"Mr. Riordan, this isn't California. We do things differently here."
--- Judge David Burnett
Yeah, put innocent people in prison and then gloat about it.
Advances in forensics mean that more Americans are being proved innocent.
In 1993, three eight-year-olds disappeared in West Memphis, a poor town in Arkansas. They were found in a ditch the next day. Their bodies were bound with shoelaces and covered with wounds; one had been partially castrated. Anxious to solve this horrific crime, the police soon focused on three local teenagers.
Damien Echols, Jessie Misskelley and Jason Baldwin were oddities in this conservative town. Mr Echols wore black clothing, listened to Metallica and carried a cat's skull to school—perhaps, locals thought, as part of some satanic ritual. Mr Misskelley, who is slightly mentally retarded, actually confessed to the murder.
His confession, though, was full of factual errors. He said that he and his friends had committed the murders in the morning, but the boys were in school all day. And no physical evidence linked the three teenagers to the crime. They were just a bit weird. It was a weak case, but the boys were convicted. Mr Misskelley and Mr Baldwin received life sentences. Mr Echols was sentenced to death.
Over the past 15 years there have been mounting calls to free the West Memphis Three, or at least give them a fair trial. There have been dozens of benefit concerts for their legal-defence fund, and HBO has aired two documentaries about them. Now advances in forensic testing are helping their cause. DNA tests show that a hair from the crime scene could not have belonged to any of the three—but may belong to one of the victims' stepfathers.
On April 15th David Burnett, the original judge in the case, agreed to a new evidentiary hearing in September. The hearing will give pathologists a chance to explain the new forensic evidence. If their convictions are overturned, the West Memphis Three will become America's most famous beneficiaries of DNA testing. But they will not be alone. Across the country, 216 people have been freed after new DNA evidence was produced. More might have been, if some courts were not reluctant to revisit old cases.
Consider Texas. In 2001 Governor Rick Perry declared a legislative emergency. He had just pardoned a man who had served 15 years after being wrongfully convicted of rape. So he fast-tracked a bill that allowed convicts to get state-funded DNA tests, if biological evidence was available and if they could show that there was a reasonable chance of exoneration.
Prosecutors agreed with the idea in principle. But dredging up old cases was not a priority in most of their offices. In Dallas county, for example, 350 convicts requested DNA testing between 2001 and 2007. They were lucky that the county had held on to most of the old evidence. That is in contrast to Harris county, which encompasses Houston and hands down more death sentences than any other place in America. There boxes of evidence have been destroyed by leaky roofs and rats.
Bill Hill, who was district attorney of Dallas county until 2006, granted DNA tests to only 32 convicts. Twelve were exonerated. Then the county elected a new district attorney, Craig Watkins, who had promised to be “smart on crime”. Mr Watkins wanted prevention and rehabilitation, but exonerations came first. “Any injustice of this nature,” he says, “creates a sickening of a person's stomach.”
Within weeks of taking office, Mr Watkins announced that he would allow the Innocence Project of Texas, an organisation of law students, to review all 350 claims. On April 15th Dallas county announced its 16th exoneration. No other county has cleared so many. Examination of the claims is still under way, and Mr Watkins admits it will be tedious and expensive. But he sees it as an important step in restoring the credibility of the office.
Dallas county's new approach has changed opinions in Texas. A year ago the editorial board of the Dallas Morning News, a supporter of the death penalty for a century, declared that it now doubted that Texas could guarantee “that every inmate it executes is truly guilty of murder.” Prosecutors in Arkansas say they still believe the West Memphis Three are guilty. But if they want to keep Mr Echols on death row and his friends in prison, they will have to make a better case for it.
JONESBORO (KAIT) - At 9:30 Tuesday morning the courtroom filled with attorneys and supporters of the West Memphis Three.
However, by 10:00, just 30 minutes later, the hearing was over and rules were laid out.
Judge David Burnett started the morning by telling attorneys for both the state and the defense that any further contact with the media would result in contempt of court.
He also noted that he is ready for the case to be closed once and for all.
Prosecuting Attorney Brent Davis told the judge that he had just received an amended filing of Damien Echols Act 1780 petition and would need time to review and respond to it.
Judge Burnett gave Davis 60 days to respond to this motion.
