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Echols' 2002 Motion for Forensic DNA Testing

Postby Obscuregawdess » Tue May 27, 2008 12:26 pm

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Echols' 2002 Motion for Forensic DNA Testing, cont'd.

Postby Obscuregawdess » Tue May 27, 2008 12:28 pm

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Echols' 2002 Motion for Forensic DNA Testing, cont'd.

Postby Obscuregawdess » Tue May 27, 2008 12:30 pm

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Order for DNA Testing from Damien Echols

Postby Obscuregawdess » Tue May 27, 2008 12:36 pm

IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
WESTERN DISTRICT

DAMIEN ECHOLS and CHARLES JASON BALDWIN PLAINTIFFS

vs. CR-93-450A & 450B

THE STATE OF ARKANSAS RESPONDENT


ORDER FOR DNA TESTING

THESE MATTERS are before this Court because Echols and Baldwin have separately filed Petitions and Motions for post-conviction evidence testing under Arkansas Code Section 16-112-201, et seq.

FINDINGS

The Court is informed and finds that counsel for Echols and Baldwin, and the State of Arkansas, represented by the Office of the Prosecuting Attorney for the Second Judicial Circuit, have agreed that DNA analysis of the below-described items of evidence will be conducted, and that the described parties have reached an agreement on protocols to accomplish this testing. The Court is further informed, and finds, that the parties have agreed that biological material found on the below-described evidence has the scientific

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potential to produce new concumulative evidence which may be materially relevant to the defendants'/Petitioners' assertions of actual innocence for the purposes of this Court's finding of good cause for the agreed upon testing to proceed. The Court further is informed, and finds, that the State of Arkansas has reserved the right, based on reasonable notice to the Petitioners, to object to the relevance of test results obtained from testing of items enumerated and described in "List B" below as not being items which have the scientific potential to produce new noncumulative evidence materially relevant to the defendants'/Petitioners' assertions of actual innocence.

The Court is further informed, and finds, that Echols and Baldwin have agreed to pay for the testing to be conducted on the items of evidence enumerated and described below. Their agreement to make payment shall not be deemed a waiver of any rights that they may have to see reimbursement from the State for any or all of these testing related expenses pursuant to the provisions of Arkansas Code Sections 16-112-201, et seq. The Court is further informed, and finds, that the parties have agreed that Echols and Baldwin may initiate action either in this Court as a part of these actions, or by bringing separate legal actions either in this Court or in any other court the State of Arkansas, pursuant to Arkansas Code Sections 16-112-201, et seq., seeking reimbursement or payment of any costs of testing, or other costs for which the State of Arkansas is deemed and/or found to be liable, or responsible.

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IT IS HEREBY ORDERED:

1. Based on the agreement of the parties, the Court orders that the following items of evidence are to be tested using technology and techniques applicable to DNA testing, and finds that any results pertinent to the items enumerated and described in "List A" below may produce relevant information within the meaning of Arkansas Code Sections 16-112-201, et seq.:

LIST A ITEMS

Evidence Item # Related #s Lab Case # Description

Michael Moore

FP2 93-05716 Left hand nail scrapings from victim
FP3 93-05716 Right hand nail scrapings from victim
FP5 93-05716 Two (2) Caucasian hairs removed from
Moore.
FP6 93-05716 One (1) package containing ligatures
from wrists to legs, right and left,
of victim Moore.
FP6 QH 93-05176 Hair from Moore ligature
FP6 93-05176 Skin/tissue/hairs from Moore ligatures
FP7 Qt-4 93-05716 Swabs taken from Moore
FP7 93-05716 Dyed hair from FP7 (Moore)

Steven Branch

FP3 93-05717 Nail scrapings from victim Branch
FP4 93-05717 Right hand nail scrapings, Branch
FP5 93-05717 Two (2) dark Caucasion hairs removed
from Branch.
FP6 93-05717 Ligatures from victim Branch

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FP6 93-05717 Skin, tissue or hair removed from Branch
ligatures
FP6 K1-Q1-4 93-0717 Branch blood sample; swabs

Christopher Byers

FP3 93-05718 Hair found on Byers' body
FP4 93-05718 Left hand nail scrapings from Byers
FP5 93-05718 Right hand nail scrapings, Byers
FP6 QH 93-05718 Hair on lower body, Byers
FP8 93-05718 Ligatures from right and left
extremities, Byers
FP8 QH 93-05718 Hair from Byers' ligature
FP8 93-05718 Tissue, skin or hair, Byers' ligature
FP9 93-05718 Hair, perineum, Byers

Evidence Item # Related #s Lab Case # Description

FP10 QH 93-05718 Negroid hair removed from white sheet 1
FP10 Q1-3 93-05718 Swabs from Byers

Other Evidence

E3 93-05716 Hair from E3
E5 93-05716 Hair from Scout cap
E126 QH 93-05716 Hair from knife
E127 LS1-QH 93-05716 Hair from tree stump
E147 QH 93-05716 Hair from knife

Clothing Cuttings

E3 93-05716 Cuttings from blue pants
E7 93-05716 Cuttings from jeans

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1 The Court is informed, and finds, that the State has reserved the right to dispute the relevance of this item.

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Knife

E178 93-05716 Kershaw folding knife

2. Based on the agreement of the parties, the Court reserved the parties the right to object to the relevance of results of testing on Item E-178, listed immediately above, a Kershaw folding knife. The objections reserved to all parties include the objection that there was a failure to maintain a chain of custody sufficient to establish that the knife was neither tampered with, nor altered in any material aspect.

3. Based on the agreement of the parties, the Court orders testing of the items enumerated and described in "List B" below using technologies and techniques pertinent to DNA testing. The Court is informed, and finds, that the State has reserved the right to dispute whether the items in "List B" below have the potential to produce new noncumulative evidence which may be materially relevant to the defendants'/Petitioners' assertions of actual innocence.

LIST B ITEMS

Evidence Item # Related #s Lab Case # Description

E1A 93-05716 Bag of clothing, area of homicide
E27 93-05716 Hair from knife
E28 93-05716 Hair from E28 butterfly knife
E134 QH 93-05716 Hair from knife
E17 93-05716 One (1) wooden stick, scene
FP10 QH 93-05716 Negroid hair removed from white sheet

4. Within thirty (30) days of the filing of this Order, the Prosecuting Attorney, Second Judicial Circuit, and/or his designees from the Arkansas State Crime Laboratory, specifically Laboratory Criminalist Kermit Channell, shall package and deliver to the agreed upon and below described independent laboratory all of the evidence, exhibits,

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and biological material enumerated and described above. The evidence shall be delivered in packaged form using currently accepted laboratory packaging standards for the transmission by mail, or express delivery, of evidence acquired in a criminal case.

5. Within five (5) days of having transmitted the evidence, the Prosecuting Attorney and/or his designee Kermit Channell shall be responsible for ensuring that the evidence, accompanied by a copy of this Order, and a transmittal latter identifying for chain of custody
custody purposes all of the evidence described and enumerated above, is transmitted to the laboratories of the Bode Technology Group in Springfield, Virginia ("Bode"). The Prosecuting Attorney, or his designee at the Arkansas Crime Laboratory, Kermit Channell, shall file with the Court, and shall serve upon below described counsel, an affidavit describing: all evidence packaged and transmitted; the manner of packaging and transmission, including the specification of any Airbill or shipment number; and a confirmation of the receipt of the specific evidence by the agreed upon laboratory.

6. The cost of shipping the evidence shall be paid for by Petitioners Echols and Baldwin. Petitioners shall transmit to the Prosecuting Attorney and/or his designee a Federal Express account number to which the cost of the overnight delivery service shall be billed. Petitioners shall also provide the address for Bode, to which the evidence is to be shipped. On the date of the shipment, the Prosecuting Attorney and/or his designee,

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Kermit Channell shall promptly transmit either by telefax, or by mail, a legible copy of the Federal Express air bill to counsel for all parties, using the fax numbers below.

7. Upon receipt of the evidence, Bode shall inventory the evidence, using this Order as the basis for the inventory. Prior to beginning any testing, Bode shall examine the evidence to determine whether it is feasible to split the evidence so as to permit replicate testing by the State or by Petitioners. Bode shall promptly inform counsel for Petitioners of its conclusion with respect to this inquiry.

8. If Bode represents that there is insufficient evidence to split, counsel for Petitioner shall immediately notify Prosecuting Attorney Brent Davis of that conclusion, either verbally or in writing. If notice is oral, it shall be promptly confirmed in writing. If the parties cannot agree on how to proceed with the testing of items as to which too little biological material exists for splitting, the parties shall then notify the Court, in writing, either in a joint or in separate pleadings, that the matter must come before the Court for decision. Bode shall then proceed with the DNA analysis of the biological evidence.

9. The parties have agreed that if Bode determines that any of the hair evidence is not suitable for nuclear DNA testing, it shall forward such evidence to Mitotyping Technologies, L.L.C., in State College, PA, for mitochondrial DNA analysis.

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10. Upon completion of their testing and analysis, each designated laboratory shall reduce its findings in a written report, which shall be provided to the Office of the Prosecuting Attorney, and to counsel for the Petitioner. Copies of these reports shall be filed with the Court.

Reservations of Rights

11. The parties have agreed, and the Court finds, that each of the parties in this case has reserved certain rights as set forth below. The Court recognizes these reservations without purporting to adjudicate or enforce those rights at this juncture in the proceedings.

12. The State of Arkansas, through the Office of the Prosecuting Attorney for the Second Judicial Circuit, reserves the right to object to the relevance of any results of testing on any items listed herein insofar as those results may pertain to the defendants'/Petitioners' claims for relief resulting from said tests. In addition, the State has further reserved objections to the results of any test conducted on the items enumerated and described in List B above for the reasons specified in paragraph 3 above, and to the results of any test conducted on List A, Item E-178 for the reasons specified in paragraph 2, above.

13. Petitioners Echols and Baldwin reserve the right to litigate the legal and scientific validity of any of the State's objections. Petitioner have also specifically

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reserved the right to demonstrate the relevance of any biological materials, or test results, pertinent to items on List B and of any biological material, and test results, pertinent to List A, Item E-178. Echols and Baldwin also reserve the right to contest the validity of the State of Arkansas' objections to the testing of evidence items that are not the subject of this Order, but which the parties stipulate, and the Court finds, are the subject of Echols' and Baldwin's written requests, and the State's written objections. The parties have agreed, and the Court finds, that the parties have exchanged letters that evidence both the requests and objections just noted. Finally, Echols and Baldwin also reserve the right to seek reimbursement for the costs of testing pursuant to Arkansas Code Section 16-112-201, et seq., insofar as this Court, or any other court of the State of Arkansas, finds that testing was conducted on items, evidence, or biological material as provided for, covered by, or defined in, Arkansas Code Sections 16-112-201, et seq.

14. Upon written application by any of the parties to this action, this Court will adjudicate any claim of right specifically reserved under the agreement which has led to the issuance of this Order.

IT IS SO ORDERED.

David Burnett [signed]
CIRCUIT JUDGE DAVID BURNETT

DATE OF ENTRY: 5/26/04

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APPROVED BY COUNSEL:

FOR PETITIONER DAMIEN ECHOLS:

Dated: May 19, 2004

Robert C. Owen [signed]
Owen & Rountree, L.L.P.
P.O. Box 40428
Austin, Texas 78704
(512) 804-2667 phone
(512 804-2685 fax

FOR PETITIONER CHARLES JASON BALDWIN:
J. Blake Hendrix
John T. Philipsborn

Dated: May 6, 2004

John T. Philipsborn [signed]
By John T. Philipsborn
Civic Center Building
507 Polk Street, Suite 250
San Francisco, CA 94102
(415) 771-3801 phone
(415) 771-3218 fax

FOR THE STATE OF ARKANSAS:

Dated: 5/20/04

Brent Davis [signed]
Brent Davis
Prosecuting Attorney
Second Judicial Circuit of Arkansas
P.O. Box 491
Jonesboro, Arkansas 72403
(870) 972-9505 phone
(870) 933-8560 fax

Criminal Bk 95 Pg 377-386
DATE: 06-02-2004
TIME: 04:25:49 PM
RECORDED IN
OFFICIAL RECORDS OF
CRAIGHEAD COUNTY, AR.
ANN HUDSON
CIRCUIT CLERK


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"Where all think alike, no one thinks very much." *Walter Lippman

"A good heart is better than all the heads in the world." *Edward Bulwer-Lytton

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Order for DNA Testing from Damien Echols (documents)

Postby Obscuregawdess » Tue May 27, 2008 12:39 pm

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"Where all think alike, no one thinks very much." *Walter Lippman

"A good heart is better than all the heads in the world." *Edward Bulwer-Lytton

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Damien's Petition for a Writ of Habeas Corpus

Postby Obscuregawdess » Tue May 27, 2008 12:42 pm

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THIS IS A CAPITAL CASE

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

DAMIEN WAYNE ECHOLS, Petitioner,
vs.
GRANT HARRIS, Warden, Varner Unit, Arkansas Department of Corrections, Respondent.

PETITION FOR A WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY



DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
THERESA GIBBONS
(CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472

DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
(Local Counsel)

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

INTRODUCTION

1. Damien Wayne Echols, petitioner, by and through his undersigned counsel, hereby presents the instant petition for habeas corpus relief pursuant to 28 U.S.C. section 2254.

2. Petitioner is unlawfully incarcerated and restrained in violation of the United States Constitution by Grant Harris, Warden of the Arkansas state prison known as the Varner Unit located in Grady, Arkansas.

PROCEDURAL HISTORY

3. Following is a summary of the state court proceedings relating to the instant petition:

Petitioner’s Conviction and Direct State Court Appeal

4. On March 19, 1994, following trial by jury, an Arkansas trial court sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered judgment against petitioner for three counts of first degree murder in connection with the homicides of three eight-year old boys in West Memphis, Arkansas, in May, 1993. On that same date, the trial court sentenced petitioner to death for the crimes.

5. Echols timely appealed from the judgment and sentence, which were affirmed by the Arkansas Supreme Court in an opinion issued on December 23, 1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

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Petitioner thereafter challenged the state Supreme Court’s appellate ruling by filing a timely petition for a writ of certiorari in the United States Supreme Court, which petition was denied in an order issued on May 27, 1997.

The Concluded State Proceedings Relating to Petitioner’s Motion for Post-Conviction Relief Under Rule 37

6. Meanwhile, on March 11, 1997, well prior to the conclusion of direct appellate proceedings on May 27, 1997, Echols filed a motion for post-conviction relief from the trial court’s judgment and sentence, pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. (“Rule 37") Petitioner’s final Rule 37 petition, which raised many of the claims presented in the instant petition, was denied by the Craighead County Circuit Court in an order issued on June 17, 1999.

7. Petitioner timely appealed from the Circuit Court’s June 17, 1999 order. On April 26, 2001, the Arkansas Supreme Court affirmed one portion of the district court’s ruling but otherwise reversed and remanded in light of the Circuit Court’s failure to make required factual findings as to petitioner’s claims. See Echols v. State, 344 Ark. 513 (2001).

8. Following remand, in an order issued on July 30, 2001, the Circuit Court issued a new order again rejecting all of petitioner’s claims under Rule 37. Petitioner timely appealed this order but it was affirmed in an order issued on

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October 30, 2003, as reported at Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).

The Concluded State Motion to Reinvest Jurisdiction in the Circuit Court

9. Meanwhile, on February 27, 2001, while the Rule 37 proceedings described above were pending, Echols petitioned the Arkansas Supreme Court for an order reinvesting jurisdiction in the Circuit Court to allow him to seek a writ of error coram nobis. The state Supreme Court denied that petition in an opinion issued on October 16, 2003 (i.e., before the conclusion of the Rule 37 proceedings) and reported at Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003).

The Pending State Motion to Permit Forensic Testing

10. On July 25, 2002, and likewise while the Rule 37 proceedings remained pending, petitioner filed a “Motion for Forensic DNA Testing” (hereinafter “DNA motion) in the Arkansas Circuit Court pursuant to Arkansas Code section 16-112-201 et seq. Invoking the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection and due process of law, the motion asserted that the judgment and sentence should be vacated because petitioner was actually innocent of the crimes.

11. On January 27, 2003, the Craighead County Circuit Court judge who presided at

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petitioner’s trial ordered the impoundment and preservation of all material that could afford a basis for petitioner’s actual innocence claim pursuant to this statutory scheme.

12. Testing of the material subject to the Circuit Court’s preservation order and related trial court proceedings remain in progress as of the time of filing the instant petition.

TIMELINESS OF PETITION

13. 28 U.S.C. section 2244(d)(1) requires a petitioner to file a federal petition for habeas corpus relief within a year of the latest of four alternative triggering dates, including the date that the disputed state judgment became final upon conclusion of direct review.

14. 28 U.S.C. section 2244(d)(2) states that the time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

15. In this matter, petitioner filed his Rule 37 petition in the state courts prior to the conclusion of direct review. (See par. 6, supra.) The petition was a properly filed application for state post-conviction review within the meaning of section 2244(d), and proceedings founded on the petition did not conclude until

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the Arkansas Supreme Court issued its opinion on October 30, 2003. Ibid. Accordingly, pursuant to section 2244(d)(2), the one-year limitations period established by section 2244(d)(1) cannot have commenced any earlier than October 30, 2003.

16. The Arkansas Supreme Court has expressly declared that petitioner’s pending state DNA motion was properly filed. See Echols v. State, 350 Ark. 42, 44 (2002)(per curiam) (granting stay of Rule 37 proceedings pending outcome of petition for DNA testing). Furthermore, as stated in Arkansas Code section 16-112-201, the statutory scheme invoked by petitioner’s pending DNA motion expressly authorizes a person convicted of a crime to rely on such evidence in order to “. . . vacate and set aside
aside the judgment and to discharge the petitioner or to resentence the petitioner or grant a new trial or correct the sentence or make other disposition as may be appropriate. . . . ” Ibid.

17. Given the finding of the Arkansas Supreme Court and the statutory language set forth in Arkansas Code section 16-112-201 et seq., petitioner’s pending DNA motion facially qualifies as a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment within the meaning of 28 U.S.C. section 2244(d)(2). Furthermore, the DNA motion has been pending since July 25, 2002, i.e., from a date well before the end of the

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tolling period (October 30, 2003) effected by the proceedings under Rule 37, as described in par. 6-8, supra. Accordingly, the one year limitations period applicable to the instant petition, as established by 28 section 2244(d)(1), has not yet commenced in this matter.

18. Notwithstanding the foregoing analysis, the Supreme Court and Eighth Circuit Court of Appeals have yet to decide whether an Arkansas DNA motion filed pursuant to Ark. Code section 16-112-201 et seq. or a similar state DNA motion meets the criteria set forth in 28 U.S.C. section 2244(d)(2), thereby tolling the one-year limitations period set forth in 28 U.S.C. section 2254(d)(1). In the event that the Supreme Court or Eighth Circuit were to decide that such a motion does not toll that one-year limitations period, Echols’s petition for federal habeas corpus relief would arguably be due in this Court within a year of the date that the Rule 37 proceedings terminated, i.e., by October 30, 2004.

19. Accordingly, acting with an abundance of caution and in light of the sentence imposed in this matter, Echols is submitting the instant petition prior to October 30, 2004, thereby avoiding any possible challenge to its timeliness.

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REQUEST FOR ORDER HOLDING PETITION
IN ABEYANCE PENDING EXHAUSTION
OF CERTAIN CLAIMS IN STATE COURT

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20. As a result of filing this petition while challenges to petitioner’s convictions are still pending in the state courts of Arkansas, this petition contains claims as to which petitioner has exhausted his state remedies as well as unexhausted claims. The exhausted claims are stated in sections IV. and V. (par. 59-83), infra. The unexhausted claims are stated in sections I., II., and III. (par. 34-58), infra.

21. Echols requests that the district court hold his petition in abeyance pursuant to the procedure authorized by Lee v. Norris, 354 F.3d 846 (8th Cir. 2004) .

22. Every circuit other than the Eighth Circuit has authorized the regular use of the “stay-and-abeyance” procedure for mixed petitions. See Pliler v. Ford, 124 S. Ct. 2441, 2450 (2004) (Breyer, J., dissenting); Akins v. Kenney, 341 F.3d 681, 685-86 (8th Cir. 2003). The Supreme Court recently granted certiorari to settle the propriety of the procedure, see Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003), cert. granted 124 S. Ct. 2905 (Oct. 4, 2004), and it appears likely that the Court will approve the stay-and-abeyance procedure.

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23. In Ford, the five-member majority decided not to “address[] the

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propriety of this stay and abeyance procedure;” instead, it issued a narrow ruling that district courts are not required to give pro se litigants specific warnings about the procedure. Ford, 124 S.Ct. at 2446. Justices Breyer, Souter, and Stevens, however, explicitly endorsed the procedure. See id. at 2448 (Stevens, J., concurring); id. at 2449-50 (Breyer, J., concurring). Justices Ginsburg and O’Conner, moreover, both suggested that they would endorse the procedure. See id. at 2448 (“I note, however, that the procedure is not an idiosyncratic one; . . . seven of the eight Circuits to consider it have approved stay and abeyance as an appropriate exercise of a district court’s equitable powers.”) (O’Connor, J., concurring); id. at 2448-49 (Ginsburg, J., dissenting).

24. It thus appears that when the Supreme Court issues its ruling in Rhines, at least five members will endorse the stay-and-abeyance procedure. But even putting aside any predictions about the outcome Rhines, the Eighth Circuit has itself authorized the procedure in at least some cases. Thus, under Lee v. Norris, a district court may hold a petition in abeyance when “exceptional circumstances” exist. 354 F.3d at 849.

25. Mr. Echols filed his Motion for DNA Testing under Arkansas Code 16-112-202 et seq. on July 25, 2002, and that motion is still pending in state court. The motion for DNA testing raises a variety of challenges to his conviction. The

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DNA motion should, in Mr. Echols’s view, qualify as “a properly filed application for State post- conviction or other collateral review” within the meaning of 28 U.S.C. 2244(d)(2). Mr. Echols therefore maintains that the AEDPA statute of limitations will be tolled during the pendency of his DNA motion. He maintains, in other words, that his one-year limitations period has not yet begun to run since his DNA motion was filed before the Arkansas Supreme Court rendered its final judgment on his Rule 37 petition.

26. The Eighth Circuit, however, has not yet determined whether a motion under Arkansas Code 16-112-202 entitles a prisoner to statutory tolling. If Mr. Echols waited to file his habeas petition until after exhausting his DNA claims, the state could argue at that time—and this court or the Eighth Circuit could rule—that his DNA motion did not come within the tolling provision of 2244(d)(2). If this court ruled at that time that the DNA motion did not qualify for statutory tolling, it would likely set the expiration of the 2244(d)(1) limitations period on October 30, 2004, one year after the Arkansas Supreme Court’s final disposition of his Rule 37 petition. Such a ruling would render Mr. Echols’s entire petition time-barred. In short, if Mr. Echols waited to file his habeas petition until after exhausting his DNA claims, he would risk forfeiting all federal review.

27. On the other hand, if Mr. Echols were to file a federal petition now

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containing only exhausted claims, he would be forced to forfeit any claims relating to his DNA motion and other federal constitutional claims yet to be decided by the Arkansas courts. Such claims could not be raised in a second or successive petition; such petitions are barred by 28 U.S.C. 2244(b).

28. Mr. Echols thus faces a Hobson’s choice. If he waits to file his petition until his DNA claims are exhausted in state court, he risks an adverse ruling on 2244(d)(2) tolling that would deny him all federal relief. But if he files a petition now including only exhausted claims, he forfeits all opportunity for federal review of his DNA-related and other claims still pending in state court. No prisoner—and especially no prisoner on death row—should be forced to make such a choice.

29. Mr. Echols is not seeking to circumvent the state court review process or to undermine the principles of comity that underlie the exhaustion doctrine. See Rose v. Lundy, 455 U.S. 509, 515-21 (1982). He has been diligent in pursuing his claims. Mr. Echols has made every effort to comply with both Arkansas’s procedural rules and those of AEDPA. The problem he faces is not one of his own making—it is the result of an unresolved question of federal law. This unique situation of uncertainty is precisely the sort of “exceptional” case where a district court should employ the stay-and-abeyance procedure under Lee v. Norris, supra.

30. In the alternative, this court could solve this problem by resolving the

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currently unresolved question of law. This court could issue a ruling that Mr. Echols’s state court DNA motion will entitle him to statutory tolling under 28 U.S.C. 2244(d)(2) during the pendency of that motion. It could then dismiss Mr. Echols’s petition without prejudice to refiling following complete exhaustion. See Slack v. McDaniel, 529 U.S. 473, 488-89 (2000); Stewart v. Martinez Villareal, 523 U.S. 637, 650-51 (1998); Singleton v. Norris, 319 F.3d 1018, 1028-29 (8th Cir. 2003); Camarano v. Irvin, 98 F.3d 44, 45-47 (2d Cir. 1996). This court could thereby allow Mr. Echols to complete his state court proceedings without a risk of forfeiting all federal review.

31. Mr. Echols is stuck in a bind created by the AEDPA limitations period, the rule against successive petitions, and the unsettled question of law regarding the status of Arkansas state DNA motions. He seeks to exhaust all claims in state court before pursuing federal remedies, but he obviously seeks to do so in a manner that will comply with AEDPA’s various procedural restrictions. He respectfully asks this Court to issue a ruling that will allow him to do so.

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/ /
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GROUNDS FOR RELIEF

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32. This case arises under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, for each of the reasons set forth herein. The Arkansas state courts’ adjudications of the exhausted claims set forth in sections IV. and V., infra, constitute decisions that 1) were contrary to, or involved an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2).

33. Furthermore, should the unexhausted claims set forth in sections I., II., and/or III., infra, be decided against petitioner in the Arkansas state courts, such decisions will be 1) contrary to, or involve an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2).

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CLAIMS FOR RELIEF

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I. THE JURY’S EXTRAJUDICIAL RECEIPT AND CONSIDERATION OF THE INADMISSIBLE AND FALSE MISSKELLEY STATEMENT IMPLICATING ECHOLS IN THE CHARGED OFFENSES VIOLATED PETITIONER’S FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, CROSS-EXAMINATION, COUNSEL, AND DUE PROCESS OF LAW, REQUIRING THAT HIS CONVICTIONS BE VACATED



34. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

35. Prior to petitioner’s trial, the state tried and convicted Jesse Misskelley for allegedly participating with petitioner and defendant Jason Baldwin in the murders at issue. Misskelley was tried and convicted of murder in a separate trial that concluded shortly before the joint trial of petitioner and Baldwin. See Misskelley v. State, 323 Ark. 449 (1996)(setting forth the evidence adduced at Misskelley trial and disposing of Misskelley’s claims on appeal).

36. As the Arkansas Supreme Court noted, see Misskelley v. State, 323 Ark. 449, 459 (1996), the state’s case against Misskelley rested almost entirely on a statement which he made to police on June 3, 1993, implicating himself as well as petitioner and Baldwin in the murders for which petitioner and Baldwin were also convicted at their later trial. The Misskelley statement, however, was fundamentally unreliable and, in all respects material to Echols, utterly false.

37. Under firmly established Supreme Court precedent, it would have been

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error of federal constitutional dimension to admit the Misskelley statement at a joint trial of the declarant (Misskelley) and the codefendants (Echols and Baldwin) unless the declarant were to take the stand and be subject himself to cross-examination by his codefendants, an event which never occurred in this matter. Bruton v. United States, 391 U.S. 123 (1968). Injection of such evidence into the trial proceedings against Echols necessarily would have violated his federal constitutional rights, including those arising under the Sixth Amendment’s Confrontation Clause, because the extraordinarily prejudicial nature of a cross-incriminating statement of a non-testifying defendant cannot be dispelled by a trial court admonition limiting the statement’s admissibility to the declarant alone. Ibid.

38. It was for the foregoing reason that the state trial court severed the trial of Echols and Baldwin from that of Misskelley. Despite the importance of insulating the Echols-Baldwin proceeding from any taint of the Misskelley statement, however, a reference to the statement was injected into the Echols trial through a prosecution witness’s unresponsive answer to a question on cross-examination. While striking the answer from the record and admonishing the jury to ignore it, the trial court justified its ruling denying a defense motion for a mistrial on the ground that the jury had heard mention only of the statement’s existence, not

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its prejudicial contents.

39. Nonetheless, the trial of Echols and Baldwin was plagued by the very unfairness the severance of their case from Misskelley’s was designed to avoid. Having learned of its contents through media reports, jurors considered the Misskelley statement and relied on it to convict, as evidenced by the fact that a chart drawn up during jury deliberations and copied into one juror’s notes listed the Misskelley statement as a ground upon which to rest a verdict of guilt as to both defendants.

40. The jurors’ discussion of the Misskelley statement breached a direct judicial command. In addition, such discussion ran afoul of the Fifth, Sixth, and Fourteenth Amendments and firmly established Supreme Court precedent prohibiting jurors from considering in their deliberations information received from extrajudicial sources such as newspaper or television reports. For instance, in Turner v. Louisiana, 379 U. S. 466 (1965), the Court reversed the defendant’s murder conviction and sentence of death where two deputy sheriffs who served as bailiffs during Turner's trial also testified as witnesses for the prosecution. The Court explained:
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In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury.



Turner, 379 U.S. at 473; see also Rideau v. Louisiana, 373 U.S. 723 (1963) (relying on due process clause to reverse conviction of defendant where jurors discussed extra-judicial evidence in form of televised news report containing defendant’s pre-trial self-incriminating statements); Parker v. Gladden, 385 U.S. 363 (1966) (holding that bailiff’s negative comments concerning defendant’s character to one deliberating juror and improper comment to another mandated reversal given patent violation of defendant’s rights to confrontation, cross-examination, and counsel.)

41. The unfairness caused by the jury’s discussion and weighing of the Misskelley statement was even greater than would have resulted had the trial court erroneously admitted the out-of-court statement over hearsay and Confrontation Clause objections. In that instance, the defense, on notice that the statement was before the jury, could have proceeded during its case to demonstrate that every line of the statement was false. Instead, having heard no evidence to the contrary, the jury was left under the delusion that Misskelley had provided the police with credible information establishing his own culpability and that of his codefendants.

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The devastating impact of the extrajudicial information received by the jury dwarfed the persuasive force of the minimal evidence properly admitted into evidence against Echols. This grossly prejudicial Fifth, Sixth, and Fourteenth Amendment violation mandates the habeas relief sought in the instant petition.

II. ECHOLS WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE JUDGED BY TWELVE IMPARTIAL JURORS CAPABLE OF DECIDING THE CASE SOLELY ON THE EVIDENCE ADMITTED AND THE INSTRUCTIONS GIVEN IN COURT, MANDATING THAT HIS CONVICTIONS BE VACATED

42. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

43. The evidence described in the foregoing claim for relief concerning the extraneous information injected into the deliberations of the Echols jury proves the jury’s receipt of, and reliance on, extrajudicial information in patent violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. That same evidence also establishes a related but distinct constitutional deprivation of Echols’s right to twelve impartial jurors.

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44. During individualized voir dire at Echols’s trial, no juror admitted to being aware of the fact that Jesse Misskelley had given a statement or confession to police interrogators, and certainly none disclosed knowledge that any such

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statement implicated either Echols or Baldwin. Yet during deliberations the Misskelley statement was listed on a jury display board as a reason to convict both Echols and Baldwin. That conduct can now be explained by the fact that three jurors have now admitted at the time of jury selection they were aware of the Misskelley statement.

45. Furthermore, the foreperson has admitted an extensive familiarity with the media reports disseminated on the eve of trial, particularly those details incriminatory of Echols and Baldwin, despite the fact that during jury selection he denied knowing anything about the Misskelley matter other than that Misskelley had been previously convicted of something, although the foreperson did not know what.

46. A second juror at petitioner’s trial maintained during voir dire that he had not discussed the case with his father, but recently has stated that in a pre-trial conversation with that juror, his father “spit out” the details of the case. The receipt of that information surely explains the fact that during the trial this juror not only held the opinion that the defendants were guilty, but that they had supporters in the courtroom who were capable of killing the juror as well, leading the juror to be terribly frightened for his own life at a time he was supposed to be dispassionately deciding the guilt or innocence of Echols.

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47. A third juror at petitioner’s trial has sworn that she decided the guilt of the defendants before hearing closing arguments and the trial court’s instructions.

48. Several other jurors admitted during voir dire that they tended to believe that the defendants were guilty, although they promised to set those opinions aside.

49. The United States Supreme Court has held that “[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). “‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 US 145, 155 [1878].” Id. at 722. While a juror who truly can put aside his or her opinions may fairly serve, “those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to [that juror].” Id. at n 3 (quoting Chief Justice Marshall in 1 Burr’s Trial 416 (1807).)

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50. A pivotal factor in determining a prospective juror’s impartiality is his or her candor in responding to questions on voir dire. “Voir dire plays a critical function in assuring the criminal defendant that his [or her] Sixth Amendment right

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to an impartial jury will be honored.” Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). “The necessity of truthful answers by prospective jurors . . . is obvious.'" McDonough Power Equipment, Inc. v. Greenwood 464 U.S. 548, 554 (1984)(plurality) (Rehnquist, J.); see also McDonough, 464 U.S. at 556 (1984) (Blackmun, J., concurring) (“[T]he honesty and dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial.”); Clark v. United States, 289 U.S. 1, 11 (1933) (Cardozo, J.) (“The judge who examines on the voir dire is engaged in the process of organizing the court [and] if the answers to the questions are wilfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only.”)

51. In Irvin, supra, eight of the twelve jurors selected to sit on the defendant’s jury had formed the opinion that he was guilty based on exposure to pretrial publicity, although each stated “that notwithstanding his opinion he could render an impartial verdict.” Irvin, 366 U.S. at 724. The Supreme Court vacated the defendant’s murder convictions and sentence of death, holding that:

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With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two thirds admit, before hearing any testimony, to possessing a belief in his guilt.

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Id., 366 U.S. at 728.

52. In light of the foregoing precedent and related cases, the facts alleged in support of the present claim require vacation of Echols’s convictions for at least three closely related reasons.

53. First, the responses of certain jurors demonstrate that, contrary to the express assurances they gave to the trial court during voir dire, such jurors had in fact known the details of the devastatingly prejudicial Misskelley statement and of related negative publicity concerning petitioner. Such concealment demonstrates that one or more of the jurors who returned verdicts of guilt against Echols harbored an impermissible bias against him, a prejudicial violation of his rights under the Fifth, Sixth and Fourteenth Amendments.

54. Second, the responses of certain jurors likewise demonstrates that, again contrary to the assurances provided on voir dire, they prejudged defendant’s guilt prior to the close of evidence, again constituting a prejudicial violation of Echols’s rights under the relevant Constitutional guarantees.

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55. Third, the Supreme Court’s holding in Irvin, supra, 366 U.S. at 728, establishes that such disavowals of bias as were expressed by the jurors at Echols’s

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trial cannot under any circumstance be deemed conclusive when the exposure of jurors to inadmissible and prejudicial information is so great that a majority of sitting jurors was predisposed to a finding of guilt when selected to serve. That critical mass of bias and prejudgment was reached in this case, yet another reason why Echols’s convictions must be set aside.

III. PETITIONER’S INCARCERATION AND SENTENCE OF DEATH VIOLATE HIS FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT INSOFAR AS FORENSIC EVIDENCE NOT AVAILABLE AT THE TIME OF TRIAL DEMONSTRATES HIS ACTUAL INNOCENCE OF THE CRIMES

56. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

57. Subsequent to his convictions in this matter, petitioner filed a “Motion for DNA Forensic Testing” in the Arkansas Circuit Court for Craighead County pursuant to Arkansas Code section 16-112-202 et seq.

58. The biological material which is the subject of Echols’s pending motion for DNA forensic testing will establish that petitioner is actually innocent of the crimes of which he was convicted in the Arkansas trial court and for which he was sentenced to death. The judgment and sentence pursuant to which petitioner remains in custody and subject to execution by the state have thus been imposed in violation of the Eighth Amendment’s prohibition against cruel and unusual

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punishment and the Fourteenth Amendment’s guarantee of equal protection and due process of law, and must accordingly be vacated.

