Read Devil's Knot: The True Story of the West Memphis Three Online
Authors: Mara Leveritt
“We now have the first undisputed record in the case,” Ofshe testified,
and in that part of the interrogation it’s possible to demonstrate how relentless the questioning was, the leading, the suggestions, and the unwillingness to accept anything other than what the police knew the facts of the crime to be. Even then, there were still gross inaccuracies in the statement. The next thing that happened is that Mr. Misskelley is left alone, and Detective Gitchell meets with Prosecutor Fogleman, and some of the specific gross inaccuracies in the recorded statement are now discussed, and according to Detective Gitchell’s statement, Prosecutor Fogleman sends him back in to work on these particular statements. And then we can look at the second statement and show how precisely that happened and how, again, Jessie Misskelley is conforming to the demand placed on him and is changing his statement from direct response to suggestions and direct instructions by Detective Gitchell.
Ofshe concluded that “these statements are far more likely to be the product of influence than they are based on any memory that Mr. Misskelley has of the crime.”
Stidham then turned to the subject of cults, Of she’s other area of expertise. He asked for Of she’s opinion: did the eight-year-olds’ murder have “anything to do with satanic rituals or anything of the occult?”
Ofshe replied that, as far as he could tell, they did not. “And as far as the satanic panic tips that were given to police,” he added, “my understanding is that none of them have panned out. Apparently, there is one individual who claims to have attended a cult meeting,” he said, referring to Vicki Hutcheson, “but apparently her report is equally unconfirmed. As far as I can tell, there is an absence of hard information suggesting that such a satanic cult exists in this area, and in addition, I know of nothing about the crime scene that suggests that this is an occult ritual killing.”
When Ofshe concluded his statement, Burnett decided that he would not allow the jury to hear it. The judge ruled that if Of she’s testimony were admitted, it would, in effect, tell the jury “what their finding should be.” So when the jury came back into the courtroom, Stidham asked Ofshe only one question: was it his opinion “that the tactics used by the police were suggestive and led the defendant to make a statement?” Ofshe answered: “Yes, and that the statement—the content of the statement—was shaped by these techniques.”
When Prosecutor Davis cross-examined Of she, he attacked the suggestion that Jessie’s questioning had been coercive. “Did you find any evidence,” Davis asked, “as to physical coercion?” Or “that any of the officers yelled or used a loud voice or were degrading to the defendant?” Or that “there was any undue influence, pressure, or loud voices and demands made on the defendant?” Ofshe answered no, that “in the limited set of materials you’re allowing me to testify on,” there was not.
“And is what you term coercive,” Davis asked, “that the officers asked at times leading questions?”
Ofshe answered, “The questions were more than leading. The questions were very directly specifying what the answers should be.”
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When Davis sought Of she’s acknowledgment that Jessie could be heard on the tape making self-incriminating statements in his own voice, Ofshe agreed. But, Ofshe noted, Jessie could also be heard making statements that were clearly false. “The statement about the time at which this crime occurred is a statement that comes up and is manipulated eight different times over the course of this interrogation, and over the course of those eight manipulations one sees a pattern of unrelenting pressure on Mr. Misskelley.”
Before Stidham questioned Ofshe again, he asked Burnett, “Your Honor, may I use the word ‘coercive,’ like the prosecutor used?”
“I guess that’s the goose and the gander thing, isn’t it?” Burnett replied. “Go ahead.”
Now that Davis had introduced the word he’d been fighting to keep out, Stidham attempted to explore its nuances. He asked the witness, “Could you give some examples of the police being coercive and leading or suggestive during the course of the interrogation?”
“Yes, I can,” Ofshe said. “Perhaps the most powerful example in my opinion is the example of the eight revisitings of the question of the time at which the crimes occurred.” Ofshe noted that Jessie began by saying he’d gone to the woods at nine o’clock in the morning. The next time Ridge raised the question, Jessie said he was in the woods at “about noon.”
“Ridge now says something that, in my opinion, was an attempt to manipulate Mr. Misskelley’s statement about the time,” Ofshe testified, “because Detective Ridge now says, ‘Okay, was it after school had let out?’ This is immediately after Jessie saying, ‘It’s at noon.’ He’s now suggesting it must be later by saying, ‘Is it after school let out?’”
