Devil's Knot: The True Story of the West Memphis Three (38 page)

In March 2000, the manager of a Seattle-based band announced a project that would pull together several groups in support of the three Arkansas convicts now known as the West Memphis Three. Danny Bland, manager of the Supersuckers, a Seattle band, explained the project’s genesis in an opinion piece published in one of the city’s entertainment newspapers.
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Bland described his encounter with the case through the HBO documentary, his further explorations at the Web site and letters to the three young inmates. “Something about this story filled me with great sympathy for these guys and great anger for the justice system in Arkansas,” he wrote. “I gathered up the troops—Super-sucker Eddie Spaghetti [lead singer Eddie Daly], his wife, Jessika, and [record promoter] Scott Parker—and headed down to Arkansas to visit Damien and Jason.” The visit with Damien lasted three hours, during which the visitors explained their idea.

It was not easy to pull together dozens of musicians, most of whom needed permission from their own recording studios to participate in the project. But, seven months after the Seattle group’s visit to Arkansas, the CD
Free the West Memphis Three
was ready for release. Some of the more famous names on the liner notes were Tom Waits, singing his own song “Rain on Me”; Steve Earle, doing “The Truth,” which he’d written; and Eddie Vedder, the lead singer of Pearl Jam, singing “Poor Girl,” by John Doe and Exen Cervenka, in a performance with the Supersuckers.
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The front of the CD case featured a gritty collage of shackles, prison bars, and images of the three Arkansas inmates. On the back was a photo of the guard towers outside Damien’s prison.
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Just before the CD’s release, Pearl Jam appeared in concert in Memphis, a city where one radio DJ routinely mocked West Memphis Three supporters and where TV reporters received castigating calls from viewers if they aired news of the growing movement. At the end of Pearl Jam’s performance before a crowd of about ten thousand fans in Memphis’s Pyramid Arena, the band played two encores. Then Eddie Vedder, Pearl Jam’s lead singer, returned to the stage a third time. “This last song is for a friend I haven’t met yet,” he announced. “He’s from West Memphis. I’m going to meet him tomorrow.” With that, the band launched into a biting rendition of the Who’s “Teenage Wasteland.” The crowd roared, though few in the audience could have known to whom Vedder was referring. The next day, Vedder rode in a limousine across the Mississippi River into mid-Arkansas, to the state’s maximum security unit, where he visited with Damien. Later, Vedder told a reporter, “I went and visited Damien in this little God-forsaken place, this prison—he’s on death row—and everyone was treated like dirt there.”
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Soon after the CD’s release, however, Music City Record Distributors of Nashville, Tennessee, announced that it was removing the compilation from the shelves of its Cat’s Music stores.
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In a letter sent to its stores, the company reported that the Pop Tunes and Best Buy chains had reached a similar decision. But in other parts of the country, reaction to the disk was different. The
Village Voice
called it “a weird and exciting little collection.”
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The writer for the
Village Voice
articulated an issue that burned both at the heart of the West Memphis case and in the motives of many of the inmates’ musical supporters. That was the amalgam of hope, confusion, sexual energy, and rebellion that pounded through rock and roll and through the lives of many teenagers who found themselves drawn to the music. Since its origins, in the same Mississippi delta that gave birth to the blues, rock and roll had been embraced and denounced as “bad.” Memphis’s historic Beale Street had become a tourist attraction, but in its heyday, the street was a string of riverfront dives where some of the country’s greatest musicians played—against a backdrop of scorn and condemnation from the city’s churchgoing elite. It was the same with Elvis Presley. His name graces nearly everything in Memphis today. But, in the early sixties, when he burst onto the scene, he outraged the city’s defenders of decency—and many continued to view him as bad until they realized he was good for the economy. Rock and roll plays with big taboos: sex, drugs, and—worst of all—subliminal notions of evil.
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It’s risky. It blurs reality with theatricality. It expresses dangerous emotions—a quality that fans find liberating but that others find terrifying. What did the music of Metallica, Megadeth, and Slayer say about Damien and Jason? Did it represent, as Prosecutor Fogleman suggested, parts of a mosaic that pointed to satanism and murder? Or did it say, as the producers of the benefit CD believed, that the two were searching for music that gave voice to the fears and forces at the heart of their own lives? In an interview accompanying the disk’s release, Eddie Spaghetti of the Supersuckers said that his commitment to the project arose in part out of a sense of obligation to the “kids” who listened to the music he played—and apparently risked, in some cases, having that used against them in court.
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As the publisher of a Little Rock weekly wrote, “What seems to frighten Spaghetti and similar musicians who explore the ‘dark side’ of music, is that anyone who buys his record and T-shirts could be considered a devil worshiper and become a scapegoat in a legal system that fears the unknown vistas of ‘dark music.’”
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When the CD was released, some supporters worried that support from rock musicians who made their livings being “bad” might muddy the Web site’s more mainstream efforts on the inmates’ behalf. Those concerns were underlined when Trey Parker, cocreator of
South Park,
one of television’s most irreverent shows, joined the list of celebrities supporting the West Memphis Three. “Bad publicity,” fretted one supporter, “is what got them locked up in the first place.” But the storm of concern blew over—partly, no doubt, because it’s hard to harm the image of someone who’s already on death row—and the movement for the West Memphis Three widened.

But a columnist for the state’s main daily paper, the
Arkansas Democrat-Gazette,
was not troubled by such concerns. In a column published in February 2001, Philip Martin, the paper’s chief writer on cultural affairs, noted the support that was building nationally for the three Arkansas inmates, including that from musicians and certain “Hollywood types.” Martin wrote that he realized that many of the West Memphis Three’s supporters were “well-meaning and sincere,” and that “reasonable, decent people can disagree.” That said, Martin informed his readers that he believed that Damien, Jason, and Jessie were the killers.

For several reasons, Martin’s opinion piece was an important comment on the case, in that it reflected attitudes prevalent in Arkansas six years after the trials. The piece acknowledged a litany of “questions” about the case—questions that Martin said he found “troubling.” At the same time, it echoed the confidence that Martin, like many Arkansans, maintained: that justice had been served.

Martin went to lengths to acknowledge the supporters’ concerns. He admitted that, like them, he had not been convinced of the defendants’ guilt “beyond a reasonable doubt.” He said he initially had had “some misgivings about the way the police identified the suspects,” and that he had been “troubled by the Satanist hysteria surrounding the case.” He said he knew that the Arkansas judicial system was “capable of atrocity,” that it was “probably capable of convicting and even executing the wrong person,” and that the West Memphis case had been “messy” and “largely circumstantial.” He said he realized that “confessions can be false,” that Jessie’s confession was “hardly convincing evidence,” and that the teenager probably had “some sort of cognitive disorder in addition to an extremely low IQ.” Martin admitted that he disliked “the state’s insistence on dragging a self-styled expert on Satanic rituals” into Damien and Jason’s trial, and that “it probably would have been better to try those two separately.” He wrote that he understood that “police routinely cut corners,” that “there are innocent (or at least ‘not guilty’) people in our prisons,” and that “if you are poor and friendless you are treated differently than if you are wealthy and well connected.”

Nevertheless, Martin wrote, two juries had found the defendants guilty and he had seen no convincing evidence that their verdicts were wrong. “It makes a good story—,” he wrote, “yokel cops crucify the misfit. It could sell some books. But it ignores the facts.” Martin did not cite what “facts” he believed had been ignored. Rather, he explained that his own doubts about the case had been laid to rest by “a couple of back channel conversations” with people whom he trusted. Without divulging what in those conversations he had found so persuasive, Martin wrote, “Their word was good enough for me. The cops had the right guys.”
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Then Martin sounded the deepest theme of the case, though he did it superficially, as though it were all the explanation needed. While granting that he “wouldn’t mind too much” if Damien, Jason, and Jessie “somehow” managed to get new trials, Martin wrote that he didn’t “much care” if their case was never reviewed. “While I’m opposed to capital punishment,” he wrote, “I don’t think Damien Echols is a particularly good argument against it. I could be wrong, but he seems thoroughly calculating and cynical about all this, he seems to be enjoying the attention. He seems evil. Which, I imagine some of his supporters would argue, is what got him into all this trouble in the first place—Echols
seems
evil.”

T
HE HORROR THAT UNFOLDED ON
M
AY
5, 1993, ended life forever for Christopher, Michael, and Stevie. The trials ended life in the free world for Damien, Jason, and Jessie—and put Damien on a list of men awaiting execution. But outside the stillness of the cemeteries and beyond the walls of prisons, participants in the drama surrounding the murders carried on with their lives.

Within weeks of his dual victories in the sensational West Memphis trials, deputy prosecuting attorney John Fogleman was running hard for circuit judge. Though some voters considered his campaign ad—on a billboard near the Blue Beacon—tasteless, Fogleman’s claim on it, that he could “make tough decisions in tough cases,” proved powerful at the polls. As the three convicted teenagers were being introduced to prison life, John Fogleman was stepping up to the bench, where he’d serve with Judge David Burnett.

During the next several years, Judge Fogleman had little to say publicly about the most sensational trial of his career. But in 2001, when contacted for this book, he hesitantly agreed to discuss it.
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Seated in his plain and sparsely furnished office in Marion, around the corner from the Crittenden County Courthouse, Fogleman said he was concerned that his statements “might be taken out of context.” The interviewer observed that if Jessie Misskelley had been a bit more wary, he might have harbored similar qualms when he was questioned by the police, but the remark elicited no comment. The former prosecutor addressed most questions, however, with an air of polite, if formal, cooperation.

He said that though he and Inspector Gary Gitchell were “good friends,” he’d “cringed” when Gitchell bragged that on a scale of one to ten, the department’s case against the accused was an eleven. He acknowledged that at the time of the arrests, “basically, the only thing we had was Jessie’s statement,” which was why the police investigation had continued almost until the start of the trials. Fogleman noted that elements of the case, such as the detectives’ failure to investigate the bloody man at Bojangles, “could have been handled better, much better,” and that their loss of the blood evidence taken from the restaurant was “very unfortunate.” He also acknowledged that he had not been “comfortable” with the roles Vicki Hutcheson and her son Aaron had played. Those considerations aside, however, Fogleman expressed confidence in the conclusions, reached by the police and two juries, that the three accused teens had been guilty.
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He cited his reasons for believing that the children had been murdered where they were found: chiefly, police reports that no sign of vehicle tracks or a bloody trail had been found leading into the woods. That, coupled with police observations “that one bank had that unnatural appearance,” had convinced him, Fogleman said, “that the murders had to have happened there.” He felt equally sure that the killer had not been the man who’d cleaned up in the Bojangles rest room. “Keeping in mind that whoever did this crime took the time to hide every piece of evidence, put the bicycles in the water, the bodies in the water, the clothes all crammed down in the mud…to take that same person and say that immediately after he’d done all this, he goes into a public place all covered in blood and leaves blood laying around—to me that’s a complete absurdity.”

Fogleman said that he and the police had tried to consider “every possibility” they could think of—and that included the possibility that John Mark Byers was the killer. Recalling the terroristic threatening charge brought by Byers’s first wife, which Fogleman had handled as a young prosecutor for the city of Marion, he said, “Quite frankly, as soon as I’d heard who one of the [murdered] kids was, I called the police and told them they ought to consider him.” He said his concern was based on the tape recording Byers’s first wife had made of the attack, which she’d played for Fogleman. “Because of the way he [Byers] sounded on the tape, I just thought he was somebody they [the police] should consider. Not that I thought he did it. It’s hard to consider parents or step-parents as suspects in a child’s murder. But the tape sounded bizarre enough—the nature of his voice and the way he sounded—that I thought he should be considered, and he was.”

Fogleman described Byers as “a guy who’s not an upstanding citizen of the community.” But when asked about Byers’s record, the judge was vague. He said Byers’s terroristic threatening conviction had been expunged after he “completed his probation” but seemed unaware that Byers had not met the terms of that probation; he expressed surprise at hearing that Byers was not prosecuted in the Rolex watch scam (“I thought he was. Was he not?”), and he spoke vaguely about what he and the West Memphis police had known about Byers’s involvement with drugs. “I don’t know if my memory is correct,” he said, “but I do know that we weren’t able to confirm what his status was, one way or another…. I do seem to recall that the police talked to somebody, either with the Shelby County Drug Task Force [in Memphis] or the U.S. attorney’s office, or the DEA or FBI over there, and that they confirmed he was working with them.” But he said no actual information developed. And when asked if police in Memphis and West Memphis did not cooperate, Fogleman replied obliquely, “I would say metro narcotics in Tennessee were coordinated pretty well with here, but maybe not as well as you might think.”

Fogleman’s recollections about the three defendants were more clear. He cited the fibers found with the bodies (“They’re little bitty but they’re important”), the knife taken from the lake (“I still believe it’s more significant than even Dr. Peretti would say”), and particularly Jessie’s confession. Fogleman said he’d been uncomfortable about the discrepancies in Jessie’s various statements. As to why Jessie had given so many different accounts of what he said had happened, Fogleman seemed mystified. Pointing out that Jessie at one point said he’d been drinking, he observed, “If you want to look at it from a prosecutor’s perspective, you could say that that clouded his judgment and that’s why he got all these details wrong.” But when pressed as to why he thought Jessie had offered so many differing accounts, Fogleman said, “I don’t know. I don’t know. They were generally consistent, but specifically they weren’t. I don’t know.”

He then added, “You’ve got the situation where there are a couple of things—the time involvement and also the thing about how the boys were tied—that were obviously wrong. But at the same time, you’ve got him telling things that only somebody would know who was there.” These included, he said, “the injuries to the left side of one of the boys’ face, the mutilation of the Byers boy, and [ Jessie’s] picking out photographs of which one had which injuries. The way I looked at it—and I even asked the officers to make sure that they hadn’t somehow leaked that information to him, and they assured me that nothing like that had happened—the way I looked at it, these were things only someone who’d been there could know.”

At another point, he said, “If you look at each individual piece of evidence throughout the case, no matter which one it is, you’d say, ‘I won’t convict on that.’ But when you put everything in combination, that’s the way you have to look at circumstantial evidence. It’s like looking at the spokes of a wheel, and pulling out a spoke and saying, ‘Well, that’s not a wheel,’ but you put it all together and it is a wheel.”

Motive is an important part of the wheel that explains a crime. But motive had been elusive in this case. None of the usual motives for murder—anger, revenge, robbery—had seemed to fit the defendants. Beyond little Aaron’s wild statements and the alleged photographs that Jessie reported having seen in the alleged briefcase at the alleged esbat—none of which had been produced at the trials—there was nothing to indicate that the defendants had ever laid eyes on the victims. Davis and Fogleman had waited until midway through Damien and Jason’s trial to even suggest a motive. On the day before the prosecutors called their expert, Dale Griffis, the Jonesboro paper quoted Fogleman’s announcement that he and Davis planned “to show that the motive was cult related.”

Now, six years later, Fogleman shied away from questions about why he’d pursued the occult theory of motive. Rather than showing motive, Fogleman now said, the testimony of Dale Griffis had been introduced to explain Damien’s state of mind. Noting that some of the writers Damien “admired” had “advocated human sacrifice and that kind of thing,” Fogleman said he’d introduced the evidence of Damien’s interest in the occult simply to show the jury that Damien was not a “typical teenager.”

Nonetheless, Judge Burnett had ruled that he would allow introduction of testimony pertaining to the occult only if it “went to motive,” and the prosecutors, in announcing their decision to introduce it, had told the judge that it did. Now Fogleman sought to distance himself from that decision. He explained that at Damien and Jason’s trial, he, Davis, and Griffis had avoided using the term “satanic ritual.” What they had argued, he said, was simply that the crime had born “the trappings of occultism,” a term that Fogleman now said “was relevant to show the mind-set, particularly of Damien.” Despite his latter-day squeamishness on the subject of motive, Fogleman remained confident that Damien was the killer.
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For Fogleman, the case was history. “Obviously,” he said, “if I prosecuted somebody who got the death penalty, and I was wrong, I would feel bad about it. Very bad. I’d feel terrible. If that’s the case I hope new evidence comes forward.” But now that he was a judge, Fogleman was no longer legally involved. The same was not true for Brent Davis. He remained the district’s chief prosecuting attorney, and was still in a position to oppose all challenges to the verdicts.

By the late 1990s, those challenges were coming from several directions. And with the exception of Stidham, who was still defending Jessie, the new efforts were being led by lawyers with no ties to the judicial district. Spurred by publicity and calls from supporters, some of the nation’s most prominent defense attorneys—lawyers from outside Arkansas—had taken an interest in the case.