IV. THE STATE COURTS UNREASONABLY REJECTED PETITIONER’S CLAIM THAT HIS TRIAL COUNSEL LABORED UNDER VARIOUS CONFLICTS OF INTEREST WHICH DENIED PETITIONER HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

59. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

60. Petitioner alleges that all of his convictions were obtained in violation of his Fifth, Sixth and Fourteenth Amendment rights to the effective assistance of counsel in light of trial counsel’s multiple conflicts of interest. The United States Supreme Court enunciated the standard for establishing such a violation in Cuyler v. Sullivan, 446 U.S. 335 (1980), and related precedent. The standard articulated in Sullivan holds that to establish a Sixth Amendment violation based on a conflict not exposed on the record in the trial court, a defendant must show: (1) the presence of an actual conflict of interest; and (2) that the conflict resulted in an adverse effect upon the lawyer’s performance. Once the defendant establishes such an adverse effect, he need not establish prejudice, which is presumed to result from the conflict. 446 U.S. at 349-50; Mickens v. Taylor, 535 U.S. 162, 172-73 (2002).

61. A defendant can establish an “adverse affect” on his counsel’s

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representation by demonstrating that “a specific and seemingly valid or genuine alternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests.” United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990) (citing Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982)). Alternatively, a defendant can show that “some plausible alternative defense strategy or tactic – ‘a viable alternative’ – might have been pursued. Perillo v. Johnson, 79 F.3d 41, 449 (5th Cir. 1996); see also United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988), cert. denied, 492 U.S. 906 (1989) (holding that to prevail on claim under Cuyler, the defendant simply needs to show that an alternative was available to counsel and that it ‘possessed sufficient substance to be a viable alternative’ [quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985)])

62. The defendant need not show that any such “available strategy” is likely to have resulted in a different outcome at trial. See, e.g., Rosenwald v. United States, 898 F.2d 585, 589 (7th Cir. 1990)(per curiam)(relief required even though strength of the state’s case makes it improbable the conflict caused any harm to the accused); Thomas v. Foltz, 818 F.2d 476, 483 (6th Cir. 1987) (pressure to plead guilty, brought to bear by conflicted attorney, requires reversal even though strength of state’s case makes it obvious non-conflicted attorney would have given

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same advice); United States v. Cancilla, 725 F.2d 867, 871 (2d Cir. 1984)(when conflict induced attorney to retreat from particular defense, reversal is mandated; “it is irrelevant that such a defense is unlikely to prevail and was unsuccessfully urged by [co-defendant]”; Westbrook v. Zant, 704 F.2d 1487, 1499, & n. 14 (11th Cir. 1983) (reversible error if conflict prompted counsel to refrain from raising a particular defense, even if that defense would not have proven successful); Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982) (to prevail on conflict claim, petitioner need only show conflicted attorney failed to pursue plausible strategy, not that strategy would have been successful).

63. In this matter, Echols alleges that his trial counsel labored under numerous conflicts of interest which adversely affected his performance in the course of his representation of Echols and within the meaning of Sullivan and related precedent, as set forth below:

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The HBO Contract

64. Prior to trial, trial counsel induced Echols’s agreement to conclude a contract with Creative Thinking International, a production company engaged by Home Box Office (“HBO”) to make a film about petitioner’s case and trial. In

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exchange for, inter alia, Echols’s participation in the making of the film, including, inter alia, Echols’s engagement in interviews and agreement to placement of cameras in the courtroom, HBO agreed to pay Echols $7,500. Trial counsel used some of the funds paid under the contract as compensation for expenses he incurred during the trial. In accordance with the terms of the contract, trial counsel did not disclose the existence and terms of the contract to the trial court during petitioner’s trial.

65. The HBO contract spawned an actual conflict between trial counsel’s interest in pursuing the best possible defense for Echols and counsel’s interest in the benefits he sought to reap from the contract including, inter alia, his long term pecuniary, professional, and social interests in release of a successful film. This actual conflict, moreover, resulted in several adverse effects on counsel’s representation of Echols, including the following:

a. Publicity concerning the underlying incidents in this matter was ubiquitous, intense and, to the extent it concerned petitioner’s background and character, overwhelmingly negative. Though the trial in the Misskelley matter had concluded a mere two weeks earlier, trial counsel failed to move for a continuance of the Echols trial date because he wished to conclude the trial before the film’s release. As he expressly conceded and the state Supreme Court expressly found

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(Echols v. State, supra, 354 Ark. at 546), trial counsel reasoned that the impending and pre-scheduled release of the film, production of which had been facilitated by counsel himself, would undermine petitioner’s defense at trial; as counsel stated, he “wanted the trial over before the film was shown” because the film, including its depiction of interviews with Echols, might have an impact on the jury. Counsel’s failure to seek the continuance led to the impanelment of jurors who, as alleged elsewhere in this petition, harbored a significant bias against Echols and/or who, during deliberations, considered extraneous prejudicial material in the form of the confession elicited from Misskelley.

b. As a result of the HBO contract, trial counsel relied on the meager funds to be paid from the HBO contract for such things as pretrial investigation, discovery, and expert witnesses at both the guilt and penalty phases of Echols’s trial, thereby causing counsel to forego funds that were available from the trial court upon request.

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c. As a result of the HBO contract, trial counsel devoted time otherwise available for trial preparation to participation in the production of the HBO film, including, inter alia, the staging of defense strategy meetings and other projects relating to such production.

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d. Adherence to the HBO contract also led counsel to refrain from challenging the use of cameras in the courtroom during Echols’s trial, which adversely affected the jurors’ capacity to neutrally and fairly evaluate the evidence in the case.

Prior Representation of Michael Carson

66. Michael Carson was a critical prosecution witness at Echols’s trial. Specifically, Carson testified that Jason Baldwin, Echols’s co-defendant, confessed his participation in the crime alleged against both Echols and Baldwin. Other state testimony established that Echols and Baldwin were best friends who spent virtually all of their available time together, and that they had been together shortly before the time of the homicides. Carson’s testimony as to Baldwin’s purported confession thus constituted devastatingly prejudicial evidence not only against Baldwin but against Echols as well. The Carson testimony was used as the basis for opinion evidence offered against Echols.

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67. Notwithstanding Carson’s pivotal role at trial, Echols’s trial counsel labored under a conflict of interest arising from his prior representation of Carson in a juvenile criminal matter, a conflict which trial counsel never disclosed to Echols. That conflict adversely affected trial counsel’s performance by causing trial counsel

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to refrain from conducting any cross-examination of Carson, despite such counsel’s knowledge of matters, including Carson’s prior criminal history, that would have gravely undermined Carson’s credibility before the jury.

Representation of Mark Byers’ Co-Defendant in Civil Action Pending at time of Petitioner’s Trial

68. John Mark Byers was a critical witness at Echols’s state trial. Among other things, defense counsel and, for a time, law enforcement viewed Byers as the possible perpetrator of the crimes alleged against Echols. Byers’s interests were thus diametrically opposed to Echols’s interests at Echols’s state court trial. Trial counsel, however, labored under a conflict of interest arising from his representation of two co-defendants of Byers on whose behalf Byers had testified in a civil matter involving an alleged burglary of a jewelry store. The civil matter had not been concluded at the time that Echols’s trial counsel questioned Byers at Echols’s trial. Trial counsel never disclosed the conflict to Echols.

69. Trial counsel’s loyalty to his civil clients and, by extension, to Byers adversely affected counsel’s representation of Echols at trial. While counsel conducted some examination of Byers concerning his possible involvement in the case, his divided loyalties led him to refrain from actively and zealously questioning

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and impeaching Byers on all relevant matters, including the full history of Byers’s prior criminal and violent conduct; Byers’s medical condition, including his affliction with brain tumors which, as trial counsel knew, could be associated with violent and criminal conduct; and Byers’s involvement in the civil case in which counsel represented Byers’ codefendant.

V. THE STATE COURTS UNREASONABLY REJECTED PETITIONER’S CLAIM THAT HE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF STRICKLAND V. WASHINGTON

70. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

71. Petitioner alleges that all of his convictions were obtained in violation of his federal constitutional right under the Sixth Amendment to the effective assistance of counsel under an additional analysis established by Supreme Court precedent. In Strickland v. Washington, 466 U.S. 668 (1984), the Court held that in order to succeed in challenging a conviction on this basis, (1) The defendant must show that counsel’s performance fell outside the wide range of professional competence; and (2) the defendant must prove that his trial counsel’s conduct was prejudicial to his case, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

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different. Strickland, 466 U.S. at 688-93. Stated otherwise, “. . . to establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance fell below an objective standard of reasonable competence, and that the deficient performance prejudiced the defendant.” United States v. Villalpando, 259 F.3d 934, 938 (8th Cir. 2001) (citing Strickland, 466 U.S. at 687).

72. Under Strickland, decisions may not be viewed as “tactical,” and hence do not merit deference, when they are the product of counsel’s ignorance or lack of preparation. Wade v. Armontrout, 798 F.2d 304, 307 (8th Cir. 1986); see also United States v. Gray, 878 F.2d 702 , 711 (3d Cir. 1989). Furthermore, a “reasonable probability” of a different outcome does not require a showing that counsel's conduct more likely than not altered the outcome in the case, but simply “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693-4; see also Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (A “reasonable probability” is less than a preponderance of the evidence)

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73. Petitioner alleges that his trial counsel rendered objectively deficient assistance in the following instances, the prejudicial impact of which, considered alone and cumulatively, mandates reversal under Strickland:

Jury Voir Dire

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74. First, trial counsel unreasonably failed to conduct a constitutionally adequate voir dire of prospective jurors or submit to jurors a constitutionally adequate pre-trial questionnaire, despite the presence of extensive prejudicial publicity concerning Echols, as set forth above. Of great importance, such publicity included extensive reporting both of the Misskelley confession implicating defendant as a primary participant in the homicides and Misskelley’s potential appearance as a witness for the prosecution in the case.

75. Notwithstanding these developments, trial counsel rendered deficient performance by, inter alia, a) unreasonably failing to conduct an adequate inquiry into the bias of potential jurors; b) unreasonably failing to determine the extent and effect of potential jurors’ exposure to news accounts surrounding the case, including but not limited to the Misskelley confession, and to other extraneous matter; c) unreasonably failing to recognize the harm that would be effected by intentionally selecting jurors even after counsel learned of their exposure to

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prejudicial matters; and d) unreasonably failing to excuse potential jurors in view of that harm.

76. The foregoing errors and omissions were prejudicial to petitioner within the meaning of Strickland because, among other things, and as set forth above, they

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resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

Failure to Move for Continuance

77. Second, trial counsel unreasonably failed to move for a continuance of petitioner’s trial to permit the negative publicity surrounding the case to subside. This omission prejudiced petitioner under Strickland not only because the presence of such publicity swayed jurors against petitioner as a general matter, but also because it resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

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Failure to Seek Second Change of Venue

78. Third, trial counsel unreasonably failed to move for a second change of venue out of Craighead County despite the intense negative publicity surrounding the case in that locale and the juror responses on voir dire establishing that most had

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formed an opinion as to petitioner’s guilt. Here again, the omission prejudiced petitioner under Strickland because, inter alia, it likewise resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

Failure to Retain and Use Experts

79. Fourth, trial counsel unreasonably failed to investigate, select, retain, and make appropriate use of experts, including a forensic odontologist, forensic entomologist, and/or forensic pathologist in connection with petitioner’s trial. The omission was prejudicial under Strickland because, inter alia, it prevented Echols from rebutting the unreliable and highly prejudicial expert evidence adduced by the state at trial and from corroborating petitioner’s claim that he was actually innocent of the alleged crimes.

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Failure to Challenge Expert Testimony Relating to the Occult

80. Fifth, trial counsel unreasonably 1) failed to adequately challenge the proposed introduction of purported expert testimony from prosecution witness Dale Griffis, who rendered a variety of speculative and damaging opinions linking both

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defendant and the homicides to occult practices; and 2) failed to challenge the trial court’s instructions concerning the permissible uses of such testimony. The bases for such challenges was readily available to counsel in light of the Arkansas Supreme Court’s holding in Prater v. State, 307 Ark. 180 (1991), which adopted a standard of expert testimony admissibility similar to that adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

81. These failures prejudiced Echols within the meaning of Strickland because, inter alia, they led directly to the jury’s consideration of Griffis’ fundamentally unreliable and highly inflammatory testimony. The failure further prejudiced Echols because, in his testimony, Griffis relied on the Michael Carson statement implicating Jason Baldwin in concluding that the homicides were occult-related, thereby permitting the jury to rely on that statement as a basis for incriminating petitioner, notwithstanding the fact that the statement should have been deemed flatly inadmissible against petitioner for any purpose pursuant to the dictates of the Fifth, Sixth and Fourteenth Amendments.

Unreasonable Presentation of Evidence at Sentencing

82. Sixth, at sentencing, trial counsel unreasonably introduced testimony from defense expert James Moneypenny concerning petitioner’s mental health

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history; unreasonably failed to object to cross-examination of Moneypenny concerning excerpts drawn from Echols’s mental health records; and unreasonably failed to seek a limiting instruction as to the use of the Moneypenny testimony. These failures prejudiced Echols under Strickland because, inter alia, Moneypenny’s testimony and cross-examination disclosed grossly inflammatory and otherwise inadmissible material that patently undermined rather than advanced the effort to mitigate the evidence relating to penalty.

Failure to Investigate and Present Mitigating Evidence at Sentencing

83. Seventh, trial counsel unreasonably failed to investigate and present substantial mitigating evidence on Echols’s behalf at sentencing. This failure prejudiced Echols within the meaning of Strickland because, inter alia, it undermined the defense effort to challenge evidence in aggravation which was introduced by the state and which resulted in the sentence of death ultimately imposed by the trial court.

INCORPORATION OF STATE RECORD

84. Petitioner hereby incorporates by reference the entire state court record relating to the allegations contained in the instant petition, including but not limited to all related proceedings in the Crittenden County Circuit Court, Arkansas, and the

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Craighead County Circuit Court, Arkansas, as well as all proceedings reported and described in Echols v. State, 326 Ark. 917 (1996), Echols v. State 344 Ark. 513 (2001), Echols v. State, 350 Ark. 42 (2002), Echols v. State, 354 Ark. 414 (2003), Echols v. State, 354 Ark. 530 (2003).

CONCLUSION

Petitioner has no plain, speedy and adequate remedy to obtain his immediate release from the conditions of custody presently imposed on him.

WHEREFORE, petitioner respectfully requests that this Court:

1. Issue an order holding the instant petition in abeyance to permit petitioner to exhaust all of his present claims in the Arkansas state courts; or, alternatively, issue an order finding that petitioner’ pending state DNA proceeding tolls the statutory deadline for seeking habeas relief in this court under the AEDPA, and dismissing the instant petition without prejudice to its timely refiling after the conclusion of that state court proceeding;

2. Grant leave to amend the petition, as may be appropriate;

3. Issue its writ of habeas corpus or an order to show cause to the Attorney General of Arkansas to inquire into the lawfulness of petitioner's convictions;

4. Convene an evidentiary hearing to resolve all disputed issues of fact;

5. After full consideration of petitioner’s claims, set aside petitioner’s convictions and/or sentence of death;

6. Grant petitioner whatever further relief is appropriate in the interest of justice.

DATED: October 28, 2004

Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
THERESA A. GIBBONS
DEBORAH R. SALLINGS




By _______________________



DENNIS P. RIORDAN, Cal. SBN 69320
RIORDAN & HORGAN
523 Octavia Street
San Francisco, CA 94102
(415) 431-3472



Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

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VERIFICATION

DENNIS P. RIORDAN declares under penalty of perjury:

I am counsel for petitioner Damien Wayne Echols. My offices are in San Francisco County, California. In my capacity as attorney for petitioner I am making this verification on his behalf because these matters are more within my knowledge than his.

I have read the foregoing petition for a writ of habeas corpus, and declare that the contents of the petition are true to the best of my knowledge.

Executed this 28th day of October, 2004, at San Francisco, California.



_______________________
Dennis P. Riordan
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Damien Echols' Motion to Recall the Mandate...

Postby Obscuregawdess » Tue May 27, 2008 12:45 pm

Motion to Recall the Mandate and to Reinvest Jurisdiction in the Trial Court to Consider Petition for Writ of Error

THIS IS A CAPITAL CASE
IN THE ARKANSAS SUPREME COURT

DAMIEN WAYNE ECHOLS, Petitioner,
vs.
STATE OF ARKANSAS, Respondent.

Case No. CR 94-928
(Direct Appeal)
Case No. CR 99-1060
(Rule 37 Appeal)
Craighead Co. Circuit Court Nos 93-450, 450A
(Circuit Court Trial and Rule 37 Proceedings)

PETITIONER’S MOTION TO RECALL THE MANDATE AND TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS OR FOR OTHER EXTRAORDINARY RELIEF


DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
THERESA A. GIBBONS
(CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472

DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
(Local Counsel)

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

Comes the petitioner, Damien Wayne Echols, by and through his undersigned counsel, and respectfully petitions this Court to issue an order 1) recalling the mandate pursuant to Ark. Supreme Court Rule 5-3(d) and 2) reinvesting jurisdiction in the Circuit Court of Craighead County for purposes of considering petitioner’s petition for a writ of error coram nobis or other extraordinary relief as appropriate.

I. PROCEDURAL HISTORY

A. Petitioner’s Conviction and Direct State Court Appeal

On March 19, 1994, following trial by jury, an Arkansas trial court sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered judgment against petitioner for three counts of first degree murder in connection with the homicides of three eight-year old boys in West Memphis, Arkansas, in May, 1993. On that same date, the trial court sentenced petitioner to death for the crimes.

Echols timely appealed from the judgment and sentence, which were affirmed by this Court in an opinion issued on December 23, 1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). This Court thereafter issued its mandate to the Circuit Court.

Petitioner challenged this Court’s appellate ruling by filing a timely petition for a writ of certiorari in the United States Supreme Court, which petition was denied in an order issued on May 27, 1997.

B. The Concluded Proceedings Relating to Petitioner’s Motion for Post-Conviction Relief Under Rule 37

Meanwhile, on March 11, 1997, well prior to the conclusion of direct appellate proceedings on May 27, 1997, Echols filed a motion for post-conviction relief from the trial court’s judgment and sentence, pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. (“Rule 37") Petitioner’s final Rule 37 petition, which raised many of the claims presented in the instant petition, was denied by the Craighead County Circuit Court in an order issued on June 17, 1999.

Petitioner timely appealed from the Circuit Court’s June 17, 1999 order. On April 26, 2001, this Court affirmed one portion of the district court’s ruling but otherwise reversed and remanded in light of the Circuit Court’s failure to make required factual findings as to petitioner’s claims. See Echols v. State, 344 Ark. 513 (2001).

Following remand, on July 30, 2001, the Circuit Court issued a new order again rejecting all of petitioner’s claims under Rule 37. Petitioner timely appealed this order but it was affirmed in an opinion issued on October 30, 2003, as reported at Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).

C. The Initial Motion to Reinvest Jurisdiction in the Circuit Court

On February 27, 2001, while the Rule 37 proceedings described above were pending, Echols petitioned this Supreme Court for an order reinvesting jurisdiction in the Circuit Court to allow him to seek a writ of error coram nobis. This Court denied that petition in an opinion issued on October 16, 2003 (i.e., before the conclusion of the Rule 37 proceedings) and reported at Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003). The Court issued its mandate in the matter on November 13, 2003.

D. The Pending Motion to Permit Forensic Testing

On July 25, 2002, and likewise while the Rule 37 proceedings remained pending, petitioner filed a “Motion for Forensic DNA Testing” (hereinafter “DNA motion”) in the Craighead County Circuit Court pursuant to Arkansas Code section 16-112-201 et seq. Invoking the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection and due process of law, the motion asserted that the judgment and sentence should be vacated because petitioner was actually innocent of the crimes.

On January 27, 2003, the Circuit Court judge who presided at petitioner’s trial ordered the impoundment and preservation of all material that could afford a basis for petitioner’s actual innocence claim pursuant to this statutory scheme. Testing of the material subject to the Circuit Court’s preservation order and related trial court proceedings remain in progress as of the time of filing the instant petition.

II. This Court Wields the Inherent Power to Recall the Mandate, And Should Do So Where Warranted by Extraordinary Circumstances In a Capital Case

Pursuant to Supreme Court Rule 5-3(d) and this Court’s decision in Robbins v. State, 353 Ark. 556, 354 Ark. 1, 114 S.W. 3d 217 (2003), petitioner Echols hereby requests that this honorable Court recall the mandate it issued following disposition of the direct appeal in this matter and reopen this case to permit Echols to pursue the further relief sought by this motion and accompanying memorandum and exhibits.

In Robbins, this Court issued an order recalling the mandate and reopening the case of a defendant who had been sentenced to death and whose state appeal had previously concluded. Such an order was the only means by which the Court could address a fundamental error it had overlooked in disposing of the defendant’s concluded appeal. In support of its decision, the Court observed that, “[t]he power of an appellate court to recall its mandate, if the circumstances warrant it, is recognized both in federal courts and state courts across the country. [Citations omitted].” Id., 353 Ark. at 563, 114 S.W. at 221.

To be sure, the Court in Robbins held that its discretionary exercise of such power, equivalent to reopening the case, should be exercised only in “extraordinary circumstances,” id., 353 Ark. at 564, 114 S.W. at 222. In this connection, the Court expressly approved the federal standard for granting of recall requests, which, inter alia, holds that power to recall is “one of last resort, to be held in reserve against grave, unforeseen contingencies,” but which authorizes such action where it will operate to avoid a miscarriage of justice as defined by federal habeas jurisprudence, see id., 353 Ark. at 563, 114 S.W. at 222 (citing Calderon v. Thompson, 523 U.S. 538, 549-50, 118 S.Ct. 1489 (1998)), and where it issues pursuant to the Court’s inherent power to protect the inherent integrity of the judicial process within a given Circuit, see id., (citing Demjanjuk v. Petrovsky, 10 F.3d 338, 357 (6th Cir. 1993)).

The Court in Robbins further elucidated the relevant standard for recall and the extraordinary circumstances which may justify it when it recognized that “ . . . the death penalty is a unique punishment that demands unique attention to procedural safeguards . . . .” id., 353 Ark. at 561, 220, 114 S.W. at 220, further observing that in Bivens v. State, 11 Ark. 455, 457 (1850), it had “‘voiced its belief in the ‘humane principle applicable in general to criminal cases, and especially those where life is involved,’ and declined to exalt form over substance when dealing with the death penalty. . .”, Robbins, 353 Ark. At 561, 114 S.W. at 220. The Court then summarized a host of cases, including two involving this petitioner, in which it had “. . . set aside strict adherence to procedural rules in connection with post conviction relief out of concern for fairness in death penalty cases.” Id.

Petitioner submits that the developments described hereinafter in the instant case warrant an order recalling the Court’s previously issued mandate and reopening the case for further proceedings in the Circuit Court. Like the defendants in the Arkansas cases cited and summarized in Robbins, petitioner is presently subject to a sentence of death. Furthermore, the errors which undersigned counsel present on his behalf surfaced only recently and, as discussed, are as fundamental and constitutionally egregious as any imaginable. Specifically, in finding that petitioner had committed the homicides alleged against him and that he deserved to die for them, jurors relied on the incriminating but highly unreliable confession of Jesse Misskelley, an alleged co-participant in the crimes. The Sixth Amendment absolutely prohibited consideration of that confession, which consequently was excluded from admission at the Echols trial, and the jury’s misconduct in discussing the unadmitted and inadmissible Misskelley statement largely accounts for the jury’s verdicts in a case otherwise bereft of compelling evidence of petitioner’s guilt.

III. The Court Should Grant Petitioner Leave to Initiate Further Proceedings in the Trial Court to Address His Claim of Fundamental Error Extrinsic to the Record Which Might Have Resulted in a Different Verdict

A. Bases for Granting Leave

Apart from its inherent power to recall the mandate, this Court has the authority to reinvest the trial court with jurisdiction to address fundamental error of the type alleged by petitioner here. See, e.g., Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002)(recognizing Court’s authority to so proceed to permit trial court’s consideration of petition for writ of error coram nobis); cf. Larimore v. State, 327 Ark. 271, 278-79, 938 S.W.2d 818, 821 (1997) (once judgment has been affirmed on direct appeal, Supreme Court must grant permission before petitioner may proceed with writ of error coram nobis))

The writ of error coram nobis is an extraordinary remedy which should be allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature, and a presumption of regularity attaches to the criminal conviction being challenged. Larimore, supra, 327 Ark. at 279 (citing United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954). As the Court in Larimore further observed:

We have outlined the following guidelines for trial courts to consider when determining whether to grant a writ of error coram nobis:

(1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;

(2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition;

(3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied; and

(4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts [relied] upon and not merely state conclusions as to the nature of such facts.

Id., 327 Ark. at 406-07, 17 S.W. at 93.

As to the necessary effect of the error on the judgment addressed in the first of the foregoing criteria, the Court in Larimore further observed that the question whether the relevant error was sufficiently prejudicial to warrant relief turns upon the question of whether there was a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the disputed evidence surfaced at trial. Id., 327 Ark. at 407-08, 17 S.W. at 93-94. The Court then stated:

[W]e hold that in our review of the granting of a petition for a writ of error coram nobis in this case and all future cases we will determine whether there is a held that the relevant test is “. . . whether there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial.”

Id., 327 Ark. at 407-08 , 17 S.W. at 93-94 (Emphasis added)

The standard adopted by this Court in Larimore for assessing whether coram nobis relief is appropriate – a “reasonable probability” of a different outcome – has been uniformly described by courts throughout the country as “not stringent,” requiring a showing by less than a preponderance of the evidence that the outcome of the proceeding would have been different had the claim’s rights not been violated. See, e.g., Skaggs v. Parker, 235 F.3d 261, 270-71 (6th Cir. 2000) (“[A] petitioner [claiming error under this standard] need not prove by a preponderance of the evidence that the result would have been different, but merely that there is a reasonable probability that the result would have been different.”); Hull v. Kyler, 190 F.3d 88, 110, (3d Cir. 1999)(the reasonable probability standard “is not a stringent one,” and is “less demanding than the preponderance standard)(citation omitted); Paters v. United States, 159 F.3d 1043, 1049 (7th Cir. 1998)(Rovner, J., concurring)(the reasonable probability standard “clearly is less demanding than a preponderance of the evidence standard”); Belyeu v. Scott, 67 F.3d 535, 540 (5th Cir. 1995) (under reasonable probability standard, “the result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the [error] cannot be shown by a preponderance of the evidence to have determined the outcome.”)

Furthermore, in order to authorize the circuit court to consider a request for coram nobis relief, an appellate court need not find that a petitioner has conclusively demonstrated that he is entitled to relief under the foregoing guidelines. As the Court of Appeals has noted, “When such a petition [for writ of error coram nobis] is directed to the appellate court, the burden on the petitioner is less than that imposed on him in the trial court where the merits of the petition are to be determined.” Shamlin v. State, 19 Ark. App. 165, 167, 718 S.W. 462, 464 (1986). Accordingly, the burden on Mr. Echols is to make an appropriate showing with respect to each of these considerations, namely, that the claimed error is sufficiently fundamental to warrant correction in a coram nobis proceeding; that he has shown diligence in presenting it to the courts for review; and that he has alleged specific facts, supported by substantial evidence, which may warrant a finding that the claimed error was reasonably likely to have affected the outcome of petitioner’s trial.

B. The Court Should Grant the Instant Motion Given the Nature of the Alleged Error, Petitioner’s Due Diligence, and the Specific Evidentiary Material Proffered in the Exhibits Accompanying the Motion

Petitioner advances two essential claims in connection with his proposed petition for a writ of error coram nobis or other extraordinary relief, a memorandum in support of which is attached hereto as Exhibit A. First, petitioner alleges that the jury received and considered extraneous information during deliberations at petitioner’s trial, specifically, the confession of Jesse Miskelley, and that such conduct flatly violated petitioner’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, fatally undermining fair consideration of the otherwise meager evidence adduced by the prosecution in support of its case. Second, petitioner alleges that, as disclosed by evidence of their responses on voir dire and recent admissions, certain members of the jury harbored an impermissible bias against petitioner, once again in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments. Such errors warrant coram nobis relief from the judgment because, as is more fully developed in the memorandum that would be tendered in support of the proposed petition (Exhibit A), they are fundamental in nature and are founded on facts which would have prevented rendition of the judgment if known to the trial court, and which, through no negligence or fault of the defendant, were not brought forward before rendition of that judgment. Larimore, supra, 327 Ark. at 406-07, 17 S.W. at 93.

Furthermore, petitioner has been diligent in seeking coram nobis or similar relief. Evidence of the jury’s misconduct and bias surfaced only recently, as reflected in the juror affidavits and reports of juror statements included as exhibits submitted under seal in support of the accompanying memorandum. The jury’s listing of the Misskelley statement as a reason to convict on the lists drawn up during deliberations, which have been maintained by state agencies since petitioner’s 1994 trial, was covered over by an unknown person at an unknown time, and came to light only recently when a juror provided petitioner with a copy of her notes from the trial. Furthermore, the jury foreperson’s recent statements, which are key to petitioner’s claims of both juror misconduct and juror bias and which appear in Exhibit W (submitted under seal), establish that prior to his October 8, 2004, interview concerning this matter, the foreperson had consistently rejected requests made by lawyers as well as reporters and others for comment concerning this matter.

/ /

Finally, and also in accordance with the requirements of Larimore, supra, 327 Ark. at 406-07, 17 S.W. at 93, petitioner’s allegations of fundamental constitutional error are not stated in conclusory form, but are instead supported by specific and extensive facts. Such facts are discussed at length in petitioner’s accompanying memorandum and are further supported by the affidavits and other exhibits attached to this motion as well as by the previous findings appearing in opinions issued by this Court.

CONCLUSION

For the foregoing reasons, and for those set forth in the accompanying memorandum and exhibits, petitioner respectfully requests that this Court issue an order recalling its mandate and investing the Circuit Court of Craighead County with jurisdiction to consider Echols’s petition for a writ of error coram nobis and/or other appropriate extraordinary relief.

DATED: October 28, 2004

Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
THERESA GIBBONS
DEBORAH R. SALLINGS

By _______________________
DENNIS P. RIORDAN

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS









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INDEX of Exhibits

Exhibit A - Petitioner’s Memorandum In Support of Motion To Recall The Mandate And To Reinvest Jurisdiction In The Trial Court

Exhibit B - Echols-Baldwin Reporter Transcripts

Exhibit C - Echols-Baldwin Voir Dire (filed under seal)

Exhibit D - Affidavit of Dennis P. Riordan

Exhibit E - Democrat-Gazette - January 29, 1994

Exhibit F - The Jonesboro Sun - January 28, 1994

Exhibit G - Arkansas Times - October 7, 2004

Exhibit H - Jonesboro Sun - February 4, 1994

Exhibit I - Arkansas Democrat - February 5, 1994

Exhibit J - Democrat-Gazette - February 23, 1994

Exhibit K- Democrat-Gazette - March 1, 1994

Exhibit L - Jonesboro Sun - March 2, 1994

Exhibit M - Teer Report

Exhibit N - The Commercial Appeal - May 7, 1993

Exhibit O - West Memphis Evening Times - May 7, 1993

Exhibit P - Democrat-Gazette - May 8, 1993

Exhibit Q - Arkansas Democrat - March 2, 1994

Exhibit R - Bearden Report

Exhibit S - Affidavit of Theresa A. Gibbons (filed under seal)

Exhibit T - Affidavit of Deborah R. Sallings (filed under seal)

Exhibit U - Affidavit of Juror Seven (filed under seal)

Exhibit V - Affidavit of Juror Six (filed under seal)

Exhibit W - Affidavit of Tom Quinn (filed under seal)

Exhibit X - Photographs (unavailable)

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Obscuregawdess
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Echols' Memorandum in Support of Motion...

Postby Obscuregawdess » Tue May 27, 2008 12:47 pm

Memorandum in Support of Motion to Recall the Mandate and to Reinvest Jurisdiction in the Trial Court

http://www.wm3.org/live/trialshearings/ ... &year=2004

THIS IS A CAPITAL CASE

IN THE ARKANSAS SUPREME COURT

DAMIEN WAYNE ECHOLS, Petitioner,
vs.
STATE OF ARKANSAS, Respondent.

Case No. CR 94-928
(Direct Appeal)
Case No. CR 99-1060
(Rule 37 Appeal)
Craighead Co. Circuit Court Nos 93-450, 450A
(Circuit Court Trial and Rule 37 Proceedings)

PETITIONER’S MEMORANDUM IN SUPPORT OF MOTION TO RECALL THE MANDATE AND TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS OR FOR OTHER EXTRAORDINARY RELIEF

DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
THERESA A. GIBBONS
(CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472

DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
(Local Counsel)

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS


INTRODUCTION

The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.

Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558 (1907); accord, Larimore v. State, 309 Ark. 414, 833 S.W.2d 358, 361 (1992).

[A] juror must be as “indifferent as he stands unsworne.”...His verdict must be based upon the evidence developed at the trial...This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.

Irvin v. Dowd, 366 U.S. 717, 722 (1961).

As this Court is well aware, this case arises out of the slaying in May of 1993 of three eight year old boys, one sexually mutilated, in West Memphis. The investigation and prosecution that followed these terrifying murders generated intense media attention and public discussion at a local, state, and national level. Following their trial in 1994, Damien Echols, eighteen years old at the time of the charged offenses, was convicted and sentenced to death, his codefendant Jason Baldwin, sixteen years old when arrested, was sentenced to life in prison without the possibility of parole.

It is precisely in cases such as this one that the procedural protections guaranteed a criminal defendant by the United States and Arkansas constitutions are both most needed and most threatened. Most needed because awful crimes, and there are no crimes more horrific than those inflicting suffering on children, provoke a cry for swift justice. Only the constitutional rights to due process, to counsel, to be tried only on evidence subjected to confrontation and cross-examination, and to be judged by twelve impartial jurors can ensure that the public’s understandable demand for retribution does not produce a hurried and flawed judgment that adds

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the life of an innocent defendant to a crime’s already tragic toll.

Yet it is never more difficult to achieve a fair trial than in those cases attended, as this one was, by white-hot publicity from their inception. The “public print” and “private talk” thus generated easily can invade the judicial process, leading to a verdict tainted by false rumor and unreliable gossip. No one can dispute that the danger of a verdict corrupted by extraneous information was great in this particular matter, where every potential juror had been exposed to pretrial media reports about the case; where many prospective jurors, including some selected to serve on petitioner Echols’ jury, admitted to holding pre-existing opinions that he was guilty; where during trial a lawyer who described himself as a “court liaison” was issuing press statements from the courtroom rail that a potential witness, never to testify at trial, would bolster the prosecution’s theory of the case; where the trial itself was televised, according to the lead prosecutor, “because of the high interest in the area, the state, the nation,” and where trial proceedings, again in the words of the prosecutor, were surrounded by a “media circus” and a “shark feeding atmosphere” in which camera people rushed around the courthouse “like little packs of wolves.”

Under such circumstances, it was perhaps inevitable that rather than being convicted on “‘evidence developed’[on] the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel” (Turner v. Louisiana, 379 U. S. 466, 472-473,13 l Ed 2d 424, 85 S Ct 546 (1965)), Damien Echols would be found guilty principally based on what jurors had heard and read outside the courtroom. Now, ten years after Echols was condemned to die, the truth has emerged. Echols’ jury convicted him based on information both unadmitted and inadmissible at trial: a hearsay

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statement of a codefendant, Jesse Misskelley, implicating Echols and Baldwin in the charged crimes. Echols was tried separately from Misskelley precisely in order to ensure that the Echols jury would not be exposed to the Misskelley statement. Yet notes taken by a juror, as well as statements of jurors themselves, establish the central role played by the Misskelley statement during the deliberations of the Echols jury.

Under controlling precedents of both the United States and this Supreme Court, receipt by a jury of such an unexamined and inflammatory statement causes incurable prejudice. This case demonstrates the wisdom of that rule. Virtually the entirety of the Misskelley statement was demonstrably false, yet the jury never learned of its defects “because of the ignorance of the influence to which the juror[s] had been subjected.” Capps v. State, 109 Ark. 193, 159 S.W. 193 (1913).

Echols’s trial was marred by a second fundamental defect related to but doctrinally distinct from the jury’s receipt of extraneous and highly prejudicial information. During the trial of Echols and Baldwin, the trial judge denied a mistrial when a prosecution witness improperly shoehorned a reference to the Misskelley statement into evidence. The judge struck the reference from the record, but deemed an admonition to the jury to ignore it sufficient to protect the defendants’ right to a fair trial. In the judge’s opinion, every juror had previously known of the statement’s existence; it was only disclosure of the contents of the statement that would have proven prejudicial. The judge’s observation as to the jury’s collective awareness of the existence of the Misskelley statement was of jarring importance given that no juror had admitted knowledge of the statement during the voir dire process. Echols will now place before this Court evidence establishing that as to the Misskelley statement and other critical matters several jurors

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did not give full and honest responses to questions on voir dire that, had they been answered more candidly, would have provided the basis for a challenge for cause. Furthermore, some jurors clearly decided guilt in advance of deliberations. Echols was not tried and convicted before twelve impartial jurors, a federal and state constitutional deprivation that can never be deemed harmless.

