Devil's Knot: The True Story of the West Memphis Three (39 page)

That was the climate, Mallett learned, in which the lawyers for the West Memphis defendants had opted to get funding where they could. The appearance of the filmmakers had seemed an opportunity. The lawyers representing Jason and Jessie had arrived at the same conclusion: that the money was critically needed. Upon the advice of their defense lawyers, the defendants had signed contracts with the filmmakers, agreeing to three interviews apiece, for which they were to be paid $7,500 each. The payments were to be held in trust. Damien’s and Jason’s lawyers signed on as trustees for their clients’ trusts. Stidham, however, regarded that role as a conflict of interest. He referred Jessie Misskelley Sr. to another attorney, who advised the Misskelleys on the contract and served as trustee for Jessie’s account.

Despite his personal regard for Price, Mallett left Arkansas appalled. The circumstances he’d heard described provided an astonishing backdrop, he reflected, for a case that already seemed to hold more than its share of peculiarities.
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By the end of March 1997, three years after their convictions, all three of the West Memphis inmates had petitioned Judge Burnett under Arkansas’s Rule 37.
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As expected, Mallett argued that because Damien’s counsel “was being unfairly deprived of funds for experts and adequate and timely recompense for their own services,” they had entered into an agreement with the filmmakers, which had “created an unwaivable and actual conflict of interest between themselves and Echols.” Prosecutor Davis disagreed. Judge Burnett agreed to hear arguments from both sides. He scheduled a hearing for May 5, 1998, the fifth anniversary of the murders.

As Mallett prepared for the hearing date, the gossip at the Crittenden County Courthouse centered on a motion that he had filed to have a dentist obtain bite mark impressions from Damien, Jessie, and Jason.
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The criminal profiler in California had raised the possibility—which had not been presented at either of the trials—that the unusual marks on Stevie Branch’s face had been inflicted by a human. Mallett said that if the marks had indeed been made by human teeth, and if the bite impressions could be identified, they might point to another assailant.

Mallett arrived in Arkansas for the start of the hearing aware, as he later observed, that “in Arkansas, these things are typically handled in an hour or two.” But nothing about the West Memphis case had, so far, been typical.
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When arguments were not completed by the end of the day, Burnett ordered the hearing continued to the next date it could be worked into his schedule. This happened two more times, resulting in a hearing on Damien’s Rule 37 petition that lasted for eight days, spread over four sessions, in two different courthouses, over a period of ten months.
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The oft-continued hearing brought Burnett and Damien back into the courtroom together often between May 1998 and March 1999. Many of the participants from the original trials were there as well. Prosecutor Brent Davis, Detective Allen, Damien’s defense attorneys, Dr. Peretti, Ron Lax, and family members of the victims all filed into the courtroom, as either witnesses or spectators. But now the atmosphere in the courtroom was very different from the atmosphere during the trials. Damien was different, for one thing. Gone was the funky haircut, the distracted air of self-absorption, the adolescent haughtiness that had so offended onlookers at his trial. Now the death row inmate appeared composed and almost studious. He wore glasses and subdued street clothes. His dark hair was trimmed short. He sat quietly near Mallett, seldom looking around the room.

Another change was the absence of cameras. Since release of the first documentary, Burnett had publicly expressed his regret at having allowed the trials to be filmed, and he’d said he would not be repeating that “mistake.” A third difference was in the public who’d come to observe the hearing. Having been notified of upcoming hearing dates via the Web site, supporters of the West Memphis Three from up to a dozen states traveled to northeast Arkansas simply to be present in the courtroom each time Damien’s petition was argued. They wanted, along with the Web site’s founders, for “the state of Arkansas to know that the world is watching.”
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Outside the courtroom, Judge Burnett made it clear, in banter with the supporters, that he was not impressed by their presence. Inside, he allowed Damien’s new lawyer broad latitude in calling and questioning witnesses. “I give Judge Burnett credit,” Mallett later said. “He heard us out. I have no quarrel with his willingness to sit and listen.”

