Crime Library: Criminal Minds and Methods

Opinion: West Memphis Three, Outrage in Arkansas

Evidence Overlooked

The opinions expressed in this commentary are solely those of Mara Leveritt. Also please see out feature story on the case: The West Memphis Three

Warford's affidavit is supported by evidence found after the trial. Among the exhibits now before the Arkansas Supreme Court are a page from an easel pad made in the jury room that lists "Misskelley's confession" as a reason to convict and the notes kept by an individual juror that also cite "Misskelley's confession."

Damien Echols in police custody
Damien Echols in police custody

If the justices find that Kent Arnold's actions constituted misconduct serious enough to warrant a new trial for Echols and Baldwin, state prosecutors will have to decide whether to drop the charges or bring the two to trial again. And if, as I and many others believe, there was never any sound evidence against the two in the first place, and the evidence pointing to others has only increased since, then the question looms: What would prosecutors do, with so much of the world paying attention?

On the other hand, if the justices rule that the evidence of juror misconduct is not serious enough to warrant a new trial, I cannot fathom what damage such a ruling would do to the rule of law in Arkansas. Still, I know many lawyers here who expect the state supreme court to simply reject a new trial, in which case Echols' defense team will bring the case to a federal judge.

Jason Baldwin in police custody
Jason Baldwin in police custody

We expect a ruling from the Arkansas court by the end of 2010. If a federal judge orders a new trial, the Arkansas Attorney General is expected to appeal that ruling to the U.S. Eighth Circuit Court of Appeals, which meets in St. Louis. It's impossible even to guess when such an appeal would be resolved.

For the moment, though, let's look more closely at what's before the Arkansas Supreme Court. In addition to the matter of juror misconduct, Echols is moving for a new trial based on new DNA evidence that has been developed, thanks again, to funding from supporters.

The court has been told that testing of some 70 items found with the bodies turned up nothing from any of the three defendants. Arkansas Attorney General Dustin McDaniel contends that finding, or lack thereof, does not invalidate the verdict: absence of their DNA does not prove that they did not commit the murders.

Terry Hobbs
Terry Hobbs

The findings of the DNA test were outlined in a October 29, 2007, Second Amended Writ of Habeas Corpus filed by Echol's defense attorney. The document states that the laboratory that tested the material reported that a hair found in the bindings used on one of the boys corresponded to the mitochondrial DNA of Terry Hobbs, the stepfather of one of the victims. A second hair, found in a nearby tree, reportedly corresponded to the mitochondrial DNA of a friend of Hobbs, who was with him on the night of the murders.

What the court is supposed to consider is whether it is reasonable to believe that if a jury had heard this new information at the time of the original trials, it would have still voted to convict Echols and Baldwin. Again, we should learn in the next few months how the state supreme court answers that question.

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