As the United States Supreme Court made clear in Irvin v. Dowd, supra, and Rideau v. Louisiana, 373 U.S. 723, 10 L.Ed. 2d 663, 83 S.Ct. 1417 (1963), errors of the sort that marred Echols’ trial so offend the conception of fairness embodied in the Fifth, Sixth, and Fourteenth Amendments that they require a new trial even in cases where the properly admitted evidence convincingly demonstrates a defendant’s guilt of heinous offenses. Here, the issue of the guilt or innocence of Echols and Baldwin has never been satisfactorily laid to rest because the evidence introduced at trial of their participation in the charged murders was disturbingly thin. Echols’ prosecutors admitted prior to trial that the evidence they would introduce might be inadequate to convince a jury of the defendants’ guilt, 1 and the foreman of the jury recently characterized the evidence placed before the jury in court as scanty and circumstantial.

The state will be unable to offer a persuasive counter to the merits of the constitutional claims raised in this petition. What can be anticipated is an argument of procedural bar: that is,

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1 In a videotaped conference with the victims’ families prior to the Echols trial made part of the HBO documentary “Paradise Lost,” prosecutors Fogelman and Davis described the evidence that they would offer at trial, and Davis evaluated the chances of gaining a conviction on that evidence as possibly“fifty/fifty.” See Exhibit D, the affidavit of Dennis P. Riordan.

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Echols’ proof that his trial was fundamentally unfair comes too late; the procedural vehicles available under Arkansas law to attack a conviction, however wrongful, have been exhausted; therefore petitioner’s challenges to his convictions and sentence of death must be rejected out of hand. That response, if and when it comes, will be factually and legally flawed. The affidavits and statements of jurors upon which this action rests were only obtained recently. Of equal importance, it cannot be the case that the Arkansas judiciary is powerless to stop the death of a young man in the face of irrefutable proof that he has never been fairly tried on the charges for which he has been condemned. The damage to the public’s confidence in the American system of justice if Damien Echols is ever executed based on the present unconstitutional judgment would be enormous.

This matter should be remanded to the Circuit Court for further proceedings and an evidentiary hearing, if needed. Following full consideration of his constitutional claims, Echols’ convictions and sentence of death must be vacated.

STATEMENT OF THE CASE

On March 19, 1994, following trial by jury, an Arkansas trial court sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered judgment against petitioner for three counts of first degree murder in connection with the homicides of three eight-year old boys in May, 1993. On that same date, the trial court imposed a sentence that petitioner be put to death.

Echols timely appealed from the judgment and sentence, which were affirmed by this Supreme Court in an opinion issued on December 23, 1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Petitioner thereafter challenged the Court’s appellate ruling

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by filing a timely petition for a writ of certiorari in the United States Supreme Court, which petition was denied in an order issued on May 27, 1997.

Meanwhile, on March 11, 1997, well prior to the conclusion of direct appellate proceedings, Echols filed a motion for post-conviction relief from the trial court’s judgment and sentence pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. Following amendments, petitioner’s final Rule 37 petition was denied by the Craighead County Circuit Court in an order issued on June 17, 1999.

Petitioner timely appealed from the Circuit Court’s June 17, 1999 order. On April 26, 2001, this Supreme Court affirmed one portion of the district court’s ruling but otherwise reversed and remanded in light of the Circuit Court’s failure to make required factual findings on petitioner’s claims. See Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001).

Following remand, in an order issued on July 30, 2001, the Circuit Court issued a new decision rejecting all of petitioner’s claims under Rule 37. Petitioner again timely appealed this ruling which was affirmed in an opinion issued on October 30, 2003, as reported at Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).

On February 27, 2001, while the Rule 37 proceedings described above were pending, Echols also petitioned this Supreme Court for an order reinvesting jurisdiction in the Circuit Court to allow him to seek a writ of error coram nobis. This Court denied that petition in an opinion issued on October 16, 2003 (i.e., before the conclusion of the Rule 37 proceedings) and reported at Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003).

On July 25, 2002, petitioner filed a “Motion for Forensic DNA Testing” (“DNA motion”) in the Circuit Court pursuant to Arkansas Code section 16-112-201 et seq., invoking the Eighth

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Amendment’s prohibition against cruel and unusual punishment, and the Fourteenth Amendment’s guarantee of equal protection and due process of law. In an order dated September 12, 2002, this Supreme Court observed that petitioner’s DNA motion was “appropriately filed.” Echols v. State, 350 Ark. 42, 44 (2002)(per curiam) On January 27, 2003, the Craighead County Circuit Court judge who presided at petitioner’s trial ordered the impoundment and preservation of all material that could afford a basis for petitioner’s actual innocence claim pursuant to this statutory scheme.

Testing of the material subject to the Circuit Court’s preservation order and related trial court proceedings is in progress as of the time of filing the instant petition.

STATEMENT OF FACTS

A. Prefatory Note

On direct appeal, Echols challenged the sufficiency of the evidence offered against him at his 1994 trial. Applying the relevant standard of appellate review, which does not permit an assessment of the credibility of witnesses but rather draws all reasonable inferences in favor of the prosecution, this Court rejected that claim in its 1996 order affirming petitioner’s convictions. 326 Ark. at 938-942, 936 S.W.2d at 518-519. Petitioner will not now attempt to relitigate his claim of insufficient evidence.

The extensive statement of facts that follows is rather presented because the constitutional claims being presented to this Court for the first time in this pleading require a summary of: (1) the evidence introduced against Jesse Misskelley at his separate trial which was not admissible against Echols, and the flaws in that evidence that could have been exposed by the exercise of petitioner’s right to confrontation and cross-examination; (2) the extent to which evidence from

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the Misskelley trial made its way into public discourse in the Jonesboro area where petitioner was tried; and (3) the evidence formally admitted against Echols, and an assessment of its relative strength.

B. The Charged Murders

This Court described the charged crimes found in the opinion of the Arkansas Supreme Court affirming petitioner’s convictions on direct appeal as follows:

Michael [Moore], Christopher [Byers], and Steve [Branch] were eight years old, in the second grade, in the same Cub Scout troop, and often played together in their West Memphis neighborhood. On the afternoon of May 5, 1993, after school, Michael and Steve were riding their bicycles while Chris was skateboarding. Deborah O'Tinger saw the three boys walking through her yard between 5:45 and 6:00 that afternoon. Her recollection was that they were pushing a bicycle. At about 6:00 p.m., Dana Moore, Michael's mother, saw the three boys together. At that time Michael was riding his bicycle. Between 6:30 and 6:45 Brian Woody saw four boys going into some woods known as the Robin Hood woods. He noticed that two of the boys were pushing bicycles, one had a skateboard, and a fourth one was just walking behind them. Neither Michael, Christopher, nor Steve returned to their homes. Their parents called the police, and a search was begun.

The next morning, members of the Crittenden County Search and Rescue Unit discovered a tennis shoe floating in a ditch just north of Ten Mile Bayou. The Robin Hood woods drain into Ten Mile Bayou, and the members of the search unit knew the boys were last seen in that area. Detective Mike Allen walked along the ditch bank to the place where the tennis shoe had been found. He noticed that one area of the ditch bank was cleared of leaves, while the rest of the bank was covered with leaves and sticks. He described the cleared area on the bank as being "slick," but having "scuffs" in the cleared-off area. He got into the water, reached down to get the shoe, and felt Michael Moore's body. The corpses of Christopher Byers and Steve Branch were subsequently found about twenty-five feet downstream. Policeman John Moore, who was also there, said there was blood in the water, but none on the bank. Detective Bryn Ridge was also present and helped recover the boys' bodies. He collected the victims' clothes, three tennis shoes, and a Cub Scout cap that was floating in the water. He found a stick stuck in the mud that had one of the boy's shirts wrapped around the end that was stuck down in the mud. He dislodged another stick as he was removing the corpse of Michael Moore.

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All three corpses had their right hands tied to their right feet, and their left hands tied to their left feet. Black shoe laces and white shoe laces were used as ligatures. Michael Moore's body had wounds to the neck, chest, and abdominal regions that appeared to have been caused by a serrated knife. There were abrasions over his scalp that could have been caused by a stick. Dr. Frank Peretti, a State medical examiner, testified that there was bruising and discoloring comparable to that frequently seen in children who are forced to perform oral sex. He testified that there were defensive wounds to the hands and arms. Moore's anal orifice was dilated, and the rectal mucosa was reddened. Dr. Peretti testified this injury could have come from an object being placed in the anus. Finally, Dr. Peretti testified that there was evidence that Moore was still alive when he was in the water, as there was evidence of drowning.

Steve Branch's corpse had head injuries, chest injuries, genital-anal injuries, lower extremity injuries, upper extremity injuries, and back injuries. The body had multiple, irregular, gouging wounds, which indicated that he was moving when he was stabbed. The anus was dilated. Penile injuries indicated that oral sex had been performed on him. There was also evidence that he, too, had drowned.

Christopher Byers's corpse also had injuries indicating that he had been forced to perform oral sex. His head had scratches, abrasions, and a punched- out area on the skin, and one eyelid had a contusion. The back of the neck had a scrape. The inner thighs had diagonal cuts on them. The back of the skull had been struck with a stick-like, broomstick-size, object. The skin of the penis had been removed, and the scrotal sac and testes were missing. There were cuts around the anus, and the hemorrhaging from those cuts indicated he was still alive when they were made. Many of the cuts were made with a serrated blade knife. Byers did not drown; he bled to death.

The boys' bicycles were found nearby.

Echols and Baldwin v. State, 326 Ark. 917, 935-936, 936 S.W.2d 509, 516-517 (1996)

The record of petitioner’s trial also discloses that on the night of May 5, 1993 a black man was found in the women’s room at Bojangle’s restaurant, blood dripping from his arm, with mud on his feet, disarrayed, and slurring his speech. (Echols-Baldwin Reporter’s Transcript

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(hereafter “EBRT” 2211-12, 2999-3000) 2 The women’s room had blood and mud in it. According to the restaurant manager, there was quite a bit of mud that had to be cleaned up. The man had “wasted a whole roll of toilet tissue by soaking up blood or grabbing it for himself...” The toilet paper “had blood all over it. It was saturated all the way down to the cardboard roll.”(EBRT 2213-2214, 3001-3002)

The police were summoned that night to the Bojangles restaurant, which is approximately one mile from the Robin Hood woods, but collected no evidence. (EBRT 772-777, 1551-1556) On the afternoon of May 6th, Detectives Ridge and Allen came out, took a report, and “then they took blood scrapings off the wall in the women’s restroom...” (EBRT 2215, 3003) The detectives asked whether the man appeared to have muddy feet like those of the officers (who had been at the crime scene all morning) and the manager of Bojangles responded that the man did. (EBRT 2215, 3003) The officers indicated they did not need to take possession of the bloody roll of toilet paper. (EBRT 2216, 3004)

Detective Ridge never sent the samples taken at Bojangles to the crime lab and then later lost them. (EBRT 810-11, 1589-1590; 945, 1725) A negroid hair was later discovered on a sheet used to cover the body of Chris Byers. (EBRT 1182, 1963)

C. The Misskelley Trial, Verdict, And Proceedings Concerning Misskelley’s Possible Testimony in The Echols Case

The Echols opinion describes the events leading to the arrest of Echols, Baldwin, and

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2 The transcripts from the Echols-Baldwin trial in counsel’s possession bear two sets of page numbers: the first set being the original pagination at the trial court level; the second a Bates stamp number used for the record on direct appeal. Petitioner will use both sets of numbers for each page citation, the Bates stamp number being supplied in italics. Additionally, a copy of each page of the Echols-Baldwin transcript cited in this brief is being submitted to this Court as Exhibit B.

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Misskelley.

On June 3, or almost one month after the murders, Detective Mike Allen asked Jessie Lloyd Misskelley, Jr., about the murders. Misskelley was not a suspect at the time, but Echols was, and it was thought that Misskelley might give some valuable information about Echols. Detective Allen had been told that all three engaged in cult-like activities. Misskelley made two statements to the detective that implicated Echols and Baldwin, as well as himself...

Misskelley, age seventeen, Echols, age nineteen 3, and Baldwin, age sixteen, were jointly charged with the capital murders of Moore, Byers, and Branch. Misskelley moved for a severance from Echols and Baldwin, and the trial court granted the severance

326 Ark. at 937, 936 S.W.2d 509 at 517.

Misskelley’s case having been severed from that of Echols and Baldwin, the former’s trial began on January 18, 1994 in Clay County. The proceedings were televised and widely reported in the print media. Echols below summarizes evidence from the Misskelley proceeding which was not admitted at his own trial but bears on the constitutional claims he will present below.

1. The Role of Vicky Hutcheson

Vicky Hutcheson was a prosecution witness at the trial of Jesse Misskelley and was the subject of testimony, although she was not called by either party, at Echols’ trial.

Hutcheson testified at the Misskelley trial that in May of 1993, she lived in Highland Park in a trailer. Her son Aaron was good friends with the three murder victims, and Hutcheson became really close friends with Jessie Misskelley (Misskelley Reporter’s Transcript [hereafter MRT] 970-971) 4 At some point after the killings, she decided to play detective. (MRT 971-972)

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3 According to a trial stipulation, Echols’ date of birth is December 10, 1974, making him eighteen at the time of the charged crimes and nineteen at the time of his trial. (EBRT 2675, 3463)
4 Citations to the Misskelley Reporter’s Transcript are to the pagination found in the transcripts produced in the Circuit Court. A different pagination may have been used for the record filed in this Court in Misskelley’s direct appeal.

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She had heard a lot of things about Damien Echols, so she had Misskelley introduce her to Echols. (MRT 972)

Hutcheson did a number of things to gain Echols’s confidence. She went to see Don Bray, a police officer at Marion, to get his library card to check out “some satanic books because they can’t be checked out just by normal... .” people; she spread the books around her coffee table. (MRT 972) [At the Echols trial, it was established that the West Memphis police, working with Vicky Hutcheson, had conducted audio and visual surveillance of Echols at Hutcheson’s home in an effort to catch Echols saying something incriminating, but to no avail. (EBRT 2153-54, 2940-2949)]

According to Hutcheson’s testimony in the Misskelley trial, at one point, Echols invited her to an “esbat,” which Hutcheson claimed was an occult satanic meeting mentioned in one of the witch books. (MRT 973) Hutcheson, Misskelley and Echols went to the meeting in a red Ford Escort driven by Echols. Hutcheson claimed that from a distance she saw 10 to 15 people at the meeting. She asked Echols to take her home, but Misskelley stayed at the scene. (MRT 973-974)

On cross-examination, Hutcheson admitted that she had been in Officer Bray’s office on the day the bodies of the murder victims were discovered, the reason being she was being investigated in regard to a “a credit card mess-up.” (MRT 975) She had been previously convicted in Arkansas for writing “hot checks.” (MRT 976) After she began her cooperation with the police regarding Echols, authorities dropped all charges involving the credit card problem. (MRT 975) Hutcheson frequently bought liquor for a fifteen year old friend of

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Misskelley’s (MRT 1214), and had spent the night with Misskelley the night before he gave his statement to the police and was arrested. (MRT 976-977) The defense proffered a witness who stated that on two occasions Hutcheson said that her son Aaron would receive reward money related to the case. (MRT 1268, 1269)

On January 29, 1994, the Arkansas Democrat-Gazette reported Hutcheson’s testimony that she “attended a satanic cult meeting with Misskelley and co-defendant Damien Echols.” (Exhibit E; see also Exhibit F- the Jonesboro Sun article of January 28, 1993) The Democrat-Gazette article also reported that Misskelley had confessed his involvement and that of Echols and Baldwin in satanic activities “and the sexual assaults, mutilations and beatings of the children.” (Exhibit E)

In a series of recent interviews, Vicky Hutcheson stated that her testimony about attending a satanic “esbat” meeting with Echols and Misskelley was a “complete fabrication.” 5 That assertion is supported by the fact that although the police were interrogating and conducting surveillance of Echols on multiple occasions between the discovery of the victims’ bodies on May 6th and the defendants’ arrests on June 3rd, the time period when Hutcheson was cooperating in the police investigation of Echols, no corroboration of Hutcheson’s claim of a satanic meeting was offered at either the Misskelley or Echols trial, nor has there ever been a claim by any other

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5 See “Complete Fabrication: A crucial witness says her testimony in the West Memphis 3 case wasn’t true, but a product of police pressure to get results in the deaths of three children,” by Tim Hackler, Arkansas Times, October 7, 2004, at pages 12-17. (Exhibit G)

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witness that Damien Echols knew how to drive an automobile or ever had done so.

2. The Misskelley Statement

Expert psychological testimony at the Misskelley proceeding established that Misskelley had been diagnosed as mentally retarded, as had his brother. (MRT 342) Misskelley’s arithmetic and spelling skills were on the 2nd or 3rd grade level. (MRT 344) He tended to think in childlike ways as “a 6, 7-year-old child would do.” (MRT 346) He performed psychological tests from the viewpoint of a 5 to 7-year-old child. (MRT 349) On moral reasoning test instruments, he again was very childlike. (MRT 351) He was severely insecure and did not understand the world very well. When he was under stress, he rapidly reverted to fantasy and daydreaming “and at times can’t tell the difference between fantasy and reality.” (MRT 352)

The diagnoses of Misskelley were adjustment disorder with depressed mood, with a history of psychoactive substance abuse, including marijuana, huffing gasoline, and alcohol. (MRT 352) He possessed borderline intellectual functioning. (MRT 353) He had a diagnosed developmental disorder, as well as other dysfunctions “primarily schizotypal, antisocial, and dependent.” (MRT 353) Misskelley had impaired memory, both long and short-term. (MRT 354)

The following facts concerning the Jesse Misskelley statement are taken from the opinion of this Court affirming Misskelley’s convictions on direct appeal. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996)

Approximately one month into the investigation, the police considered Damien Echols a suspect in the murders, but no arrests had been made. [Misskelley]'s name had been given to officers as one who participated in cult activities with

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Echols.[6]

Detective Sergeant Mike Allen questioned [Misskelley] on the morning of June 3, 1993. [Misskelley] was not considered a suspect at that time...

[Misskelley and Allen] arrived at the station at approximately 10:00 a.m. Detective Allen and Detective Bryn Ridge questioned [Misskelley] for about an hour when they became concerned that he wasn't telling the truth. In particular, he denied participation in the cult activity, a statement which was at odds with what other witnesses had said. At this point, the detectives decided to advise [Misskelley] of his rights. Detective Allen read him a form entitled "YOUR RIGHTS," and verbally advised him of the Miranda rights contained in the form. [Misskelley] responded verbally that he understood his rights and also initialed each component of the rights form. There was no evidence of any promises, threats or coercion...

After he was advised of his rights and had waived them, [Misskelley] was asked if he would take a polygraph examination. He agreed that he would. Detective Allen took [Misskelley] to look for his father so that his father could grant permission for [Misskelley] to take the polygraph. They observed Mr. Misskelley driving on the same road they were on, stopped him, and received the authorization. There was no evidence of promises, threats or coercion.

Upon returning to the station, Detective Bill Durham, who would administer the polygraph, once again explained [Misskelley]'s rights to him. [Misskelley] verbally indicated he understood, and initialed and signed a second rights and waiver form which was identical to the first.

Detective Durham explained to [Misskelley] how the polygraph would work and administered the test over the course of one hour. In Detective Durham's opinion, [Misskelley] was being deceptive in his answers and he was advised that he had failed the test. At that point, [Misskelley] became nonresponsive.

Detective Bryn Ridge and Inspector Gary Gitchell began another interrogation of [Misskelley] at about 12:40 p.m. They employed a number of techniques designed to elicit a response from [Misskelley]. A circle diagram was drawn and [Misskelley] was told that the persons who committed the murders were inside the circle and that those trying to solve the crime were on the outside. He was asked whether he was going to be inside the circle or outside. He apparently had no response. He was then shown a picture of one of the victims and had a strong

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6 This is a reference, inter alia, to Hutcheson’s “esbat” story.

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reaction to it. According to Gitchell, [Misskelley] sank back into his chair, grasped the picture and would not take his eyes off it. Yet, he still did not speak. Finally, Gitchell played a portion of a tape recorded statement which had been given by a young boy named Aaron. The boy was the son of a friend of [Misskelley]'s and had known the victims. The portion of the statement which the officers played was the boy's voice saying, "nobody knows what happened but me." Upon hearing this, [Misskelley] stated that he wanted out and wanted to tell everything.

The officers decided to tape record a statement and received the confessions which are set out above. At the beginning of the first statement, on tape, [Misskelley] was advised of his rights for the third time. The rights were fully explained to him, and the waiver of rights read to him verbatim.

The evidence presented by [Misskelley] at the suppression hearing consisted primarily of the testimony of polygraph expert Warren Holmes. Mr. Holmes testified that, in his opinion, [Misskelley] had not been deceptive in his answers to the polygraph questions. He raised the possibility that [Misskelley] had been wrongly informed that he had failed.

Misskelley v. State, 323 Ark. 449, 464-466, 915 S.W.2d 702, 710-711. (1996)

This Court described the contents of Misskelley’s statements themselves as follows:

At 2:44 p.m. and again at approximately 5:00 p.m., he gave statements to police in which he confessed his involvement in the murders. Both statements were tape recorded.

The statements were the strongest evidence offered against [Misskelley] at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration.

The statements were obtained in a question and answer format rather than in a narrative form. However, we will set out the substance of the statements in such a way as to reveal with clarity [Misskelley]'s description of the crime:

In the early morning hours of May 5, 1993, [Misskelley] received a phone call from Jason Baldwin. Baldwin asked [Misskelley] to accompany him and Damien Echols to the Robin Hood area. [Misskelley] agreed to go. They went to the area, which has a creek, and were in the creek when the victims rode up on their bicycles. Baldwin and Echols called to the boys, who came to the creek. The boys were severely beaten by Baldwin and Echols. At least two of the boys were raped and forced to perform oral sex on Baldwin and Echols. According to

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appellant, he was merely an observer.

While these events were taking place, Michael Moore tried to escape and began running. [Misskelley] chased him down and returned him to Baldwin and Echols. [Misskelley] also stated that Baldwin had used a knife to cut the boys in the facial area and that the Byers boy was cut on his penis. Echols used a large stick to hit one of the boys. All three boys had their clothes taken off and were tied up.

According to [Misskelley], he ran away from the scene at some point after the boys were tied up. He did observe that the Byers boy was dead when he left. Sometime after [Misskelley] arrived home, Baldwin called saying, "we done it" and "what are we going to do if somebody saw us." Echols could be heard in the background.

[Misskelley] was asked about his involvement in a cult. He said he had been involved for about three months. The participants would typically meet in the woods. They engaged in orgies and, as an initiation rite, killing and eating dogs. He noted that at one cult meeting, he saw a picture that Echols had taken of the three boys. He stated that Echols had been watching the boys.

[Misskelley] was also asked to describe what Baldwin and Echols were wearing the day of the murders. Baldwin was wearing blue jeans, black lace-up boots and a T-shirt with a rendering of a skull and the name of the group Metallica on it. Echols was wearing black pants, boots and a black T-shirt.

[Misskelley] initially stated that the events took place about 9:00 a.m. on May 5. Later in the statement, he changed that time to 12:00 noon. He admitted that his time periods might not be exactly right. He explained the presence of the young boys by saying they had skipped school that day.

The first tape recorded statement concluded at 3:18 p.m. At approximately 5:00 p.m., another statement was recorded. This time, [Misskelley] said he, Echols and Baldwin had come to the Robin Hood area between 5:00 and 6:00 p.m. Upon prompting by the officer, he changed that to 7:00 or 8:00 p.m. He finally settled on saying that his group arrived at 6:00 p.m. while the victims arrived near dark. He went into further detail about the sexual molestation of the victims. At

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least one of the boys had been held by the head and ears while being accosted. Both the Byers boy and the Branch boy had been raped. All the boys, he said, were tied up with brown rope...

[Misskelley]'s statements are a confusing amalgam of times and events. Numerous inconsistencies appear, the most obvious being the various times of day the murders took place. Additionally, the boys were not tied with rope, but with black and white shoe laces. It was also revealed that the victims had not skipped school on May 5.

Id., 323 Ark. At 464-466, 915 S.W.2d at 707-708.

3. Other Evidence Bearing On The Unreliability of The Misskelley Statement

Not only had the victims attended school during the day on May 5th, but Baldwin had as well (MRT 946, EBRT 974, 1754), and it was established during the Echols trial that Echols had been at a doctor’s appointment that morning (EBRT 1852, 1891, 1915, 1948, 2638, 2677, 2701, 2734) Indeed, uncontradicted testimony was admitted at Misskelley’s trial that Misskelley had been on a roofing job the entire morning of May 5th. (MRT 1104-1105, 1113) That being so, when Misskelley early in his statement described getting up on the morning of the 5th, receiving a phone call from Jason Baldwin, meeting with Baldwin and Echols, and walking to the Robin Hood woods at 9 a.m. in the morning, he was describing a series of events that never happened.

When Misskelley then described the victims being intercepted on the morning of the 5th as “they’s going to catch their bus and stuff, and they’s on their bikes...,” and stated that the victims then “skipped school” (MRT 946-47), he was engaging in fiction. When he stated that he witnessed Echols and Baldwin committing the killings and then he “went home by noon,” he again was inventing a narrative, as both the victims and Baldwin were sitting in school while

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Misskelley was roofing at noon, and the victims were riding their bikes around their neighborhoods six and a half hours later. Detective Ridge, one of the interrogators, admitted being shocked when Misskelley said the little boys were killed at noon, because he knew the little boys were in school at noontime, and their killings occurred between 6:30 on May 5 and 1:30 in the morning on the 6th; he did not raise the inconsistency with Misskelley, however, because “when you start contradicting somebody, then they stop talking.” (MRT RT 904-905) .

The police terminated the first recorded statement of Miskelley at 3:18 p.m. and attempted to obtain a warrant, but were told by the issuing magistrate that there were problems with the time sequence described by Misskelley. (MRT 154-156; 193; 212-220) During the second interview beginning at 5 p.m., Misskelley moved the time the victims were seized back to five or six o’clock, again a false statement, only to have the police tell him he had stated earlier in the interview the time was actually seven to eight (which Misskelley had not done in the earlier recorded interview ), a suggestion to which Misskelley then acceded. Having invented a story about meeting Baldwin and Echols and walking to Robin Hood woods in the morning, Misskelley never explained how he came to be in the presence of his codefendants later that day.

Of great importance, a person who had in fact been present at the commission of the crime would have seen the victims hog-tied, i.e., left hand to left foot, right hand to right foot–with shoe laces of different colors, including white and black (EBRT 195-196, 971-972), apparently taken from the victims’ own shoes. A true memory of binding the victims in such a horrible way with their shoelaces removed from their own sneakers would surely have been indelible. Yet in his statement Misskelley said only that the victims’ hands were tied, and that was done with brown rope. His interrogators attempted to have Misskelley correct this false

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description by suggesting that the boys would have run away had only their hands been tied, but Misskelley failed to come up with the explanation that would have been obvious to any one who actually witnessed the murders–the hog-tying with shoelaces. Finally, Detective Ridge flatly asked “were they [sic] hands tied in a fashion that they couldn’t have run, you tell me? Misskelley replied: “They could run...”

Ridge admitted to again being shocked when Misskelley falsely stated that the victims were bound with brown rope (MRT 905), but agreed that he had been happy to get an incriminating statement from Misskelley because the police were under a lot of pressure to solve the crimes. (MRT 906)

Moreover, when Misskelley described Damien Echols taking a “big old stick” and using it to choke Chris Byers to death, he again was speaking falsely, for an autopsy revealed Chris Byers had suffered no injuries to his neck consistent with choking, much less the fractures that would result from being asphyxiated with a stick. (MRT 852)

Testimony was offered at the Misskelley trial that on the day of Jessie’s arrest, he and Officer Allen joked about a reward of $40,000 and the fact that if a conviction was obtained, Jessie would be able to buy himself a new truck. (MRT 1183) Finally, Misskelley’s defense called a substantial number of witnesses who testified that Misskelley had been at the Highland Trailer Park in the early evening of May 5th when the police were called to the area in regard to a neighborhood dispute, and then had gone wrestling. (MRT 1124-29, 1149-52, 1161-63, 1173-75, 1180-82, 1188-90, 1198-1200, 1211-13)

As was established at the Echols trial, there had been at least one other confession by a Christopher Morgan in regard to the murder of the three eight-year olds that was deemed

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unreliable. 7 Had the Misskelley statement, inadmissible against Echols because it could not be subjected to the test of cross-examination, ever been placed in evidence at petitioner’s trial, it is reasonably possible, indeed highly likely, that the Echols defense team, even absent the opportunity to confront Misskelley on the stand, could have convinced the jury that his statement was false. Echols could have offered powerful proof that Misskelley had initially told the truth when he denied any involvement in the murders and satanic cult activity. Told by the police however, that his assertions had been proven false by the polygraph (which they had not), Misskelley then fabricated a confession which was purely the product of powerful suggestion by authority figures on a mentally deficient seventeen year old boy.

/ /

4. The Misskelley Verdict And Accompanying Publicity

On January 28, 1993, the Jonesboro Sun carried a front page story about the playing of the Misskelley confession in court, including graphic descriptions of Echols and Baldwin beating and sexually abusing the three victims. (Exhibit F ) An article in the Jonesboro Sun on February 4, 1994 reported the prosecutor’s use in closing argument of the Misskelley statement, including its references to Echols and Baldwin. (Exhibit H; Jonesboro Sun of February 4, 1994) Misskelley was convicted in Clay County on February 4, 1994. Press coverage of the verdict on February 5th

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7 Morgan, who knew the three boys and had left the Memphis area three or four days after the homicides, had told police in Oceanside, California in an interview on May 17, 1993 that maybe he had blacked out, screwed the three boys, killed them, and cut off their arms and legs. (EBRT 2054-2061, 2841-2848)

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described Misskelley’s statement of June 3, 1993, stating that Misskelley had confessed that he had helped subdue the victims but that it was Echols and Baldwin who “beat, cut, and sexually abused the boys.” (See Exhibit I; Arkansas Democrat-Gazette of February 5, 1994)

D. The Echols Trial

1. Pretrial Proceedings

On February 22, the day jury selection was to begin in the Echols trial, the trial court held an extended proceeding in chambers dealing with the issue of whether, in an effort to obtain the testimony of recently-convicted Jesse Misskelley, the prosecution had acted improperly in interviewing Misskelley on a number of occasions over his attorney’s objections and, in some instances, without defense counsel being present, and in then having Misskelley brought to Jonesboro to testify (EBRT 512 et. seq., 1290 ) The court indicated that it was “going to find an independent attorney” to interview Misskelley and determine whether he wished to testify over the objections of his trial attorneys in return for use immunity (EBRT 560-618, 1338-1396), and appointed Philip Wells to perform that task. (EBRT 576, 1354) Mr. Wells interviewed Misskelley and reported that Misskelley wished to consult with his parents before deciding whether to enter into a bargain in exchange for his testimony. (EBRT 578-582, 1356-1360)

The following morning, newspapers reported that the trial judge in the Echols and Baldwin case had cleared the way for Jessie Lloyd Misskelley Jr. to testify against Echols and Baldwin. One report continued:

Misskelley’s testimony or statement is important to prosecutors. In a June 3, confession to West Memphis police, he said he helped Echols and Baldwin subdue the victims on May 5 and watched as the teen-agers beat and sexually abused Christopher Byers, Michael Moore, and Steve Branch.

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(See Exhibit J, Arkansas Democrat-Gazette of February 23, 1994)

The press further reported that the prosecution had asked Jesse Misskelley’s father to convince his son to testify in return for a reduced sentence of forty years. (Exhibit J)

Also on the morning of February 23rd, the court announced that Misskelley had decided not to testify, and the parties agreed that there would be no further contact with him by the prosecution without prior notice to defense counsel. (EBRT 619, 1397)

On February 25, 1994, Baldwin’s attorney, Paul Ford, asked to make a record regarding his objection to statements made by Phillip Wells that Ford saw on television the previous evening. (EBRT 672, 1451) Ford characterized the statements as “alarming . . . by virtue of [Wells] . . . standing as a liaison of the Court[.]” Ford stated:

On a Channel Eight news report last night [Wells] said that Jessie had not made up his mind. [Jessie] was going back and forth whether he would testify, whether he would not testify. He was talking to his daddy. But he also said that [Jessie] has decided if he will testify, he will testify to the truth.

And I feel like that statement coming from that impartial capacity means that it’s almost the Court indicating that if he testifies, he will be testifying to the truth[.]

(EBRT 672-73, 1451-52)

2. Press Coverage of Opening Statements

Following opening statements on February 28, 1993, the Arkansas Democrat-Gazaette on March 1st reported that Echols, Baldwin, and Misskelley had been arrested “based on a statement Misskelley gave police describing their involvement in the killings.” The article continued that a transcript of the statement revealed that Misskelley said “Echols and Baldwin killed the boys while he watched, and that the three teenagers belong to a cult whose members eat dogs during rituals.” (Exhibit K, Arkansas Democrat-Gazette of March 1, 1994; see also Exhibit L, The

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Jonesboro Sun of March 2, 1994 (“Misskelley confessed to being present while Echols and Baldwin killed the boys.”))

On the same day, Paul Ford and petitioner’s trial counsel, Val Price, objected outside the presence of the jury that Phillip Wells was standing at the courtroom rail and holding what amounted to a press conference regarding whether or not Jessie Misskelley had decided to testify. (EBRT 887-89, 1667-69) The trial judge stated that it had been inappropriate for Wells to describe himself as a court liaison and he would tell Wells to refrain from making comments in the future. (EBRT 888-889, 1668-69)

3. The State’s Evidence Against Echols

On denying Echols’ direct appeal, this Court summarized the evidence introduced against him at trial as follows:

Anthony and Narlene Hollingsworth were well acquainted with Echols and testified that they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found. The witnesses testified that Echols had on a dark-colored shirt and that his clothes were dirty...

Twelve-year-old Christy VanVickle testified that she heard Echols say he "killed the three boys." Fifteen-year-old Jackie Medford testified that she heard Echols say, "I killed the three little boys and before I turn myself in, I'm going to kill two more, and I already have one of them picked out."...

Lisa Sakevicius, a criminalist from the State Crime Laboratory, testified that she compared fibers found on the victim's clothes with clothing found in Echols's home, and the fibers were microscopically similar.

Dr. Frank Peretti, a State Medical Examiner, testified that there were serrated wound patterns on the three victims. On November 17, 1993, a diver found a knife in a lake behind Baldwin's parents' residence. The large knife had a serrated edge and had the words "Special Forces Survival Roman Numeral Two" on the blade. Dr. Peretti testified that many of the wounds on the victims were consistent with, and could have been caused by, that knife.

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Deanna Holcomb testified that she had seen Echols carrying a similar knife, except that the one she saw had a compass on the end. James Parker, owner of Parker's Knife Collector Service in Chattanooga, Tennessee, testified that a company distributed this type of knife from 1985-87. A 1987 catalog from the company was shown to the jury, and it had a picture of a knife like the knife found behind Baldwin's residence. The knife in the catalogue had a compass on the end, and it had the words "Special Forces Survival Roman Numeral Two" on the blade. The jury could have made a determination whether the compass had been unscrewed, and, in assessing the probativeness of the location of the knife introduced at trial, heard ample evidence that Echols and Baldwin spent much time together...
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Postby Obscuregawdess » Tue May 27, 2008 12:50 pm

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The State's theory of motive was that the killings were done in a satanic ritual. On cross-examination, Echols admitted that he has delved deeply into the occult and was familiar with its practices. Various items were found in his room, including a funeral register upon which he had drawn a pentagram and upside-down crosses and had copied spells. A journal was introduced, and it contained morbid images and references to dead children. Echols testified that he wore a long black trench coat even when it was warm. One witness had seen Echols, Baldwin, and Misskelley together six months before the murders, wearing long black coats and carrying long staffs. Dr. Peretti testified that some of the head wounds to the boys were consistent with the size of the two sticks that were recovered by the police.

