Devil's Knot: The True Story of the West Memphis Three (20 page)
Read Devil's Knot: The True Story of the West Memphis Three Online
Authors: Mara Leveritt
Lax asked if William wanted to correct the situation. When William said he did, Lax asked if he could record a new videotape. The boy and his parents agreed, and both parents sat with William as he answered Lax’s questions. Lax began by asking William what he had planned to do when called to testify. “I was going to get up there and tell the truth,” he said.
Lax: “And what is the truth?”
William: “That I don’t know nothing about it….”
Lax: “Has Damien ever said anything to you at all about this murder?”
William: “No…”
Lax: “Has Jason Baldwin?”
William: “No sir. None of them have….”
Lax: “In this statement, you had some fairly, uh, specific information regarding what happened to the boys when they were killed. Where did you get that information?”
William: “Rumors, and the papers, and what I was told.”
William Jones was one of several teenagers questioned by Lax who’d admitted making a false statement to the police. The first had been Buddy Sidney Lucas, who’d said he’d been frightened by Durham and had told the detective what he thought he wanted to hear so that he wouldn’t “get in trouble.”
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But the testimony of William Jones had been the most damaging, and his decision to recant his statement was the most important to the defense. Lax informed Stidham, who reported the news to Fogleman.
One of Lax’s investigators, Cheryl Aycock, drove the nervous teenager to the courthouse. Detective Ridge met them in a hallway and escorted them to a room where the deputy prosecutor was waiting. Fogleman told Aycock that he wanted to talk to William alone, but William insisted that he wanted her to stay. Fogleman asked Aycock what her relationship was to William. Aycock later stated in a sworn affidavit that when she told him that she worked for Lax, “Fogleman became visibly agitated and hostile.”
“Fogleman turned to [William] Jones and asked what was ‘going on,’” Aycock said in the affidavit.
Jones said he had told his mother something that he didn’t know anything about. Fogleman asked Jones what Mr. Lax (pointing at me) had done to make him change his story. Jones replied, “Nothing.” Fogleman asked if Mr. Lax threatened him, to which Jones replied, “No.” Jones explained he “just wanted to tell the truth….” Fogleman insisted Mr. Lax had “done something” to Jones. He told Jones not to be afraid, that “…no one can touch you. Mr. Lax can’t touch you, Jessie can’t touch you, Damien can’t touch you, the cult can’t touch you.” Jones stated he understood this and repeated his desire to simply tell the truth. Fogleman then asked Jones, “Did Lax threaten to send the cult out after you? Did he say they’d cut your (pause) off?” to which Jones replied he had not. I believe it was [prosecuting attorney] Davis who said, “Come on, son. Something’s wrong with you. We can tell.” Jones again denied anything was “wrong….”
Fogleman asked Jones something to the effect of what would he [Jones] have done if Lax had not come to talk to him. Jones replied he was just going to wait until he got on the stand and tell the truth when [Fogleman] asked him. Fogleman again became visibly agitated, widening his eyes, slamming his palm on the table, and raising his voice, asking, “You were going to wait until you got on the stand today to tell me this?” to which Jones answered, “Yeah, I didn’t know what to do.” A man I assumed to be Inspector Gitchell (white male, slender, balding) approached and asked Jones, “How much is he paying you?” Jones emptied his pockets and produced some coins and said, “Nothing, see? This is all the money I have.”
Fogleman’s demeanor continued to be hostile, and I, personally, found him to be physically threatening. During this conversation, Davis and Gitchell drew nearer and nearer to Jones, ending up approximately three feet from Jones, shoulder-to-shoulder with Fogleman, which made me very uncomfortable. Fogleman made a comment to the effect Lax had to be “doing something” to intimidate witnesses because every time he spoke with them, they changed “their story.” Fogleman asked Jones whether he realized it was a criminal offense to lie to police. Jones replied, “I don’t know. All I know about the laws is this,” and he held his wrists together behind his back. Fogleman informed Jones he could be prosecuted for filing a false statement to police and indicated he intended to prosecute Jones.
Lax said that after the encounter,
All the attorneys went into chambers to talk to Burnett. From what I heard of that meeting, Fogleman, Davis, and Burnett were all pissed. Fogleman reportedly made statements about my having intimidated witnesses—something to the effect of, “We don’t need an investigator from Tennessee who drives a Mercedes coming in here and intimidating our witnesses.” If I’d been there, I would like to have pointed out that I did all the interviews in front of the boys’ mothers, which is more than the police had done. But the result was they had
me
investigated. I was going through a divorce at the time, and my wife called me and said an investigator for the Arkansas State Police had contacted her about me. She told him to get lost. We brought that up to Burnett. He asked Fogleman and Davis. They said that another prosecutor in their office had initiated the investigation. In chambers, the state police investigator reportedly told Burnett that I was the only person he’d found involved in the case who had not done something wrong. The matter was dropped there.