Gitchell had next raised the question of time, and then Ridge had brought it up a fourth time. Ofshe noted,
And this time Detective Ridge says, and I quote, “Okay. The night you were in the woods, had you all been in the water?” Jessie replies, “Yeah, we’d been in the water. We were in it that night playing around in it.” This is the first time in the record, according to my analysis of it and according to Detective Ridge’s testimony, that it is directly suggested to Jessie that the correct answer is, “This happened at night.”
Immediately upon that being suggested Jessie responds by accepting and now he starts to use the word “at night,” where he had never used it before, where he had consistently said it was during the day. That is an influence tactic. It is a way of getting someone to accept something out of pressure and out of suggestion.
Ofshe pointed out three other points in the interview when Jessie was asked about what time he was in the woods. Finally, Ofshe noted, “Jessie replied, ‘I would say it was about five or so—five or six.’
“So Jessie is now moving in the direction of later, but it’s as if there is the original statement that he made about the morning, and he’s being slowly moved towards the evening. But clearly, in this statement, he has not gone far enough, because five or six, I gather from what I’ve been informed, is too early for the boys to have shown up at the woods.” So, Ofshe said, there was one more attempt to move Jessie’s account of the time. This came when Gitchell told Jessie, “All right, you told me earlier around seven or eight. Which time is it?”
“There are two important things about this,” Ofshe observed.
The first one is it’s obvious that Detective Gitchell is giving Jessie a choice. Pick one and I win, or pick two and I win—either seven or eight. Gitchell can live with either answer, and he’s giving Jessie only those two choices. But what’s even more important about this is that nowhere in the record—including the record of what the detectives say, the notes, the specific statements by Detective Ridge, the transcript of the first interrogation—is there any indication that Jessie ever said, as Detective Gitchell says, “You told me earlier around seven or eight.” There is an absolute absence of anything indicating that. So it’s my opinion that this is a tactic, and it’s a very effective tactic, because Jessie now simply repeats back to Detective Gitchell what Gitchell told him. He says, “It was seven or eight.” Jessie doesn’t even make a choice. He just tells Gitchell everything that Gitchell told him. That’s an indication of someone who is willing to comply and does not want to take any chances of making a mistake and therefore being punished for it through pressure.
When Stidham sat down, Davis asked one more question. “Doctor, when the person is being asked questions and they don’t know anything about it, and they don’t know any of the details, they can always say, ‘I don’t know. I don’t know anything about it. I don’t know the details you’re asking me about.’ They can always say that, can’t they?”
“They can,” Ofshe replied. “And sometimes they get to the point at which they can no longer do that and so they simply give up.”
Fogleman presented his closing argument, stressing the confession in a controlled, unemotional voice. Stidham cited the inconsistencies in Jessie’s statement and the lack of physical evidence in hopes that the jury would find reasonable doubt. He concluded, “Killing one human being by another is only exceeded by the state killing an innocent man.” Then Davis, who had the final argument, used it to lash out. Vehemently and emotionally he reminded the jurors of what the police had concluded was the motive for the crime. “I don’t know what the definition of a cult is,” Davis sneered. “I don’t know if it has to mean that they go once a week and worship the devil or what. But when the evidence is that all three of them are involved in this type of activity—that’s a cult in my book.” Then, standing behind the defendant, where he held a photo of Michael Moore over Jessie’s head, he told the jury emphatically, “He chased him down like an animal and brought him back. And, as a result of his action, Michael Moore is dead, Stevie Branch is dead, and Chris Byers is dead.” He asked the jurors to find Misskelley guilty of three counts of capital murder, a verdict that would allow the state of Arkansas to execute him.
By noon the next day, the jury had reached its verdict. Jessie kept his head bowed as Judge Burnett read the forms. In the death of Michael Moore, he was found guilty of first-degree murder. In the deaths of Christopher Byers and Stevie Branch he was found guilty of murder in the second degree.
Stidham felt the breath knocked out of him. The verdicts of first-and second-degree murder meant that the death penalty could not be imposed, as Fogleman and Davis had wanted. But Jessie had been found guilty. In the sentencing phase of the trial, the jury sentenced Jessie to life in prison without parole for the murder of Michael Moore. The jurors tacked on an additional twenty years each, to be served consecutively, for the murders of the other two boys.
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When Judge Burnett asked Jessie if he had anything to say, the teenager answered, “No.”
