THIS IS A CAPITAL CASE
IN THE ARKANSAS SUPREME COURT
DAMIEN WAYNE ECHOLS, Petitioner,
STATE OF ARKANSAS, Respondent.
Case No. CR 94-928
Case No. CR 99-1060
(Rule 37 Appeal)
Craighead Co. Circuit Court Nos 93-450, 450A
(Circuit Court Trial and Rule 37 Proceedings)
PETITIONER’S MEMORANDUM IN SUPPORT OF MOTION TO RECALL THE MANDATE AND TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS OR FOR OTHER EXTRAORDINARY RELIEF
DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
THERESA A. GIBBONS
(CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472
DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.
Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558 (1907); accord, Larimore v. State, 309 Ark. 414, 833 S.W.2d 358, 361 (1992).
[A] juror must be as “indifferent as he stands unsworne.”...His verdict must be based upon the evidence developed at the trial...This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.
Irvin v. Dowd, 366 U.S. 717, 722 (1961).
As this Court is well aware, this case arises out of the slaying in May of 1993 of three eight year old boys, one sexually mutilated, in West Memphis. The investigation and prosecution that followed these terrifying murders generated intense media attention and public discussion at a local, state, and national level. Following their trial in 1994, Damien Echols, eighteen years old at the time of the charged offenses, was convicted and sentenced to death, his codefendant Jason Baldwin, sixteen years old when arrested, was sentenced to life in prison without the possibility of parole.
It is precisely in cases such as this one that the procedural protections guaranteed a criminal defendant by the United States and Arkansas constitutions are both most needed and most threatened. Most needed because awful crimes, and there are no crimes more horrific than those inflicting suffering on children, provoke a cry for swift justice. Only the constitutional rights to due process, to counsel, to be tried only on evidence subjected to confrontation and cross-examination, and to be judged by twelve impartial jurors can ensure that the public’s understandable demand for retribution does not produce a hurried and flawed judgment that adds
the life of an innocent defendant to a crime’s already tragic toll.
Yet it is never more difficult to achieve a fair trial than in those cases attended, as this one was, by white-hot publicity from their inception. The “public print” and “private talk” thus generated easily can invade the judicial process, leading to a verdict tainted by false rumor and unreliable gossip. No one can dispute that the danger of a verdict corrupted by extraneous information was great in this particular matter, where every potential juror had been exposed to pretrial media reports about the case; where many prospective jurors, including some selected to serve on petitioner Echols’ jury, admitted to holding pre-existing opinions that he was guilty; where during trial a lawyer who described himself as a “court liaison” was issuing press statements from the courtroom rail that a potential witness, never to testify at trial, would bolster the prosecution’s theory of the case; where the trial itself was televised, according to the lead prosecutor, “because of the high interest in the area, the state, the nation,” and where trial proceedings, again in the words of the prosecutor, were surrounded by a “media circus” and a “shark feeding atmosphere” in which camera people rushed around the courthouse “like little packs of wolves.”
Under such circumstances, it was perhaps inevitable that rather than being convicted on “‘evidence developed’[on] the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel” (Turner v. Louisiana, 379 U. S. 466, 472-473,13 l Ed 2d 424, 85 S Ct 546 (1965)), Damien Echols would be found guilty principally based on what jurors had heard and read outside the courtroom. Now, ten years after Echols was condemned to die, the truth has emerged. Echols’ jury convicted him based on information both unadmitted and inadmissible at trial: a hearsay
statement of a codefendant, Jesse Misskelley, implicating Echols and Baldwin in the charged crimes. Echols was tried separately from Misskelley precisely in order to ensure that the Echols jury would not be exposed to the Misskelley statement. Yet notes taken by a juror, as well as statements of jurors themselves, establish the central role played by the Misskelley statement during the deliberations of the Echols jury.
Under controlling precedents of both the United States and this Supreme Court, receipt by a jury of such an unexamined and inflammatory statement causes incurable prejudice. This case demonstrates the wisdom of that rule. Virtually the entirety of the Misskelley statement was demonstrably false, yet the jury never learned of its defects “because of the ignorance of the influence to which the juror[s] had been subjected.” Capps v. State, 109 Ark. 193, 159 S.W. 193 (1913).
Echols’s trial was marred by a second fundamental defect related to but doctrinally distinct from the jury’s receipt of extraneous and highly prejudicial information. During the trial of Echols and Baldwin, the trial judge denied a mistrial when a prosecution witness improperly shoehorned a reference to the Misskelley statement into evidence. The judge struck the reference from the record, but deemed an admonition to the jury to ignore it sufficient to protect the defendants’ right to a fair trial. In the judge’s opinion, every juror had previously known of the statement’s existence; it was only disclosure of the contents of the statement that would have proven prejudicial. The judge’s observation as to the jury’s collective awareness of the existence of the Misskelley statement was of jarring importance given that no juror had admitted knowledge of the statement during the voir dire process. Echols will now place before this Court evidence establishing that as to the Misskelley statement and other critical matters several jurors
did not give full and honest responses to questions on voir dire that, had they been answered more candidly, would have provided the basis for a challenge for cause. Furthermore, some jurors clearly decided guilt in advance of deliberations. Echols was not tried and convicted before twelve impartial jurors, a federal and state constitutional deprivation that can never be deemed harmless.
As the United States Supreme Court made clear in Irvin v. Dowd, supra, and Rideau v. Louisiana, 373 U.S. 723, 10 L.Ed. 2d 663, 83 S.Ct. 1417 (1963), errors of the sort that marred Echols’ trial so offend the conception of fairness embodied in the Fifth, Sixth, and Fourteenth Amendments that they require a new trial even in cases where the properly admitted evidence convincingly demonstrates a defendant’s guilt of heinous offenses. Here, the issue of the guilt or innocence of Echols and Baldwin has never been satisfactorily laid to rest because the evidence introduced at trial of their participation in the charged murders was disturbingly thin. Echols’ prosecutors admitted prior to trial that the evidence they would introduce might be inadequate to convince a jury of the defendants’ guilt, 1 and the foreman of the jury recently characterized the evidence placed before the jury in court as scanty and circumstantial.
The state will be unable to offer a persuasive counter to the merits of the constitutional claims raised in this petition. What can be anticipated is an argument of procedural bar: that is,
1 In a videotaped conference with the victims’ families prior to the Echols trial made part of the HBO documentary “Paradise Lost,” prosecutors Fogelman and Davis described the evidence that they would offer at trial, and Davis evaluated the chances of gaining a conviction on that evidence as possibly“fifty/fifty.” See Exhibit D, the affidavit of Dennis P. Riordan.
Echols’ proof that his trial was fundamentally unfair comes too late; the procedural vehicles available under Arkansas law to attack a conviction, however wrongful, have been exhausted; therefore petitioner’s challenges to his convictions and sentence of death must be rejected out of hand. That response, if and when it comes, will be factually and legally flawed. The affidavits and statements of jurors upon which this action rests were only obtained recently. Of equal importance, it cannot be the case that the Arkansas judiciary is powerless to stop the death of a young man in the face of irrefutable proof that he has never been fairly tried on the charges for which he has been condemned. The damage to the public’s confidence in the American system of justice if Damien Echols is ever executed based on the present unconstitutional judgment would be enormous.
This matter should be remanded to the Circuit Court for further proceedings and an evidentiary hearing, if needed. Following full consideration of his constitutional claims, Echols’ convictions and sentence of death must be vacated.
STATEMENT OF THE CASE
On March 19, 1994, following trial by jury, an Arkansas trial court sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered judgment against petitioner for three counts of first degree murder in connection with the homicides of three eight-year old boys in May, 1993. On that same date, the trial court imposed a sentence that petitioner be put to death.
Echols timely appealed from the judgment and sentence, which were affirmed by this Supreme Court in an opinion issued on December 23, 1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Petitioner thereafter challenged the Court’s appellate ruling
by filing a timely petition for a writ of certiorari in the United States Supreme Court, which petition was denied in an order issued on May 27, 1997.
Meanwhile, on March 11, 1997, well prior to the conclusion of direct appellate proceedings, Echols filed a motion for post-conviction relief from the trial court’s judgment and sentence pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. Following amendments, petitioner’s final Rule 37 petition was denied by the Craighead County Circuit Court in an order issued on June 17, 1999.
Petitioner timely appealed from the Circuit Court’s June 17, 1999 order. On April 26, 2001, this Supreme Court affirmed one portion of the district court’s ruling but otherwise reversed and remanded in light of the Circuit Court’s failure to make required factual findings on petitioner’s claims. See Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001).
Following remand, in an order issued on July 30, 2001, the Circuit Court issued a new decision rejecting all of petitioner’s claims under Rule 37. Petitioner again timely appealed this ruling which was affirmed in an opinion issued on October 30, 2003, as reported at Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).
On February 27, 2001, while the Rule 37 proceedings described above were pending, Echols also petitioned this Supreme Court for an order reinvesting jurisdiction in the Circuit Court to allow him to seek a writ of error coram nobis. This Court denied that petition in an opinion issued on October 16, 2003 (i.e., before the conclusion of the Rule 37 proceedings) and reported at Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003).
On July 25, 2002, petitioner filed a “Motion for Forensic DNA Testing” (“DNA motion”) in the Circuit Court pursuant to Arkansas Code section 16-112-201 et seq., invoking the Eighth
Amendment’s prohibition against cruel and unusual punishment, and the Fourteenth Amendment’s guarantee of equal protection and due process of law. In an order dated September 12, 2002, this Supreme Court observed that petitioner’s DNA motion was “appropriately filed.” Echols v. State, 350 Ark. 42, 44 (2002)(per curiam) On January 27, 2003, the Craighead County Circuit Court judge who presided at petitioner’s trial ordered the impoundment and preservation of all material that could afford a basis for petitioner’s actual innocence claim pursuant to this statutory scheme.
Testing of the material subject to the Circuit Court’s preservation order and related trial court proceedings is in progress as of the time of filing the instant petition.
STATEMENT OF FACTS
A. Prefatory Note
On direct appeal, Echols challenged the sufficiency of the evidence offered against him at his 1994 trial. Applying the relevant standard of appellate review, which does not permit an assessment of the credibility of witnesses but rather draws all reasonable inferences in favor of the prosecution, this Court rejected that claim in its 1996 order affirming petitioner’s convictions. 326 Ark. at 938-942, 936 S.W.2d at 518-519. Petitioner will not now attempt to relitigate his claim of insufficient evidence.
The extensive statement of facts that follows is rather presented because the constitutional claims being presented to this Court for the first time in this pleading require a summary of: (1) the evidence introduced against Jesse Misskelley at his separate trial which was not admissible against Echols, and the flaws in that evidence that could have been exposed by the exercise of petitioner’s right to confrontation and cross-examination; (2) the extent to which evidence from
the Misskelley trial made its way into public discourse in the Jonesboro area where petitioner was tried; and (3) the evidence formally admitted against Echols, and an assessment of its relative strength.
B. The Charged Murders
This Court described the charged crimes found in the opinion of the Arkansas Supreme Court affirming petitioner’s convictions on direct appeal as follows:
Michael [Moore], Christopher [Byers], and Steve [Branch] were eight years old, in the second grade, in the same Cub Scout troop, and often played together in their West Memphis neighborhood. On the afternoon of May 5, 1993, after school, Michael and Steve were riding their bicycles while Chris was skateboarding. Deborah O'Tinger saw the three boys walking through her yard between 5:45 and 6:00 that afternoon. Her recollection was that they were pushing a bicycle. At about 6:00 p.m., Dana Moore, Michael's mother, saw the three boys together. At that time Michael was riding his bicycle. Between 6:30 and 6:45 Brian Woody saw four boys going into some woods known as the Robin Hood woods. He noticed that two of the boys were pushing bicycles, one had a skateboard, and a fourth one was just walking behind them. Neither Michael, Christopher, nor Steve returned to their homes. Their parents called the police, and a search was begun.
The next morning, members of the Crittenden County Search and Rescue Unit discovered a tennis shoe floating in a ditch just north of Ten Mile Bayou. The Robin Hood woods drain into Ten Mile Bayou, and the members of the search unit knew the boys were last seen in that area. Detective Mike Allen walked along the ditch bank to the place where the tennis shoe had been found. He noticed that one area of the ditch bank was cleared of leaves, while the rest of the bank was covered with leaves and sticks. He described the cleared area on the bank as being "slick," but having "scuffs" in the cleared-off area. He got into the water, reached down to get the shoe, and felt Michael Moore's body. The corpses of Christopher Byers and Steve Branch were subsequently found about twenty-five feet downstream. Policeman John Moore, who was also there, said there was blood in the water, but none on the bank. Detective Bryn Ridge was also present and helped recover the boys' bodies. He collected the victims' clothes, three tennis shoes, and a Cub Scout cap that was floating in the water. He found a stick stuck in the mud that had one of the boy's shirts wrapped around the end that was stuck down in the mud. He dislodged another stick as he was removing the corpse of Michael Moore.
All three corpses had their right hands tied to their right feet, and their left hands tied to their left feet. Black shoe laces and white shoe laces were used as ligatures. Michael Moore's body had wounds to the neck, chest, and abdominal regions that appeared to have been caused by a serrated knife. There were abrasions over his scalp that could have been caused by a stick. Dr. Frank Peretti, a State medical examiner, testified that there was bruising and discoloring comparable to that frequently seen in children who are forced to perform oral sex. He testified that there were defensive wounds to the hands and arms. Moore's anal orifice was dilated, and the rectal mucosa was reddened. Dr. Peretti testified this injury could have come from an object being placed in the anus. Finally, Dr. Peretti testified that there was evidence that Moore was still alive when he was in the water, as there was evidence of drowning.
Steve Branch's corpse had head injuries, chest injuries, genital-anal injuries, lower extremity injuries, upper extremity injuries, and back injuries. The body had multiple, irregular, gouging wounds, which indicated that he was moving when he was stabbed. The anus was dilated. Penile injuries indicated that oral sex had been performed on him. There was also evidence that he, too, had drowned.
Christopher Byers's corpse also had injuries indicating that he had been forced to perform oral sex. His head had scratches, abrasions, and a punched- out area on the skin, and one eyelid had a contusion. The back of the neck had a scrape. The inner thighs had diagonal cuts on them. The back of the skull had been struck with a stick-like, broomstick-size, object. The skin of the penis had been removed, and the scrotal sac and testes were missing. There were cuts around the anus, and the hemorrhaging from those cuts indicated he was still alive when they were made. Many of the cuts were made with a serrated blade knife. Byers did not drown; he bled to death.
The boys' bicycles were found nearby.
Echols and Baldwin v. State, 326 Ark. 917, 935-936, 936 S.W.2d 509, 516-517 (1996)
The record of petitioner’s trial also discloses that on the night of May 5, 1993 a black man was found in the women’s room at Bojangle’s restaurant, blood dripping from his arm, with mud on his feet, disarrayed, and slurring his speech. (Echols-Baldwin Reporter’s Transcript
(hereafter “EBRT” 2211-12, 2999-3000) 2 The women’s room had blood and mud in it. According to the restaurant manager, there was quite a bit of mud that had to be cleaned up. The man had “wasted a whole roll of toilet tissue by soaking up blood or grabbing it for himself...” The toilet paper “had blood all over it. It was saturated all the way down to the cardboard roll.”(EBRT 2213-2214, 3001-3002)
The police were summoned that night to the Bojangles restaurant, which is approximately one mile from the Robin Hood woods, but collected no evidence. (EBRT 772-777, 1551-1556) On the afternoon of May 6th, Detectives Ridge and Allen came out, took a report, and “then they took blood scrapings off the wall in the women’s restroom...” (EBRT 2215, 3003) The detectives asked whether the man appeared to have muddy feet like those of the officers (who had been at the crime scene all morning) and the manager of Bojangles responded that the man did. (EBRT 2215, 3003) The officers indicated they did not need to take possession of the bloody roll of toilet paper. (EBRT 2216, 3004)
Detective Ridge never sent the samples taken at Bojangles to the crime lab and then later lost them. (EBRT 810-11, 1589-1590; 945, 1725) A negroid hair was later discovered on a sheet used to cover the body of Chris Byers. (EBRT 1182, 1963)
C. The Misskelley Trial, Verdict, And Proceedings Concerning Misskelley’s Possible Testimony in The Echols Case
The Echols opinion describes the events leading to the arrest of Echols, Baldwin, and
2 The transcripts from the Echols-Baldwin trial in counsel’s possession bear two sets of page numbers: the first set being the original pagination at the trial court level; the second a Bates stamp number used for the record on direct appeal. Petitioner will use both sets of numbers for each page citation, the Bates stamp number being supplied in italics. Additionally, a copy of each page of the Echols-Baldwin transcript cited in this brief is being submitted to this Court as Exhibit B.