Faced with little choice, Fogleman moved on with what he had. He introduced pairs of black boots that belonged to Damien and Jason, because Jessie had mentioned in his confession that his accomplices had been wearing black boots. He introduced the book
Never on a Broomstick,
which Damien had bought at a library used-book sale a year before the murders. Driver had found the book in Damien’s house a year before the murders. It was, Fogleman suggested, evidence of “cult-related” motivation. And to establish that Damien and Jason were close enough friends of Jessie Misskelley that they would have included him in their murderous orgy, he called Jerry Driver, who testified that he had definitely seen the three teenagers together, walking down a street in Marion. With that, Fogleman rested.
The trial was not half over, but Jessie felt almost victorious. He recognized that Fogleman’s case against him rested on his confession. But since, as Stidham explained, Fogleman’s evidence to support the confession had been slim and circumstantial, Jessie believed he was practically free. “At the time,” Jessie later recalled, “I thought a statement weren’t nothin’. If that was the only evidence against me, I figured it wouldn’t be no good. Because, the stuff I’d seen on TV, if you convict somebody, you’ve got to have some kind of physical evidence. Anybody can say anything.”
The
in Camera
Hearings
S
TIDHAM WAS FAR LESS CONFIDENT
than his client. He recognized, as he began his defense, that he faced several hurdles. Some, like the trouble he expected with Jessie’s alibi, he’d seen coming for several months. Others that lay ahead would take him by surprise.
The problem with Jessie’s alibi had arisen the previous summer, when Stidham was first appointed to the case and believed that Jessie was guilty. At the time, Stidham was communicating with Fogleman, hoping to work out a plea bargain in which Jessie would get a reduced sentence in exchange for his testimony that would convict Damien and Jason. “It was about that time,” Stidham later recalled,
when Mr. Misskelley Sr. began to raise issues about Jessie being in a different county on the night of the murders.
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Jessie Sr. began to hold almost nightly news conferences on the front porch of his mobile home, and basically, laying out his [son’s] alibi. That was making the prosecuting attorney very angry. We were wanting to work with him, but when Misskelley was holding these press conferences, that was making the prosecution’s case weak, and Mr. Fogleman was telling us, “You’ve got to shut this guy up.”
So I talked to Mr. Misskelley, and he asked me when we were going to come and check out the alibi. And I kept putting him off, because in my mind the kid was guilty. Then we went to the first hearing, and Fogleman told me we had a DNA match—that there was a T-shirt found in Misskelley’s trailer that had a speck of blood on it, and the prosecutor claimed that that speck of blood matched Michael Moore’s. To me, that cinched it. He was guilty. There was no doubt about it.
But then two things happened simultaneously. When I confronted Jessie about the blood on the T-shirt, he said, “That’s my blood.” He said he busted a Coke bottle with his hand—that was one of his favorite pastimes to show how tough he was: he’d throw a Coke bottle up in the air and bust it with his fist. A day or two later, Fogleman called me and said, “We were wrong. That blood wasn’t Michael Moore’s.” And Mr. Misskelley Sr. was getting hot because we weren’t questioning these alibi witnesses. So when Fogleman told us the blood
didn’t
match, I decided I’d go to West Memphis and question these people. And it became obvious that Jessie had an alibi for up to midnight the night the boys disappeared.
Most of the time, alibis are successful. But in this case, all of the witnesses had been interviewed by police, because Jessie Misskelley Sr. had been holding these press conferences. The police wouldn’t have gone to interview them, but when they did, the witnesses were afraid of getting involved, and basically, they couldn’t remember the exact night. When we sat down and started going through the tedious process, they said, “Yeah, that was that night….” But when we got to trial, and called these witnesses to testify, the state was able to stand up and say, “Well, you told Officer So-and-So that you couldn’t remember, so how are you so sure now?” And they’d say, “Well, because Mr. Stidham talked to us.” And of course, it looked to the jury like we were cooking this up. I know Mr. Misskelley Sr. was frustrated that nobody—not even I—believed him. But those press conferences came back to haunt us. In fact, they may have made the difference in the case.
Fogleman saw the development in exactly the same light. “Alibis are real tough,” he said. “It would be tough for anyone to say, ‘Well, I was with so-and-so a month ago.’ They’re real tough. But if you try to put on an alibi defense that’s not good, then the jury’s going to sit up there and say, ‘Well, they’re lying.’ And it hurts the credibility of the entire defense case.”
