Devil's Knot: The True Story of the West Memphis Three (26 page)

“That’s correct.”

“And if you were doing it in the dark, in the water, with mosquitos all around you, would that make it even much more difficult?”

“I would think so.” In fact, Peretti added, he doubted that he could have performed such a procedure under those circumstances.

As the questioning continued, Dr. Peretti testified that Christopher had bled to death from his injuries; that the blood was gone from his body, his internal organs were pale. Asked if he thought that Damien and Jason, in the dark, could have cleaned up the amount of blood Christopher had lost, Peretti said: “I think it would be quite difficult. It’s not easy to clean up blood. It would soak into the ground.”

“Doctor,” Ford said, “with this homicide we are talking about here today, would you agree with me that this could have happened in one of three ways? These injuries could have happened in the water. These injuries could have happened there on the bank, there by the side of the ditch. Or, they could have happened somewhere else. Would you agree with me, those are the three possibilities of how this could have happened?” Peretti agreed.

“Okay. Now, would you also agree with me that, based upon what you saw that was done to these boys, that it would be highly improbable for it to happen in the water?”

Once more Peretti agreed. It would have been “very difficult,” he admitted.

Now Ford returned to the elusive matter of the time of death. At Jessie’s trial, Dr. Peretti had stated that he could not give an opinion as to the time of death. But now, with Damien and Jason on trial and their lawyers pressing hard for an estimate, Peretti shocked everyone in court.

“Okay,” he said. “Based on what I know, it would be a very broad range: between 1
A.M
. and, you know, five or seven in the morning.” In contrast to the vague statement he’d given earlier, Peretti was suddenly more specific. He said that in arriving at the estimate, he had taken into account factors such as the temperature of the air, the temperature of the water, the time the boys disappeared, the time their bodies were found, and the causes of their deaths. Jason’s lawyer asked him if he had consulted any of the other medical examiners regarding his conclusion. Peretti said he had discussed it with two other doctors.

“Do they concur in your opinion?” Ford asked.

“They were in agreement,” Peretti answered.

The surprise testimony flew in the face of the state’s theory of the crime. It contradicted everything Jessie had said in his confession—the confession that had led to the arrests and then to Jessie’s conviction. It meant that the little boys may have been alive during the nighttime search of the woods—alive somewhere else. It called into question everything the police had surmised: about the lack of blood at the scene, where the boys were killed, and who might have been with them between midnight and dawn.

Many of the questions Peretti’s estimate raised could not now be answered. But as Lax reflected, one thing about it was obvious: Peretti’s latest testimony represented one more piece of late-coming evidence; one more element an official had withheld; one more contradiction of the police scenario—one more ambiguity in a case already riddled with them.

When Jessie’s lawyer heard that Peretti had now testified as to the time of death, he was stunned. Stidham’s mind raced with thoughts of how he could have used that information, had he had it at Jessie’s trial. The defense lawyer noted that twice during Jessie’s trial, he had asked Peretti if he could determine the approximate time of the victims’ deaths, and that each time Peretti had told the court that he could not. But now, with Jessie’s codefendants on trial, Peretti was offering an estimate—and the estimate did not fit with anything in Jessie’s confession. Arguing that Jessie had been denied a fair trial because the jurors were not told of the discrepancy, Stidham filed a motion with Judge Burnett, asking him to overturn Jessie’s conviction and grant the boy a new trial.

Damien’s and Jason’s lawyers regarded Peretti’s admission as a minor coup. On top of the admissions of foul-ups by the police and Peretti’s admission that he had treated this case differently than most, here now was the state’s own medical examiner saying the murders appeared to have been committed at least four hours later than would have been possible according to the state’s own scenario.

