Devils knot, p.15
Devil's Knot, page 15
After leaving the army, Burnett returned to northeast Arkansas, where he started a private practice. He soon ran for and was elected prosecuting attorney for the Second Judicial District, and eight years later, in 1983, he was elected to the bench.162
One Arkansas reporter described Burnett as “a low-intensity judge whose idea of a good time is raising prize-winning tea roses.”163 Within his profession, opinions were mixed. While he was regarded in some circles as affable, smart, and one of the best of the region’s good ol’ boys, critics complained that he was still a policeman and prosecutor at heart, and one local politician called him “a political alligator.” Burnett made no secret of his skepticism toward testimony in the field of psychology. As the West Memphis case headed toward trial, Burnett was working on his thesis for a judicial master’s degree. He unabashedly told a reporter for the Commercial Appeal that his thesis centered on his belief that the expert opinions of psychiatrists and psychologists “shouldn’t be given the great weight that it’s normally given by courts, juries, and what have you.”164
The first ruling Burnett made was that Jessie would be tried separately from the two teenagers whom he had accused.165 Another concern Burnett promptly addressed dealt with mental competency. Perhaps anticipating that one or more of the defendants would plead not guilty by reason of insanity, the judge noted that so far, none of the lawyers had sought mental evaluations for their clients, and he gave them fair warning. “Gentlemen,” Burnett announced, “I’m concerned with the possibility of a motion to seek mental examinations and the inevitable delay that that causes…. If you don’t request it within thirty days, you’re waiving it. You’re on notice that the court is drawing a deadline as far as that defense goes.” The deadline came and went. By then it had been decided that none of the teenagers wanted to plead not guilty by reason of insanity.166 The lawyers planned to base their defenses on claims of actual innocence.
In the months ahead, Burnett would wade through a stack of motions more than a foot thick, and he’d issue more than fifty pretrial rulings. Most concerned the trials ahead. But one addressed an issue that was of personal concern to the lawyers. It asked Burnett to explain how—and how much—the court-appointed defense attorneys were to be paid. At the time, the matter was extremely murky.167 The six court-appointed lawyers told Burnett that they expected to spend hundreds of hours on the case, and that they wanted the question cleared up. Jessie’s attorney argued that he was already working full-time on his client’s defense, and that not being paid would impose a serious hardship on his family and on his legal partner. Jason’s lawyer pleaded, “I don’t feel we should have to self-finance this case until it’s over and then be reimbursed.” Burnett told the lawyers not to worry.168 “Obviously,” he said, “the attorneys are going to be paid reasonable fees.” But he offered them no specifics about when those fees might be paid.
“The Discovery Mess”
Four times between August and November, Damien, Jason, and Jessie were hauled back and forth from the boredom of their respective jail cells to various scenes of fury as they were led into court. Jessie, the smallest of the three, hunched, as though trying to make himself even smaller, as deputies marched him past the crowds. Jason walked head down and silent. But Damien seemed unable to ignore the angry taunts. Onlookers lining the sidewalks at the courthouse remarked that he looked sullen. Lax and Damien’s attorneys warned him that his demeanor could harm his defense. When Shettles visited Damien after one of the hearings, she showed him a copy of that morning’s Commercial Appeal.169 Afterward, she wrote:
The picture of Michael which appeared in this paper was very detrimental and depicted Michael looking behind him and giving the appearance he was sneering. I reminded Michael once again the community’s and law enforcement’s perception of him is a major aspect of this trial and pre-trial proceedings and should be taken very seriously. Michael stated a female photographer called his name several times before court began and indicated to him to smile. I advised Michael that in all future proceedings he should make no response. He admitted he had “blown a kiss” to the victims’ family members following court. The family members and their friends were calling him a Satan worshiper and yelling he would burn in hell. He told me they were throwing rocks at him as well. We discussed at length the fact that, although he maintained his innocence, the families had endured tremendous grief and pain and their feelings must be taken into consideration. By reacting in the manner he did, he reinforced the belief he was involved in Satanic activities.
