Devil's Knot: The True Story of the West Memphis Three (29 page)

Judge Burnett listened without comment. “Anything else?” he asked.

The attorney for Morgan announced that Morgan did not wish to testify. If forced to take the stand, the lawyer said, he intended to exercise his Fifth Amendment rights to avoid self-incrimination. The prosecutors vigorously objected to the prospect of Morgan taking the stand, only to repeatedly invoke the Fifth Amendment. They did not want the jury to get the impression that Morgan might know something that could be self-incriminating about the murders—an impression that would almost certainly arise and divert suspicion from the two defendants.

That, of course, was precisely what the defense wanted. Price cited for Burnett a U.S. Supreme Court ruling that said that witnesses other than the accused had “no right” to refuse to take the stand. Moreover, the opinion read, once reluctant witnesses were on the stand, if they did not wish to testify, they had to invoke their Fifth Amendment rights “to each question” that was asked.
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Jason’s other lawyer, Robin Wadley, jumped in, arguing that so far, Morgan’s lawyer had not shown any reason why he was entitled to claim the Fifth Amendment privilege. “There’s been talk from his lawyer about the fact that there’s some drug charges in Memphis which this may, in some way, impact,” Wadley said, “but there’s been no showing as to why or how. Until that’s done, I don’t believe we can make a determination as to whether or not he is even entitled to make the Fifth Amendment claim.”

“Anything else?” Burnett asked.

Morgan’s court-appointed lawyer, Scott Emerson, spoke up. In highly veiled language, he noted that the drug charges Morgan faced might somehow relate to the murders, and that they represented part of the reason Morgan did not want to testify. As Emerson cryptically told Burnett:

Jason’s lawyer Robin Wadley could hardly contain his frustration. “Judge,” he said, “they talk about these federal charges in Memphis. We don’t know what the charges are, when the charges were filed, what the allegations in the charges are, when the alleged contact that he has been charged with was contended to have happened.”

Then Price spoke up again, citing Arkansas case law, which plainly stated that a trial court “should not accept a witness’s blanket assertion of the Fifth Amendment privilege.”
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“Anything else?” Burnett asked again.

Now it was Fogleman’s turn. “Your Honor,” the deputy prosecutor said, “what the state objects to is them wanting him to get on the stand in front of the jury and the whole world and exercise his Fifth Amendment rights, which, as the court knows, even though they’ll be advised of the privilege, it will appear to the general public and probably to the jurors that that means he must have done something, for him to exercise that Fifth Amendment right, and we object to that being done in the presence of the jury and in the public.”

Fogleman also raised another matter rather delicately for Judge Burnett. That was that when Morgan had been questioned during the earlier
in camera
hearing, “he was compelled to be here. He was under subpoena. He was not free once he took the stand to get down and walk off the stand. He was not advised of his rights. He asked for a lawyer during that—”

“He asked for a lawyer when he took the stand,” Burnett interjected, “and after about the second or third question. And I directed him to answer the question. It was for that reason I decided he needed to have a lawyer appointed.” Burnett then left the issue at hand and lashed out at the defense attorneys. “This has been the most bizarre case I have ever seen in my life,” he fumed. “There’s every kind of little, incidental matter that’s come up throughout it…. I’d also want to point out that the defendant’s lawyers—Mr. Echols’s lawyers—violated one of the rules by disclosing the identity of a confidential source. The court instructed the parties that no mention of—is it Byers?—Mr. Byers’s cooperation with the Memphis Police Department, West Memphis Police Department, or the drug task force would be mentioned, and yet it was mentioned. That’s just one example of a thousand things….”

The defense attorneys struggled to make sense of what appeared to be Judge Burnett’s stream of consciousness. What had begun with Morgan’s unwillingness to testify due to unspecified federal drug charges in Memphis had suddenly shifted to confidential sources and from there to “Mr. Byers’s cooperation” with drug task forces and police departments on both sides of the Mississippi River. What did any of that have to do, the defense lawyers were left to wonder, with the murder trial at hand? And was Byers’s “cooperation” with the police somehow connected to the judge’s gag order with regard to this hearing?

Without addressing any of those matters, Burnett settled the immediate question. Noting vaguely that Morgan “seemed to be a young man who admitted that he lied and that those lies could possibly, in some way, incriminate him if he were forced to testify,” he ruled that he would not require Morgan to testify.
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Then, reminding the lawyers of his gag order, Judge Burnett added, “I’m going to make a ruling that anybody that mentions to the press, the jury, or anyone else” what had just transpired “will be held in contempt, and I mean it.”

Jason’s lawyer Robin Wadley was outraged. “Judge,” he said, “so we pick and choose the things we are going to be held in contempt for and not—”

But Burnett cut him off short. “I think I made it real clear,” he said. “I haven’t put any kind of gag on you on anything at all, but this I’m going to.”

