Note: The original version of this synopsis was written during Jessie Misskelley’s trial in 1994. At that time Dan Stidham did not have the assistance of a forensic scientist or a criminal profiler. Mr. Stidham has written new notes to update his case synopsis for our web site in order to address newly discovered evidence and findings, to answer questions relating to his client Jessie Misskelley and to point out the important information that the jury was not permitted to see or hear. The new portions of the synopsis are shown in italics and were added by Mr. Stidham on June 27, 1999.
A. Poor investigation of crime scene
1. Crime Scene not properly secured resulting in loss of potential evidence.
a. After discovery of first body, the crime scene was literally trampled, especially the creek bed.
b. Bodies were removed from the water too quickly, prior to the arrival of coroner (who was almost two hours late in arriving at crime scene) and placed on ditch bank in the sun destroying invaluable evidence regarding time of death, i.e. body temperature, rigor mortis, etc. (creek bed should have been drained leaving bodies where they were, thereby preserving potential valuable evidence).
c. Coroner's investigation was extremely substandard which led to the destruction of valuable evidence and ultimate misunderstanding of evidence by police.
d. Police did not keep the facts of the crime scene confidential, especially the injuries to the bodies. Rumors of sexual mutilation were reported in the news media and widely circulated throughout West Memphis as evidenced by the officers notes from interrogating potential suspects about what they had heard about the murders.
B. Legitimate facts from crime scene
1. Bodies found nude, bound with own shoe strings in "hog-tie" fashion;
2. All bodies had substantial injuries to head, with one body (C. Byers) having been sexually mutilated, the testicles removed and the head of the penis removed with the shaft intact but having been "skinned". The testicles and head of the penis were not recovered; (Medical examiner testified in Echols/Baldwin trial that whoever did the mutilation had some knowledge of anatomy and was quite meticulous. The mutilation would have taken quite some time to perform even under laboratory conditions, and almost impossible to do in the water, in the dark, with thousands of mosquitoes swarming. Bodies had no insect bites.)
Update: After consulting with forensic experts in 1997 and 1998, it was learned that Dr. Perretti's testimony
at the EcholslBaldwin trial was not exactly accurate. The sexual mutilation of the victim Byers was anything but meticulous. In fact, it was quite crude The testicles and part of the penis were literally ripped off the victim. In addition, the entire genital area of the victim Byers was covered in gouge-like wounds indicative of rage and/or punishment of this particular victim that was not present in the other victims. This has given us tremendous insight into the possible offender(s). For more specific information see Brent Turvey's Criminal Profile of this crime.
In addition, after consulting with a forensic entomologist, it was learned that some of the wounds to the bodies could be the result of post mortem feeding on the bodies by insects or crayfish and not wounds inflicted by the offender(s). The entomologist, along with Mr. Turvey, also gave us interesting insight on the time of death of the victims which makes the times put forth by Misskelley in his so-called confession virtually impossible.
Mr. Turvey, in examining the autopsy photographs of the victim, Branch, discovered what he believed could be a human bite mark. Upon his advise, we consulted a forensic odontologist who testified that the semi-circled mark above the victim's right eye was a human bite mark. Dental impressions were taken of the three convicted defendants, Echols, Baldwin & Misskelley, and they each were occluded as the source of the bite mark on the victim Branch.
3. Most of the boys' clothes were found in the water with the bodies. The clothes were mostly inside out, not torn. The pants were still zipped, but inside out. Two of the boys underwear briefs were not recovered; (Experts say that serial killers often keep the underwear and body parts of their victims as trophies).
Update: Brent Turvey's investigation and criminal profile reveals that the offender(s) in this case most likely knew the victims and were from the area where the victims lived. Nothing in the facts of the case suggest that a serial type killer was responsible for this crime.
4. Two human hairs were found on the bodies, one Caucasian, one Negroid in origin; (Hairs cannot be conclusively matched. Comparisons are done to exclude suspects.) One hair was "microscopically similar" to Echols, but it was also similar to another suspect and one of the victims' father, and as such, has no real evidentiary value. What does have evidentiary value, however, is
the Negroid hair, in so much as the teenagers convicted are all Caucasian. In addition, Mr. Bojangles was a black male.
5. Several clothing fibers were found on the bodies; (Fibers, like hair, cannot be matched, only labeled microscopically similar or dissimilar. One fiber was similar to Jason's mother's housecoat, but it was also similar to one of the victims mother's sweaters.)
6. A couple of poor quality footprints were found near the bodies in the mud, one of which was a tennis shoe; (The print was not similar to any found or compared to the convicted teens).
7. No blood at all was found at the scene. Luminol testing done at the crime scene some two weeks after the discovery of the bodies revealed the presence of possible blood at the crime scene in, and on, the ditch bank where the bodies were laid by the police after they were removed from the water. Blood seeped from the bodies unto the soil where the bodies were laid. Luminal testing is not admissible in Court because it is not scientifically reliable; (The medical examiner testified at the Echols/Baldwin trial that it would be impossible for the injuries that were inflicted on those boys to be inflicted without leaving blood at the scene.) No follow up blood test was performed.
Update: Brent Turvey's analysis reveals that most likely the boys were killed elsewhere and that they were dumped at the site where the bodies were recovered. This explains the lack of blood found at the crime scene. See Brent Turvey's profile.
8. No weapons were found at the scene and no artifacts or anything indicating Satanic Activity were present.
Update: Brent Turvey's investigation and proftle reveals that there are no indicators of Satanic activity whatsoever. See Brent Turvey's profile.
C. Police misconceptions regarding crime scene / bodies
1. The Autopsy reports took some time to be produced, and because there were almost no real clues, the police were eager to get the report.
2. MISCONCEPTION: The Autopsy reports revealed that the boys anuses were dilated which seemed to indicate that they had been sodomized, when in fact the dilation was a natural result of the bodies being in the water. Bruising and abrasions of the boys mouths and ears were interpreted by the police as forced oral sex when other explanations were just as plausible.
FACT: The medical examiner testified that there was NO trauma to the
boys anuses, something that would virtually have to be present during a sexual assault, especially on a young child. No semen was found in any body cavity of any of the boys at the time of the autopsies.
3. MISCONCEPTION: The police assumed that the time of death had to be between 6:30 p.m. on May 5, 1993, the last time the boys were seen alive, and about 8:30 p.m. when a massive search of the crime scene began.
FACT: Before the Misskelley Trial in Corning, the medical examiner told Misskelley's attorneys that the time of death was impossible to determine because the coroner had done such a poor job in supplying the necessary data. At the Echols/Baldwin trial in Jonesboro, the medical examiner testified that he had done further research and now placed the time of death at between 1:00 and 5:00 a.m. on May 6th, 1993.
Update: See time of death information above.