Sit and listen Burnett did, through days of often surprising testimony—none of which proved as sensational as that about the alleged bite marks. First the California criminal profiler, who had called attention to the marks on Stevie’s face, explained how he’d arrived at his opinion that the marks that were described as “bell-shaped” in the autopsy report might have been made by human teeth. That view was supported by Mallett’s next witness, a specialist in forensic dentistry. In a dramatic display, the dentist held up dental molds taken of Damien, Jason, and Jessie. None of them, he said, would have left the patterns seen on Stevie’s face.

THE BITE MARKS DON
’
T MATCH
! the Web site proclaimed that night. But the next day in court, it was the prosecutor’s turn. Davis called another forensic dentist, and this one testified that in his opinion, the marks visible in the photos were not from a human bite at all.
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Davis then called Dr. Peretti. The associate medical examiner told the court something he had never said before, nor noted in his autopsy report: that while the boys’ bodies were at the crime lab, “just to be overly cautious,” he had asked a forensic dentist to come in and examine them. Next, Davis called the dentist who Peretti said had examined the bodies. The dentist insisted that he had indeed been called to look at the marks, that he’d paid particular attention to the ones on Stevie’s face, and that he had concluded that none of the marks had resulted from human bites. Under questioning by Mallett, however, the dentist acknowledged that he had not made notes of his examination, had not written a report, nor billed the crime lab for his time.
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For the supporters, it was an indecisive and unsettling outcome, especially since, outside the courthouse, John Mark Byers was once again talking into the cameras, this time about how the medication he’d been taking for his brain tumor had caused him to lose all of his teeth.

On June 4, 1999, six years and a day after the arrests, Mallett handed Burnett his written arguments. Omitting the entire subject of teeth, he focused instead on the conflicts of interest he said were imbedded in the way attorneys Price and Davidson had conducted Damien’s defense. Mallett excoriated the attorneys’ decision to seek funds for experts from the filmmakers, rather than from the court. “Based only on their belief about what the court would pay,” he wrote, “without actually making an inquiry, trial counsel failed to request funds from the court, then made inadequate expenditures to defend their client.” Moreover, he charged, Price and Davidson had “appropriated” money from the film contract “for themselves as ‘reimbursement,’ contrary to the trust agreement and without [Damien’s] consent. They were in Jonesboro, while he was on death row, thinking the money was being held in trust for the benefit of his child.”
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In fact, the fund had been emptied.

On yet another point, Mallett attacked Damien’s lawyer for not disclosing that he had represented two people accused with John Mark Byers in the Jonesboro jewelry store incident.
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Similarly, Mallett noted that Price had never told Damien that “he had served as counsel for the witness, Michael Carson, who testified that co-defendant Baldwin had made a jailhouse confession.” In both situations, Mallett contended, “there was a conflict of interest which adversely affected counsels’ performance.”

But the most scathing part of Mallet’s argument concerned Price’s questioning of the psychologist during the sentencing phase of Damien’s trial. “No one watching the movie, trial, or reviewing the transcript will ever forget,” Mallett wrote, “the devastating cross-examination Dr. James Moneypenny presented as a defense witness. Moneypenny told the jury the records showed that unnamed persons told the defendant he could be compared with serial killers Ted Bundy and Charles Manson.” Noting that Price had not jumped up to offer a legitimate objection, Mallett continued, “the image of Mr. Echols as a calculating serial killer was thus introduced through double hearsay from an unnamed source by a witness produced by the defense.” For these and other reasons, Mallett argued, Damien had been denied his constitutional right to a fair trial.
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In Davis’s brief to Judge Burnett opposing Damien’s petition, the prosecutor argued that though Mallett had placed Price on trial, the Houston lawyer had failed in his efforts at “character assassination.” Judge Burnett agreed. In a perfunctory ruling handed down on June 17, 1999, the judge denied Damien’s Rule 37 petition for a new trial.