Damien told Shettles that the sheriff’s deputy who’d transported him from the jail to the courthouse and back had been “very kind” to him. Damien chuckled that the media had wanted to take his picture, but that the photographers had seemed to be afraid of him. Recalling how, upon his arrival to court, a “circle of guards” had surrounded him, one with a sawed-off shotgun, Damien marveled to Shettles that he was considered so dangerous. As tactfully as she could, Shettles let Damien know that rather than protecting people from him, the guards had been protecting him.
Later she wrote, “Michael stated that once inside, there was no holding area, and he, Jessie, and Jason were placed in an office with guards. He said Jason smiled and shook his head, but Jessie never looked up at either of them. Once again, Michael did not display open hostility toward Jessie and stated he felt the police had put words into Jessie’s mouth to implicate him and Jason.”
While Damien’s lawyers worried, Jason’s lawyer Paul Ford became furious. During one of Ford’s visits with Jason, the boy had told Ford that Detective Ridge had recently come to the jail, to collect court-ordered samples of hair and blood from him.170 The incident that Jason then described struck Ford as “extremely troubling.” Ford fired off a letter to Gitchell, in which he explained:
My client informed me that Officer Ridge began to tell him that I was a nice guy and would try to make him like me; however, that I really didn’t care about him and that I could not be trusted. He further told my client that he knew me when I was an attorney in Wynne and he was a police officer in Wynne. He told my client that I could not be trusted and that I really did not have his best interests at heart. He also told my client that I would not do a good job for him, and that I would ultimately sell him out. He then tried to get my client to come clean, confess, and that he could be trusted to take care of him.
Ford continued:
Immediately upon learning this event, I called John Fogleman to express my anger. He agreed with me that I had a right to be angry, but was not convinced that the event had occurred. I recognize that clients make up such stories from time to time, and many times these are totally fictitious. However, what troubles me the most is that I never told my client that I knew Officer Ridge as a police officer in Wynne while I practiced law there. I know of no way that he would have been able to obtain this information other than the fact that it was told to him by Officer Ridge.
But neither Damien’s behavior nor the behavior of the police concerned the defense lawyers as much as the condition of the discovery files that Fogleman was slowly releasing. One of the defense attorneys’ earliest motions—and one that would be often repeated—urged Judge Burnett to order Fogleman or the police to help them clarify what they called “the discovery mess.”171
“The state has presented us literally mounds of evidence,” Ford told Burnett. “There’s no heads or tails of it. There’s no consistent order to it.” Ford asked Burnett to order Fogleman to reveal to the defense what portions of the police investigation were relevant to the prosecution.172
The other lawyers joined with Ford in arguing that the state should reveal its theory of the case so that they could prepare their defense, but Fogleman objected. He maintained that the law did not require him to reveal either what material was relevant or his theory of how the crime had been committed. Burnett listened. Then he addressed the prosecutor: “I understand you’re giving them everything that is in the file.”
“That’s correct, Your Honor,” Fogleman replied. He then promised that by the end of August, the defense would have everything the police and prosecutors had developed to that point. Judge Burnett considered that was good enough and denied the defense lawyers’ motion.
The Search Warrants
From then on, the defense launched motions like arrows at a fortress, and most were easily deflected. At one of the hearings, attorneys attempted to suppress evidence taken in the nighttime search—a search that they argued had been both unnecessary and illegal. Jason’s other attorney, Robin Wadley, noted that the warrant itself had been vague. He pointed out that the “blue, green, red, black (or) purple fibers” listed on the warrant were items that could generally be found “in any home in Crittenden County.” Moreover, he said, police had misled Judge Rainey by claiming that the accused were “friends and members of a close-knit cult group.” Arguing that nothing in Jessie’s statement had indicated that Jason was Jessie’s friend or had “ever participated in occultic activities,” Wadley called Detective Ridge to the stand. To Wadley’s surprise, as the officer was being questioned, he testified that municipal judge Rainey had not only approved the search warrant but had come to the police station to advise police on how to prepare it. This was highly unusual, as it later placed the judge in the position of ruling on the legality of a document that he had helped prepare. “Judge Rainey was assisting in preparing the search warrant affidavit,” Wadley said incredulously to Ridge. “Is that what you’re telling me?”
