Devil's Knot: The True Story of the West Memphis Three (52 page)

393. Fogleman said he had been convinced of Damien’s guilt in part by some of the books he’d read, “some songs, and some of his own writings that were kind of bizarre; they dealt with death and blood and stuff like that, and his apparent obsession with black, which kind of fit the mold of some of these people who believe in animal sacrifice and all that.” Then too, there’d been Fogleman’s own earlier experience, meeting Damien in juvenile court, which Fogleman had found “unnerving.” Recalling when Damien was brought into court after he’d attempted to run away with Deanna, Fogleman said, “I remember the way he just turned and looked at me. And it wasn’t evil. It wasn’t laughing. It wasn’t sad. It was just blank. There wasn’t anything there. I commented to somebody at the time, the way his eyes were, and how empty they seemed. At that point, I just thought it was odd.”

394. The Arkansas Supreme Court has ruled that inmates have no constitutional right to have a court-appointed lawyer for their postconviction appeals. Whether to appoint one or not is left to the discretion of the trial court.

395. Mallett, who was in line at the time to become president of the National Association of Criminal Defense Lawyers (NACDL), said that each year hundreds of criminal defense lawyers agree to work on difficult cases pro bono, or for free. He explained that he became involved in the West Memphis case while attending an annual meeting of the NACDL. Mallett said he was standing in the back of a conference room, talking to a friend, Robert Fogelnest of New York, when the organization’s staff person for indigent defense matters walked to the podium. Fogelnest, a past president of the organization, motioned for Mallett to be quiet. “He said, ‘Be quiet. I want to hear this,’” Mallett recalled. “’It’s about a guy from Arkansas.’” Mallett didn’t hear the particulars of the case, but he understood that a group was forming to help with the Arkansas death row inmate’s postconviction appeals. Fogelnest told him that he and Scheck had agreed to help. “I said, ‘Sure, sign me up,’” Mallett recalled. “At that time I didn’t even know the name of the defendant. It was probably a couple of hours later, when we were out of the meeting, that I asked what the case was about.” Fogelnest explained that he and Scheck had been asked to review the movie
Paradise Lost,
in hopes that their approval might be used to help in the film’s promotion. “But, in fact,” Mallett said, “after seeing it, they were shocked, dismayed, and offended by the conduct of the defense attorneys.” Mallett said that the two New York attorneys had found it incredible that the lawyers representing the teenagers had agreed to let them participate in the film, both before and during their trials. Scheck and Foglenest reportedly felt that at the very least, that decision had created a distraction, taking the attorneys’ focus away from their clients’ defense. “I agreed with that,” Mallett said. He, Scheck, and Fogelnest discussed the case after the meeting and concluded that the Arkansas attorneys’ decisions with regard to the film provided a strong starting point for a Rule 37 petition.

396. The payment was to be broken down as follows: Price, $30,500; Davidson, $25,000; Stidham and Crow were to split $40,000; and Ford and Wadley would split $46,500.

397. For their services, Lax was paid $7,000 plus interest, Warren Holmes was paid $1,216 plus interest, and Dr. Richard Ofshe was paid $1,500 plus interest.

398. When the filmmakers learned that Damien’s new lawyer from Houston was intending to use their film as proof of Damien’s ineffective assistance of counsel, they were astonished. In an interview in February 2002, Sinofsky commented, “I think it’s got to be one of the most ridiculous defenses in the world.” Far from working against Damien, he said, the film had focused attention on the case and had helped attract the new lawyers to it. Despite the filmmakers’ chagrin, they agreed to work with Mallett. “We said, ‘Fine, do what you have to do,’” Sinofsky recalled, “‘but we don’t think we did anything wrong.’ We felt that, if the defense worked, and the Rule 37 hearings brought about justice, we wouldn’t care what was said about us.”