D. Damien Echols tunnel vision / Satanic Panic
1. The day after the bodies were discovered, the police questioned Damien Echols about the murders. Damien, although highly pressured, professed his innocence and refused to confess to the murders. He even voluntarily gave hair and blood samples to police for comparisons.
2. Police felt that Damien had to be responsible for this crime because of the following:
a. Damien Echols had a bad reputation as being strange and into the occult/Satanism/devil worshipping. The Crittenden County Juvenile Officer, Jerry Driver, was convinced that Damien was involved in the murders based on his past experiences with Damien. Damien told Driver a year before the murders that a cult would be forming in the area and Driver has heard that Damien liked to drink blood. Driver contacted the W. Memphis Police and told them of his belief.
b. The West Memphis Police began receiving tips and suggestions from concerned citizens, psychics and other police organizations, because of the "America Most Wanted" segment that was aired, that if the bodies were sexually mutilated then it was the work of "Satanists" or "Devil Worshippers." There were rumors of Devil Worshippers being in Robin Hood Woods even before the murders.
c. Police, faced with no real clues, and under intense pressure to solve the crime, had a deep rooted belief that Damien was responsible, and being unable to get Damien to confess, began rounding up anyone and everyone who knew Damien Echols.
d. Damien, being foolish, and loving
the attention the police and others in West Memphis were giving him, did not deny involvement to his friends. In fact, some kids testified that he bragged about the killings, and took credit for same.
In my opinion, Damien, who by Arkansas standards was really weird in relation to his dress and attitudes, and who would never be the class president or the quarterback of the football team, and who was suffering desperately for attention, liked his newfound status as a celebrity. I don't think Damien ever stopped and considered that he might be arrested based on his own mouth, and there was really no way he could have anticipated Vicky Hutcheson or Jessie's false confession.
NOTE: Two things make me believe this. First, Damien voluntarily gave hair and blood samples to police, not exactly the modus operandi of a guilty person, especially not someone as intelligent as Damien.
Secondly, Damien told Ron Lax that he wasn't mad at Jessie for giving the false statement to police, because he knew Jessie was slow, and he told Ron that if the cops were as hard on Jessie as they were on him, there was no way Jessie could have withstood the pressure.
E. The Vicky Hutcheson connection
a. Background: Vicky Hutcheson had only lived in West Memphis a short time at the time of the murders. Her son Aaron, was a playmate to the boys who were murdered. Vicky previously lived in Northwest Arkansas and basically fled to West Memphis because she had outstanding warrants for her arrest for hot checks in NW Arkansas. She left her employer in Fayetteville, a lawyer, with the impression that she had a brain tumor and was terminally ill.
b. On the day the bodies were discovered, May 6, 1993, Vicky was in the Marion Police Department for the purpose of taking a polygraph test because some money had come up missing from the cash register at her place of employment in West Memphis. She took Aaron with her, and this angered the Officer who was to conduct her polygraph exam, Don Bray. Don Bray struck up a conversation with Aaron, and Aaron told him that he knew where the missing boys were at "The playhouse." Bray called the WMPD to tell them what Aaron had said, and he was told that the bodies had been found near where Aaron had indicated. (Aaron would later
take Police to the scene where the playhouse was supposed to be and no playhouse was found).
c. Aaron would later tell police that he witnessed the murders supposedly seeing men in the woods all dressed up and speaking Spanish, i.e. Devil Worshippers. Each story was dramatically different than the previous version and Aaron finally told police that Mark Byers was there and killed the boys.
IMPORTANT NOTE: Aaron never identified any of the convicted teens until after Jessie's confession, and could not identify Damien or Jason in a photo lineup. This despite knowing Jessie very well because Jessie baby-sat for him. Prosecutors knew they couldn't use this evidence because Aaron had changed his story so often and they knew witnesses placed Aaron far from the crime scene at the time of the murders.
A press leak by a police officer led to a news story about Aaron witnessing the murders and created a media frenzy that severely hampered the three defendants ability to receive a fair trial. In our opinion, Aaron did in fact play in the woods with the victims probably on several occasions, but he was definitely not in the woods on the date of the murders. In an effort to try to help, and at the suggestion of his mother, Aaron probably thinks he was there or dreamed he was. None of his statements accurately reflect facts of the crime scene.
d. Vicky definitely wanted the reward money having stated so publicly before and after the trials. Around June 1, 1993, Vicky was told by the WMPD that they could help her with her legal problems if she would help them get Damien. She agreed to a "wire" of her home and she tried to get Damien to her house to get information out of him. She asked Jessie Misskelley to introduce her to Damien. Jessie's reply was, "I know who he is and I can take you to his house." Jessie, who always tries to help, because that is his nature, obliged and introduced her to Damien, although he didn't know him.
e. Vicky finally got Damien over to her house but he says nothing about the murders on the "wire." The police deny that they have any tapes of the surveillance that are audible. Vicky told us after the trials were over that she had listened to the tapes herself at the WMPD, and that they were quite audible.
f. Vicky tells police on June 2, 1993 that two weeks after the murders she, Damien and Jessie went to an "Esbat" in Turrell, AR, and that Damien drove them there. This coupled with the statement of William Winfred Jones, who told police that he had overheard Damien, in a drunken stupor brag about killing and raping the kids, led police to center their investigation as satanic homicides and on June 3, 1993, police picked up Jessie Misskelley for questioning.
NOTE: William Winfred Jones recanted his statement during the trial of Jessie Misskelley just hours before he was to testify, saying that he made the story up and that he had only heard that Damien had done it.
g. Vicky was never able to lead police to the "Esbat" site or identify anybody else who was present at same.
h. Vicky Hutcheson admitted after the trials were completed that she was so drunk the night of the so called "Esbat" that she woke up in her front yard and could have dreamed the whole "Esbat" thing.
F. False Confession
Background: Jessie Misskelley, Jr. was just four years old when his mother abandoned him, leaving him and his severely retarded brother in the care of Jessie Sr. According to Jessie's family, Jessie's brother was later institutionalized and Jessie Jr. was diagnosed himself as being retarded. Doctor's recommended that Jessie Jr. receive special education and family counseling, but this was never done. Tests conducted at our request after his arrest indicated that Jessie Misskelley, Jr. was operating at the level of a five year old child. His reading level was severely retarded, and his overall IQ was in the range of 72, which indicates that he is borderline mentally retarded.
a. Our research indicated that due to his mental handicap, Jessie was not able to understand any aspect of his "Miranda Rights," which require a sixth grade reading level to understand.
b. Jessie Misskelley, approximately two weeks after the murders, was hanging out with some friends near Bojangles Restaurant in West Memphis. A "bum" asked him and his friends to accompany him to his "Fort" and drink beer. Jessie and his friends refused and called police thinking that this "bum" might be the killer of the three boys. The "bum" was picked up and questioned but released. He was the son of a Crittenden County Sheriff's deputy. Jessie and his friends were told by
Police that if they found the killer that they would get the reward money.
c. On June 3rd, 1993, police acting on the information from Vicky Hutcheson, re: the Esbat, picked up Jessie Misskelley, Jr. for questioning. He was taken to the police station at about 9:30 a.m., after Officer Allen told Jessie Sr. that they wanted to talk to Jessie Jr. about Damien. Allen told Jessie Sr. and Jim McNease that Jessie would get the reward money IF he helped in the investigation. In response to police questioning, Jessie said that he had heard that Damien and a guy named Robert Burch had killed the boys. Jessie told police that he was roofing with Ricky Deese the day of the murders. He denied being at Turrell, AR for a devil-worshippers' meeting with Vicky and Damien, telling police that he had never even been to Turrell at all.
