The fight to free the West Memphis 3

Six years after the conviction of three young men in the "Paradise Lost" triple homicide, a burgeoning movement insists they're innocent.

Topics: HBO, Paradise Lost,

The fight to free the West Memphis 3

Despite the shouts coming from fellow death row inmates, Damien Wayne Echols’ voice sounds relaxed as I listen to him on a speakerphone in the Los Angeles home of one of his supporters. In a matter-of-fact tone, the “star” of the Emmy Award-winning 1996 HBO documentary “Paradise Lost: The Child Murders at Robin Hood Hills” and its recent sequel, “Paradise Lost 2: Revelations,” describes his surroundings in the Tucker, Ark., maximum-security unit: “I’m in a 9-by-12-foot cell,” explains Echols. “Kind of squatted down here in the doorway. The telephone is a pay phone on wheels they can push up to the door. The phone’s sitting outside. I have the receiver inside. I have to reach out to dial the number.”

A recorded voice interrupts the collect call to tell us there are two minutes left. Calls are cut off after 10 minutes, though Echols can call back as long as no other prisoners wish to use the phone. Echols continues without comment.

“In my room, there’s a concrete slab in the back where you put one of those mats like kindergartners take naps on. That’s where you sleep. There’s a sink, a metal toilet and a little table bolted to the wall. You’re allowed to have one blanket, an Army reject. Sometimes, you can see through them because they’re so old.

“The entire cell is concrete, except for the door, which is a sliding bar door they control from a booth. The walls are bare. You’re not allowed to have anything hanging on them. They do have air conditioning, but they don’t run it too often in the summer to save money. If you move, you’re covered in sweat.”

Echols is locked in his cell 24 hours a day, except for Mondays and Thursdays when guards take him outside for an hour, though he says this doesn’t always happen. He’s also out of his cell for a 10-minute shower on Tuesdays, Thursdays and Saturdays. When he has visitors (he’s allowed one per week), he gets three hours with them. On the plus side, Echols has a radio he can listen to, though he’s not allowed CDs or tapes. He can receive printed matter, and he has subscriptions to several magazines such as the New Yorker and Harper’s. Sometimes supporters send him books via Amazon.com.



As for death row cuisine: “They don’t even wash a lot of it,” says Echols. “They grow it here themselves, certain vegetables and stuff. You can’t really tell what it is because they cook it all the same. Sometimes you’ll find grasshoppers or crickets in it.” Then the recording announces the end of the call, and the line goes dead.

What did you expect? It’s Arkansas’ death row, not the Marriott. The reason Echols has spent six years in this little patch of hell is that in 1994, at the age of 19, he was found guilty of capital murder in the deaths of three 8-year-old boys in West Memphis, Ark. The boys — Steve Branch, Michael Moore and Chris Byers — were discovered May 6, 1993, naked and hogtied with their own shoelaces at the bottom of a creek bed in a patch of woods known as the Robin Hood Hills. All three had been brutally beaten. Two died from drowning. The third, Byers, bled to death from wounds to his groin. He’d been repeatedly stabbed, and castrated.

The West Memphis police said that Echols was the leader of a makeshift satanic cult, and that the murders were ritualistic and intended to confer demonic power on the killers. The cops said that Echols’ accomplices were two other local boys: a soft-spoken 16-year-old named Jason Baldwin and Jessie Lloyd Misskelley Jr., a mentally handicapped 17-year-old with an I.Q. of 72.

Echols and Baldwin were tried together and convicted in ’94. Echols, regarded by the jury as the ringleader in the killings, was sentenced to death. Baldwin got life without parole. Misskelley, tried before the other two, was found guilty on the basis of his confession and sentenced to life plus 40 years. Baldwin and Misskelley are each doing their time in different prisons from Echols.