Dr. Dale Griffis, an expert in occult killings, testified in the State's case-in-chief that the killings had the "trappings of occultism." He testified that the date of the killings, near a pagan holiday, was significant, as well as the fact that there was a full moon. He stated that young children are often sought for sacrifice because "the younger, the more innocent, the better the life force." He testified that there were three victims, and the number three had significance in occultism. Also, the victims were all eight years old, and eight is a witches' number. He testified that sacrifices are often done near water for a baptism-type rite or just to wash the blood away. The fact that the victims were tied ankle to wrist was significant because this was done to display the genitalia, and the removal of Byers's testicles was significant because testicles are removed for the semen. He stated that the absence of blood at the scene could be significant because cult members store blood for future services in which they would drink the blood or bathe in it. He testified that the "overkill" or multiple cuts could reflect occult overtones. Dr. Griffis testified that there was significance in injuries to the left side of the victims as distinguished from the right side: People who practice occultism will use the midline theory, drawing straight down through the body. The right side is related to those things synonymous with Christianity while the left side is that of the

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practitioners of the satanic occult. He testified that the clear place on the bank could be consistent with a ceremony...

Lisa Sakevicius, the criminalist who testified about the fibers, stated that Byers's white polka-dot shirt had blue wax on it and that the wax was consistent with candle wax.

Detective Bryn Ridge testified that Echols said he understood the victims had been mutilated, with one being cut up more than the others, and that they had drowned. Ridge testified that when Echols made the statement, the fact that Christopher Byers had been mutilated more than the other two victims was not known by the public...

Echols took the witness stand....When asked about his statement that one victim was mutilated more than the others, he said he learned the fact from newspaper accounts. His attorney showed him the newspaper articles about the murders. On cross- examination, Echols admitted that the articles did not mention one victim being mutilated more than the others, and he admitted that he did not read such a fact in a newspaper.

Echols and Baldwin v. State, 326 Ark. at 938-941, 936 S.W.2d at 518-519.

As noted above, a reviewing court faced with an insufficiency of the evidence claim must assume that all of the state’s evidence is credible and draw every rational inference supported by that evidence in favor of the prosecution. This Court did just that in rejecting Echols’ insufficiency claim on direct appeal. That ruling by the Court, however, which is not challenged here, did not address the relative strength of the proof offered by the state, an issue relevant to this present petition. In fact, the accuracy and persuasiveness of each component of the state’s evidence against Echols was subject to serious question.

a. The Ballpark Girls

In rejecting Echols’s appeal of the denial of his Rule 37 motion, this Court observed that the “most significant” evidence offered against petitioner at trial “were his statements that were overheard by two girls that he had ‘killed the three boys,’ and that ‘I'm going to kill two more,

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and I already have one of them picked out.’” Echols v. State (Echols II), 354 Ark. 530, 558 127 S.W.3d 486, 504 (2003), citing Echols I, 326 Ark. at 938, 936 S.W.2d at 518. Absent the testimony of these two girls, Echols would have been entitled to a directed verdict, for, as demonstrated below, no other piece of evidence introduced against Echols, even if deemed entirely credible, logically connected petitioner to the charged murders.

According to the two girls, Echols’ statements were made near a concession stand to a “whole crowd of people” (EBRT 1815, 2600), at least six or seven of whom were with Damien (EBRT 1825, 2611), and were heard by one of the girls at a distance of 15 to 20 feet. (EBRT 1818-1819, 2604, 2605) Neither of the girls came forward with their story until after Echols had been arrested (EBRT 1817, 1831, 2603, 2617)

For the testimony of the two girls to be deemed fully credible evidence of a meaningful admission of culpability by Echols, a jury would have to find that: (1) Echols, who had been intensely interrogated by the police on numerous occasions, including an eight hour session on May 10th (EBRT 1441-42, 2224-25), during which he steadfastly maintained his innocence, then decided to doom himself by publicly proclaiming his guilt at a softball game to a large crowd of people; (2) although they had learned that Echols was guilty of perhaps the most heinous offenses in the history of the state, none of the people to whom the confession was directly made ever came forward to report it to the police; and (3) neither of the two young girls that did overhear the confession contacted the authorities until after Echols was arrested and his picture appeared in the newspaper and on television, despite the fact that at the time of the softball game a desperate hunt was underway for the killers of the three eight-year olds.

Obviously, a jury could have just as easily rejected as accepted the girls’ testimony on the

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grounds that it was either mistaken or exaggerated. Echols did attend a softball game with Baldwin sometime between May 5th and his arrest on June 3rd. (EBRT 1962, 1976, 2748, 2762) With no basis in fact, the police investigation had focused on Echols from almost the moment the bodies of the victims were discovered, and the police had asked many in the community questions centering on Echols. That petitioner had been interrogated by the police on more than one occasion, including at police headquarters, was surely common knowledge in the surrounding community during the weeks after the crimes. The ballpark girls may well have heard comments at the softball game that Echols, who always stood out in a crowd in West Memphis, was the likely killer. But a reasonable jury would have entertained very grave doubts that Echols had made a true admission of guilt in the circumstances described by the two girls.

b. The Knife in the Lake

The finding of a knife in the lake near Baldwin’s house could easily have had a strong emotional impact on jurors, but its valid probative value was almost nothing for several reasons. First, there was no meaningful evidence that the knife was used in the slaying of the three boys. Doctor Peretti said some of the boys’ wounds were made with a serrated knife, and therefore were consistent with the serrated knife found in the lake, but Peretti testified that the same could have been said of almost any serrated knife (EBRT 1108, 1889), of which there were no doubt thousands in the West Memphis area. Indeed, Doctor Peretti said that the victims’ wounds could have been caused by a serrated knife owned by Mark Byers (EBRT 1085, 1866), which did have on it traces of blood consistent with that of one of the victims, Chris Byers. 8 Just as Peretti could

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8 See Echols II, 354 Ark. at 548, 127 S.W.3d at 497. Byers was called as a defense witness for the purpose of exposing prior inconsistent statements that he had made to police regarding the appearance of blood, which matched his and his son's blood-type, on a knife that he owned.

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not say the Byers knife (a more likely candidate due to the presence of Chris’s blood) was used in the slayings, he could not say that the knife in the lake was so used. (EBRT 1109, 1890)

Furthermore, the state offered no dispositive evidence that the knife in the lake was ever possessed by Echols. Deanna Holcomb testified that the knife looked like one she had seen in Echols’ possession over a year before the charged offenses, but petitioner’s knife had had a compass; the knife in the lake did not. The fact that there was evidence that the class of knife found in the lake could have once had a compass on it certainly did not establish the fact that the one in the lake ever did have such a compass, much less that it was a knife once possessed by Echols.

Echols is not now challenging the ruling of this Court on direct appeal that the knife was admissible at his trial (Echols I, 326 Ark. at 939, 936 S.W.2d at 518-519); he simply makes the point that the knife did not logically add much, if any, strength to the government’s case.

c. The Hollingsworth Testimony

Anthony and Narlene Hollingsworth testified that “they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found” (Echols I) The dubious nature of this testimony is illustrated by the fact its claimed relevance required a finding that the most crucial portion of the Hollingsworths’ identification–that of Domini Teer-- was wrong.

There is evidence in the record that the Hollingsworths were related to Domini Teer.

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(EBRT 1969-70, 2755-56) Narlene identified Domini based in part on her pants with flowers on them that Narlene had seen Domini in previously. (EBRT 1295-96, 2076-2077) Anthony was specific in his physical description of Domini as being extremely thin, 5' 4" in height, and having red hair. (EBRT 1283, 2064)

But in closing, the state’s theory was that the Hollinsworths were probably wrong in their positive identification of Domini; in the prosecution’s view, the person they identified as Domini was not even a female at all, but most likely was Jason Baldwin. (EBRT 2499-2500, 3288-89) A reasonable jury could fairly conclude that witnesses who could confuse one party they claimed to know well with a person of another gender would not be more reliable in their claim to have correctly identified a second party at the same place and time.

Additionally, the time of the supposed identification of Echols by the Hollingsworths, if believed, created more problems for the state’s case than it resolved. Doctor Peretti’s best estimate of the victims’ time of death was between 1:00 a.m. and 5-7:00 a.m on May 6th. (EBRT 1121, 1902) If Echols had been walking with Domini near the Blue Beacon at 9:30 p.m. on the 5th, instead of talking to her on the phone, as he and his mother testified, 9 the state still would be left without an explanation of how he could be exercising control of the victims, who apparently were not killed until hours later.

d. The Fiber Evidence

A prosecution witness testified that a green cotton and two green polyester fibers found on one of the victim’s clothing was similar in consistency and appearance to the fibers of a

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9 Teer’s interview with the police on September 19, 1993, provided the defense in discovery, confirmed petitioner’s testimony concerning their telephone conversation on May 5th. Exhibit M

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child’s shirt made of a cotton polyester blend found in the Echols residence. (EBRT 1468-69, 2251-52) Echols could not have worn the t-shirt found in his home, a size 6. (EBRT 1470-71, 2253-54)

The prosecution witness agreed that there were insufficient unique individual microscopic characteristics to identify the green fiber as coming from the size 6 shirt, which in fact was blue in color. (EBRT 1474, 1477, 2257, 2260) When the witness testified that a fiber was microscopically similar to that found in a garment, that simply meant that if a rack of clothes at Walmart was made at the same time from the same fiber, a fiber identified as microscopically similar to those of one garment also “could have come from one of these other items that was hanging on the same rack.” (EBRT 1474-75, 2257-58) In sum, the fiber evidence tended to establish nothing more than that the green fibers on the victim’s clothing were as likely to have come from a classmate’s clothing, or any one of uncounted cotton polyester articles sold by Walmart, as from the child’s shirt in petitioner’s home.

e. The Ridge Statement

As noted in this Court’s opinion on direct appeal, Detective Bryn Ridge testified that in an unrecorded interview he conducted for several hours on May 10, 1994 with Echols, petitioner said he understood the victims had been mutilated, with one being cut up more than the others, and that they had drowned. (EBRT 1566, 2349) This statement would be incriminating if the fact that one of the victims (Chris Byers) had been mutilated more than the other two victims was not yet in the public domain.

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Echols testified that on May 10th he discussed with Ridge things he had “seen on TV, newspapers, people talking” (EBRT 2029, 2816), and that when Ridge had asked him whether one victim had been hurt worse than the others, he had replied, “I guess so.” (EBRT 1958, 2029-30, 2744, 2816-2817) The local and state press had reported on May 7, 1993, the day following the discovery of the bodies, that the victims had been bound and sexually mutilated, and that Mark Byers, the father of Chris Byers, had stated that one boy had been hit over the eye, another’s jaw was injured, and the third “was worse than that” or “looked worse than that.” (See Exhibit N, a Commercial Appeal article of May 7, 1993; Exhibit O, a West Memphis Evening Times article of May, 7, 1993; and Exhibit P, a Democrat-Gazette article of May 8, 1993. ) Thus the fact that one victim had been more severely mutilated than the others was in the public domain three days before the May 10th interview. Furthermore, as Ridge himself testified, at the time of the interview there were “all kinds of rumors of how people thought they died” circulating at the time in the community. (EBRT 1577, 2360)

Additionally, prior to May 10th, Echols had already been through at least two other interviews in which police officers, including Officer Sudbury, had discussed the murders with him at length and asked the same leading questions as did Ridge from a questionnaire developed by Sudbury. (EBRT 1571, 1586, 1588, 1956, 2354, 2369, 2371, 2742) Echols had discussed with Sudbury rumors that he had heard about the condition of the bodies, which everyone in West Memphis was talking about. (EBRT 1954-55, 2740-41) The May 10th interview had little or no value as proof that Echols had any unique or undisclosed knowledge of the crime.

f. The “Occult Expert”

Again putting admissibility aside, the testimony offered by the supposed expert in occult

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killings, Dale Griffis, while certainly capable of emotionally affecting a jury, had little or no probative value in proving Echols guilty. The theory on which the testimony was offered was that if Echols believed in satanism, and if the charged murders were satanic in nature, then Echols was more likely to have committed them. Griffis was permitted to testify on the basis that his testimony could assist the jury on the second component of the syllogism–that the killings were satanic in nature.

In order for any expert to offer “specialized knowledge” 10 on that subject, however, two things would have to be true: (a) a class of murders have been positively identified as committed for satanic purposes; and (b) murders in this identified class bear characteristics sufficiently unique to distinguish them from other murders. If a class of murders has not been reliably proven satanic in nature, then an “expert” opinion that satanists kill in some particular manner is simply nonsensical speculation. For example, an “expert” on murders committed by extraterrestrial beings might opine that such beings always kill using screwdrivers. The expert need not fear contradiction for the same reason that his testimony would be worthless: the commission of a murder by an extraterrestrial has never been confirmed.

Even if some killings could be verified as satanically motivated, the class would have to

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10 See Arkansas Rule of Evidence Rule 702 states: “Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

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be large enough to generate valid data on the distinguishing characteristics of such crimes. The fact that it might be demonstrable that two murders committed by Basque or Islamic terrorists involved the use of .45 caliber pistols could not generate a valid conclusion either that such terrorists always use such handguns, much less that a murder committed with a .45 was most more than likely perpetrated by a terrorist.

Thus for Griffis’s testimony that charged murders had the “trappings of occultism” to have any meaningful weight, there would have to be some reliable data that proven satanic killings have been committed near pagan holidays, or when there was a full moon, or that such killings typically involve the sacrifice of young children, or three victims, or victims eight years old, or are often done near water for a baptism-type rite or just to wash the blood away, or involve the display of the victims’ genitals, the removal of testicles, or the storing of blood for future services in which the killers would drink the blood or bathe in it. If there has never been a satanic killing involving three victims, or eight year old victims, or the removal of testicles, or the removal of blood for bathing and drinking, then these factors cannot possibly support a valid expert opinion that they indicate a satanically motivated crime as opposed to randomness, simple sadism, or sexual perversion.

On cross-examination, Griffis could offer no empirical basis for his speculation that the date of May 5th suggested a satanic impulse for the killings (EBRT 1777, 2561), or that satanic killings are more likely when the moon is full (EBRT 1779, 2563) He agreed that the manner in which the victims were displayed could indicate a sex crime, not a satanic one; the same was true of the genital mutilation. (EBRT 1780, 2564) He knew of no satanic crime in which the victims were bound as they were in this case. (Id) Griffis did refer to a killing in Rhode Island as

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involving satanic motivation, but that crime involved a female burned in a circle containing a pentagram; none of these factors was present in the present case. (EBRT 1781, 2565) Griffis agreed that the bodies could have been placed in water to drown or conceal the victims, rather than for satanic reasons. (EBRT 1781-82, 2565-66) He likewise agreed that the absence of blood at the scene could simply mean that the victims were killed at another location. (EBRT 1783, 2567)

Defense expert Robert Hicks was employed by the Department of Justice of Virginia and had published two books on the issues of police investigation and alleged satanic crimes. (EB 2227-28, 3015-16) Hicks had acquired his advanced degree from a major university which requires candidates to be on campus and attend classes (EBRT 2225-26, 3013-14), not true of Griffis with his mail order “masters” and “Ph.D,” which he had obtained in three years without attending classes while working full time as a police officer (EBRT 1752-53, 2536-37) Hicks testified that there was no empirical basis for Griffis’ opinions about the charged murders having the “trappings of occult killings,” be it in relation to pagan holidays, the full moon, disfigurement or display of sexual organs, or the cleaning of a crime scene. (EBRT 2254-58, 3042-46) Indeed, in response to a defense objection that Griffis’s failure to cite specific cases revealed that there was no “established scientific opinion or body of work which is the basis of his opinion” (EBRT 1722, 2506), the trial court observed that it did not “know of any particular scientific field other than perhaps what he’s indicated that would allow such testimony.” (EBRT 1723, 2507)

In sum, Griffis’s opinion as to occult trappings was not based on data that would render his conclusions more reliable than one obtained by flipping a coin. He had once described his role as helping “brother police officers” who are under “a hell of a lot of pressure when I get

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there.” (EBRT 1800, 2584) Rather than offering objective expert testimony based on valid statistical data, his role at petitioner’s trial was simply to offer whatever opinion would support the prosecution’s theory of the case. As was true of the rest of the evidence admitted against Echols, the occult opinion testimony was of minimal worth in proving petitioner’s guilt.

4. The Prosecution’s Reference To The Misskelley Statement

Prior to the Echols-Baldwin trial, prosecutor Davis had stated that the state needed Jesse Misskeley to testify against Echols and Baldwin “real bad.” 11 Misskelley was not called to testify, and any out-of-court statements he had made were plainly inadmissible against Echols and Baldwin. Because there was no evidence linking Misskelley to the charged crimes other than his out-of-court statements, no evidence concerning Misskelley was in anyway relevant or admissible at the Echols and Baldwin trial. The only impact that mentioning Misskelley during the Echols-Baldwin trial could have had on jurors would be to provoke those jurors to connect the defendants to the charged crimes based on what they had heard outside the courtroom regarding Misskelley: i.e., that he had confessed to, and been convicted of, the charged murders.

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11 In the aforecited taped HBO interview (see footnote 1), prosecutor Davis told the victims’ families that the state needed testimony from Misskelley “real bad.” See Exhibit D.

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On March 1, 1994, the second day testimony was taken, in response to a question that called for a yes or no answer, 12 West Memphis Police Department Detective Bryn Ridge stated on cross examination, “I didn’t take this stick into evidence until the statement of Jessie Misskelley, in which he said –.” (EBRT 923, 1703) Attorney Val Price entered an immediate objection and moved for a mistrial, which was immediately denied by the trial judge. In further discussion outside the presence of the jurors, Price argued, “The basis [for the mistrial] is the question that I asked the officer did not call for him blurting out the fact that Jessie Misskelley gave a confession. The whole purpose for our trial being severed from Mr. Misskelley’s trial in the first place, was the confession that Jessie Misskelley gave.” (EBRT 924, 1704)

The court reasoned, “He shouldn’t have volunteered that, but I certainly don’t see any basis for a mistrial.” (EBRT 925, 1705) After more objections by counsel, the court stated, “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. Now the contents of the statement certainly would be prejudicial. And the contents of the statement, this Court will not allow, and that was the reason for the severance in the first place.” (EBRT 930-31, 1710-11) Ultimately, the judge’s remedy was to give a cautionary instruction to the jury:

Ladies and gentlemen, you are instructed and told at this time that you are to disregard and not consider the last response made by Detective Ridge to a question from Mr. Price and you’re to – if you can remember it – you’re to strike it from your mind and not give it any consideration.

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12 The question posed to Ridge was: “[Y]ou didn’t take that stick into evidence at the time y’all recovered the bodies.” (EBRT 922; 1702)

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(EBRT 934, 1714)

The following day, the press reported Ridge’s reference to the Misskelley statement, stating that the police had “used Misskelley’s June 3 statement to pull together enough evidence to arrest the three teenagers in the deaths.” (Exhibit. Q, Arkansas Democrat-Gazette of March 2) It was also reported that the trial judge had suggested “there isn’t a soul up on that jury or in this courtroom that doesn’t know Mr. Misskelley gave a statement.” (Exhibit Q) The Jonesboro Sun reported that: “Under the hearsay law, the state is prevented from telling jurors about Misskelley’s June 3 confession to West Memphis police....” (Exhibit L).

The press also reported on March 2nd that negotiations by the prosecution to obtain Misskelley’s testimony were continuing, and that Phillip Wells had been appointed by the court “to meet with Misskelley to give him a ‘fresh perspective’ on what effect his testimony could have on his own case and that of Baldwin and Echols.” (Exhibit Q). Wells, who described himself to the press as a “court liaison,” had announced to the media that there was “no question the prosecution’s office will benefit” from Misskelley’s possible testimony.” (Id.).

5. The Alibi Evidence

Echols offered extensive evidence, including his own testimony, that he was never in Robin Hood woods on May 5, 1993, and thus could not have killed and did not murder Chris Byers, Michael Moore, and Stevie Branch.

Pam Hutchinson, petitioner’s mother, testified that on May 5, 1993, she was living at the Broadway Trailer Park in West Memphis with Joe Hutchinson, her husband and Damien’s father, her mother, her daughter Michelle, and Damien. (EBRT 1847, 2633) Pam awoke Damien around 10 A.M. because he had a doctor’s appointment around 10:30 or 11:00. After leaving the

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doctor’s and dropping off a prescription, 13 Mrs. Hutchinson left Damien off at Lakeshore at about 1:00 p.m. at the home of his girl friend, Domini Teer. (EBRT 1852, 2638) She returned home and stayed there until about 4:00. She received a phone call from Damien and went with Joe and Michelle to pick him and Domini up at the laundromat on Missouri Street. (EBRT 1853, 2639)

They then dropped off Domini before going to the Marion Discount Pharmacy to pick up Damien’s prescription at about 4:00 or 4:30. (EBRT 1854-55, 2640-41) They then went home together and had dinner. (EBRT 1855, 2641) Around 7:00 p.m, the family--Pam, Joe, Michelle, and Damien-- went to see the Sanders family on Balfour street in West Memphis. (EBRT 1856, 2642) Only Jennifer, the Sanders’ daughter, was home, so they left a note. (EBRT 1857, 2643) Damien returned home for the entire evening and stayed on the phone. (EBRT 1858, 2644) Pam remembered that Damien and Domini had an argument before Damien went to bed at about 11:00 p.m. (EBRT 1859, 2645)

Michelle Echols likewise testified that on May 5th, her mother took her brother to the doctor. (EBRT 1915, 2701) Michelle stayed home until about 4:00 p.m., then went with her mother and father to get Damien and Domini from the laundromat. (EBRT 1916, 2701) They picked Domini and Damien up from the laundromat, took Domini home, and then went back home. (EBRT 1917, 2703)

They stayed home for a while and then went to Randy and Susan Sanders’ house. It took

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13 Pharmacy records confirmed the prescription was dropped off on May 5th. (EBRT 1906, 2692).

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them 10-15 minutes to get there. No one was at the Sanders house except for Jennifer. (EBRT 1918, 2704) They watched a bit of television there, including part of [Beverly Hills] 90210. They then returned home. When they got home, she used the phone and then her brother Damien was on the phone for quite a while. (EBRT 1919-20, 2705-06) When she woke up the next morning at 9 a.m., her brother was still there. (EBRT 1921, 2707)

Jennifer Sanders confirmed that Pam and Joe Hutchinson, Damien, and Michelle visited her home on the evening of May 5th (EBRT 2115-2116, 2902-03); her sister Stacy Sanders, who was visiting her cousin across the street, saw the Hutchinson family at the Sanders’ home on that night as well. (EBRT 2106-07, 2893-4). The Sanders girls recalled that their parents had been out at a casino the night of May 5th, which their father and an independent witness confirmed. (EBRT 2126-28, ,2133, 2913-15, 2920)

Petitioner testified he remembered going to the doctor’s office on May 5th because his ex-stepsister Carol Ashmore was there. (EBRT 1948, 2734) He did not really recall what else he did that day, but was probably around the laundromat at 4:00 to 4:30 when his mother picked him and Domini up. (EBRT 1949, 2735) He recalled going to the Sanders house when Jennifer was there alone. (EBRT 1950, 2736) He then went home and talked on the phone to Holly George, Jennifer Bearden, Domini Teer, and Heather Cliette. He and Domini had some kind of an argument. (EBRT 1952, 2738) He did not leave the house on May 5th. He did not kill any of the youngsters. He had nothing to do with their death, and had not even heard of them before he saw it on the news. He had never been to the Robin Hood Wood area. (EBRT 1953, 2739)

In rebuttal, the state did not call Jennifer Bearden, Domini Teer, Holly George, or Heather Cliette, or offer any other evidence refuting Echols’ testimony that he spoke to them on the

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phone on the day and evening of May 5th. 14

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ARGUMENT

I. THE JURY’S EXTRAJUDICIAL RECEIPT AND CONSIDERATION OF THE INADMISSIBLE AND FALSE MISSKELLEY STATEMENT IMPLICATING ECHOLS IN THE CHARGED OFFENSES VIOLATED DEFENDANT’S RIGHTS TO COUNSEL, CONFRONTATION, AND A FAIR TRIAL UNDER BOTH THE ARKANSAS AND UNITED STATES CONSTITUTIONS, REQUIRING THAT HIS CONVICTIONS BE VACATED

A. Introduction

Jesse Misskelley’s statement to investigating officers on June 3, 1993, although properly admissible only against Misskelley himself, also implicated Echols and Baldwin in the commission of the charged murders. Under controlling case law of both the United States and Arkansas Supreme Courts, it would have been error of constitutional dimension to admit such evidence at a joint trial of the declarant (Misskelley) and the codefendants whom the statement implicated (Echols and Baldwin) unless the declarant were to take the stand and be subjected to

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14 Bearden gave a statement to the police on September 10, 1993, later provided to the defense in discovery, confirming that she had spoken to Echols on the phone on the evening of May 5, 1993. (Exhibit R)

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cross-examination by his codefendants, which was not to be the case here. Given the extraordinarily prejudicial nature of a cross-incriminating statement of a non-testifying defendant, the violation of the state and federal constitutional rights engendered by the injection into trial proceedings of evidence of this sort cannot be avoided by a trial court’s admonition to jurors to limit the statement’s admissibility to the declarant alone.

It was for these reasons that the trial court severed the trial of Echols and Baldwin from that of Misskelley, whom the state tried first and convicted almost entirely on the basis of his own statement. Despite the importance of insulating the Echols-Baldwin proceeding from any taint of the Misskelley statement, a reference to the statement was shoehorned into Echols’ trial through a prosecution witness’ unresponsive answer to a question on cross-examination. While striking the answer from the record and admonishing the jury to ignore it, the trial court justified denying a defense motion for a mistrial on the ground that the jury had heard mention only of the statement’s existence, not its prejudicial contents.

It is now clear that the trial of Echols and Baldwin was plagued by the very unfairness the severance of their case from Misskelley’s was designed to avoid. Having learned of its contents through media reports, jurors considered the Misskelley statement and relied on it to convict, as evidenced by the fact that a chart drawn up during the jury’s deliberations and copied into one juror’s notes listed the Misskelley statement as a ground upon which to rest the verdict of guilt as to both defendants. The jurors’ discussion of the Misskelley statement breached a direct judicial command.

The unfairness caused by the jury’s discussion and weighing of the Misskelley statement was much greater than would have resulted had the trial court erroneously admitted the out-of-

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court statement over hearsay and confrontation clause objections. In that instance, the defense, on notice that the statement was before the jury, could have proceeded during its case to demonstrate that every line of the statement was false. Instead, having heard no evidence to the contrary, the jury was left under the delusion that Misskelley had provided the police with credible information establishing his own culpability and that of his codefendants. The devastating impact of the extrajudicially-received information dwarfed the persuasive force of the minimal evidence properly admitted into evidence. A new trial is plainly in order.

B. Relevant Facts

1. The Echols Jury Selection

Jury selection in the trial of Echols and Baldwin began on February 22, 1994 and was conducted at the same time the media was reporting the controversy over Misskelley’s potential status as a witness against Echols and Baldwin. The court began its voir dire of prospective jurors by acknowledging the threat to a fair trial posed by the enormous media attention the case had received: “This is one of those cases where there’s been a great deal of media attention to it, and it’s evident here today that there will a great deal more.” (Reporter’s Transcript of the Echols-Baldwin Voir Dire [hereafter “VDRT”] at 3) 15 The court observed that: “Oftentimes the slant or the spin that’s put on the news article will influence you, where had you been in court and heard it all, you might have had a totally different perspective of it. So the spin that’s sometimes put on news stories will affect your mind. So you should only allow your judgment to

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15 Each cited page of the voir dire transcript at the Echols-Baldwin trial is being submitted to the Court in Exhibit C. Petitioner is moving to have that exhibit filed under seal to protect the jurors’ privacy.

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be affected by what you hear in the courtroom.” (VDRT 3-4) 16

Later during voir dire, the prosecutor made the following remarks to prospective jurors about the press environment surrounding the trial: “You’ve seen all the cameras out here, and you know this case is described as a high profile or media attention. You’ve seen all the camera people. I don’t know if you’ve seen how they rush like little packs of wolves out there.” “Because of the high interest in the area, the state, the nation, we felt like it would be appropriate to have cameras in the courtroom to record the proceedings rather than have ’em outside the courtroom and hundreds of ‘em just hovering around everybody that goes in and out. We felt like it would be simpler just to let ‘em have access and you’d have less of that shark feeding atmosphere outside the courthouse.” (VDRT 219-220)

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16 The court later stated: “I’m sure everybody has read or heard or seen something about it. You would be an unusual person if you hadn’t.” (VDRT 455)

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On the morning of February 23rd, the court placed eighteen prospective jurors in the jury box and began substantive questioning on voir dire. (VDRT 8-9) Immediately it became evident that the pervasive publicity the case had received in Jonesboro would pose a threat to the defendants’ right to be judged only on the basis of the evidence received in court. All jurors indicated that they were aware of at least “some information” about the case. (VDRT 17) 17 The jury selection process that followed demonstrated that media exposure had created a broad and deep prejudgement among prospective jurors that the defendants were guilty. While numerous jurors were excused for cause, their responses to questions often exposed those remaining to prejudicial information, and some of those selected to serve had expressed a belief in the defendants’ guilt.

In response to the court’s threshold question as to whether prospective jurors could award the defendants the presumption of innocence, one juror quickly volunteered that he had “a very strong opinion formed.” (VDRT 16) In the presence of a courtroom filled with venire persons, including those later selected to serve on the case, prospective juror Sharp announced that he remembered that “the detective in West Memphis made the news--made the announcement to the press” and “the confidence that he made his statement with pretty well has been rooted in my memory” (VDRT 18) Sharp assured the court that he could not put that information aside and

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17 The following day, the court stated: “This case, of course, has been the subject of endless attention, and it is probably going to continue for many weeks after this trial is concluded. I know all of you indicated yesterday that you had at least heard about the case, and I would be amazed if you had not.” (VDRT 269-270)

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decide the case on the evidence introduced in court, and was therefore excused. (VDRT 17-18) Prospective Juror Harthorn was excused at the same time for having “strong convictions” that could not be set aside. (VDRT 18)

The court then began individualized questioning in chambers of small groups of three or four prospective jurors. Juror One, 18 who was in the first group, stated that she had heard “an awful lot” about the case through the Jonesboro Sun , the Arkansas Democrat, and television 7 and 8, reading articles on a daily basis. (VDRT 35, 49-50) Juror One listened as prospective juror Tate was excused because Tate had an opinion of the defendants’ guilt because what she had read that “is gonna stick in my mind.” (VDRT 52) Juror One then stated that “anyone under these circumstances would form an opinion,” and that she had formed an opinion the defendants were guilty, but “I don’t feel like my opinion is totally fixed. I feel like I can listen to the evidence” and set aside her previously formed opinion of guilt (VDRT 52)

During voir dire of the next two small groups of venire persons, none of whom served on the jury, those questioned made statements to the effect that: (1) all the evidence they had heard of was “stacked against” Baldwin; (2) that part of what they had heard on television and read was “in relationship to another trial of another defendant in this matter” (VDRT 133); (3) that “if you just watch the news or read the news and watch the television, they to me portray people as guilty” (VDRT 160); (4) that one prospective juror had “feelings [that] evidently they’re guilty.

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18 In an effort to preserve privacy, jurors are identified in this memorandum by the numbers assigned them by the trial court. Affidavits containing their names are being filed under seal.

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All–everything you read in the newspapers and, you know” (VDRT 162); (5) that another prospective juror had an unchangeable opinion because “I believe I have seen too much of it on television and read it in the paper to do that because I have seen it all and read it all” (VDRT 175); and (6) yet another juror stated that the media tended to make the defendants look guilty and that she could not judge the defendants separately because of what she had read linking them together. (VDRT 189, 195, 200-201)

On the following day, February 24th, one prospective juror, questioned in private on the subject, stated that she had heard from her pastor that Echols had changed his name to Damien because that name means Satan. (VDRT 234-236) The juror maintained that she believed she could afford Echols the presumption of innocence, but nothing had changed her opinion that he was evil. (VDRT 237) She was excused.

Juror Two stated that she had received information on the case from “good old television and newspaper,” later stating “they do publicize it a great deal. I read the headlines. I won’t deny it. I do read the headlines, and I listen to the news....”.(VDRT 223, 245) Juror Three got her information about the case from “people in the office mainly;” she also read newspaper headlines. (VDRT 292)

Juror Four, who would serve as the jury foreman, stated he read three newspapers; that he knew the Misskelley trial had been going on; and that ” “I think you probably should’ve had this trial–you moved it to here. You probably should have moved it to another state if you wanted to get–I mean this is still too close.” (VDRT 292) Juror Four’s opinion was formulated based on “just what you hear in the paper. I think the paper assumes they’re guilty.” (VDRT 292) Juror Four then asked of the prosecutor, who had described the atmosphere as one of a media circus,

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whether the publicity would get worse; the prosecutor replied: “I don’t know exactly how it can get worse, but it possibly could.” (VDRT 293)

Juror Four was aware that photographers had taken pictures of jurors at Misskelley’s trial in Corning “and they splashed ‘em in this paper.” (VDRT 299) In a critical exchange with defense counsel, Juror Four acknowledged that he knew of the verdict in the Misskelley case, but stated “I don’t know anything–I couldn’t tell you anything about Misskelley except that I understand that he was convicted of something, and I couldn’t even tell you of what...” (VDRT 307) He then stated of his reaction to the Misskelley verdict: “My feeling was that if they were tried on the ten o’clock news and guilty, then that’s a statement of it that was confirmed.” He then stated that the earlier trial did not give him “any feelings about the trial that was next.” (VDRT 308) Juror Four then asked whether the name Damien was itself Satanic. (VDRT 316) Juror Four did not disclose that he had any knowledge of the existence or contents of the Misskelley statement.

Juror Five acknowledged that she received the Jonesboro Sun every day and had read “all about” the case regularly until she received her jury summons at the end of the Misskelley trial. Her feeling was that she was leaning to believing that the defendants had probably committed the crime, and nothing had yet changed that feeling. (VDRT 337-339) What had led her to believe the defendants were guilty was “a law enforcement officer who said that he felt like it was a pretty well open and shut case, you know, that they had enough evidence”; nonetheless, she believed that she could begin the trial believing the defendants were innocent. (VDRT 337-339)

Jurors Six, Seven, and Eight were voir dired with Melissa Bruno, who was not chosen as

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a juror. Juror Eight got his information on the case from the Jonesboro Sun and from people around him. (VDRT 357, 366) Juror Six received such information from newspapers, television and gossip. (VDRT 358) In the presence of the three who would later serve as jurors, Bruno, who was not selected as a juror, stated that people never talked that defendants are innocent; “everyone just talked like they were guilty” (VDRT 368) Juror Six’s friends talked about the case and “of course, they felt like they were guilty,” although Juror Six thought that the defendants were innocent until proven guilty. (VDRT 369) Juror Six did not state that she had been aware that Miskelley had confessed to committing the same offenses for which Echols and Baldwin were being tried.

Juror Seven stated that she wasn’t sure whether she could keep the defendants separated. (VDRT 380) When asked where she heard about the case, Juror Seven replied in part: “I don’t actually read the papers and watch the news that often but I did hear, you know, from the beginning. I haven’t kept up with it that closely.” (VDRT 358) She later added: “I haven’t read the paper very much. I don’t really have time. Where I work we don’t have time to talk about anything.” (VDRT 367) When asked about her “general feeling” about who committed this crime, Juror Seven replied “I don’t have any feeling about who committed it.” (VDRT 367) Juror Seven did not state that she was aware that Jesse Misskelley had confessed to, and had been convicted of, the same charges Echols and Baldwin were facing.

Juror Nine was questioned in the presence of Ms. Childers and Ron Bennett both of whom, before being excused, stated that they had read in the newspaper that witchcraft was involved in the case. (VDRT 411-412) Bennett stated he had formed an opinion from the media that “they did it.” (VDRT 413) Juror Nine himself acknowledged that his biological father was a

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police commissioner in Helena, Arkansas, but further stated that he had not talked to his father about this case. (VDRT 436)

The final three jurors were selected on February 25th. Juror Eleven had heard the original television accounts about the case, but had heard not much more until very recently when the “last trial” occurred. (VDRT 510) Juror Ten stated that it “seems the general opinion is that everybody thinks they’re guilty,” although he believed everyone was innocent until proven guilty.” (VDRT 510) The final juror, Juror Twelve, stated that she had gotten her news concerning the case from newspaper and television accounts. (VDRT 528)

Later, at the close of the evidence and just prior to instructions, the trial court would poll the jurors on the issue of whether they have “read the newspaper, watched the TV, or listened to the radio, or through any other source, have gained any outside information from those sources or any other about this case?” The jurors answered “no.” The court then asked whether the jury had followed the admonishment of the court as “best as humanly possible,” and was told “yes.” (EBRT 2478, 3267)

2. Recently Obtained Information on The Extrajudicial Information Received by The Jury

Juror Four was elected the foreman of the Echols jury. On October 8, 2004, during an interview in Jonesboro with two attorneys representing Echols, 19 he stated that around the time he was called as a juror, he was aware that Jessie Misskelley had been brought to the Craighead

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19 The summary of Juror Four’s admission is based on Exhibits S and T, the affidavits of attorneys Theresa Gibbons and Deborah Sallings. All affidavits mentioning jurors names are, like the voir dire transcript, being filed under seal.