However, any further motions were given 45 days to be filed and 30 days to be responded to. Those motion include Rule 37 motions being filed by Jessie Misskelley and Jason Baldwin's attorneys.
Judge Burnett told the lawyers that he wanted all motions filed by May 30th and the State to respond by July 15th.
While both sides argued that this may not be enough time, the judge stayed firm and told them that this was all of the time they were getting.
Finally after looking at schedules, hearings for the West Memphis Three motions were scheduled for September 8th through October 3rd.
Outside the courtroom attorneys held to the judge's orders and refused comment to the media, but we did get response from those in support.
Lori Davis, Echols' Wife, told Region 8 News, "I'm happy that it's going. I'm happy that it is finally getting its day in court. Really that's the news from our side, we are just happy to see it moving along."
The trial judge in the case of three men accused as teenagers of killing
three West Memphis second graders said in an appeal hearing today almost
15 years after the convictions that he is "ready to get it over with."
Circuit Judge David Burnett began the brief hearing before five lawyers
for Damien Echols, Jason Baldwin, and Jessie Misskelley. Burnett said he
would set aside three weeks to hear the appeal, most likely in
September. Each defendant would have one week.
Burnett gave defense lawyers 45 days to file their pleadings and set an
August 20th hearing for lawyers to give him a status report.
None of the convicted men were at the hearing. They are in prison for
the 1993 murders of Steven Branch, Michael Moore, and Christopher Byers.
Echols was the only one of the three sentenced to death.
Lurid details and accounts of Satanism filled the original trials.
Police found the bodies of the 8-year-old boys a day after they
disappeared from their neighborhood May 5th, 1993. Their hands were
bound to their legs by shoelaces, and the boys showed signs of suffering
severe beatings before being left in a drainage ditch.
By Jon Gambrell
Associated Press Writer
JONESBORO, Ark. (WHBQ FOX13 myfoxmemphis.com) --
Lurid details and accounts of Satanism filled the trials of the men convicted in the 1993 slayings of three West Memphis boys.
Now, court hearings on appeals by Jason Baldwin, Damien Echols and Jessie Misskelley will focus on DNA evidence unable to be analyzed at the time of their convictions almost 15 years ago.
Judge David Burnett, who in March 1994 accepted a jury's recommendation to give Echols the death penalty and Baldwin life in prison without parole, will hold a hearing Tuesday about the appeals. And if it weren't for two documentaries, Web sites and rock band support of the "West Memphis Three," the case would have faded away, said Jeffrey Walker, a criminology professor at the University of Arkansas at Little Rock.
"If it wasn't the 'West Memphis Three,' if it wasn't the West Memphis killings and it wasn't the attention this had been given, (the appeal) wouldn't be heard," Walker said.
Police found the bodies of 8-year-olds Stevie Branch, Christopher Byers and Michael Moore a day after the boys disappeared from their quiet, tree-lined neighborhood May 5, 1993. Their hands bound to their legs by shoelaces, the boys showed signs of suffering severe beatings before being left in a drainage ditch.
A month passed and the community posted a $30,000 reward before police arrested the three teens. Misskelley told investigators how he watched Baldwin and Echols sexually assault and beat two of the boys as he ran down another trying to escape. A separate jury gave Misskelley, who refused to testify against the other two, a life-plus-40-year sentence for the killings.
The hearing comes after a wide-ranging federal appeal of Echols' death sentence. Echols' attorneys point to DNA evidence tests that showed no trace of the three convicted in the killings. Testimony from forensic experts in the appeal claim the mutilation of one of the boys likely came from an animal after their deaths -- rather than prosecutors' claims about satanic rituals.
U.S. District Court Judge William R. Wilson Jr. ruled in November that claims about the DNA evidence first needed to be heard in state courts. That ruling in itself was "unusual" for a federal habeas corpus petition, the standard appeal by the imprisoned to have their convictions reviewed, Walker said.
"Any time you've got a high-profile case like this, what I would suggest is, if it has any influence in the justice process, it's more likely to get picked up for an appeal or it's more likely to be heard," he said. "It will be ruled, or should be, on the facts. But sometimes, a case that wouldn't get heard on an appeal will if it's got a lot of publicity like this one."