On June 3, or almost one month after the murders, Detective Mike Allen asked Jessie Lloyd Misskelley, Jr., about the murders. Misskelley was not a suspect at the time, but Echols was, and it was thought that Misskelley might give some valuable information about Echols. Detective Allen had been told that all three engaged in cult-like activities. Misskelley made two statements to the detective that implicated Echols and Baldwin, as well as himself...
Misskelley, age seventeen, Echols, age nineteen 3, and Baldwin, age sixteen, were jointly charged with the capital murders of Moore, Byers, and Branch. Misskelley moved for a severance from Echols and Baldwin, and the trial court granted the severance
326 Ark. at 937, 936 S.W.2d 509 at 517.
Misskelley’s case having been severed from that of Echols and Baldwin, the former’s trial began on January 18, 1994 in Clay County. The proceedings were televised and widely reported in the print media. Echols below summarizes evidence from the Misskelley proceeding which was not admitted at his own trial but bears on the constitutional claims he will present below.
1. The Role of Vicky Hutcheson
Vicky Hutcheson was a prosecution witness at the trial of Jesse Misskelley and was the subject of testimony, although she was not called by either party, at Echols’ trial.
Hutcheson testified at the Misskelley trial that in May of 1993, she lived in Highland Park in a trailer. Her son Aaron was good friends with the three murder victims, and Hutcheson became really close friends with Jessie Misskelley (Misskelley Reporter’s Transcript [hereafter MRT] 970-971) 4 At some point after the killings, she decided to play detective. (MRT 971-972)
3 According to a trial stipulation, Echols’ date of birth is December 10, 1974, making him eighteen at the time of the charged crimes and nineteen at the time of his trial. (EBRT 2675, 3463)
4 Citations to the Misskelley Reporter’s Transcript are to the pagination found in the transcripts produced in the Circuit Court. A different pagination may have been used for the record filed in this Court in Misskelley’s direct appeal.
She had heard a lot of things about Damien Echols, so she had Misskelley introduce her to Echols. (MRT 972)
Hutcheson did a number of things to gain Echols’s confidence. She went to see Don Bray, a police officer at Marion, to get his library card to check out “some satanic books because they can’t be checked out just by normal... .” people; she spread the books around her coffee table. (MRT 972) [At the Echols trial, it was established that the West Memphis police, working with Vicky Hutcheson, had conducted audio and visual surveillance of Echols at Hutcheson’s home in an effort to catch Echols saying something incriminating, but to no avail. (EBRT 2153-54, 2940-2949)]
According to Hutcheson’s testimony in the Misskelley trial, at one point, Echols invited her to an “esbat,” which Hutcheson claimed was an occult satanic meeting mentioned in one of the witch books. (MRT 973) Hutcheson, Misskelley and Echols went to the meeting in a red Ford Escort driven by Echols. Hutcheson claimed that from a distance she saw 10 to 15 people at the meeting. She asked Echols to take her home, but Misskelley stayed at the scene. (MRT 973-974)
On cross-examination, Hutcheson admitted that she had been in Officer Bray’s office on the day the bodies of the murder victims were discovered, the reason being she was being investigated in regard to a “a credit card mess-up.” (MRT 975) She had been previously convicted in Arkansas for writing “hot checks.” (MRT 976) After she began her cooperation with the police regarding Echols, authorities dropped all charges involving the credit card problem. (MRT 975) Hutcheson frequently bought liquor for a fifteen year old friend of
Misskelley’s (MRT 1214), and had spent the night with Misskelley the night before he gave his statement to the police and was arrested. (MRT 976-977) The defense proffered a witness who stated that on two occasions Hutcheson said that her son Aaron would receive reward money related to the case. (MRT 1268, 1269)
On January 29, 1994, the Arkansas Democrat-Gazette reported Hutcheson’s testimony that she “attended a satanic cult meeting with Misskelley and co-defendant Damien Echols.” (Exhibit E; see also Exhibit F- the Jonesboro Sun article of January 28, 1993) The Democrat-Gazette article also reported that Misskelley had confessed his involvement and that of Echols and Baldwin in satanic activities “and the sexual assaults, mutilations and beatings of the children.” (Exhibit E)
In a series of recent interviews, Vicky Hutcheson stated that her testimony about attending a satanic “esbat” meeting with Echols and Misskelley was a “complete fabrication.” 5 That assertion is supported by the fact that although the police were interrogating and conducting surveillance of Echols on multiple occasions between the discovery of the victims’ bodies on May 6th and the defendants’ arrests on June 3rd, the time period when Hutcheson was cooperating in the police investigation of Echols, no corroboration of Hutcheson’s claim of a satanic meeting was offered at either the Misskelley or Echols trial, nor has there ever been a claim by any other
5 See “Complete Fabrication: A crucial witness says her testimony in the West Memphis 3 case wasn’t true, but a product of police pressure to get results in the deaths of three children,” by Tim Hackler, Arkansas Times, October 7, 2004, at pages 12-17. (Exhibit G)
witness that Damien Echols knew how to drive an automobile or ever had done so.
2. The Misskelley Statement
Expert psychological testimony at the Misskelley proceeding established that Misskelley had been diagnosed as mentally retarded, as had his brother. (MRT 342) Misskelley’s arithmetic and spelling skills were on the 2nd or 3rd grade level. (MRT 344) He tended to think in childlike ways as “a 6, 7-year-old child would do.” (MRT 346) He performed psychological tests from the viewpoint of a 5 to 7-year-old child. (MRT 349) On moral reasoning test instruments, he again was very childlike. (MRT 351) He was severely insecure and did not understand the world very well. When he was under stress, he rapidly reverted to fantasy and daydreaming “and at times can’t tell the difference between fantasy and reality.” (MRT 352)
The diagnoses of Misskelley were adjustment disorder with depressed mood, with a history of psychoactive substance abuse, including marijuana, huffing gasoline, and alcohol. (MRT 352) He possessed borderline intellectual functioning. (MRT 353) He had a diagnosed developmental disorder, as well as other dysfunctions “primarily schizotypal, antisocial, and dependent.” (MRT 353) Misskelley had impaired memory, both long and short-term. (MRT 354)
The following facts concerning the Jesse Misskelley statement are taken from the opinion of this Court affirming Misskelley’s convictions on direct appeal. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996)
Approximately one month into the investigation, the police considered Damien Echols a suspect in the murders, but no arrests had been made. [Misskelley]'s name had been given to officers as one who participated in cult activities with
Detective Sergeant Mike Allen questioned [Misskelley] on the morning of June 3, 1993. [Misskelley] was not considered a suspect at that time...
[Misskelley and Allen] arrived at the station at approximately 10:00 a.m. Detective Allen and Detective Bryn Ridge questioned [Misskelley] for about an hour when they became concerned that he wasn't telling the truth. In particular, he denied participation in the cult activity, a statement which was at odds with what other witnesses had said. At this point, the detectives decided to advise [Misskelley] of his rights. Detective Allen read him a form entitled "YOUR RIGHTS," and verbally advised him of the Miranda rights contained in the form. [Misskelley] responded verbally that he understood his rights and also initialed each component of the rights form. There was no evidence of any promises, threats or coercion...
After he was advised of his rights and had waived them, [Misskelley] was asked if he would take a polygraph examination. He agreed that he would. Detective Allen took [Misskelley] to look for his father so that his father could grant permission for [Misskelley] to take the polygraph. They observed Mr. Misskelley driving on the same road they were on, stopped him, and received the authorization. There was no evidence of promises, threats or coercion.
Upon returning to the station, Detective Bill Durham, who would administer the polygraph, once again explained [Misskelley]'s rights to him. [Misskelley] verbally indicated he understood, and initialed and signed a second rights and waiver form which was identical to the first.
Detective Durham explained to [Misskelley] how the polygraph would work and administered the test over the course of one hour. In Detective Durham's opinion, [Misskelley] was being deceptive in his answers and he was advised that he had failed the test. At that point, [Misskelley] became nonresponsive.
Detective Bryn Ridge and Inspector Gary Gitchell began another interrogation of [Misskelley] at about 12:40 p.m. They employed a number of techniques designed to elicit a response from [Misskelley]. A circle diagram was drawn and [Misskelley] was told that the persons who committed the murders were inside the circle and that those trying to solve the crime were on the outside. He was asked whether he was going to be inside the circle or outside. He apparently had no response. He was then shown a picture of one of the victims and had a strong
6 This is a reference, inter alia, to Hutcheson’s “esbat” story.
reaction to it. According to Gitchell, [Misskelley] sank back into his chair, grasped the picture and would not take his eyes off it. Yet, he still did not speak. Finally, Gitchell played a portion of a tape recorded statement which had been given by a young boy named Aaron. The boy was the son of a friend of [Misskelley]'s and had known the victims. The portion of the statement which the officers played was the boy's voice saying, "nobody knows what happened but me." Upon hearing this, [Misskelley] stated that he wanted out and wanted to tell everything.
The officers decided to tape record a statement and received the confessions which are set out above. At the beginning of the first statement, on tape, [Misskelley] was advised of his rights for the third time. The rights were fully explained to him, and the waiver of rights read to him verbatim.
The evidence presented by [Misskelley] at the suppression hearing consisted primarily of the testimony of polygraph expert Warren Holmes. Mr. Holmes testified that, in his opinion, [Misskelley] had not been deceptive in his answers to the polygraph questions. He raised the possibility that [Misskelley] had been wrongly informed that he had failed.
Misskelley v. State, 323 Ark. 449, 464-466, 915 S.W.2d 702, 710-711. (1996)
This Court described the contents of Misskelley’s statements themselves as follows:
At 2:44 p.m. and again at approximately 5:00 p.m., he gave statements to police in which he confessed his involvement in the murders. Both statements were tape recorded.
The statements were the strongest evidence offered against [Misskelley] at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration.
The statements were obtained in a question and answer format rather than in a narrative form. However, we will set out the substance of the statements in such a way as to reveal with clarity [Misskelley]'s description of the crime:
In the early morning hours of May 5, 1993, [Misskelley] received a phone call from Jason Baldwin. Baldwin asked [Misskelley] to accompany him and Damien Echols to the Robin Hood area. [Misskelley] agreed to go. They went to the area, which has a creek, and were in the creek when the victims rode up on their bicycles. Baldwin and Echols called to the boys, who came to the creek. The boys were severely beaten by Baldwin and Echols. At least two of the boys were raped and forced to perform oral sex on Baldwin and Echols. According to
appellant, he was merely an observer.
While these events were taking place, Michael Moore tried to escape and began running. [Misskelley] chased him down and returned him to Baldwin and Echols. [Misskelley] also stated that Baldwin had used a knife to cut the boys in the facial area and that the Byers boy was cut on his penis. Echols used a large stick to hit one of the boys. All three boys had their clothes taken off and were tied up.
According to [Misskelley], he ran away from the scene at some point after the boys were tied up. He did observe that the Byers boy was dead when he left. Sometime after [Misskelley] arrived home, Baldwin called saying, "we done it" and "what are we going to do if somebody saw us." Echols could be heard in the background.
[Misskelley] was asked about his involvement in a cult. He said he had been involved for about three months. The participants would typically meet in the woods. They engaged in orgies and, as an initiation rite, killing and eating dogs. He noted that at one cult meeting, he saw a picture that Echols had taken of the three boys. He stated that Echols had been watching the boys.
[Misskelley] was also asked to describe what Baldwin and Echols were wearing the day of the murders. Baldwin was wearing blue jeans, black lace-up boots and a T-shirt with a rendering of a skull and the name of the group Metallica on it. Echols was wearing black pants, boots and a black T-shirt.
[Misskelley] initially stated that the events took place about 9:00 a.m. on May 5. Later in the statement, he changed that time to 12:00 noon. He admitted that his time periods might not be exactly right. He explained the presence of the young boys by saying they had skipped school that day.
The first tape recorded statement concluded at 3:18 p.m. At approximately 5:00 p.m., another statement was recorded. This time, [Misskelley] said he, Echols and Baldwin had come to the Robin Hood area between 5:00 and 6:00 p.m. Upon prompting by the officer, he changed that to 7:00 or 8:00 p.m. He finally settled on saying that his group arrived at 6:00 p.m. while the victims arrived near dark. He went into further detail about the sexual molestation of the victims. At
least one of the boys had been held by the head and ears while being accosted. Both the Byers boy and the Branch boy had been raped. All the boys, he said, were tied up with brown rope...
[Misskelley]'s statements are a confusing amalgam of times and events. Numerous inconsistencies appear, the most obvious being the various times of day the murders took place. Additionally, the boys were not tied with rope, but with black and white shoe laces. It was also revealed that the victims had not skipped school on May 5.
Id., 323 Ark. At 464-466, 915 S.W.2d at 707-708.
3. Other Evidence Bearing On The Unreliability of The Misskelley Statement
Not only had the victims attended school during the day on May 5th, but Baldwin had as well (MRT 946, EBRT 974, 1754), and it was established during the Echols trial that Echols had been at a doctor’s appointment that morning (EBRT 1852, 1891, 1915, 1948, 2638, 2677, 2701, 2734) Indeed, uncontradicted testimony was admitted at Misskelley’s trial that Misskelley had been on a roofing job the entire morning of May 5th. (MRT 1104-1105, 1113) That being so, when Misskelley early in his statement described getting up on the morning of the 5th, receiving a phone call from Jason Baldwin, meeting with Baldwin and Echols, and walking to the Robin Hood woods at 9 a.m. in the morning, he was describing a series of events that never happened.
When Misskelley then described the victims being intercepted on the morning of the 5th as “they’s going to catch their bus and stuff, and they’s on their bikes...,” and stated that the victims then “skipped school” (MRT 946-47), he was engaging in fiction. When he stated that he witnessed Echols and Baldwin committing the killings and then he “went home by noon,” he again was inventing a narrative, as both the victims and Baldwin were sitting in school while
Misskelley was roofing at noon, and the victims were riding their bikes around their neighborhoods six and a half hours later. Detective Ridge, one of the interrogators, admitted being shocked when Misskelley said the little boys were killed at noon, because he knew the little boys were in school at noontime, and their killings occurred between 6:30 on May 5 and 1:30 in the morning on the 6th; he did not raise the inconsistency with Misskelley, however, because “when you start contradicting somebody, then they stop talking.” (MRT RT 904-905) .
The police terminated the first recorded statement of Miskelley at 3:18 p.m. and attempted to obtain a warrant, but were told by the issuing magistrate that there were problems with the time sequence described by Misskelley. (MRT 154-156; 193; 212-220) During the second interview beginning at 5 p.m., Misskelley moved the time the victims were seized back to five or six o’clock, again a false statement, only to have the police tell him he had stated earlier in the interview the time was actually seven to eight (which Misskelley had not done in the earlier recorded interview ), a suggestion to which Misskelley then acceded. Having invented a story about meeting Baldwin and Echols and walking to Robin Hood woods in the morning, Misskelley never explained how he came to be in the presence of his codefendants later that day.