Fogleman was livid. Peretti’s testimony had come as an unexpected and unpleasant surprise. “I will say this,” Fogleman later fumed. “If you rely on Dr. Peretti for a time of death opinion, it’s a mistake. Dr. Peretti is another book.”
²⁶⁸
Fogleman said that he and Davis learned that Peretti planned to testify as to the time of death shortly before he returned to the stand. The two prosecutors and Peretti had been standing outside the courtroom, Fogleman said, when Peretti volunteered that he was “going to have to express an opinion.” Fogleman said he and Davis were astonished. “We said, ‘Why? You told us you didn’t have enough information.’” Fogleman said Peretti never answered his question, but that over time the prosecutors surmised what had happened. According to Fogleman, Jason’s lawyers had discussed the case with Peretti sometime before the trial, and they’d tape-recorded the session. “I’m not sure whether Dr. Peretti knew that,” Fogleman later said,

As the questioning of Peretti continued, Davis attempted to minimize the damage. He dropped the matter of time of death and asked Peretti about the effect that water might have had on the evidence. Yes, Peretti answered, water could have washed away sperm from the boys’ anuses, if they had been raped. And, yes, it was possible that not every rape of a child leaves lacerations on the victim. The beleaguered pathologist was then allowed to leave the stand.

Next, the state called sixteen-year-old Michael Carson, the young burglar who’d recently come forward with a damning story about an encounter he said he’d had months earlier with Jason in jail. Michael’s testimony would prove critical. It, along with the knife removed from the lake and the fiber found with the bodies that was said to be “microscopically similar” to fibers in a woman’s bathrobe in Jason’s house, would constitute the entirety of the state’s case against him.

“He told me how he dismembered the kids,” Michael told Prosecutor Davis. “He sucked the blood from the penis and scrotum and put the balls in his mouth.”

Spectators in the courtroom gasped. Davis pressed on. Noting that Michael did not report what Jason had said until almost six months later, the prosecutor asked, “What caused you to come forward at that point in time?”

“Because I saw the family on TV,” Michael said, “and saw how brokenhearted they were about their children being missing. And I have got a soft heart. I couldn’t take it.”

Next, the prosecutor questioned Detective Sergeant Allen about the knife that was removed from the lake behind Jason’s house. When the prosecutor produced a map of the trailer park, Allen showed the jury where Jason lived, then pointed to a spot in the lake, a short distance away, where he said divers had found the knife. On cross-examination, defense lawyers attacked the tenuousness of the links, not only between the knife and Jason, but between the knife and the crime. Jason’s lawyer asked Allen, “Are you telling this jury that this knife is the murder weapon? Is that what you’re telling this jury?”

“No sir.” Allen replied. “I am not telling the jury that.”

When Detective Ridge returned to the stand, he acknowledged that contrary to what Gitchell had told reporters, the suggestion to search the lake had been Fogleman’s. Damien’s lawyer picked up the folding knife that John Mark Byers had given to the filmmakers—the one weapon that could be directly linked at least to the family of one of the victims. But when Price tried to question Ridge about his interview with Byers after blood was found in the knife’s fold, the prosecutors objected. They did not want the jury to hear that within the past six weeks, the police had formally read Byers his rights and questioned him about the murders—a revelation that might make him look like a suspect. Burnett immediately dismissed the jury and held another
in camera
hearing with the lawyers.

Both sides questioned Gitchell in the hearing. He maintained under oath that he and Ridge did not consider Byers a suspect. He said that they had questioned him about the bloodstained folding knife only because Stidham had insisted. Asked why, if Byers was not a suspect, they’d read him his rights before the interrogation began, Gitchell said that he was just trying to be cautious. It was the kind of catch-22 that the defense attorneys felt they’d been dealing with since the case began. And the absurdity did not stop there. When Damien’s lawyer asked Gitchell if, during their questioning of Byers, the detectives had been “trying to determine whether or not Mark Byers was involved in this homicide,” Gitchell responded, “Yes sir.” But when Price then asked, “So, at that time, you still had a question as to whether or not there might be other parties involved in this homicide than the three people charged?” Gitchell replied, “No sir.”

Judge Burnett said he couldn’t see the defense lawyer’s point. Price said he wanted to introduce evidence collected by the West Memphis police showing that Byers had been a suspect and that there had been others as well, but Burnett would not allow it. Besides Byers, Price argued, there was young Christopher Morgan, the Memphis teenager who’d told police in California that he had committed the murders. Morgan had quickly retracted the statement, but then, so had Jessie Misskelley. Price wanted to question Morgan as a way of suggesting to jurors that the police case had been far from certain.

But Burnett asked why Morgan’s testimony would be relevant. Price was incredulous. “A man who confessed to these murders? A man who knew all three of the victims? A man who left West Memphis within a week after the murders? I think it is definitely relevant, the fact that he went out to California and confessed.” Moreover, the defense teams argued, they wanted to question other witnesses whom the police had viewed as suspects. But Burnett had heard enough.