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County Courthouse and had been offered a sentence reduction to 40 years if he testified against Baldwin and Echols. Prior to trial, Juror Four had heard that Misskelley made a confession to authorities implicating Baldwin and Echols, stating that the three victims had been hogtied, that they were castrated, and that Echols and Baldwin had made Misskelley chase the victims down and catch them. Misskelley continued to be a factor in Juror Four’s mind throughout the trial.

Juror Four was the juror who suggested using T charts on large sheets of paper to organize and analyze the evidence during deliberations, which is a common tool used in decision-making. He personally wrote down the issues in the appropriate column.

In Juror Four’s opinion, the jury could not ignore the Misskelley confession despite the court’s instructions to do so. The Misskelley confession was published in the newspapers. It played a “large part” in his decision of the case. It was a known event.

Juror Four has stated that the other evidence against Echols and Baldwin was scanty. Unlike Manson or a thousand other cases, without the Misskelley evidence, it was extremely circumstantial.

Juror Four had been contacted numerous times since the trial by reporters, news people, lawyers and various groups who have asked him to comment on the trial. Juror Four had never granted an interview prior to being contacted on Friday, October 8, 2004, by attorneys for Echols.

On June 7, 2004, Juror Seven signed a notarized affidavit describing aspects of her participation in petitioner’s trial. (Exhibit U) She stated under oath that before serving on the jury, she knew about the earlier trial of Jessie Misskelley in Corning in which Misskelley had been found guilty; she believed she also knew that he had confessed to the crime.

Juror Seven kept a set of “good notes” both during the trial and deliberations. She

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provided a copy of those notes, which had not been altered to investigator Tom Quinn, and they are attached to her affidavit.

According to Juror Seven, Juror Four put information down on some large sheets of paper in the jury room. Juror Seven’s affidavit states: “When we discussed the case, we discussed each of the two defendants. We placed items on the pro or con side of the large sheets that were used in the jury room.” Juror Seven copied into her notes a chart that duplicated the items written on the large sheets of paper the jurors used to list evidence during deliberations. The penultimate item on the “con’ side as to Echols reads as follows: “Jessie Misskelley Test. Led to Arrest.” As to Baldwin, the third item from the bottom of the “con” list reads: “J. Misk. State.” Juror Seven’s affidavit states: “That was my shorthand for “Jessie Misskelley Statement.” Juror Seven’s affidavit further states: “As far as I recall we either heard testimony about, or discussed during jury deliberations, all of the subjects and matters that are reflected in my notes.”

In her affidavit of June 8, 2004 (Exhibit V), Juror Six stated, “I made it clear prior to being seated as a juror that I knew about the Jessie Misskelley case through the newspaper and having seen stories about him and his case on television.” She continued, “I was aware that Misskelley had confessed to the police.”

Juror Six further stated: “I recall that many days that testimony was presented during the trial, we jurors would talk to one another in the jury room using our notes to help us understand what was going on. We all read from our notes to each other at the end of the day, or in the mornings. We did this in the jury room where we gathered during breaks in the trial, and whenever we were excluded from the courtroom due to issues discussed outside of our hearing.”

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The affidavit of juror Six continues:

My recollection of this process of daily reviewing our notes with one another is that it permitted us to assess whether we had missed something, or did not write down a matter of significance during the course of the testimony. I recall reading to other jurors from my notes, and it was clear to me that certain other jurors had missed matters that I had noted. I found that this process helped me to better understand the evidence at trial..

As a result of this daily process of observing witnesses and reviewing notes and daily discussions with my fellow jurors, and based on my view of the evidence as I was hearing it in court, it was clear to me even before the deliberations that the defendants were guilty.

(Exhibit V)

Juror Six further stated that: “during the course of the jury deliberations, I believe that Juror Four, the foreman, wrote notes on large pieces of paper stating the pros and cons under the name of each defendant, and under the names of each witness that we considered to be a key witness. We did this by going over our notes, and discussing our views about the case.”

Juror Nine stated in his interview with investigator Tom Quinn, conducted January 8, 2004, that when after being selected as a juror he called his father, a police commissioner, Juror Nine learned that his father had heard about the case, which had received state-wide, maybe tri-state wide, media attention. (Exhibit W) When Juror Nine told his father that he was going to be a juror, his father “started spitting out the details.”

Juror Nine stated that his jury experience “spooked the hell” out of him, and that he “never felt so scared.” He couldn’t sleep at night and “felt he could hear noises outside and would look out the window.” His fear was the result of the talk of those kids being part of a cult, and looking into the audience and seeing the victim’s families and the families of the accused. The accused had their families there as well as friends, some dressed in black with straight black

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hair and cult symbols. Juror 9 didn’t know who was who, but he was concerned that if they voted for guilt, some of those people who were free on the street might seek revenge and kill him. Although he was never personally threatened, he felt that something could happen to him. “[S]ince the kids on trial were not afraid to kill, [Juror Nine] thought, maybe they had friends or were part of a cult that was capable of killing.” Later in the interview, Juror Nine said that he remembered seeing a girl in the gallery with black lipstick, black hair, the gothic look. When he looked into the gallery, where Echols’ people were sitting, he saw those kinds of people and thought, ‘They’re going to kill me.’”

Juror Nine’s father was afraid for his son’s safety. The father and a friend came to Jonesboro at the end of the trial and sneaked Juror Nine out the back of the courthouse. Although Juror Nine did not remember a juror getting a threat during the trial, he commented, “Maybe there was and maybe that’s why my father came up.” The father’s friend had a shotgun concealed under a newspaper, and they made Juror Nine lie on the floor in the backseat of a car and whisked him away.

The written lists of “pros” and “cons” as to Echols and Baldwin drawn up by the jury during deliberations have been retained in evidence lockers along with the other exhibits in the case. Photographs of those written lists are submitted as Exhibit X. 20 The items on those original lists appear to match the items listed in Juror Seven’s notes, except that the written references to the Misskelley statement on both the Echols and Baldwin list have been blacked out by someone.

/ /

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20 The authentication of these photos can be found in Exhibit D, the Affidavit of Dennis P. Riordan.

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/ /
/ /

C. Both the United States and Arkansas Constitutions Prohibit Jurors From Considering in Their Deliberations Information Received From Extrajudicial Sources Such as Newspaper or Television Reports

1. The Federal Constitutional Principle

In a trio of opinions from the mid-sixties, the United States Supreme Court defined the boundaries of the federal due process right of a criminal defendant to be tried before a jury that will judge his or her guilt or innocence solely on the basis of the evidence properly admitted in court rather than information obtained from extrajudicial sources.

In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), following his arrest for murder and robbery of a bank employee, the defendant confessed to the crimes during a filmed interview that was broadcast on local television three times. After a motion for a change of venue based on prejudicial publicity was denied, the defendant was tried and convicted before a jury containing three members who had seen the interview. The Supreme Court vacated the conviction, finding that the televised “spectacle” was “in a very real sense Rideau’s trial. . . . Any subsequent court proceeding in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Id., 373 U.S. at 726, 83 S.Ct. at 1419. The Court ruled that “due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised interview.” Id., 373 U.S. at 727, 83 S.Ct. at 1420. The Court reached that conclusion despite the fact that the three jurors who had seen the confession testified during voir dire that they “could lay aside any opinion, give the defendant the

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presumption of innocence as provided by law, base their decision solely upon the evidence, and apply the law as given by the court.” Id., 373 U.S. at 732, 83 S.Ct. at 1422 (Clark, J., dissenting).

In Turner v. Louisiana, 379 U. S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), two deputy sheriffs who had been the principal witnesses for the prosecution served as the bailiffs in charge of the jury during the taking of evidence and the jury’s deliberations. The Louisiana Supreme Court, while disapproving the practice, refused to reverse the defendant’s murder conviction and sentence of death, finding that no prejudice had been demonstrated (id., 379 U.S. at 470, 85 S.Ct. at 548-549); while the bailiff-witnesses had talked with the jurors, there had been “no showing that either deputy had talked with any member of the jury about the case itself.” Id., 379 U.S. at 469, 85 S.Ct. at 548.

The United States Supreme Court noted that:

In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury.

Id., 379 U.S. at 472-473, 85 S.Ct. at 550.

Reversing the judgment, the eight-judge majority held that “it would be blinking reality not to recognize the extreme prejudice inherent in this continued association throughout the trial between the jurors and these two key witnesses for the prosecution.” Id., 379 U.S. at 473, 85 S.Ct. at 550.

[T]he relationship was one which could not but foster the jurors’ confidence in those who were their official guardians during the entire period of the trial. And Turner’s fate depended upon how

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much confidence the jury placed in these two witnesses.

Id.

One year later, the Supreme Court decided Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), in which the bailiff in charge of a deliberating jury told one juror that the defendant was a “wicked fellow” who was guilty; and told another juror that any improper guilty verdict would be corrected by the Supreme Court. The Parker Court analyzed the constitutional implications of this conduct in the following terms:

We believe that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that “the accused shall enjoy the right to a . . . trial, by an impartial jury . . . [and] be confronted with the witnesses against him . . . .” As we said in Turner v. State of Louisiana, 379 U.S. 466, 472-473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965), “the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”

Id., 385 U.S. at 364, 87 S.Ct. at 470.

In finding the bailiff’s misconduct sufficient to reverse the conviction, the Supreme Court found that “his expressions were ‘private talk,’ tending to reach the jury by ‘outside influence.’” Id., citing Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed.879 (1907). The Court noted it previously had followed “the ‘undeviating rule,’ Sheppard v. Maxwell, 384 US 333, 351, 86 S Ct 1507, 1516, 16 L.Ed.2d 600 (1966), that the rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial.” Id., 385 U.S. at 364-365, 87 S.Ct. at 470.

Finally, the Supreme Court rejected the argument that because ten jurors had testified that

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they had not heard the bailiff’s comments, and because Oregon law only required ten affirmative votes to convict, no prejudice had been shown. The Court found that the unauthorized conduct of the bailiff “involved such a probability that prejudice will result that it is to be deemed inherently lacking in due process.” Id., 385 U.S. at 365, 87 S.Ct. at 471, quoting Estes v. Texas, 381 US 532, 542-543, 85 S Ct 1628, 1633, 14 L.Ed.2d 543 (1965). Furthermore, the defendant “was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.” Id., 385 U.S. at 366, 87 S.Ct. at 471.

2. The Arkansas Case Law

Long before Rideau, Turner, and Parker recognized the federal due process dimension of the improper receipt of extrajudicial information by jurors, this Supreme Court had held such conduct violative of a defendant’s right to a fair trial. In Capps v. State, 109 Ark. 193, 159 S.W. 193 (1913), for example, the court reversed a first-degree murder case (and its accompanying death penalty) where jurors read newspaper accounts that contained information not adduced at trial.

It is always improper for a juror to discuss a cause, which he is trying as a juror, or to receive any information about it except in open court and in the manner provided by the law. Otherwise some juror might be subjected to some influence which would control his judgment, something might be communicated to him which would be susceptible of some simple explanation, which could not be made because of the ignorance of the influence to which the juror had been subjected.

Id. at 195. With that focus, the court ruled:

We believe these [newspaper articles read by jurors] were prejudicial, because they were not a mere narration of the evidence connected with the trial which had occurred within the view of the jury, and that their necessary effect was to convey to the jury the

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information that public sentiment had crystalized into the conviction that appellant was guilty of the horrible crime of which he was charged; that his children had stood the ordeal of a searching cross-examination, and yet remained firm because, as intimated by the papers, their story was true. These were improper influences, and we cannot know what effect they may have had upon the minds of the jury, and no attempt was made to show that the jury was not influenced thereby, and we, therefore, reverse this judgment, and remand the cause for a new trial.

Id. at 196; see also Bodnar v. State, 176 Ark. 1049, 5 S.W.2d 293 (1928) (reversing conviction where jurors were overheard discussing information not received at trial – that people had been seen drunk and fighting at defendant’s house in case charging her with selling whiskey – and the “trend” of the overheard conversation indicated it influenced jurors’ decisionmaking); Forehand v. State, 51 Ark. 553, 11 S.W. 766 (1889)(per curiam)(reversing murder conviction where the “jury’s misconduct in taking the deceased’s pistol and cartridges to the jury-room, and there experimenting with them, apparently for the purpose of testing the truth of the defendant’s statement [that it was self-defense], was prejudicial to him. It was evidence taken by the jury out of the court, in the defendant’s absence, which is prohibited by the statute, and contrary to the idea of fair and orderly proceedings.”)

Much more recently, in Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992), this Court reversed the defendant’s conviction for the murder of his wife as tainted by possibly prejudicial information which came before the jury improperly. Although a number of proffered exhibits had been ordered suppressed at a pretrial suppression hearing, through inadvertence these exhibits were intermingled with the admitted exhibits and sent to the jury. The trial court denied a motion for a new trial on the ground that “the time of death was the sole issue of fact presented by the evidence and since the extraneous materials were not relevant to that issue, they

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could not have affected the jury’s deliberation.” Id., 833 S.W.2d at 360.

This Court reversed with these words:

Having reflected on the matter, and for reasons to be explained, we conclude that where no motive was educed, no direct proof of guilt established and such circumstantial
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Postby Obscuregawdess » Tue May 27, 2008 12:54 pm

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proof of guilt as did exist was in sharp dispute, a verdict tainted by the introduction of a mass of materials into the jury room which should not have been there must be set aside. Given the circumstances in their entirety, we are persuaded that a new trial is preferable to a trial encumbered by doubt and should have been ordered.

* * *

The suggestion that some hostility existed between the Larimores on the night preceding the murder, of the possible use of cocaine by Larimore and his wife’s objections, and of his refusal to talk to the police by invoking his rights to counsel and to remain silent could hardly have failed to impact on the jury. While it is true, as the trial court observed, that these factors did not bear directly on the question of when the homicide occurred, they could well have influenced the jury to decide inversely that appellant was guilty and, therefore, the evidence that the homicide occurred before Larimore left home was more persuasive than the opposing proof.

Id., 833 S.W.2d at 360-361.

As was true of the United States Supreme Court in Parker v. Gladden, the Larimore court applied the principle that “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Id., 833 S.W.2d at 361, quoting Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed.2d 879 (1907)(Holmes, J.). The Court also noted its reliance on the trial court’s factual finding that the jurors had, in fact, reviewed the materials at issue. Id.
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D. Statements of Jurors as to Whether They Relied on Information Not Received in Evidence to Convict Are Admissible

The admissibility of evidence proffered to prove that jurors improperly relied on information received outside the judicial process to convict is governed in Arkansas by an evidentiary provision substantively identical to that controlling the same issue in the federal courts. Compare Federal Rules of Evidence Rule 606(b); Arkansas Rule of Evidence 606(b) 21.

Arkansas Rule of Evidence 606(b) “establishes an extraneous information exception which allows jurors to testify that one or more members of the jury brought to a trial specific

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21 Arkansas Rule of Evidence 606(b), adopted in 1975, reads:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

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personal knowledge about the parties or controversy or acquired such knowledge from sources outside the courtroom during the trial or deliberations.” Witherspoon v. State, 322 Ark. 376, 382, 909 S.W.2d 314, 317-18 (1995). While the rule bars presenting evidence of the mental state of jurors in order to argue that the jury improperly considered the evidence introduced into the record or misapplied the instructions given by the trial judge (Miles v. State, 350 Ark. 243, 251-252, 85 S.W.3d 907, 912-913 (2002)), it is clear that “[t]o show that extraneous materials were brought to the jurors’ attention, the trial judge may properly consider the content of conversations that took place in the jury room.” Sunrise Enterprises, Inc. v. Mid-South Road Builders, Inc., 337 Ark. 6, 11, 987 S.W.2d 674, 676-677 (1999)(citation omitted). See also State v. Cherry, 341 Ark. 924, 935, 20 S.W.3d 354, 361 (2000) (Imber, J., dissenting)(Rule 606(b) permits post-verdict inquiry into “(1) whether any improper outside influence has been brought to bear upon the jurors or (2) whether any extraneous prejudicial information has been improperly brought to the jury’s attention”) (citation omitted).

“A juror may testify concerning . . . whether extraneous prejudicial information was improperly brought to the juror’s attention. See Fed.R.Evid. 606(b).” Rushen v. Spain, 464 U.S. 114, 121 n.5, 104 S.Ct. 453, 457 n.5, 78 L.Ed.2d 267 (1983). In United States v. Brown, 108 F.3d 863 (8th Cir. 1997), the Eighth Circuit affirmed the district court’s grant of a new trial based on juror exposure to prejudicial extrinsic information. In Brown, after the district court granted motions for judgment of acquittal on all counts for several codefendants, the trial judge individually examined the jurors to determine whether any of them saw the codefendants celebrating in the hallway and whether the jurors were exposed to subsequent news stories discussing the acquittals and the entry of a guilty plea by the corporate codefendant and the fine

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imposed on it. Id. at 865.

Several of the jurors were aware of the acquittals and several saw the celebrations, but none were aware of the corporation’s guilty plea or the imposed fine. Id. Defendant, instead of moving for a mistrial, opted for a limiting instruction. After the verdicts were returned, the district court again individually voir dired the jury. Id. at 866. Two of them stated that during deliberations the jury considered the corporation’s guilty plea. Id. The court then granted defendant’s motion for a new trial.

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In considering the admissibility of the jurors’ post-verdict statements that they had considered the corporation’s guilty plea while determining the defendant’s guilt, the Eighth Circuit noted:

[W]e do not believe that Rule 606(b) prohibits the consideration of the evidence that the jury continued to consider Caremark’s plea and payment of a fine. Although Rule 606(b) generally prevents a juror from testifying “as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind,” the rule does allow jurors to “testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Fed.R.Evid. 606(b). We believe that under Rule 606(b) the district court properly considered the testimony of the jurors to the extent that their testimony revealed that the extrinsic information continued to be considered by the jury.

Id. at 867.

E. The Jury’s Consideration of the Misskelley Statement as a Factor Favoring Conviction of Echols and Baldwin Deprived Echols of His Constitutional Right to a Fair Trial Under

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Federal and State Law

The evidence now before this Court establishes that the jury considered the unadmitted and inadmissible Misskelley confession during their deliberations that led to the conviction of Echols and Baldwin. The declarations of Jurors Six and Seven and the statements of Juror Four, the foreman, establish that the jury compiled a “pro” and “con” list of items favoring conviction or acquittal; Juror Seven’s notes establish that the Misskelley statement was listed as a “con,” or reason to convict, as to both Echols and Baldwin. Those items were placed on the list by Juror Four, the jury foreman.

The contents of the Misskelley statement were never placed in evidence; the one reference to the statement by a witness had been stricken from evidence, with the jury being admonished to disregard it. There was no basis in the record upon which the jury could have properly considered the Misskelley statement to be a reason either for acquitting or convicting Echols. In considering the Misskelley statement and listing it as a reason to convict, jurors obviously relied on the widely disseminated press reports to the effect that Misskelley’s statement implicated Echols and Baldwin in the charged offenses.

Despite being asked on voir dire what they had read or heard about the killings of the three victims, no juror revealed that they were aware of the fact that Misskelley had given a statement or of the contents of that statement. It is now clear, however, that at least three jurors--Four, Six, and Seven-- knew of Misskelley’s confession, and that Juror Four, the foreman, was thoroughly familiar with many of its details, including the fact that Misskelley had accused Echols and Baldwin of killing the youngsters. There can be no doubt that the Echols jury, in direct violation

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of the trial court’s order, considered the unadmitted and inadmissible Misskelley statement during their deliberations, thereby violating Echols’ rights to cross-examination, confrontation, due process of law, and the assistance of counsel under both the United States and Arkansas Constitutions.

F. The Jury’s Impermissible Consideration of the Misskelley Statement Was Plainly Prejudicial

The United States Supreme Court has stated that:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954) (citations omitted; emphasis added).

In Osborne v. United States, 351 F.2d 111 (8th Cir. 1965), the Eighth Circuit reversed because a transcript of grand jury testimony was erroneously sent to the jury with the exhibits. The court noted that, although “[t]here is no evidence one way or the other with respect to the use of Exhibit D-47 by the jury . . . , it was the one [exhibit] most likely to arouse the curiosity of the jury and to attract their attention.” Id. at 118. The court considered the strength of the government’s case and held that, although it was substantial, it was not substantial enough to outweigh the possible prejudice. Id. “In addition to implicating the defendant in the robbery here involved, Exhibit D-47 contains considerable testimony of alleged statements of defendant which

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blacken his character and show him to be guilty of other crimes.” Id. at 117. See also Sunderland v. United States, 19 F.2d 202, 211-212 (8th Cir. 1927)(reversing conviction by relying on “rebuttable presumption . . . communications by the juror with outside persons were prejudicial to the moving party,” citing Chambers v. United States, 237 F. 513, 521 (8th Cir. 1916), and adding that “[t]he least that can be said about this misconduct of one of the jurors is that it raises a grave doubt whether the constitutional right of plaintiffs in error to a trial by an impartial jury was not infringed”); compare United States v. Rodriguez, 367 F.3d 1019, 1029 (8th Cir. 2004) (Remmer “presumption of prejudice does not apply unless the extrinsic contact relates to factual evidence not developed at trial,” citing United States v. Hall, 85 F.3d 367, 371 (8th Cir.1996)).

The Arkansas courts have asked the threshold question under Remmer of whether information received by a juror from an extrajudicial source concerned the matter pending before the court; if so, reversal has been ordered unless there is no reasonable possibility it affected the jury’s verdict. In Duncan v. State, 260 Ark. 491, 541 S.W.2d 926 (1976), the court reversed a conviction for first-degree rape for which the defendant had been given a forty-year sentence. A juror admitted to reading a newspaper report on the second day of trial, despite the trial court’s admonition not to do so. Id., 260 Ark. at 493, 541 S.W.2d at 927. Upon questioning by the trial court, the juror stated that he could put the article completely out of his mind and not be influenced by it. The court then denied defendant’s motion for a mistrial. Id.

In reversing, and distinguishing an earlier decision, the court relied on the fact that the article referenced information not disclosed to the jury, namely, that the defendant had a three-page-long rap sheet. Id. The court could not say with certainty that there was no possibility of prejudice, dispatching the juror’s response to the court’s question by saying:

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Hardly any juror, after having admittedly disobeyed the judge’s instructions not to read press accounts of the trial, would confess even a possibility of being influenced by the consequences of his own misconduct. He might very well think that such an admission on his part would result in his being charged with contempt of court.

Id., 260 Ark. at 493-494, 541 S.W.2d at 927.

In Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985), this Supreme Court held that: “Once a juror has contaminated the jury’s deliberations with extrinsic evidence, a new trial will be warranted if there is a reasonable possibility of resulting prejudice. To require the losing party to prove actual prejudice would place an impossible burden upon him.” Id., 287 Ark. at 320, 698 S.W.2d at 797 (citation omitted). Consistent with Parker v. Gladden, the court also noted that a litigant “is entitled to a trial by twelve, not ten, impartial and unprejudiced jurors who base their judgment on the evidence presented at trial.” Id., 287 Ark. at 321, 698 S.W.2d at 798.

In this case, it hardly matters whether this Court begins by applying a presumption of prejudice because the information received extrajudicially by jurors and discussed by them during deliberations – a statement by one defendant implicating his codefendants in the charged crime – is so uniquely prejudicial that it can never be deemed harmless. It is precisely because the introduction of Misskelley’s statement at a joint trial would have been incurably prejudicial to Echols that the trial of the two defendants were severed in the first place. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the high court held that use of a codefendant’s confession inculpating the defendant violates the non-confessing defendant’s Sixth Amendment right of confrontation. In Bruton, the trial court had instructed the jury that the codefendant’s confession “was inadmissible hearsay against [Bruton] and therefore had to be

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disregarded in determining [Bruton’s] guilt or innocence.” Id., 391 U.S. at 125, 88 S.Ct. at 1622. Nonetheless, the denial of the right to confront the witness was so serious that the Court held that a limiting instruction was not “an adequate substitute for petitioner’s constitutional right of cross-examination.” Id., 391 U.S. at 137, 88 S.Ct. at 1628. The Court held

there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side by side with the defendant, are deliberately spread before the jury in a joint trial.

Id., 391 U.S. at 135 136, 88 S.Ct. at 1627-1628.

Given the nature and content of the Misskelley statement, its consideration by the jury, like the bailiff’s comments in Parker v. Gladden, “involved such a probability that prejudice will result that it is to be deemed inherently lacking in due process” (Parker, 385 U.S. at 365, 87 S.Ct. at 471) and cannot possibly be considered harmless.

Furthermore, the Misskelley statement was placed on the jury’s “con” list despite the trial court’s express admonition that jurors were to ignore Detective Ridge’s unwarranted reference to it during his cross-examination by defense counsel. Arkansas law considers the jury’s breach of such a judicial admonition a factor strongly favoring a finding of prejudice. See, e.g., Diemer v. Dischler, 313 Ark. 154, 162, 852 S.W.2d 793, 797 (1993)(citing factors deemed “determinative” in decisions on new trial motions alleging jurors made unauthorized visit to accident scene, the first of which was whether trial court had instructed jury not to visit the scene).

No rational argument can be made that the evidence against Echols was so overwhelming

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that the jury’s grossly prejudicial consideration of the Misskelley statement could not have influenced their guilty verdict. Considered individually or collectively, the evidence components of the case against Echols were shockingly weak. That the ballpark girls alone heard Echols publicly and seriously confess to the charged crimes at a softball game strains credulity; neither the knife, fiber, the Hollingsworth identification testimony, nor petitioner’s statement to Ridge logically or directly connected Echols to the crime; and the Griffis “expert” testimony bordered on the fraudulent. On the other hand, the defendant offered substantial and essentially unrebutted testimony that on the day of the crimes he was doing what an unemployed but innocent teenager would be doing: being driven by his mother to the doctor, visiting with his girlfriend, having dinner with his family, and talking on the telephone. Rather than being strong, the case against Echols may be among the flimsiest ever to result in a sentence of death in this state or nation.

Of great importance, the trial judge himself having stated that the jury’s exposure to the contents of the Misskelley statement would certainly have been prejudicial (EBRT 930-31, 1710-11), the state cannot reasonably argue to the contrary. That is all the more true when what the jury had heard about the Misskelley confession was terribly inaccurate. One of the reasons why the Misskelley confession was almost surely false was Misskelley’s ignorance of the most obvious fact about the victims’ condition: they had been hog-tied. Yet Juror Four heard and believed that Misskelley had included a description of the hog-tying in his statement, rendering the statement credible. This case constitutes a perfect example of how a wrongful conviction can result from a failure to subject unreliable evidence to the constitutionally required process of confrontation and cross-examination.

Finally, as was true in Parker v. Gladden, one juror here, the jury foreman, “testified that

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[he] was prejudiced by the statements.” Parker, 385 US at 365, 87 S.Ct. at 470. The foreman has admitted that the judge told the jurors that they could not consider the Misskelley matter at all, but stated with emphasis: “How could you not?” In statements admissible under the Rule 606(b) exception for evidence bearing on “whether extraneous information was improperly brought to the jury’s attention,” Juror Four said : “It was a primary and deciding factor. It was a known event. People knew about it. The bottom line: the decision was potentially made upon the knowledge of that fact. It was in the newspapers. I read the newspapers. I was aware there was a trial.” He described all the other evidence against Echols and Baldwin as “scanty, circumstantial.” He called it a “ very circumstantial case [emphasis his]. Look at Manson. If you were to take a thousand cases [he paused here] . . . without Misskelley, it was extremely circumstantial. Misskelley was the primary factor” in the finding that Echols and Baldwin were guilty.

Defendant Echols’ conviction must be reversed and a new trial ordered.

II. ECHOLS WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE JUDGED BY TWELVE IMPARTIAL JURORS CAPABLE OF DECIDING THE CASE SOLELY ON THE EVIDENCE ADMITTED AND THE INSTRUCTIONS GIVEN IN COURT

A. Introduction

As demonstrated in Argument I, newly discovered evidence concerning the extraneous information injected into the deliberations of the Echols jury proves the jury’s receipt of, and reliance on, extrajudicial information, a state and federal constitutional violation; that same evidence also establishes a related but distinct constitutional deprivation: that of a defendant’s right to twelve impartial jurors.

The United States and Arkansas Supreme Courts have held that a foremost obligation of

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any prospective juror is that of honesty during the voir dire process; for that reason, a lack of such candor by a venire person is a telling indication that the prospective juror lacks the impartiality required to fairly judge the case. During individualized voir dire at Echols’ trial, no juror admitted to being aware of the fact that Jesse Misskelley had given a statement or confession to police interrogators, and certainly none disclosed knowledge that any such statement implicated either Echols or Baldwin. Yet during deliberations the Misskelley statement was listed by jurors as a reason to convict both Echols and Baldwin. That conduct can be explained by the fact that three jurors – Four, Six, and Seven – have now admitted at the time of jury selection they were aware of the Misskelley statement. Furthermore, Juror Four has admitted an extensive familiarity with the media reports disseminated on the eve of trial, particularly those details incriminatory of Echols and Baldwin, despite the fact that during jury selection he denied knowing anything about the Misskelley matter other than that Misskelley had been previously convicted of something, although Juror Four did not know what.

On voir dire, Juror Nine maintained that he had not discussed the case with his father, a police commissioner in Arkansas, but has recently stated that in a pretrial conversation with Juror Nine, his father “spit out” the details of the case. The receipt of that information surely explains the fact that during the trial Juror Nine not only held the opinion that the defendants were guilty, but that they had supporters in the courtroom who were capable of killing Juror Nine as well, leading the juror to be terribly frightened for his own life at a time he was supposed to be dispassionately deciding the guilt or innocence of Echols. Additionally, Juror Six now has sworn that she decided the guilt of the defendants before hearing closing arguments and the trial court’s instructions, also a deprivation of the defendant’s right to a fair and impartial jury.

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Finally, several other jurors admitted during voir dire that they tended to believe that the defendants were guilty, although they promised to set those opinions aside. The United States Supreme Court has held that such disavowals of bias cannot be deemed conclusive when the exposure of jurors to inadmissible and prejudicial information is so great that a majority of sitting jurors was predisposed to a finding of guilt when selected to serve. That critical mass was reached in this case, yet another reason why Echols’ convictions must be set aside.

B. The Relevant Federal and State Law

“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). “‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 US 145, 155, 25 L.Ed. 244.” Id. While a juror who truly can put aside his or her opinions may fairly serve, “those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to [that juror].” Id., 366 U.S. at 722 n.3, 81 S.Ct. at 1642 n.3, quoting Chief Justice Marshall in 1 Burr’s Trial 416 (1807).

In Irvin v. Dowd, eight of the twelve jurors selected to sit on the defendant’s jury had formed the opinion that he was guilty based on exposure to pretrial publicity, although each stated “that notwithstanding his opinion he could render an impartial verdict.” Irvin, 366 U.S. at 724, 81 S.Ct. at 1643. The Supreme Court vacated the defendant’s murder convictions and sentence of death, holding that:

With his life at stake, it is not requiring too much that petitioner be

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tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two thirds admit, before hearing any testimony, to possessing a belief in his guilt.

Id., 366 U.S. at 728, 81 S.Ct. at 1645.

A pivotal factor in determining a prospective juror’s impartiality is his or her candor in responding to questions on voir dire. “Voir dire plays a critical function in assuring the criminal defendant that his [or her] Sixth Amendment right to an impartial jury will be honored.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). “The necessity of truthful answers by prospective jurors . . . is obvious.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 849, 78 L.Ed.2d 663 (1984)(plur. opn. of Rehnquist, J.). See also Caldarera v. Giles, 235 Ark. 418, 422, 360 S.W.2d 767, 769 (1962)(“There is a duty upon every prospective juror on voir dire examination to make a full and frank disclosure of any connection he may have with the litigants or anything that would or could in any way affect his verdict as a juror.”).

That being so, “the honesty and dishonesty of a juror’s response is the best initial indicator of whether the juror in fact was impartial.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 556, 104 S.Ct. at 850 (Blackmun, J., concurring). Writing for a unanimous Court in Clark v. United States, 289 U.S. 1, 11, 53 S. Ct. 465, 468, 77 L.Ed. 993 (1933), Justice Cardozo observed: “The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are wilfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only.”

In Anderson v. State, 200 Ark. 516, 139 S.W.2d 396 (1940), the Arkansas Supreme Court reversed a conviction because two jurors

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not only had a definite opinion as to appellant’s guilt before the case was tried, but they publicly and plainly expressed these opinions indicating that they were highly prejudiced against appellant. According to this record it is also clear that in qualifying themselves as jurors they withheld and denied their prejudice against appellant from the knowledge of the court as well as from appellant.

Id., 139 S.W.2d at 398.

The Anderson court held:

Persons charged with crimes are entitled to a trial by a fair and impartial jury and this right is guaranteed to them by the Constitution of the State of Arkansas (Const. art. 2, §§ 10). Verdicts returned by a jury where any member thereof had publicly expressed his opinion that the party charged was guilty of the crime and where this information was withheld from the court and the party charged with the crime by him at the time he qualified to sit upon the jury should not be upheld by the courts. Nothing can destroy the integrity of juries more effectively than to allow prejudiced jurors to sit in a case. The courts should jealously preserve the integrity of juries.

Id.; accord, Rhoden v. Stephens, 239 Ark. 998, 1000, 395 S.W.2d 754, 755 (1965) (reversing murder conviction due to failure of juror during voir dire to fully and accurately answer questions concerning bias). See also Smith v. State, 227 Ark. 332, 340, 299 S.W.2d 52, 56 (1957)(“Courts and Judges must always see that every person receives a fair and impartial trial before a fair and impartial jury. The Courts are the last bulwark of freedom and justice.”); Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 321, 698 S.W.2d 795, 798 (1985)(defendant “is entitled to a trial by twelve . . . impartial and unprejudiced jurors who base their decision on the evidence as presented at trial.”).

Juror bias is also demonstrated when a juror has decided a defendant’s guilt prematurely. In State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000), this Court affirmed the grant of a new

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trial based on premature deliberations in a first-degree murder case. The court upheld the trial court’s decision by finding sufficient evidence to support the lower court’s conclusion that some jurors had made up their minds prior to deliberations, which sufficed to meet the requisite “reasonable possibility of prejudice” standard. Id., 341 Ark. at 929-930, 20 S.W.3d at 357-358. The court’s rationale was twofold: (1) “[f]or even one juror to prematurely decide a defendant’s guilt before hearing all the evidence and being instructed on the law, deprives that criminal defendant of his right to a fair and impartial jury,” and (2) the jurors who made up their minds may have influenced others who had not with their premature discussions. Id., 341 Ark. at 931, 20 S.W.3d at 359. The court concluded by supporting its decision with federal law on premature deliberations. Id., 341 Ark. at 932-933, 20 S.W.3d at 359-360.

C. The Admissibility of Evidence Concerning Juror Bias

Evidence concerning a juror’s knowledge or mental state at the time he or she was selected to serve in order to prove juror bias is not rendered inadmissible by Ark.R.Evid. 606(b) because it does not concern “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.” Likewise, evidence that a juror discussed the case with other jurors and decided to convict before retiring to deliberate does not implicate Rule 606(b) because it does not involve matters relating to formal deliberations, extraneous prejudicial information, or improper outside influences, but rather intrajury misconduct occurring before the start of deliberations. State v. Cherry, 341 Ark. 924, 928-929, 20 S.W.3d 354, 357 (2000). Finally, evidence that extraneous information was discussed during deliberations introduced to prove that jurors violated

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their promise to decide the case only on the admitted evidence is admissible because under Rule 606(b), “a juror may testify on the questions whether extraneous information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.”

B. Echols Was Deprived of His State and Federal Constitutional Rights to Twelve Impartial Jurors

Echols will now demonstrate both that a number of individual jurors lacked the impartiality required to serve as jurors and that the jury, considered collectively, must be found under controlling principles of the United States Supreme Court to have been biased against the defendants.