Of great importance, a person who had in fact been present at the commission of the crime would have seen the victims hog-tied, i.e., left hand to left foot, right hand to right foot–with shoe laces of different colors, including white and black (EBRT 195-196, 971-972), apparently taken from the victims’ own shoes. A true memory of binding the victims in such a horrible way with their shoelaces removed from their own sneakers would surely have been indelible. Yet in his statement Misskelley said only that the victims’ hands were tied, and that was done with brown rope. His interrogators attempted to have Misskelley correct this false
description by suggesting that the boys would have run away had only their hands been tied, but Misskelley failed to come up with the explanation that would have been obvious to any one who actually witnessed the murders–the hog-tying with shoelaces. Finally, Detective Ridge flatly asked “were they [sic] hands tied in a fashion that they couldn’t have run, you tell me? Misskelley replied: “They could run...”
Ridge admitted to again being shocked when Misskelley falsely stated that the victims were bound with brown rope (MRT 905), but agreed that he had been happy to get an incriminating statement from Misskelley because the police were under a lot of pressure to solve the crimes. (MRT 906)
Moreover, when Misskelley described Damien Echols taking a “big old stick” and using it to choke Chris Byers to death, he again was speaking falsely, for an autopsy revealed Chris Byers had suffered no injuries to his neck consistent with choking, much less the fractures that would result from being asphyxiated with a stick. (MRT 852)
Testimony was offered at the Misskelley trial that on the day of Jessie’s arrest, he and Officer Allen joked about a reward of $40,000 and the fact that if a conviction was obtained, Jessie would be able to buy himself a new truck. (MRT 1183) Finally, Misskelley’s defense called a substantial number of witnesses who testified that Misskelley had been at the Highland Trailer Park in the early evening of May 5th when the police were called to the area in regard to a neighborhood dispute, and then had gone wrestling. (MRT 1124-29, 1149-52, 1161-63, 1173-75, 1180-82, 1188-90, 1198-1200, 1211-13)
As was established at the Echols trial, there had been at least one other confession by a Christopher Morgan in regard to the murder of the three eight-year olds that was deemed
unreliable. 7 Had the Misskelley statement, inadmissible against Echols because it could not be subjected to the test of cross-examination, ever been placed in evidence at petitioner’s trial, it is reasonably possible, indeed highly likely, that the Echols defense team, even absent the opportunity to confront Misskelley on the stand, could have convinced the jury that his statement was false. Echols could have offered powerful proof that Misskelley had initially told the truth when he denied any involvement in the murders and satanic cult activity. Told by the police however, that his assertions had been proven false by the polygraph (which they had not), Misskelley then fabricated a confession which was purely the product of powerful suggestion by authority figures on a mentally deficient seventeen year old boy.
4. The Misskelley Verdict And Accompanying Publicity
On January 28, 1993, the Jonesboro Sun carried a front page story about the playing of the Misskelley confession in court, including graphic descriptions of Echols and Baldwin beating and sexually abusing the three victims. (Exhibit F ) An article in the Jonesboro Sun on February 4, 1994 reported the prosecutor’s use in closing argument of the Misskelley statement, including its references to Echols and Baldwin. (Exhibit H; Jonesboro Sun of February 4, 1994) Misskelley was convicted in Clay County on February 4, 1994. Press coverage of the verdict on February 5th
7 Morgan, who knew the three boys and had left the Memphis area three or four days after the homicides, had told police in Oceanside, California in an interview on May 17, 1993 that maybe he had blacked out, screwed the three boys, killed them, and cut off their arms and legs. (EBRT 2054-2061, 2841-2848)
described Misskelley’s statement of June 3, 1993, stating that Misskelley had confessed that he had helped subdue the victims but that it was Echols and Baldwin who “beat, cut, and sexually abused the boys.” (See Exhibit I; Arkansas Democrat-Gazette of February 5, 1994)
D. The Echols Trial
1. Pretrial Proceedings
On February 22, the day jury selection was to begin in the Echols trial, the trial court held an extended proceeding in chambers dealing with the issue of whether, in an effort to obtain the testimony of recently-convicted Jesse Misskelley, the prosecution had acted improperly in interviewing Misskelley on a number of occasions over his attorney’s objections and, in some instances, without defense counsel being present, and in then having Misskelley brought to Jonesboro to testify (EBRT 512 et. seq., 1290 ) The court indicated that it was “going to find an independent attorney” to interview Misskelley and determine whether he wished to testify over the objections of his trial attorneys in return for use immunity (EBRT 560-618, 1338-1396), and appointed Philip Wells to perform that task. (EBRT 576, 1354) Mr. Wells interviewed Misskelley and reported that Misskelley wished to consult with his parents before deciding whether to enter into a bargain in exchange for his testimony. (EBRT 578-582, 1356-1360)
The following morning, newspapers reported that the trial judge in the Echols and Baldwin case had cleared the way for Jessie Lloyd Misskelley Jr. to testify against Echols and Baldwin. One report continued:
Misskelley’s testimony or statement is important to prosecutors. In a June 3, confession to West Memphis police, he said he helped Echols and Baldwin subdue the victims on May 5 and watched as the teen-agers beat and sexually abused Christopher Byers, Michael Moore, and Steve Branch.
(See Exhibit J, Arkansas Democrat-Gazette of February 23, 1994)
The press further reported that the prosecution had asked Jesse Misskelley’s father to convince his son to testify in return for a reduced sentence of forty years. (Exhibit J)
Also on the morning of February 23rd, the court announced that Misskelley had decided not to testify, and the parties agreed that there would be no further contact with him by the prosecution without prior notice to defense counsel. (EBRT 619, 1397)
On February 25, 1994, Baldwin’s attorney, Paul Ford, asked to make a record regarding his objection to statements made by Phillip Wells that Ford saw on television the previous evening. (EBRT 672, 1451) Ford characterized the statements as “alarming . . . by virtue of [Wells] . . . standing as a liaison of the Court[.]” Ford stated:
On a Channel Eight news report last night [Wells] said that Jessie had not made up his mind. [Jessie] was going back and forth whether he would testify, whether he would not testify. He was talking to his daddy. But he also said that [Jessie] has decided if he will testify, he will testify to the truth.
And I feel like that statement coming from that impartial capacity means that it’s almost the Court indicating that if he testifies, he will be testifying to the truth[.]
(EBRT 672-73, 1451-52)
2. Press Coverage of Opening Statements
Following opening statements on February 28, 1993, the Arkansas Democrat-Gazaette on March 1st reported that Echols, Baldwin, and Misskelley had been arrested “based on a statement Misskelley gave police describing their involvement in the killings.” The article continued that a transcript of the statement revealed that Misskelley said “Echols and Baldwin killed the boys while he watched, and that the three teenagers belong to a cult whose members eat dogs during rituals.” (Exhibit K, Arkansas Democrat-Gazette of March 1, 1994; see also Exhibit L, The
Jonesboro Sun of March 2, 1994 (“Misskelley confessed to being present while Echols and Baldwin killed the boys.”))
On the same day, Paul Ford and petitioner’s trial counsel, Val Price, objected outside the presence of the jury that Phillip Wells was standing at the courtroom rail and holding what amounted to a press conference regarding whether or not Jessie Misskelley had decided to testify. (EBRT 887-89, 1667-69) The trial judge stated that it had been inappropriate for Wells to describe himself as a court liaison and he would tell Wells to refrain from making comments in the future. (EBRT 888-889, 1668-69)
3. The State’s Evidence Against Echols
On denying Echols’ direct appeal, this Court summarized the evidence introduced against him at trial as follows:
Anthony and Narlene Hollingsworth were well acquainted with Echols and testified that they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found. The witnesses testified that Echols had on a dark-colored shirt and that his clothes were dirty...
Twelve-year-old Christy VanVickle testified that she heard Echols say he "killed the three boys." Fifteen-year-old Jackie Medford testified that she heard Echols say, "I killed the three little boys and before I turn myself in, I'm going to kill two more, and I already have one of them picked out."...
Lisa Sakevicius, a criminalist from the State Crime Laboratory, testified that she compared fibers found on the victim's clothes with clothing found in Echols's home, and the fibers were microscopically similar.
Dr. Frank Peretti, a State Medical Examiner, testified that there were serrated wound patterns on the three victims. On November 17, 1993, a diver found a knife in a lake behind Baldwin's parents' residence. The large knife had a serrated edge and had the words "Special Forces Survival Roman Numeral Two" on the blade. Dr. Peretti testified that many of the wounds on the victims were consistent with, and could have been caused by, that knife.
Deanna Holcomb testified that she had seen Echols carrying a similar knife, except that the one she saw had a compass on the end. James Parker, owner of Parker's Knife Collector Service in Chattanooga, Tennessee, testified that a company distributed this type of knife from 1985-87. A 1987 catalog from the company was shown to the jury, and it had a picture of a knife like the knife found behind Baldwin's residence. The knife in the catalogue had a compass on the end, and it had the words "Special Forces Survival Roman Numeral Two" on the blade. The jury could have made a determination whether the compass had been unscrewed, and, in assessing the probativeness of the location of the knife introduced at trial, heard ample evidence that Echols and Baldwin spent much time together...
The State's theory of motive was that the killings were done in a satanic ritual. On cross-examination, Echols admitted that he has delved deeply into the occult and was familiar with its practices. Various items were found in his room, including a funeral register upon which he had drawn a pentagram and upside-down crosses and had copied spells. A journal was introduced, and it contained morbid images and references to dead children. Echols testified that he wore a long black trench coat even when it was warm. One witness had seen Echols, Baldwin, and Misskelley together six months before the murders, wearing long black coats and carrying long staffs. Dr. Peretti testified that some of the head wounds to the boys were consistent with the size of the two sticks that were recovered by the police.
Dr. Dale Griffis, an expert in occult killings, testified in the State's case-in-chief that the killings had the "trappings of occultism." He testified that the date of the killings, near a pagan holiday, was significant, as well as the fact that there was a full moon. He stated that young children are often sought for sacrifice because "the younger, the more innocent, the better the life force." He testified that there were three victims, and the number three had significance in occultism. Also, the victims were all eight years old, and eight is a witches' number. He testified that sacrifices are often done near water for a baptism-type rite or just to wash the blood away. The fact that the victims were tied ankle to wrist was significant because this was done to display the genitalia, and the removal of Byers's testicles was significant because testicles are removed for the semen. He stated that the absence of blood at the scene could be significant because cult members store blood for future services in which they would drink the blood or bathe in it. He testified that the "overkill" or multiple cuts could reflect occult overtones. Dr. Griffis testified that there was significance in injuries to the left side of the victims as distinguished from the right side: People who practice occultism will use the midline theory, drawing straight down through the body. The right side is related to those things synonymous with Christianity while the left side is that of the
practitioners of the satanic occult. He testified that the clear place on the bank could be consistent with a ceremony...
Lisa Sakevicius, the criminalist who testified about the fibers, stated that Byers's white polka-dot shirt had blue wax on it and that the wax was consistent with candle wax.
Detective Bryn Ridge testified that Echols said he understood the victims had been mutilated, with one being cut up more than the others, and that they had drowned. Ridge testified that when Echols made the statement, the fact that Christopher Byers had been mutilated more than the other two victims was not known by the public...
Echols took the witness stand....When asked about his statement that one victim was mutilated more than the others, he said he learned the fact from newspaper accounts. His attorney showed him the newspaper articles about the murders. On cross- examination, Echols admitted that the articles did not mention one victim being mutilated more than the others, and he admitted that he did not read such a fact in a newspaper.
Echols and Baldwin v. State, 326 Ark. at 938-941, 936 S.W.2d at 518-519.
As noted above, a reviewing court faced with an insufficiency of the evidence claim must assume that all of the state’s evidence is credible and draw every rational inference supported by that evidence in favor of the prosecution. This Court did just that in rejecting Echols’ insufficiency claim on direct appeal. That ruling by the Court, however, which is not challenged here, did not address the relative strength of the proof offered by the state, an issue relevant to this present petition. In fact, the accuracy and persuasiveness of each component of the state’s evidence against Echols was subject to serious question.
a. The Ballpark Girls
In rejecting Echols’s appeal of the denial of his Rule 37 motion, this Court observed that the “most significant” evidence offered against petitioner at trial “were his statements that were overheard by two girls that he had ‘killed the three boys,’ and that ‘I'm going to kill two more,
and I already have one of them picked out.’” Echols v. State (Echols II), 354 Ark. 530, 558 127 S.W.3d 486, 504 (2003), citing Echols I, 326 Ark. at 938, 936 S.W.2d at 518. Absent the testimony of these two girls, Echols would have been entitled to a directed verdict, for, as demonstrated below, no other piece of evidence introduced against Echols, even if deemed entirely credible, logically connected petitioner to the charged murders.
According to the two girls, Echols’ statements were made near a concession stand to a “whole crowd of people” (EBRT 1815, 2600), at least six or seven of whom were with Damien (EBRT 1825, 2611), and were heard by one of the girls at a distance of 15 to 20 feet. (EBRT 1818-1819, 2604, 2605) Neither of the girls came forward with their story until after Echols had been arrested (EBRT 1817, 1831, 2603, 2617)
For the testimony of the two girls to be deemed fully credible evidence of a meaningful admission of culpability by Echols, a jury would have to find that: (1) Echols, who had been intensely interrogated by the police on numerous occasions, including an eight hour session on May 10th (EBRT 1441-42, 2224-25), during which he steadfastly maintained his innocence, then decided to doom himself by publicly proclaiming his guilt at a softball game to a large crowd of people; (2) although they had learned that Echols was guilty of perhaps the most heinous offenses in the history of the state, none of the people to whom the confession was directly made ever came forward to report it to the police; and (3) neither of the two young girls that did overhear the confession contacted the authorities until after Echols was arrested and his picture appeared in the newspaper and on television, despite the fact that at the time of the softball game a desperate hunt was underway for the killers of the three eight-year olds.
Obviously, a jury could have just as easily rejected as accepted the girls’ testimony on the
grounds that it was either mistaken or exaggerated. Echols did attend a softball game with Baldwin sometime between May 5th and his arrest on June 3rd. (EBRT 1962, 1976, 2748, 2762) With no basis in fact, the police investigation had focused on Echols from almost the moment the bodies of the victims were discovered, and the police had asked many in the community questions centering on Echols. That petitioner had been interrogated by the police on more than one occasion, including at police headquarters, was surely common knowledge in the surrounding community during the weeks after the crimes. The ballpark girls may well have heard comments at the softball game that Echols, who always stood out in a crowd in West Memphis, was the likely killer. But a reasonable jury would have entertained very grave doubts that Echols had made a true admission of guilt in the circumstances described by the two girls.
b. The Knife in the Lake
The finding of a knife in the lake near Baldwin’s house could easily have had a strong emotional impact on jurors, but its valid probative value was almost nothing for several reasons. First, there was no meaningful evidence that the knife was used in the slaying of the three boys. Doctor Peretti said some of the boys’ wounds were made with a serrated knife, and therefore were consistent with the serrated knife found in the lake, but Peretti testified that the same could have been said of almost any serrated knife (EBRT 1108, 1889), of which there were no doubt thousands in the West Memphis area. Indeed, Doctor Peretti said that the victims’ wounds could have been caused by a serrated knife owned by Mark Byers (EBRT 1085, 1866), which did have on it traces of blood consistent with that of one of the victims, Chris Byers. 8 Just as Peretti could
8 See Echols II, 354 Ark. at 548, 127 S.W.3d at 497. Byers was called as a defense witness for the purpose of exposing prior inconsistent statements that he had made to police regarding the appearance of blood, which matched his and his son's blood-type, on a knife that he owned.
not say the Byers knife (a more likely candidate due to the presence of Chris’s blood) was used in the slayings, he could not say that the knife in the lake was so used. (EBRT 1109, 1890)
Furthermore, the state offered no dispositive evidence that the knife in the lake was ever possessed by Echols. Deanna Holcomb testified that the knife looked like one she had seen in Echols’ possession over a year before the charged offenses, but petitioner’s knife had had a compass; the knife in the lake did not. The fact that there was evidence that the class of knife found in the lake could have once had a compass on it certainly did not establish the fact that the one in the lake ever did have such a compass, much less that it was a knife once possessed by Echols.