NOTE: Jessie was questioned by police despite the fact that under Arkansas law he could only be questioned if his parents consented to a waiver of his Miranda rights in writing, since he was only 17 years. of age.
d. Police believing that he was lying asked Jessie if he would submit to a polygraph test. Jessie, not knowing what a polygraph test was, told police that he would take the test. Officer Allen took Jessie to get his father's written permission for the polygraph test, but still did not discuss Jessie's Miranda Rights, or their waiver in writing. Instead, when they found Jessie Sr. another discussion was had about Jessie receiving the reward money, if he helped find the killer.
e. Jessie was administered the polygraph at about noon. Jessie was asked a series of ten questions. One of the questions was "do you do drugs," which Jessie answered "NO" There were several very generic questions about the murders. Each time Jessie stated that he knew nothing about the murders. After the test was completed, Jessie was told by Officer Durham that he was "lying his ass off." Jessie admitted that he had lied about the drug question, but officer Durham said that he was lying about the murders, and even told Jessie that he knew he was lying because "Jessie's brain was telling him so."
NOTE: Experts tell us that when a person of limited intellect and who is very suggestible is told that they have flunked a polygraph test,
they will often confess falsely as their perception of reality is changed and they see it as their only chance to avoid getting into trouble and the only way they can please their interrogators, and ultimately leave the pressure of the interrogation.
f. Jessie was then interrogated for two hours during which time he vehemently denied any role in the murders. He was denied the right to talk to his father, and was grilled repeatedly by Gitchell and Ridge. Finally, Officer Gitchell showed Jessie a picture of one of the boys bodies which terribly frightened Jessie. Then Gitchell played a tape to Jessie using Aaron's voice which said "Nobody knows what happened but me." This frightened Jessie even more.
g. Then Gitchell showed Jessie a diagram. The diagram contained a circle with three dots in it which represented Damien, Jason and Jessie. Gitchell then drew dozens of dots on the outside of the circle, and asked Jessie if he wanted to be on the outside with the police or on the inside with Damien and Jessie. This all frightened Jessie and he told Gitchell and Ridge he wanted out.
All this finally broke Jessie's will, and his mind told him that the only way out was to tell them what they wanted to hear. After rehearsing the scenario, over and over again, he finally told them that he had seen Damien and Jason rape and murder the boys. He unwittingly told police enough to cause himself to be an accomplice. Instead of allowing him to go home as police promised, he was locked up. The interrogation itself lasted almost twelve hours, but only about twenty minutes of audio tape exist regarding the confession. Immediately after the confession, when Jessie realized he wasn't going home, he recanted the entire confession, but it was too late.
NOTE: As part of an experiment, Dr. Wilkins and myself were able to get Jessie to confess to committing a robbery that never occurred. This was ruled inadmissible by the Court, and the jury never knew this. I often bragged that I could get Jessie to confess to killing JFK, although he wasn't even born in 1963. I am still convinced I could get him to confess to almost anything.
NOTE #2: Police fearing our defense of false confession, searched feverishly for a way to corroborate Jessie's story. They questioned a friend of Jessie's named Buddy Lucas.
Lucas told Officers Durham and Ridge that Jessie confessed to him that he had witnessed the murders the day after the murders occurred. Lucas told the officers that he and an uncle went to Jessie's on the day of the murders and took the Misskelleys some BBQ chicken. According to Lucas, Jessie Jr. wasn't there, but Jessie Sr. told him that Jessie had went to W Memphis w/ some teenagers. Lucas then told the officers that the next day, he went over to Jessie's house and that he and Jessie got their hair cut by Stephanie Dollar. After the hair cuts, Jessie told Buddy everything. Jessie even gave Buddy the shoes he was wearing when the boys were killed which Buddy readily handed over to police.
Suddenly, the West Memphis police had the technology to video tape an interrogation, something they couldn't do with Jessie on June 3, 1993. I went to the Police Department and watched the video of Buddy's statement. The statement seemed strange to me, a poor attempt by Mr. Lucas to give the police something to corroborate Jessie's statement. After the tape was over, Officer Ridge readily admitted to me that as soon as Buddy finished his statement, he refused to take a polygraph exam to confirm same, and even recanted everything he said on the tape. I went to Jessie Sr.'s and asked him about the chicken. He said he Buddy and his uncle never brought him any chicken. Buddy's uncle also denied delivering any chicken, and Stephanie Dollar said she did not cut Buddy's hair on May 6, 1993.
Ron Lax tracked down Buddy, and he and I took a statement from Buddy, on video tape. Buddy said the police threatened him and told him he would go to jail if he didn't tell them about Jessie doing the murders. Buddy said he made up the story to keep from going to jail and that he "hated to have to lie on Jessie" but he was scared of the cops. Buddy said Jessie had given him some tennis shoes long before the murders ever took place, and the shoes that he gave police were not even the ones Jessie had loaned him. When the police took the shoes, they gave Buddy a brand new pair of boots. Buddy told Ron and myself that he was glad to tell us the real story.
When I asked
Jessie about Buddy, he said that he hadn't seen Buddy in a long time, and that Buddy was real dumb. Jessie said Buddy was in "special education" in school. If Jessie thought he was slow then you can imagine how slow he really was. We arranged for Buddy to be represented by an attorney, and he was not hassled by the police anymore. When prosecutors learned of his recantation, they did not call him to testify. In a very difficult decision, Greg and I chose not to put Buddy on the stand at trial because he was so nervous and wouldn't have made a good witness. Further, the jury might have believed Buddy's statement to police, which the prosecution surely would have used to impeach him, and this might have been all the jury needed to convict Jessie of Capital Murder something that could have cost him his life.
In addition, Buddy's testimony might be construed by the appellate court as corroboration, something we have submitted all along they did not have. In hindsight, I still think we made the right decision in not using Buddy at trial.
G. Facts of Jessie's confession do not match facts of crime scene
1. Jessie says boys skipped school May 5, 1993.
FACT: Boys were in school all day, so was Jason Baldwin.