Stidham had tried to present Jessie’s alibi, but the net result was probably a loss. Under other circumstances, he might have put his client on the stand so the jury could see him speak up for himself. But as Stidham saw it, with Jessie, that approach was out of the question. On one hand, Jessie would not be able to articulate much on his own behalf, and on the other…Well, Stidham cringed at the thought of Jessie being cross-examined by Fogleman or Davis. To call Jessie as a witness, Stidham thought, would be to hand him to his prosecutors on a silver platter.
No, what Stidham had to do, he figured, was to raise doubts for the jurors, as to both Jessie’s abilities and the conduct of the police. First he tried to show that by the time Jessie was questioned, the police were desperate, and that that was partly due to the shoddy work on the case. As illustrations, he introduced testimony from the crime lab analyst of the “Negroid” hair that was found in the sheet wrapped around Christopher Byers—the hair whose presence there was never explained. Then he called Marty King, the manager of the Bojangles restaurant, to testify about the bloody man whom he’d reported to the police, and about the officers’ lack of follow-up. When Stidham questioned Detective Ridge, the detective admitted that the blood scrapings that had been taken from the restaurant the following day had been lost and that, as a result, DNA that would have been recovered from them could not be tested against DNA from the hair. Stidham felt that all of this made an important point, but he also realized that it was an abstract one. Abstractions, he knew, could be hard to convey to a jury who sat looking, day after day, at two bicycles bearing evidence tags and a defendant accused of killing their owners.
Along with suggesting deficiencies in the police investigation, Stidham wanted the jury to know about Jessie’s deficiencies, too. But now it was the prosecution’s turn to score a behind-the-scenes coup.
In an attempt to establish Jessie Misskelley’s intellectual vulnerability, Stidham wanted to have him evaluated by a psychologist. “But,” as he later recalled, “we didn’t have money to go out and hire a psychologist. We had no budget at all for experts. We filed a motion to ask for experts, but for the state to approve anything, we would have had to spell out everything we wanted to do. We would have had to lay our cards on the table. Later the state created a public defender’s office with a budget just for that. But in 1993, essentially all we had was my gold card and the ability to beg people to come in.” The expert Stidham begged was William E. Wilkins, Ph.D., a local psychologist whom Stidham had met in a child custody case. Wilkins was interested in examining Jessie and agreed to work without pay.
The report Wilkins prepared depicted Jessie as a teenager who bordered on being mentally retarded, whose maximum scores for academic achievement were in the third and fourth grade levels, and who had never passed any of the Arkansas minimum performance tests.
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Stidham expected that Wilkins’s testimony would be crucial to his case. “But on the eve of his testimony,” the lawyer would later recall, “[Prosecutor] Davis dropped the bombshell that Wilkins was about to lose his license. There were allegations that he had made some little boy drop his pants to look for a birthmark, when there were no witnesses in the room.” To Stidham’s great dismay, he learned that Davis’s information was correct. (Wilkins did, in fact, have his license revoked a few weeks after Jessie’s trial, when the Arkansas Board of Examiners in Psychology found that he had engaged in “serious professional misconduct.”) But even knowing that Davis would roundly discredit his witness, Stidham put Wilkins on the stand. He felt that he had no choice; he needed someone to let the jury know about Jessie’s intellectual limitations, and there was no time to find a new examiner. “It’s hard to find a psychologist who will work for free,” Stidham explained, “and it’s even harder the night before he’s supposed to testify. It became a very embarrassing and horrible thing for us. He hurt us, no doubt about it.”
Wilkins had been one of three main witnesses on whom Stidham planned to base his defense. The other two were Warren Holmes, a nationally recognized expert on polygraph techniques, and Dr. Richard Ofshe, a nationally recognized expert on coerced confessions. But as it turned out, the jury would never hear much of what Holmes and Ofshe had come to say. Fogleman and Davis vigorously objected when each of the men started to talk, prompting Judge Burnett to hold lengthy sessions between the witnesses and the lawyers without the jury present. These
in camera
hearings, where lawyers debated before Judge Burnett what testimony should and should not be allowed to be presented in front of the jury, constituted a significant part of Jessie’s trial. For Stidham, they were also among the most disappointing.
As part of his attack on the police, Stidham wanted to persuade the jury that, whether deliberately or not, Detective Bill Durham had played a dirty trick on Jessie. Stidham believed that a turning point in Jessie’s interrogation had come when Durham told Jessie that he had failed the polygraph test. Stidham believed Jessie had been telling the truth, but that when confronted with Durham’s technological “proof” that he was lying, he’d felt trapped and overwhelmed. Once again needing an expert, Stidham got on the phone, and as before, he went begging. The expert he wanted was Holmes, a veteran homicide detective and polygraph examiner. Holmes had served as a consultant to the FBI, the Texas Rangers, and the Royal Canadian Mounted Police, and he’d conducted polygraph examinations in some of the nation’s best-known cases, the Watergate break-ins and the Kennedy and King assassinations among them.