Echols is not now challenging the ruling of this Court on direct appeal that the knife was admissible at his trial (Echols I, 326 Ark. at 939, 936 S.W.2d at 518-519); he simply makes the point that the knife did not logically add much, if any, strength to the government’s case.
c. The Hollingsworth Testimony
Anthony and Narlene Hollingsworth testified that “they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found” (Echols I) The dubious nature of this testimony is illustrated by the fact its claimed relevance required a finding that the most crucial portion of the Hollingsworths’ identification–that of Domini Teer-- was wrong.
There is evidence in the record that the Hollingsworths were related to Domini Teer.
(EBRT 1969-70, 2755-56) Narlene identified Domini based in part on her pants with flowers on them that Narlene had seen Domini in previously. (EBRT 1295-96, 2076-2077) Anthony was specific in his physical description of Domini as being extremely thin, 5' 4" in height, and having red hair. (EBRT 1283, 2064)
But in closing, the state’s theory was that the Hollinsworths were probably wrong in their positive identification of Domini; in the prosecution’s view, the person they identified as Domini was not even a female at all, but most likely was Jason Baldwin. (EBRT 2499-2500, 3288-89) A reasonable jury could fairly conclude that witnesses who could confuse one party they claimed to know well with a person of another gender would not be more reliable in their claim to have correctly identified a second party at the same place and time.
Additionally, the time of the supposed identification of Echols by the Hollingsworths, if believed, created more problems for the state’s case than it resolved. Doctor Peretti’s best estimate of the victims’ time of death was between 1:00 a.m. and 5-7:00 a.m on May 6th. (EBRT 1121, 1902) If Echols had been walking with Domini near the Blue Beacon at 9:30 p.m. on the 5th, instead of talking to her on the phone, as he and his mother testified, 9 the state still would be left without an explanation of how he could be exercising control of the victims, who apparently were not killed until hours later.
d. The Fiber Evidence
A prosecution witness testified that a green cotton and two green polyester fibers found on one of the victim’s clothing was similar in consistency and appearance to the fibers of a
9 Teer’s interview with the police on September 19, 1993, provided the defense in discovery, confirmed petitioner’s testimony concerning their telephone conversation on May 5th. Exhibit M
child’s shirt made of a cotton polyester blend found in the Echols residence. (EBRT 1468-69, 2251-52) Echols could not have worn the t-shirt found in his home, a size 6. (EBRT 1470-71, 2253-54)
The prosecution witness agreed that there were insufficient unique individual microscopic characteristics to identify the green fiber as coming from the size 6 shirt, which in fact was blue in color. (EBRT 1474, 1477, 2257, 2260) When the witness testified that a fiber was microscopically similar to that found in a garment, that simply meant that if a rack of clothes at Walmart was made at the same time from the same fiber, a fiber identified as microscopically similar to those of one garment also “could have come from one of these other items that was hanging on the same rack.” (EBRT 1474-75, 2257-58) In sum, the fiber evidence tended to establish nothing more than that the green fibers on the victim’s clothing were as likely to have come from a classmate’s clothing, or any one of uncounted cotton polyester articles sold by Walmart, as from the child’s shirt in petitioner’s home.
e. The Ridge Statement
As noted in this Court’s opinion on direct appeal, Detective Bryn Ridge testified that in an unrecorded interview he conducted for several hours on May 10, 1994 with Echols, petitioner said he understood the victims had been mutilated, with one being cut up more than the others, and that they had drowned. (EBRT 1566, 2349) This statement would be incriminating if the fact that one of the victims (Chris Byers) had been mutilated more than the other two victims was not yet in the public domain.
Echols testified that on May 10th he discussed with Ridge things he had “seen on TV, newspapers, people talking” (EBRT 2029, 2816), and that when Ridge had asked him whether one victim had been hurt worse than the others, he had replied, “I guess so.” (EBRT 1958, 2029-30, 2744, 2816-2817) The local and state press had reported on May 7, 1993, the day following the discovery of the bodies, that the victims had been bound and sexually mutilated, and that Mark Byers, the father of Chris Byers, had stated that one boy had been hit over the eye, another’s jaw was injured, and the third “was worse than that” or “looked worse than that.” (See Exhibit N, a Commercial Appeal article of May 7, 1993; Exhibit O, a West Memphis Evening Times article of May, 7, 1993; and Exhibit P, a Democrat-Gazette article of May 8, 1993. ) Thus the fact that one victim had been more severely mutilated than the others was in the public domain three days before the May 10th interview. Furthermore, as Ridge himself testified, at the time of the interview there were “all kinds of rumors of how people thought they died” circulating at the time in the community. (EBRT 1577, 2360)
Additionally, prior to May 10th, Echols had already been through at least two other interviews in which police officers, including Officer Sudbury, had discussed the murders with him at length and asked the same leading questions as did Ridge from a questionnaire developed by Sudbury. (EBRT 1571, 1586, 1588, 1956, 2354, 2369, 2371, 2742) Echols had discussed with Sudbury rumors that he had heard about the condition of the bodies, which everyone in West Memphis was talking about. (EBRT 1954-55, 2740-41) The May 10th interview had little or no value as proof that Echols had any unique or undisclosed knowledge of the crime.
f. The “Occult Expert”
Again putting admissibility aside, the testimony offered by the supposed expert in occult
killings, Dale Griffis, while certainly capable of emotionally affecting a jury, had little or no probative value in proving Echols guilty. The theory on which the testimony was offered was that if Echols believed in satanism, and if the charged murders were satanic in nature, then Echols was more likely to have committed them. Griffis was permitted to testify on the basis that his testimony could assist the jury on the second component of the syllogism–that the killings were satanic in nature.
In order for any expert to offer “specialized knowledge” 10 on that subject, however, two things would have to be true: (a) a class of murders have been positively identified as committed for satanic purposes; and (b) murders in this identified class bear characteristics sufficiently unique to distinguish them from other murders. If a class of murders has not been reliably proven satanic in nature, then an “expert” opinion that satanists kill in some particular manner is simply nonsensical speculation. For example, an “expert” on murders committed by extraterrestrial beings might opine that such beings always kill using screwdrivers. The expert need not fear contradiction for the same reason that his testimony would be worthless: the commission of a murder by an extraterrestrial has never been confirmed.
Even if some killings could be verified as satanically motivated, the class would have to
10 See Arkansas Rule of Evidence Rule 702 states: “Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
be large enough to generate valid data on the distinguishing characteristics of such crimes. The fact that it might be demonstrable that two murders committed by Basque or Islamic terrorists involved the use of .45 caliber pistols could not generate a valid conclusion either that such terrorists always use such handguns, much less that a murder committed with a .45 was most more than likely perpetrated by a terrorist.
Thus for Griffis’s testimony that charged murders had the “trappings of occultism” to have any meaningful weight, there would have to be some reliable data that proven satanic killings have been committed near pagan holidays, or when there was a full moon, or that such killings typically involve the sacrifice of young children, or three victims, or victims eight years old, or are often done near water for a baptism-type rite or just to wash the blood away, or involve the display of the victims’ genitals, the removal of testicles, or the storing of blood for future services in which the killers would drink the blood or bathe in it. If there has never been a satanic killing involving three victims, or eight year old victims, or the removal of testicles, or the removal of blood for bathing and drinking, then these factors cannot possibly support a valid expert opinion that they indicate a satanically motivated crime as opposed to randomness, simple sadism, or sexual perversion.
On cross-examination, Griffis could offer no empirical basis for his speculation that the date of May 5th suggested a satanic impulse for the killings (EBRT 1777, 2561), or that satanic killings are more likely when the moon is full (EBRT 1779, 2563) He agreed that the manner in which the victims were displayed could indicate a sex crime, not a satanic one; the same was true of the genital mutilation. (EBRT 1780, 2564) He knew of no satanic crime in which the victims were bound as they were in this case. (Id) Griffis did refer to a killing in Rhode Island as
involving satanic motivation, but that crime involved a female burned in a circle containing a pentagram; none of these factors was present in the present case. (EBRT 1781, 2565) Griffis agreed that the bodies could have been placed in water to drown or conceal the victims, rather than for satanic reasons. (EBRT 1781-82, 2565-66) He likewise agreed that the absence of blood at the scene could simply mean that the victims were killed at another location. (EBRT 1783, 2567)
Defense expert Robert Hicks was employed by the Department of Justice of Virginia and had published two books on the issues of police investigation and alleged satanic crimes. (EB 2227-28, 3015-16) Hicks had acquired his advanced degree from a major university which requires candidates to be on campus and attend classes (EBRT 2225-26, 3013-14), not true of Griffis with his mail order “masters” and “Ph.D,” which he had obtained in three years without attending classes while working full time as a police officer (EBRT 1752-53, 2536-37) Hicks testified that there was no empirical basis for Griffis’ opinions about the charged murders having the “trappings of occult killings,” be it in relation to pagan holidays, the full moon, disfigurement or display of sexual organs, or the cleaning of a crime scene. (EBRT 2254-58, 3042-46) Indeed, in response to a defense objection that Griffis’s failure to cite specific cases revealed that there was no “established scientific opinion or body of work which is the basis of his opinion” (EBRT 1722, 2506), the trial court observed that it did not “know of any particular scientific field other than perhaps what he’s indicated that would allow such testimony.” (EBRT 1723, 2507)
In sum, Griffis’s opinion as to occult trappings was not based on data that would render his conclusions more reliable than one obtained by flipping a coin. He had once described his role as helping “brother police officers” who are under “a hell of a lot of pressure when I get
there.” (EBRT 1800, 2584) Rather than offering objective expert testimony based on valid statistical data, his role at petitioner’s trial was simply to offer whatever opinion would support the prosecution’s theory of the case. As was true of the rest of the evidence admitted against Echols, the occult opinion testimony was of minimal worth in proving petitioner’s guilt.
4. The Prosecution’s Reference To The Misskelley Statement
Prior to the Echols-Baldwin trial, prosecutor Davis had stated that the state needed Jesse Misskeley to testify against Echols and Baldwin “real bad.” 11 Misskelley was not called to testify, and any out-of-court statements he had made were plainly inadmissible against Echols and Baldwin. Because there was no evidence linking Misskelley to the charged crimes other than his out-of-court statements, no evidence concerning Misskelley was in anyway relevant or admissible at the Echols and Baldwin trial. The only impact that mentioning Misskelley during the Echols-Baldwin trial could have had on jurors would be to provoke those jurors to connect the defendants to the charged crimes based on what they had heard outside the courtroom regarding Misskelley: i.e., that he had confessed to, and been convicted of, the charged murders.
11 In the aforecited taped HBO interview (see footnote 1), prosecutor Davis told the victims’ families that the state needed testimony from Misskelley “real bad.” See Exhibit D.
On March 1, 1994, the second day testimony was taken, in response to a question that called for a yes or no answer, 12 West Memphis Police Department Detective Bryn Ridge stated on cross examination, “I didn’t take this stick into evidence until the statement of Jessie Misskelley, in which he said –.” (EBRT 923, 1703) Attorney Val Price entered an immediate objection and moved for a mistrial, which was immediately denied by the trial judge. In further discussion outside the presence of the jurors, Price argued, “The basis [for the mistrial] is the question that I asked the officer did not call for him blurting out the fact that Jessie Misskelley gave a confession. The whole purpose for our trial being severed from Mr. Misskelley’s trial in the first place, was the confession that Jessie Misskelley gave.” (EBRT 924, 1704)
The court reasoned, “He shouldn’t have volunteered that, but I certainly don’t see any basis for a mistrial.” (EBRT 925, 1705) After more objections by counsel, the court stated, “I suggest, gentlemen, that there isn’t a soul up on that jury or in this courtroom that doesn’t know Mr. Misskelley gave a statement. Now the contents of the statement certainly would be prejudicial. And the contents of the statement, this Court will not allow, and that was the reason for the severance in the first place.” (EBRT 930-31, 1710-11) Ultimately, the judge’s remedy was to give a cautionary instruction to the jury:
Ladies and gentlemen, you are instructed and told at this time that you are to disregard and not consider the last response made by Detective Ridge to a question from Mr. Price and you’re to – if you can remember it – you’re to strike it from your mind and not give it any consideration.
12 The question posed to Ridge was: “[Y]ou didn’t take that stick into evidence at the time y’all recovered the bodies.” (EBRT 922; 1702)
(EBRT 934, 1714)
The following day, the press reported Ridge’s reference to the Misskelley statement, stating that the police had “used Misskelley’s June 3 statement to pull together enough evidence to arrest the three teenagers in the deaths.” (Exhibit. Q, Arkansas Democrat-Gazette of March 2) It was also reported that the trial judge had suggested “there isn’t a soul up on that jury or in this courtroom that doesn’t know Mr. Misskelley gave a statement.” (Exhibit Q) The Jonesboro Sun reported that: “Under the hearsay law, the state is prevented from telling jurors about Misskelley’s June 3 confession to West Memphis police....” (Exhibit L).
The press also reported on March 2nd that negotiations by the prosecution to obtain Misskelley’s testimony were continuing, and that Phillip Wells had been appointed by the court “to meet with Misskelley to give him a ‘fresh perspective’ on what effect his testimony could have on his own case and that of Baldwin and Echols.” (Exhibit Q). Wells, who described himself to the press as a “court liaison,” had announced to the media that there was “no question the prosecution’s office will benefit” from Misskelley’s possible testimony.” (Id.).
5. The Alibi Evidence
Echols offered extensive evidence, including his own testimony, that he was never in Robin Hood woods on May 5, 1993, and thus could not have killed and did not murder Chris Byers, Michael Moore, and Stevie Branch.