“Gentlemen,” he said, “this is getting to be absurd. I mean, I’m not going to let you drag in every possible suspect in this case, unless you’ve got something to tie those persons to some event in this case.”

The defense lawyers argued that a suspect’s confession, even if retracted, ought to suffice as a tie-in. But Burnett ruled that testimony about other suspects would not be allowed. He told the defense attorneys that he was not going to let them “confuse the issue” with “things that aren’t relevant.”

T
HE TRIAL WAS ENTERING ITS THIRD WEEK
. Prosecutors Davis and Fogleman had welcomed the judge’s decision to bar evidence about other suspects. Still, their case was thin. In Jessie’s trial, they’d had a confession. Here they did not. Unable to call Jessie and unwilling to call young Aaron Hutcheson, the prosecutors had no eyewitness to the crime. And for physical evidence all they had were a few ordinary sticks from the woods, a couple of “similar” fibers, and the knife that was taken from the lake—nothing that directly linked the defendants to the murders. To some observers, their case was looking tenuous. Then, abruptly, Fogleman announced a motive.
PROSECUTION SAYS KILLINGS CULT RELATED
, the
Jonesboro Sun
proclaimed.

The prosecutors had not suggested a motive in their opening statement to the jury. But now, the paper reported that Fogleman was expected to call “an expert in cult-related crimes” to testify. The decision triggered another
in camera
hearing, as Jason’s lawyer Paul Ford tried to block the approach. With the jury out of the room, Detective Ridge testified that he had believed from the start that the boys’ murders were linked to the occult. “The fact that there was overkill, more injuries to the boys’ bodies than what was needed to kill them,” he said, had led him to suspect a cult-related crime. The boys’ ages—eight, which Ridge said was a number used by witches in the Wicca religion—and his observation that “in cult-related killings, the victims will be males,” had supported his suspicion. Aaron Hutcheson’s statements had reinforced his belief. “Plus,” he said, “there was damage to the left side of one of the boys’ faces, which is a sign of the occult.” Ridge testified that when he’d questioned Damien, the teenager’s responses had further heightened his suspicions.

Burnett asked Ford and Fogleman, “Can either one of you define ‘occult’ for me?”

“Well,” Ford said, “we can get Webster’s dictionary, Your Honor.”

“I don’t know what an occult is,” Burnett grumbled. “It sounds like something bad, but I’m not sure what it is.”

Price asked, “Is the state now stating that the motive is occult killing?”

“We have not made a final, firm decision,” Fogleman replied, “but at this point, I would say yes.”

Burnett asked Fogleman if he expected to link Jason “to occult activities.”

“Your Honor,” Fogleman said, “that is something that will have to be talked about with the expert. It is my understanding that part of the involvement deals with obsession with heavy metal music, change in forms of dress, wearing all black. And I believe the proof would show that he had fifteen black T-shirts with the heavy metal thing. And he had some kind of animal, either claws or teeth—I think they said they were claws—in his possession.”

Jason’s other lawyer, Robin Wadley, shook his head in disbelief. “Judge, if it’s the state’s position that owning black T-shirts with rock bands on them meets the court’s burden…is that fact alone enough?”

But Fogleman said there was more. “We have the testimony that Michael Carson gave related to the sucking of blood from the penis,” he said, “and I think the evidence would show that drinking of blood is something that these people believe gives them power.”

Jason’s lawyers were disappointed but not surprised when Burnett sided with Fogleman, ruling that he would allow questions about the occult. But in light of that decision, they again beseeched Burnett to separate Jason’s trial from Damien’s, as they anticipated that there would be extensive testimony about Damien’s acknowledged interest in the occult, but that there would be none for Jason. Again, Burnett refused to sever the trials. He said he would warn the jury “that this testimony—I hate to dignify it by calling it occult testimony—but testimony relative to Wicca religion” could be considered only against Damien.

