Devil's Knot: The True Story of the West Memphis Three (21 page)

“Can a polygraph examination contribute to a false confession?” Stidham asked.

“Unfortunately it can.”

“How is that?”

“Because with some people, it is a last hope,” Holmes explained. “They think, ‘Okay, if I take this test and I pass it, you’re going to get off my back,’ and then when they are told that the test indicates they are lying, that’s the straw that breaks the camel’s back, and then their will is beaten to a pulp, and then they just give up.”

“Mr. Holmes, you have had an opportunity to examine the polygraph test that was performed on Jessie Lloyd Misskelley on June 3?”

“Yes.”

“Can you tell us what your findings were?”

“Well, they were different from the other examiner,” Holmes replied. “He indicated he thought there was deception at the points in the graphs where the pertinent test questions were asked. I evaluated the charts, and I have come up with just the contrary opinion. I didn’t feel that at the point where the pertinent test questions were asked that the defendant was deceptive in nature.”

“In your report you list some factors that trouble you,” Stidham said. “Could you explain those to the court?”

“Is it true,” Stidham continued, “that if an examiner didn’t interpret the test results properly, that that might cause the interrogator to become more assertive and produce a false confession?”

“It’s a catalyst. If the examiner goes out and says this guy is deceptive, he’s involved, that’s all those interrogators have to hear. That gives them the enthusiasm to be more assertive in their accusatory format. Sure. It is a catalyst.”

“Is it important,” Stidham asked, “when you’re trying to corroborate a confession, that you find things independent of the confession linking the suspect to the crime?”

“Absolutely,” Holmes replied. “That’s one of the things that disturbs me about the defendant’s confession in this case. There’s nothing you can hang your hat on.”

“Does it bother you that they didn’t take him to the crime scene?”

“That’s the first thing you do. When you get a guy to, so to speak, verbally crap out what he did, you take him right to that crime scene. In this case, there was some dispute as to what side of the creek he was on, where he was standing, where the bikes were. That could have been resolved if he had been taken to the crime scene.”

Judge Burnett listened to the testimony but was not persuaded by Stidham’s arguments that the jury should hear it. After hours of negotiation, Burnett allowed Holmes to take the stand in the presence of the jury. But Stidham was warned to ask him only a few, very general questions. The closest Holmes was able to come to addressing the issue at hand was to observe that Jessie Misskelley “certainly knows the difference between shoelaces and a rope.” That was essentially all the jury heard from Warren Holmes.

“The thing that concerned me most,” Stidham said later, “was that the judge would not permit us to tell the jury about the polygraph, and the fact that Jessie had passed instead of flunked. But the jury never knew that Jessie had passed. So the issue becomes, if the police can use this as a tool to beat up on retarded kids and scare them into confessing, why can’t the jury know about this tool?”
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Stidham’s last hope was to present a witness with expertise on the subject of coerced confessions—and that too was all but shot down. Richard Ofshe was a social psychologist with a doctorate from Stanford University. He specialized in interpersonal dynamics, particularly in police interrogations.
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Stidham believed Of she’s testimony was so critical to his defense that he talked Jessie’s family into releasing the $5,000 they were to receive from their contract with HBO to pay Ofshe to come to Arkansas.
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As the trial neared its conclusion, the professor took the stand. He had barely recited his credentials in order to be qualified by Judge Burnett as an expert witness when the prosecutors again objected. After sending the jury out of the room one more time, Judge Burnett held another
in camera
hearing. “Well,” Burnett began, “I’m going to be honest, gentlemen. I’m real interested in knowing what a sociologist is going to testify to that would aid and benefit the jury and what is the scientific basis of that testimony. It seems to me that you’ve called this witness to give an opinion that the confession was coerced and that it was involuntary.”

“That’s exactly right, Your Honor,” Stidham said.

“And I think that’s a question for the jury to decide,” Burnett reiterated, “and I’m not sure I’m going to allow him to testify in that narrow framework. I can see him having value testifying that these are common techniques employed by the police to override one’s free will, and that I found such-and-such conditions prevailing here, and things of that nature—or maybe group dynamics of a cult. But I’m not sure I’m prepared to allow him to testify that in his opinion it’s coerced and therefore invalid. I mean, what the hell do we need a jury for?”

“He’s not going to testify whether or not the confession is false or true or whether the defendant is guilty or innocent,” Stidham said. “He’s going to testify to the voluntary nature of the confession—the statement to the police—whether or not it was coerced. That’s an issue that the jury has to decide, and that’s what an expert witness is for, to help the jury decide these issues.”

“No. No, Judge,” Davis interrupted. “That’s the real crux of the matter. Whether the confession was coerced or not doesn’t make—whether it was the truth. It’s whether it was the truth—and they’re trying to get through the back door what they can’t get through the front door.”

Stidham begged. “Your Honor, that’s not the correct statement of the law.”

“No. I mean, of course, I’ve ruled that it was voluntary,” Burnett declared. “The jury, I guess, could go back and decide that it wasn’t, if that’s what you’re talking about. But the question of whether or not psychological ploys or tools were used to get a guilty person to give a true statement, now that’s another issue.”

Stidham said, “Your Honor, that’s not what he’s going to testify to.”

Burnett was growing impatient. “I don’t know what you’ve got him here for. What is he going to testify to? I want to know.”

“Your Honor,” Stidham said, “he has an opinion as to whether or not the statements made by Mr. Misskelley to the West Memphis Police Department were voluntary.”

“Well, we might as well get on with it,” said the judge. “I’m going to let him testify, but I’m not about to let him testify that in his opinion, Misskelley is innocent…. Don’t even try to ask him whether or not he has an opinion whether the confession was true or false, because I’m ruling that he cannot do that…. And I’m not going to allow him to testify that, in his opinion, these officers illegally exacted or coerced a confession from him either. I’m not going to allow him to testify to that. So what’s he going to testify to?”

When Stidham described a line of questioning that he thought conformed to Burnett’s demands, the judge agreed to call the jury back and let Ofshe testify. But first, Burnett advised the jury on a rule of law. “An expert witness,” he told the jurors,

With that, Ofshe was allowed to speak. He explained that he believed Jessie Misskelley had provided what he called a “coerced compliant”statement—“a false statement, one that comes about because an individual can no longer stand the strain of the interrogation and knowingly gives a statement that they know to be untrue.”

“Doctor,” Stidham asked, “is it possible for police interrogation tactics to produce a false confession?”

Ofshe answered that it was, and began to describe a recent study, reported in the
Stanford Law Review,
which he said had identified 350 cases in which the jury had found someone guilty who was, in fact, innocent. “In that study,” Ofshe reported, “19 percent of the miscarriages were caused by false confessions….”

But Davis jumped up to object, and once again, the lawyers held a discussion with the judge that the jury could not hear. In this
in camera
hearing, Davis complained that the answer had broken the ground rules Burnett had established for Of she’s testimony.

Burnett agreed. “I’m interpreting this as an attempt to use coercive techniques on the jury to suggest to them that this is a false confession, and that there is danger in their considering the confession, and that it suggests to them that they have to be very careful not to make a 350 error—whatever the percentages were.”

“What they did,” Fogleman said, referring to the defense, “is exactly what the court told them not to do.”

“No, Your Honor,” Stidham said. “I asked the witness if there were empirical scientific studies, and he was simply relating those to the jury.”

“Well, I don’t care,” Burnett said. “You’re still making inferences that, by these statements, that this particular statement was false and untrue.”

“Judge, and that’s what’s going to happen,” Davis agreed, “because of this witness, as you surmised. He’s very astute. He’s very smart, and he’s going—he’s going to slip around the ground rules, and we’re sitting here talking to a jury in terms of percentages of cases in which there’s been a false confession.”

Burnett ruled. “I’m going to sustain the objection.”

Returning to the courtroom, Stidham tried again to establish that Jessie’s confession had been false. “Dr. Of she, are certain individuals more susceptible to coercive police tactics than others?” he asked.

“Generally, it’s been found that individuals who are lacking in self-confidence, who have low self-esteem, are more persuadable, and also more likely to respond to coercive tactics,” Ofshe answered. “Individuals who are mentally handicapped are also at risk to responding to coercive and overly persuasive tactics.”

After Ofshe had explained a bit more, Stidham asked him if he had formed an opinion about the voluntariness of Jessie’s confession. But before Ofshe could respond, Judge Burnett interrupted. Again he dismissed the jury.

“Are we going to start calling sociologists and psychologists to second-guess a court?” he stormed. “I’ve already ruled it was voluntary. Now, am I going to let a witness get up here and contradict my ruling?”
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Davis agreed. He pointed out that while Burnett had ruled that Jessie’s confession had been voluntary, which was why it could be admitted as evidence, the prosecution was not allowed to report the judge’s finding to the jury. Since the prosecution could not present the judge’s “expert opinion” with regard to the willingness of Jessie’s statement, Davis argued, nobody else’s expert opinion should be admitted either. Burnett said that it was up to the jury to decide whether or not the confession had been voluntary, and that he would not allow any witness to give an opinion that would “supplant the jury’s function.”

Stidham explained that he wanted Of she’s point to be “crystal clear” to the jury. He asked the judge if he would be allowed to question Ofshe whether the tactics used by police in their interrogation of Jessie had been coercive or psychologically overbearing.

Burnett said he would allow that question. So with the jury back in the courtroom, Stidham said, “Dr. Of she, I need to rephrase the question for you. Do you have an opinion as to whether or not some of the interrogation tactics employed by the police against Mr. Misskelley were coercive in nature?”

“Yes, I do.”

“Could you tell the jury what that opinion is?”

Again, prosecutor Davis was on his feet. “Your Honor, I—wait—wait—wait,” he sputtered. “We—I hate to object, and I apologize for this, but the court just told Mr. Stidham…”

“That I could ask that question,” Stidham said.

But Burnett turned to the jury. “All right, ladies and gentlemen,” he said. “You’re going to be instructed to disregard the last question and the last answer.”

In desperation, Stidham asked Burnett if he could write down a question and get the judge’s approval for it before he asked it of Of she. Burnett agreed and Stidham wrote down a question. When he handed it to the judge, Burnett read it and said, “I think I’ll go along with that.” But Fogleman objected, and Burnett called the court into recess.

Stidham faced the same situation he had encountered with Holmes. The testimony he wanted his witness to give would not be allowed to be heard by the jury. As before, Stidham asked Burnett to let him present Of she’s testimony as a proffer of proof, to at least get it into the record for consideration by a higher court upon appeal. Burnett agreed. “Let’s be sure that I know what I’m excluding and that I know what you’re attempting to put in,” he said, “and then maybe I’ll change my opinion.”

Finally, with the jury still out of the courtroom, Stidham was able to ask Ofshe his opinion, and the witness was allowed to express it. That opinion was “that the statement made by Jessie Misskelley was a product of the influence tactics brought to bear on him, and that it overbore his initial stated intention to maintain that he had nothing to do with this crime and was not there.” Ofshe cited what he regarded as an escalating process that had begun with Durham’s inaccurate report that Jessie had been “lying his ass off” in the polygraph exam. Ofshe said the circle diagram, in which Jessie was told he could be either “with the killers” or “with the police,” intensified the pressure. Additionally, Ofshe said, the officers’ “repeated refusals to believe his statements about where he was contributed again to his sense of helplessness.” Showing Jessie the photo of the murdered boy increased the pressure to the point where Jessie began to cry. After that, Ofshe said, Gitchell further intensified it, playing the tape of Aaron’s voice. It was after Jessie told the detectives that he wanted “out” of the circle Gitchell had drawn that detectives recorded his first statement.