Pam Hutchinson, petitioner’s mother, testified that on May 5, 1993, she was living at the Broadway Trailer Park in West Memphis with Joe Hutchinson, her husband and Damien’s father, her mother, her daughter Michelle, and Damien. (EBRT 1847, 2633) Pam awoke Damien around 10 A.M. because he had a doctor’s appointment around 10:30 or 11:00. After leaving the
doctor’s and dropping off a prescription, 13 Mrs. Hutchinson left Damien off at Lakeshore at about 1:00 p.m. at the home of his girl friend, Domini Teer. (EBRT 1852, 2638) She returned home and stayed there until about 4:00. She received a phone call from Damien and went with Joe and Michelle to pick him and Domini up at the laundromat on Missouri Street. (EBRT 1853, 2639)
They then dropped off Domini before going to the Marion Discount Pharmacy to pick up Damien’s prescription at about 4:00 or 4:30. (EBRT 1854-55, 2640-41) They then went home together and had dinner. (EBRT 1855, 2641) Around 7:00 p.m, the family--Pam, Joe, Michelle, and Damien-- went to see the Sanders family on Balfour street in West Memphis. (EBRT 1856, 2642) Only Jennifer, the Sanders’ daughter, was home, so they left a note. (EBRT 1857, 2643) Damien returned home for the entire evening and stayed on the phone. (EBRT 1858, 2644) Pam remembered that Damien and Domini had an argument before Damien went to bed at about 11:00 p.m. (EBRT 1859, 2645)
Michelle Echols likewise testified that on May 5th, her mother took her brother to the doctor. (EBRT 1915, 2701) Michelle stayed home until about 4:00 p.m., then went with her mother and father to get Damien and Domini from the laundromat. (EBRT 1916, 2701) They picked Domini and Damien up from the laundromat, took Domini home, and then went back home. (EBRT 1917, 2703)
They stayed home for a while and then went to Randy and Susan Sanders’ house. It took
13 Pharmacy records confirmed the prescription was dropped off on May 5th. (EBRT 1906, 2692).
them 10-15 minutes to get there. No one was at the Sanders house except for Jennifer. (EBRT 1918, 2704) They watched a bit of television there, including part of [Beverly Hills] 90210. They then returned home. When they got home, she used the phone and then her brother Damien was on the phone for quite a while. (EBRT 1919-20, 2705-06) When she woke up the next morning at 9 a.m., her brother was still there. (EBRT 1921, 2707)
Jennifer Sanders confirmed that Pam and Joe Hutchinson, Damien, and Michelle visited her home on the evening of May 5th (EBRT 2115-2116, 2902-03); her sister Stacy Sanders, who was visiting her cousin across the street, saw the Hutchinson family at the Sanders’ home on that night as well. (EBRT 2106-07, 2893-4). The Sanders girls recalled that their parents had been out at a casino the night of May 5th, which their father and an independent witness confirmed. (EBRT 2126-28, ,2133, 2913-15, 2920)
Petitioner testified he remembered going to the doctor’s office on May 5th because his ex-stepsister Carol Ashmore was there. (EBRT 1948, 2734) He did not really recall what else he did that day, but was probably around the laundromat at 4:00 to 4:30 when his mother picked him and Domini up. (EBRT 1949, 2735) He recalled going to the Sanders house when Jennifer was there alone. (EBRT 1950, 2736) He then went home and talked on the phone to Holly George, Jennifer Bearden, Domini Teer, and Heather Cliette. He and Domini had some kind of an argument. (EBRT 1952, 2738) He did not leave the house on May 5th. He did not kill any of the youngsters. He had nothing to do with their death, and had not even heard of them before he saw it on the news. He had never been to the Robin Hood Wood area. (EBRT 1953, 2739)
In rebuttal, the state did not call Jennifer Bearden, Domini Teer, Holly George, or Heather Cliette, or offer any other evidence refuting Echols’ testimony that he spoke to them on the
phone on the day and evening of May 5th. 14
I. THE JURY’S EXTRAJUDICIAL RECEIPT AND CONSIDERATION OF THE INADMISSIBLE AND FALSE MISSKELLEY STATEMENT IMPLICATING ECHOLS IN THE CHARGED OFFENSES VIOLATED DEFENDANT’S RIGHTS TO COUNSEL, CONFRONTATION, AND A FAIR TRIAL UNDER BOTH THE ARKANSAS AND UNITED STATES CONSTITUTIONS, REQUIRING THAT HIS CONVICTIONS BE VACATED
Jesse Misskelley’s statement to investigating officers on June 3, 1993, although properly admissible only against Misskelley himself, also implicated Echols and Baldwin in the commission of the charged murders. Under controlling case law of both the United States and Arkansas Supreme Courts, it would have been error of constitutional dimension to admit such evidence at a joint trial of the declarant (Misskelley) and the codefendants whom the statement implicated (Echols and Baldwin) unless the declarant were to take the stand and be subjected to
14 Bearden gave a statement to the police on September 10, 1993, later provided to the defense in discovery, confirming that she had spoken to Echols on the phone on the evening of May 5, 1993. (Exhibit R)
cross-examination by his codefendants, which was not to be the case here. Given the extraordinarily prejudicial nature of a cross-incriminating statement of a non-testifying defendant, the violation of the state and federal constitutional rights engendered by the injection into trial proceedings of evidence of this sort cannot be avoided by a trial court’s admonition to jurors to limit the statement’s admissibility to the declarant alone.
It was for these reasons that the trial court severed the trial of Echols and Baldwin from that of Misskelley, whom the state tried first and convicted almost entirely on the basis of his own statement. Despite the importance of insulating the Echols-Baldwin proceeding from any taint of the Misskelley statement, a reference to the statement was shoehorned into Echols’ trial through a prosecution witness’ unresponsive answer to a question on cross-examination. While striking the answer from the record and admonishing the jury to ignore it, the trial court justified denying a defense motion for a mistrial on the ground that the jury had heard mention only of the statement’s existence, not its prejudicial contents.
It is now clear that the trial of Echols and Baldwin was plagued by the very unfairness the severance of their case from Misskelley’s was designed to avoid. Having learned of its contents through media reports, jurors considered the Misskelley statement and relied on it to convict, as evidenced by the fact that a chart drawn up during the jury’s deliberations and copied into one juror’s notes listed the Misskelley statement as a ground upon which to rest the verdict of guilt as to both defendants. The jurors’ discussion of the Misskelley statement breached a direct judicial command.
The unfairness caused by the jury’s discussion and weighing of the Misskelley statement was much greater than would have resulted had the trial court erroneously admitted the out-of-
court statement over hearsay and confrontation clause objections. In that instance, the defense, on notice that the statement was before the jury, could have proceeded during its case to demonstrate that every line of the statement was false. Instead, having heard no evidence to the contrary, the jury was left under the delusion that Misskelley had provided the police with credible information establishing his own culpability and that of his codefendants. The devastating impact of the extrajudicially-received information dwarfed the persuasive force of the minimal evidence properly admitted into evidence. A new trial is plainly in order.
B. Relevant Facts
1. The Echols Jury Selection
Jury selection in the trial of Echols and Baldwin began on February 22, 1994 and was conducted at the same time the media was reporting the controversy over Misskelley’s potential status as a witness against Echols and Baldwin. The court began its voir dire of prospective jurors by acknowledging the threat to a fair trial posed by the enormous media attention the case had received: “This is one of those cases where there’s been a great deal of media attention to it, and it’s evident here today that there will a great deal more.” (Reporter’s Transcript of the Echols-Baldwin Voir Dire [hereafter “VDRT”] at 3) 15 The court observed that: “Oftentimes the slant or the spin that’s put on the news article will influence you, where had you been in court and heard it all, you might have had a totally different perspective of it. So the spin that’s sometimes put on news stories will affect your mind. So you should only allow your judgment to
15 Each cited page of the voir dire transcript at the Echols-Baldwin trial is being submitted to the Court in Exhibit C. Petitioner is moving to have that exhibit filed under seal to protect the jurors’ privacy.
be affected by what you hear in the courtroom.” (VDRT 3-4) 16
Later during voir dire, the prosecutor made the following remarks to prospective jurors about the press environment surrounding the trial: “You’ve seen all the cameras out here, and you know this case is described as a high profile or media attention. You’ve seen all the camera people. I don’t know if you’ve seen how they rush like little packs of wolves out there.” “Because of the high interest in the area, the state, the nation, we felt like it would be appropriate to have cameras in the courtroom to record the proceedings rather than have ’em outside the courtroom and hundreds of ‘em just hovering around everybody that goes in and out. We felt like it would be simpler just to let ‘em have access and you’d have less of that shark feeding atmosphere outside the courthouse.” (VDRT 219-220)
16 The court later stated: “I’m sure everybody has read or heard or seen something about it. You would be an unusual person if you hadn’t.” (VDRT 455)
On the morning of February 23rd, the court placed eighteen prospective jurors in the jury box and began substantive questioning on voir dire. (VDRT 8-9) Immediately it became evident that the pervasive publicity the case had received in Jonesboro would pose a threat to the defendants’ right to be judged only on the basis of the evidence received in court. All jurors indicated that they were aware of at least “some information” about the case. (VDRT 17) 17 The jury selection process that followed demonstrated that media exposure had created a broad and deep prejudgement among prospective jurors that the defendants were guilty. While numerous jurors were excused for cause, their responses to questions often exposed those remaining to prejudicial information, and some of those selected to serve had expressed a belief in the defendants’ guilt.
In response to the court’s threshold question as to whether prospective jurors could award the defendants the presumption of innocence, one juror quickly volunteered that he had “a very strong opinion formed.” (VDRT 16) In the presence of a courtroom filled with venire persons, including those later selected to serve on the case, prospective juror Sharp announced that he remembered that “the detective in West Memphis made the news--made the announcement to the press” and “the confidence that he made his statement with pretty well has been rooted in my memory” (VDRT 18) Sharp assured the court that he could not put that information aside and
17 The following day, the court stated: “This case, of course, has been the subject of endless attention, and it is probably going to continue for many weeks after this trial is concluded. I know all of you indicated yesterday that you had at least heard about the case, and I would be amazed if you had not.” (VDRT 269-270)
decide the case on the evidence introduced in court, and was therefore excused. (VDRT 17-18) Prospective Juror Harthorn was excused at the same time for having “strong convictions” that could not be set aside. (VDRT 18)
The court then began individualized questioning in chambers of small groups of three or four prospective jurors. Juror One, 18 who was in the first group, stated that she had heard “an awful lot” about the case through the Jonesboro Sun , the Arkansas Democrat, and television 7 and 8, reading articles on a daily basis. (VDRT 35, 49-50) Juror One listened as prospective juror Tate was excused because Tate had an opinion of the defendants’ guilt because what she had read that “is gonna stick in my mind.” (VDRT 52) Juror One then stated that “anyone under these circumstances would form an opinion,” and that she had formed an opinion the defendants were guilty, but “I don’t feel like my opinion is totally fixed. I feel like I can listen to the evidence” and set aside her previously formed opinion of guilt (VDRT 52)
During voir dire of the next two small groups of venire persons, none of whom served on the jury, those questioned made statements to the effect that: (1) all the evidence they had heard of was “stacked against” Baldwin; (2) that part of what they had heard on television and read was “in relationship to another trial of another defendant in this matter” (VDRT 133); (3) that “if you just watch the news or read the news and watch the television, they to me portray people as guilty” (VDRT 160); (4) that one prospective juror had “feelings [that] evidently they’re guilty.
18 In an effort to preserve privacy, jurors are identified in this memorandum by the numbers assigned them by the trial court. Affidavits containing their names are being filed under seal.
All–everything you read in the newspapers and, you know” (VDRT 162); (5) that another prospective juror had an unchangeable opinion because “I believe I have seen too much of it on television and read it in the paper to do that because I have seen it all and read it all” (VDRT 175); and (6) yet another juror stated that the media tended to make the defendants look guilty and that she could not judge the defendants separately because of what she had read linking them together. (VDRT 189, 195, 200-201)
On the following day, February 24th, one prospective juror, questioned in private on the subject, stated that she had heard from her pastor that Echols had changed his name to Damien because that name means Satan. (VDRT 234-236) The juror maintained that she believed she could afford Echols the presumption of innocence, but nothing had changed her opinion that he was evil. (VDRT 237) She was excused.
Juror Two stated that she had received information on the case from “good old television and newspaper,” later stating “they do publicize it a great deal. I read the headlines. I won’t deny it. I do read the headlines, and I listen to the news....”.(VDRT 223, 245) Juror Three got her information about the case from “people in the office mainly;” she also read newspaper headlines. (VDRT 292)
Juror Four, who would serve as the jury foreman, stated he read three newspapers; that he knew the Misskelley trial had been going on; and that ” “I think you probably should’ve had this trial–you moved it to here. You probably should have moved it to another state if you wanted to get–I mean this is still too close.” (VDRT 292) Juror Four’s opinion was formulated based on “just what you hear in the paper. I think the paper assumes they’re guilty.” (VDRT 292) Juror Four then asked of the prosecutor, who had described the atmosphere as one of a media circus,
whether the publicity would get worse; the prosecutor replied: “I don’t know exactly how it can get worse, but it possibly could.” (VDRT 293)
Juror Four was aware that photographers had taken pictures of jurors at Misskelley’s trial in Corning “and they splashed ‘em in this paper.” (VDRT 299) In a critical exchange with defense counsel, Juror Four acknowledged that he knew of the verdict in the Misskelley case, but stated “I don’t know anything–I couldn’t tell you anything about Misskelley except that I understand that he was convicted of something, and I couldn’t even tell you of what...” (VDRT 307) He then stated of his reaction to the Misskelley verdict: “My feeling was that if they were tried on the ten o’clock news and guilty, then that’s a statement of it that was confirmed.” He then stated that the earlier trial did not give him “any feelings about the trial that was next.” (VDRT 308) Juror Four then asked whether the name Damien was itself Satanic. (VDRT 316) Juror Four did not disclose that he had any knowledge of the existence or contents of the Misskelley statement.
Juror Five acknowledged that she received the Jonesboro Sun every day and had read “all about” the case regularly until she received her jury summons at the end of the Misskelley trial. Her feeling was that she was leaning to believing that the defendants had probably committed the crime, and nothing had yet changed that feeling. (VDRT 337-339) What had led her to believe the defendants were guilty was “a law enforcement officer who said that he felt like it was a pretty well open and shut case, you know, that they had enough evidence”; nonetheless, she believed that she could begin the trial believing the defendants were innocent. (VDRT 337-339)
Jurors Six, Seven, and Eight were voir dired with Melissa Bruno, who was not chosen as
a juror. Juror Eight got his information on the case from the Jonesboro Sun and from people around him. (VDRT 357, 366) Juror Six received such information from newspapers, television and gossip. (VDRT 358) In the presence of the three who would later serve as jurors, Bruno, who was not selected as a juror, stated that people never talked that defendants are innocent; “everyone just talked like they were guilty” (VDRT 368) Juror Six’s friends talked about the case and “of course, they felt like they were guilty,” although Juror Six thought that the defendants were innocent until proven guilty. (VDRT 369) Juror Six did not state that she had been aware that Miskelley had confessed to committing the same offenses for which Echols and Baldwin were being tried.
Juror Seven stated that she wasn’t sure whether she could keep the defendants separated. (VDRT 380) When asked where she heard about the case, Juror Seven replied in part: “I don’t actually read the papers and watch the news that often but I did hear, you know, from the beginning. I haven’t kept up with it that closely.” (VDRT 358) She later added: “I haven’t read the paper very much. I don’t really have time. Where I work we don’t have time to talk about anything.” (VDRT 367) When asked about her “general feeling” about who committed this crime, Juror Seven replied “I don’t have any feeling about who committed it.” (VDRT 367) Juror Seven did not state that she was aware that Jesse Misskelley had confessed to, and had been convicted of, the same charges Echols and Baldwin were facing.
Juror Nine was questioned in the presence of Ms. Childers and Ron Bennett both of whom, before being excused, stated that they had read in the newspaper that witchcraft was involved in the case. (VDRT 411-412) Bennett stated he had formed an opinion from the media that “they did it.” (VDRT 413) Juror Nine himself acknowledged that his biological father was a
police commissioner in Helena, Arkansas, but further stated that he had not talked to his father about this case. (VDRT 436)
The final three jurors were selected on February 25th. Juror Eleven had heard the original television accounts about the case, but had heard not much more until very recently when the “last trial” occurred. (VDRT 510) Juror Ten stated that it “seems the general opinion is that everybody thinks they’re guilty,” although he believed everyone was innocent until proven guilty.” (VDRT 510) The final juror, Juror Twelve, stated that she had gotten her news concerning the case from newspaper and television accounts. (VDRT 528)
Later, at the close of the evidence and just prior to instructions, the trial court would poll the jurors on the issue of whether they have “read the newspaper, watched the TV, or listened to the radio, or through any other source, have gained any outside information from those sources or any other about this case?” The jurors answered “no.” The court then asked whether the jury had followed the admonishment of the court as “best as humanly possible,” and was told “yes.” (EBRT 2478, 3267)
2. Recently Obtained Information on The Extrajudicial Information Received by The Jury
Juror Four was elected the foreman of the Echols jury. On October 8, 2004, during an interview in Jonesboro with two attorneys representing Echols, 19 he stated that around the time he was called as a juror, he was aware that Jessie Misskelley had been brought to the Craighead
19 The summary of Juror Four’s admission is based on Exhibits S and T, the affidavits of attorneys Theresa Gibbons and Deborah Sallings. All affidavits mentioning jurors names are, like the voir dire transcript, being filed under seal.
County Courthouse and had been offered a sentence reduction to 40 years if he testified against Baldwin and Echols. Prior to trial, Juror Four had heard that Misskelley made a confession to authorities implicating Baldwin and Echols, stating that the three victims had been hogtied, that they were castrated, and that Echols and Baldwin had made Misskelley chase the victims down and catch them. Misskelley continued to be a factor in Juror Four’s mind throughout the trial.