Ford’s requests that Jason be tried separately from Damien had been widely reported. But what the public never knew—and what, in fact, almost no one in the courtroom, including the jurors, knew—was that while the prosecutors were trying to win sentences of death for the accused child killers, they themselves had secretly offered Jason a separate deal. They had offered not once, but twice. As Jason later recalled, the offers were relayed to him by his attorneys, Ford and Wadley, and were similar to the deal that the prosecutors had offered Jessie. Instead of asking the jury to sentence Jason to death, they would seek a sentence of forty years—a term that would allow for his eventual parole—if he would plead guilty and testify against Damien. If Jason accepted the deal and exhibited good behavior in prison, he could expect to be out in ten to fifteen years.
²⁶⁹

In some respects Jason presented the biggest threat to the prosecutors’ case. They had little evidence against him, and Fogleman and Davis worried that if the jury harbored doubts about Jason, his status as a codefendant might lead them to question Damien’s involvement, as well. On the other hand, if Jason were to testify against Damien, one of their biggest liabilities would be transformed to their advantage. Jason’s lawyer Paul Ford recalled that the first approach to Jason was made before the trial began. It presented a tremendous challenge to a boy whose seventeenth birthday was still a month away. But his response was swift and sure.

“They said, ‘Just say something. Save yourself,’” Jason recalled. “Ford was encouraging me to do it. But I was, like, ‘Nah. This isn’t right.’ I made the decision on my own, right then and there. It was a flat-out no. Ford said, ‘Well, I still had to ask.’”

Like much about Jason’s role in the trial, the drama played out quietly and was ultimately ignored. But the episode was revealing. It showed a lot about the prosecutors—and about the character of the sixteen-year-old who, in turning them down, risked being put to death.

Damien did not know of the offer that had been made to Jason, or of Jason’s refusal to “lie,” as Jason put it, about his friend. What Damien did know was that he risked hearing his own words used against him. Damien’s lawyer was trying to prevent that.

The prosecutors wanted to introduce the reports West Memphis police had written about interviews with Damien in the weeks before his arrest. Price argued that the statements had been obtained illegally. Burnett considered the disagreement in another
in camera
hearing
,
and here, with the jury out of the room, Damien himself was called to testify. After he was placed under oath, Price asked him if he had requested an attorney when he was questioned by police on May 10, five days after the murders. Damien said that he had asked for an attorney—not once but three times—but that Detective James Sudbury had argued against it. “He told me that I didn’t need an attorney,” Damien testified, “because he would end up costing me a lot of money and would quit anyway.” Damien said he was questioned for eight hours that day. “At first,” he said, the detectives “were pretty nice. But later they started cussing me. And they said they were going to ‘fry my ass,’ that I might as well go ahead and confess.”

Damien’s mother, Pam, testified that at about 5:45
P.M
., while police were still questioning Damien, she’d called an attorney from a nearby town who happened also to be a state senator, and asked that he come to West Memphis and represent her son.
²⁷⁰
Later in the hearing, the senator testified that after receiving the call, he drove to the West Memphis police station, where he’d asked to see Damien, but that his request had been “refused.” The state senator said that he’d repeated his request a short time later, and that this time he was told that the “building was closed” and that he “could not go upstairs” where Damien was being questioned.

Detectives Ridge and Durham swore, however, that Damien had never asked for an attorney. Davis argued that the senator’s role was irrelevant anyway, because no statements from the part of the interview conducted after he’d arrived would be presented as evidence.

“It’s relevant to the way they harassed this kid,” Damien’s lawyer responded. He argued that the jurors needed to know that Damien had been denied access to a lawyer.

But Judge Burnett was not impressed. He noted that if the police investigation itself was challenged, literally hundreds of people could be called to testify, and that that would, as he’d said before, be “absurd.” Based on the “credibility of the witnesses”—Ridge and Durham—Burnett ruled that the statements Damien made during his nearly eight-hour interrogation would be admitted at trial. The trial moved back to open court, where, in the presence of the jury, Fogleman was now allowed to ask Ridge about what Damien had told the police. Ridge related Damien’s comments about the mystical significance of water, about three being “a sacred number in the Wicca religion,” and about the “demonic forces” that, Ridge reported, Damien said all people have “inside them.”

Then it was Price’s turn to cross-examine Ridge. “When you asked him about what his favorite book of the Bible was,” Price asked, “that’s when he told you it was Revelations?”

Ridge agreed.

“Was that a question that you asked other suspects in this case?”

“I don’t remember asking that of anybody else. No sir.”

“When Mr. Echols—you asked him what type of books did he enjoy reading?”

