During their original trials in 1993, the science of DNA (deoxyribonucleic acid) was in its infancy and the juries did not hear that there was no DNA to connect any of these defendants to the crime scene or the victims. While a major victory for the West Memphis Three, the decision meant that they must return to the trial court and present “compelling evidence that a new trial would result in acquittal”-a process that could take years to complete. The prosecutors, knowing that a new trial would likely be granted, offered a deal that would free, and hopefully shut up, the three men and also save the state of Arkansas millions of dollars.

Accepting responsibility for one’s misdeeds can be a costly proposition and the Arkansas bean counters were probably happy with this result. The guilty pleas meant an end to almost two decades of costly litigation and precluded the three from filing wrongful-imprisonment suits for the time they spent in prison. Unlike their counterparts in Arkansas, prosecutors in Illinois admitted their mistake in the case of Thaddeus “T.J.” Jimenez after another man confessed to the murder he had been convicted of. Recently, a federal jury awarded Mr. Jimenez $25 million dollars after he had spent sixteen years in prison for a crime he did not commit. While the specter of civil liability was one factor, the cost of having to retry an eighteen year old case based on tenuous evidence would not sit well with any prosecutor. But there is another cost incurred by society when the innocent are wrongly convicted-a guilty person has been allowed to go unpunished.

It is doubtful the authorities in Arkansas will ever prosecute any other person for the deaths of these children. The DNA evidence that was not available in 1993 did implicate two other people-Terry Hobbs and his friend David Jacoby. Hobbs, the step-father of Steven Branch, was not initially considered a suspect but the evidence against him is compelling to say the least. He has a history of violent and sexually deviant behavior and cannot be eliminated as the source of a hair fiber found in a ligature binding Michael Moore. Additionally, he gave several different accounts of his whereabouts during the time the boys went missing and has no verifiable alibi. Natalie Maines Pasdar, a singer for the Dixie Chicks and supporter of the West Memphis Three, was sued by Hobbs in 2008 for defamation after she publicly reiterated the evidence against Hobbs. The case was a disaster for Hobbs. The previous allegations and innuendo became sworn depositions as Hobbs was required to defend his past behavior, his criminal record and his actions the night the children went missing. Under scrutiny, Hobbs stories became inconsistent and incoherent. The case was dismissed a year later and Hobbs was ordered to pay over $17,000 in legal fees to Pasadar.

Scott Ellington, the current prosecuting attorney, has stated that he would re-examine the case and, if credible evidence was produced, re-open the case. The West Memphis Three are well advised not to hold their collective breaths waiting for any official action. While prosecutors are quick to assign blame, they are reluctant to accept responsibility. History has taught that the best response to claims of “actual innocence” is simply ignore them and hope they go away. Three men have admitted that the state has sufficient evidence to prove their guilt and, under the circumstances, it would be political suicide to initiate a prosecution with a the central theme of “oops, we made a mistake.” The reputations of the police and prosecutors involved are far more important than the rights of the three convicted felons.

It has been said that the best revenge is to live well and towards that end, I can only wish the West Memphis Three a long, happy and prosperous life.

NOTE: Much more has been written and publicized about these cases than I could possibly write. Professor James Elkins, of the West Virginia College of Law has compiled a list of resources concerning this case including the trial transcripts as well as links to the various media reports about the cases. I first became aware of the West Memphis Three in 1996 after watching HBO’s documentary Paradise Lost, The Child Murders at Robin Hood Hills. At that time, while I was not convinced that the boys were factually innocent, I had grave reservations about the proof that had convicted them of these crimes, particularly the evidence against Damien Echols and Jason Baldwin. Jessie Miskelly, Jr., had given the police a statement that implicated Echols and Baldwin as well as himself in these crimes He later recanted this statement and claimed it had been coerced.

Because the statement implicated the other co-defendants, Miskelly was tried first and convicted. Faced with a sentence of life, plus forty years, the prosecutors believed he would testify against the co-defendants in exchange for a reduction of that sentence. It appears that there were negotiations between Miskelly and the prosecution but, for whatever reasons, no deal was made and he was not called as a witness. Without his testimony, and based on my limited knowledge of the case, it was my opinion that while these three probably committed the crimes, I didn’t think the state had proved its case against two of the defendants.

At the time, my view was that this was one of those cases where there was “probable cause” to believe the defendant’s guilt, but not proof “beyond a reasonable doubt”. This is they type of case which should, but usually does not, create an ethical dilemma for a prosecutor. The Rules of Professional Conduct, § 3.8(1), applicable in Connecticut, prohibit a prosecution only where the case is not supported by “probable cause”. Other jurisdictions have adopted the ABA standards which are more stringent and state that a prosecutor should decline prosecution in the absence of “sufficient admissible evidence to support a conviction”. See, ABA, Criminal Justice Standards, § 3-3.9. In applying this standard, appellate courts will view the evidence in a light most favorable to sustaining the conviction. As such, appellate courts are ill equipped to deal with a wrongful conviction based on an error of fact. It simply looks to see if the direct and circumstantial evidence, if believed, establishes each element of the charged crime.

Notwithstanding the legal sufficiency of the evidence, the ABA standards allow a prosecutor to decline prosecution, when he or she has a “reasonable doubt” about the accused’ guilt. This is a gate keeping function where the prosecutor, with regard for the presumption of innocence, is expected to use his or her judgment and examine and weigh all the evidence, whether inculpatory or exculpatory. In this situation, the standard leaves the decision of whether or not to prosecute to the discretion of the prosecutor.

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