“When I called Mr. Holmes, I explained to him that I had been appointed to represent an indigent kid in Arkansas charged with killing three boys,” Stidham later wrote.
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“I explained to him that I had no money to pay him, but that I really needed his help because I felt my client was innocent.” Holmes agreed to look over the polygraph charts from Jessie’s examination by Durham. “About a week later, Mr. Holmes phoned me and told me that Jessie had only showed signs of deception on one question—the drug question. Jessie had passed all the questions about the homicides, showing no signs of deception on the charts. It was clear that Officer Durham had lied to Jessie.”
Holmes paid his own expenses, which were later reimbursed by the court, to travel to Arkansas to testify. He contributed his time free of charge. But even before the trial began, Fogleman and Davis lodged strenuous objections to the prospect of letting the jury hear Holmes. When the time came, Burnett held an
in camera
hearing on whether Holmes’s testimony should be suppressed—that is, withheld from the jury. With the jury gone from the room, Burnett began the discussion by noting that results of polygraph tests, though frequently used by police, have long been considered too unreliable to be introduced as evidence in trials. Burnett announced that the results of Jessie’s polygraph exam were, therefore, “not admissible under any circumstances” in court. Because of that prohibition, Burnett said he would sharply define what testimony from Holmes would and would not be allowed. He would not allow “speculation” as to “the machine’s results,” he said, “or whether or not the results apply to guilt or innocence, or whether or not the person [who interpreted the results] was truthful or deceitful.” He would, however, “allow testimony about whether or not the polygraph could have induced a person to make a statement that they would not have otherwise made.”
The pronouncement put Stidham in a bind. It meant that he had an expert witness who was not going to be allowed to offer his expert opinion. Holmes could not tell the jury that, as he read Durham’s test results, Jessie was telling the truth. Stidham argued that the testimony should be allowed. “We are talking about the voluntariness of the confession,” he began. He told Burnett that Holmes should be allowed to testify “so the court can determine the totality of the circumstances regarding this confession.” And he cited case law to show that other courts had held “that any evidence tending to show the innocence of the accused is admissible.”
“In other words,” Burnett asked, “you want him [Holmes] to testify in his opinion that the accused was
not
showing deception? That’s totally and completely irrelevant and inadmissible…. My ruling is that the results of the polygraph test are not admissible evidence and, therefore, no expert—state or defense—is going to be able to testify to the veracity of the polygraph machine, because it’s not accepted in this state as credible evidence. I won’t accept it one way or the other. I don’t care whether he says he was telling the truth or whether he says he was lying.”
Stidham asked the judge to let Holmes “proffer” his testimony in the hearing, that is, to state for the record what he would have told the jury, had that been allowed. If Jessie was convicted, Stidham would use the record of Holmes’s proffer as part of his appeal. Burnett agreed, and with the jury still gone, Holmes was sworn in. Stidham asked Holmes about factors that might indicate to him that a suspect was giving a false confession. Holmes cited three.
“Number one,” he said, “they don’t tell you anything you don’t already know. Number two, what they do say doesn’t jibe with the crime scene analysis or the physical evidence or any investigation that has been done up to that point. And number three, if they don’t relate it in narrative form, you have to be suspicious.” Valid confessions, on the other hand, are marked by what Holmes called “an emotional release.”
You don’t have to question him because he wants to get it off his chest…. They relive some of the sensations at the time of the crime…. And if the confession is really valid, they will offer some incidental detail which lends credibility to their story. Maybe they’ll say, “At the time we were doing this, some man was walking his dog off in the distance.” Or, “Just at the precise moment I was doing this there was an automobile accident,” and later you will find out that actually occurred. You look for those incidental details they can offer. If it is a valid confession, and you make a supposition and you’re wrong, they will tell you you’re wrong. They’ll answer every question directly. You don’t have to correct them…. You don’t have to lead them in any way….
When asked specifically about Jessie’s confession, Holmes replied, “What I don’t like about his confession is he doesn’t attribute any conversation during the crime to the boys. I don’t like it that he doesn’t express any feelings about the crime, how he felt at the time, how he feels now. I don’t like the fact that he’s giving wrong information about the ligature which should absolutely stand out in his mind, and I don’t like the time factor. It would seem to me that despite his IQ level, he should know the difference between 9
A.M
. and 5
P.M
. And he somehow should know the difference between a rope and shoelaces. Those things bother me a lot.”