“Yes sir.”

“And he told you, I think it was Anton LaVey and Stephen King?”

“Yes sir.”

“In your opinion, is there anything unusual about those being the type of books Mr. Echols likes to read?”

“Anton LaVey is a book of Satanic rules and involvement. Stephen King seems to be horror movies, horror books, and if you’re asking if I felt that was strange, yes sir, I did.”

To further explore how Damien was “strange,” Fogleman called to the stand Deanna Holcomb, Damien’s former girlfriend. “During the time y’all went together,” Fogleman asked the seventeen-year-old girl, “how did Damien dress?”

“He wore all black,” Deanna said.

Fogleman asked, “During the time that you went with him, did Damien carry any type of weapon?” Deanna said he carried “knives.”

Fogleman showed her the knife from the lake, asking if she had ever seen one like it before. “Yes sir,” Deanna replied. She said that once when she’d given Damien a hug, she’d seen a knife like it in his trench coat pocket.

The defense lawyers tried to discredit the police by showing that their investigation had been unreliable in several ways. Again, in a hearing away from the jury, they told Judge Burnett that detectives had compiled a ten-picture photo lineup, which they had shown to several people, including Aaron Hutcheson, but that the detectives had kept no records of whose photos were included. Fogleman said the issue was unimportant, since Aaron had never identified anyone from the photos. Damien’s lawyer argued, “Judge, if they showed this alleged eyewitness my client’s picture and he didn’t pick out my client, that’s exculpatory, and we are entitled to know who the ten photos are.” But Burnett announced once again that “the police reports and investigation” were “not the subject of this trial.” And again he sided with Fogleman.

Having decided to pursue the cult-activity motive, the prosecutors pulled out all the stops. Fogleman asked Burnett “to consider taking judicial notice that there was a full moon on May 5, according to an almanac.” The defense objected, but Burnett said he found the request “appropriate,” and took official note of the full moon on the night of the murders.

With that established, the prosecutors called Dale Griffis, a Ph.D. “cult expert” from Tiffin, Ohio. They wanted Griffis to elaborate on Ridge’s contention that the killings had been cult related. But the defense teams objected to Griffis being qualified as an expert. With the jury dismissed yet again, this time for more than three hours, Burnett listened as Griffis was questioned by attorneys for both sides. How, the defense wanted to know, does one become an expert in something like the occult? Griffis answered that he had twenty-six years of law enforcement experience, a doctoral degree “from Columbia Pacific,” and a consulting practice relating to satanism. Because of his expertise, Griffis said, Jerry Driver had contacted him about satanic activity in West Memphis long before the murders had even occurred. The two had spoken about a half dozen times.

Jason’s lawyer asked Griffis what classes he had taken in order to obtain his Ph.D. After avoiding an answer for several rounds, Griffis finally acknowledged, “None.”

Finally, Damien’s lawyer had heard enough. “On behalf of my client,” Price told Burnett, “it’s our position that the mail-order Ph.D. in which a person doesn’t have to take classes…from a nonaccredited school doesn’t qualify as an expert in Arkansas.”

“I disagree,” Judge Burnett replied. “I’m going to allow him to testify in the area of the occult.”

Fogleman later stated that he had not realized until the hearing that Griffis’s degree was “from a correspondence school.” Years after the trial, Fogleman admitted that the revelation had “probably” been his “most embarrassing moment as a lawyer.”
²⁷¹
But at the time, the prosecutor’s embarrassment had not been so severe as to prevent him from questioning Griffis as the expert that Judge Burnett had just ruled he was.

“What is the difference in occult or cult?” Burnett asked Griffis. “What is it? Is there any?”

“Yes,” Griffis answered. “An occult group is a group that is involved in some form of esoteric science, and they have been around prior to Christianity. A cult group usually is a group that I deal with—the ones who are breaking the law—are those who follow a particular belief style under a charismatic leader and in and among their belief style they do break the law.”

“Does the number three—three victims—have any significance?” Burnett asked.

“One of the most powerful numbers in the practice of satanic belief is six-six-six, and some believe the base root of six is three,” Griffis replied.

But when Damien’s attorney asked Griffis if he would agree the number three was “also significant in Christianity, for example, and other religions,” Griffis answered, “I cannot make that statement.”