1. Juror Four

During voir dire, Juror Four acknowledged that he knew of the verdict in the Misskelley case, but stated, “I don’t know anything – I couldn’t tell you anything about Misskelley except that I understand that he was convicted of something, and I couldn’t even tell you of what. . . .” (VDRT 307)

Juror Four has now stated, however, that around the time he was called as a juror, he was aware that Jessie Misskelley had been brought to the Craighead County Courthouse and had been offered a sentence reduction to 40 years if he testified against Baldwin and Echols. That assertion is surely true, because on voir dire Juror Four stated that he read three newspapers daily, including the Arkansas Democrat Gazette and the Jonesboro Sun, both of which were flooded with stories about the Misskelley confession, conviction, and plea negotiations in the weeks before the Echols trial. Juror Four has now stated that prior to petitioner’s trial, he had heard that Misskelley made a

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confession to authorities implicating Baldwin and Echols, stating that the three victims had been hogtied, that they were castrated, and that Echols and Baldwin had made Misskelley chase the victims down and catch them. Juror Four has also stated that he believed it was unreasonable to expect the jury to ignore the Misskelley confession, which was published in the newspapers.

Thus during voir dire Juror Four made misleading statements about the state of his knowledge regarding the case, stating that he knew virtually nothing about Misskelley when in fact he knew a great deal, including specific details published in the newspapers concerning Misskelley’s statement.

Furthermore, during voir dire, Juror Four had heard and watched as Prospective Jurors Sharp and Hartshorn were excused because they admitted that they could not follow the court’s command to “set aside” what they had heard in the media “and let your decision in this case be dictated by the evidence that you hear in the courtroom.” (VDRT 17-18) The court then again informed the remaining jurors, including Juror Four, that: “We’re asking you to disregard what you’ve read, seen, or heard.. . . [I]t’s important that a person have a fair and impartial trial and that your mind should not be made up from outside influences . . . .” (VDRT 19) The court then asked each juror whether “you are prepared to listen to the evidence and let your mind be – your decision on this case be determined by what you hear in the courtroom and the law given you by the Court?” (VDRT 19) By failing to step forward as Jurors Sharp and Hartshorn had done, Juror Four indicated to the trial judge and counsel his ability and willingness to comply with that fundamental rule, yet he has since admitted that he thought the court’s command to ignore media reports was “unreasonable” and that he violated it by relying on the decision of the Misskelley conviction in deciding to convict.

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In order to gain a new trial on the ground that a juror was biased, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984)(plur. opn. of Rehnquist, J.). Juror Four did not honestly answer questions on voir dire concerning his knowledge of the case and his willingness and ability to judge the case on the evidence alone, and honest answers in regard to these matters certainly would have provided a valid basis for a challenge for cause. The presence of even a single biased juror cannot be deemed harmless, of course, because a defendant “is entitled to a trial by 12, not 9 or even 10, impartial and unprejudiced jurors.” Parker v. Gladden, 385 U.S. 363, 366, 87 S.Ct. 468, 471, 17 L.Ed.2d 420 (1966); accord Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 321, 698 S.W.2d 795, 798 (1985). A new trial would be in order on the ground of Juror Four’s bias alone.

2. Juror Six

In her affidavit of June 8, 2004, Juror Six stated, “I made it clear prior to being seated as a juror that I knew about the Jessie Misskelley case through the newspaper and having seen stories about him and his case on television.” Juror Six did not state on voir dire, however, that she “was aware that Misskelley had confessed to the police,” a fact she has now revealed in her affidavit which would have provided a basis for a challenge for cause. Juror Six thus qualifies as a biased juror under the McDonough test.

Juror Six further stated in her affidavit that “I recall that many days that testimony was presented during the trial, we jurors would talk to one another in the jury room using our notes to help us understand what was going on. We all read from our notes to each other at the end of the

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day, or in the mornings. We did this in the jury room where we gathered during breaks in the trial, and whenever we were excluded from the courtroom due to issues discussed outside of our hearing.” Juror Six continued:

My recollection of this process of daily reviewing our notes with one another is that it permitted us to assess whether we had missed something, or did not write down a matter of significance during the course of the testimony. I recall reading to other jurors from my notes, and it was clear to me that certain other jurors had missed matters that I had noted. I found that this process helped me to better understand the evidence at trial...

As a result of this daily process of observing witnesses and reviewing notes and daily discussions with my fellow jurors, and based on my view of the evidence as I was hearing it in court, it was clear to me even before the deliberations that the defendants were guilty.

Under State v. Cherry, “[f]or even one juror to prematurely decide a defendant’s guilt before hearing all the evidence and being instructed on the law, deprives that criminal defendant of his right to a fair and impartial jury.” Cherry, 341 Ark. 924, 931, 20 S.W.3d 354, 359 (2000). Juror Six was a biased juror for this reason as well.

3. Juror Nine

During voir dire, Juror Nine stated that he had not talked about this case with his father, who was a police commissioner in Arkansas. (VDRT 436) In a recent interview, however, Juror Nine stated that when he called his father after being selected as a juror, he learned that his father had heard about the case, which had received state-wide, maybe tri-state wide, media attention. When Juror Nine told his father that he was going to be a juror, his father “started spitting out the details.” (Exhibit W). Yet, when questioned by the trial court prior to deliberations as to whether any juror had received information from an outside source, Juror Nine did not disclose this

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conversation with his father.

Juror Nine thus gave a false answer to a court inquiry. Had Juror Nine been more forthcoming, the defense could have unearthed the likelihood that the information he had received about the case prior to trial had created a bias against the defendants that had led him to prejudge their guilt. Juror Nine stated that his “jury experience ‘spooked the hell’” out of him and that he “never felt so scared.” He couldn’t sleep at night and “felt he could hear noises outside and would look out the window.” His fear was the result of the “talk of those kids being part of a cult, and looking into the audience and seeing the victim’s families and the families of the accused... .” Although he was never personally threatened, he felt that something could happen to him. Juror Nine thought that since the kids on trial were not afraid to kill, maybe they had friends or were part of a cult that was capable of killing. When Juror Nine looked into the gallery, he saw people that he associated with the defendants and thought, “They’re going to kill me.” (Exhibit W).

Juror Nine’s fear during the taking of testimony that friends of the defendant were going to kill him was based both on matters not in evidence and his own prejudgment of the defendants’ guilt of the charged murders. Obviously, a juror who before hearing all the evidence fears that a defendant is a murderer whose confederates mean the juror harm is not the sort of impartial arbiter contemplated by the Fifth and Sixth Amendments. Juror Nine was a biased juror whose presence on the jury deprived Echols of a fair trial.

4. Juror Seven

Juror Seven’s affidavit states that, before serving on the jury, she knew about the earlier trial of Jessie Misskelley in Corning in which Misskelley had been found guilty and she believed she also knew that he had confessed to the crime. Juror Seven did not reveal her knowledge of

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either of these facts during voir dire. These facts, combined with the fact that despite the court’s admonition to ignore the Misskelley statement, Juror Seven listed it in her notes as a reason to convict both Echols and Baldwin, establish that she meets the legal standard for a biased juror.

5. Juror One

During voir dire on February 23, 1993, Juror One stated that she had heard “an awful lot” about the case through the Jonesboro Sun and the Arkansas Democrat, Television Channels 7 and 8, and reading articles on a daily basis. (VDRT 35, 49-50) Juror One then stated that “anyone under these circumstances would form an opinion,” no doubt referring to the pervasive media coverage of the case, and that she had formed an opinion the defendants were guilty.

In fact, the Arkansas Democrat had run an article that very morning of February 23rd stating: “In a June 3, confession to West Memphis police, [Misskelley] said he helped Echols and Baldwin subdue the victims on May 5 and watched as the teen-agers beat and sexually abused Christopher Byers, Michael Moore, and Steve Branch.” (Exhibit J) Thus, when the trial judge suggested that every juror knew of the Misskelley statement, he no doubt was right as to Juror One. Just as surely, Juror One knew the contents of that statement, reported again in the press that morning, leading Juror One to believe Echols and Baldwin guilty.

To be sure, Juror One stated during voir dire that she believed that she could put her opinion of the defendants’ guilt aside and judge the case on the evidence admitted at trial. When a jury’s exposure to inadmissible and prejudicial news reports is as extensive as it was in this matter, however, the United States Supreme Court has found such self-appraisals inadequate to sustain a resulting conviction. See Sheppard v. Maxwell, 384 US 333, 351, 86 S Ct 1507, 1516, 16 L.Ed.2d 600 (1966), quoting Irvin v. Dowd, 366 US at 728, 81 S.Ct. at 1645 (although each

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juror indicated that he could render an impartial verdict despite exposure to prejudicial newspaper articles, conviction set aside because “[w]ith his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion”).

6. Juror Five

Juror Five acknowledged that she received the Jonesboro Sun every day and had read about the case regularly. Her feeling was that she was leaning to believing that the defendants had probably committed the crime, and nothing had yet changed that feeling, although she believed that she could begin the trial believing the defendants were innocent. (VDRT 337-338) What had led her to believe the defendants were guilty was “a law enforcement officer who said that he felt like it was a pretty well open and shut case, you know, that they had enough evidence.” (VDRT 338-339) In light of the outside influences operating on so many of Juror Five’s fellow jurors and Juror Five’s own pre-existing opinion of the defendants’ guilt, Juror Five’s statement that she could judge the case based on the evidence alone was inadequate to ensure her impartiality.

7. Jurors Ten, Two, Three, Eight, Eleven, and Twelve

Juror Ten stated in voir dire that it “seems the general opinion is that everybody thinks they’re guilty.” (VDRT 510) Jurors Two, Three, Eight, Eleven, and Twelve had all been exposed to press coverage or public discussion of the case, had heard other prospective jurors describe the case as open and shut and express unshakeable opinions that the defendants were guilty, and in the trial judge’s opinion almost surely knew of the Misskelley statement. When considered collectively, the exposure of the jury to prejudicial and inadmissible information was as great in this case as was the case in Rideau, Irvin, or Sheppard. Echols was deprived of his right to twelve impartial jurors, and his convictions consequently must be vacated.

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III. THE PRESENT EVIDENCE OF JURY MISCONDUCT AND BIAS DEMONSTRATES THE PREJUDICIAL EFFECT OF TRIAL COUNSEL’S CONSTITUTIONALLY DEFICIENT PERFORMANCE IN FAILING TO CONDUCT AN ADEQUATE VOIR DIRE, TO SEEK A CONTINUANCE, AND/OR TO SEEK A CHANGE OF VENUE, THEREBY MANDATING REVERSAL OF PETITIONER’S CONVICTIONS UNDER STRICKLAND V. WASHINGTON

In his previous challenge to his convictions pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. (“Rule 37"), petitioner alleged that he was deprived of his Sixth and Fourteenth Amendment rights to the effective assistance of counsel as a result of trial counsel’s failures to (1) conduct a constitutionally adequate voir dire of prospective jurors, (2) move for a continuance of the trial date, and/or (3) seek a change of venue from Craighead County. This Court disposed of these claims in large part on the grounds that petitioner had not demonstrated that the alleged failures had resulted in the selection of any biased jurors or in any other form of prejudice sufficient to warrant reversal under Strickland v. Washington, 466 U.S. 668 (1984) (requiring the defendant to demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). See Echols v. State, 354 Ark. 530, 555-61; 127 S.W.3d 486, 502-06 (2003).

Petitioner respectfully submits that the Circuit should be authorized to consider, or that this Court should reconsider, the foregoing ineffective assistance claims in light of the extensive evidence of jury misconduct and bias submitted in support of the present motion. Under any fair analysis, such evidence far surpasses the Strickland standard for reversal because counsel’s failures led directly to the selection of biased jurors who actually considered extrajudicial and highly inflammatory information that likely supplied the primary basis for Echols’s conviction at trial. Reversal of petitioner’s convictions is warranted on this basis alone.

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CONCLUSION

This Court should reinvest the Circuit Court with jurisdiction and remand this matter for further proceedings and an evidentiary hearing, if needed. Following full consideration of his constitutional claims, Echols’ convictions and sentence of death must be vacated.
DATED: October 28, 2004

Respectfully submitted,

DENNIS P. RIORDAN
DONALD M. HORGAN
THERESA GIBBONS
DEBORAH R. SALLINGS

By _______________________
DENNIS P. RIORDAN



Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

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State's Response to Motion to Recall the Mandate(for Echols)

Postby Obscuregawdess » Tue May 27, 2008 1:20 pm

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Petitioner's Reply in Support of Motion to Recall theMandate

Postby Obscuregawdess » Tue May 27, 2008 1:23 pm

(Defense Response For Echols)

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THIS IS A CAPITAL CASE
IN THE ARKANSAS SUPREME COURT



DAMIEN WAYNE ECHOLS, Petitioner,
vs.
STATE OF ARKANSAS, Respondent.

Case No. CR 94-928 (Direct Appeal)
Case No. CR 99-1060 (Rule 37 Appeal)
Craighead Co. Circuit Court Nos 93-450, 450A (Circuit Court Trial and Rule 37 Proceedings)







PETITIONER’S REPLY IN SUPPORT OF MOTION TO RECALL THE MANDATE
AND TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS OR FOR OTHER EXTRAORDINARY RELIEF



On October 29, 2004, petitioner tendered to this Court his Motion to Recall the Mandate and to Reinvest Jurisdiction in the Trial Court to Consider Petition For Writ of Error Coram Nobis or for Other Extraordinary Relief. On December 2, 2004 the Court issued an order directing that the motion be submitted as a case; that the state respond to the motion by December 13, 2004; and that petitioner reply to the response five days thereafter. The state having duly filed its response on December 13th, the following constitutes petitioner’s reply 1:

INTRODUCTION
The most salient feature of the state’s response to petitioner Echols’s “Motion to Recall the Mandate” (and for other relief) is the absence therein of any challenge to the factual assertions advanced by Echols in support of his constitutional claims for a new trial.

There may be multiple reasons why respondent has failed to raise any factual dispute at this point in the proceedings. Surely one is that so many of Echols’s assertions are unassailably true. The trial record itself establishes that the venire from which petitioner’s jury was selected had been inundated with inflammatory media reports concerning the charged murders and the just-completed trial of Jesse Misskelley; that all jurors had been exposed to those reports and several other jurors had formed a preconception of Echols’s guilt based upon them; that despite the fact that petitioner’s trial had been severed from Misskelley’s because Misskelley’s statement to the police was, as a matter of federal constitutional law, inadmissible against Echols, a prosecution witness at petitioner’s trial shoehorned a reference to Misskelley’s statement into the record; and that the jury had been judicially admonished to ignore that reference, an admonition




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1 Five days after December 13, 2004 falls on Saturday, December 18, 2004. With its submission on the next available Court day thereafter, the reply is timely.

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deemed adequate by the trial court to ensure Echols a fair trial only because the witness had not disclosed the details of the Misskelley statement. As to Echols’s assertions that jurors drew up charts during their deliberations listing the reasons for and against convicting Echols and his codefendant Baldwin and that certain items on both lists subsequently were covered over, the charts themselves have been maintained as court exhibits; there can be no dispute as to their existence.

Of particular importance, the state makes no suggestion that the crucial factual information recently discovered by petitioner which forms the cornerstone of his constitutional claims is false or unreliable: i.e., that a juror’s notes reveal the Misskelley statement was listed on the jury’s charts as a reason to find both Echols and Baldwin guilty, and that the jury foreman expressly relied on the inadmissible and unadmitted statement in voting to convict. It may be that respondent’s investigation has already ascertained the truth of these factual allegations, or it may be that the state deems a response to them premature at this stage of the proceedings. In either case, the facts alleged in petitioner’s “Motion to Recall” and supporting memorandum, all supported by documentary evidence, have been left uncontested by respondent and must be taken as true for purposes of the decision of this motion.

On the present factual record, there can be no doubt that the conviction of Echols was fundamentally unfair. Under controlling precedent of the United States Supreme Court, no defendant can be convicted on the basis of a statement to the police by an alleged coparticipant in a charged crime when that coparticipant is not available for cross-examination at the defendant’s trial. 2 That would be true even if the coparticipant’s statement had been admitted into evidence


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2 Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).


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at the defendant’s trial and even if it appeared on its face to be factually accurate. Here, in a case in which every quantum of evidence properly admitted at trial against Echols was of questionable probative value, jurors, in violation of their oath, convicted petitioner based on inaccurate “private talk [and] public print” 3 concerning an out-of-court statement by Misskelley that itself was riddled with palpable falsehoods. The conduct of the Echols jury described in petitioner’s moving papers is wholly at odds with the guarantees of the Fifth and Sixth Amendments,4 and the state makes no suggestion to the contrary in its response.

Thus the transcendent question this petition poses is whether a defendant who may well be innocent and who was sentenced to death after a trial that was plainly violative of federal constitutional standards nonetheless must be executed, or whether Arkansas law provides a remedy for such a grave wrong. The state maintains death is required either because (a) the constitutional violations of which Echols complains can never be remedied because they are unprovable under Arkansas law; or (b) even were a remedy available under state law for these classes of constitutional violations, the time for seeking relief has expired, and no procedural vehicle remains available to petitioner to attack his convictions, no matter how well taken his federal constitutional claims may be. None of these evidentiary or procedural objections precludes decision of petitioner’s claims on the merits.
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3 Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558 (1907)
4 See Turner v. Louisiana, 379 U.S. 466, at 472-473 85 S.Ct. 546, at 550, 13 L.Ed.2d 424 (1965) ("In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.")

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As to its evidentiary objection, the state claims that under Arkansas Rule of Evidence 606(b) (2004) “a court cannot consider claims founded upon jurors impeaching their verdict by their descriptions of their deliberations....” (State’s Response [hereafter “Resp.,” at 7-8]). The state’s response is defeated by the plain language of the statute upon which it relies. While the state is quite right in contending that Rule 606(b) generally puts inquiries into juror deliberations off-limits, the glaring exception to that principle carved out by the statute is precisely the class of claims that Echols has persuasively advanced in his motion: that “extraneous prejudicial information was improperly brought to the jury’s attention [and] outside influence was improperly brought to bear upon [the] juror[s].” 5 Additionally, Echols’s juror bias claim does not implicate in any way the limitations of Rule 606(b).

Furthermore, the state’s contention that petitioner’s claims must be rejected because “at bottom...[they are] claim[s] that the jury disregarded its instructions” (Resp., at 8) turns the law on its head. This Court has held that a jury’s consideration of extraneous material in defiance of an explicit judicial admonition to disregard any such information dispositively strengthens the claim, rather than defeating it.
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5 Arkansas Rule of Evidence 606(b), adopted in 1975, reads:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

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The state’s contention that Echols’ motion comes too late rests on the factual assumption that the newly discovered evidence on which petitioner’s constitutional claims rest could have been discovered at an earlier date. The state has offered no evidence to support that contention; at a minimum, consideration of the state’s assertion of a time bar would require the convening of an evidentiary hearing. Furthermore, the airing of petitioner’s constitutional claims would not delay final resolution of this case in the Arkansas courts, because, as the state acknowledges, Echols’s “Act 1780 [DNA] proceeding is still pending in circuit court.” (Resp., at 2).

Finally, there is no case law holding that a juror misconduct or bias claim cannot be raised on coram nobis when the facts underlying the claim are unearthed too late to raise the contention on a new trial motion or in a Rule 37 proceeding. To hold that no procedural vehicle exists under state law to consider such a federal constitutional claim would offend the spirit of the Fifth and Sixth Amendments and would cede to the federal system the right of Arkansas’s appellate courts to review in the first instance all constitutional claims arising from state criminal proceedings.

ARGUMENT

I. RULE 606(b) EXPRESSLY AUTHORIZES A CLAIM THAT IN REACHING THEIR VERDICT, JURORS CONSIDERED EXTRANEOUS INFORMATION AND WERE AFFECTED BY OUTSIDE INFLUENCES

Noting that this Court “has oft-stated its confidence in the finality of jury verdicts and an unwillingness to entertain claims that would impeach those verdicts by invading the sanctity of the jury room,” the state argues that “[r]eopening here will not serve the integrity of the judicial system, but will only begin the disintegration of the finality jury verdicts bring to it.” (Resp., at 5). It is certainly true that preserving the sanctity of the jury room and the finality of jury verdicts

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are important values that the law promotes; it is just as true that the federal constitution promotes the values of a bias-free jury and a trial at which a criminal defendant is assured that he or she will be judged only on the basis of evidence subjected to the adversarial process. Those constitutional protections are, of course, never more needed than when the state seeks to take a defendant’s life.

To the extent that these important values can conflict, both the Congress of the United States and the Arkansas Legislature have fashioned a compromise to resolve that tension in the nearly identical federal and state versions of Rule 606(b). Rule 606(b) honors the integrity of jury deliberations by barring inquiry into the process of arriving at a verdict in most instances, even in the face of an allegation that the jury breached a judicial instruction in convicting a defendant. For example, had petitioner claimed that the jurors at his trial ignored the court’s directive to find him guilty only upon proof beyond a reasonable doubt and instead convicted by reliance on the civil standard of a preponderance of the evidence (or some even less rigorous standard), that claim would not be cognizable, no matter how factually accurate, because under Arkansas Rule Evid. 606(b),

[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received....

Rule 606(b) is, however, as clear in stating what is a proper basis for intrusion into the deliberative process as it is in defining what is not. The Legislature has determined that there is a

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class of conduct that poses such a threat to the right to a fair trial that it must be remedied even at the cost of breaching the confidentiality of juror deliberations. For that reason, Rule 606(b) creates an exception to the general ban on inquiring into jury verdicts in that it permits a juror to “. . . testify on the questions whether extraneous information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.”

The heart of petitioner’s constitutional claims is his assertion, fully supported by the evidence he has presented, that jurors relied on information that they had received outside the courtroom – media reports that Jesse Misskelley had confessed to being involved in the murders of Chris Byers, Michael Moore, and Steve Branch and told the police that Echols and Baldwin were the principal authors of the crimes – in convicting Echols of the three charged murders. The core questions underlying petitioner’s claims are “whether extraneous information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror”; that being so, contrary to the state’s argument, petitioner has indeed demonstrated that a “court could consider the purported evidence supporting [his claims] under A.R.E. 606(b).” (Resp., at 7). That the state’s 606(b) objection to the evidence tendered by petitioner is more reflexive than seriously advanced is demonstrated by the fact respondent does not cite a single case interpreting Rule 606(b) which supports its position, much less distinguish the numerous cases interpreting the rule relied upon by Echols in his opening memorandum. 6


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6 See, e.g., Witherspoon v. State, 322 Ark. 376, 382, 909 S.W.2d 314, 317-18 (1995) (Arkansas Rule of Evidence 606(b) "establishes an extraneous information exception which allows jurors to testify that one or more members of the jury brought to trial specific personal knowledge about the parties or controversy or acquired such knowledge from sources outside the courtroom during the trial or deliberations."); Sunrise Enterprises, Inc. v. Mid-South Road Builders, Inc., 337 Ark. 6, 11, 987 S.W.2d 674, 676-677 (1999) (citation omitted). ("To show that extraneous materials were brought to the jurors attention, the trial judge may properly

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As noted in the Introduction above, the state contends that petitioner’s claims must be rejected because “at bottom...[they are] claim[s] that the jury disregarded its instructions” (Resp., at 8). This is simply untrue: petitioner’s claims are that during deliberations the jury considered the most prejudicial form of extraneous information imaginable – inaccurate media reports of a co-defendant’s unreliable statement implicating the defendant in the charged crime – thereby demonstrating bias and committing misconduct. These federal constitutional claims would require a new trial even had the jury not been expressly instructed to base its verdict only on the evidence admitted in court and to ignore Detective Ridge’s reference to the Misskelley statement. Thus Echols is not raising a claim which is in essence one that the jury “disregarded its instructions.”

That being said, by discussing the Misskelley statement, placing it on its list of factors favoring a conviction, and relying on it to convict, jurors did violate express admonitions of the trial judge. Rather than defeating petitioner’s constitutional claims, that breach of the court’s admonitions to disregard the Misskelley statement and to decide the case solely on the evidence admitted in court strengthens rather than weakens Echols’s entitlement to relief. See, e.g., Diemer v. Dischler, 313 Ark. 154, 162, 852 S.W.2d 793, 797 (1993)(citing factors deemed “determinative” in deciding claim jurors made unauthorized visit to accident scene, the first of


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consider the content of conversations that took place in the jury room."); see also Rushen v. Spain, 464 U.S. 114, 121 n.5, 104 S.Ct. 453, 457 n.5, 78 L.Ed.2d 267 (1983) ("A juror may testify concerning...whether extraneous prejudicial information was improperly brought to the juror's attention. See Fed.R.Evid. 606(b)."); United States v. Brown, 108 F.3d 863, 867 (8th Cir. 1997) ("Although Rule 606(b) generally prevents a juror from testifying 'as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind,' the rule does allow jurors to 'testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.' Fed.R.Evid. 606(b).")

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which was whether trial court had instructed jury not to visit the scene). Petitioner’s claims are not precluded by the operation of Rule 606(b).

II. ON THIS RECORD, PETITIONER’S CLAIMS CANNOT BE DEEMED UNTIMELY

As noted above, it is the state’s position that despite the United States Supreme Court’s having held that the consideration of extraneous information by jurors constitutes a fundamental violation of a criminal defendant’s Fifth and Sixth Amendment rights,7 Arkansas provides no means of remedying such a federal constitutional violation; according to respondent, “claims founded upon jurors’ impeachment of their own verdict are never timely....” (Resp., at 7). Alternatively, the state argues that “it simply cannot be that [Echols] various constitutional claims could be made only a decade after his trial.” Id.

The state’s assertion that petitioner’s claims could have been brought sooner necessarily relies on a factual proposition – that the evidence of juror misconduct Echols recently unearthed could have been obtained earlier – for which respondent offers no factual support. On the other hand, petitioner has offered evidence tending to prove a contrary conclusion. For example, the affidavits of investigators attesting that the jury foreman was aware of details of the Misskelley statement and relied on that information to convict also contain evidence that despite requests for interviews, the foreman had not discussed his role in the deliberations until he did so two months ago in October. It certainly cannot be said on this record that Echols could have developed his


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7 Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 870, 17 L.Ed.2d 420 (1966) (statements of bailiff in charge of a deliberating to jurors that the defendant was a "wicked fellow" who was guilty and that any improper guilty verdict would be corrected by the Supreme Court violated "the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment.")

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present claims sooner than he did; at a minimum, an evidentiary hearing would be required to address that question.

Of equal importance, the issue of diligence is not formally jurisdictional in nature, but one implicating considerations of equity. Menendez v. Holt, 128 U.S. 514, 524, 9 S.Ct. 143 (1888) (“[I]t is in the exercise of discretionary jurisdiction that the doctrine of reasonable diligence is applied . . .”) (Emphasis supplied)] Again, on the present record this Court must assume that Echols, if given the opportunity to establish his claims on the merits, can demonstrate that, in a case where evidence of his guilt is scarce, his trial and sentence of death were fundamentally unfair. Deciding petitioner’s present claims on the merits, if those claims prove well-founded, will thus avoid a grave miscarriage of justice. On the other hand, a merits decision will not delay the ultimate disposition of this case in the Arkansas courts because, as the state acknowledges, this matter is still pending in the circuit court on Echols’s motion to prove his innocence through DNA testing. Equitable considerations compel the conclusion that petitioner’s “Motion to Vacate” should not be denied as untimely.

III. THE COURT SHOULD RECALL THE MANDATE BECAUSE THE CIRCUMSTANCES PRESENTED IN THIS CASE ARE EXTRAORDINARY WITHIN THE MEANING OF ROBBINS V. STATE

Putting to the side questions as to the availability of the ultimate relief sought by petitioner, the state also argues that the Court should not recall the mandate because such an order is not warranted under Robbins v. State, 353 Ark. 556, 114 S.W. 3d 217 (2003), the very decision invoked by Echols in support of his pending motion. (Resp., at 4-7). In so contending, the state does not dispute that this Court possesses the inherent authority to recall the mandate; as petitioner observed in his opening motion (at 4-5), Robbins makes that point abundantly clear.

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353 Ark. at 563, 114 S.W.3d at 221. The state instead argues that Echols’s case is not sufficiently extraordinary within the meaning of Robbins to outweigh the judicial system’s interest in the finality of jury verdicts and warrant recall. (Resp., at 4). In this connection, the state seeks to distinguish the three circumstances which this Court discussed in Robbins as the bases for the relief afforded there.

The state’s argument is unpersuasive. As identified in Robbins, the extraordinary circumstances which justified the recall of the mandate consisted of (1) an alleged fundamental defect in the verdict form which, if found present, would compel reversal under established Arkansas precedent; (2) the federal district court's dismissal of Robbins’s federal habeas corpus petition in order to give the state courts the opportunity to explore the issue, and (3) the enhanced scrutiny that this Court requires in death cases. Robbins, 353 Ark. at 564-65, 114 S.W.3d at 222-23. While the state may be correct that all of these precise circumstances are not presented in the instant case, those appearing here are sufficiently similar to those in Robbins to warrant recall in this matter.

Of course, one of the Robbins circumstances — the enhanced scrutiny triggered by a state judgment subjecting a petitioner to execution — is identical to one of those presented here. The state seeks minimize the significance of this factor by contending that such scrutiny is “‘unique’ to every death case” (see Resp., at 6, n. 4), but this hardly does justice to this Court’s view that a defendant’s complaints in this narrow class of criminal cases must be accorded special attention, particularly where they implicate the reliability of the guilt or penalty phase result, given the ultimate sanction that looms if those complaints are found wanting. See, e.g., Robbins, 353 Ark. at 561-62, 114 S.W.3d at 220-21 (citing and quoting, inter alia, Zant v. Stephens, 462 U.S. 862,

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884-885 (1983): "[B]ecause there is a qualitative difference between death and any other permissible form of punishment, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."); Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring) ("[T]his Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake."); see also Robbins, 353 Ark. at 561, 114 S.W.3d at 220 (“This court, early on, voiced its belief in the ‘humane principle applicable in general to criminal cases, and especially those where life is involved,’ and declined to exalt form over substance when dealing with the death penalty. Bivens v. State, 11 Ark. 455, 457 (1850)”). 8

Second, the fact that the federal court in Robbins had dismissed a habeas petition on the grounds that Robbins had not exhausted his state remedies, see Robbins, 353 Ark. at 559, 114 S.W.3d at 219, while no such dismissal has occurred in the present matter does not present a meaningful distinction between these cases. As of the time of filing the present motion, petitioner had initiated an action seeking habeas relief from the federal district court in connection with the claims he seeks to pursue here. See Echols v. Norris, Eastern Dist. of Arkansas No. 04CV00391 HLJ. In that petition, Echols has asked the federal court to stay the action to permit him to exhaust his present claims in the Arkansas courts, as any petitioner must ordinarily do as a prerequisite to triggering federal review. Rose v. Lundy, 455 U.S. 509, 522, 102


--------------------------------------------------------------------------------

8 It bears noting, moreover, that the presence of petitioner's death sentence is a circumstance that, standing alone, significantly narrows the class of cases in which recall requests, apart from those granted to defendants seeking a writ of certiorari as to an otherwise concluded appeal (see Robbins, 353 Ark. at 563-64, 114 S.W.3d at 222), should be entertained in the first instance.

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If that request for a stay is granted, it will be to permit the very consideration, and hence exhaustion, as is sought by the present motion and related request for relief. If, on the other hand, the federal request is denied, the federal court will dismiss the petition as an alternative and appropriate response to a federal petition containing unexhausted claims, just as occurred in Robbins. See Rose, supra. In either event, it is clear that petitioner must fairly present his claims to the Arkansas state courts before he will permitted to further pursue his proffered constitutional claims in federal court, again, just as Robbins was required to do.

As to the final extraordinary circumstance identified in Robbins, petitioner cannot allege the presence of a deficiency in a verdict form which, if established, would entitle him to relief from the penalty-phase judgment, as was true in Robbins. Petitioner has, however, alleged the presence of errors which, if established, are if anything more “fundamental” than that asserted in Robbins, i.e., a guilt-phase verdict that, corrupted by egregious jury misconduct and bias, was the product of rampant passion and prejudice rather than reasoned consideration of only the evidence admitted at trial. Such errors would invalidate not only the penalty phase result, but, surpassing Robbins, the underlying conviction itself. Thus, to the extent that the nature of the alleged error bears on the location of extraordinary circumstances sufficient to warrant recall under Robbins, such errors are surely presented here. The rationale which justified recall of the mandate in Robbins is equally applicable in the instant case. 9
/ /


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9 As indicated above, an additional extraordinary circumstance attending this case, one not presented in Robbins, is the presence of the ongoing DNA proceedings in the circuit court.

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IV. UPON REOPENING THE CASE, THE COURT SHOULD PERMIT PETITIONER TO SEEK RELIEF IN CORAM NOBIS PROCEEDINGS OR BY FUNCTIONALLY EQUIVALENT MEANS

At the conclusion of its Response, the state argues that the Court should not, in any event, consider the instant motion because coram nobis relief is not available for the type of claims advanced by petitioner in his opening memorandum. (Resp., at 10-11). This argument, however, is premature, given that the present motion seeks an order recalling the mandate for the very purpose of determining the availability of specific remedies to press his constitutional claims.

In any event, the state’s argument is not well-founded. The writ of error coram nobis is an extraordinary remedy which “should be allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.” State v. Larimore, 327 Ark. 271, 279, 938 S.W.2d 818, 822 (1997). The function of the writ is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Troglin v. State, 257 Ark. 644, 645-46, 519 S.W.2d 740, 741 (1975). Due diligence is required in making the application for relief, but the time limits applicable to Rule 37 applications are not applicable. Id. Finally, coram nobis proceedings are attended by a strong presumption that the disputed conviction is valid, and an application for relief must be accompanied by specific factual allegations on which the petitioner relies. Id.

Petitioner submits that, as demonstrated by his opening motion and memorandum and the discussion above, the constitutional claims and factual allegations he has presented patently satisfy this standard. Specifically, the errors he has alleged were egregious and fundamental; if

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established as true, they have rendered the guilt phase verdict wholly unreliable and the sentence of death an utter mockery of justice. Petitioner had no reason to know of the misconduct and bias before the rendition of judgment, which would never have issued had the facts been disclosed to the trial court. Furthermore, as noted, the present record plainly supports the inference that he has been sufficiently diligent to avail himself of coram nobis. The factual allegations themselves could not be any more specific.

To be sure, the state invokes authority (Resp., at 10-11), including the Court’s earlier opinion in this case, Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003), which observes that in Arkansas, coram nobis relief is available to remedy four kinds of errors, including insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor (see, e.g. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)), or a third party confession to the crime. Echols, 354 Ark. at 417, 125 S.W.3d at 156. Respondent, however, has failed to cite any precedent forbidding application of coram nobis to remedy juror misconduct and bias rising to the level petitioner alleges, and is prepared to demonstrate, in this case. Nor has the state explained why, in an exceptional case such as this, the categories of error described in Echols may not be expanded to accommodate the constitutional claims petitioner asserts here. Indeed, the state notes that in a recent argument before this Court, it conceded that the remedy might be “forced to accommodate a fifth category” of cases involving claims of mental retardation. (Resp., at 11, n.6) A death case guilty verdict that is founded on rumor responding, in turn, to information tainted by falsehoods merits no more trust than one by the most egregious Brady violation or any of the other categories of error described in Echols, supra, and is as deserving of coram nobis jurisdiction as is a claim that a defendant has been sentenced to death

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despite being mentally retarded.

Were this Court nevertheless to rule that coram nobis cannot be applied here, then it should permit Echols to proceed in the trial court with a motion for a new trial, despite the passing of the governing time limits, or under whatever rubric will permit his constitutional claims to be fully aired. Indeed, this Court in Robbins implicitly authorized an equivalent remedy when it permitted the petitioner to reopen an appeal that had long since concluded and which, but for this Court’s intervention, would have been remained forever closed.

One final point bears emphasis: if the substance of petitioner’s misconduct claims are not deemed cognizable and petitioner is foreclosed from further pressing them here, that result may simply mean that they are decided in the first instance by the federal courts. In response to any state argument that Echols has procedurally defaulted his claims in the Arkansas courts, the federal district court may well determine that the state’s procedural barriers to the claims do not constitute an adequate ground for rejecting them because petitioner was not given a fair opportunity to present the claims to a state tribunal following the discovery of their factual basis. Harris v. Reed, 489 U.S. 255, 260-62 (to preclude federal review, purported state procedural default must rest on grounds that are “adequate”); Hertz and Liebman, Federal Habeas Corpus Practice and Procedure, 4th ed., 2001, §26.2d, n.47 (summarizing federal cases holding that state rule was not adequate because, as applied, it did not permit a reasonable opportunity to have the federal right heard and determined by the state courts); id., at n. 48 (summarizing federal cases holding state rule inadequate where, as applied, it required objection before the error became reasonably apparent).
/ /

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The irony, of course, is that such a result would gravely undermine the central role which the AEDPA assigns to this Court in assessing the viability of federal constitutional claims. Petitioner urges the Court not to permit that result and thereby potentially sacrifice the preeminent role it is entitled to assume under the AEDPA.