Darkly charismatic and obviously intelligent, Echols has always been the enigma at the epicenter of the tragedy. Even he admits that most people “cannot separate me from the case.” In the first “Paradise Lost” film, Echols’ disaffected manner, his encyclopedic knowledge of all things occult and his comment that he would be forever feared as the “West Memphis boogeyman” made him look like one of the nihilistic teens in the 1986 movie “River’s Edge.” On the stand, he was a defense attorney’s worst nightmare.

“It was pretty much just scared childishness,” says Echols of his infamous “boogeyman” comment. “That’s how I was at the time. Young and stupid.”

In hindsight, his persona bespoke a sensibility shared by many with an interest in the macabre or the Gothic — a pose more suited to art college than death row. In any case, Echols grew out of the phase. Now he devotes himself to Buddhism while waiting for his death sentence to be carried out — by lethal injection.

He’s not without friends. A growing group of defenders believe that Echols, Baldwin and Misskelley are victims of an injustice. Fired up by the first documentary, a Free the West Memphis Three Support Fund sprang up with a Web site run by three professionals in the entertainment industry — photographer Grove Pashley, screenwriter Burk Sauls and art director Kathy Bakken. This trio, all in their 30s, jumped into the fray in 1996. They visited Echols and the others in prison, attended appeals hearings, hired a forensic profiler who discovered exculpatory evidence and launched the site, which they say gets from 4,000 to 8,000 hits a day.

“It’s like my second job,” Sauls tells me. “When I get up in the morning, I’m working on this case. And before I go to bed at night, I’m working on this case. Sometimes, I have to remind myself to do some ‘work-work’ so I can make money to keep going.”

Bakken says that her company was designing the posters for the first “Paradise Lost” film when she saw a screener. Engrossed, she passed the tape on to Sauls and Pashley, both friends of hers. Soon all three were reading everything they could about the case, and a few months later they traveled to Arkansas for the first time to meet with the young men they would dub the West Memphis 3.

“When we went there, the lawyers hadn’t talked to him in about a year,” she says of Echols. “He was just sort of abandoned. I think all of the support has helped him a lot.”

Convinced of the WM3′s innocence, Bakken eventually went so far as to take a class in criminal profiling given in Los Angeles by noted profiler Brent Turvey. She asked Turvey to look into the case, and Turvey discovered what he thought might be bite marks on the body of victim Chris Byers. A forensic odontologist later testified during a 1999 appeal of Echols’ case, known as a Rule 37 hearing, that there were indeed bite marks on the Byers boy, according to his examination of autopsy photos. Impressions made of the teeth of Echols, Baldwin and Misskelley reportedly ruled out all three as sources of the marks. However, the prosecution disputed the evidence with its own forensic odontologist, and the appeal was later denied.

Bakken, Sauls and Pashley have aided the WM3 in other ways. They’ve cultivated celebrities to aid their cause, and have become the means through which Echols and the others communicate with the outside world. On June 9, their Web site received an enormous spike when “South Park” co-creator Trey Parker exclaimed “Free the West Memphis 3!” while accepting a trophy at the MTV movie awards. Parker caused another spike on July 16 when Access Hollywood showed an interview with Parker and his partner, Matt Stone. Parker was wearing one of the support fund’s black T-shirts imprinted with the WM3 site’s URL.

In addition, the Free the West Memphis Three fund has been crucial in bolstering the theatrical release of “Paradise Lost 2: Revelations,” in which all three organizers appear. The opening night of the film’s limited run in Los Angeles on July 28 drew more than 200 people, impressive considering that it has been running on HBO for several months now. “PL2″ was scheduled for theatrical release Thursday in Seattle. It will open in New York, Portland, Ore., and San Francisco in September.

Bakken, Sauls and Pashley are organizing a banner comprising postcards in support of the WM3 from all over the world. They plan to surround the Arkansas Supreme Court in Little Rock with the banner on the date of Echols’ appeal (yet to be announced). They’re also touting the release of a WM3 benefit CD in September from Aces and Eights Recordings, which will include tracks by Eddie Vedder, Tom Waits, L7, Nashville Pussy and others.

Filmmakers Joe Berlinger and Bruce Sinofsky — the creative team behind both documentaries (and the widely acclaimed “Brother’s Keeper,” released in 1992) — say that Bakken, Sauls and Pashley have helped move the case of the WM3 from the entertainment pages to the editorial pages. “We used them extensively in the second film,” says Sinofsky. “One, because they were good subjects. Two, because they had involved this criminal profiler. And three, because the first film had become this event documentary and attracted tens of thousands of people to their Web site. They were there, and they were active in what they considered to be their search for justice.”

Indeed, in the second film, Bakken, Sauls and Pashley — each one clean-cut and well-spoken — parallel to some degree the roles played by the Canadian activists in Norman Jewison’s “The Hurricane.” They energize other supporters and act as self-appointed watchdogs and secondhand sleuths.

“I probably wouldn’t get near [as much] support or interest that I have without what they’ve been doing,” says Echols. “Without them being constantly there 24 hours a day to give out information, people would see the film and say, ‘Oh, that’s too bad,’ and just go home and forget it. Now they go on the Web site and get involved.”

Strangely, the argument in favor of a new trial for the WM3 can be summed up in a statement from Gary Gitchell, the former chief of detectives for the West Memphis police and the lead investigator on the triple homicide. Gitchell, who retired in triumph after Echols and the others were convicted, now works as a manager for Pinkerton Consulting and Investigations in Memphis, Tenn. He says he still adamantly believes in the guilt of Echols, Baldwin and Misskelley. But he concedes the prosecution’s case was far from bulletproof.

“You’ve got a lot of circumstantial evidence is what you’ve got,” Gitchell says. “There’s no smoking gun. This is not a smoking-gun-type case.”

Instead, Gitchell says that one has to look at the preponderance of the evidence. According to him, this includes statements made by two teenage girls who claim to have overheard Echols confess to the crimes; a hunting knife found in a lake behind Baldwin’s home (though it was never linked to the murders); a fellow inmate’s statement that Baldwin made a jailhouse confession; and the hotly contested confession of Misskelley.

Misskelley’s confession was the main evidence presented against him in court. The West Memphis police questioned Misskelley for several hours, gave him a polygraph, told him he flunked (an expert retained by the defense later said he passed) and then informed the mildly retarded teenager that he could either play ball with the law or fess up. Misskelley confessed as the police taped the last 30 minutes or so of his interrogation. But he made a series of mistakes, even though the officers asked leading questions. Misskelley got the time of the crime wrong until the cops corrected him. He said the boys were tied up with brown rope, instead of their own shoelaces. And more than once he misidentified the boys shown to him in pictures.

“I was telling them I don’t know nothing about this,” Misskelley told the filmmakers in “PL2.” “But [the police] kept aggin’ it on, aggin’ it on, aggin’ it on. Finally, I just said something so they would leave me alone.”

Misskelley’s attorney, Dan Stidham, now a municipal court judge in Arkansas, put experts in false confessions on the stand and presented a dozen witnesses to Misskelley’s alibi that he was 50 miles away in another city on the evening of the murders. But the jury chose to believe the prosecution.

“I have it from a very reliable source that the initial vote was eight to four,” says Stidham. “Eight for guilty on capital murder and four for outright acquittal. Over the next 12 hours, the jury came to a classic compromise verdict. Four said we’ll vote guilty, but you’re not going to do the death penalty because we’re not sure. Mr. Misskelley was actually convicted on two counts of second-degree murder and one count of first-degree murder. Even though he confessed, and the state had the strongest case against him, he got the least punishment, ironically.”

Stidham is appealing his client’s case, though the focus of the WM3 cause is now on Echols because he’s sitting on death row. Interestingly, Stidham does not believe that Gitchell set out to elicit a false confession from his client.

“Gitchell just didn’t realize how mentally handicapped Mr. Misskelley really was,” he says. “I think the situation got carried away, and they put too much pressure on this kid. Even though he was chronologically 17 years of age in 1993, he literally had the mind of a 5-year-old. Five-year-old children believe in the Easter Bunny and Power Rangers. You take someone of that intellect, you hook him up to a polygraph machine, give them an exam and then tell them they’re lying their ass off. When you do that, you distort their view of reality. You’re going to get what you want to hear, basically.”

Yet Gitchell insists his conscience is clear. “When you put it all together, it’s a convincing case,” he says. “We treated Jessie and everyone else who was involved in this case as if they were our own kids. It’s the law. You’ve got to. But we also knew the media was watching. We had to watch what we did because we knew we would be judged on it.”

In 1994, Circuit Judge John Fogleman was the deputy prosecutor on both trials and he played a key role in convicting all three young men; he is a constant presence in both films. Over the phone, his accessibility and Southern charm are disarming — like someone who has run for office before and no doubt will again.

“I don’t have any problem with any amount of investigation,” he tells me in his pronounced drawl. “If I’m wrong, if the jury is wrong, it ought to be corrected. But I don’t believe we were wrong. I welcome any investigation.”

Fogleman says he did have some “problems” with Misskelley’s confession, but on the whole found it credible. He says he does not believe it was in any way coerced.

Like Gitchell, Fogleman cites the knife found near Baldwin’s home as well as the hearsay testimony of the teenage girls and others. But all combined, it seems like an unusual paucity of evidence with which to seek a murder conviction, much less an execution.

“I would’ve loved to have had a stronger case,” says Fogleman. “But you get what you’ve got. And when you get the evidence we had, and it was sufficient to go to a jury, what choice do you have?”

Fogelman concedes, “There was a lack of physical evidence to tie anyone or anything to the crime scene. There was not a drop of blood — not that could be seen with the naked eye. The crime lab did some luminol testing, which is not admissible as evidence, and where we say that the murders happened, there was a reaction.”

Fogleman and his fellow prosecutor, Brent Davis, also turned to the occult to help them out. As evidence they offered books that Echols had obtained from the local library on witchcraft, read excerpts from Echols’ rambling notebooks, showed the jury “satanic” images Echols had on the walls of his room and offered “cult cop” Dale Griffis as an expert in teenage Satanists.

Possessing a mail-order Ph.D. from Columbia Pacific University, Griffis testified that the murders occurred near a couple of pagan holidays and were probably occult inspired. He also testified that some signs of occult activity by teenagers included black fingernails, black T-shirts and tattoos (the combination of which would be enough to indict many teenagers in America as followers of Beelzebub).

The prosecution was clearly playing to popular hysteria, which held that Echols was the leader of a satanic cult and that occult activity was rampant in that part of Arkansas. The defense blundered by putting Echols on the stand to explain his beliefs. Echols didn’t help matters by describing himself as a Wiccan, a practitioner of “white magic.” He told the jury that while investigating Catholicism he changed his first name to Damien in honor of the Catholic martyr, Father Damien, who ministered to lepers in Hawaii, caught the disease himself and died.

Like his testimony, this name change was highly unfortunate. No matter how noble the motivation, it’s hardly surprising that in the minds of many (and especially in the context of the trial) the name he appropriated evoked the 1978 horror movie “Damien: Omen II,” in which a boy possessed by demonic powers kills people. And Echols’ cerebral explanations for his various interests as well as his naturally black hair and pale complexion undoubtedly damaged his situation.

For Mara Leveritt, a contributing editor at Little Rock’s alternative newsweekly the Arkansas Times, who is herself working on a book about the case for Simon and Schuster, the courtroom focus on Echols’ beliefs transformed the proceedings into something of a witch trial.

“The admission of that kind of testimony was to my mind pretty unusual for a court of law,” Leveritt says. “To bring in ‘experts’ in the occult, for instance, and end up with prosecutor Fogleman’s statement that it’s not wrong to wear black, read certain books from the library about paganism and the occult or listen to heavy-metal music, but you put all that together and you see there’s ‘no soul there.’ That tenor of the prosecution coupled with the publicity that surrounded the case — immediately after the arrests West Memphis was the scene of many churches holding meetings where they brought in religious experts on Satanism — certainly created the climate where the convictions were made possible.”

Leveritt notes a “profound change” in the time she has been following the case from a common knee-jerk reaction that Echols and the others were guilty to the introduction of substantial doubt. In spite of that doubt and the efforts of many to free the WM3, does Leveritt believe there’s a chance Echols may still be executed?

“I certainly do,” she says. “Shoot, I’ve seen a lot of executions out here. And I know that once the initial trial takes place, all appeals are against great odds after that.”

But there are also several factors in Echols’ favor at this point. “PL2″ was a far more exculpatory film than the first, and it throws greater suspicion on victim Chris Byers’ stepfather, John Mark Byers — portrayed in both films, variously, as erratic, drug-addled and knife-toting. Whatever the truth may be, the film makes Byers, a buffoonish character who seems to have leapt straight from the pages of a Faulkner short story, look guilty as hell. And some believe a more convincing circumstantial case could be made against him than against Echols and the others. Byers is currently in jail on drug charges, but he’s not on death row. Echols is the man with that distinction, though at times it seems as if Echols’ primary sin was being weird in a small town.

Echols also has as his counsel Houston attorney Ed Mallett, a veteran defense lawyer with experience in appealing death penalty cases. Prickly and precise, Mallett is the sort of lawyer you’d want on your side if you were in Echols’ place. Though Mallett’s Rule 37 appeal to trial Judge Burnett was denied, the next stop is the Arkansas Supreme Court. If that fails, there will be a federal habeas corpus petition, and perhaps an appeal all the way to the U.S. Supreme Court.

Ironically, one of Mallett’s points in the Rule 37 appeal was that the first HBO film helped taint his client’s case. He argued that the lack of funds provided to the defense by the state of Arkansas led Echols’ counsel to engage in an unholy alliance with filmmakers Berlinger and Sinofsky, who provided much-needed financial support to the defense.

“The lawyers let the cameras into the courtroom because HBO agreed to pay the expenses of the defense which the state of Arkansas refused to pay,” says Mallett. “The result was to create a certain kind of circus atmosphere, which I think you can perceive by watching the first movie.”

Sinofsky accepts Mallett’s legal strategy, but believes that his film has had a positive impact. “If Joe and I hadn’t made these films,” says Sinofsky, “Damien would be dead already.”

Echols says he’s appreciative of the films and notes that he “probably would’ve been convicted anyway,” without the involvement of the filmmakers. But he also states that HBO’s presence “definitely impacted” the way his attorneys acted in the first trial. “I think it made them take things not quite so seriously as they should have,” he says.

For the time being, Echols leads his life as best he can. He reads, meditates, takes college correspondence courses and tries to answer his voluminous mail — sometimes up to 125 letters a day. Last December Echols was married in a Buddhist ceremony to a woman from New York who now lives in Little Rock and visits him once a week for a “contact” visit (just touching — it’s “contact,” not “conjugal”). And this September he’s scheduled to receive ordination from a Buddhist priest who’s coming from a Japanese monastery to perform the ceremony.

“I only use the term Buddhist because it gives people a handhold,” Echols says, explaining his dedication to Zen. “The thing I’ve learned is that it’s all pretty much the same. It’s like everyone’s going to the same well, but coming away with different water.”

As for the likelihood of his release, Echols remains philosophical. “I know I’ll get out. This may sound kind of morbid, but I’m on death row. So at least I know that one way or another I will get out. Either I’ll walk out or they’ll carry me out. I kind of like that idea more than [sitting] in prison for 50, 60 or 70 years and never knowing what’s going to happen tomorrow.”

Stephen Lemons is a freelance journalist and regular contributor to Salon. He lives in Los Angeles.

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