2. Jessie says boys were killed at noon on May 5, 1993.
FACT: Boys were in school until 3:00 p.m., and were last seen alive at about 6:30 p.m. ME says time of death was 1:00 TO 5:00 a.m. on May 6th, 1993. Jessie worked with Ricky Deese until about 12:30 p.m.
3. Jessie says boys were raped (sodomized).
FACT: Medical examiner says no trauma to boys anuses, something that would have been there if they were raped.
4. Jessie says Jason castrated Christopher Byers with a single swing of a knife.
FACT: Medical examiner says that the penis of Byers was methodically skinned by someone with extensive knowledge of anatomy and the process would have taken some time to complete even under laboratory conditions.
Update: The mutilation was not skillful or meticulous as Peretti said. It was crudely done. This is still quite inconsistent with Misskelley's confession.
5. Jessie says that the boys were tied up with a brown rope.
FACT: The boys were bound with their own shoestrings.
6. Jessie says the boys were beaten with a big ol' stick and cut with a knife.
blood was found at the scene, and ME says those injuries could not be inflicted with out a great deal of blood loss. (This leads on to believe that the boys were killed elsewhere and their bodies dumped in the creek. This seems to be corroborated by the fact that search teams were combing the woods that night walked all over the spot where the bodies were recovered.)
Update: Brent Turvey's Profile of the case corroborates our belief that the boys were killed elsewhere.
7. Jessie says Damien choked one of the boys with a big ol' stick.
FACT: Medical Examiner says none of the boys had choking or strangulation injuries.
These are just a few of the most obvious inconsistencies.
G. What the experts tell us
1. The defense retained the services of two well known experts who are recognized as being the tops in their field, Dr. Richard Ofshe and Mr. Warren Holmes.
2. Background on retention of experts:
a. Richard Ofshe:
1. Ron Lax told us about Dr. Richard Ofshe. An attorney friend of Ron's in California recommended Ofshe to Ron for use in Damien's trial as an expert on the occult. Ofshe won a Pulitzer Prize for his work on the Synanon Cult in California. Ofshe has a second area of expertise, False Confessions, and Ron suggested we talk to Dr. Ofshe. I called Ofshe, at the University of California in Berkeley, and explained that I thought Jessie had falsely confessed to the homicides. I further explained that I was appointed by the Court and had no money with which to pay him. This did not deter Ofshe. He asked about evidence against Jessie, independent of the confession, and I informed him there was none. He agreed to look over the transcript of the confession, which I Fed-Exed him that day.
About a week later, Ofshe phoned me and informed me that Jessie's confession was the worst false confession that he had ever seen, and that he felt Jessie was innocent. Ofshe's testimony is part of the trial transcript and is very, very compelling evidence of Jessie's innocence. Ofshe, like myself is absolutely convinced of Jessie's innocence.
From almost the beginning, I wanted to have the polygraph test Jessie had on June 3, 1993, looked over by another expert. The lawyer in me was hesitant though because I was afraid I might not like the results of the independent analysis. When I
discussed this with Dr. Ofshe, he told me, "Don't be afraid, Dan, your client is innocent." That's when I called Warren Holmes in Miami.
b. Warren Holmes
1. I read about Warren Holmes in a Florida case I was researching regarding recordation of interrogations. The case cited Mr. Holmes tremendous experience in the area of polygraphs which includes the following:
a. Mr. Holmes is a consultant to the FBI, the Texas Rangers, the Royal Mounted Canadian Police.
b. Mr. Holmes conducted polygraph examinations in the assassination of JFK and Martin Luther King, Jr. as well as Watergate.
c. Mr. Holmes worked on the William Kennedy Smith case, the Boston Strangler case, and the Hampton Case from Louisiana.
d. He has over 39 years experience as a homicide detective and a polygraph examiner.
2. When I called Mr. Holmes, I explained to him that I had been appointed to represent an indigent kid in Arkansas charged with killing three boys. I explained to him that I had no money to pay him, but that I really needed his help because I felt my client was innocent. Mr. Holmes finally agreed to look over the polygraph charts from Jessie's polygraph.
3. About a week later, Mr. Holmes phoned me and told me that Jessie had only showed signs of deception on one question. The drug question. Jessie had passed all the questions about the homicides, showing no signs of deception on the charts. It was clear that Officer Durham had lied to Jessie, and that Jessie had falsely confessed in large part because he thought the W. Memphis police had this machine that was telling him "his brain was lying to them." This altered Jessie dim view of reality, and he felt that the only way he could get away from his interrogators was to tell them what they wanted to hear.
4. Mr. Holmes has never been paid for help in our case. The State Of Arkansas reimbursed him the two thousand dollars or so of his personal funds spent flying to Arkansas to testify.
5. Dr. Ofshe did receive some reimbursement of his travel expenses. This did not even come close to reimbursing him for all his expenses.
H. What the jury was not allowed to hear
1. Testimony of Dr. Richard Ofshe
a. The Trial judge refused to allow Dr. Ofshe to give all of his opinions with regard to Jessie's case. In short, he was not
allowed to tell the jury that, in his opinion, Jessie's confession was a product of police coercion. This despite Dr. Ofshe being allowed to testify to the same issue in Courts around the Country. We made a proffer of what his anticipated testimony would have been, so the Arkansas Supreme Court will be able to determine its admissibility on appeal. Click here to read Dr. Ofshe's testimony.
2. Testimony of Warren Holmes
a. The trial judge refused to allow Mr. Holmes to testify in front of the jury about the results of Jessie's polygraph exam, stating that it was inadmissible. The Court did permit him to testify about interrogation techniques in general which he did. Click here to read Warren Holmes' testimony.
This testimony was crucial to an acquittal for Jessie.
This testimony of both these experts was absolutely crucial to Jessie's defense. When the Judge refused to allow the jury to hear this, it crippled our defense severely. I am convinced that had the jury heard this testimony, Jessie would have been acquitted.
My belief is based on the following:
1. After both Holmes and Ofshe testified at trial, members of the media, and other spectators told Greg and I that they felt we had won the case because their testimony was so compelling. Just think what their reaction might have been had they known everything.
2. We learned, after the trial, that the first vote the jury took in the jury room was 8 for conviction, 4 for acquittal. Despite the limitation the Court imposed on us, we were able to convince 4 jurors he was innocent. We only needed one strong willed juror for a hung-jury and ultimate mistrial, which would have been the next best thing to an acquittal. The 8 wore down the 4, however, and they reached a compromise verdict. Although, we didn't get an acquittal, we were fortunate enough to avoid a capital murder conviction, and thus the death penalty.
We are still hopeful on appeal.