CONCLUSION

For the foregoing reasons, and for those set forth in the opening motion, memorandum, and exhibits, petitioner respectfully requests that this Court issue an order recalling its mandate and investing the Circuit Court of Craighead County with jurisdiction to consider Echols’s petition for a writ of error coram nobis and/or other appropriate extraordinary relief.

DATED: December 17, 2004


Respectfully submitted,

DENNIS P. RIORDAN
DONALD M. HORGAN
THERESA GIBBONS

DEBORAH R. SALLINGS


By _______________________
DENNIS P. RIORDAN

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

-17-
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Arkansas Supreme Court Opinion, Petitioner's Motion Denied

Postby Obscuregawdess » Tue May 27, 2008 1:24 pm

(for Echols)

http://www.wm3.org/live/trialshearings/ ... &year=2005

SUPREME COURT OF ARKANSAS
No. CR94-928 & CR99-1060
DAMIEN ECHOLS, PETITIONER,
VS.
STATE OF ARKANSAS,
RESPONDENT,

Opinion Delivered 1-20-05

PETITIONER'S MOTION TO RECALL THE MANDATE AND TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS OR FOR OTHER EXTRAORDINARY RELIEF

MOTION DENIED









--------------------------------------------------------------------------------

TOM GLAZE, Associate Justice

--------------------------------------------------------------------------------


This case was first decided on March 19, 1994, when a jury found petitioner Damien Echols guilty of brutally murdering three eight-year-old boys in West Memphis on May 5, 1993. Echols appealed these capital murder convictions, and this court, on December 23, 1996, in a 77-page opinion in appellate case number CR94-928, affirmed that conviction. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996) (Echols I). This court issued its mandate to the circuit court. Echols petitioned the United States Supreme Court for a writ of certiorari, which that Court denied on May 27, 1997. See Echols v. Arkansas, 520 U.S. 1244. This court then reissued its mandate in appellate case number CR94-928 - the direct appeal in Echols I.1

Echols then pursued his timely petition for postconviction relief in the trial court pursuant to Ark. R. Crim. P. 37.5. See Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001) (Echols II). On June 17, 1999, the trial court denied Echols's Rule 37 claims, and this court, in Echols II, appellate number CR99-1060, affirmed the trial judge's refusal to recuse from the Rule 37 proceeding, but our court remanded this case to the trial court for entry of a written order with findings of facts in compliance with Rule 37.5(i). See Echols II, 344 Ark. at 519. On remand, and after the trial court's review, the circuit court issued a new order with factual findings, rejecting Echols's Rule 37 claims. This time, on October 30, 2003, our court affirmed the circuit court on all Rule 37 claims in case number CR99-1060. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003) (Echols III). Our court's mandate in this Rule 37 postconviction case, No. CR99-1060, issued on December 12, 2003.

During the period this court was considering Echols's Rule 37 proceeding, Echols had also filed a petition for writ of error coram nobis on February 27, 2001, asking this court to reinvest jurisdiction in the trial court. Our court ruled it would consider Echols's writ of error coram nobis petition as a separate case under appellate case number CR94-928 (the docket number for Echols I, decided on December 23, 1996). However, this court directed that both cases, CR94-928 and CR99-1060, be submitted and orally argued on the same date. Following separate oral arguments in both cases on October 2, 2003, our court first issued its opinion on October 16, 2003, denying Echols's error coram nobis petition. As previously set out above, this court affirmed and entered its decision on October 30, 2003, denying Echols relief under Rule 37. In sum, this court's mandates in CR94-928 and CR99-1060 were final on November 13, 2003, and December 11, 2003, respectively. Consequently, Echols's requests for postconviction relief under Rule 37 and for writ of error coram nobis are final unless Echols can successfully establish grounds for this court to recall its mandates in either case number CR94-928 or CR99-1060.2

On October 29, 2004, Echols filed the instant motion to recall the mandate and his second motion to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. In his motion and the accompanying brief in support, Echols advances two primary arguments in support of his request to recall the mandate and his error coram nobis petition: 1) he alleges that the jury received and considered extraneous information - specifically, the confession of Jessie Misskelley - during deliberations at his trial, thus undermining the fundamental fairness of the trial process; and 2) certain members of the jury harbored an impermissible bias against him, in violation of his Fifth, Sixth, and Fourteenth Amendment rights.

Echols first argues that this court wields the inherent power to recall its mandates and cites Ark. Sup. Ct. R. 5-3(d) and Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), to support his argument. However, this court made abundantly clear in Robbins that we were recalling the mandate "solely because of the unique circumstances of this case." Robbins, 353 Ark. at 564. Specifically, the question raised by the request to recall the mandate was whether an error in Robbins's appeal had been allegedly overlooked that would have been reversible error had it been found earlier. Id. The court pointed to three specific factors that prompted the decision to recall the mandate: 1) a decision had been cited to the court which was on all fours legally with the issue presented; 2) the federal district court had dismissed Robbins's federal habeas corpus petition because that issue had not been addressed in state court; and 3) the appeal was a death case "where heightened scrutiny is required." Id. These factors combined to make Robbins's case sui generis; the court noted that it "consider[ed] this case to be one of a kind, not to be repeated." Id. at 564-65 (emphasis added). Thus, in order to recall a mandate, the above three factors must be established.

Although his first contention is that this court should recall its mandate under Robbins, Echols makes no showing that he has satisfied any of these three factors, other than the fact that his case, like Robbins's, involves the death penalty. In Engram v. State, ___ Ark. ___, ___ S.W.3d ___ (Dec. 16, 2004), this court refused to recall the mandate in adeath penalty case. There, the federal district court had directed Engram to dismiss his habeas corpus petition without prejudice so our court could consider any claim of mental retardation he might have under Atkins v. Virginia, 536 U.S. 304 (2002); our court held that Engram had exhausted his state remedies, and he was left to pursue his relief, if any, in the federal courts.

Here, as noted above, Echols can satisfy only one of the three Robbins criteria - his is a death penalty case. In Robbins, this court stressed that the death penalty "is a unique punishment that demands unique attention to procedural safeguards," Robbins, 353 Ark. at 561. Here, however, Echols does not even attempt to establish that the facts of his case comport with the three "unique circumstances" that convinced a majority of this court to recall the mandate in Robbins. The Engram court noted that "[t]he purpose of recalling the mandate and reopening the case in Robbins was in order to correct an error in the appellate process," not an alleged error in the trial court, as was the case in Engram. Echols, however, does not raise the possibility of an error in the appellate process; instead, he merely claims that "the developments described [in his motion] warrant an order recalling the court's previously issued mandate and reopening the case for further proceedings in the circuit court." This claim is plainly insufficient to satisfy the requirements of Robbins and to justify the recalling of the mandate.

In addition to his request to recall the mandate, Echols also asks this court to reinvest the trial court with jurisdiction to consider his petition for writ of error coram nobis. Asnoted above, this is his second such petition. The essence of his argument is that he was denied a fair trial, because his jury considered extraneous, improper, and unadmitted evidence against him in arriving at its conviction and death sentence; this alleged error, he claims, caused his jurors to harbor an impermissible bias against him. He further argues that those errors are "fundamental in nature and are founded on facts which would have prevented rendition of the judgment if known to the trial court, and which, through no negligence or fault of the defendant, were not brought forward before rendition of the judgment."

We begin with a discussion of the fundamental principles of error coram nobis. The writ of error coram nobis is an extraordinary writ, known more for its denial than its approval. Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002); State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). The function of the writ of error coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Cloird, 349 Ark. at 37; Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999).

We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature that are found in one of four categories: 1) insanity at the time of trial, 2) a coerced guilty plea, 3) material evidence withheld by the prosecutor, or 4) a third-party confession to the crime during the time between conviction and appeal. Cloird, supra; Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id.

Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Echols, 354 Ark. at 419; Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). In the absence of a valid excuse for delay, the petition will be denied. Echols, supra. This court has held that due diligence requires that 1) the defendant be unaware of the fact at the time of trial; 2) he could not have, in the exercise of due diligence, presented the fact at trial; or 3) upon discovering the fact, did not delay bringing the petition. Id. at 419 (denying error coram nobis relief, which Echols claimed was proper because he had only recently discovered evidence to show he was incompetent at his trial; this court held it was obvious that he was aware of his mental history at the time of his trial); see also Larimore, supra (citing John H. Haley, Comment, Coram Nobis and the Convicted Innocent, 9 Ark. L. Rev. 118 (1954-55)); Penn v. State, supra.

At the outset, it should be noted that the basis for Echols's claim - i.e., that the jury considered improper and extraneous information in its consideration of his guilt - does not fall within any of the four categories of errors for which error coram nobis constitutes appropriate relief. Although Echols maintains that his claims regarding jury-deliberation irregularities and impermissible jury bias should fall within the ambit of error coram nobis, this court has specifically declined to extend the writ to remedy a case involving allegedly misleading responses by a juror during voir dire. See Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996).

It has been more than ten years since Echols's conviction. This fact clearly demonstrates that Echols did not exercise due diligence in bringing his claims to light - especially in view of the fact that the point on which he relies (the jury's alleged consideration of Misskelley's confession) was known to the court, the prosecutor, and to Echols's defense team at the time of trial. In his memorandum brief, he points out that, during trial, the trial court denied his motion for mistrial when one of the police witnesses inadvertently mentioned Misskelley's statement. At that time, the court stated, "I suggest . . . that there isn't a soul up on that jury or in this courtroom that doesn't know Mr. Misskelley gave a statement." Thus, Echols should have been aware from the time of his trial and conviction of the possibility that the jury might have been aware of and considered this extraneous information.3

For these two reasons - coram nobis is not applicable to address and correct the errors that allegedly occurred here, and Echols failed to exercise due diligence in raising these claims - we decline to reinvest the trial court with jurisdiction to consider Echols's petition for writ of error coram nobis.4

Before we conclude this opinion, we must comment on the DNA testing Echols requested pursuant to Ark. Code Ann. § 16-112-201 et seq. (Supp. 2003). Although Echols first filed his motion for DNA testing in September of 2002, the motion is still pending in the circuit court, and the proceeding has remained unresolved since that time. We wish to impress upon the trial court, the State, and Echols's attorneys that this matter needs to be resolved. Although we understand that there are significant constraints and pressures upon the State Crime Laboratory, we also stress that this case has been going on since 1996, and there is a need for finality in this matter. Indeed, in our last per curiam opinion granting an extension, we declined to issue an open-ended stay. Instead, we granted a stay for a period of seventy days from the date of the opinion rendered on June 19, 2003. We therefore encourage the parties and the court to take action to ensure that the DNA testing is addressed and concluded.

Imber, J., concurs.

1 Echols initially became eligible to file a petition on January 13, 1997, the date this court entered its mandate following his direct appeal. This court granted his motion to stay the mandate so he could petition the Supreme Court.

2 Since these mandates have issued, three attorneys who practice law in San Francisco, California have filed motions in this court seeking permission to practice by comity pursuant to Rule XIV of the Rules Governing Admission to the Bar. The attorneys have associated Deborah R. Sallings of Cauley, Bowman, Carney & Williams as local counsel.

For the purpose of considering Echols's new motions, this court grants comity. We note that these attorneys have submitted an order purportedly signed by Circuit Judge David Burnett, but the order has no file marks. In addition, we note that Echols has had as many as six attorneys in these prior proceedings and appeals, but none of the prior attorneys appear to be active or of record in the pending motions.

3 Indeed, Echols raised the issue of the jury's improper consideration of the fact of Jessie Misskelley's statement during trial; as noted above, he moved for mistrial, which was denied, and he assigned error to this ruling on appeal. In addition, Echols raised a somewhat similar argument in his Rule 37 appeal, wherein he claimed that his trial counsel was ineffective during voir dire for failing to adequately question jurors regarding pretrial publicity and their knowledge of Misskelley's confession. Thus, essentially the same arguments he now attempts to raise in a petition for writ of error coram nobis were known to him prior to this point in time. Thus, Echols has failed to comply with the due diligence facet of error coram nobis, as he could have presented these facts at trial.

4 However, even if we were to permit the trial court to reconsider this case, Echols's claim of juror misconduct is extremely untimely. It is true that this court held in Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992), that a new trial was warranted where inadmissible materials made their way into the jury room and "could well have influenced the jury to decide . . . that appellant was guilty." Larimore, 309 Ark. at 360-61. However, Larimore filed a motion for new trial almost immediately after the verdict was rendered. Id.; cf.Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992) (a motion for new trial that alleged jury misconduct, but which was filed more than thirty days from the date of the judgment, was untimely). See also Ark. Code Ann. § 16-89-130(c)(7) (new trial may be granted upon a showing of jury misconduct that causes the court to conclude that the defendant has not received a fair trial); Ark. R. Crim. P. 33.3(b) (motion for new trial must be filed within thirty days of the judgment). Echols's claim of juror misconduct has been brought over a decade after his conviction. Clearly, this is a matter which could have been brought in a motion for new trial immediately after the verdict and conviction, but the argument is now untimely.

In addition, jurors are presumed to be unbiased and are presumed to follow the instructions given to them by the court. See Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002); Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000); Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). Here, when the witness mentioned Misskelley's statement, the trial court admonished the jury to disregard and not consider the last response." This court will not presume bias or presume that a jury is incapable of following the trial court's instructions. Kelly, supra.

Finally, Echols's attempt to prove that his jury considered the Misskelley statement is improper. Ark. R. Evid. 606(b) precludes inquiry into a juror's state of mind during deliberations; the rule only permits inquiry into whether any external influence or information could have played a part in the jury's verdict. Davis v. State, 330 Ark. 501,956 S.W.2d 163 (1997). The purpose of this rule is to balance the freedom of jury deliberations with the ability to correct an irregularity in those deliberations. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002); Davis, supra. We have unequivocally stated that any effort by a lawyer to gather information in violation of Rule 606(b) to impeach a jury's verdict is improper. Miles, supra. Although Echols argues that he interviewed the jurors in order to determine whether any external influence or information played a role in the jury's deliberations, what he is essentially asking this court to do is to delve into the jury's deliberations in order to determine whether any of them disregarded the trial court's instructions - specifically, the court's instruction to not consider that a witness had mentioned Misskelley's statement.
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Petition for Rehearing re:

Postby Obscuregawdess » Tue May 27, 2008 1:26 pm

Motion to Recall the Mandate denied... Echols

http://www.wm3.org/live/trialshearings/ ... &year=2005

SUPREME COURT OF ARKANSAS
No. CR94-928 & CR99-1060

DAMIEN ECHOLS, PETITIONER,
VS.
STATE OF ARKANSAS, RESPONDENT,

Opinion Delivered

PETITIONER'S MOTION TO RECALL THE MANDATE AND TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS OR FOR OTHER EXTRAORDINARY RELIEF

PETITION FOR REHEARING DENIED; SUPPLEMENTAL OPINION ISSUED.

TOM GLAZE, Associate Justice

We deny appellant Damien Echols's petition for rehearing. A petition for rehearing is to be used to call attention to specific errors of law or fact which the opinion is thought to contain; the brief on rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. Ark. Sup. Ct. R. 2-3(g) (2004). Echols first argues in his petition for rehearing that, if this court was correct in holding that his juror bias claim should have been raised in a motion for new trial, then he should now be permitted to argue that counsel's failure to file such a motion constituted ineffective assistance of counsel. However, this court has previously foreclosed Echols's attempts to raise new ineffective-assistance claims. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).

Echols next argues that this court erred in its interpretation of Ark. R. Evid. 606(b),and he claims that this court's holding has deprived him of his ability to raise a federal constitutional claim. However, he argued this in his original briefs, and petitions for rehearing are not intended to allow an opportunity for "mere repetition of the argument already considered by this court." Ark. Sup. Ct. R. 2-3(g).

Finally, Echols states that this court's comments concerning the DNA testing "do not reflect, and indeed are at odds with, the testing procedures agreed upon by the parties, which are now in progress." We point out that this court has repeatedly granted stays in this case so that the parties could complete the DNA testing authorized by Ark. Code Ann. § 16-112-201 (Supp. 2001). The first stay was for sixty days, granted in an opinion issued on September 12, 2002. See Echols v. State, 350 Ark. 42, 84 S.W.3d 424 (2002) (per curiam). Thereafter, on November 14, 2002, and February 28, 2003, this court extended the stay, for a period of ninety days each time. On June 19, 2003, this court granted yet another motion to extend the stay. See Echols v. State, 353 Ark. 755, 120 S.W.3d 78 (2003) (per curiam). We declined, however, to issue an open-ended stay, as Echols requested. Instead, we granted a stay for a period of seventy days from the date of that opinion, and declared that it would be the final extension of time.

In his brief in support of his current petition for rehearing, Echols avers that the trial court in this case issued an order on June 2, 2004, approving the DNA testing of specific items of evidence to be performed at the Bode Technology Group in Springfield, Virginia. Although he has attached a copy of that order to his petition for rehearing, he failed to provide this court with that information when he submitted his motion to recall the mandate and to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis. Thus, our comment at the conclusion of the opinion, encouraging the parties to "take action to ensure that the DNA testing is addressed and concluded," was occasioned by the parties' failure to inform this court of the status of the DNA testing. This failure caused us to question whether our previous admonishment regarding the finality of the extensions of time had been ignored - a concern that the parties did nothing to allay when they failed to inform this court of the status and whereabouts of the DNA proceedings. We would not have made such a statement if the parties had provided this information to the court. Now that the parties have favored us with the status of the DNA testing, we clarify our opinion by striking its final paragraph. We again stress to the parties the importance of concluding this matter.

Petition for rehearing denied.
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First Amended Petition for a Writ of Habeas Corpus (Echols)

Postby Obscuregawdess » Tue May 27, 2008 1:28 pm

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THIS IS A CAPITAL CASE

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

DAMIEN WAYNE ECHOLS, Petitioner,
vs.
LARRY NORRIS, Director, Arkansas Department of Corrections, Respondent.

Case No. 5:04CV00391-WRW

FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY




DENNIS P. RIORDAN (CA SBN 69320)
DONALD M. HORGAN (CA SBN 121547)
THERESA GIBBONS (CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472

DEBORAH R. SALLINGS (AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211Telephone: (501) 312-8500
(Local Counsel)

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS


INTRODUCTION

1. Damien Wayne Echols, petitioner, by and through his undersigned counsel, hereby submits for filing his instant first amended petition for habeas corpus relief pursuant to 28 U.S.C. section 2254. This amended petition is intended to supersede that filed in this Court on October 28, 2004.

2. Filing of an amended petition is permitted without leave of court where, as here, it occurs prior to the state's filing of a responsive pleading to an original petition. See Rule 11 of the Rules Governing §2254 Cases in the United States District Courts, hereinafter "§2254 Rules" (authorizing application of Federal Rules of Civil Procedure where not inconsistent with §2254 Rules); Federal Rule of Civil Procedure 15(a) (establishing right to file one amended pleading without leave of court prior to filing of responsive pleading). Furthermore, under the applicable civil rules, the date of filing the instant amended petition is deemed to relate back to the date of filing the original petition which, in this matter, occurred on October 28, 2004. See §2254 Rule 11, supra; Fed.R.Civ.Pro. 15(c) (amended pleading relates back to original where, inter alia, claims, as here, arise out of conduct, transaction, or occurrence set forth in original pleading)

3. Petitioner is unlawfully incarcerated and restrained in violation of the United States Constitution in the Varner Unit of the Arkansas state prison located in Grady, Arkansas, by Larry Norris, Director of the Arkansas Department of Corrections.

PROCEDURAL HISTORY

4. Following is a summary of the prior state and federal court proceedings relating to the instant amended petition:

Petitioner's Conviction and Direct State Court Appeal

5. On March 19, 1994, following trial by jury, an Arkansas trial court sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered judgment against petitioner for three counts of first degree murder in connection with the homicides of three eight-year old boys in West Memphis, Arkansas, in May, 1993. On that same date, the trial court sentenced petitioner to death for the crimes.

6. Echols timely appealed from the judgment and sentence, which were affirmed by the Arkansas Supreme Court in an opinion issued on December 23, 1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Petitioner thereafter challenged the state Supreme Court's appellate ruling by filing a timely petition for a writ of certiorari in the United States Supreme Court, which petition was denied in an order issued on May 27, 1997.
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The State Proceedings Relating to Petitioner's Motion for Post-Conviction Relief Under Rule 37



7. Meanwhile, on March 11, 1997, well prior to the conclusion of direct appellate proceedings on May 27, 1997, Echols filed a motion for post-conviction relief from the trial court's judgment and sentence, pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. ("Rule 37") Petitioner's final Rule 37 petition, which raised many of the claims presented in the instant petition, was denied by the Craighead County Circuit Court in an order issued on June 17, 1999.

8. Petitioner timely appealed from the Circuit Court's June 17, 1999 order. On April 26, 2001, the Arkansas Supreme Court affirmed one portion of the Circuit Court's ruling but otherwise reversed and remanded in light of the Circuit Court's failure to make required factual findings as to petitioner's claims. See Echols v. State, 344 Ark. 513 (2001).

9. Following remand, in an order issued on July 30, 2001, the Circuit Court issued a new order again rejecting all of petitioner's claims under Rule 37. Petitioner timely appealed this order but it was affirmed in an order issued on October 30, 2003, as reported at Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).
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The Initial State Motion to Reinvest Jurisdiction in the Trial Court

10. Meanwhile, on February 27, 2001, while the Rule 37 proceedings described above were pending, Echols petitioned the Arkansas Supreme Court for an order reinvesting jurisdiction in the Circuit Court to allow him to seek a writ of error coram nobis. The state Supreme Court denied that petition in an opinion issued on October 16, 2003 (i.e., before the conclusion of the Rule 37 proceedings) and reported at Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003).

The Pending State Motion to Permit Forensic Testing

11. On July 25, 2002, and likewise while the Rule 37 proceedings remained pending, petitioner filed a "Motion for Forensic DNA Testing" (hereinafter "DNA motion) in the Arkansas Circuit Court pursuant to Arkansas Code section 16-112-201 et seq. Invoking the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guarantee of equal protection and due process of law, the motion asserted that the judgment and sentence should be vacated because petitioner was actually innocent of the crimes.

12. On January 27, 2003, the Craighead County Circuit Court judge who presided at petitioner's trial ordered the impoundment and preservation of all material that could afford a basis for petitioner's actual innocence claim pursuant to this statutory scheme.

13. Testing of the material subject to the Circuit Court's preservation order, together with related trial court proceedings, remain in progress as of the time of filing the instant amended petition.

The Original Petition for Federal Habeas Corpus Relief in this Court

14. On October 28, 2004, Echols filed his initial petition for federal habeas corpus relief in this Court. The October 28, 2004 petition contained all of the claims asserted in the instant amended petition, including (1) juror misconduct; (2) juror bias; (3); DNA evidence indicating actual innocence; (4) his trial lawyer's conflict of interest; and (5) his trial lawyer's ineffective assistance of counsel. The first, second, and third claims, along with an element of the fifth claim, however, had not been exhausted in the Arkansas courts at the time that the original petition was filed. As discussed further in paragraphs 16 and 17, infra, the first and second claim, together with the noted element of the fifth claim, have been exhausted in the state courts as of the time of filing this petition.
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The Second State Motion to Reinvest Jurisdiction in the Trial Court



15. On October 29, 2004, Echols filed a Motion to Recall The Mandate And to Reinvest Jurisdiction in The Trial Court to Consider Petition For Writ of Error Coram Nobis or For Other Extraordinary Relief. The motions were primarily founded on newly discovered evidence of jury misconduct and juror bias at the time of Echols's state court trial. The state Supreme Court denied the motions in an order issued on January 20, 2005. Echols thereafter filed a petition for rehearing as to the January 20, 2005 order, alleging, inter alia, that the state Supreme Court's disposition of the misconduct and bias claims effectively established that Echols's petitioner's trial lawyer had rendered constitutionally ineffective assistance of counsel by failing to present these claims in support of a motion for a new trial. That petition was denied in a state Supreme Court order issued on February 24, 2005.

EXHAUSTION OF CLAIMS IN THE ARKANSAS COURTS



16. As noted, the first and second claims in the original, October 28, 2004 federal petition (see paragraph 14, supra), like those contained in the instant amended petition, were founded respectively on newly discovered evidence indicating that 1) the jury committed prejudicial misconduct during deliberations at both phases of Echols's state trial, and 2) that jurors were actually biased against Echols at both phases of that trial. The original petition's first and second claims, however, differed from the identical claims set forth in the instant petition insofar as the former claims were as yet unexhausted in the Arkansas courts. Such exhaustion has now been accomplished by means of the subsequent motion and state court rulings described in paragraph 15, supra. The fact that the jury misconduct and juror bias claims in the instant petition have been exhausted thus constitutes one of the major differences between the instant petition and that filed on October 28, 2004.

17. As also noted, the fifth claim in Echols's original petition (see paragraph 14, supra) was founded on an allegation of constitutionally ineffective assistance of counsel rendered by Echols's lawyer at Echols's state court trial. The Arkansas Supreme Court's January 20, 2005, order denying the motions to recall the mandate and reinvest jurisdiction in the trial court, as described in paragraph 15, supra, has effectively established the presence of such ineffective assistance in connection with the failure of Echols's trial lawyer to raise claims of jury misconduct and juror bias in a motion for a new trial. That Sixth Amendment claim, now exhausted by the Arkansas Supreme Court's denial on February 24, 2005, of Echols's petition for rehearing as to that Court's January 20, 2005, order, forms a component of petitioner's amended ineffective assistance claim, as set forth in section V., paragraph 91, infra.

TIMELINESS OF PETITION

18. 28 U.S.C. section 2244(d)(1) requires a petitioner to file a federal petition for habeas corpus relief within a year of the latest of four alternative triggering dates, including the date that the disputed state judgment became final upon conclusion of direct review.

19. 28 U.S.C. section 2244(d)(2) states that "[t]he time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."

20. In this matter, petitioner filed his Rule 37 petition in the state courts prior to the conclusion of direct review. See par. 7, supra. The petition was a properly filed application for state post-conviction review within the meaning of section 2244(d), and proceedings founded on the petition did not conclude until the Arkansas Supreme Court issued its opinion on October 30, 2003. See par. 9, supra. Accordingly, pursuant to section 2244(d)(2), the one-year limitations period established by section 2244(d)(1) cannot have commenced any earlier than October 30, 2003.

21. The Arkansas Supreme Court has expressly declared that petitioner's pending state DNA motion was properly filed. See Echols v. State, 350 Ark. 42, 44 (2002)(per curiam) (granting stay of Rule 37 proceedings pending outcome of petition for DNA testing). Furthermore, as stated in Arkansas Code section 16-112-201, the statutory scheme invoked by petitioner's pending DNA motion expressly authorizes a person convicted of a crime to rely on such evidence in order to ". . . vacate and set aside the judgment and to discharge the petitioner or to resentence the petitioner or grant a new trial or correct the sentence or make other disposition as may be appropriate. . . . " Ibid.

22. Given the finding of the Arkansas Supreme Court and the statutory language set forth in Arkansas Code section 16-112-201 et seq., petitioner's still-pending DNA motion, like his Rule 37 petition, facially qualifies as a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment within the meaning of 28 U.S.C. section 2244(d)(2). Furthermore, the DNA motion has been pending since July 25, 2002, i.e., from a date well before the end of the tolling period (October 30, 2003) effected by the proceedings under Rule 37, as described in par. 7-9 and 11-13, supra. Accordingly, the one year limitations period applicable to the instant petition, as established by 28 section 2244(d)(1), has not yet commenced in this matter.

23. Notwithstanding the foregoing analysis, the Supreme Court and Eighth Circuit Court of Appeals have yet to decide whether an Arkansas DNA motion filed pursuant to Ark. Code section 16-112-201 et seq. or a similar state DNA motion meets the criteria set forth in 28 U.S.C. section 2244(d)(2), thereby tolling the one-year limitations period set forth in 28 U.S.C. section 2254(d)(1). In the event that the Supreme Court or Eighth Circuit were to decide that such a motion does not toll that one-year limitations period, Echols's petition for federal habeas corpus relief arguably would have been due in this Court within a year of the date that the Rule 37 proceedings terminated, i.e., by October 30, 2004.

24. Accordingly, acting with an abundance of caution and in light of the sentence imposed in this matter, Echols submitted his original federal habeas petition prior to October 30, 2004. Again, the claims stated in the instant amended petition relate back to the date of filing the original petition for the reasons stated in par. 2, supra. All claims in this petition are timely presented.

REQUEST FOR ORDER HOLDING PETITION IN ABEYANCE PENDING EXHAUSTION OF CERTAIN CLAIMS IN STATE COURT

25. This petition contains exhausted claims as well as one claim as to which petitioner has not yet exhausted his state remedies. The exhausted claims are stated in sections I., II, IV. and V., infra. The unexhausted claim relates to the DNA motion as described in par. 11-13, supra, and as stated in section III. (par. 63-65), infra.

26. Echols requests that the District Court hold his petition in abeyance pursuant to the procedure authorized by Lee v. Norris, 354 F.3d 846 (8th Cir. 2004) .

27. Every circuit other than the Eighth Circuit has authorized the regular use of the "stay-and-abeyance" procedure for mixed petitions. See Pliler v. Ford, 124 S. Ct. 2441, 2450 (2004) (Breyer, J., dissenting); Akins v. Kenney, 341 F.3d 681, 685-86 (8th Cir. 2003). The Supreme Court recently granted certiorari to settle the propriety of the procedure, see Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003), cert. granted 124 S. Ct. 2905 (June 28, 2004), and it appears likely that the Court will approve the stay-and-abeyance procedure.

28. In Ford, the five-member majority decided not to "address[] the propriety of this stay-and-abeyance procedure;" instead, it issued a narrow ruling that District Courts are not required to give pro se litigants specific warnings about the procedure. Ford, 124 S.Ct. at 2446. Justices Breyer, Souter, and Stevens, however, explicitly endorsed the procedure. See id. at 2448 (Stevens, J., concurring); id. at 2449-50 (Breyer, J., concurring). Justices Ginsburg and O'Conner, moreover, both suggested that they would endorse the procedure. See id. at 2448 ("I note, however, that the procedure is not an idiosyncratic one; . . . seven of the eight Circuits to consider it have approved stay?and?abeyance as an appropriate exercise of a district court's equitable powers.") (O'Connor, J., concurring); id. at 2448-49 (Ginsburg, J., dissenting).

29. It thus appears that when the Supreme Court issues its ruling in Rhines, at least five members will endorse the stay-and-abeyance procedure. But even putting aside any predictions about the outcome in Rhines, the Eighth Circuit has itself authorized the procedure in at least some cases. Thus, under Lee v. Norris, a District Court may hold a petition in abeyance when "exceptional circumstances" exist. Id., 354 F.3d at 849.

30. Mr. Echols filed his Motion for DNA Testing under Arkansas Code § 16-112-202 et seq. on July 25, 2002, and that motion is still pending in state court. The motion for DNA testing raises a variety of challenges to his conviction. The DNA motion should, in Mr. Echols's view, qualify as "a properly filed application for State post- conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2). See par. 19-22, supra. Mr. Echols therefore maintains that the AEDPA statute of limitations will be tolled during the pendency of his DNA motion. He maintains, in other words, that his one-year limitations period has not yet begun to run since his DNA motion was filed before the Arkansas Supreme Court rendered its final judgment on his Rule 37 petition.

31. The Eighth Circuit, however, has not yet determined whether a motion under Arkansas Code § 16-112-202 entitles a prisoner to statutory tolling. If Mr. Echols waited to file his habeas petition until after exhausting his DNA claim, the state could argue at that time - and this Court or the Eighth Circuit could rule - that his DNA motion did not come within the tolling provision of § 2244(d)(2). If this Court were to rule at that time that the DNA motion did not qualify for statutory tolling, it would likely calculate the expiration of the § 2244(d)(1) limitations period on October 30, 2004, one year after the Arkansas Supreme Court's final disposition of his Rule 37 petition. In short, if Mr. Echols had waited to commence the instant habeas proceedings until all of his applications for state post-conviction relief, including his still-pending state DNA application, were exhausted, he would risk forfeiting all federal review of the state judgment and the sentence of death imposed upon him.

32. On the other hand, had Mr. Echols commenced these federal habeas proceedings with a petition containing only exhausted claims, he would have been forced to forfeit any claim founded on his still-pending state DNA motion. Such a claim possibly could not be raised in a second or successive petition because such petitions are generally barred by 28 U.S.C. § 2244(b).

33. Mr. Echols thus faced a Hobson's choice. Had he waited to file his original federal petition until his DNA claim was exhausted in the Arkansas courts, he would risk an adverse ruling on § 2244(d)(2) tolling that would deny him all federal relief. But if he filed an original or amended federal petition containing only exhausted claims, he would forfeit all opportunity for federal review of his DNA-related claim still pending in the state courts. No prisoner - and especially no prisoner on death row - should be forced to make such a choice.

34. Mr. Echols is not seeking to circumvent the state court review process or to undermine the principles of comity that underlie the exhaustion doctrine. See Rose v. Lundy, 455 U.S. 509, 515-21 (1982). He has been diligent in pursuing his claims. Mr. Echols has made every effort to comply with both Arkansas's procedural rules and those of AEDPA. The problem he faces is not one of his own making, but is instead the product of an unresolved question of federal law. This unique situation of uncertainty is precisely the sort of "exceptional" case where a District Court should employ the stay-and-abeyance procedure pursuant to Lee v. Norris, supra, thereby permitting Echols to exhaust his DNA application in the Arkansas courts while the instant petition remains pending.
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35. In the alternative, this Court could solve this problem by resolving the currently unresolved question of law. The Court could issue a ruling that Mr. Echols's state court DNA motion will entitle him to statutory tolling under 28 U.S.C. § 2244(d)(2) during the pendency of that motion. It could then dismiss Mr. Echols's amended petition without prejudice to refiling following complete exhaustion. See Slack v. McDaniel, 529 U.S. 473, 488-89 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637, 650-51 (1998); Singleton v. Norris, 319 F.3d 1018, 1028-29 (8th Cir. 2003); Camarano v. Irvin, 98 F.3d 44, 45-47 (2d Cir. 1996). This Court could thereby allow Mr. Echols to complete his state court proceedings without a risk of forfeiting all federal review.

36. Mr. Echols is stuck in a bind created by the AEDPA limitations period, the rule against successive petitions, and the unsettled question of law regarding the status of Arkansas state DNA motions. He seeks to exhaust all claims in state court before pursuing federal remedies, but he obviously seeks to do so in a manner that will comply with AEDPA's various procedural restrictions. He respectfully asks this Court to issue a ruling that will permit him to do so.
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GROUNDS FOR RELIEF

37. This case arises under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, for each of the reasons set forth herein. The Arkansas state courts' adjudications of the exhausted claims set forth in sections I, II, IV. and V., infra, constitute decisions that 1) were contrary to, or involved an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2). Ibid.; see also Williams v. Taylor, 529 U.S. 362 (2000).

38. Furthermore, should the unexhausted claim set forth in sections III., infra, be decided against petitioner in the Arkansas state courts, such decision will be 1) contrary to, or involve an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1), and/or 2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2). Ibid.; see also Williams v. Taylor, 529 U.S. 362 (2000).
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CLAIMS FOR RELIEF

I. THE STATE COURTS UNREASONABLY REJECTED PETITIONER'S CLAIM THAT THE JURY'S EXTRAJUDICIAL RECEIPT AND CONSIDERATION OF THE INADMISSIBLE AND FALSE MISSKELLEY STATEMENT IMPLICATING ECHOLS IN THE CHARGED OFFENSES VIOLATED PETITIONER'S FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, CROSS-EXAMINATION, COUNSEL, AND DUE PROCESS OF LAW, REQUIRING THAT HIS CONVICTIONS BE VACATED

39. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

40. Prior to petitioner's trial, the state tried and convicted Jesse Misskelley for allegedly participating with petitioner and defendant Jason Baldwin in the murders at issue. Misskelley was tried and convicted of murder in a separate trial that concluded shortly before the joint trial of petitioner and Baldwin. See Misskelley v. State, 323 Ark. 449 (1996)(setting forth the evidence adduced at Misskelley trial and disposing of Misskelley's claims on appeal).

