October 30, 2007
NW Arkansas Edition
By Cathy Frye
New forensic evidence shows that three West Memphis boys murdered in 1993 were mutilated by wildlife after their deaths — not by a knife during ritualistic occult killings, according to federal court documents filed Monday by attorneys representing one of the men convicted in the slayings.
The petition to vacate Damien Echols’ capital murder convictions is a new attempt by Echols’ attorneys to redirect the case from its most sensational element — accusations of satanism — and re-direct the focus to hard science, according to an second amended petition for writ of habeas corpus, filed in the Eastern District of Arkansas at 4 p.m. Monday.
Echols, now 32, was sentenced to death. He has exhausted all of his state appeals.
San Francisco defense attorney Dennis Riordan was reluctant to discuss the specifics of Monday’s filing, but did say, “The hard scientific evidence presented in the petition presents a stark contrast to the meager evidence of guilt offered at trial.”
Craighead County Prosecuting Attorney Brent Davis, who tried the case in 1994, could not be reached for comment at his office or home Monday evening. Office workers said he was in Little Rock.
Riordan said he and fellow attorney Don Horgan met with Davis in Little Rock on Monday to discuss the petition. “We’ve had a cooperative relationship and we wanted to fill them in on what we were doing,” he said.
The petition, which contains the findings of six forensic pathologists and odontologists from across the nation, contends that new DNA testing hasn’t linked any of the convicted men — Echols, Jason Baldwin and Jessie Misskelley — to either the victims or crime scene.
The recent testing has, however, further connected the stepfather of one of the boys, 8-year-old Steve Branch, to the crime scene, the newly filed court documents state.
Recent tests also revealed genetic material on Steve’s genitals that doesn’t match the DNA of Echols, Baldwin or Misskelley, court documents state.
The petition also alleges: Jury deliberations that improperly included a statement deemed inadmissible in Echols’ trial. A lack of evidence with testimony from questionable witnesses. Prosecutorial misconduct in closing arguments that prejudiced the jury. The effects of pivotal, sensational testimony from a self-described occult expert whose degrees came from an out-of-state university that didn’t require class attendance.
The petition also details new findings from a half-dozen forensic experts, all of whom agree that the boys’ injuries came from animals that preyed upon the bodies after death, challenging the prosecution’s theories that the children were mutilated by knife-wielding satanists. Animals and marine life also were responsible for the removal of 8-year-old Chris Byers’ penis and testes, the petition states. “The presence of animal predation exposes the falsity of practically the entirety of the state’s case against Echols,” the petition states, referring to testimony from the occult expert and that of a jailhouse informant who said Baldwin admitted to drinking Chris’ blood and putting the child’s testes in his mouth.
EVIDENCE RE-EXAMINED In 2001, the Arkansas Legislature passed a law that allows anyone convicted of a crime to ask for a re-examination of evidence if new tests or science have become available. Little Rock attorney Blake Hendrix, who represents Baldwin, said in an August interview that he and other members of the defense team were blunt when they asked their clients if they wanted to take advantage of the law.
“We told them, ‘Now be careful. Yes, this could prove you innocent, but it could also prove you guilty.’ All three kids said, ‘Absolutely. Let’s do this. ’”
Attorneys found three-fourths of the evidence they wanted stored in the West Memphis Police Department’s basement, Hendrix said. The rest had been entered as exhibits during the two trials and was released by the court for retesting.
Meanwhile, the defense team hired investigators to interview anyone who might have information pertinent to the case. Some were trial witnesses, Hendrix said.
Perspectives have changed since the hysteria that engulfed the case in 1993, he added. He referred to the “Ballpark Girls,” who testified that they heard Echols bragging at a softball field about having killed the boys.
“Those girls are all grown up now,” Hendrix said. “They testified in the heat of a strong fire, under national focus.”
Back then, he said, people fixated on the defendants’ penchant for black clothing and heavy metal T-shirts. “Now Metallica is so mainstream,” he said, referring to a heavy metal band that formed in the 1980 s. “People’s views change. Perceptions change.”
Another person interviewed was Terry Hobbs, the former stepfather of Steve Branch. During visits with Hobbs in early 2007, an investigator collected several of his cigarette butts.