Separate appeals with Baldwin and Misskelley also will be considered by Burnett. The one-day hearing Tuesday likely will focus on scheduling, though Burnett could offer an idea of what he will consider from Echols' 188-page appeal and several hundred of pages of addendums and reports.
The three men, all serving their sentence at the state's Varner Unit, will not attend Tuesday's hearing, said Dina Tyler, a spokeswoman for the Arkansas Department of Correction.
Link to scans on wm3.org
Filed in Circuit Court on 4.09.08
JASON BALDWIN'S MEMORANDUM IN SUPPORT OF PREVIOUSLY MADE STATUTORY MOTION FOR RELEASE OF FIBER EVIDENCE AND ANIMAL HAIRS
DEPT: THE HON. DAVID BURNETT, CIRCUIT JUDGE
This pleading addresses items of evidence that the Baldwin defense seeks permission to test prior to filing amended post-conviction petitions, including fibers and animal hairs.
2. PROCEDURAL HISTORY AND BACKGROUND
On March 9, 2001 Petitioner Baldwin filed a "Motion to Preserve Evidence and for Access to Evidence for Testing." Thereafter, on November 20, 2002, Petitioner filed a "Petition for Writ of Habeas Corpus and Supplement to Motion to Preserve Evidence and for Access to Evidence for Testing Filed by Petitioner".
The just-described November, 2002 petition followed Petitioner's conviction in 1994 on three counts of capital murder in violation of Arkansas Code Annotated (hereafter A.C.A.) Section 5-10-101. Petitioner's convictions were affirmed on direct appeal in Echols and Baldwin v. State, 326 Ark. 917; 936 S.W.2d 509 (1996) cert denied
520 U.S. 1244 (1997). Petitioner filed his November 20, 2004 Petition for Writ seeking to avail himself of A.C.A. Section 16-112-201-203, the codification of Act 1780 of 2001. As noted by the State Supreme Court of Arkansas in Johnson v. State, 356 Ark.534; 157 S.W.3d 151 (2004) cert denied 543 U.S. 932 (2004), orders for retesting of evidence can be sought under A.C.A. 16-112-201 through 207 and Rule 37 when there is a basis for issuing such orders. Id. at 543-547.
In response to Petitioner's March, 2001 motion for preservation of evidence and the November 20, 2002 petition, and in anticipation of the filing of a statutory petition for habeas corpus under A.C.A. 16-112-201 et seq., on December 18, 2002, the Court issued an Order for Preservation of Evidence specific to Petitioner Baldwin's case. Subsequently, on June 2, 2004, this Court entered an order for DNA testing. That order was amended on February 23, 2005 with the issuance of the 'First Amended Order for DNA Testing'. That First Amended Order provided that a list of 35 numbered items should be transmitted to a laboratory, Bode Technology, Inc., in Virginia for testing pursuant to the times and conditions of the just-described Amended Order.
Since the issuance of the 2004 DNA testing orders, there have been subsequent agreements between the parties for additional testing of items already released to Bode Technology and in the care and custody of that laboratory.
Prior to reading an agreement on the 2004 DNA testing order, the parties agreed to disagree on several aspects of Petitioner Baldwin's Petition for Writ of Habeas Corpus. Petitioner had alleged in that initial petition that "SEM and other current technologies should be applied to all hairs, fibers, and other trace evidence transmitted to the Alabama Department of Forensic Services... [and described in forensic scientist John Kilbourn's letter and inventory dated January 5, 1994]." [November 20, 2002 petition at pp.16-19.] In addition, Petitioner had sought access to test "[a]ll known and unknown
hair, clothing, and fiber evidence processed by the Arkansas State Crime Laboratory, and transmitted to the Alabama Department of Forensic Sciences...[as described in Mr. Kilbourn's letter dated January 5, 1994]." Included in the items sought to be tested, and specifically described at page 19 of the November 20, 2002 petition were: black polyester fibers; blue polyester fibers; green polyester fibers; red rayon fibers and cotton fibers, and the shirt and bathrobe from which they were said to have possibly originated.
Criminalist Lisa Sakevicius, the Arkansas State Crime Laboratory (now deceased) testified at Petitioner's trial about finding a green polyester fiber on a Cub Scout cap; the comparison between green fiber found on the cap and a cotton polyester blend shirt that may have come in contact with some of Damien Echol's clothing (Reporter's Transcript of trial, RT at 1468-1470). Ms. Sakevicius also testified about the possible transfer of fiber from a red robe found in the Baldwin home to a pair of pants pertinent to the case (RT at 1470-1471).
Among the narrow group of evidence items that the State objected to releasing during discussions of post-conviction evidence testing were the fiber evidence and the clothing (for fiber comparison).
The defense submits that both fiber and animal hair evidence should be released, and tested.
The Baldwin defense believes that it is possible that the State may not object to further examination of animal hair taken from the crime scene and incorporated into hair slides prepared by the Arkansas Crime Lab. However, since this specific topic was not discussed during recent exchanges between counsel, in an abundance of caution, it is brought up at this juncture since the Court is setting a briefing and hearing schedule. As has been made clear during the course of discussions of this case in the past two years, the Petitioners have been reviewing the possibility that the scientific evidence pertinent to cause of death and mechanism of injury given by State Medical Examiner Frank Peretti, M.D., was scientifically inaccurate and undermined, as well, by post-conviction DNA testing done to date.
Petitioner expects to file an Amended Petition for Writ of Habeas Corpus in which he alleges that at least five qualified forensic pathologists, who have been employed by various government entities in the United States, as well as several qualified forensic odontologists, one of whom is the Chief Odontologist for the State of Tennessee, and another a renowned odontologist with the Miami Dade Medical Examiner's Office, have reviewed the post-mortem examination reports in this case; studied autopsy photographs; reviewed autopsy findings; studied the area of the crime
scene, and have concluded that the principal scientific evidence theory under which the
State prosecuted this case is not supported by the medical and forensic pathology evidence. They provide a basis to dispute the account given by Jessie Misskelley to Detective Gitchell (according to evidence at the Misskelley trial) and other law enforcement officers. Generally the Misskelley statement was that the three victims in this case were killed by Petitioner and his co-defendant Damien Echols after having been assaulted sexually, stabbed and beaten, and after one of them had been cut on his penis. These experts in forensic sciences also undermine the State's theory that these killings were part of some satanic ritual (the theory specifically presented by the State in the Echols and Baldwin trial). Petitioner also expects to tender persuasive evidence concerning other aspects of the evidence against him.
DNA testing now establishes that there is no evidence that Petitioners were involved in any sexual activity with any of the victims. Significantly, the defense's experts on forensic pathology, and medical issues, are unanimously of the view that injuries described at trial as having been made by one or more knives are not knife wounds, but rather artifacts of animal predation, mostly post-mortem.
In reviewing the evidence in this case, Bode Technology informed the parties that on the various hair slides prepared by the Arkansas State Crime Laboratory in this case, and elsewhere in the evidence submitted to it, there were a number of animal hairs. This scientific opinion was arrived at after the defense (with the agreement of the State)
approved a microscopic examination of hair evidence to differentiate between human and animal hairs, in part because the Bode Technology, Inc. laboratories did not, when it first started testing the samples in this case, conduct DNA testing of animal tissue or animal hair as part of its normal forensic work.
Certain of the injuries observed on the victims were consistent with non-human bite marks; the extrusion of tissue from the area of lips, eyelids, and wounds on faces consistent with animal feeding behavior. Also, pathologists working with the defense have identified a series of wounds that Dr. Peretti had opined were knife wounds as wounds actually caused by animal claws.
The defense submits that under the facts as they have been developed in this case, and given the State's theory at trial, as well as given Petitioner Baldwin's claim of innocence, and satisfaction of the requirements under A.C.A. 16-112-201 et seq., the various animal hairs impounded, and kept in laboratory settings, should be released for further microscopic and DNA examination.
The main disagreement between the parties on fiber evidence is the State's contention that there are no new technologies to apply to the fibers; that the fiber evidence was correctly tested by the Arkansas Crime Laboratory, as well as by a forensic scientist in Alabama, and that the reports pertinent to this testing were made known to the
defense at the time of the trial of this case. The Baldwin defense, at trial, had itself called an alleged expert on fibers.
During post-conviction case review, Petitioner Baldwin has had the fiber evidence at issue reviewed by Max Houck, former Physical Scientist in the Trace Evidence Unit of the Federal Bureau of Investigation, who now runs the Forensic Science Initiative (see attached resume). Mr. Houck's 2004 letter about the case and CV are appended here as Exhibits A and B.
The State was served with the Houck letter in 2004. Mr. Houck reports that one of the difficulties here (which will likely be a basis of one of the ineffectiveness claims in the upcoming amended Baldwin Rule 37 petition) is that the documentation produced by the State to evidence what work was actually done on the fibers does not substantiate the opinions on fiber evidence stated at trial, in part because the documentation was incomplete and insufficient as a matter of accepted laboratory practice to serve as the foundation for an expert's opinion. Mr. Houck notes as well that Ms. Sakevicius (see Houck letter at p.2) used other than an accepted practice in conducting her analysis of the colors of the textiles involved. Since it was a combination of color and weave patterns that provided the foundation for Ms. Sakevicius' testimony that the crime scene fibers were consistent with fibers found in the Echols and Baldwin households, this error in the analysis is significant.
The State has been in possession of the Houck letter since 2004, and while prosecutor Brent Davis was kind enough to verbally relay some verbal disagreements of Arkansas State Crime Laboratory criminalists who were involved in the investigation of this case (Kermit and Lisa Chanell), it is not clear that the Chanells would qualify as proficient technical reviewers of expert evidence on fiber analysis conducted by their own laboratory. Further, and more significantly, it is not clear that there is any scientifically valid basis on which to rebut Mr. Houck's statements.
Since the trial of this case systematized protocols for fiber analysis have been developed as have new analysis techniques pertinent to fibers - further, existing techniques cannot be said to have been reliably applied in this case, such as to have produced scientifically accepted, valid and reliable results.
As noted above, the concern expressed by Mr. Houck in his review of the pertinent evidence, based in part on his tenure with the FBI's Trace Analysis Section, is that the Arkansas State Crime Laboratory's fiber-related documentation in this case does not provide a sufficient basis upon which to conclude that at the time of the analysis of the fibers in this case, or at the time of trial, a qualified analyst used accepted methods and protocols to obtain valid and reliable scientific evidence, and thus testified on the basis of a reliable and valid scientific foundation on the issue of fibers. This set of observations, however, does not seem to be the basis for the State's objections to the defense's petition/motion/requests for the release of fiber evidence for analysis. Rather,
the objection offered by the State has been that the techniques for analysis of fibers have not changed since the time of trial.
A number of publications explain the state of the science of fiber analysis at or near the time of the trial of this case. See, for example, Laing D.K. et al., A Fibre Data Collection for Forensic Scientists - Collection and Examination Methods, 32 Journal of Forensic Science 364 (1967). 1 Since the time of this trial, the Scientific Working Group for Material Analysis (SWGMAT), Fiber Subgroup, one of the several scientific working groups assembled by the United States Department of Justice for the purpose of setting forth accepted forensic science methodologies, laboratory practices, and the like, has published several pertinent works. Included in the published materials is the May, 1994 'Forensic Fiber Examiner Training Program' publication that sets out the various training proficiencies that the SWGMAT Fiber Subgroup outlined for fiber analysts. In doing so, the Fiber Subgroup has usefully divided up the various bodies of knowledge involved in fiber analysis, including the methodologies used to classify fibers, and fiber dyes (see Exhibit C, appended).
Notwithstanding the Arkansas State Crime Laboratory's reported assumption that forensic fiber analysis has not changed since 1994, it is clear that certain areas of fiber analysis have indeed evolved. One of the world renowned experts on fiber evidence,
1 Several publications use the "English" spelling of the word fiber.
Scotland Yard's Ken Wiggins (whose work is relied upon by the Fiber Subgroup, described above, in the United States) was the Chairman of the European Fibres Group for several years. Wiggins has written a number of influential publications including Forensic Textile Fiber Examination Across the USA and Europe, 46 Journal of Forensic Sciences 1303 (November, 2001). The just described article was described by another expert as follows:
.... the outcome of a comparative survey relating to textile fibre examination and analysis in North America and across Europe. The paper gave an insight into the experience of fibre examiners, equipment availability and usage and the range of analysis carried out in over 130 laboratories. It has helped to educate the smaller laboratories about these and many other aspects of fibres work. Finally, it will enable managers to judge whether their particular laboratory is performing adequately in the field of textile fibre examination or could be improved. This project was jointly organized by Terri Santamaria of the Georgia Bureau of Investigation, Georgia, USA, and Ken Wiggins of the FSS, Metropolitan Laboratory, London, UK, on behalf of SWGMAT, and the EFG respectively. This information could not have been obtained without the co-operation of many American and European laboratories. 2
Since many areas of the forensic sciences in the United States measure their standards either against, or in cooperation with, the Forensic Science Services of the Metropolitan Police in the United Kingdom, Wiggins' work has been deemed
2 Dr. Stefan Becker "Current Issues and Trends in the Crime Laboratory Developments in the Last Ten Years - New Challenges for the Trace Examiner". http//projects.nfstc.org/trace/docs.
authoritative in the United States. It is referenced repeatedly in materials published by the U.S. Department of Justice. Wiggins has made the point that prior to 2001, forensic laboratory practices in fiber analysis were highly variable.
A number of leading fiber examiners, including Wiggins, are represented in Robertson and Grieve, eds., Forensic Examination of Fibres (2d ed., 1999). As explained in that generally accepted source, while it is true that the microscopic and other techniques used by the Arkansas State Crime Laboratory in this case are accepted by fiber examiners (if correctly applied), so are several other techniques specific to the analysis of fibers, including color measurement techniques, and techniques of interpretation of fiber evidence that were either not available at the time of this case, or were not applied in Arkansas or Alabama by the crime laboratories that were involved in the fiber analysis in this case.
The defense is aware that the protocol in use in Arkansas at the time of this case included: visual inspection; visual inspection using optical microscopic techniques; analysis using spectroscopic methods. Also in use at the time at the FBI and in other well equipped laboratories were methods of extracting dye from the fiber, followed by analysis using high resolution separation techniques. These are the techniques that have advanced since 1994. Recently, a group of scientists has developed a capillary electrophoresis/mass spectrometry technique for the use of separation and identification
of extracted dye that allows for enhanced discrimination of trace fiber evidence. See, generally, Stefan et al., Capillary Electrophoresis/Mass Spectrometry for the Forensic Analysis of Dyes Extracted from Fibers, February, 2006, Proceedings of the American Academy of Forensic Sciences. Other refined techniques allowing the identification of dyes in case threads from the six major textile dye classes have also been developed since 1994.
The application of new technologies, and technologies not applied at the time of this case, is of considerable importance to the analysis of this case, given that the State presented fiber evidence that occupied a significant amount of trial time (since it involved presentations during the State's case in chief, defense case in chief, and in the State's rebuttal case). While the net effect of the fiber evidence may have been to corroborate other evidence, since the case against Petitioner was largely circumstantial, the State's testimony was significant in that it purported to demonstrate a scientific basis for identifying Petitioner as having been at the scene. Though Ms. Sakevicius did not purport to definitively identify the unknown fibers to the known garments, she did state that they were similar in appearance and color in such a way as to offer circumstantial evidence of identity.
Based on the information made available here, the Court should allow the release of these fibers for advanced testing, particularly so that the dye components can be
analyzed in highly discriminating ways to enable reliable and valid testimony to be provided.
A Houck 2004 letter
B Houck CV
C SWGMAT publication excerpt
For the reasons stated here, the Baldwin defense urges the Court to order the release of both animal hair and fiber evidence for examination and analysis.
Dated: April 8, 2008
Respectfully Submitted by
PETITIONER CHARLES JASON BALDWIN
J. Blake Hendrix, Esq
John T. Philipsborn, Esq.
JOHN T. PHILIPSBORN
Attorneys for Charles Jason Baldwin
[snipped proof of service page]
Scoop Independent News
By Gordon Campbell
The West Memphis Three murder case is back in court today. Gordon Campbell begins a two part overview, via an exclusive interview with Arkansas journalist Mara Leveritt, the author of the definitive book on the case.
A few paces south of the entrance to The Mill liquor store on Willis Street in Wellington, someone has stencilled “ Free the West Memphis Three” on the pavement, and the same message crops up several times on nearby Cuba St as well. Clearly, someone in Wellington felt strongly enough to go out and publicly attack the verdicts handed down in an Arkansas courtroom fourteen years ago, in a miscarriage of justice still being played out today... Full Article Here.