Update: Re: Criminal Profiling of the Case
1. Before the trial in 1994, I attempted to retain a criminal profiler for this case. Limited funds made this quest impossible. Before the trial I came across a newspaper article describing how police investigators were using profile information received from the FBI. There was nothing in the discovery we received from the police and prosecutors that suggested anything about a profile from the FBI I
was very interested in this profile information for two reasons. First, I wanted to see if it fit my client at all. Secondly, I wanted to see if it might lead me to the real killer(s). When I asked inspector Gary Gitchell for this information, he denied ever receiving anything from the FBI. After Misskelley's trial I learned that Gitchell had lied to me and that the FBI did in fact provide an initial profile of the killer in the form of a questionare that police officers used to canvass the neighborhood where the boys lived and their bodies were found. The gist of the profile was that the police should be looking for a Vietnam veteran because the wounds to the victim Byers were similar to wounds inflicted on American personel during the Vietnam War. This profile was given to the WMPD despite the fact that the FBI never visited the crime scene or examined the autopsies. In addition, this FBI profile seemed to be based entirely upon statistical data and not on crime scene data or victimology.
2.When I contacted the PBX in 1994 to ask them about the profile, they gave me the run around and said that they had closed their file since the WMPD had made arrests within a few weeks of the homicides. When I advised them that I felt a serial killer might be responsible for this crime and that he was still on the loose, they assured me that an agent would contact me regarding same. The agent never did and when I flew to Washington in September of 1994 with my case file, the FBI refused to meet with me, again assuring me that an agent would contact me. None did.
3. After several attempts to obtain the services of a criminal profiler, I finally met with success after being referred to Brent Turvey by Kathy Bakken of the WM3 Support Fund group. Turvey agreed to look at the case in 1997 on a pro bono basis since he was interviewing for a job with the Arkansas Criminal Justice Insitute and wanted to avoid the possibility of any appearance of bias on his part. Turvey turned down the Arkansas position in part because he was told he could only assist law enforcement and never the defense If he took the job.
3.Brent Turvey's profile has been invaluable to me and other members of the
defense team in assisting us in obtaining new evidence and investigative direction.
I. JESSIE MISSKELLEY'S SO-CALLED SECOND CONFESSION
I am often asked to explain the events surrounding my client's so-called second Confession. Many people look to this "second" confession as a way of dismissing the claims by the defense that Misskelley statements were the product of coercion by police and thereby false. These people do not know the factual basis surrounding Misskelley's post trial statements. In 1994, after Misskelley's conviction and immediately prior to the Echols/Baldwin trial in Jonesboro, prosecutors were desperate for Misskelley's testimony against his co-defendants. They did not feel that they could obtain convictions against Echols and Baldwin without Misskelley's assistance. This is evident for the scene in "Paradise Lost" where prosecutors are explaining to the victims' families that the chances were slim without Misskelley's testimony and cooperation. I prepared a Motion to Dismiss based upon Prosecutorial Misconduct for Echols and Baldwin's attorneys which was denied by the trial Court. In this motion, the factual basis surrounding Misskelley's second confession is laid out. It is public record and set forth herein in its entirety:
IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
STATE OF ARKANSAS PLAINTIFF
Vs. No.:CR93 ______
DAMIEN WAYNE ECHOLS and CHARLES JASON BALDWIN
Comes now the Defendants, by and through their Court Appointed Attorneys, and for their Motion, hereby state and allege as follows:
1. That a CoDefendant, Jessie Lloyd Misskelley, Jr., was convicted on February 4, 1994, of the offenses of one (1) count of First Degree Murder and two (2) counts of Second Degree Murder and was sentenced by the Court to life imprisonment on the First Degree Murder charge and twenty (20) years imprisonment on each count of Second Degree Murder to run consecutively. On February 4, 1994, the Court and the Prosecution was informed by counsel for Jessie Lloyd Misskelley, Jr. that said sentences were going to be appealed to the Arkansas Supreme Court. That the Court and the Prosecution was further informed by defense counsel that Jessie Lloyd Misskelley, Jr. had no intention of testifying against his codefendants Damien Wayne Echols and Charles Jason Baldwin.
2. That Damien Wayne Echols and Charles Jason Baldwin are each charged with three (3) counts of Capital Murder and their trial is set to start in Craighead County on Tuesday, February 22, 1994.
3. That the Prosecuting Attorney, his Deputies, the Clay County, Arkansas Sheriff's Department and
the Craighead County, Arkansas Sheriff's Department have all known that Daniel T. Stidham and Gregory L. Crow were the duly appointed attorneys for Jessie Lloyd Misskelley, Jr. since June, 1993.
4. That on February 4, 1994, following sentencing of the Defendant, Jessie Lloyd Misskelley, Jr., as set forth above, officers of the Clay County, Arkansas Sheriff's Office transported Jessie Lloyd Misskelley, Jr. to the Arkansas Department of Corrections Diagnostic Unit in Pine Bluff, Arkansas. That during transport of Jessie Lloyd Misskelley, Jr. the officers, in violation of Jessie Lloyd Misskelley, Jr.'s Sixth Amendment right to counsel and his Fifth Amendment Right to Remain Silent, elicited a statement from the Defendant.
5. That the actions of the Clay County Sheriff's Department officers on February 4, 1994, were a willful attempt to make improper contact with the Defendant, Jessie Lloyd Misskelley, Jr., without the knowledge and consent of his Court appointed attorneys, and that said conduct on the part of the officers is imputed to the Prosecuting Attorney whether the Prosecuting Attorney had direct knowledge of said actions or not.
6. This impropriety represents a conscious, calculated and ongoing attempt by the Prosecution to interfere with the attorney/client relationship between Jessie Lloyd Misskelley, Jr. and his Courtappointed attorneys and to circumvent Jessie Lloyd Misskelley, Jr's. Fifth and Sixth Amendment rights as guaranteed him by the U.S. Constitution.
7. That on Tuesday, February 8, 1994, and again on Tuesday, February 15, 1994, the Defendant, Jessie Lloyd Misskelley, Jr's court appointed attorney, Daniel T. Stidham, visited with the Defendant, Jessie Lloyd Misskelley, Jr., at the request of the Prosecution.
8. That on Tuesday, February 15, 1994, Daniel T. Stidham, in person, again, notified the Prosecuting Attorney's Office that Jessie Lloyd Misskelley, Jr. had no desire to testify against his codefendant's, Damien Wayne Echols and Charles Jason Baldwin, and would not be testifying against said codefendants.
9. That on Wednesday, February 16, 1994, Deputy Prosecuting Attorney John Fogleman contacted the Defendant, Jessie Lloyd Misskelley, Jr.'s father, Jessie Lloyd Misskelley, Sr., and requested that he talk his son into testifying against his codefendant's in exchange for a forty (40) year sentence. Mr. Misskelley, Sr., again, informed the Prosecution that Jessie Lloyd Misskelley, Jr. would not be testifying against his codefendants in their upcoming trial in Craighead County.
10. That also on Wednesday, February 16, 1994, the Prosecuting Attorney, Brent Davis, requested permission from Jessie Lloyd Misskelley, Jr.'s attorneys to interview Jessie Lloyd
Misskelley, Jr. Said permission was not granted.
11. Further, on Wednesday, February 16, 1994, the Prosecution obtained an ex parte Order from the Court to transport Jessie Lloyd Misskelley, Jr. to Craighead County to testify against his codefendants. This Order was obtained without the knowledge and consent of the Defendant, Jessie Lloyd Misskelley, Jr. and his attorneys despite repeated statements to the Prosecution that Jessie Lloyd Misskelley, Jr. would not be testifying against his codefendants. The fact that Jessie Lloyd Misskelley, Jr. was being transported to Craighead County to testify as a witness was communicated to the Media and a copy of the Order transporting him was even shown on television. To this date, Jessie Lloyd Misskelley, Jr's attorneys have yet to see said Order.
12. That at approximately 6:15 p.m. on Thursday, February, 17, 1994, the attorneys for Jessie Lloyd Misskelley, Jr. received a phone call from C. Joseph Calvin, Deputy Prosecuting Attorney for Clay County, Arkansas who stated that Jessie Lloyd Misskelley, Jr. was present in his office and desired to make a statement. Mr. Calvin was informed by both of Jessie Lloyd Misskelley's attorneys that he was not to take any statement from their client, Jessie.
13. That the CoDefendant, Jessie Lloyd Misskelley, Jr. was transported to Rector, Arkansas on February 17, 1994, by a member of the Craighead County Sheriff's Office. That during transport of Jessie Lloyd Misskelley, Jr. the officer, in violation of Jessie Lloyd Misskelley, Jr.'s Sixth Amendment right to counsel and his Fifth Amendment Right to Remain Silent, elicited statements from the Defendant and encouraged Jessie Lloyd Misskelley to testify against his Co Defendants. Said officer even promised to bring Jessie Lloyd's girlfriend to the Jail to visit him.
14. That the actions of the Craighead County Sheriff's Department officer on February 17, 1994, were a willful attempt to make improper contact with the Defendant, Jessie Lloyd Misskelley, Jr., without the knowledge and consent of his Court appointed attorneys, and that said conduct on the part of the officers is imputed to the Prosecuting Attorney whether the Prosecuting Attorney had direct knowledge of said actions or not.
15. This impropriety represents a conscious, calculated and ongoing attempt by the Prosecution to interfere with the attorney/client relationship between Jessie Lloyd Misskelley, Jr. and his Courtappointed attorneys and to circumvent Jessie Lloyd Misskelley, Jr's. Fifth and Sixth Amendment rights as guaranteed him by the U.S. Constitution.
16. That Daniel T. Stidham
and Gregory L. Crow arrived in Rector, Arkansas at approximately 7:00 p.m. and discovered that Prosecuting Attorney Brent Davis was also present at the office of Joe Calvin and that prosecutors had already communicated with their client without their knowledge and consent. That said attorneys were allowed to communicate with their client, Jessie Lloyd Misskelley, Jr., for only approximately fifteen minutes when Prosecutors Davis and Calvin burst into the conference room and demanded to take a statement from Jessie Lloyd Misskelley, Jr. Stidham and Crow objected to the interference and informed prosecutors that they wished to visit with their client uninterrupted. Prosecutors then expressed their fear, in the presence of Jessie Lloyd Misskelley, Jr., that Defense Attorneys would convince Jessie Lloyd Misskelley, Jr. to decline to make a statement to them. Jessie Lloyd Misskelley, Jr. then stood up and announced that he wished to make a statement in spite of the advise and counsel of his attorneys, and exited the conference room and refused to talk to his attorneys further.
17. That the Honorable Judge David Burnett was telephoned at which time Mr. Stidham voiced his objections to his client being present in the prosecutors office in the first place, that his presence at the prosecutor's office was a violation of his client's Constitutional rights, that Mr. Misskelley had requested psychiatric care on Tuesday, February 15, 1994, that he questioned Jessie Lloyd Misskelley, Jr's current mental competency and requested a mental evaluation, and that Jessie Lloyd Misskelley, Jr. had informed him on Tuesday, February 15, 1994 that he did not wish to testify against his codefendant's. The Court denied the objections and request for a mental evaluation by Mr. Stidham and permitted the Prosecution to offer use immunity to Jessie Lloyd Misskelley, Jr. and take his statement over said objections.
18. After taking his statement, the Prosecution transported Jessie Lloyd Misskelley, Jr. to the Clay County Detention Center. Jessie Lloyd Misskelley, Sr. traveled to Clay County to talk to his son but was denied access to his son by Clay County Officials.
19. That the Prosecution, the Court and attorneys for Damien Wayne Echols and Jason Baldwin were notified on February 18, 1994, that the attorneys for Jessie Lloyd Misskelley were "outraged" at the conduct of the prosecution and that the Prosecution was to have no further contact with the Defendant, Jessie Lloyd Misskelley, as reflected in Defendants Exhibit "A" attached hereto.
Prosecutors, again, visited with Jessie Lloyd Misskelley, Jr. without the knowledge and consent of his attorneys on Friday, February 18, 1994, Saturday, February 19, 1994 and on Sunday, February 20, 1994 in direct violation of his Fifth and Sixth Amendment Rights as guaranteed him by the U.S. Constitution.
21. That the abovementioned conduct and actions of the Prosecution are a willful and deliberate attempt to make improper contact with the Defendant, Jessie Lloyd Misskelley, Jr., and said actions and conduct are a conscious and calculated attempt to circumvent the Fifth and Sixth Amendment rights of the Defendant, Jessie Lloyd Misskelley, Jr. Further, said actions and conduct were a calculated and deliberate attempt to interfere with the attorney/client relationship between Jessie Lloyd Misskelley, Jr. and his Court appointed attorneys.
22. Arkansas Law does not permit the prosecutor to call a codefendant as a witness against other codefendants when he has knowledge that the codefendant would be advised to assert his Fifth Amendment privilege against self incrimination. Here counsel for Jessie Lloyd Misskelley, Jr. had repeatedly advised the Prosecution that Jessie Lloyd Misskelley, Jr. would not be testifying against his co defendants, and as such, the Prosecution cannot claim that it was not aware of this fact.
23.That the abovementioned conduct and actions of the Prosecution are a willful and deliberate attempt to circumvent, and make a mockery of, the law as set forth in paragraph twentytwo (22) above, and to violate the Constitutional Rights of the defendants, Damien Wayne Echols and Charles Jason Baldwin. Said actions and conduct on the part of the Prosecution are a conscious and calculated attempt to circumvent the due process rights of said defendants, their right to receive a fair and impartial trial andtheir right to confront the witnesses against them.
24. That said conduct on the part of the Prosecution, regardless of whether or not Jessie Lloyd Misskelley, Jr. actually testifies against his codefendants, seriously undermines and impairs, or could actually makes it impossible, for Damien Wayne Echols or Charles Jason Baldwin toreceive a fair and impartial jury trial due to the fact that said conduct on the part of the prosecution constitutes a"grandstand play" which has improperly drew attention to Jessie Lloyd Misskelley, Jr.'s alleged confession which he submitted throughout the course of his trial was coerced. Potential jurors will now place emphasis on this improper "grandstand play" by the Prosecutor due to pretrial publicity.
25. That due to
the misconduct of the Prosecution as set forth herein, the Defendant's request the following relief:
a. dismissal of all the charges against the defendants with prejudice;
b. suppression of any and all statements made by the Defendant, Jessie Lloyd Misskelley, Jr., including any and all references to same;
c. that the prosecution be Ordered to not have any contact whatsoever, directly or indirectly, with any of the defendants herein, including Jessie Lloyd Misskelley, Jr.;
d. that the Prosecution be forbidden to call Jessie Misskelley, Jr. as a witness, or make any further reference to him being a witness, at the trial of Damien Wayne Echols and Charles Jason Baldwin;
e. that the Prosecution be held in contempt of Court for it's alleged misconduct and punished accordingly; and
f. that a Special Prosecutor be appointed to investigate the allegations set forth herein, preferably one from outside the Second Judicial District.
WHEREFORE, premises considered the defendants pray that this Honorable Court grant their Motion and grant the relief requested herein, and for all other relief to which they may appear entitled.
DAMIEN WAYNE ECHOLS, DEFENDANT
Val Price, Bar#
Court appointed Attorney
Jonesboro, Arkansas 72403
CHARLES JASON BALDWIN, DEFENDANT
George Wadley, Bar#
Court appointed Attorney
Jonesboro, Arkansas 72403
BRIEF IN SUPPORT
The prosecutor's role is identified in Floyd v. State, 278 Ark. 342, 645 S.W.2d 690, 693 (1983) wherein the Court stated: "...State's attorney acts in a quasijudicial capacity and it is his duty to use fair, honorable, reasonable and lawful means to secure a conviction in a fair and impartial trial."
The prosecution overreached its duties in making improper contact with the defendant, Jessie Lloyd Misskelley, Jr., in violation of his Fifth and Sixth Amendment rights. The Prosecution was informed in clear and unequivocal terms that Jessie Lloyd Misskelley, Jr. was not going to testify against his codefendants, Damien Wayne Echols and Charles Jason Baldwin, thereby invoking his Fifth Amendment right to remain silent.
The Prosecution, having this knowledge, is not even permitted to subpoena, or call Jessie Lloyd Misskelley, Jr. as a witness in the trial of his codefendants. In the case of Foster v. State, 285 Ark. 363, 687 S.W. 2d 829 (1985), the Arkansas Supreme Court stated that "The Court erred...when it permitted the prosecutor to call Pat Hendrickson, the wife of the deceased, who was charged with capital felony murder, as a witness even though both the Court and the prosecutor knew that
Mrs. Hendrickson would be advised to plead her fifth amendment privilege against self incrimination."
Thus, the Prosecution committed misconduct in obtaining an ex parte Order from the Court moving the defendant, Jessie Lloyd Misskelley, Jr., out of the Arkansas Department of Corrections to Craighead County to serve as a witness in the trial of Damien Wayne Echols and Charles Jason Baldwin, having been advised by Mr. Stidham that Jessie Lloyd Misskelley, Jr. would not be testifying in the trial. The Court in Foster, supra, and the Arkansas Court of Appeals in Sims v. State, 4 Ark. App. 303, 631 S.W. 2d14 (1982) explained the rationale of forbidding the prosecution from calling a witness to the stand that theprosecutor knows will invoke their fifth amendment privilege. The Arkansas Supreme Court in Foster, supra, quoting language from Sims, supra and Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074 , 13 L.ED.2d 934, 937 (1965) stated:
"The evil in the nontestimony of such a witness is not the mere calling of the witness, but the obvious inferences drawn by a jury to a series of questions, to all of which the witness refuses to answer on fifth amendment grounds. In that case the questions themselves "may well be the equivalent in the jury's mind of testimony.
"Such improper questioning, not technically being testimony at all, deprives an accused of his right to crossexamine the witnesses against him as guaranteed by the Confrontation Clause of the Sixth Amendment to the Federal Constitution."
In Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963) the U.S. Supreme Court held that "...the forbidden conduct is the conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege." The Arkansas Supreme Court in Foster, supra, characterized the prosecutions conduct as a "grandstand play," with the prosecutor trying to "build the state's case out of inferences arising from [the witnesses] assertion of her fifth amendment privilege."
In the case at bar, the Prosecutor's motive in obtaining an Order transporting Jessie Lloyd Misskelley, Jr. to Craighead County "to testify" is quite clear. Having been informed by Mr. Stidham that his client was not going to testify against Mr. Echols and Mr. Baldwin, he sought to bolster his weak case by drawing inferences in the minds of potential jurors in Craighead County that Jessie Lloyd Misskelley, Jr. "might" testify. This move gave
the prosecutor an opportunity to accomplish another improper goal. To coerce Jessie Lloyd Misskelley, Jr. into testifying against his codefendants despite being informed by Mr. Stidham to the contrary. This improper conduct is evidenced by the fact thatafter being informed by counsel for Jessie Lloyd Misskelley, Jr. and by Mr. Misskelley's father that he would not be testifying, the prosecution obtained the Order transporting Jessie Lloyd Misskelley, Jr. some fivedays prior to jury selection, and almost two weeks prior to his being needed at trial. While it is not uncommon for prisoners from the ADC to be moved to a county jail to testify, it is quite uncommon for a State prisoner to be moved this far in advance. This "advance time" gave the prosecution an opportunity to workon Jessie Lloyd Misskelley, Jr. by violating his Fifth and Sixth Amendment Rights. The Craighead County Sheriff's Deputy advising Jessie Lloyd Misskelley, Jr. on February 17, 1994, that he"should testify" in the trial of his codefendants andhis promise that the Court would "drop [some] charges" if he did testify demonstrates a conscious and calculated attempt to circumvent the Fifth and Sixth Amendment Rights of Jessie Lloyd Misskelley, Jr. Said conduct is certainly imputed to the Prosecuting Attorney whether or not he actually knew it or not.
Two things indicate that the Prosecutor had actual knowledge of the misconduct. First, Jessie Lloyd Misskelley, Jr. was taken directly to Deputy Prosecutor Joe Calvin's office in Rector despite defense counsel objections. Secondly, the Prosecuting Attorney, himself, Mr. Brent Davis, was present in Mr. Calvin's office when Mr. Misskelley arrived at the office.The Prosecutions deliberate conduct in circumventing Jessie Lloyd Misskelley Jr.'s Fifth and Sixth Amendment Rights are further demonstrated by the fact that when Mr. Stidham and Mr. Crow arrived in Rector, Arkansas at approximately 7:00 p.m. they discovered that Prosecuting Attorney Brent Davis and Deputy Prosecutor Joe Calvin had already communicated with their client without their knowledge and consent. That said attorneys were allowed to communicate with their client, Jessie Lloyd Misskelley, Jr., for only approximately fifteen minutes when Prosecutors Davis and Calvin burst into the conference room and demanded to take a statement from Jessie Lloyd Misskelley, Jr. Stidham and Crow objected to the interference and informed prosecutors that they wished to visit with their client uninterrupted. Prosecutors then expressed their fear, in the presence of Jessie Lloyd Misskelley, Jr., that Defense Attorneys would
convince Jessie Lloyd Misskelley, Jr. to decline to make a statement to them. Jessie Lloyd Misskelley, Jr. then stood up and announced that he wished to make a statement in spite of the advise and counsel of his attorneys, and exited the conference room and refused to talk to his attorneys further. The Honorable Judge David Burnett was telephoned at which time Mr. Stidham voiced his objections to his client being present in the prosecutors office in the first place, that his presence at the prosecutor's office was a violation of his client's Constitutional rights, that Mr. Misskelley had requested psychiatric care on Tuesday, February 15, 1994, that he questioned Jessie Lloyd Misskelley, Jr's current mental competency and requested a mental evaluation, and that Jessie Lloyd Misskelley, Jr. had informed him on Tuesday, February 15, 1994 that he did not wish to testify against his codefendants. The Court denied the objections and request for a mental evaluation by Mr. Stidham and permitted the Prosecution to offer use immunity to Jessie Lloyd Misskelley, Jr. and take his statement over said objections. The Prosecutors meeting with Jessie Lloyd Misskelley, Jr. on Friday, Saturday and Sunday without the knowledge and consent of his attorneys is a gross instance of misconduct.The Defendants anticipate that the Prosecution will argue that they did not violate Jessie Lloyd Misskelley, Jr.'s Fifth Amendment Rights because they granted him "use immunity" before taking a statement from him, and therefore nothing he says can be used against him. The Defendant's submit that the Court should analyze how this grant of immunity was effectuated. The grant of immunity was obtained by prosecutorial misconduct, i.e. violation of Jessie Lloyd Misskelley, Jr.'s Sixth Amendment rights. Had the prosecutor acted properly he would have never been in a position to even offer the immunity to Jessie Lloyd Misskelley, Jr. The "but for" test the prosecutors deployed in closing arguments at the trial of Jessie Lloyd Misskelley, Jr. is applicable here. In other words, "but for" the prosecutor violating Jessie Lloyd Misskelley, Jr.'s Sixth Amendment rights, he would have never been in a position to even offer use immunity to Jessie Lloyd Misskelley, Jr. The Prosecution should not be allowed, andthis Court should not condone, the violation of one codefendant's rights to the extreme detriment of the other codefendants. In fact, the Courts have long condemned the violation of the defendant's right in any respect.
This leads us to the next anticipated line of defense the Prosecution will deploy to explain their conduct, the standing of the defendants to argue this motion.
The Defendants, Damien Wayne Echols and Charles Jason Baldwin, have standing to argue this Motion because the prosecutor's misconduct did not just violate Jessie Lloyd Misskelley, Jr.'s rights but their own as well. In violating Jessie Misskelley's rights the Prosecution also violated the rights of Damien Wayne Echols and Charles Jason Baldwin. That the abovementioned conduct and actions of the Prosecution are a willful and deliberate attempt to circumvent, and make a mockery of, the law as set forth in paragraph twentytwo (22) of the Defendant's Motion, and to circumvent the due process rights of said defendants, their right to receive a fair and impartial trial and their right to confront the witnesses against them. That said conduct on the part of the Prosecution, regardless of whether or not Jessie Lloyd Misskelley, Jr. actually testifies against his codefendants, seriously undermines and impairs, or could actually makes it impossible, for Damien Wayne Echols or Charles Jason Baldwin to receive a fair and impartial jury trial due to the fact that said conduct on the part of the prosecution constitutes a "grandstand play" which has improperly drew attention to Jessie Lloyd Misskelley, Jr.'s alleged confession which he submitted throughout the course of his trial was coerced. Potential jurors will now place emphasis on this improper "grandstand play" by the Prosecutor due to pretrial publicity.In summary, the prosecutor's role identified in Floyd, supra, clearly state that the Prosecutor has a duty to use fair and honorable means to secure a conviction and to promote a fair and impartial trial. The Defendants submit that nothing in the conduct of the Prosecution set forth herein is fair or honorable, and it certainly does not promote a fair and impartial trial.
The Court states in United States v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979):
"For while in theory a trial provides the defendant with a full opportunity to contest and disprove of the charge against him, in practice, the handling of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor and obligation of the judiciary to protect
against the appearance of unfairness are correspondingly heightened...We suspect that dismissal of an indictment may be virtually the only effective way to encourage compliance with these ethical standards, and to protect defendants from abuse of the grand jury process."
The matter at hand is not a grand jury indictment, however, the difference should not lessen the ethical responsibilities of the prosecutor to protect against unfairness in promotion of a fair and impartial trial and the basic fundamental concept of "presumption of innocence until proven guilty."
Further, the ethical responsibility of protecting Jessie Lloyd Misskelley's Sixth Amendment right to assistance of counsel as afforded by the United States constitution cannot be overlooked. In addition, the impropriety of the prosecution has invaded and compromised these Defendants' constitutional rights by mocking ethical considerations and acceptable protocol.The State has caused aggravated circumstances prejudicing these Defendants resulting in prosecutorial misconduct and/or overreaching. As stated in United States v. Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976):
"To find 'prosecutorial overreaching,' the government must have through 'gross negligence or intentional misconduct' caused aggravated circumstances to develop which 'seriously prejudiced a defendant' causing him to 'reasonably conclude that a continuation of the tainted proceeding would result in a conviction,'" citing United States v. Dinitz, 424 U.S. 600, 96 S.Ct. at 1080, 47 L.Ed.2d at 274, 44 U.S.L.W. at 4312. See also United States v. Bizzard, 493 F.Supp. 1084 (1980).
In order to deter the prosecutorial misconduct and/or overreaching, this matter should be dismissed to preserve fairness, as noted in United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986) wherein the Court stated:
"The purpose of a dismissal may be to preserve fairness to the individual defendant, to deter prosecutorial misconduct, or to protect judicial integrity."
The Defendants pray that the Court grant their M