Devil's Knot: The True Story of the West Memphis Three (47 page)

211. Melissa also testified that a few weeks before his death, Christopher had told her about a man with dark hair who wore black pants, a black shirt, and a black coat, who’d driven a green car into the driveway and taken pictures of him. Stidham objected that the testimony was hearsay, but Burnett allowed the testimony.

212. When Byers was interviewed by Ridge and Sudbury on May 19, 1993, he said he’d begun looking in the woods at about 8:30
P
.
M
. “It had got dark,” he said. “I had on a pair of shorts and a pair of flip-flops, so I run back to the house and changed clothes and put me on some coveralls and boots that I had on probably for the next two or three days.”

213. Author interview, May 2001.

214. Early reports from the state crime lab to the West Memphis police had suggested that the boys were sodomized. Not having received the autopsy reports, detectives still believed that to be the case when they questioned Misskelley.

215. “The atmosphere was very laid-back and of a subdued nature,” Gitchell said. “We treated him with kid gloves, as if we were talking to one of our own children.”

216. At one point, under cross-examination, Gitchell said he believed that Jessie had gotten confused about the boys having skipped school, “and meant Baldwin was to have skipped school that day.” However, as the police knew, Jason had attended school.

217. Hearings held in camera—literally, in the judge’s chambers—are not necessarily held outside of the courtroom. The intent is that the jury not be privy to what is said, though reporters may attend, and the hearings are part of the trial record. Some judges order the jurors to be removed from the courtroom when they hold in camera hearings, as Burnett often did in this case. But it is also common in Arkansas for judges to hold brief in camera hearings quietly at the bench, without dismissing the jurors, who have been instructed not to listen. This practice, which Burnett also employed at times, results in quicker trials. Arkansas’s average trial length is one of the shortest in the country.

218. Later in the trial, Stidham attempted to discredit Hutcheson’s statement that she’d never been interested in the reward by calling to the stand one of her former neighbors, who’d been interviewed by Lax. Stidham said that the woman was prepared to testify that Hutcheson had spoken repeatedly about her plans for the reward money. But Judge Burnett would not allow the woman’s testimony. He claimed that he did not recall that Hutcheson had ever said she was not motivated by the reward.

219. Author interview, April 2001.

220. Lax file notes, January 30, 1994.

221. Stidham and Crow considered calling Buddy Lucas to testify about his treatment by the police, as evidence of the coercive tactics they said police had used on Misskelley. In what Stidham described as “a very difficult decision,” they opted not to use the boy. Like Misskelley, they said, he was low-functioning, and had been in special education at school. He was also very nervous and the attorneys thought he would not have made a good witness. Finally, as Stidham later explained, the lawyers considered that “the jury might have believed Buddy’s statement to police, which the prosecution surely would have used to impeach him.”

222. Author interview, May 2001.

223. Before the trial, Wilkins reported to Stidham that Jessie could count from three to thirty by threes only if he used his fingers; that when asked the meaning of the maxim “Don’t cry over spilt milk,” Jessie said he didn’t know, but added, “People say that all the time, though”; that when asked about the proverb “The grass is greener on the other side of the fence,” Jessie responded, “I guess it’s greener on the other side of the fence”; and that when Wilkins asked, “What would you do if you were walking down the street and found an envelope which was already stamped, addressed, and sealed?” Jessie answered, “I’d just leave it,” then, after a pause, he’d added, “Maybe I’d pick it up and see whose name was on it. If it was somebody that I didn’t know, I’d probably just leave it there.” Wilkins wrote that “in the strictest interpretation of the legal statute, Jessie appears to be able to distinguish right and wrong.” However, he noted that the boy “clearly demonstrates a significant deficit in his ability to do abstract reasoning…. That is, we see Jessie is still doing problem solving and making moral decisions on a level comparable to a five-to-eight year old…. For Jessie, decisions about right and wrong are made on the basis of the consequence of the action, not in terms of any kind of intent.”

224. From Stidham’s 1994 “Synopsis of the Case,” published at wm3.org.

225. Holmes added that peak attention tests are the only kind of tests run by police in Israel and Japan, because authorities there believe they have the highest degree of validity.

226. Author interview, July 2001.

227. In 1979, Ofshe had been part of a team that won a Pulitzer Prize for reporting on the murderous California cult known as Synanon.

228. Stidham believed it would be a conflict of interest for him to be involved in disbursal of the funds, so another lawyer was brought in to handle the negotiations with HBO. The lawyers for Damien and Jason had no such misgivings and handled the HBO negotiations on behalf of their criminal clients.

229. Judge Burnett’s position with regard to Of she’s testimony demonstrated the legal conundrum facing Jessie’s lawyers on an issue central to Jessie’s defense: if a judge determines that a confession was voluntary and would not let that determination be “second-guessed” in court, how could a defendant ever present evidence to a jury that his confession had been coerced?

230. Elements of this explanation by Ofshe were spliced together, to make a more concise statement, in the film
Paradise Lost,
later released by HBO.

231. Arkansas was one of five states at the time that held such bifurcated, or two-phased, trials, in which juries decide both guilt and sentencing.

232.
Memphis Commercial Appeal,
March 17, 1994.

233. As reported by the
Memphis Commercial Appeal,
February 5, 1994.

234. As recorded in the film
Paradise Lost.

235. For reasons that were never addressed, Domini Teer was never treated as a suspect in the crime, even though her name appeared on Driver’s list and the Hollingsworths’ testimony placed her near the scene with Damien.

236. The writer of the report was Deputy Jon Moody.

237. This was the second time attorneys had tried to subpoena portions of the HBO film. In the first instance, Davis and Fogleman tried to see an interview that had been filmed with Jason. Burnett had also rejected that request.

238. The deputy prosecuting attorney in this part of the district was C. Joseph Calvin.

239. Elements of this series of events are drawn from a motion filed by Stidham in the Circuit Court of Clay County, Arkansas, Western District, Criminal Division, on February 22, 1994.

240. Davis asked Jessie to describe “what you saw Jason do.” Jessie responded: “First, he cut one of ’em on a face, on his left side, just a little bit, like a scratch. Then, he went to the other one and got on top of him, started hitting him and then pulled one of ’em’s pants down and get on top of ’m and cut ’m.” Although, during his trial, Jessie had listened to extensive testimony about the injuries each of the victims received, in this statement to the prosecutors, he did not mention any names. Davis asked, “Were the three little boys, were they saying anything, doing anything during this?” Jessie answered, “They were saying, ‘Stop. Stop.’” Davis: “And what about the boy that you were hitting? Was he saying that?” Jessie: “Yeah, he was telling me to stop, and then I stopped. And Damien told me, ‘No. No, don’t stop.’ And I got on ’m again.” Jessie said he saw Jason “swinging” a knife at one of the boys, sending blood flying into the weeds. In the first part of the statement Jessie said he never saw any of the boys unconscious. But when Davis asked what happened to the boy whom Jessie was beating, Jessie replied, “He’s unconscious.” Davis wanted to know when the boys were tied. Jessie said one boy had been castrated and another was unconscious, when “we tied ’em up.”

241. At the end of the interview, before the tape recorder was turned off, Jessie’s attorneys inserted a statement of their own. They pronounced their “strong” belief that Jessie had perjured himself.

242. Stidham also complained that despite his notification to prosecutors that Jessie would not testify, Judge Burnett had ordered the boy brought from prison to the judicial district. “While it is not uncommon for state prisoners to be moved to a county jail to testify,” Stidham argued, “it is quite uncommon for them to be moved this far in advance. This ‘advance time’ gave the prosecution an opportunity to work on Jessie.” Stidham cited Davis’s and Fogleman’s meetings with Jessie in the three days leading up to the trial, all without Stidham’s knowledge, as a “gross instance of misconduct.” He charged that “nothing” in the prosecutors’ conduct in the events had been “fair or honorable.” Damien’s and Jason’s lawyers were also indignant. They handed Burnett a brief of their own, charging that the prosecutors had “made a mockery of the law.” Damien’s attorney Val Price wrote, “The defendants anticipate that the prosecution will argue that they did not violate Jessie Lloyd Miskelley, Jr.’s Fifth Amendment rights because they granted him ‘use immunity’ before taking a statement from him, and therefore nothing he says can be used against him.” But, Price argued, “the court should analyze how this grant of immunity was effectuated. The grant of immunity was obtained by prosecutorial misconduct…. Had the prosecutor acted properly, he would have never been in a position to even offer the immunity…. The prosecution should not be allowed, and the court should not condone, the violation of one co-defendant’s rights to the extreme detriment of the other co-defendants.” Price added that the prosecutors had “improperly drawn attention to Jessie Lloyd Misskelley, Jr.’s alleged confession, which he [Jessie] submitted throughout the course of his trial was coerced,” and that the effect of this “grand-stand play” on the pool of potential jurors had “seriously undermined and impaired” the defendants’ right to a fair trial.

243. Burnett told Jessie’s lawyers that the whole issue had apparently arisen because they had sent “mixed signals” to the prosecuting attorneys. The judge said he was appointing another attorney, Phillip Wells of Jonesboro, to meet with Jessie to ascertain the boy’s true wishes.

244. Stidham, who recalled having seen the tip in police documents he’d been supplied, brought it to Lax’s attention. Lax, who was unaware of the report, could not find it in a search of the documents that had been supplied to Price and Davidson.

245. Lax wrote in a memo in February 1994 that Sandra Slone had been “quite candid in informing me she was afraid of her ex-husband, Mark Byers.” Lax noted that Slone “stated she met Mark in church in 1977, and they married in 1978. Byers had had a drug problem and his mother informed Ms. Slone his problem began when he was in Texas [a jewelry school]. According to Ms. Slone, Byers was supposed to be ‘cleaned up’ at the time she met him and promised her he would never become involved in drugs again; however he continued to do so. Ms. Slone informed me that while they were living in Jackson, [Mississippi], Byers worked for Gordon Jewelers and had a good job, but began staying out late and it was her opinion he was using drugs then. They left Jackson abruptly and she was never able to determine the reasons…. After leaving Jackson, they moved to Mobile, Alabama, where he again worked with Gordon Jewelers and was on the road a great deal of time. He had been out of town for approximately two weeks on one occasion and returned and informed her they were moving and he was quitting his job. Again, they moved quickly (within two days) and she never was informed of the reasons. She was surprised he would give up the good job he had with Gordon Jewelers. Leaving Mobile in 1982, they moved to Memphis, where Byers obtained employment with two jewelers, both located in Germantown, [Tennessee], and he worked for himself as well. They remained in the Memphis area until 1985, when they moved to Marion, Arkansas. She divorced Byers in 1986. Ms. Slone informed me Byers had some problems with the police or authorities in Germantown, [Tennesse], but it was apparently handled and she never knew exactly what had occurred. Ms. Slone stated it always seemed as though Byers had connections with someone, because he became involved in drugs and illegal activities, but never was arrested.” Lax added to his report, “We have since researched criminal records on file in Germantown, Tennessee, and have found no records relating to John Mark Byers.”

246. The boy was Kenneth Clyde Watkins. His mother’s name was Shirley Green-wood.

247. From a video-and audiotaped statement taken February 12, 1994.

248. Lax noted: “Ridge admitted there were no items found laid out in any type of pattern. There was no pattern to the placement of the bodies. There was no slab or log found to be in the area [that might have been used as a sacrificial table]. Ridge stated there had been no reports that revealed any new or unusual activities prior to the homicide, but that a friend of the victims stated that he was being recruited to be in some type of club and he would have to kill someone to get in the club.”

249. The information about the police decision to search the library records proved almost too much for Lax. The usually restrained investigator looked up Cotton Mather in an encyclopedia and dictated a lengthy memo. He noted that Mather, who had lived in Boston from 1663 to 1728, was a highly respected writer who had fanned the popular belief in witchcraft. He was the son of Increase Mather, who had served as pastor of Boston’s North Church and president of Harvard University. “Also, in this same encyclopedia I found the discussion of witchcraft quite interesting,” Lax wrote in the memo. “It is as follows: ‘Witch’craft: A supernatural influence, once thought to be acquired by certain persons by reason of some league with Satan or other evil spirits. Until the Sixteenth Century, belief in witch craft was universal, and the law of all Christian countries recognized it as a crime. Roger Bacon, Sir Matthew Hale, Blackstone, Richard Baxter, and John Wesley believed in witches. Though this old delusion was beginning to wane at the opening of the Eighteenth Century, a local frenzy broke out in New England just about that time. It began and endured mainly about Salem Village and, fanned by the utterances of Cotton Mather, it caused a special court to be constituted to try those suspected of witchery, of whom there were over one hundred in jail at one time. This court, in 1692, caused the death of twenty victims. With the tragedy, reaction set in, and over one hundred fifty persons charged with the same crime were delivered from prison the following year.’”