Juror Four was the juror who suggested using T charts on large sheets of paper to organize and analyze the evidence during deliberations, which is a common tool used in decision-making. He personally wrote down the issues in the appropriate column.
In Juror Four’s opinion, the jury could not ignore the Misskelley confession despite the court’s instructions to do so. The Misskelley confession was published in the newspapers. It played a “large part” in his decision of the case. It was a known event.
Juror Four has stated that the other evidence against Echols and Baldwin was scanty. Unlike Manson or a thousand other cases, without the Misskelley evidence, it was extremely circumstantial.
Juror Four had been contacted numerous times since the trial by reporters, news people, lawyers and various groups who have asked him to comment on the trial. Juror Four had never granted an interview prior to being contacted on Friday, October 8, 2004, by attorneys for Echols.
On June 7, 2004, Juror Seven signed a notarized affidavit describing aspects of her participation in petitioner’s trial. (Exhibit U) She stated under oath that before serving on the jury, she knew about the earlier trial of Jessie Misskelley in Corning in which Misskelley had been found guilty; she believed she also knew that he had confessed to the crime.
Juror Seven kept a set of “good notes” both during the trial and deliberations. She
provided a copy of those notes, which had not been altered to investigator Tom Quinn, and they are attached to her affidavit.
According to Juror Seven, Juror Four put information down on some large sheets of paper in the jury room. Juror Seven’s affidavit states: “When we discussed the case, we discussed each of the two defendants. We placed items on the pro or con side of the large sheets that were used in the jury room.” Juror Seven copied into her notes a chart that duplicated the items written on the large sheets of paper the jurors used to list evidence during deliberations. The penultimate item on the “con’ side as to Echols reads as follows: “Jessie Misskelley Test. Led to Arrest.” As to Baldwin, the third item from the bottom of the “con” list reads: “J. Misk. State.” Juror Seven’s affidavit states: “That was my shorthand for “Jessie Misskelley Statement.” Juror Seven’s affidavit further states: “As far as I recall we either heard testimony about, or discussed during jury deliberations, all of the subjects and matters that are reflected in my notes.”
In her affidavit of June 8, 2004 (Exhibit V), Juror Six stated, “I made it clear prior to being seated as a juror that I knew about the Jessie Misskelley case through the newspaper and having seen stories about him and his case on television.” She continued, “I was aware that Misskelley had confessed to the police.”
Juror Six further stated: “I recall that many days that testimony was presented during the trial, we jurors would talk to one another in the jury room using our notes to help us understand what was going on. We all read from our notes to each other at the end of the day, or in the mornings. We did this in the jury room where we gathered during breaks in the trial, and whenever we were excluded from the courtroom due to issues discussed outside of our hearing.”
The affidavit of juror Six continues:
My recollection of this process of daily reviewing our notes with one another is that it permitted us to assess whether we had missed something, or did not write down a matter of significance during the course of the testimony. I recall reading to other jurors from my notes, and it was clear to me that certain other jurors had missed matters that I had noted. I found that this process helped me to better understand the evidence at trial..
As a result of this daily process of observing witnesses and reviewing notes and daily discussions with my fellow jurors, and based on my view of the evidence as I was hearing it in court, it was clear to me even before the deliberations that the defendants were guilty.
Juror Six further stated that: “during the course of the jury deliberations, I believe that Juror Four, the foreman, wrote notes on large pieces of paper stating the pros and cons under the name of each defendant, and under the names of each witness that we considered to be a key witness. We did this by going over our notes, and discussing our views about the case.”
Juror Nine stated in his interview with investigator Tom Quinn, conducted January 8, 2004, that when after being selected as a juror he called his father, a police commissioner, Juror Nine learned that his father had heard about the case, which had received state-wide, maybe tri-state wide, media attention. (Exhibit W) When Juror Nine told his father that he was going to be a juror, his father “started spitting out the details.”
Juror Nine stated that his jury experience “spooked the hell” out of him, and that he “never felt so scared.” He couldn’t sleep at night and “felt he could hear noises outside and would look out the window.” His fear was the result of the talk of those kids being part of a cult, and looking into the audience and seeing the victim’s families and the families of the accused. The accused had their families there as well as friends, some dressed in black with straight black
hair and cult symbols. Juror 9 didn’t know who was who, but he was concerned that if they voted for guilt, some of those people who were free on the street might seek revenge and kill him. Although he was never personally threatened, he felt that something could happen to him. “[S]ince the kids on trial were not afraid to kill, [Juror Nine] thought, maybe they had friends or were part of a cult that was capable of killing.” Later in the interview, Juror Nine said that he remembered seeing a girl in the gallery with black lipstick, black hair, the gothic look. When he looked into the gallery, where Echols’ people were sitting, he saw those kinds of people and thought, ‘They’re going to kill me.’”
Juror Nine’s father was afraid for his son’s safety. The father and a friend came to Jonesboro at the end of the trial and sneaked Juror Nine out the back of the courthouse. Although Juror Nine did not remember a juror getting a threat during the trial, he commented, “Maybe there was and maybe that’s why my father came up.” The father’s friend had a shotgun concealed under a newspaper, and they made Juror Nine lie on the floor in the backseat of a car and whisked him away.
The written lists of “pros” and “cons” as to Echols and Baldwin drawn up by the jury during deliberations have been retained in evidence lockers along with the other exhibits in the case. Photographs of those written lists are submitted as Exhibit X. 20 The items on those original lists appear to match the items listed in Juror Seven’s notes, except that the written references to the Misskelley statement on both the Echols and Baldwin list have been blacked out by someone.
20 The authentication of these photos can be found in Exhibit D, the Affidavit of Dennis P. Riordan.
C. Both the United States and Arkansas Constitutions Prohibit Jurors From Considering in Their Deliberations Information Received From Extrajudicial Sources Such as Newspaper or Television Reports
1. The Federal Constitutional Principle
In a trio of opinions from the mid-sixties, the United States Supreme Court defined the boundaries of the federal due process right of a criminal defendant to be tried before a jury that will judge his or her guilt or innocence solely on the basis of the evidence properly admitted in court rather than information obtained from extrajudicial sources.
In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), following his arrest for murder and robbery of a bank employee, the defendant confessed to the crimes during a filmed interview that was broadcast on local television three times. After a motion for a change of venue based on prejudicial publicity was denied, the defendant was tried and convicted before a jury containing three members who had seen the interview. The Supreme Court vacated the conviction, finding that the televised “spectacle” was “in a very real sense Rideau’s trial. . . . Any subsequent court proceeding in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Id., 373 U.S. at 726, 83 S.Ct. at 1419. The Court ruled that “due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised interview.” Id., 373 U.S. at 727, 83 S.Ct. at 1420. The Court reached that conclusion despite the fact that the three jurors who had seen the confession testified during voir dire that they “could lay aside any opinion, give the defendant the
presumption of innocence as provided by law, base their decision solely upon the evidence, and apply the law as given by the court.” Id., 373 U.S. at 732, 83 S.Ct. at 1422 (Clark, J., dissenting).
In Turner v. Louisiana, 379 U. S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), two deputy sheriffs who had been the principal witnesses for the prosecution served as the bailiffs in charge of the jury during the taking of evidence and the jury’s deliberations. The Louisiana Supreme Court, while disapproving the practice, refused to reverse the defendant’s murder conviction and sentence of death, finding that no prejudice had been demonstrated (id., 379 U.S. at 470, 85 S.Ct. at 548-549); while the bailiff-witnesses had talked with the jurors, there had been “no showing that either deputy had talked with any member of the jury about the case itself.” Id., 379 U.S. at 469, 85 S.Ct. at 548.
The United States Supreme Court noted that:
In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury.
Id., 379 U.S. at 472-473, 85 S.Ct. at 550.
Reversing the judgment, the eight-judge majority held that “it would be blinking reality not to recognize the extreme prejudice inherent in this continued association throughout the trial between the jurors and these two key witnesses for the prosecution.” Id., 379 U.S. at 473, 85 S.Ct. at 550.
[T]he relationship was one which could not but foster the jurors’ confidence in those who were their official guardians during the entire period of the trial. And Turner’s fate depended upon how
much confidence the jury placed in these two witnesses.
One year later, the Supreme Court decided Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), in which the bailiff in charge of a deliberating jury told one juror that the defendant was a “wicked fellow” who was guilty; and told another juror that any improper guilty verdict would be corrected by the Supreme Court. The Parker Court analyzed the constitutional implications of this conduct in the following terms:
We believe that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that “the accused shall enjoy the right to a . . . trial, by an impartial jury . . . [and] be confronted with the witnesses against him . . . .” As we said in Turner v. State of Louisiana, 379 U.S. 466, 472-473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965), “the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”
Id., 385 U.S. at 364, 87 S.Ct. at 470.
In finding the bailiff’s misconduct sufficient to reverse the conviction, the Supreme Court found that “his expressions were ‘private talk,’ tending to reach the jury by ‘outside influence.’” Id., citing Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed.879 (1907). The Court noted it previously had followed “the ‘undeviating rule,’ Sheppard v. Maxwell, 384 US 333, 351, 86 S Ct 1507, 1516, 16 L.Ed.2d 600 (1966), that the rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial.” Id., 385 U.S. at 364-365, 87 S.Ct. at 470.
Finally, the Supreme Court rejected the argument that because ten jurors had testified that
they had not heard the bailiff’s comments, and because Oregon law only required ten affirmative votes to convict, no prejudice had been shown. The Court found that the unauthorized conduct of the bailiff “involved such a probability that prejudice will result that it is to be deemed inherently lacking in due process.” Id., 385 U.S. at 365, 87 S.Ct. at 471, quoting Estes v. Texas, 381 US 532, 542-543, 85 S Ct 1628, 1633, 14 L.Ed.2d 543 (1965). Furthermore, the defendant “was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.” Id., 385 U.S. at 366, 87 S.Ct. at 471.
2. The Arkansas Case Law
Long before Rideau, Turner, and Parker recognized the federal due process dimension of the improper receipt of extrajudicial information by jurors, this Supreme Court had held such conduct violative of a defendant’s right to a fair trial. In Capps v. State, 109 Ark. 193, 159 S.W. 193 (1913), for example, the court reversed a first-degree murder case (and its accompanying death penalty) where jurors read newspaper accounts that contained information not adduced at trial.
It is always improper for a juror to discuss a cause, which he is trying as a juror, or to receive any information about it except in open court and in the manner provided by the law. Otherwise some juror might be subjected to some influence which would control his judgment, something might be communicated to him which would be susceptible of some simple explanation, which could not be made because of the ignorance of the influence to which the juror had been subjected.
Id. at 195. With that focus, the court ruled:
We believe these [newspaper articles read by jurors] were prejudicial, because they were not a mere narration of the evidence connected with the trial which had occurred within the view of the jury, and that their necessary effect was to convey to the jury the
information that public sentiment had crystalized into the conviction that appellant was guilty of the horrible crime of which he was charged; that his children had stood the ordeal of a searching cross-examination, and yet remained firm because, as intimated by the papers, their story was true. These were improper influences, and we cannot know what effect they may have had upon the minds of the jury, and no attempt was made to show that the jury was not influenced thereby, and we, therefore, reverse this judgment, and remand the cause for a new trial.
Id. at 196; see also Bodnar v. State, 176 Ark. 1049, 5 S.W.2d 293 (1928) (reversing conviction where jurors were overheard discussing information not received at trial – that people had been seen drunk and fighting at defendant’s house in case charging her with selling whiskey – and the “trend” of the overheard conversation indicated it influenced jurors’ decisionmaking); Forehand v. State, 51 Ark. 553, 11 S.W. 766 (1889)(per curiam)(reversing murder conviction where the “jury’s misconduct in taking the deceased’s pistol and cartridges to the jury-room, and there experimenting with them, apparently for the purpose of testing the truth of the defendant’s statement [that it was self-defense], was prejudicial to him. It was evidence taken by the jury out of the court, in the defendant’s absence, which is prohibited by the statute, and contrary to the idea of fair and orderly proceedings.”)
Much more recently, in Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992), this Court reversed the defendant’s conviction for the murder of his wife as tainted by possibly prejudicial information which came before the jury improperly. Although a number of proffered exhibits had been ordered suppressed at a pretrial suppression hearing, through inadvertence these exhibits were intermingled with the admitted exhibits and sent to the jury. The trial court denied a motion for a new trial on the ground that “the time of death was the sole issue of fact presented by the evidence and since the extraneous materials were not relevant to that issue, they
could not have affected the jury’s deliberation.” Id., 833 S.W.2d at 360.
This Court reversed with these words:
Having reflected on the matter, and for reasons to be explained, we conclude that where no motive was educed, no direct proof of guilt established and such circumstantial proof of guilt as did exist was in sharp dispute, a verdict tainted by the introduction of a mass of materials into the jury room which should not have been there must be set aside. Given the circumstances in their entirety, we are persuaded that a new trial is preferable to a trial encumbered by doubt and should have been ordered.
* * *
The suggestion that some hostility existed between the Larimores on the night preceding the murder, of the possible use of cocaine by Larimore and his wife’s objections, and of his refusal to talk to the police by invoking his rights to counsel and to remain silent could hardly have failed to impact on the jury. While it is true, as the trial court observed, that these factors did not bear directly on the question of when the homicide occurred, they could well have influenced the jury to decide inversely that appellant was guilty and, therefore, the evidence that the homicide occurred before Larimore left home was more persuasive than the opposing proof.
Id., 833 S.W.2d at 360-361.
As was true of the United States Supreme Court in Parker v. Gladden, the Larimore court applied the principle that “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Id., 833 S.W.2d at 361, quoting Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed.2d 879 (1907)(Holmes, J.). The Court also noted its reliance on the trial court’s factual finding that the jurors had, in fact, reviewed the materials at issue. Id.
D. Statements of Jurors as to Whether They Relied on Information Not Received in Evidence to Convict Are Admissible
The admissibility of evidence proffered to prove that jurors improperly relied on information received outside the judicial process to convict is governed in Arkansas by an evidentiary provision substantively identical to that controlling the same issue in the federal courts. Compare Federal Rules of Evidence Rule 606(b); Arkansas Rule of Evidence 606(b) 21.
Arkansas Rule of Evidence 606(b) “establishes an extraneous information exception which allows jurors to testify that one or more members of the jury brought to a trial specific
21 Arkansas Rule of Evidence 606(b), adopted in 1975, reads:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
personal knowledge about the parties or controversy or acquired such knowledge from sources outside the courtroom during the trial or deliberations.” Witherspoon v. State, 322 Ark. 376, 382, 909 S.W.2d 314, 317-18 (1995). While the rule bars presenting evidence of the mental state of jurors in order to argue that the jury improperly considered the evidence introduced into the record or misapplied the instructions given by the trial judge (Miles v. State, 350 Ark. 243, 251-252, 85 S.W.3d 907, 912-913 (2002)), it is clear that “[t]o show that extraneous materials were brought to the jurors’ attention, the trial judge may properly consider the content of conversations that took place in the jury room.” Sunrise Enterprises, Inc. v. Mid-South Road Builders, Inc., 337 Ark. 6, 11, 987 S.W.2d 674, 676-677 (1999)(citation omitted). See also State v. Cherry, 341 Ark. 924, 935, 20 S.W.3d 354, 361 (2000) (Imber, J., dissenting)(Rule 606(b) permits post-verdict inquiry into “(1) whether any improper outside influence has been brought to bear upon the jurors or (2) whether any extraneous prejudicial information has been improperly brought to the jury’s attention”) (citation omitted).
“A juror may testify concerning . . . whether extraneous prejudicial information was improperly brought to the juror’s attention. See Fed.R.Evid. 606(b).” Rushen v. Spain, 464 U.S. 114, 121 n.5, 104 S.Ct. 453, 457 n.5, 78 L.Ed.2d 267 (1983). In United States v. Brown, 108 F.3d 863 (8th Cir. 1997), the Eighth Circuit affirmed the district court’s grant of a new trial based on juror exposure to prejudicial extrinsic information. In Brown, after the district court granted motions for judgment of acquittal on all counts for several codefendants, the trial judge individually examined the jurors to determine whether any of them saw the codefendants celebrating in the hallway and whether the jurors were exposed to subsequent news stories discussing the acquittals and the entry of a guilty plea by the corporate codefendant and the fine
imposed on it. Id. at 865.