But it was growing late in the game. Damien, Jason, and Jessie’s appeals to the state Supreme Court had failed. The avenues of appeal left in the state were growing narrower. The main one still available was called, in Arkansas, a Rule 37 petition: a procedure that allowed convicted persons to argue that their trials had been unfair. A Rule 37 petition is not heard by the state Supreme Court but by the same judge who tried the case. Not surprisingly, judges do not frequently find fault with their own rulings, so most are summarily denied. But in cases where an inmate has been sentenced to death, the judge is held to stricter standards than for other denials. When a judge denies a Rule 37 petition from someone on death row, he must carefully state his legal reasoning for every point raised by the defense. An inmate can make several claims to attack his trial’s unfairness, but the most common one is that the lawyer who represented him outrageously botched the job; that is, in legal terms, that he received “ineffective assistance of counsel.” The question facing Damien and his codefendants now was how they would find lawyers to file their Rule 37 petitions, considering that they remained just as poor as they’d been at the time of their trials.
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Unbeknownst to them, the lay interest that had been building in support of their claim of innocence sparked the interest of some leading criminal defense attorneys. One of those was Barry Scheck, a lawyer noted for his work on the O. J. Simpson case and his expertise in the burgeoning field of DNA evidence. Another was Edward Mallett, a trial lawyer from Houston, Texas. In 1997, Mallett informed Damien he would work on Damien’s Rule 37 petition for free, and that Scheck had signed on to help.
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Mallett visited Arkansas and met with Val Price, the lawyer who, Mallett would be arguing, had failed in his representation of Damien. Mallett said he found Price to be “very, very nice, not the kind of person you’d like to take on as a professional enemy.” Nonetheless, he pressed Price to explain why, at such a crucial time, he had participated in the making of a film and to allow Damien to participate as well. That was when Price explained the role money had played in the case.

Price explained that the filmmakers had offered Damien $7,500 for three interviews. Damien was indigent, and this was money the attorney thought could be used toward his defense. Even though Damien’s lawyers had been appointed by the court and would be paid through public funds, they said they wanted to use funds from the film to hire expert witnesses. Mallett was astounded. He asked, wouldn’t the court provide money for such necessary expenses? Price said he didn’t believe Judge Burnett would have authorized that much.

Price then offered some financial background on the case, to wit, that the lawyers themselves had not been paid until years after the trials’ conclusions. They had had to cover their own expenses before and during the trials. After the trials were over, Judge Burnett had ruled that the six court-appointed defense lawyers who represented the three defendants would be paid a total of $142,000, plus an additional $1,000 for out-of-pocket expenses.
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They said the amount was already out of proportion with the amount of time they’d spent on the case, but as it turned out, collecting it would prove even more difficult. Because the West Memphis case had unfolded at a time when responsibility for paying court-appointed attorneys was being transferred from the state to the counties, a dispute arose over who would pay the bill—the state of Arkansas or Crittenden County. The issue was fought all the way to the Arkansas Supreme Court, and while it was being fought, the attorneys continued to go unpaid.

In the midst of the dispute, Jason’s lawyer Paul Ford complained, “Judge Burnett got paid for what he did; the prosecutors got paid; the state witnesses got paid; everyone involved got paid, except for the defense attorneys. There’s unfairness there. The state can get what they need for a trial and get paid for it, but the defense attorneys must subsidize the costs themselves.” Jessie’s lawyer Dan Stidham said his law firm had had to take out bank loans to cover expenses incurred during Jessie’s trial. “The prosecutor has a staff of expert witnesses at his disposal and dozens of investigators,” Stidham said. “But this sends the message that if you’re indigent, you don’t have a chance.” Damien’s lawyer Val Price was equally put out—and outspoken. “If the state is going to have people prosecuted and ask for the death penalty, then it should be willing to pay for a vigorous and zealous defense for the defendants. The state has the FBI, crime labs, and various other agencies at its disposal, but we don’t have the same access and must pay for our research.” A year and a half after the trials, the Arkansas Supreme Court ordered the state to pay the six attorneys. The county was ordered to pay Ron Lax and a few expert witnesses.
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