As Burnett had demanded, no one who was present in the hearing ever spoke of it. The media never reported a word about the secret discussion of Morgan’s quickly retracted confession, or his intention to plead the Fifth Amendment, or the drug charges he faced in Memphis, or Judge Burnett’s unexplained reference to John Mark Byers in the midst of a hearing about Christopher Morgan. Nor did the public learn that while Judge Burnett had been disinclined to believe that officers at the West Memphis Police Department had refused the three requests Damien said he’d made for an attorney, Burnett himself had ignored repeated requests in his own court from Christopher Morgan.
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Deflated, the defense attorneys returned to the courtroom. As his final witness, Damien’s lawyer called Robert Hicks, a police training officer with the Commonwealth of Virginia.
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The officer said his job there was to “assist law enforcement agencies to develop good, sound written policy and to train and supervise their people accordingly.” He testified that he had a master’s degree in applied anthropology as it related to law enforcement, and that he had written a book and several articles on “so-called occult or satanic crime and the involvement of law enforcement with that topic.”
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Price asked Hicks how he had become interested in the unusual field. Hicks explained that, during the 1980s, many law enforcement agencies had become interested, as he put it, “in this broad topic of satanic crime, occult crime, cult related crime.” Since part of Hicks’s job had been to monitor trends in law enforcement, he’d begun to attend seminars on the subject. “I began to form a suspicion that some of the information presented was not accurate enough for police practice,” he said.
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Price questioned Hicks about the testimony of Dale Griffis, the cult expert. Price asked Griffis if the date of the murders—near May 1, the pagan feast of Beltane—indicated what Griffis had called “the trappings of occultism.” At first, Hicks seemed to be at a loss as to how to respond. He finally said that he’d heard of dates being linked to satanic crimes but that “for Virginia—and at least a few inquiries I’ve made about this nationally—we see no influence of these dates on the prevalence or absence of violent crime, one way or the other.” When Damien’s attorney asked about the position of the bodies, which Griffis had said suggested cult involvement, Hicks responded that, “simply finding a body bound in that fashion, in and of itself, is no clue to a religious ideology that I know of.”

Price asked if Hicks knew of any empirical data that suggested that sexual mutilation indicated an occult crime. Hicks said he knew of none. And so his testimony went. Point by point, Hicks rebutted the notion that there was any scientific or statistical basis for what Griffis had claimed.

“In your study of this phenomenon,” Price asked, “is heavy metal and rock groups, is that something that the cult cops look at when they make their opinion that a particular crime could be a satanic or cult crime?”

“Yes,” Hicks replied. “In fact, cult cops, as we have gotten into the habit of using the term, have recommended at seminars to other officers that they find ways to go into rooms in homes where the teenagers live, find out what music they listen to, and see what books they’re reading.”

“In your studies, are you aware of any particular empirical data or studies that the possession of that type of material leads to some type of criminal activity or satanic crime?”

“This, of course, is much debated,” the officer answered, “and there are many people who will attest that these will lead to darker thoughts and darker actions. But…where the Metallica music is concerned, we do have empirical evidence to suggest that the music does not cause the kind of harm that is imputed to it, that is, that it will lead people to commit crimes.”

Finally, Hicks explained:

With that, Damien’s lawyers rested their case.

While most of the prosecutors’ attention was focused on Damien and his alleged involvement with the occult, the
Arkansas Times
reporter who was covering the trial paid some attention to Jason. “I tried without success to imagine him sucking the blood of dying Chris Byers, as a scruffy cellmate testified that he’d bragged of doing,” reporter Bob Lancaster wrote. “No dice,” he concluded. To Lancaster, Jason had “the slightly drained look of a kid who’s been called to the principal’s office and isn’t quite sure how serious his situation is.”
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But the severity of Jason’s situation was about to become clear. Jason’s lawyers had hurled themselves into efforts to sever the two trials and to keep mention of satanism and the occult from tainting Jason, but now that those efforts had failed and it was time for them to present Jason’s defense, they surprised everyone in the court by calling only one witness, an expert in hairs and fibers from a laboratory in Texas.
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Ford asked the analyst to discuss the single red fiber found with the bodies that analysts from the Arkansas Crime Laboratory had identified as being “microscopically similar” to fibers from a red bathrobe belonging to Jason’s mother. The Texas analyst said he disagreed with those findings, noting that his examination of the fiber would “exclude the red robe as being a possible source.”
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With nothing more than that, Ford announced, “We rest.”

Later, Ford explained that he and Robin Wadley, Jason’s other lawyer, believed the state’s case against Jason was so weak that the assumption of innocence would prevail.
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“We wanted to just disappear on the radar screen and let Damien be the whole focus,” Ford said. “At one point, we went three days of the trial and Jason’s name was not mentioned. We were just trying to disappear. We thought that that was a good strategy: to be a nonevent, since there wasn’t a lot of evidence to begin with. We thought, if we didn’t stir the pot, and they didn’t stir the pot, what were they going to convict him on?”
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Jason was a bit dismayed, too. He had expected his lawyers to call some of his teachers, to testify about his demeanor in school, including on the day of and the day after the murders. He expected to hear some testimony to support his alibi. In retrospect he thought he would like to have taken the stand himself, if only so that the jury could have heard him say something on his own behalf before they left to consider his fate. As the one witness his lawyers had called stepped down from the stand, Jason later said he felt “lost.” He felt young and alone, and he was worried about his family.
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Midway through the trial he had made a second crucial decision based on his own ethics and his belief, as he put it, that “the truth was going to come out.” It was never reported, but at near the point where Fogleman and Davis decided to play the occult card, they’d approached Jason again, and this time they’d sweetened their offer. Years later, Jason recalled the tenor of that exchange. “Before the trial started, it was forty years,” he said, “and then, after the trial got going, they came back and it was twenty.” Jason said he was not tempted to accept either time. “It was wrong. It was against everything I was brought up to believe in,” he explained. “We weren’t rich, moneywise, but my mom instilled good values in us. They were telling me, ‘All they really want is Damien. Just testify against Damien. Say he done it. Get up there and lie.’ I told him I couldn’t help him with anything like that. I told him, ‘I couldn’t do it even if you said you’d let me go right now.’ And I told him, ‘I didn’t want to hear no more about it.’”