Several of the jurors were aware of the acquittals and several saw the celebrations, but none were aware of the corporation’s guilty plea or the imposed fine. Id. Defendant, instead of moving for a mistrial, opted for a limiting instruction. After the verdicts were returned, the district court again individually voir dired the jury. Id. at 866. Two of them stated that during deliberations the jury considered the corporation’s guilty plea. Id. The court then granted defendant’s motion for a new trial.
In considering the admissibility of the jurors’ post-verdict statements that they had considered the corporation’s guilty plea while determining the defendant’s guilt, the Eighth Circuit noted:
[W]e do not believe that Rule 606(b) prohibits the consideration of the evidence that the jury continued to consider Caremark’s plea and payment of a fine. Although Rule 606(b) generally prevents a juror from testifying “as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind,” the rule does allow jurors to “testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Fed.R.Evid. 606(b). We believe that under Rule 606(b) the district court properly considered the testimony of the jurors to the extent that their testimony revealed that the extrinsic information continued to be considered by the jury.
Id. at 867.
E. The Jury’s Consideration of the Misskelley Statement as a Factor Favoring Conviction of Echols and Baldwin Deprived Echols of His Constitutional Right to a Fair Trial Under
Federal and State Law
The evidence now before this Court establishes that the jury considered the unadmitted and inadmissible Misskelley confession during their deliberations that led to the conviction of Echols and Baldwin. The declarations of Jurors Six and Seven and the statements of Juror Four, the foreman, establish that the jury compiled a “pro” and “con” list of items favoring conviction or acquittal; Juror Seven’s notes establish that the Misskelley statement was listed as a “con,” or reason to convict, as to both Echols and Baldwin. Those items were placed on the list by Juror Four, the jury foreman.
The contents of the Misskelley statement were never placed in evidence; the one reference to the statement by a witness had been stricken from evidence, with the jury being admonished to disregard it. There was no basis in the record upon which the jury could have properly considered the Misskelley statement to be a reason either for acquitting or convicting Echols. In considering the Misskelley statement and listing it as a reason to convict, jurors obviously relied on the widely disseminated press reports to the effect that Misskelley’s statement implicated Echols and Baldwin in the charged offenses.
Despite being asked on voir dire what they had read or heard about the killings of the three victims, no juror revealed that they were aware of the fact that Misskelley had given a statement or of the contents of that statement. It is now clear, however, that at least three jurors--Four, Six, and Seven-- knew of Misskelley’s confession, and that Juror Four, the foreman, was thoroughly familiar with many of its details, including the fact that Misskelley had accused Echols and Baldwin of killing the youngsters. There can be no doubt that the Echols jury, in direct violation
of the trial court’s order, considered the unadmitted and inadmissible Misskelley statement during their deliberations, thereby violating Echols’ rights to cross-examination, confrontation, due process of law, and the assistance of counsel under both the United States and Arkansas Constitutions.
F. The Jury’s Impermissible Consideration of the Misskelley Statement Was Plainly Prejudicial
The United States Supreme Court has stated that:
In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.
Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954) (citations omitted; emphasis added).
In Osborne v. United States, 351 F.2d 111 (8th Cir. 1965), the Eighth Circuit reversed because a transcript of grand jury testimony was erroneously sent to the jury with the exhibits. The court noted that, although “[t]here is no evidence one way or the other with respect to the use of Exhibit D-47 by the jury . . . , it was the one [exhibit] most likely to arouse the curiosity of the jury and to attract their attention.” Id. at 118. The court considered the strength of the government’s case and held that, although it was substantial, it was not substantial enough to outweigh the possible prejudice. Id. “In addition to implicating the defendant in the robbery here involved, Exhibit D-47 contains considerable testimony of alleged statements of defendant which
blacken his character and show him to be guilty of other crimes.” Id. at 117. See also Sunderland v. United States, 19 F.2d 202, 211-212 (8th Cir. 1927)(reversing conviction by relying on “rebuttable presumption . . . communications by the juror with outside persons were prejudicial to the moving party,” citing Chambers v. United States, 237 F. 513, 521 (8th Cir. 1916), and adding that “[t]he least that can be said about this misconduct of one of the jurors is that it raises a grave doubt whether the constitutional right of plaintiffs in error to a trial by an impartial jury was not infringed”); compare United States v. Rodriguez, 367 F.3d 1019, 1029 (8th Cir. 2004) (Remmer “presumption of prejudice does not apply unless the extrinsic contact relates to factual evidence not developed at trial,” citing United States v. Hall, 85 F.3d 367, 371 (8th Cir.1996)).
The Arkansas courts have asked the threshold question under Remmer of whether information received by a juror from an extrajudicial source concerned the matter pending before the court; if so, reversal has been ordered unless there is no reasonable possibility it affected the jury’s verdict. In Duncan v. State, 260 Ark. 491, 541 S.W.2d 926 (1976), the court reversed a conviction for first-degree rape for which the defendant had been given a forty-year sentence. A juror admitted to reading a newspaper report on the second day of trial, despite the trial court’s admonition not to do so. Id., 260 Ark. at 493, 541 S.W.2d at 927. Upon questioning by the trial court, the juror stated that he could put the article completely out of his mind and not be influenced by it. The court then denied defendant’s motion for a mistrial. Id.
In reversing, and distinguishing an earlier decision, the court relied on the fact that the article referenced information not disclosed to the jury, namely, that the defendant had a three-page-long rap sheet. Id. The court could not say with certainty that there was no possibility of prejudice, dispatching the juror’s response to the court’s question by saying:
Hardly any juror, after having admittedly disobeyed the judge’s instructions not to read press accounts of the trial, would confess even a possibility of being influenced by the consequences of his own misconduct. He might very well think that such an admission on his part would result in his being charged with contempt of court.
Id., 260 Ark. at 493-494, 541 S.W.2d at 927.
In Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985), this Supreme Court held that: “Once a juror has contaminated the jury’s deliberations with extrinsic evidence, a new trial will be warranted if there is a reasonable possibility of resulting prejudice. To require the losing party to prove actual prejudice would place an impossible burden upon him.” Id., 287 Ark. at 320, 698 S.W.2d at 797 (citation omitted). Consistent with Parker v. Gladden, the court also noted that a litigant “is entitled to a trial by twelve, not ten, impartial and unprejudiced jurors who base their judgment on the evidence presented at trial.” Id., 287 Ark. at 321, 698 S.W.2d at 798.
In this case, it hardly matters whether this Court begins by applying a presumption of prejudice because the information received extrajudicially by jurors and discussed by them during deliberations – a statement by one defendant implicating his codefendants in the charged crime – is so uniquely prejudicial that it can never be deemed harmless. It is precisely because the introduction of Misskelley’s statement at a joint trial would have been incurably prejudicial to Echols that the trial of the two defendants were severed in the first place. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the high court held that use of a codefendant’s confession inculpating the defendant violates the non-confessing defendant’s Sixth Amendment right of confrontation. In Bruton, the trial court had instructed the jury that the codefendant’s confession “was inadmissible hearsay against [Bruton] and therefore had to be
disregarded in determining [Bruton’s] guilt or innocence.” Id., 391 U.S. at 125, 88 S.Ct. at 1622. Nonetheless, the denial of the right to confront the witness was so serious that the Court held that a limiting instruction was not “an adequate substitute for petitioner’s constitutional right of cross-examination.” Id., 391 U.S. at 137, 88 S.Ct. at 1628. The Court held
there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side by side with the defendant, are deliberately spread before the jury in a joint trial.
Id., 391 U.S. at 135 136, 88 S.Ct. at 1627-1628.
Given the nature and content of the Misskelley statement, its consideration by the jury, like the bailiff’s comments in Parker v. Gladden, “involved such a probability that prejudice will result that it is to be deemed inherently lacking in due process” (Parker, 385 U.S. at 365, 87 S.Ct. at 471) and cannot possibly be considered harmless.
Furthermore, the Misskelley statement was placed on the jury’s “con” list despite the trial court’s express admonition that jurors were to ignore Detective Ridge’s unwarranted reference to it during his cross-examination by defense counsel. Arkansas law considers the jury’s breach of such a judicial admonition a factor strongly favoring a finding of prejudice. See, e.g., Diemer v. Dischler, 313 Ark. 154, 162, 852 S.W.2d 793, 797 (1993)(citing factors deemed “determinative” in decisions on new trial motions alleging jurors made unauthorized visit to accident scene, the first of which was whether trial court had instructed jury not to visit the scene).
No rational argument can be made that the evidence against Echols was so overwhelming
that the jury’s grossly prejudicial consideration of the Misskelley statement could not have influenced their guilty verdict. Considered individually or collectively, the evidence components of the case against Echols were shockingly weak. That the ballpark girls alone heard Echols publicly and seriously confess to the charged crimes at a softball game strains credulity; neither the knife, fiber, the Hollingsworth identification testimony, nor petitioner’s statement to Ridge logically or directly connected Echols to the crime; and the Griffis “expert” testimony bordered on the fraudulent. On the other hand, the defendant offered substantial and essentially unrebutted testimony that on the day of the crimes he was doing what an unemployed but innocent teenager would be doing: being driven by his mother to the doctor, visiting with his girlfriend, having dinner with his family, and talking on the telephone. Rather than being strong, the case against Echols may be among the flimsiest ever to result in a sentence of death in this state or nation.
Of great importance, the trial judge himself having stated that the jury’s exposure to the contents of the Misskelley statement would certainly have been prejudicial (EBRT 930-31, 1710-11), the state cannot reasonably argue to the contrary. That is all the more true when what the jury had heard about the Misskelley confession was terribly inaccurate. One of the reasons why the Misskelley confession was almost surely false was Misskelley’s ignorance of the most obvious fact about the victims’ condition: they had been hog-tied. Yet Juror Four heard and believed that Misskelley had included a description of the hog-tying in his statement, rendering the statement credible. This case constitutes a perfect example of how a wrongful conviction can result from a failure to subject unreliable evidence to the constitutionally required process of confrontation and cross-examination.
Finally, as was true in Parker v. Gladden, one juror here, the jury foreman, “testified that
[he] was prejudiced by the statements.” Parker, 385 US at 365, 87 S.Ct. at 470. The foreman has admitted that the judge told the jurors that they could not consider the Misskelley matter at all, but stated with emphasis: “How could you not?” In statements admissible under the Rule 606(b) exception for evidence bearing on “whether extraneous information was improperly brought to the jury’s attention,” Juror Four said : “It was a primary and deciding factor. It was a known event. People knew about it. The bottom line: the decision was potentially made upon the knowledge of that fact. It was in the newspapers. I read the newspapers. I was aware there was a trial.” He described all the other evidence against Echols and Baldwin as “scanty, circumstantial.” He called it a “ very circumstantial case [emphasis his]. Look at Manson. If you were to take a thousand cases [he paused here] . . . without Misskelley, it was extremely circumstantial. Misskelley was the primary factor” in the finding that Echols and Baldwin were guilty.
Defendant Echols’ conviction must be reversed and a new trial ordered.
II. ECHOLS WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE JUDGED BY TWELVE IMPARTIAL JURORS CAPABLE OF DECIDING THE CASE SOLELY ON THE EVIDENCE ADMITTED AND THE INSTRUCTIONS GIVEN IN COURT
As demonstrated in Argument I, newly discovered evidence concerning the extraneous information injected into the deliberations of the Echols jury proves the jury’s receipt of, and reliance on, extrajudicial information, a state and federal constitutional violation; that same evidence also establishes a related but distinct constitutional deprivation: that of a defendant’s right to twelve impartial jurors.
The United States and Arkansas Supreme Courts have held that a foremost obligation of
any prospective juror is that of honesty during the voir dire process; for that reason, a lack of such candor by a venire person is a telling indication that the prospective juror lacks the impartiality required to fairly judge the case. During individualized voir dire at Echols’ trial, no juror admitted to being aware of the fact that Jesse Misskelley had given a statement or confession to police interrogators, and certainly none disclosed knowledge that any such statement implicated either Echols or Baldwin. Yet during deliberations the Misskelley statement was listed by jurors as a reason to convict both Echols and Baldwin. That conduct can be explained by the fact that three jurors – Four, Six, and Seven – have now admitted at the time of jury selection they were aware of the Misskelley statement. Furthermore, Juror Four has admitted an extensive familiarity with the media reports disseminated on the eve of trial, particularly those details incriminatory of Echols and Baldwin, despite the fact that during jury selection he denied knowing anything about the Misskelley matter other than that Misskelley had been previously convicted of something, although Juror Four did not know what.
On voir dire, Juror Nine maintained that he had not discussed the case with his father, a police commissioner in Arkansas, but has recently stated that in a pretrial conversation with Juror Nine, his father “spit out” the details of the case. The receipt of that information surely explains the fact that during the trial Juror Nine not only held the opinion that the defendants were guilty, but that they had supporters in the courtroom who were capable of killing Juror Nine as well, leading the juror to be terribly frightened for his own life at a time he was supposed to be dispassionately deciding the guilt or innocence of Echols. Additionally, Juror Six now has sworn that she decided the guilt of the defendants before hearing closing arguments and the trial court’s instructions, also a deprivation of the defendant’s right to a fair and impartial jury.
Finally, several other jurors admitted during voir dire that they tended to believe that the defendants were guilty, although they promised to set those opinions aside. The United States Supreme Court has held that such disavowals of bias cannot be deemed conclusive when the exposure of jurors to inadmissible and prejudicial information is so great that a majority of sitting jurors was predisposed to a finding of guilt when selected to serve. That critical mass was reached in this case, yet another reason why Echols’ convictions must be set aside.
B. The Relevant Federal and State Law
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). “‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 US 145, 155, 25 L.Ed. 244.” Id. While a juror who truly can put aside his or her opinions may fairly serve, “those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to [that juror].” Id., 366 U.S. at 722 n.3, 81 S.Ct. at 1642 n.3, quoting Chief Justice Marshall in 1 Burr’s Trial 416 (1807).
In Irvin v. Dowd, eight of the twelve jurors selected to sit on the defendant’s jury had formed the opinion that he was guilty based on exposure to pretrial publicity, although each stated “that notwithstanding his opinion he could render an impartial verdict.” Irvin, 366 U.S. at 724, 81 S.Ct. at 1643. The Supreme Court vacated the defendant’s murder convictions and sentence of death, holding that:
With his life at stake, it is not requiring too much that petitioner be
tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two thirds admit, before hearing any testimony, to possessing a belief in his guilt.
Id., 366 U.S. at 728, 81 S.Ct. at 1645.
A pivotal factor in determining a prospective juror’s impartiality is his or her candor in responding to questions on voir dire. “Voir dire plays a critical function in assuring the criminal defendant that his [or her] Sixth Amendment right to an impartial jury will be honored.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). “The necessity of truthful answers by prospective jurors . . . is obvious.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 849, 78 L.Ed.2d 663 (1984)(plur. opn. of Rehnquist, J.). See also Caldarera v. Giles, 235 Ark. 418, 422, 360 S.W.2d 767, 769 (1962)(“There is a duty upon every prospective juror on voir dire examination to make a full and frank disclosure of any connection he may have with the litigants or anything that would or could in any way affect his verdict as a juror.”).
That being so, “the honesty and dishonesty of a juror’s response is the best initial indicator of whether the juror in fact was impartial.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 556, 104 S.Ct. at 850 (Blackmun, J., concurring). Writing for a unanimous Court in Clark v. United States, 289 U.S. 1, 11, 53 S. Ct. 465, 468, 77 L.Ed. 993 (1933), Justice Cardozo observed: “The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are wilfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only.”