399. Jessie and Jason filed their petitions
pro se,
meaning that they did not have the official help of a lawyer in drafting them. Both, however, are professionally written. Stidham said “a little bird” helped write Jessie’s. The “little bird” was necessary, in part, because one of Jessie’s claims was that his lawyer had been ineffective in several respects. The petition noted that one of Jessie’s “principal lawyers at trial, Dan Stidham, had never tried a murder case as lead counsel. Many of the issues encountered and raised during the course of this case were issues with which neither attorney Stidham nor his co-counsel Mr. Crow were familiar.” In addition to Jessie’s Rule 37 petition, Stidham also filed a petition with the state Supreme Court for a rehearing of his case. In Jessie’s petition for a rehearing, filed March 6, 1996, Stidham argued that police had withheld pertinent evidence when Officer Allen and other detectives “somehow forgot to turn over to the defense the tape recording of the little boy’s voice which was used during the interrogation. This tape recording, which this court said gave it ‘pause’…[and] came ‘perilously close to psychological overbearing,’ was not even disclosed to the defense until the suppression hearing itself.” Jason raised seven issues in his petition, the most striking of which was his charge that the prosecutors and Judge Burnett had engaged in official misconduct when they met after discovery of Damien’s blood-specked pendant, without the defense lawyers present.

400. Mallett was joined in his work on Damien’s Rule 37 petition by Arkansas attorney Alvin Schay.

401. At the end of the second trial, Judge Burnett told a reporter for the
Memphis Commercial Appeal,
“You kept expecting it to reach that level, what I described as the ordinary criminal trial, where there are no more surprises, where it just goes from this point to the end. And it never happened in either of those trials.”

402. The hearing began on May 5, 1998. It was continued to June 9–10, 1998; October 26–28, 1998; and March 18–19, 1999. They;were also divided between the courthouses in Jonesboro and Marion.

403. The Web site founders’ growing familiarity with the case affected them in ways they had not expected. “I’ve learned so much,” Sauls said in an interview in 2001. “It’s a paradox. I respect some aspects of the criminal justice system, and I have complete mistrust in others. It’s owned, operated, and run by human beings. That’s its strength and that’s its weakness.” Bakken said that before her involvement, she’d lived in “an idealistic bubble.” “I believed I was being protected by the forces of justice and the police. Now, all that has been stripped away.” She added, “But at the same time, it’s like, wow, people can make a difference. I’ve become more cynical and more hopeful all at the same time.” Pashley said that before he heard of West Memphis, he “wasn’t sure” about the death penalty, but that now he is “definitely” against it. “I came into this being an idealist,” he said, “thinking that our justice system was the best in the world. And it is. But it’s got so many flaws that now I know that even if I get pulled over for a little traffic offense, I’m going to get a lawyer before I answer questions from the police.”

404. Dr. Thomas J. David, a forensic odontologist and consultant to the Georgia medical examiner’s office, agreed with the view that at least one set of marks in the photos of Stevie Branch appeared to have been made by a human bite. Dr. Harry Mincer, a consultant in forensic odontology to the medical examiner of Shelby County, Tennessee, testified that he did not believe the marks were from a human bite.

405. The forensic dentist who testified he was called to the crime lab to examine the bodies was Dr. Kevin Dugan of North Little Rock, Arkansas.

406. Damien and Jason both claim that they did not authorize their attorneys to use the money in their trust funds. Damien expected the money to go to his infant son, Seth. And Jason wanted his fund to go to his mother. Nevertheless, defense counsel emptied the trusts.

407. “Again,” Mallett wrote, “there is the appearance here of a conflict of interest. Counsel didn’t question Byers about the allegation that he had committed a burglary of a jewelry store and the taking of property, which would have been a serious felony if prosecuted.”

408. Not stopping with the attorneys, Mallett also criticized Judge Burnett for not having stepped aside to allow a different judge to hear the Rule 37 petition. Mallett pointed out that the judge himself had been a witness to the trial, as when he’d noted from the bench that he’d always allotted money for expert witnesses in the past. “Because of the inherent conflict between the court’s role as an elected judge and the court’s role as witness,” he wrote, “these proceedings have been, and remain, fundamentally unfair.” This issue has been raised before the Arkansas Supreme Court many times, and the court has repeatedly ruled that “the allegation is insufficient to overcome the presumption that the trial judge is impartial.”

409. According to affidavit of Glori Shettles, December 27, 2000.

410. In January 2001, the Arkansas legislature passed Act 1780. It allowed persons convicted of a crime to seek retesting of DNA evidence that might demonstrate their “actual innocence.”

411. Mallett was assisted in his presentation by Rob Owen, an attorney from Austin, Texas. Senior assistant attorney general David Raupp argued the case for the state.

412. As quoted by reporter Drew Jubera in the
Atlanta Journal-Constitution,
February 22, 2002.

413. Burnett had been wrong, Associate Justice Donald L. Corbin wrote, “to deny review of issues raised in death cases on a purely procedural basis, without first exercising great care to assure that the denial rests on solid footing.”

414. In its ruling remanding the petition to Burnett, the state Supreme Court had rejected Mallett’s contention that the judge should have recused himself from the Rule 37 proceedings. The court ruled that Mallett’s argument that there was an inherent conflict in asking a judge to rule on the fairness of a trial over which he himself had presided was “insufficient to overcome the presumption that the trial judge is impartial.”

415. Ironically, at the same time the high court was being asked to evaluate the performance of Damien’s original lawyers, it was quietly taking action to disbar one of the lawyers who had represented Jason. On June 21, 2001, the Arkansas Supreme Court, citing “serious professional misconduct,” issued an order barring George Robin Wadley from the practice of law. The court cited Wadley for accepting payment for legal work he never performed and for lying to the court and to his clients. None of the complaints for which Wadley was censured, however, involved his work on Jason’s case. The following year, the Arkansas Public Defender Commission fired Damien’s lead lawyer, Val Price. In April 2002, the commission accused Price of using office funds to pay for personal items, such as Christmas cards and trips to Arkansas Razorback football games. According to a letter made public by the commisison’s executive director, Price admitted to the allegations.

416. In March 2002, the Arkansas Supreme Court did, however, designate Judge Burnett as chair of its Committee on Criminal Practice.

417. “When I started on this,” Mallett reflected, “I thought, ‘I have a child who someday will be eight years old.’ Now, I have a child and he was eight years old. He’s ten. And these boys are still in jail. And those eight-year-olds who were killed don’t get any older.”

418. Mayor Keith Ingram, announcing that Gitchell would be missed “by all but the criminal element he dealt with,” proclaimed May 19, 1994, as “Gary Gitchell Day.”

419. “The Fight to Free the West Memphis 3,” by Stephen Lemons, August 10, 2000.

420. “Did Arkansas Town Go on a Witch Hunt, or Are Activists Playing the ‘Red-neck’ Card?” by Drew Jubera, February 11, 2002.

421. The total found to be missing was $28,757.19. Driver was chief custodian of the fund, which was set up to hold fees paid by juvenile probationers. The audit covered a three-year period that had begun in September 1993, three months after Damien, Jason, and Jessie were arrested. State auditors reported that during those three years, sixty-eight unauthorized checks had been written to or endorsed by Driver, while two other unauthorized checks had gone to Steve Jones, Driver’s assistant.

422. In an interview in November 2000, Driver, who was then living in Michigan, said he remained convinced that Damien, Jason, and Jessie had killed the eight-year-olds. When asked why he thought they’d done it, Driver said, “I think it was probably a cross between what they thought was a ritual and a spur-of-the-moment thing.” Driver dismissed the convicts’ supporters as ill-informed “hangers-on” who’d been influenced by documentaries that were “weighted heavily toward the defendants.” Driver was less willing to discuss his own legal troubles. His explanation was simply this: “The politics of Crittenden County are very convoluted, and evidently, I got on the wrong side of them.” “I pled nolo contendere” Driver stressed. “I didn’t plead guilty.” He described the audit and the resulting charges as “a long, involved situation,” adding that he felt he was “kind of a political target,” but he declined to elaborate. However, he said, “I will tell you this. I did not have enough money to fight this.”

423. The officer now responsible for the evidence locker was Reginia Meek, who had taken the missing-person reports for Christopher and Michael on the night they disappeared. Meek had also taken the call to the Bojangles restaurant, where she’d questioned the manager about the bloody man from her car at the drive-through window.

424. Chief Bob Paudert came to the West Memphis department from a small police force in Missouri. Before that, he had served as a narcotics detective in Memphis. In an author interview in January 2002, Paudert said that, upon his hiring, the mayor of West Memphis told him, “You’ve got a department that needs help.” Soon after his arrival, he said, members of the department reported that certain officers were helping themselves to money and other evidence that was seized during arrests and taking kickbacks from prostitutes and their pimps. Much of the alleged malfeasance centered on the interstate highways, roads that Paudert called “hot corridors” for contraband. According to official records, in the twelve months before the firings, city and county narcotics officers had seized an average of $5,000 a day in drug-related traffic stops on I-40 and I-55. Paudert said that not all of that money, however, was showing up on the books. To address the problems, Paudert said, he had created an internal affairs office—a first for the department—and drafted a procedures manual, which was another first.