“Yes sir,” Ridge responded.
As the questioning continued, Ridge also disclosed that Rainey had reviewed Jessie’s statement and found some problems with it. Wadley asked Ridge: “You would agree with me Judge Rainey had some serious, serious concerns about discrepancies in Mr. Misskelley’s statement at the time he was to issue this search warrant?” Again Ridge replied, “Yes sir.”
Wadley next attacked the document’s ambiguity with regard to the search for “cult materials.” Wadley asked Ridge what that phrase “cult materials” meant to him. “As a definition,” the officer stammered, “a cult material, as a cult would be a group, and the cult materials would be any kind of groups with symbolism, writing, paraphernalia, that would agree with that cult.”
“Be specific,” Wadley demanded. “What are you talking about? You have ‘cult materials’ and then in parentheses you have ‘Satanic materials.’ Are you talking about specific items?”
“Books,” Ridge answered. “Reading materials. Drawings. Knives. Anything of that nature.” He then added that during the search at one home, police had found a poem that was “of a questionable nature.”
Still trying to suppress items found in the search, the defense lawyers called to the stand Lisa Sakevicius, an analyst from the state crime lab. She revealed that, in yet another unusual turn of events, she had driven from her office in Little Rock to assist the police in their search. Under questioning by Paul Ford, Sakevicius acknowledged that she would have been “surprised” if any of the fibers found with the dead boys’ bodies had been found at Jason’s house.173
When Ford asked, “Was there any scientific reason that this search needed to be conducted at night?” Sakevicius answered, “Not to my knowledge.”
To refute the assault on the warrants, Fogleman called Judge Rainey to the stand. The municipal judge contradicted the testimony by Ridge. Though Rainey admitted that he had been called to the police station after police finished questioning Jessie, he insisted, “I had no participation in the preparation of the affidavit. I had no participation whatsoever.” Rainey told Judge Burnett that he had approved the search warrant because of the “close relationship between the alleged perpetrators” and “the fact that the evidence possibly could be removed or destroyed if it was not attempted to be gathered immediately.”
Ford argued further that, as a judge, Rainey had not been independent and detached enough to properly rule on the warrant. He insisted that the U.S. Supreme Court “has been quite strict” in setting limits on nighttime searches. But Judge Burnett rejected both arguments. “It is the court’s opinion and ruling,” he declared, “that Judge Rainey was on very sound ground.”
“A Level Playing Field”
Nevertheless, Ford pressed on. Arguing that all he and the other defense lawyers wanted was a “level playing field,” he pointed out that Fogleman had recently taken the unusual step of issuing prosecutor’s subpoenas, a seldom-used tool that allowed him to question witnesses under oath before the trials. “It’s rare that you do what I did in that case,” Fogleman later acknowledged.174 But he added, “The prosecutor has a right to conduct their own investigation…and through the subpoena power, a prosecutor can compel people to give testimony, just like in a grand jury…. And there were things that I needed to know.” Most of Fogleman’s mandated interviews were conducted in September, four months after the murders. First, he questioned members of the family that the Echols family had reported visiting on the evening of May 5. The Echolses’ friends confirmed their account. Fogleman next questioned members of Damien’s and Jason’s immediate families. They too supported the boys’ accounts of their whereabouts on May 5. Fogleman then questioned L. G. Hollingsworth, the teenager who, after being polygraphed by Detective Durham, told police that he believed Damien was the killer. But L.G. told Fogleman that he knew nothing about the crime. When Fogleman questioned Damien’s girlfriend, Domini Teer, she testified that contrary to what her aunt Narlene Hollingsworth had claimed, she had not been with Damien on the service road near the Blue Beacon on the night the boys disappeared.
Lax attended the interview when Fogleman questioned Damien’s family, along with a lawyer from West Memphis who had been appointed by Burnett to represent them for that procedure.175 Lax later wrote in his notes that when he introduced himself to the court-appointed lawyer, the attorney informed him that he knew that Damien was guilty. “When I asked him what knowledge he had to lead him to believe this,” Lax wrote, “he stated, ‘They found that boy’s penis and testicles in a glass jar in Damien’s bedroom.’ I attempted to explain to him that that was not true, and he repeatedly told me I needed to check my sources, because it was true.” In fact, Chris Byers’s severed body parts never were recovered. Lax wondered how the attorney had come to be so certain. What “sources” had given the lawyer his misinformation? The exchange suggested to Lax how deeply rumors had taken root in the town. And it made him wonder if some of them had originated with the police.
Since Fogleman was questioning potential defense witnesses under oath before the trials, the defense lawyers wanted a similar opportunity to question Gitchell, Allen, and Ridge. “I am asking it in the interest of a fundamentally fair trial,” Ford said, “the right to due process, that if Jason Baldwin’s mother can be questioned under oath by Mr. Fogleman, the least I can do is to be able to question under oath Inspector Gitchell.” But Fogleman argued that the defense had already been given the officers’ reports, and he again assured Judge Burnett that the defense would receive everything the state had produced. Noting that the state faced the greater burden of proving the defendants guilty, Burnett again denied the defense lawyers’ motion. He ruled that the police would be made available to answer questions for the defense, but that he would not order the detectives to submit to questioning under oath.
Some of the defense motions were long shots, such as those asking Burnett to rule Arkansas’s death penalty statute unconstitutional,176 to prohibit so-called death-qualified juries,177 and to instruct the juries that they could return a finding of first-degree, rather than capital, murder.178 Others, such as attorney Stidham’s attempt to suppress Jessie’s confession due to tactics the police had employed, were thought to at least have a chance. But they failed nonetheless. Stidham took the defeat hard. He felt that the West Memphis police had “scared Jessie Misskelley to death” by showing him the photograph of a corpse and then playing him the eerie recording of Aaron Hutcheson’s disembodied voice. Stidham considered it a tragedy that the court was willing to admit a confession made by a minor under such circumstances.
Jason’s lawyers were just as dismayed by Burnett’s unwillingness to separate Jason’s trial from Damien’s. They did not want Jason’s case to be affected in any way by evidence or perceptions that might apply to Damien alone. “There has been considerable media coverage of Mr. Echols and particularly his having taken the nickname of Damien,” Ford told the court, “and that nickname has been associated overwhelmingly with a movie by the name of The Omen, where the main character in that movie, Damien, is the Antichrist.” Pointing out that “there has been an awful lot of publicity and speculation as to occult activities and whether or not this was a killing that was associated with an occult type ritual,” Jason’s lawyer argued that “the publicity as to that occultic type activity has been predominantly centered around Mr. Echols, as opposed to Mr. Baldwin.” He added, “If the two cases are tried together, Baldwin could be associated with activity that there is no evidence he ever participated in.” He did not want Jason to be painted with the same broad brush as Damien.
Though Burnett refused to sever, or separate, the trials, Ford continued to raise additional issues to support that contention. At another pretrial hearing, he raised the subject of Narlene Hollingsworth’s expected testimony that she had seen Damien, not with Jason but with Domini, on the service road on the night of the murders. Noting that Arkansas law required that cases be severed when their defenses were antagonistic, Ford explained that Hollingsworth’s testimony “places Mr. Echols at or near the crime scene” and that because of that, Jason’s trial strategy was at odds with Damien’s. The lawyers representing Damien asked that the trials be severed, as well. But Burnett was not persuaded. Citing the need for “judicial economy” and stating that he could find “no reason that either defendant would be unduly jeopardized by a joint trial,” he denied all motions for severance. He addressed the lawyers’ concerns by advising them that “the jury, of course, will be instructed that they are to treat each defendant separately in viewing and evaluating the evidence.”
