Aug 25, 2011

Can the WM3 Clear Their Names?

Crossposted from Reflections Journal.

In an interview with Amy Goodman, filmmaker Joe Berlinger expressed his dismay that the plea bargain that got the West Memphis Three out of prison after eighteen years failed to bring justice in the case. Under the rare Alford Plea, they are still guilty as a matter law, even though they are able to claim their innocence. The fight to completely clear the names of Damien Echols, Jason Baldwin, and Jessie Misskelley will go on.

Governor Mike Beebe was asked if he would pardon the three but he refused explaining that he only considers pardons after people have served their sentences. So, note to anyone on death row seeking a pardon in Arkansas. Your current governor won't consider it until after you're dead. Helpful.

Beebe said he had no plans to pardon the recently freed West Memphis Three. He cited his policy of not considering pardon cases until sentences were completed. He said it was his understanding that the West Memphis Three still would serve up to 10 years of suspended sentences.

Beebe also said if new evidence were presented that pointed to a different killer, then he would reconsider the case.

Governor Beebe says he will consider it if there is evidence pointing to a new suspect. This could be tricky as District Attorney Scott Ellington has made it clear he considers the matter closed. There are no plans in West Memphis to actually seek justice for Christopher Byers, Stevie Branch, or Michael Moore, whose brutal murder remains effectively unsolved.

Peter Jackson and his partner Fran Walsh intend to continue to fund an investigation. Having previously funded the DNA testing and other forensic research that debunked much of the prosecution's original case, they intend to now fund a wider investigation. So if a murderer is indeed to be found, West Memphis will again have Hollywood to thank.

Entertainment Weekly has learned that director Peter Jackson and his partner Fran Walsh will continue to fund the West Memphis Three investigation, even now that the men have been released from prison — free, but technically still considered guilty in the eyes of the law. “The ongoing work will focus on proving the convicted men’s innocence, as it always has,” says Jackson’s manager, Ken Kamins. He adds that the investigation will include “evidence testing and further investigation which will hopefully lead to the unmasking of the actual killer.”

The Lord of the Rings director has spent the past several years quietly funding private investigations and forensic experts to help clear the West Memphis Three. Jackson has been a longtime advocate of Jason Baldwin, Jessie Misskelley Jr., and Damien Echols — the trio of men many believe were wrongly convicted in 1994 of murdering three 8-year-old boys in West Memphis, Ark., and whose nightmare odyssey in the legal system became the subject of the award-winning 1996 HBO documentary Paradise Lost: The Child Murders at Robin Hood Hills. Eddie Vedder, Johnny Depp, Natalie Maines, and Henry Rollins were among the others who rallied to support the West Memphis Three.

“When Peter and Fran got involved, they had to decide how to best serve the case,” Kamins says. “Damien, Jason, and Jessie had great public advocates in Eddie, Johnny, Natalie, Henry, Paradise Lost, and everyone else who was raising money and bringing public attention to the case. Peter and Fran, therefore, decided to put their attention into funding and spearheading DNA work, hiring forensic and other experts, plus extensive private investigations into all aspects of the case.”

More detail on how the information provided by the Echols extensive defense machine was used to leverage the Alford Plea that got all three released is provided in an article by Devil's Knot author Mara Leveritt. In this thoroughly detailed piece she gives a blow by blow on how they narrowed it down to the juror misconduct issue and the fact that both sides were motivated to keep this from going through a lengthy new trial that looked inevitable. Some of this I've posted previously but it's as galling to read it a second time. Nothing quite makes the blood pressure spike like reading that the judge who oversaw the original trial took credible information of juror misconduct, sealed it, and declined the defense's motion.

The stunning information that the jury foreman at their trial had violated court instructions had come to light three years earlier. Little Rock restaurateurs Capi Peck and Brent Peterson, who had become supporters of the three defendants, hosted a gathering at Trio's restaurant in early 2008 for several local attorneys, hoping to enlist further support. At that event, one attorney mentioned knowing that another attorney had received phone calls from the foreman throughout the Echols-Baldwin trial.

The Echols team contacted that attorney and in May 2008, Lloyd Warford, of Little Rock, signed an affidavit stating that, at the time of the trial, he was working for the jury foreman, Jonesboro real estate broker Kent Arnold, on an unrelated matter. Warford said Arnold called him repeatedly during the trial, purportedly about the other work, but that during the conversations, Arnold spoke passionately about the trial.

. . .

Evidence from other jurors supported Warford's affidavit — and his belief that "Kent Arnold saw himself as the real hero of this trial," because he had informed fellow jurors of Misskelley's confession. A flip-chart used in the jury room, listing reasons for and against convicting Echols and Baldwin, referenced Misskelley's confession in the "pro" column. Notes kept during the trial by another juror also mentioned Misskelley's statement.

Judge David Burnett, who officiated at the trials and throughout subsequent circuit court appeals, ordered Warford's affidavit to be sealed, and for the next couple of years, it remained unknown to all, except the judge, the defendants and a small circle of lawyers. By 2010, however, defense attorneys were able to argue before the state Supreme Court that the juror misconduct issue, along with the new DNA findings, warranted new trials.

This is the judge whose professional dispassion was on full display recently when he referred to the recently released men as "murderers." He sealed evidence of juror misconduct in his court. I still can't get over that. When I first read about that last year, I just paced around the house muttering for twenty minutes.

The punchline on so much of this is that "justice" comes with a heavy price tag. I repeat, were it not for an all-star line-up of defenders who raised funds and donated money, three innocent men would still be sitting in prison. Meanwhile an obviously guilty man, James Arthur Ray, remains free on bond while his high priced legal team leverages every possible technicality to get him off. It pays to be rich in this country.

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