Burnett’s ruling brought Damien closer to the end of his Arkansas appeals—and closer to execution. But Mallett was not through. Stidham was still in the fight for Jessie. And now, as a result of widening interest in the case, additional legal help was gathering in the wings. Quietly, legal support for the three inmates was building. Mallett and Stidham began receiving help from legal experts whose roles in the case would not be known for years. The result in Arkansas was that despite Burnett’s terse denial, efforts on behalf of the inmates intensified. Mallett appealed Burnett’s denial of Damien’s Rule 37 petition to the Arkansas Supreme Court. And in addition, the fight was expanded to two new fronts.

The first of those was also before the Arkansas Supreme Court. In February 2001, Mallett filed a rarely used writ of error
coram nobis
. The title refers to an error so grave that it has affected the very core, or heart, of the trial. In the writ, Mallett argued that Damien never should have been placed on trial at all because of his mental condition at the time. As it was, Mallett argued, Damien had been mentally incompetent—basically, insane—when he was tried and sentenced to death, and a trial under such conditions violated the U.S. Constitution. It was a stunning claim, but Mallett provided extensive documentation to support it. He submitted notes from the jail where Damien was held, documenting his attempted suicide. He supplied the notes Glori Shettles and Ron Lax had made after their visits to Damien, in which they described his hallucinations and paranoid delusions. Mallett also provided records showing that three times in the year before his arrest, Damien had been committed to psychiatric hospitals by a juvenile court in the same district where he’d later been tried.

Mallett also produced important evidence that had not come to light before: records showing that at the time of Damien’s arrest and trial, he had already been declared “one hundred percent mentally disabled by the federal Social Security Administration” and was receiving payments for that disability. Courts generally accord substantial weight to Social Security designations of disability, since they tend not to be granted lightly. But Damien’s mental status had not been explored, except in the sentencing phase of his trial. Neither Damien nor anyone in his family had mentioned the Social Security designation to his attorneys, and though Glori Shettles had requested Damien’s Social Security records, they had not arrived by the start of the trial.
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In an affidavit submitted with the writ, Val Price acknowledged that, had he been aware of Damien’s Social Security disability, he “would have dramatically altered the manner in which we conducted investigation, preparation and presentation of evidence on his behalf…. Every aspect of my representation of Mr. Echols would have been affected.”

Stidham launched the other assault, this one before Judge Burnett. In November 2000, he and an evidence analyst paid a visit to the West Memphis Police Department. There, for a couple of days, the two pored over the hundreds of items still in storage from the case. They concluded that there was a reasonable chance that some of the items they examined might yield new information. Nearly eight years had passed since the murder investigations. Those years had seen profound advances in the science of DNA testing. Smaller samples could now be analyzed, yielding more precise results. Across the country, guilty verdicts were being overturned on the basis of DNA evidence, some of which had been stored for years. Though many prosecutors resisted defense efforts to have DNA evidence retested, legislators in many states, including Arkansas, were passing laws that recognized the potential the science offered to correct errors and injustices.
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After reviewing the evidence at the police department, Stidham promptly filed a motion with Judge Burnett. The lawyer said that he wanted to retest several items, including the knife with blood in its fold that had belonged to John Mark Byers. “Additional testing with newer, more sensitive, and more discriminating tests,” Stidham wrote, “may help resolve previously inconclusive test results….”

When Prosecutor Davis objected to having the evidence retested, Stidham wrote to Burnett again. Reminding Burnett of the new state law that allowed inmates to seek retesting of evidence that might exonerate them, Stidham asked for a hearing on his motion. Burnett did not respond.

Nearly two years after Judge Burnett’s denial of Damien’s Rule 37 petition, the Arkansas Supreme Court scheduled a hearing on Mallett’s appeal. The Web site buzzed: Mallett had requested and the high court had agreed to hear oral arguments. They would be held on March 15, 2001, at the Arkansas Justice Building, on the grounds of the state capitol in Little Rock. Many supporters saw the event as an opportunity to again display their concerns about the case in the state where it had unfolded. Dozens of “WM3” supporters made plans to attend.