Devil's Knot: The True Story of the West Memphis Three (16 page)

“Your Honor,” Fogleman interrupted, “they have got that. They have got everything that we’ve got. Every note—everything.”

“But it is not under oath, Your Honor,” Ford insisted. “It is not under oath. If it is not under oath, we are limited in how we can use those notes to impeach them on the witness stand.”

But Burnett stood firm. The police would not be questioned under oath before the start of the trials.

Glori Shettles sat through the hearing with Damien and his lawyer Val Price. She was troubled by the behavior of John Mark Byers, who, she said, sat nearby, “glaring” at Damien, except when he occasionally “nodded off.” She wrote in her notes that she suspected that he was “under the influence of drugs and/or alcohol.”

At one point, while Price was at the bench consulting with Fogleman, the other lawyers, and Burnett, Damien leaned over to her and whispered that members of the victims’ families had yelled and cursed him again as he’d entered the courthouse. They’d called him a “faggot murderer,” he said. He told Shettles that despite her cautions, he had not been able to control himself. He’d turned to them and said, “Fuck you.” But at least, he noted, he had not yelled the words. Shettles wrote afterward that Damien had “appeared frustrated and angry at himself.” When Damien reported the jeering to his lawyers, one of them, Scott Davidson, decided to accompany Damien as he walked out of the courthouse after the hearing. Shettles wrote in her report, “Scott returned shocked at the verbal assaults he’d witnessed.”

After the hearing, the courtroom was empty except for Inspector Gary Gitchell, the judge, the lawyers, and her. Shettles later reported to Lax that in that more informal atmosphere, Burnett asked Damien’s lawyers if their client had decided to testify against his codefendants. She said Judge Burnett had observed that such a turn of events would make the case “more interesting.” Damien’s lawyers replied he had no such intentions. Shettles told Lax that Fogleman then commented that something would have to be done about Damien’s eyes for him to be credible. “As comments such as these are made,” Shettles wrote in her report, “I continue to have great concerns regarding any possibility of Michael Echols receiving any semblance of a fair trial.”

The defense attorneys had many concerns, but Fogleman harbored some too. Six months had passed since the murders, and though much of the public believed that the teenagers were guilty as charged, other than Jessie’s confession, all of his evidence was circumstantial, and there was not much even of that. Jessie had retracted his confession and vowed not to repeat any part of it. The crime lab had reported a similarity between some fibers found with the bodies and fibers taken from the defendants’ homes, but similar fibers could have been found in almost any house in Arkansas. The police had found two young girls and a couple of teenage boys who said they’d heard Damien brag that he’d committed the murders, but that wasn’t much of a foundation from which to argue for the death penalty. The prosecutor faced going into court with only Jessie’s retracted confession to present against him, with only Damien’s weirdness to present against him, and with virtually nothing to present against Jason. Then Fogleman had an idea.
¹⁸²

He decided to search the lake behind the trailer where Jason lived. He said that as he drove around the trailer park, “I said to the officers I was with, ‘What better place to dispose of evidence than in a lake?’”

Fogleman contacted the Arkansas State Police, which dispatched a team of professional divers. On November 17, one of the divers entered the littered water of what was known as Lakeshore Lake at a point between the trailers where Damien and Jason had lived.
¹⁸³
A short time later, he emerged holding a nine-inch survival knife, with a distinctly jagged blade. It was exactly the type of knife that Deanna Holcomb, Damien’s former girlfriend, had told police he sometimes carried. The diver said he’d found the knife, buried up to its hilt in mud, at a point forty-seven feet behind Jason’s house.

Fogleman later described the find as “quite a coincidence.”
¹⁸⁴
He said he considered the possibility that “somebody could have planted it” but had dismissed the idea because, as far as he knew, “the only people who knew we were going to do that search were the police.” Fogleman said there were two reasons he was sure the knife had been thrown into the lake by the murderers. First, he said, no one other than the investigators knew that Deanna had told police that Damien had owned such a knife. And second, anyone planting the knife would have had to know, as Fogleman put it, “not just that we were going to look, but when we were going to do it.”

He regarded the knife as a coup. The crime lab had reported that the wounds on Christopher Byers had been inflicted by a knife with at least one serrated edge, and this knife had a serrated edge. The knife resembled the one Deanna had described. And there was the “coincidence” of where it was found—almost directly behind Jason’s trailer. With one inspired move, Fogleman had directed police to evidence that would become the centerpiece of his case—evidence that had eluded police, evidence he could link to Jason.

But there was more than “coincidence” in Fogleman’s account of the knife’s discovery. For one thing, it was contradicted in part by Gitchell. Despite the court order prohibiting release of information about the case, the day after the dive, the
West Memphis Evening Times
ran a front-page story about the sensational find. Gitchell even talked about it with reporters. But he did not say that the search of the lake had been Fogleman’s idea. To the contrary, he said, his department had wanted to search the lake for several months but had not previously had an opportunity.

The matter of who would get credit for the discovery—the police or the prosecutor—amounted to a minor difference. What was not minor, in light of Fogleman’s claim that no one but the police knew “that we were going to look” and “when we were going to do it,” was the photo that ran with the page-one article. It showed a diver, still neck-deep in the water and wearing his diving mask, holding up a large serrated knife. The article offered no explanation as to how the reporter who’d taken the photograph had known about the search.
¹⁸⁵
The photo’s caption simply read: “Knife found near suspect home.”

W
HILE THE LAWYERS WRANGLED
, private investigator Ron Lax delved deeper into “the discovery mess.” At the end of November 1993, despite Fogleman’s repeated assurances to Judge Burnett that the defense would have the entire police file by the end of August, the prosecutor suddenly released another large batch of material. One item in the batch, in particular, had sparked the defense lawyers’ interest: a transcript of the interview that detectives Ridge and Sudbury had conducted with John Mark Byers on May 19, more than six months earlier. This was the first the defense had seen of it. This lengthy interview, which was conducted
before
the arrests, had inexplicably been withheld, not just past August but for more than three months after that. Until now—three weeks before the Christmas holidays and with Jessie’s trial just six weeks away—the three defense teams had known nothing about the John Mark Byers element of the investigation.

As with all the documents received, Lax summarized the transcript for the attorneys. He outlined Byers’s account of his whereabouts on May 5, beginning early in the evening, when he began searching for Chris and reporting the boy’s disappearance. Lax noted, “It was not clarified why Byers became worried so quickly.” But coming late as it did, with the trials looming, the transcript did not receive the scrutiny it otherwise might have. Neither Lax nor the defense lawyers caught the points on which Byers’s account had differed from the statements given by Melissa and Ryan to police, partly because those reports had been released months earlier. Byers may have looked like a shady character, but so far as the defense teams knew, he had not been a suspect in the murders. So Lax focused on what the transcript implied about the conduct of the investigation—and the significance of that for the defense.

“On page thirty-one of the interview,” he wrote with emphasis, “Byers tells Ridge that John Fogleman had promised him and the other fathers that he would seek the death penalty for the individuals responsible,
regardless of their age
. Fogleman also allegedly told the fathers he did not see how the responsible parties could claim insanity since they had tried to cover up the crime.” Noting that this interview was conducted on May19, two weeks after the murders and two weeks before Jessie’s confession, Lax asked pointedly, “Why would Fogleman refer to the age of the responsible party(ies) this early in the investigation?”

Lax felt unusually unprepared as the trial dates drew nearer. He still did not see how Fogleman was going make his case. At the same time, however, he and Shettles shared deep concerns about certain aspects of the defense. Damien’s mental state was one. Although his mother and sister, and both Joe Hutchison and Jack Echols, had stood by Damien since his arrest, Lax and Shettles worried that his obvious psychological problems would cloud his prospects at trial. As the date of his trial approached, those concerns grew more acute.

Becoming a father had not helped. Damien and Domini’s son, Seth Damien Azariah Teer, was born, as expected, in September.
¹⁸⁶
Domini brought him to the jail soon afterward, but the sheriff would not allow Damien to touch the baby. The following month, Damien’s maternal grandmother died.
¹⁸⁷
When Lax and Shettles visited Damien during the first week of November, Shettles noted that “he appeared frightened,” he was “biting his nails,” and “his hands were shaking rather violently.” Lax brought a pack of cigarettes, which, Shettles observed, Damien “practically snatched from his hand.” She noted, “He began chain smoking and consumed at least eight cigarettes in our hour to hour-and-a-half visit.” Lax asked what was wrong, but Damien did not answer. When Lax asked Damien if things were “getting to him,” Damien answered, ‘Sometimes.’”

Lax wrote in his notes following the visit that he believed Damien was “suffering from great depression.” Nonetheless, Lax felt he needed to confront Damien about a key issue in the case. Had Damien ever told people that he’d committed the murders? Shettles had posed the question to Damien on a visit a few weeks before. She’d explained to him that some girls at a softball game had reported that they’d heard Damien claim responsibility. Shettles advised Damien that the girls might be witnesses against him. Shettles wrote that Damien “admitted that prior to his arrest, he made remarks to various persons, when asked about the murders, that might be misconstrued.” However, she added, “He stated he did not make any remarks in a serious nature, although some of his comments could have been misinterpreted.” Now that Lax was visiting, he pressed Damien to be more specific. But Damien seemed unwilling or unable to acknowledge to the investigator that he may have hurt his own case. Lax wrote, “When I asked him about the numerous references in the police files regarding individuals who say Damien either told them he was responsible, or they overheard Damien say this, he does not answer, but merely sits there and stares.”

When Shettles visited the following week, Damien said he was feeling better, although she noted that his hands were still shaking.
¹⁸⁸
In December, Shettles brought cupcakes to the jail, along with a couple of books, for Damien’s nineteenth birthday. But the event was overshadowed by discussions of the upcoming trial. Shettles recalled Damien saying that if the jury found him not guilty, he wanted to “move out of state, and would like to own a bookstore. However, he informed me, if he is found guilty, he will throw himself ‘out of a third story window.’ Michael is anxious to have his trial over, ‘one way or another.’”

In late December, Fogleman released the transcript of an interview that Detective Bill Durham had conducted with Jerry Driver earlier in the month. According to the transcript, Driver reported that for as much as a year before the murders, he’d been closely watching seven kids who’d exhibited what he called “all the earmarks” of satanic involvement. He described the suspicious earmarks as “the tattoos and the devil rings and this and that and the other.” Driver considered Jessie’s “spike hair and stuff” as a sign of his involvement.
¹⁸⁹

Lax next tracked down Marty King, the manager of the Bojangles restaurant. King reported that on the evening after the boys’ bodies were found, an off-duty West Memphis police officer had come into the restaurant to eat. King said he told the officer about the bloody man who’d come in the night before. The officer checked the rest room, found some remaining flecks of blood, and called the police department. A short time later, King said, Detective Allen and Sergeant Ridge arrived. The visit marked the first time since King’s call to the police about the bloody man that detectives had entered the restaurant.

King said that he gave Allen and Ridge a pair of sunglasses he’d pulled out of the commode, and that the detectives then took blood scrapings from the rest room wall. After that, King said, he never heard from them again.

“Has any police officer contacted you since that incident to show you photographs or to discuss this incident any further with you?” Lax asked.

“No sir.” King replied.

Another of Lax’s interviews was with a teenager who’d known Jessie Misskelley. Fogleman had listed the boy as a potential witness. Police reports indicated that they had questioned the eighteen-year-old for close to five hours, during which Durham had administered a polygraph exam. They had then videotaped a statement in which the boy said that Jessie had admitted to him that “he was with Jason and Damien when they sacrificed them little kids.”

On December 30, Lax drove to the teenager’s house. He introduced himself as a private investigator and spoke briefly with the boy and his uncle. After that, with the uncle present, Lax tape-recorded an interview with the boy. In his summary of the taped interview, Lax wrote that the boy had “stated he attempted to tell the police the truth about what he knew regarding the murders of the three boys, which amounted to nothing. He stated the police continued to yell and scream at him until he told them what he thought they wanted to hear. He informed me Jessie Misskelley had never said anything to him about the young boys, nor had anyone else, and he had no knowledge whatsoever of the murders.”
¹⁹⁰

This was not the only interview Lax conducted with a teenager who described a disturbing experience with police. Christopher Littrell, a neighbor of Damien’s, told Lax that he had been questioned twice.
¹⁹¹
The first interview, on May 10, five days after the murders, had lasted for three hours. The boy’s mother had been present and, Lax wrote, the boy stated that “everyone treated him cordially.” However, on May 27, police picked up Littrell from school and questioned him for another two hours, this time without his mother present. The boy told Lax that Durham had been “nice” to him throughout the interview but that Inspector Gitchell had become “extremely upset on occasions and would yell and scream at him.” At one point, Lax reported, the boy said Gitchell had “grabbed his chin” and put his face close to the boy’s, threatening that “he would have no reservation about keeping him in the holding tank if he wouldn’t tell the truth.”

Lax also revisited Vicki Hutcheson. On this visit, he was particularly interested in an altercation that had taken place between 5:30 and 6
P.M
. on the evening of the murders, in the trailer park where Hutcheson and Jessie lived. Because of the apparent importance police had placed on Aaron Hutcheson, his whereabouts at that time were crucial. Marion police had responded after a woman living in Hutcheson’s trailer park had reported that a neighbor had slapped her son. An officer had come to the trailer park, but left a few minutes later. Then the neighbors had argued again, and this time, three squad cars had responded.

Lax interviewed five residents of Hutcheson’s trailer park.
¹⁹²
All reported that Vicki Hutcheson had participated in the events that night when the police were called, and that Aaron had been with her. Lax didn’t know what Fogleman intended to do with Aaron’s many statements, but he felt better after talking to the neighbors.
¹⁹³
Since he was there, he also asked the women about their experiences with Vicki Hutcheson in the days after the murders, and if Hutcheson had ever mentioned the $35,000 reward. One of the neighbors told Lax that the subject had come up twice. “At one time she told me that they were going to split the reward money between Aaron and another little boy,” the woman said. “Another time she told me they were going to give Aaron all the reward money.”

Another woman said she also recalled hearing Hutcheson discuss the reward. “She had told me that Aaron was receiving it,” the woman said, “and she told me how she was going to spend the money, what she was going to buy with it.”

“Did you ask her why Aaron was going to receive the money?” Lax asked.

“Yes sir.”

“And what did she say?”

“She said because he had seen the murders.”

“Did you believe it?”

“No sir.”

“Why not?”

“Because he was out here in the trailer park.”

Family members of the victims were also listed among the witnesses Fogleman said he might call. Since they seemed to have no information that implicated any of the defendants, Lax did not interview them. The filmmakers Berlinger and Sinofsky, however, were very interested in the families. Their request to film the shower for Domini’s baby had been only the start.

Since then they had contacted all of the principals in the case: the families of the victims, the defendants and their families, the police, the lawyers, and the judge. They’d offered money to the defendants and to family members of the victims who agreed to be interviewed. Damien was offered $7,500 if he would agree to two interviews. His defense attorneys, and the others, were reticent.
¹⁹⁴
But the filmmakers noted that the finished documentary would not be released until several months after the trials, and ultimately, the lawyers gave their clients the go-ahead for a couple of interviews each.
¹⁹⁵
Though Judge Burnett withheld his decision on the filmmakers’ request to videotape both of the trials, he too relented shortly before the trials began.

From the summer of 1993 through the end of the year, filmmakers Sinofsky and Berlinger were able to record moments with members of both the victims’ and the defendants’ families as they grappled with what had happened—and contemplated what lay ahead. Michael’s parents, Todd and Dana Moore, seated together at a table in their house, were the quietest in front of the camera. After describing some of the questions that haunted them as parents—“Was he calling for me?”—Todd Moore said simply that Michael had been killed “by real monsters.”

Pam Hobbs, Stevie Branch’s mother, was filmed in front of the elementary school as she was being interviewed by a local TV reporter. Chewing gum, giggling, and fiddling with a yellow Cub Scout scarf that had belonged to Stevie, she looked, at turns, delighted to be on camera and sobered by the subject of her son’s murder. Microphone in hand, the reporter asked, “Do you feel the people who did this were worshiping—”

Hobbs finished the question for him. “Satan? Yes, I do. Just look at the freaks. I mean, just look at them. They look like punks.” She fairly spat the last word.

But no one’s rage or venom compared to that expressed by the Byerses. Melissa was filmed seated at a kitchen table. She had dark circles under her eyes. “Christopher never hurt anybody,” she said. “He had a gentle, loving, and giving heart, and they crucified him in those woods. And they humiliated his little body. They took his little manhood before he even knew what it was. And I hate ’em for it. I never hated anybody in my life, and I hate those three”—then, hammering the table with her finger, she added emphatically, “And the mothers that bore them.”

Her husband, Mark, wearing overalls, accompanied the filmmakers to the gully where the boys’ bodies were found. There he delivered a monologue in language that was as brutal as it was sentimental. Full of religious allusions, it was shockingly profane. Even with editing, Byers’s speech, as it appeared in the film, was long and rambling. Later the filmmakers reported that when they’d shown the unedited segment to their wives, the women had found it so disturbing they’d left the room.