They were sent to a California forensic serologist, who determined that mitochondrial DNA taken from the cigarette butts linked Hobbs to a hair found in one of the knots that bound Michael Moore, the third 8-year-old victim.
The investigator who collected the cigarette butts also interviewed David Jacoby, a friend of Hobbs’. On the evening the boys disappeared, Hobbs had visited Jacoby at his home, the petition states.
Jacoby agreed to let the defense swab his cheek for DNA samples.
Those samples were linked to a hair found in a tree stump at the crime scene.
In the petition, defense attorneys note the absence of DNA belonging to Echols, Baldwin and Misskelley, adding:
“As to Jacoby, who had no apparent connection to the victims and has been fully cooperative with both defense and prosecution investigators, it is certainly possible that Hobbs picked up a hair from Jacoby when Hobbs was at Jacoby’s home just before the victims disappeared.
“ If that is the case, however, then Hobbs is the logical donor of two hairs recovered at the crime scene, and he would be hard pressed to come up with an innocent explanation of how he left Jacoby’s hair on a tree root near the bodies.”
These new findings, defense attorneys say, would have created reasonable doubt during Echols’ trial. Hobbs couldn’t be reached for comment Monday evening. A number listed in his name at his last known address had been disconnected.
A HORRIBLE CRIME To understand the significance of the DNA findings described in Monday’s filing, it is important to remember how the case unfolded, attorneys say, laying forth the details and subsequent test results in a filing that numbers about 200 pages.
Steve Branch, Michael Moore and Chris Byers, all 8 years old, were last seen on May 5, 1993, in the hours after school let out, riding a couple of bicycles and a skateboard. They never got home.
The next morning, searchers found the children’s bodies in a drainage ditch that runs through Robin Hood Hills, where the children often played together.
Detectives described a horrific scene: three small boys, hogtied with their own shoelaces, lay in the water. All of them had suffered numerous abrasions and puncture wounds. Most disturbing were the injuries found on Chris Byers. There were cuts on his inner thighs and a portion of his genitalia had been mutilated and removed.
In June, three local teenagers were arrested and charged in the deaths — Echols, 18; Baldwin, 16; and Misskelley, 17.
The arrests followed a statement by Misskelley, who said he had watched as Echols and Baldwin sodomized at least two of the boys after Misskelley helped subdue them. His friends also forced the children to perform oral sex on them, Misskelley said.
He told police that Baldwin used a knife to cut the boys’ faces and to mutilate Chris Byers’ genitals. Misskelley also described previous occult activity involving orgies, and the killing and eating of dogs.
After the public heard about Misskelley’s statement, rumors involving devil-worshippers and human sacrifices swept through West Memphis.
His statement later was questioned by defense attorneys, who described Misskelley as mentally retarded.
They also noted numerous inconsistencies in his accounts of what happened, accusing investigators of forcing the teenager to say what they wanted to hear and ignoring the glaring problems in his statement.
For example, Misskelley initially said the attack took place in the morning, when the three children were known to be in school. He changed the time — four times — after prompting from detectives, the defense said.
Misskelley also described brown rope used to tie up the boys, rather than the black and white laces that came from their own shoes.
Misskelley’s statement was used in his trial. He was convicted and sentenced to life in prison.
The statement was deemed inadmissible in Echols’ and Baldwin’s trial, and was the reason their proceedings were severed from his. Baldwin received a life sentence as well.
According to Monday’s filing, however, as well as previous state and federal appeals, a witness “shoehorned” a reference to Misskelley’s statement into testimony at Echols and Baldwin’s trial.
The judge instructed the jury to disregard the reference but refused to order a mistrial, saying, “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.”
Echols’ latest petition argues that the jury not only ignored the judge’s instruction, but also considered Misskelley’s statement as evidence during deliberations.
One juror even took notes making reference to the statement as a “con,” the petition states.
Also a problem, according to the petition, was then-Deputy Prosecuting Attorney John Fogelman’s dramatic closing argument in which he cut a grapefruit with a serrated knife found in a pond behind Baldwin’s home and compared it to photographs of a wound on Byers’ thigh.
The new evidence of animal predation shows Fogelman’s argument — unsupported by testimony or evidence — to be false, the petition states. “Their misconduct was devastatingly prejudicial.”
Fogelman couldn’t be reached for comment Monday evening.