In Anderson v. State, 200 Ark. 516, 139 S.W.2d 396 (1940), the Arkansas Supreme Court reversed a conviction because two jurors
not only had a definite opinion as to appellant’s guilt before the case was tried, but they publicly and plainly expressed these opinions indicating that they were highly prejudiced against appellant. According to this record it is also clear that in qualifying themselves as jurors they withheld and denied their prejudice against appellant from the knowledge of the court as well as from appellant.
Id., 139 S.W.2d at 398.
The Anderson court held:
Persons charged with crimes are entitled to a trial by a fair and impartial jury and this right is guaranteed to them by the Constitution of the State of Arkansas (Const. art. 2, §§ 10). Verdicts returned by a jury where any member thereof had publicly expressed his opinion that the party charged was guilty of the crime and where this information was withheld from the court and the party charged with the crime by him at the time he qualified to sit upon the jury should not be upheld by the courts. Nothing can destroy the integrity of juries more effectively than to allow prejudiced jurors to sit in a case. The courts should jealously preserve the integrity of juries.
Id.; accord, Rhoden v. Stephens, 239 Ark. 998, 1000, 395 S.W.2d 754, 755 (1965) (reversing murder conviction due to failure of juror during voir dire to fully and accurately answer questions concerning bias). See also Smith v. State, 227 Ark. 332, 340, 299 S.W.2d 52, 56 (1957)(“Courts and Judges must always see that every person receives a fair and impartial trial before a fair and impartial jury. The Courts are the last bulwark of freedom and justice.”); Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 321, 698 S.W.2d 795, 798 (1985)(defendant “is entitled to a trial by twelve . . . impartial and unprejudiced jurors who base their decision on the evidence as presented at trial.”).
Juror bias is also demonstrated when a juror has decided a defendant’s guilt prematurely. In State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000), this Court affirmed the grant of a new
trial based on premature deliberations in a first-degree murder case. The court upheld the trial court’s decision by finding sufficient evidence to support the lower court’s conclusion that some jurors had made up their minds prior to deliberations, which sufficed to meet the requisite “reasonable possibility of prejudice” standard. Id., 341 Ark. at 929-930, 20 S.W.3d at 357-358. The court’s rationale was twofold: (1) “[f]or even one juror to prematurely decide a defendant’s guilt before hearing all the evidence and being instructed on the law, deprives that criminal defendant of his right to a fair and impartial jury,” and (2) the jurors who made up their minds may have influenced others who had not with their premature discussions. Id., 341 Ark. at 931, 20 S.W.3d at 359. The court concluded by supporting its decision with federal law on premature deliberations. Id., 341 Ark. at 932-933, 20 S.W.3d at 359-360.
C. The Admissibility of Evidence Concerning Juror Bias
Evidence concerning a juror’s knowledge or mental state at the time he or she was selected to serve in order to prove juror bias is not rendered inadmissible by Ark.R.Evid. 606(b) because it does not concern “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.” Likewise, evidence that a juror discussed the case with other jurors and decided to convict before retiring to deliberate does not implicate Rule 606(b) because it does not involve matters relating to formal deliberations, extraneous prejudicial information, or improper outside influences, but rather intrajury misconduct occurring before the start of deliberations. State v. Cherry, 341 Ark. 924, 928-929, 20 S.W.3d 354, 357 (2000). Finally, evidence that extraneous information was discussed during deliberations introduced to prove that jurors violated
their promise to decide the case only on the admitted evidence is admissible because under Rule 606(b), “a juror may testify on the questions whether extraneous information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.”
B. Echols Was Deprived of His State and Federal Constitutional Rights to Twelve Impartial Jurors
Echols will now demonstrate both that a number of individual jurors lacked the impartiality required to serve as jurors and that the jury, considered collectively, must be found under controlling principles of the United States Supreme Court to have been biased against the defendants.
1. Juror Four
During voir dire, Juror Four acknowledged that he knew of the verdict in the Misskelley case, but stated, “I don’t know anything – I couldn’t tell you anything about Misskelley except that I understand that he was convicted of something, and I couldn’t even tell you of what. . . .” (VDRT 307)
Juror Four has now stated, however, that around the time he was called as a juror, he was aware that Jessie Misskelley had been brought to the Craighead County Courthouse and had been offered a sentence reduction to 40 years if he testified against Baldwin and Echols. That assertion is surely true, because on voir dire Juror Four stated that he read three newspapers daily, including the Arkansas Democrat Gazette and the Jonesboro Sun, both of which were flooded with stories about the Misskelley confession, conviction, and plea negotiations in the weeks before the Echols trial. Juror Four has now stated that prior to petitioner’s trial, he had heard that Misskelley made a
confession to authorities implicating Baldwin and Echols, stating that the three victims had been hogtied, that they were castrated, and that Echols and Baldwin had made Misskelley chase the victims down and catch them. Juror Four has also stated that he believed it was unreasonable to expect the jury to ignore the Misskelley confession, which was published in the newspapers.
Thus during voir dire Juror Four made misleading statements about the state of his knowledge regarding the case, stating that he knew virtually nothing about Misskelley when in fact he knew a great deal, including specific details published in the newspapers concerning Misskelley’s statement.
Furthermore, during voir dire, Juror Four had heard and watched as Prospective Jurors Sharp and Hartshorn were excused because they admitted that they could not follow the court’s command to “set aside” what they had heard in the media “and let your decision in this case be dictated by the evidence that you hear in the courtroom.” (VDRT 17-18) The court then again informed the remaining jurors, including Juror Four, that: “We’re asking you to disregard what you’ve read, seen, or heard.. . . [I]t’s important that a person have a fair and impartial trial and that your mind should not be made up from outside influences . . . .” (VDRT 19) The court then asked each juror whether “you are prepared to listen to the evidence and let your mind be – your decision on this case be determined by what you hear in the courtroom and the law given you by the Court?” (VDRT 19) By failing to step forward as Jurors Sharp and Hartshorn had done, Juror Four indicated to the trial judge and counsel his ability and willingness to comply with that fundamental rule, yet he has since admitted that he thought the court’s command to ignore media reports was “unreasonable” and that he violated it by relying on the decision of the Misskelley conviction in deciding to convict.
In order to gain a new trial on the ground that a juror was biased, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984)(plur. opn. of Rehnquist, J.). Juror Four did not honestly answer questions on voir dire concerning his knowledge of the case and his willingness and ability to judge the case on the evidence alone, and honest answers in regard to these matters certainly would have provided a valid basis for a challenge for cause. The presence of even a single biased juror cannot be deemed harmless, of course, because a defendant “is entitled to a trial by 12, not 9 or even 10, impartial and unprejudiced jurors.” Parker v. Gladden, 385 U.S. 363, 366, 87 S.Ct. 468, 471, 17 L.Ed.2d 420 (1966); accord Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 321, 698 S.W.2d 795, 798 (1985). A new trial would be in order on the ground of Juror Four’s bias alone.
2. Juror Six
In her affidavit of June 8, 2004, Juror Six stated, “I made it clear prior to being seated as a juror that I knew about the Jessie Misskelley case through the newspaper and having seen stories about him and his case on television.” Juror Six did not state on voir dire, however, that she “was aware that Misskelley had confessed to the police,” a fact she has now revealed in her affidavit which would have provided a basis for a challenge for cause. Juror Six thus qualifies as a biased juror under the McDonough test.
Juror Six further stated in her affidavit that “I recall that many days that testimony was presented during the trial, we jurors would talk to one another in the jury room using our notes to help us understand what was going on. We all read from our notes to each other at the end of the
day, or in the mornings. We did this in the jury room where we gathered during breaks in the trial, and whenever we were excluded from the courtroom due to issues discussed outside of our hearing.” Juror Six continued:
My recollection of this process of daily reviewing our notes with one another is that it permitted us to assess whether we had missed something, or did not write down a matter of significance during the course of the testimony. I recall reading to other jurors from my notes, and it was clear to me that certain other jurors had missed matters that I had noted. I found that this process helped me to better understand the evidence at trial...
As a result of this daily process of observing witnesses and reviewing notes and daily discussions with my fellow jurors, and based on my view of the evidence as I was hearing it in court, it was clear to me even before the deliberations that the defendants were guilty.
Under State v. Cherry, “[f]or even one juror to prematurely decide a defendant’s guilt before hearing all the evidence and being instructed on the law, deprives that criminal defendant of his right to a fair and impartial jury.” Cherry, 341 Ark. 924, 931, 20 S.W.3d 354, 359 (2000). Juror Six was a biased juror for this reason as well.
3. Juror Nine
During voir dire, Juror Nine stated that he had not talked about this case with his father, who was a police commissioner in Arkansas. (VDRT 436) In a recent interview, however, Juror Nine stated that when he called his father after being selected as a juror, he learned that his father had heard about the case, which had received state-wide, maybe tri-state wide, media attention. When Juror Nine told his father that he was going to be a juror, his father “started spitting out the details.” (Exhibit W). Yet, when questioned by the trial court prior to deliberations as to whether any juror had received information from an outside source, Juror Nine did not disclose this
conversation with his father.
Juror Nine thus gave a false answer to a court inquiry. Had Juror Nine been more forthcoming, the defense could have unearthed the likelihood that the information he had received about the case prior to trial had created a bias against the defendants that had led him to prejudge their guilt. Juror Nine stated that his “jury experience ‘spooked the hell’” out of him and that he “never felt so scared.” He couldn’t sleep at night and “felt he could hear noises outside and would look out the window.” His fear was the result of the “talk of those kids being part of a cult, and looking into the audience and seeing the victim’s families and the families of the accused... .” Although he was never personally threatened, he felt that something could happen to him. Juror Nine thought that since the kids on trial were not afraid to kill, maybe they had friends or were part of a cult that was capable of killing. When Juror Nine looked into the gallery, he saw people that he associated with the defendants and thought, “They’re going to kill me.” (Exhibit W).
Juror Nine’s fear during the taking of testimony that friends of the defendant were going to kill him was based both on matters not in evidence and his own prejudgment of the defendants’ guilt of the charged murders. Obviously, a juror who before hearing all the evidence fears that a defendant is a murderer whose confederates mean the juror harm is not the sort of impartial arbiter contemplated by the Fifth and Sixth Amendments. Juror Nine was a biased juror whose presence on the jury deprived Echols of a fair trial.
4. Juror Seven
Juror Seven’s affidavit states that, before serving on the jury, she knew about the earlier trial of Jessie Misskelley in Corning in which Misskelley had been found guilty and she believed she also knew that he had confessed to the crime. Juror Seven did not reveal her knowledge of
either of these facts during voir dire. These facts, combined with the fact that despite the court’s admonition to ignore the Misskelley statement, Juror Seven listed it in her notes as a reason to convict both Echols and Baldwin, establish that she meets the legal standard for a biased juror.
5. Juror One
During voir dire on February 23, 1993, Juror One stated that she had heard “an awful lot” about the case through the Jonesboro Sun and the Arkansas Democrat, Television Channels 7 and 8, and reading articles on a daily basis. (VDRT 35, 49-50) Juror One then stated that “anyone under these circumstances would form an opinion,” no doubt referring to the pervasive media coverage of the case, and that she had formed an opinion the defendants were guilty.
In fact, the Arkansas Democrat had run an article that very morning of February 23rd stating: “In a June 3, confession to West Memphis police, [Misskelley] said he helped Echols and Baldwin subdue the victims on May 5 and watched as the teen-agers beat and sexually abused Christopher Byers, Michael Moore, and Steve Branch.” (Exhibit J) Thus, when the trial judge suggested that every juror knew of the Misskelley statement, he no doubt was right as to Juror One. Just as surely, Juror One knew the contents of that statement, reported again in the press that morning, leading Juror One to believe Echols and Baldwin guilty.
To be sure, Juror One stated during voir dire that she believed that she could put her opinion of the defendants’ guilt aside and judge the case on the evidence admitted at trial. When a jury’s exposure to inadmissible and prejudicial news reports is as extensive as it was in this matter, however, the United States Supreme Court has found such self-appraisals inadequate to sustain a resulting conviction. See Sheppard v. Maxwell, 384 US 333, 351, 86 S Ct 1507, 1516, 16 L.Ed.2d 600 (1966), quoting Irvin v. Dowd, 366 US at 728, 81 S.Ct. at 1645 (although each
juror indicated that he could render an impartial verdict despite exposure to prejudicial newspaper articles, conviction set aside because “[w]ith his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion”).
6. Juror Five
Juror Five acknowledged that she received the Jonesboro Sun every day and had read about the case regularly. Her feeling was that she was leaning to believing that the defendants had probably committed the crime, and nothing had yet changed that feeling, although she believed that she could begin the trial believing the defendants were innocent. (VDRT 337-338) What had led her to believe the defendants were guilty was “a law enforcement officer who said that he felt like it was a pretty well open and shut case, you know, that they had enough evidence.” (VDRT 338-339) In light of the outside influences operating on so many of Juror Five’s fellow jurors and Juror Five’s own pre-existing opinion of the defendants’ guilt, Juror Five’s statement that she could judge the case based on the evidence alone was inadequate to ensure her impartiality.
7. Jurors Ten, Two, Three, Eight, Eleven, and Twelve
Juror Ten stated in voir dire that it “seems the general opinion is that everybody thinks they’re guilty.” (VDRT 510) Jurors Two, Three, Eight, Eleven, and Twelve had all been exposed to press coverage or public discussion of the case, had heard other prospective jurors describe the case as open and shut and express unshakeable opinions that the defendants were guilty, and in the trial judge’s opinion almost surely knew of the Misskelley statement. When considered collectively, the exposure of the jury to prejudicial and inadmissible information was as great in this case as was the case in Rideau, Irvin, or Sheppard. Echols was deprived of his right to twelve impartial jurors, and his convictions consequently must be vacated.
III. THE PRESENT EVIDENCE OF JURY MISCONDUCT AND BIAS DEMONSTRATES THE PREJUDICIAL EFFECT OF TRIAL COUNSEL’S CONSTITUTIONALLY DEFICIENT PERFORMANCE IN FAILING TO CONDUCT AN ADEQUATE VOIR DIRE, TO SEEK A CONTINUANCE, AND/OR TO SEEK A CHANGE OF VENUE, THEREBY MANDATING REVERSAL OF PETITIONER’S CONVICTIONS UNDER STRICKLAND V. WASHINGTON
In his previous challenge to his convictions pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. (“Rule 37"), petitioner alleged that he was deprived of his Sixth and Fourteenth Amendment rights to the effective assistance of counsel as a result of trial counsel’s failures to (1) conduct a constitutionally adequate voir dire of prospective jurors, (2) move for a continuance of the trial date, and/or (3) seek a change of venue from Craighead County. This Court disposed of these claims in large part on the grounds that petitioner had not demonstrated that the alleged failures had resulted in the selection of any biased jurors or in any other form of prejudice sufficient to warrant reversal under Strickland v. Washington, 466 U.S. 668 (1984) (requiring the defendant to demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). See Echols v. State, 354 Ark. 530, 555-61; 127 S.W.3d 486, 502-06 (2003).
Petitioner respectfully submits that the Circuit should be authorized to consider, or that this Court should reconsider, the foregoing ineffective assistance claims in light of the extensive evidence of jury misconduct and bias submitted in support of the present motion. Under any fair analysis, such evidence far surpasses the Strickland standard for reversal because counsel’s failures led directly to the selection of biased jurors who actually considered extrajudicial and highly inflammatory information that likely supplied the primary basis for Echols’s conviction at trial. Reversal of petitioner’s convictions is warranted on this basis alone.
This Court should reinvest the Circuit Court with jurisdiction and remand this matter for further proceedings and an evidentiary hearing, if needed. Following full consideration of his constitutional claims, Echols’ convictions and sentence of death must be vacated.
DATED: October 28, 2004
DENNIS P. RIORDAN
DONALD M. HORGAN
DEBORAH R. SALLINGS
DENNIS P. RIORDAN
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS