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Items seized during raid of Echols trailer. (Original list made into
two columns.)
Misskelley's Many Confessions,
Part Two
After Jessie's June 3rd confessions Damien Echols
and Jason Baldwin were arrested in a midnight raid. The state of
Arkansas requires "police to conduct searches between 6 a.m. and 8 p.m.
unless the circumstances in which the objects are to be seized are
'difficult to predict with accuracy' or when there is imminent danger
that evidence will be removed." [law as cited in Commercial Appeal,
June 29, 1993] In
order to obtain the warrant, the police had argued that the cult would
move to destroy evidence.
Prosecution
Fogleman: And based upon your investigation do you believe that items
that are being searched for and listed in this affidavit for search
warrant are in imminent danger of removal or could be destroyed or
disposed of?
Detective Ridge: Yes
sir, due to the fact that these boys are a close knit group of cult
members, which has been verified by other individuals of the community,
other witnesses who we have interviewed, we know they are very close
and when they discover that one we have in custody now is missing from
their group, they are very likely to destroy any evidence that may be
in their possession or in their residence. [Probable Cause Hearing,
June 3, 1993]
Which other individuals of the community and witnesses
had verified their participation in
the cult was not stated.
Perhaps the police expected a quick resolution to the
case, that they would find damning evidence. What they confiscated was
a lot of clothes. Perhaps they expected one defendant turning on the
other or accepting a plea bargain. What they got was three defendants
pleading
innocence. Perhaps they expected a mental illness plea. Just five years
earlier, Barbara McCoy who lived down the street from the Moores and
Byers had pled insanity for the murder of her two children during
an exorcism. She received a 13 month stay at a mental hospital.
Misskelley's court-appointed attorney Daniel
Stidham expressed reluctance to take the case - he had an eight year
old
child of
his own. Nevertheless, he hoped, since Misskelley had confessed, it
would be a simple matter of arranging a plea bargain in exchange for
Misskelley's testimony. He went on to describe his first encounter with
Misskelley. "Here he was, a pitiful dwarf of a kid, sitting on a picnic
table in the center of his cell wearing an orange jumpsuit that was too
big for him. He didn't look up or say anything. He just stared at the
floor." [Arkansas Times, James Morgan, 1996]
With this first encounter, Misskelley confessed to
his lawyer. Stidham noted that although Misskelley maintained he was
present at the murders, he could not give a narrative of what happened
and some of his information was inaccurate.
Even while confessing to Stidham, Misskelley maintained
his innocence to his father. "In a letter from the Cross County Jail in
Wynne, Ark., received by the family Monday afternoon, Misskelley denied
involvement in the slayings. 'I hope that y'all don't hate me because I
did not do it,' Misskelley wrote, saying he spent the day on a roofing
job with a man named Ricky Deese. 'I can not stand (it) in here much
longer. I will go crazy,' the letter said at one point. 'Please try to
get me out. I will die in here.'" [Commercial Appeal, June 9, 1993]
Among
the items seized from Misskelley's trailer was a shirt with a
bloodstain on it. Misskelley claimed he had cut himself on a bottle.
The police found that this blood matched that of the victim, Michael
Moore, the odds of such a match calculated at
7.2%. However, Misskelley was found to have the same blood type.
Stidham began to consider the possibility that his client was innocent.
Stidham had Misskelley's polygraph re-examined. Dr. Warren Holmes, at
the time one of the foremost experts in polygraphs, volunteered to look
them over. He concluded that the polygraph did not show Misskelley
lying when he said he was not a member of a cult or was not
involved
in the killings. Stidham concluded that he had a lawyer's worst
nightmare - an innocent
client prone to confessing.
Misskelley's trial began January 26th, 1994. Misskelley's
defense argued that he had been coerced
into confessing and that his confession did not match the facts of the
case on key issues. The prosecution presented evidence that
Misskelley's confession was voluntary and that he had
declared in his
statement that he was not afraid of the police - showing he was not
intimidated. Furthermore, they
argued the confession did match the facts on other issues.
Misskelley's
lawyers put up seven witnesses who said he
with a group at the trailer park between six and seven in the evening
when the police
came to investigate an unrelated incident at a neighbor's place: James
McNease, Charles Ashley, Jr., Jessie Misskelley, Sr., Christy Jones
Moss, Susie Brewer and Louis Hoggard. Two police officers who were
present at the scene testified that they did not see Misskelley there
and one more testified he did not recall. It was surprising that the
two officers could recall who was not
among those at the scene of a minor incident report: they were
interviewed about the event six months later, November and December of
1993.
Another four witnesses
testified that
Misskelley went wrestling with them that evening: Freddie Revelle,
Dennis Carter, Jr., Roger Jones and Keith Johnson, leaving about 8 p.m.
The prosecution
sowed doubt that they were remembering the correct dates. The trial
finished on February 3, 1994.
In later appeals, Dan Stidham alleged there was improper
interference during the jury deliberations.
"Stidham claimed the
judge committed error when, as the jury was deliberating, he opened the
jury room door and asked the foreman if the group needed lunch. Stidham
said the jury foreman told Burnett they were about finished, to which
Burnett responded: 'You’ll need food for when you come back for
sentencing.' Stidham said the foreman asked what would happen if
Misskelley were found not guilty, and Burnett shut the door without
answering." [Arkansas Democrat-Gazette September 30, 2008]
On February 4, 1994, Misskelley was convicted of three
counts of murder and was sentenced to life in prison for the murder of
Michael Moore and 20 years each for Branch and Byers.
Misskelley reacted to the verdict with panic. "Just before sheriff's
deputies took him to prison to begin a life sentence in the murders of
three young boys, 18-year-old Jessie Lloyd Misskelley Jr. wept. ''He
said, 'I'll never make it down there. I'll never get out and come
home,' '' said his father, Jessie Lloyd Misskelley Sr., of Marion. ''I
told him, 'You're stronger than that; you're stronger than me.'''
[February 6, 1994 Commercial Appeal]
Misskelley led away
after being found guilty [West Memphis Evening Times, Feb. 4, 1993].
The Police Car Confession.
The prosecution had their own sort of panic. The
constitution guarantees the right of defendants to face their accusers.
Without Jessie attesting to his confession, it could not be used in the
trials of Baldwin and Echols. The prosecution discussed with the
victims' family the outlook. "All is not lost if he doesn't testify.
But the odds are reduced significantly." [Prosecutor John Fogleman,
Paradise Lost
documentary] Davis approximated those odds: "Fifty-fifty might be
good."
[Prosecutor Brent Davis, ibid]
On February 4th, Misskelley confessed to the deputies
transporting him to prison. "Deputy James Lindsey and myself [Officer
Jon Moody] were transporting Jessie Miskelley to the Arkansas
Department of Corrections at Pine Bluff. Jessie was asked if there was
anything he wanted to say and after being assured we could not use
anything he said against him in court, he chose to talk." [Officer Moody
incident report, February 5th, 1994] By this time
Misskelley had listened to an entire trial full of evidence. His
confession appears to be a confused mash-up of presentations by the
prosecution
and defense.
Jessie pulled information from the defense. The defense
asserted that in his June 3rd
confession, Jessie had said the victims were held by a headlock but then had
been led by Inspector
Gitchell over the course of several questions to say that the victims
were
held by the ears. Ultimately, Jessie said, "By their ears and
pulling them and stuff." [June 3rd, second taped confession] Even
though on tape, Jessie denied he said this during his
confession to
the transport officers, "Jessie said he did not mention
the 'ears' to the police, only a headlock." [Officer Moody incident
report, February 5th, 1994]
Another statement seems to be referring to the police
officers who testified they did not see Jessie at the trailer court at
the time of their incident report. "Jessie stated that Officer Callahan
had lied in Court about not seeing him on May 5th." [ibid - although
the officers were Dollahite, McCafferty and Oliver]
The defense made a major point that Jessie misidentified
the time of the crime and that he said the
victims were tied up with rope when in reality they were tied with
shoestrings. In deference to the prosecution, Jessie stated why he made
these errors. "Jessie said he lied about the time and the rope to
'trick the police and to see if they were lying.'" [ibid]
Jessie added new details. "Jessie said they were hiding
behind bushes when Damion grabbed Michael Moore." [ibid] "Jason
had a
'bucktype locking knife' and 'cut it all off [from context, Byers'
penis] and threw it in the
weeds.'" [ibid] In contrast, the police stated testified they did a
grid by grid search of the area.
Beyond this, the notes mostly reiterated Jessie's previous
confessions including the rape of the victims, the phone call before
and after the crimes and Jessie leaving before the crimes were
finished.
Perhaps most critical was this note. "Jessie claims
he has felt sorry for what has happened and talks as if he wants to
testify against the other boys so they will not go free and to help
himself." [ibid]
The
accompanying
article goes on to say, "The motion said Misskelley was
offered a
reduced sentence of 40 years in prison in exchange for
his
testimony."
[West Memphis
Evening Times, February 23, 1994]
The Post-Trial Taped Confession.
Misskelley's police car confessions led to one of the
most
audacious incidents in the case. The prosecution tried to arrange a
deal with Jessie, to reduce his sentence in exchange for his testimony
in the upcoming trials. First, they met with Jessie's lawyers. They
remained unconvinced. While it might be in Jessie's best interest to
testify in terms of a reduced sentence, Stidham believed in his
client's innocence. He could not suborn perjury. The prosecution
pleaded with Jessie's father to convince him with the same lack of
success.
A head-on assault not working, the prosecution
proceeded
to
talk to Jessie without his lawyers' consent. After some preliminary
interviews, the police
transported Jessie from his prison to a jail in Corning to be nearer
to the upcoming trials. There, another taped interview was planned. Dan
Stidham later stated he learned about the transfer on the evening news.
Together with
his law partner Greg Crow, they rushed to Corning to intervene on
behalf of their client. They insisted their client not make a
statement. Stidham called Judge Burnett at home to stop the
proceedings or to delay it until Misskelley had a psychiatric exam that
had been requested earlier in the week. Burnett described receiving the
call. "Y'all were asking me to make
a ruling from my den where I was watching TV in my underwear." [Judge Burnett, February 22, 1994
Hearing]
On Thursday evening, February 17, 1994 Jessie's
next
taped confession began with admonitions
from his lawyers.
Crow
[echoing Dan Stidham]: Jessie. You realize that I don't always
agree with everything that Dan says but this time I agree with him. I
don't think you should say anything. [Misskelley taped confession,
February 17, 1994]
The confession took place at the office of Joseph
Calvin,
deputy prosecuting attorney for Clay County. Prosecutor Brent Davis
undertook most of the questioning with Calvin adding several
questions.
Excluding procedural matters, Jessie
made 193 responses to questions*. Again, the interrogators spoke the
majority of the words, 2593 to 1449 words from Jessie. Ninety questions
were yes/no, 53 requests for details and 32 were open ended. The open
ended questions often took the format "What happened next?" [*These
statistics are based on the official transcription presented here. There are
errors in this transcription. Questions that were repeated were
sometimes left out.]
Unlike the June 3rd taped confessions, Jessie often
responded he did not remember (16 instances). This may have been due to
the increased time that had passed or because Davis specifically
phrased questions asking whether he remembered.
Davis: And do you
know, do you have any idea what time it was about when you got to the
woods?
Misskelley: No I
don't. [ibid]
Davis: Do you
remember what Damien was wearing?
Misskelley: I can't
remember to this day.
Davis: Ok. Do you
remember what Jason's wearing?
Misskelley: No I
don't. [ibid]
Misskelley couldn't even remember whether he could remember.
Davis: Are there
events that took place that night, things that happened that you, that
it is somewhat difficult to remember?
Misskelley: I can't
remember. [ibid]
Misskelley described the face cut as a scratch.
Davis: Ok. Where
describe to me what, what you saw Jason do?
Misskelley: He first
he cut one of 'em on a face on his left side just a little bit like a
scratch. [ibid]
Misskelley now said that the victims weren't raped.
Several exchanges, although the following summarizes them.