Afterward, one of the jurors said that allegations about Jessie’s ties to the occult had not factored into the verdict. “To be honest with you, it wouldn’t have mattered to us if there was a cult or not,” juror Lloyd Champion told the
Commercial Appeal
.
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Champion said that jurors considered Stidham’s arguments that Jessie’s confession was coerced, but that they’d concluded Jessie’s statement about chasing Michael Moore and holding him had not been solicited. “The police didn’t ask him that,” Champion said. “Boom! That was out of nowhere.” In the same interview, Champion added that he was not surprised that Stidham didn’t have Jessie testify. With irony that was apparently not intentional, Champion explained, “I think that prosecuting attorney could have tore him apart and made him say anything.”
Gitchell exulted that the conviction had vindicated his department. Jessie’s stepmother told reporters that she hoped the prosecutors would be able to sleep at night. “They’re all a bunch of liars,” Jessie Sr. said. The elder Misskelley added that Jessie had been terrified and near despair as sheriff’s deputies had led him away for his trip to prison. Jessie was crying, Jessie Sr. said. “He told me, ‘I’ll never make it down there. I’ll never get out and come home.’”
Years later, sitting in prison, Jessie would recall, “When that verdict came in—eeee-yewww!—I just knew my life was over right then.”
T
ODD AND
D
ANA
M
OORE
were characteristically reserved as they left the courthouse. They did not speak to reporters. Pam Hobbs, Stevie Branch’s mother, expressed her hope that Jessie’s life in prison would be a long and tormented one. The Byerses, as usual, were unrestrained. Expecting that Jessie would end up at the infamous Cummins Unit of the Arkansas Department of Correction, they described in rough and suggestive detail the future they wished for him there.
“I hope he never sees sunlight again,” John Mark Byers said. “Life plus forty—that’s fine with me. That means Cummins keeps his dead ass forty years after he dies.”
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Melissa Byers, with dark circles under her eyes, ranted in front of the cameras. “This doesn’t change anything,” she said. “Christopher’s dead. And he was tortured to death by three murdering bastards on a ditch bank. He was eight years old, and guilty is guilty, and I hope the little sucker, when he hits Cummins, they get his ass right off the bat, because he deserves to be tortured and punished for the rest of his life for murdering three eight-year-old children!”
The couple walked a few steps away. Then, as though Jessie were there, Melissa added, “Prison’s not a safe place, Jessie, sweetie.” To the photographers who were following her she offered a last aside. “I’m going to mail him a skirt.”
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Judge Burnett complimented the news media, noting that he was “well pleased” with the way they had covered the trial. Jessie’s lawyers announced that they’d appeal. And prosecutors Davis and Fogleman dropped the word to reporters that Jessie’s sentence of life without parole might not be exactly final. Noting that Damien and Jason’s trial was just eighteen days away, they explained that Jessie’s sentence would not become final for about four months. During that time, if Judge Burnett chose to do so, he could reduce Jessie’s sentence. They said such a thing might happen if, for instance, Jessie agreed to testify against Damien and Jason at their upcoming trial.
The day after Jessie’s conviction, Glori Shettles visited Damien in a new jail. He’d already been moved to the jail in Jonesboro, the city where he and Jason were to be tried. “He may watch television for a limited number of hours from his cell floor,” Shettles wrote, “but has not been allowed to see the news. His books have been taken from him; however, he has been allowed to choose books to read from the jail library. Great efforts have been made to ensure he and Jason have had no contact; however, Michael laughed and stated he heard Jason ‘howling’ one night.”
Shettles wrote that one of Damien’s lawyers had visited him earlier in the day and informed him of Jessie’s conviction. She noted that Damien did not seem to be “negatively affected” by the news, but rather “spoke of his hope of having a larger, more educated jury pool, who would consider the evidence with a more open mind.” However, Damien also told Shettles that if his own trial ended with a conviction, “he had no interest in an appeal. He stated he would not be taken out of the courtroom guilty, as Jessie had been, but would attempt to grab one of the deputies’ guns to kill himself or to force the deputies to shoot him.”
Damien’s lawyers let him hold on to his hope that a trial in Jonesboro, the district’s most populous county, would produce jurors more receptive to his case. It was true that Jonesboro was home to Arkansas State University, and that the average income and educational level in Craighead County was higher than in mostly rural Clay County, where Jessie had just been tried. But Val Price and Scott Davidson also knew that Craighead County was one of the most religiously conservative places in the state, and that Jonesboro, the county seat, was home to several large and powerful churches, almost all of them housing fundamentalist Christian congregations. Jessie’s just-concluded trial had dominated the region’s news. Now, after that and months of publicity about Damien’s interest in the occult, Price and Davidson worried that the odds of finding jurors who had not been influenced was not as great as they had allowed Damien to hope.
They also worried about Jessie. He’d been sentenced to life without parole. But now, fresh on the heels of his conviction, the prosecutors were offering him a chance to shorten his time in prison, just for saying a few words. If, as Jessie’s lawyer had contended, the boy had buckled under pressure from the West Memphis police when they’d questioned him for a few hours, how would he react under the greater pressure of prison? Would he grab the offer Fogleman and Davis were holding out to him? Would he accuse Damien and Jason again, this time on the witness stand, under oath, in front of the jury?
Jason’s lawyers had those worries, and an additional one. They still believed strongly that Jason’s trial needed to be separated from Damien’s. They did not want Jason’s trial to be tainted by the stories of satanism, cult or occult practices, or general weirdness that were attached to Damien. They wanted to be free to take any approach they felt was needed to defend Jason’s life. If that meant arguing that Damien might have killed the children but that Jason certainly did not, they wanted to be free to say that. In a last-ditch pretrial motion, they told Judge Burnett that presenting their case would be difficult, if not impossible, if the two boys were tried together. But as in the past, Judge Burnett rejected the motion.
Prosecutors Davis and Fogleman had serious worries of their own. They had had virtually no evidence against Jessie, other than his tape-recorded confession. But the jury had considered that confession to be sufficient. Now they were heading into a trial with a similar dearth of evidence, but against defendants who had not confessed. Jessie had accused Damien and Jason, and that accusation had been the basis for the arrests. But if Jessie would not repeat his accusation at the upcoming trial, under oath, as a witness for the state, Davis and Fogleman would not be allowed to mention it. Even to play the tape of Jessie’s confession, in which he implicated Damien and Jason, without Jessie himself taking the stand, would violate the constitutional requirement that defendants be allowed to face their accusers at trial.
Fogleman and Davis realized that if Jessie accused Damien and Jason in court, the blow to the defense case would be devastating. On the other hand, even if Jessie did not testify, and no mention of his confession could be made, the defense teams would still have immense damage to overcome. Jessie’s confession had been leaked to the press within two weeks after his arrest, and his damning accusations against Damien and Jason had been intensely publicized. Jessie’s just-concluded trial, with all its attendant publicity, had again riveted public attention on the confession. It was almost inconceivable that any twelve jurors could be seated who were not already well aware both that Jessie had confessed and that he had accused Damien and Jason of the murders.
However much they might have been helped by the backdrop of publicity to the case, the prosecutors did not want to count on it. Facing a trial where there were no confessions, no direct physical evidence, and no clear motive, they wanted an eyewitness—even one whose story had changed repeatedly. But talk of reducing Jessie’s sentence did not sit well with the victims’ families. Davis and Fogleman met with them to explain why, now that they’d just gotten Jessie convicted, they were trying to offer him a deal. “Unfortunately,” Davis explained, “we need his testimony real bad.”
“All is not lost if he doesn’t testify,” Fogleman quickly added. “But the odds are reduced significantly. I mean, we’ve still got
some
evidence.” Fogleman then summarized the evidence they had against Damien and Jason, if Jessie’s confession was excluded. He listed
“So that’s what we’ve got,” he told the victims’ families. “But that’s
all
that we’ve got.” When someone asked Davis what the odds were of convicting Damien and Jason if Jessie did not testify, the prosecutor did not sound confident. “Fifty-fifty might be good,” he said.
The defense lawyers were well aware of the prosecutors’ dilemma. Without Jessie’s testimony, Davis and Fogleman would be trying to win a death penalty conviction with scant and circumstantial evidence. If Jessie did testify, the defense lawyers would make sure the jury realized how much he stood to gain by talking. Still, both the defense teams ardently hoped that Jessie would not appear. As Jason’s attorney told him, “If that’s their best evidence and they can’t use it against you, then this dog-and-pony show is over.”
With only eighteen days to go until the start of the next trial, the possibility that Jessie might testify frayed nerves on both sides of the case. Jessie vacillated. But everyone knew that the prosecutors held a distinct advantage. Jessie was scared as sheriff’s deputies led him to a car that would take him to prison, three hours away, in south Arkansas. He told his father that he’d “never make it down there.” By the time the sheriff’s car arrived in Pine Bluff, the intake site for the prison, the deputies who’d driven Jessie had good news for Fogleman and Davis. As one of them reported, “Jessie was asked if there was anything he wanted to say, and after being assured we could not use anything he said against him in court, he chose to talk.”
According to one of the deputies, Jessie had admitted once again his involvement in the murders, and he’d renewed his accusations against Damien and Jason.
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The details of this statement, as reported by the deputy, were different in several respects from anything Jessie had said before. Still, Fogleman and Davis were excited.
According to the deputy, Jessie did a lot of talking on his long ride to the prison. He told his drivers he’d met Damien and Jason on the “evening” of May 5. Before that, he’d been drinking whiskey that Vicki Hutcheson had bought him. Damien and Jason were drinking beer. Earlier in the afternoon, they all had smoked marijuana. The three teenagers went to the woods, where they were sitting in the water, when they saw the three young boys at a distance. Damien told Jessie and Jason to hide, then Damien grabbed Michael Moore. Michael’s friends started hitting Damien, whereupon Jessie and Jason jumped out and helped Damien “beat them” with sticks. Damien and Jason took turns raping the boys. The boys were not tied at that time. Jessie helped hold the boys and beat them, but had no part in raping or killing them. “Blood flew everywhere” as Jason castrated one of the boys with a “buck-type locking knife.” Jason threw the dismembered part of the unidentified boy’s body into “the weeds.” That boy was then thrown into the water, where he was “still squirming around” when Jessie decided to leave. The other two boys were, at that point, unconscious but not in the water.
The deputy reported that Jessie said that he’d lied when he was questioned by the police about the time the murders took place and about the children being tied with rope. He said he’d wanted “to trick the police and to see if they were lying.” The deputy concluded, “Jessie claims he has felt sorry for what happened and talks as if he wants to testify against the other boys so they will not go free and to help himself.”
Prosecutor Davis later said that when he heard the deputy’s report, he called Jessie’s lawyer to discuss a postconviction plea bargain. Four days after Jessie arrived at the prison in Pine Bluff, attorney Stidham, Inspector Gitchell, and prosecutors Davis and Fogleman drove there to talk with Jessie. Before anything else happened, Stidham wanted to meet with Jessie alone. Fogleman later recalled: “Well, Stidham stays in there forever. He finally comes out, all white-faced, wanting a Bible. Dan just could not believe what Jessie was telling him, and he wouldn’t let us talk to him. He kept saying, ‘If only there were some more corroboration. And he did tell us some of the details of what Jessie told him, including that he had been drinking, and the brand of whiskey, and the particular person who’d given him the whiskey.”
Jessie had also reported that, on his way home, after witnessing the murders, he’d thrown the bottle of whiskey away, near a highway overpass. “And so, we went back there,” Fogleman said,
practically in the middle of the night, searching this overpass Jessie described. We found this neck of a whiskey bottle. It was the largest piece of whiskey bottle that we could find, that you could identify, and it’s the brand that Jessie has described. Of course, we’re talking about what—a year later? And so we say to Stidham, “Dan, is that enough corroboration? Here’s the kind of whiskey.” And he said, no, that wasn’t enough. So we go back to the police department, and Gitchell calls the person who allegedly gave Jessie this whiskey, and she’s on a speakerphone. Gitchell says, “So and-So, I’ve got a real important question to ask you. Did you ever give Jessie any alcohol?” And there’s this long pause and she says, “Well, yes, I did.” And he says, “What kind was it?” And she says, “Well, it was whiskey.” And he says, “What kind?” And she goes through three or four and then she says, “No, that wasn’t it.” Then she says the brand of what Jessie told Dan it was. Of course, that still wasn’t enough to convince Dan.
Stidham attributed Jessie’s sudden willingness to talk to the prosecutor to his fear of being in prison and to his corresponding desire to please authorities. While Stidham was chagrined by Jessie’s decision, he was less than impressed by the fact that prosecutors had found a broken Evan Williams bottle alongside an overpass near one of the nation’s busiest highways. Stidham decided to meet with Jessie again at the prison, and now it was the prosecutors’ turn to be dismayed. On February 15, eleven days after Jessie’s conviction, Stidham informed the state that Jessie would not testify against Damien and Jason.