Davis: Ok. You said
that he was going to screw the little or stick his penis in his behind.
What did you see Damien do?
Misskelley: They
didn't do it, he was going to it, then they didn't. [ibid]
Misskelley incorporated all of his alibi into the events.
Davis: And had you
seen anybody in Highland Trailer Park right before you left to meet up
with those two [Echols and Baldwin]?
Misskelley: Yes.
Davis: Ok and who
had you seen?
Misskelley: Louie,
Susie, Stephanie, Pat, Boomer ..um.. Cody, Stephanie, Bobbie, you know
some cop and there was some more people I couldn't tell you. [ibid]
Davis: Ok. Who threw
'em in the water?
Misskelley: Damien
and Jason.
Davis: Ok. Now were
you there when that happened?
Misskelley: I was
getting ready to leave.
Davis: Ok. Why were
you getting ready to leave?
Misskelley: Cause I
was going to wrestling. [ibid]
At the end of this confession, Jessie's lawyers
added
their opinions to the tape.
Stidham: Misskelley
is perjuring himself. Do you have an opinion Mr. Crow?
Crow: I have a very
strong opinion that he is perjuring himself. [ibid]
Over the next several days, the prosecution
continued to
meet with Misskelley at his prison cell. According to Davis no tapes or
notes were made. [February 22, 1994 hearing].
The Fiery Aftermath
Stidham was furious. In a hearing on February 22nd,
Stidham raged that there had been
prosecutorial misconduct and insisted the court initiate an
investigation.
Under Arkansas law
the prosecution can't even call Mr. Misskelley once they've been
notified that he would assert his Fifth Amendment privilege. They had
no right whatsoever to pick him up at the Department of Corrections and
transport him anyplace, much less the prosecuting attorney's office in
Rector, Arkansas. [Dan Stidham, February 22, 1994 Hearing]
Stidham claimed that his client had been kidnapped and
that the prosecution had dangled permission to have his girlfriend
visit him in prison as a reward for cooperation.
Stidham: Mr.
Misskelley instructed me on tape on Tuesday, February 15th, at Pine
Bluff, Arkansas, in the assistant warden's office that he did not want
to testify, that he wanted me to pursue this appeal and that is a
course of conduct that I undertook, and it was in the best interest of
my client. I informed the prosecutor that he was not going to
testify. Under the law, the prosecutor at that point was duty
bound to leave Mr. Misskelley alone. They did not do that. They
kidnapped him, brought him to the prosecutor's office... [ibid]
Stidham:
Basically they strongarmed him into believing it was in his best
interests to testify. They even promised to bring his girlfriend
to see
him at the jail, Judge, and I think that is the most abhorent,
ridiculous,
flagrant violation of my clients' rights that I have ever seen. [ibid]
Davis countered that he had been in contact with
co-counsel Greg Crow and the transfer and interview was done with
Crow's consent. Davis stated that Stidham had lost his perspective and
was not pursuing the best interests of his client.
Davis: What was said
was, I said, [to Crow] "I'm
tired of talking with Dan. Dan has lost his objectivity. He no
longer is doing what is in his client's best interest. He's on a
crusade. If I arrange to bring Jessie back up here, would you go
with me and meet with me to talk with him?" He said, "I'm
inclined to do that if you get him back up here." And at that
point I went ahead and prepared the order and I made arrangements to
get him back up here because, frankly, I felt like until I did and
until I got with Greg Crow and could meet with him, that there wasn't
going to be anything accomplished. [Davis, ibid]
Davis
further stated that Crow had insinuated that Stidham had not only lost
his perspective, but was losing his mind.
Davis: At one point
Mr. Stidham did call your Honor, and I think at the point where he
asked that - told the Court that Jessie Misskelley needed a psychiatric
evaluation, Mr. Crow, who was sitting next to me at that time, made the
comment
that someone in the room needed a psychiatric evaluation but he wasn't
sure
that it was Jessie Misskelley, Junior. [ibid]
Stidham disputed Davis' account, saying that Crow had not
given consent for such a meeting.
Stidham: Mr.
Crow has told me that that did not happen. Furthermore, I resent
the fact that the prosecuting attorney has to decide what my duties as
defense counsel is and his desire to call my law partner and tell him
that I'm off my rocker and I don't know what my client's telling me.
[Stidham, ibid]
Stidham:
Mr. Crow called Mr. Calvin and said, "We are not going to meet you at
your
office with our client. We are not going to do that." They did
it anyway. [ibid]
Crow was not at the hearing, he had a conflict due to an
unrelated deposition. Stidham offered Crow's affidavit - an important
account that I don't have available. Judge Burnett, however, did
read a portion into the record.
Burnett,
citing Crow's affidavit: "On Wednesday February 16, 1994, [one day
before the taped session at Corning] the
prosecuting attorney, Brent Davis, telephoned me and requested
permission from
myself and my co-counsel, Mr. Stidham, to interview Jessie Lloyd
Misskelley,
Junior. Said permission was never granted."
Stidham: That's correct, your
Honor.
Burnett: The way I'm seeing it
there's a difference of opinion between
Mr. Davis and Mr. Crow as to what was said on Wednesday before the
order was
obtained bringing him back. [February
22, 1994 hearing]
Judge Burnett rejected Stidham's arguments. He fired
Stidham - partly.
Stidham: Your Honor,
am I being relieved?
Burnett: No.
You have the obligation to perfect the appeal unless you are relieved
by the Supreme Court. [ibid]
For matters related to negotiating Misskelley's
testimony, Burnett appointed
another attorney, Phillip Wells.
Phillip Wells, Petition
for Attorney's Fees, March 24, 1994
With
the prospect of Misskelley testifying the other defendants' attorneys
joined in the melee and matters became topsy-turvy. Echols attorney
Scott Davidson, brought up the matter of a tape that Stidham had said
he had played to
the prosecution announcing that Misskelley would not testify.
Davidson: We also
request a copy of any tape that Mr. Stidham has that he played for
Brent's secretary and thereby wouldn't be privilieged anymore.
Fogleman: It
is the client's privilege.
[Baldwin attorney]
Paul Ford: Are you representing Mr. Misskelley now?
Fogleman:
Somebody has got to.
Ford: Y'all
don't have a conflict -- you two gentlemen -- the prosecutors --
Stidham: It
seems incredulous that the same two guys who are wanting to kill him
two weeks ago are now his best friends -- [Hearing, February 22, 1994]
Ultimately, Misskelley declined to testify.
The Statement in the Appeals
Referring to Misskelley's February 17th statements,
Burnett declared,
Burnett: I told
[Davis]... that if they were going to take a statement against your
[Misskelley's lawyers] desires and over your objection, that the boy
should be afforded that protection, that anything he said from that
point on could not be used against him in any subsequent legal
proceeding. [ibid]
By Arkansas law, the initial appeals are reviewed by the
trial judge. As part of the proceedings, Burnett did take into account
Misskelley's February 17th statements, a decision upheld by The Supreme
Court of Arkansas.
Thus,
while the trial court erred in its interpretation of section
16-112-208(e)(3) to include only evidence of guilt, it was not error
for the court to consider the immunized statement of Misskelley taken
on February 17, 1994. [Arkansas Supreme Court Decision, Misskelley,
2010, Ark.
415, p. 7]
The
statement was attached in response to Echols request for DNA testing.
Oddly, even though the issue was DNA, it was the only attachment.
In previous
pleadings in circuit court, the State relied upon and attached as an
exhibit Misskelley's post-conviction statement inculpating the
defendants. The Arkansas Supreme Court concluded that under its
decision in Echols v. State, 2010 Ark. 417, SW 3d, the statement was
part of "all" the evidence to be evaluated on remand. See Misskelley,
2010, Ark. 415, at 7 [excerpted immediately above]. Thus, the State
will again rely on that statement as well as others made by Misskelley
at the coming hearing and in any post-hearing briefing. [State's
Reponse to Echols' Motion for Additional DNA and Other Forensic
Evidence Testing. April 8, 2011]
Misskelley at the time of arrest.