41. As the Arkansas Supreme Court noted, see Misskelley v. State, 323 Ark. 449, 459 (1996), the state's case against Misskelley rested almost entirely on a statement which he made to police on June 3, 1993, implicating himself as well as petitioner and Baldwin in the murders for which petitioner and Baldwin were also convicted at their later trial. The Misskelley statement, however, was fundamentally unreliable and, in all respects material to Echols, utterly false.

42. Under firmly established Supreme Court precedent, it would have been error of federal constitutional dimension to admit the Misskelley statement at a joint trial of the declarant (Misskelley) and the codefendants (Echols and Baldwin) unless the declarant were to take the stand and be subject himself to cross-examination by his codefendants, an event which never occurred in this matter. Bruton v. United States, 391 U.S. 123 (1968). Injection of such evidence into the trial proceedings against Echols necessarily would have violated his federal constitutional rights, including those arising under the Sixth Amendment's Confrontation Clause, because the extraordinarily prejudicial nature of a cross-incriminating statement of a non-testifying defendant cannot be dispelled by a trial court admonition limiting the statement's admissibility to the declarant alone. Ibid.

43. It was for the foregoing reason that the state trial court severed the trial of Echols and Baldwin from that of Misskelley. Despite the importance of insulating the Echols-Baldwin proceeding from any taint of the Misskelley statement, however, a reference to the statement was injected into the Echols trial through a prosecution witness's unresponsive answer to a question on cross-examination. While striking the answer from the record and admonishing the jury to ignore it, the trial court justified its ruling denying a defense motion for a mistrial on the ground that the jury had heard mention only of the statement's existence, not its prejudicial contents.

44. Nonetheless, the trial of Echols and Baldwin was plagued by the very unfairness the severance of their case from Misskelley's was designed to avoid. Having learned of its contents through media reports, jurors considered the Misskelley statement and relied on it to convict, as evidenced by the fact that a chart drawn up during jury deliberations and copied into one juror's notes listed the Misskelley statement as a ground upon which to rest a verdict of guilt as to both defendants.

45. The jurors' discussion of the Misskelley statement breached a direct judicial command. In addition, such discussion ran afoul of the Fifth, Sixth, and Fourteenth Amendments and firmly established Supreme Court precedent prohibiting jurors from considering in their deliberations information received from extrajudicial sources such as newspaper or television reports. For instance, in Turner v. Louisiana, 379 U. S. 466 (1965), the Court reversed the defendant's murder conviction and sentence of death where two deputy sheriffs who served as bailiffs during Turner's trial also testified as witnesses for the prosecution. The Court explained:

In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury.

Turner, 379 U.S. at 473; see also Rideau v. Louisiana, 373 U.S. 723 (1963) (relying on due process clause to reverse conviction of defendant where jurors discussed extra-judicial evidence in form of televised news report containing defendant's pre-trial self-incriminating statements); Parker v. Gladden, 385 U.S. 363 (1966) (holding that bailiff's negative comments concerning defendant's character to one deliberating juror and improper comment to another mandated reversal given patent violation of defendant's rights to confrontation, cross-examination, and counsel.)

46. The unfairness caused by the jury's discussion and weighing of the Misskelley statement was even greater than would have resulted had the trial court erroneously admitted the out-of-court statement over hearsay and Confrontation Clause objections. In that instance, the defense, on notice that the statement was before the jury, could have proceeded during its case to demonstrate that every line of the statement was false. Instead, having heard no evidence to the contrary, the jury was left under the delusion that Misskelley had provided the police with credible information establishing his own culpability and that of his codefendants. The devastating impact of the extrajudicial information received by the jury dwarfed the persuasive force of the minimal evidence properly admitted into evidence against Echols. This grossly prejudicial Fifth, Sixth, and Fourteenth Amendment violation mandates the habeas relief sought in the instant petition.

47. In its order of January 20, 2005, the Arkansas Supreme Court did not dispute the validity of petitioner's federal constitutional claim based on juror misconduct, but refused to consider that claim, holding alternatively that: (a) the claim was untimely because it could have been raised before judgment was rendered in the trial court; and (b) Arkansas evidentiary law would have barred relief on the misconduct claim, whenever it was raised. This ruling (1) was contrary to, or involved an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2). Ibid.; see also Williams v. Taylor, 529 U.S. 362 (2000).
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II. THE STATE COURT UNREASONABLY REJECTED PETITIONER'S CLAIM THAT HE WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE JUDGED BY TWELVE IMPARTIAL JURORS CAPABLE OF DECIDING THE CASE SOLELY ON THE EVIDENCE ADMITTED AND THE INSTRUCTIONS GIVEN IN COURT, MANDATING THAT HIS CONVICTIONS BE VACATED

48. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

49. The evidence described in the foregoing claim for relief concerning the extraneous information injected into the deliberations of the Echols jury proves the jury's receipt of, and reliance on, extrajudicial information in patent violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. That same evidence also establishes a related but distinct constitutional deprivation of Echols's right to twelve impartial jurors.

50. During individualized voir dire at Echols's trial, no juror admitted to being aware of the fact that Jesse Misskelley had given a statement or confession to police interrogators, and certainly none disclosed knowledge that any such statement implicated either Echols or Baldwin. Yet during deliberations the Misskelley statement was listed on a jury display board as a reason to convict both Echols and Baldwin. That conduct can now be explained by the fact that three jurors have now admitted at the time of jury selection they were aware of the Misskelley statement.

51. Furthermore, the foreperson has admitted an extensive familiarity with the media reports disseminated on the eve of trial, particularly those details incriminatory of Echols and Baldwin, despite the fact that during jury selection he denied knowing anything about the Misskelley matter other than that Misskelley had been previously convicted of something, although the foreperson did not know what.

52. A second juror at petitioner's trial maintained during voir dire that he had not discussed the case with his father, but recently has stated that in a pre-trial conversation with that juror, his father "spit out" the details of the case. The receipt of that information surely explains the fact that during the trial this juror not only held the opinion that the defendants were guilty, but that they had supporters in the courtroom who were capable of killing the juror as well, leading the juror to be terribly frightened for his own life at a time he was supposed to be dispassionately deciding the guilt or innocence of Echols.

53. A third juror at petitioner's trial has sworn that she decided the guilt of the defendants before hearing closing arguments and the trial court's instructions.

54. Several other jurors admitted during voir dire that they tended to believe that the defendants were guilty, although they promised to set those opinions aside.

55. The United States Supreme Court has held that "[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). "'The theory of the law is that a juror who has formed an opinion cannot be impartial.' Reynolds v. United States, 98 US 145, 155 [1878]." Id. at 722. While a juror who truly can put aside his or her opinions may fairly serve, "those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to [that juror]." Id. at n 3 (quoting Chief Justice Marshall in 1 Burr's Trial 416 (1807).)

56. A pivotal factor in determining a prospective juror's impartiality is his or her candor in responding to questions on voir dire. "Voir dire plays a critical function in assuring the criminal defendant that his [or her] Sixth Amendment right to an impartial jury will be honored." Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). "The necessity of truthful answers by prospective jurors . . . is obvious.'" McDonough Power Equipment, Inc. v. Greenwood 464 U.S. 548, 554 (1984)(plurality) (Rehnquist, J.); see also McDonough, 464 U.S. at 556 (1984) (Blackmun, J., concurring) ("[T]he honesty and dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial."); Clark v. United States, 289 U.S. 1, 11 (1933) (Cardozo, J.) ("The judge who examines on the voir dire is engaged in the process of organizing the court [and] if the answers to the questions are wilfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only.")

57. In Irvin, supra, eight of the twelve jurors selected to sit on the defendant's jury had formed the opinion that he was guilty based on exposure to pretrial publicity, although each stated "that notwithstanding his opinion he could render an impartial verdict." Irvin, 366 U.S. at 724. The Supreme Court vacated the defendant's murder convictions and sentence of death, holding that:

With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two thirds admit, before hearing any testimony, to possessing a belief in his guilt.

Id., 366 U.S. at 728.

58. In light of the foregoing precedent and related cases, the facts alleged in support of the present claim require vacation of Echols's convictions for at least three closely related reasons.

59. First, the responses of certain jurors demonstrate that, contrary to the express assurances they gave to the trial court during voir dire, such jurors had in fact known the details of the devastatingly prejudicial Misskelley statement and of related negative publicity concerning petitioner. Such concealment demonstrates that one or more of the jurors who returned verdicts of guilt against Echols harbored an impermissible bias against him, a prejudicial violation of his rights under the Fifth, Sixth and Fourteenth Amendments.

60. Second, the responses of certain jurors likewise demonstrates that, again contrary to the assurances provided on voir dire, they prejudged defendant's guilt prior to the close of evidence, again constituting a prejudicial violation of Echols's rights under the relevant Constitutional guarantees.

61. Third, the Supreme Court's holding in Irvin, supra, 366 U.S. at 728, establishes that such disavowals of bias as were expressed by the jurors at Echols's trial cannot under any circumstance be deemed conclusive when the exposure of jurors to inadmissible and prejudicial information is so great that a majority of sitting jurors was predisposed to a finding of guilt when selected to serve. That critical mass of bias and prejudgment was reached in this case, yet another reason why Echols's convictions must be set aside.

62. As with petitioner's jury misconduct claim, in its order of January 20, 2005, the Arkansas Supreme Court did not dispute the validity of petitioner's federal constitutional claim based on juror bias, but refused to consider that claim, holding alternatively that: (a) the claim was untimely because it could have been raised before judgment was rendered in the trial court; and (b) Arkansas evidentiary law would have barred relief on the misconduct claim, whenever it was raised. This ruling (1) was contrary to, or involved an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2). Ibid.; see also Williams v. Taylor, 529 U.S. 362 (2000).

III. PETITIONER'S INCARCERATION AND SENTENCE OF DEATH VIOLATE HIS FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT INSOFAR AS FORENSIC EVIDENCE NOT AVAILABLE AT THE TIME OF TRIAL DEMONSTRATES HIS ACTUAL INNOCENCE OF THE CRIMES

63. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

64. Subsequent to his convictions in this matter, petitioner filed a "Motion for DNA Forensic Testing" in the Arkansas Circuit Court for Craighead County pursuant to Arkansas Code section 16-112-202 et seq.

65. The biological material which is the subject of Echols's pending motion for DNA forensic testing will establish that petitioner is actually innocent of the crimes of which he was convicted in the Arkansas trial court and for which he was sentenced to death. The judgment and sentence pursuant to which petitioner remains in custody and subject to execution by the state have thus been imposed in violation of the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guarantee of equal protection and due process of law, and must accordingly be vacated.

IV. THE STATE COURTS UNREASONABLY REJECTED PETITIONER'S CLAIM THAT HIS TRIAL COUNSEL LABORED UNDER VARIOUS CONFLICTS OF INTEREST WHICH DENIED PETITIONER HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

66. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

67. Petitioner alleges that all of his convictions were obtained in violation of his Fifth, Sixth and Fourteenth Amendment rights to the effective assistance of counsel in light of trial counsel's multiple conflicts of interest. The United States Supreme Court enunciated the standard for establishing such a violation in Cuyler v. Sullivan, 446 U.S. 335 (1980), and related precedent. The standard articulated in Sullivan holds that to establish a Sixth Amendment violation based on a conflict not exposed on the record in the trial court, a defendant must show: (1) the presence of an actual conflict of interest; and (2) that the conflict resulted in an adverse effect upon the lawyer's performance. Once the defendant establishes such an adverse effect, he need not establish prejudice, which is presumed to result from the conflict. 446 U.S. at 349-50; Mickens v. Taylor, 535 U.S. 162, 172-73 (2002).

68. A defendant can establish an "adverse affect" on his counsel's representation by demonstrating that "a specific and seemingly valid or genuine alternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests." United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990) (citing Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982)). Alternatively, a defendant can show that "some plausible alternative defense strategy or tactic - 'a viable alternative' - might have been pursued. Perillo v. Johnson, 79 F.3d 41, 449 (5th Cir. 1996); see also United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988), cert. denied, 492 U.S. 906 (1989) (holding that to prevail on claim under Cuyler, the defendant simply needs to show that an alternative was available to counsel and that it 'possessed sufficient substance to be a viable alternative' [quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985)])

69. The defendant need not show that any such "available strategy" is likely to have resulted in a different outcome at trial. See, e.g., Rosenwald v. United States, 898 F.2d 585, 589 (7th Cir. 1990)(per curiam)(relief required even though strength of the state's case makes it improbable the conflict caused any harm to the accused); Thomas v. Foltz, 818 F.2d 476, 483 (6th Cir. 1987) (pressure to plead guilty, brought to bear by conflicted attorney, requires reversal even though strength of state's case makes it obvious non-conflicted attorney would have given same advice); United States v. Cancilla, 725 F.2d 867, 871 (2d Cir. 1984)(when conflict induced attorney to retreat from particular defense, reversal is mandated; "it is irrelevant that such a defense is unlikely to prevail and was unsuccessfully urged by [co-defendant]"; Westbrook v. Zant, 704 F.2d 1487, 1499, & n. 14 (11th Cir. 1983) (reversible error if conflict prompted counsel to refrain from raising a particular defense, even if that defense would not have proven successful); Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982) (to prevail on conflict claim, petitioner need only show conflicted attorney failed to pursue plausible strategy, not that strategy would have been successful).

70. In this matter, Echols alleges that his trial counsel labored under numerous conflicts of interest which adversely affected his performance in the course of his representation of Echols and within the meaning of Sullivan and related precedent, as set forth below:
/ /

The HBO Contract

71. Prior to trial, trial counsel induced Echols's agreement to conclude a contract with Creative Thinking International, a production company engaged by Home Box Office ("HBO") to make a film about petitioner's case and trial. In exchange for, inter alia, Echols's participation in the making of the film, including Echols's engagement in interviews and agreement to placement of cameras in the courtroom, HBO agreed to pay Echols $7,500. Trial counsel used some of the funds paid under the contract as compensation for expenses he incurred during the trial. In accordance with the terms of the contract, trial counsel did not disclose the existence and terms of the contract to the trial court during petitioner's trial.

72. The HBO contract spawned an actual conflict between trial counsel's interest in pursuing the best possible defense for Echols and counsel's interest in the benefits he sought to reap from the contract including, inter alia, his long term pecuniary, professional, and social interests in release of a successful film. This actual conflict, moreover, resulted in several adverse effects on counsel's representation of Echols, including the following:

a. Publicity concerning the underlying incidents in this matter was ubiquitous, intense and, to the extent it concerned petitioner's background and character, overwhelmingly negative. Though the trial in the Misskelley matter had concluded a mere two weeks earlier, trial counsel failed to move for a continuance of the Echols trial date because he wished to conclude the trial before the film's release. As he expressly conceded and the state Supreme Court expressly found (Echols v. State, supra, 354 Ark. at 546), trial counsel reasoned that the impending and pre-scheduled release of the film, production of which had been facilitated by counsel himself, would undermine petitioner's defense at trial; as counsel stated, he "wanted the trial over before the film was shown" because the film, including its depiction of interviews with Echols, might have an impact on the jury. Counsel's failure to seek the continuance led to the impanelment of jurors who, as alleged elsewhere in this petition, harbored a significant bias against Echols and/or who, during deliberations, considered extraneous prejudicial material in the form of the confession elicited from Misskelley.

b. As a result of the HBO contract, trial counsel relied on the meager funds to be paid from the HBO contract for such things as pretrial investigation, discovery, and expert witnesses at both the guilt and penalty phases of Echols's trial, thereby causing counsel to forego funds that were available from the trial court upon request.

c. As a result of the HBO contract, trial counsel devoted time otherwise available for trial preparation to participation in the production of the HBO film, including, inter alia, the staging of defense strategy meetings and other projects relating to such production.
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last post, cont'd.

Postby Obscuregawdess » Tue May 27, 2008 1:29 pm

d. Adherence to the HBO contract also led counsel to refrain from challenging the use of cameras in the courtroom during Echols's trial, which adversely affected the jurors' capacity to neutrally and fairly evaluate the evidence in the case.

Prior Representation of Michael Carson

73. Michael Carson was a critical prosecution witness at Echols's trial. Specifically, Carson testified that Jason Baldwin, Echols's co-defendant, confessed his participation in the crime alleged against both Echols and Baldwin. Other state testimony established that Echols and Baldwin were best friends who spent virtually all of their available time together, and that they had been together shortly before the time of the homicides. Carson's testimony as to Baldwin's purported confession thus constituted devastatingly prejudicial evidence not only against Baldwin but against Echols as well. The Carson testimony was used as the basis for opinion evidence offered against Echols.

74. Notwithstanding Carson's pivotal role at trial, Echols's trial counsel labored under a conflict of interest arising from his prior representation of Carson in a juvenile criminal matter, a conflict which trial counsel never disclosed to Echols. That conflict adversely affected trial counsel's performance by causing trial counsel to refrain from conducting any cross-examination of Carson, despite such counsel's knowledge of matters, including Carson's prior criminal history, that would have gravely undermined Carson's credibility before the jury.

Representation of Mark Byers' Co-Defendant in Civil Action Pending at time of Petitioner's Trial

75. John Mark Byers was a critical witness at Echols's state trial. Among other things, defense counsel and, for a time, law enforcement viewed Byers as the possible perpetrator of the crimes alleged against Echols. Byers's interests were thus diametrically opposed to Echols's interests at Echols's state court trial. Trial counsel, however, labored under a conflict of interest arising from his representation of two co-defendants of Byers on whose behalf Byers had testified in a civil matter involving an alleged burglary of a jewelry store. The civil matter had not been concluded at the time that Echols's trial counsel questioned Byers at Echols's trial. Trial counsel never disclosed the conflict to Echols.

76. Trial counsel's loyalty to his civil clients and, by extension, to Byers adversely affected counsel's representation of Echols at trial. While counsel conducted some examination of Byers concerning his possible involvement in the case, his divided loyalties led him to refrain from actively and zealously questioning and impeaching Byers on all relevant matters, including the full history of Byers's prior criminal and violent conduct; Byers's medical condition, including his affliction with brain tumors which, as trial counsel knew, could be associated with violent and criminal conduct; and Byers's involvement in the civil case in which counsel represented Byers' codefendant.

V. THE STATE COURTS UNREASONABLY REJECTED PETITIONER'S CLAIM THAT HE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF STRICKLAND V. WASHINGTON

77. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

78. Petitioner alleges that all of his convictions were obtained in violation of his federal constitutional right under the Sixth Amendment to the effective assistance of counsel under an additional analysis established by Supreme Court precedent. In Strickland v. Washington, 466 U.S. 668 (1984), the Court held that in order to succeed in challenging a conviction on this basis, (1) The defendant must show that counsel's performance fell outside the wide range of professional competence; and (2) the defendant must prove that his trial counsel's conduct was prejudicial to his case, i.e., that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 688-93. Stated otherwise, ". . . to establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance fell below an objective standard of reasonable competence, and that the deficient performance prejudiced the defendant." United States v. Villalpando, 259 F.3d 934, 938 (8th Cir. 2001) (citing Strickland, 466 U.S. at 687).

79. Under Strickland, decisions may not be viewed as "tactical," and hence do not merit deference, when they are the product of counsel's ignorance or lack of preparation. Wade v. Armontrout, 798 F.2d 304, 307 (8th Cir. 1986); see also United States v. Gray, 878 F.2d 702 , 711 (3d Cir. 1989). Furthermore, a "reasonable probability" of a different outcome does not require a showing that counsel's conduct more likely than not altered the outcome in the case, but simply "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 693-4; see also Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (A "reasonable probability" is less than a preponderance of the evidence)

80. Petitioner alleges that his trial counsel rendered objectively deficient assistance in the following instances, the prejudicial impact of which, considered alone and cumulatively, mandates reversal under Strickland:
/ /
/ /

Jury Voir Dire

81. First, trial counsel unreasonably failed to conduct a constitutionally adequate voir dire of prospective jurors or submit to jurors a constitutionally adequate pre-trial questionnaire, despite the presence of extensive prejudicial publicity concerning Echols, as set forth above. Of great importance, such publicity included extensive reporting both of the Misskelley confession implicating defendant as a primary participant in the homicides and Misskelley's potential appearance as a witness for the prosecution in the case.

82. Notwithstanding these developments, trial counsel rendered deficient performance by, inter alia, a) unreasonably failing to conduct an adequate inquiry into the bias of potential jurors; b) unreasonably failing to determine the extent and effect of potential jurors' exposure to news accounts surrounding the case, including but not limited to the Misskelley confession, and to other extraneous matter; c) unreasonably failing to recognize the harm that would be effected by intentionally selecting jurors even after counsel learned of their exposure to
prejudicial matters; and d) unreasonably failing to excuse potential jurors in view of that harm.

83. The foregoing errors and omissions were prejudicial to petitioner within the meaning of Strickland because, among other things, and as set forth above, they resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

Failure to Move for Continuance

84. Second, trial counsel unreasonably failed to move for a continuance of petitioner's trial to permit the negative publicity surrounding the case to subside. This omission prejudiced petitioner under Strickland not only because the presence of such publicity swayed jurors against petitioner as a general matter, but also because it resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

Failure to Seek Second Change of Venue

85. Third, trial counsel unreasonably failed to move for a second change of venue out of Craighead County despite the intense negative publicity surrounding the case in that locale and the juror responses on voir dire establishing that most had formed an opinion as to petitioner's guilt. Here again, the omission prejudiced petitioner under Strickland because, inter alia, it likewise resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

Failure to Retain and Use Experts

86. Fourth, trial counsel unreasonably failed to investigate, select, retain, and make appropriate use of experts, including a forensic odontologist, forensic entomologist, and/or forensic pathologist in connection with petitioner's trial. The omission was prejudicial under Strickland because, inter alia, it prevented Echols from rebutting the unreliable and highly prejudicial expert evidence adduced by the state at trial and from corroborating petitioner's claim that he was actually innocent of the alleged crimes.

Failure to Challenge Expert Testimony Relating to the Occult

87. Fifth, trial counsel unreasonably 1) failed to adequately challenge the proposed introduction of purported expert testimony from prosecution witness Dale Griffis, who rendered a variety of speculative and damaging opinions linking both defendant and the homicides to occult practices; and 2) failed to challenge the trial court's instructions concerning the permissible uses of such testimony. The bases for such challenges was readily available to counsel in light of the Arkansas Supreme Court's holding in Prater v. State, 307 Ark. 180 (1991), which adopted a standard of expert testimony admissibility similar to that adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

88. These failures prejudiced Echols within the meaning of Strickland because, inter alia, they led directly to the jury's consideration of Griffis' fundamentally unreliable and highly inflammatory testimony. The failure further prejudiced Echols because, in his testimony, Griffis relied on the Michael Carson statement implicating Jason Baldwin in concluding that the homicides were occult-related, thereby permitting the jury to rely on that statement as a basis for incriminating petitioner, notwithstanding the fact that the statement should have been deemed flatly inadmissible against petitioner for any purpose pursuant to the dictates of the Fifth, Sixth and Fourteenth Amendments.

Unreasonable Presentation of Evidence at Sentencing

89. Sixth, at sentencing, trial counsel unreasonably introduced testimony from defense expert James Moneypenny concerning petitioner's mental health history; unreasonably failed to object to cross-examination of Moneypenny concerning excerpts drawn from Echols's mental health records; and unreasonably failed to seek a limiting instruction as to the use of the Moneypenny testimony. These failures prejudiced Echols under Strickland because, inter alia, Moneypenny's testimony and cross-examination disclosed grossly inflammatory and otherwise inadmissible material that patently undermined rather than advanced the effort to mitigate the evidence relating to penalty.

Failure to Investigate and Present Mitigating Evidence at Sentencing

90. Seventh, trial counsel unreasonably failed to investigate and present substantial mitigating evidence on Echols's behalf at sentencing. This failure prejudiced Echols within the meaning of Strickland because, inter alia, it undermined the defense effort to challenge evidence in aggravation which was introduced by the state and which resulted in the sentence of death ultimately imposed by the trial court.

Failure to Move for a New Trial Based on Evidence of Juror Misconduct and Bias

91. Eighth, trial counsel unreasonably failed to seek a new trial based on
evidence of juror misconduct and/or juror bias. The Arkansas Supreme Court's January 20, 2005 ruling denying petitioner's motion to recall the mandate and to reinvest jurisdiction in the trial court for purposes of convening coram nobis proceedings, as described in paragraph 15, supra, effectively establishes the unreasonableness of counsel's omission in this regard. This omission prejudiced Echols within the meaning of Strickland for the reasons set forth in paragraphs 39-62, supra.

92. In its order of February 24, 2005, the Arkansas Supreme Court refused to consider this aspect of petitioner's claim of ineffective assistance of counsel on the merits, holding that it could have and should have been raised at an earlier stage of the proceedings. This ruling (1) was contrary to, or involved an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2). Ibid.; see also Williams v. Taylor, 529 U.S. 362 (2000).

INCORPORATION OF STATE RECORD

93. Petitioner hereby incorporates by reference the entire state court record relating to the allegations contained in the instant petition, including but not limited to all related proceedings in the Crittenden County Circuit Court, Arkansas, the Craighead County Circuit Court, Arkansas, and the Arkansas Supreme Court, as well as all proceedings reported and described in Echols v. State, 326 Ark. 917 (1996), Echols v. State, 344 Ark. 513 (2001), Echols v. State, 350 Ark. 42 (2002), Echols v. State, 354 Ark. 414 (2003), Echols v. State, 354 Ark. 530 (2003).

CONCLUSION

Petitioner has no plain, speedy and adequate remedy to obtain his immediate release from the conditions of custody presently imposed on him.

WHEREFORE, petitioner respectfully requests that this Court:

1. Issue an order holding the instant petition in abeyance to permit petitioner to exhaust all of his present claims in the Arkansas state courts; or, alternatively, issue an order finding that petitioner' pending state DNA proceeding tolls the statutory deadline for seeking habeas relief in this Court under the AEDPA, and dismissing the instant petition without prejudice to its timely refiling after the conclusion of that state court proceeding;

2. Grant leave to amend the petition, as may be appropriate;

3. Issue its writ of habeas corpus or an order to show cause to the Attorney General of Arkansas to inquire into the lawfulness of petitioner's convictions;

4. Convene an evidentiary hearing to resolve all disputed issues of fact;

5. After full consideration of petitioner's claims, set aside petitioner's convictions and/or sentence of death; and

6. Grant petitioner whatever further relief is appropriate in the interest of justice.

DATED: February 25, 2005

Respectfully submitted,

DENNIS P. RIORDAN
DONALD M. HORGAN

By _______________

DENNIS P. RIORDAN, Cal. SBN 69320
RIORDAN & HORGAN
523 Octavia Street
San Francisco, CA 94102
(415) 431-3472

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

VERIFICATION
DENNIS P. RIORDAN declares under penalty of perjury:
I am counsel for petitioner Damien Wayne Echols. My offices are in San Francisco County, California. In my capacity as attorney for petitioner I am making this verification on his behalf because these matters are more within my knowledge than his.
I have read the foregoing petition for a writ of habeas corpus, and declare that the contents of the petition are true to the best of my knowledge.

Executed this 25th day of February, 2005, at San Francisco, California.



_______________________
Dennis P. Riordan
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Petition for a Writ of Habeas Corpus (Echols)

Postby Obscuregawdess » Tue May 27, 2008 1:32 pm

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THIS IS A CAPITAL CASE

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

DAMIEN WAYNE ECHOLS, Petitioner,
vs.
GRANT HARRIS, Warden, Varner Unit, Arkansas Department of Corrections, Respondent.

PETITION FOR A WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY



DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
THERESA GIBBONS
(CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472

DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
(Local Counsel)

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

INTRODUCTION

1. Damien Wayne Echols, petitioner, by and through his undersigned counsel, hereby presents the instant petition for habeas corpus relief pursuant to 28 U.S.C. section 2254.

2. Petitioner is unlawfully incarcerated and restrained in violation of the United States Constitution by Grant Harris, Warden of the Arkansas state prison known as the Varner Unit located in Grady, Arkansas.

PROCEDURAL HISTORY

3. Following is a summary of the state court proceedings relating to the instant petition:

Petitioner’s Conviction and Direct State Court Appeal

4. On March 19, 1994, following trial by jury, an Arkansas trial court sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered judgment against petitioner for three counts of first degree murder in connection with the homicides of three eight-year old boys in West Memphis, Arkansas, in May, 1993. On that same date, the trial court sentenced petitioner to death for the crimes.

5. Echols timely appealed from the judgment and sentence, which were affirmed by the Arkansas Supreme Court in an opinion issued on December 23, 1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

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Petitioner thereafter challenged the state Supreme Court’s appellate ruling by filing a timely petition for a writ of certiorari in the United States Supreme Court, which petition was denied in an order issued on May 27, 1997.

The Concluded State Proceedings Relating to Petitioner’s Motion for Post-Conviction Relief Under Rule 37

6. Meanwhile, on March 11, 1997, well prior to the conclusion of direct appellate proceedings on May 27, 1997, Echols filed a motion for post-conviction relief from the trial court’s judgment and sentence, pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. (“Rule 37") Petitioner’s final Rule 37 petition, which raised many of the claims presented in the instant petition, was denied by the Craighead County Circuit Court in an order issued on June 17, 1999.

7. Petitioner timely appealed from the Circuit Court’s June 17, 1999 order. On April 26, 2001, the Arkansas Supreme Court affirmed one portion of the district court’s ruling but otherwise reversed and remanded in light of the Circuit Court’s failure to make required factual findings as to petitioner’s claims. See Echols v. State, 344 Ark. 513 (2001).

8. Following remand, in an order issued on July 30, 2001, the Circuit Court issued a new order again rejecting all of petitioner’s claims under Rule 37. Petitioner timely appealed this order but it was affirmed in an order issued on

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October 30, 2003, as reported at Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).

The Concluded State Motion to Reinvest Jurisdiction in the Circuit Court

9. Meanwhile, on February 27, 2001, while the Rule 37 proceedings described above were pending, Echols petitioned the Arkansas Supreme Court for an order reinvesting jurisdiction in the Circuit Court to allow him to seek a writ of error coram nobis. The state Supreme Court denied that petition in an opinion issued on October 16, 2003 (i.e., before the conclusion of the Rule 37 proceedings) and reported at Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003).

The Pending State Motion to Permit Forensic Testing

10. On July 25, 2002, and likewise while the Rule 37 proceedings remained pending, petitioner filed a “Motion for Forensic DNA Testing” (hereinafter “DNA motion) in the Arkansas Circuit Court pursuant to Arkansas Code section 16-112-201 et seq. Invoking the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection and due process of law, the motion asserted that the judgment and sentence should be vacated because petitioner was actually innocent of the crimes.

11. On January 27, 2003, the Craighead County Circuit Court judge who presided at

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petitioner’s trial ordered the impoundment and preservation of all material that could afford a basis for petitioner’s actual innocence claim pursuant to this statutory scheme.

12. Testing of the material subject to the Circuit Court’s preservation order and related trial court proceedings remain in progress as of the time of filing the instant petition.

TIMELINESS OF PETITION

13. 28 U.S.C. section 2244(d)(1) requires a petitioner to file a federal petition for habeas corpus relief within a year of the latest of four alternative triggering dates, including the date that the disputed state judgment became final upon conclusion of direct review.

14. 28 U.S.C. section 2244(d)(2) states that the time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

15. In this matter, petitioner filed his Rule 37 petition in the state courts prior to the conclusion of direct review. (See par. 6, supra.) The petition was a properly filed application for state post-conviction review within the meaning of section 2244(d), and proceedings founded on the petition did not conclude until

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the Arkansas Supreme Court issued its opinion on October 30, 2003. Ibid. Accordingly, pursuant to section 2244(d)(2), the one-year limitations period established by section 2244(d)(1) cannot have commenced any earlier than October 30, 2003.

16. The Arkansas Supreme Court has expressly declared that petitioner’s pending state DNA motion was properly filed. See Echols v. State, 350 Ark. 42, 44 (2002)(per curiam) (granting stay of Rule 37 proceedings pending outcome of petition for DNA testing). Furthermore, as stated in Arkansas Code section 16-112-201, the statutory scheme invoked by petitioner’s pending DNA motion expressly authorizes a person convicted of a crime to rely on such evidence in order to “. . . vacate and set aside
the judgment and to discharge the petitioner or to resentence the petitioner or grant a new trial or correct the sentence or make other disposition as may be appropriate. . . . ” Ibid.

17. Given the finding of the Arkansas Supreme Court and the statutory language set forth in Arkansas Code section 16-112-201 et seq., petitioner’s pending DNA motion facially qualifies as a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment within the meaning of 28 U.S.C. section 2244(d)(2). Furthermore, the DNA motion has been pending since July 25, 2002, i.e., from a date well before the end of the

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tolling period (October 30, 2003) effected by the proceedings under Rule 37, as described in par. 6-8, supra. Accordingly, the one year limitations period applicable to the instant petition, as established by 28 section 2244(d)(1), has not yet commenced in this matter.

18. Notwithstanding the foregoing analysis, the Supreme Court and Eighth Circuit Court of Appeals have yet to decide whether an Arkansas DNA motion filed pursuant to Ark. Code section 16-112-201 et seq. or a similar state DNA motion meets the criteria set forth in 28 U.S.C. section 2244(d)(2), thereby tolling the one-year limitations period set forth in 28 U.S.C. section 2254(d)(1). In the event that the Supreme Court or Eighth Circuit were to decide that such a motion does not toll that one-year limitations period, Echols’s petition for federal habeas corpus relief would arguably be due in this Court within a year of the date that the Rule 37 proceedings terminated, i.e., by October 30, 2004.

19. Accordingly, acting with an abundance of caution and in light of the sentence imposed in this matter, Echols is submitting the instant petition prior to October 30, 2004, thereby avoiding any possible challenge to its timeliness.

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REQUEST FOR ORDER HOLDING PETITION
IN ABEYANCE PENDING EXHAUSTION
OF CERTAIN CLAIMS IN STATE COURT

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20. As a result of filing this petition while challenges to petitioner’s convictions are still pending in the state courts of Arkansas, this petition contains claims as to which petitioner has exhausted his state remedies as well as unexhausted claims. The exhausted claims are stated in sections IV. and V. (par. 59-83), infra. The unexhausted claims are stated in sections I., II., and III. (par. 34-58), infra.

21. Echols requests that the district court hold his petition in abeyance pursuant to the procedure authorized by Lee v. Norris, 354 F.3d 846 (8th Cir. 2004) .

22. Every circuit other than the Eighth Circuit has authorized the regular use of the “stay-and-abeyance” procedure for mixed petitions. See Pliler v. Ford, 124 S. Ct. 2441, 2450 (2004) (Breyer, J., dissenting); Akins v. Kenney, 341 F.3d 681, 685-86 (8th Cir. 2003). The Supreme Court recently granted certiorari to settle the propriety of the procedure, see Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003), cert. granted 124 S. Ct. 2905 (Oct. 4, 2004), and it appears likely that the Court will approve the stay-and-abeyance procedure.

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23. In Ford, the five-member majority decided not to “address[] the

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propriety of this stay and abeyance procedure;” instead, it issued a narrow ruling that district courts are not required to give pro se litigants specific warnings about the procedure. Ford, 124 S.Ct. at 2446. Justices Breyer, Souter, and Stevens, however, explicitly endorsed the procedure. See id. at 2448 (Stevens, J., concurring); id. at 2449-50 (Breyer, J., concurring). Justices Ginsburg and O’Conner, moreover, both suggested that they would endorse the procedure. See id. at 2448 (“I note, however, that the procedure is not an idiosyncratic one; . . . seven of the eight Circuits to consider it have approved stay and abeyance as an appropriate exercise of a district court’s equitable powers.”) (O’Connor, J., concurring); id. at 2448-49 (Ginsburg, J., dissenting).

24. It thus appears that when the Supreme Court issues its ruling in Rhines, at least five members will endorse the stay-and-abeyance procedure. But even putting aside any predictions about the outcome Rhines, the Eighth Circuit has itself authorized the procedure in at least some cases. Thus, under Lee v. Norris, a district court may hold a petition in abeyance when “exceptional circumstances” exist. 354 F.3d at 849.

25. Mr. Echols filed his Motion for DNA Testing under Arkansas Code 16-112-202 et seq. on July 25, 2002, and that motion is still pending in state court. The motion for DNA testing raises a variety of challenges to his conviction. The

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DNA motion should, in Mr. Echols’s view, qualify as “a properly filed application for State post- conviction or other collateral review” within the meaning of 28 U.S.C. 2244(d)(2). Mr. Echols therefore maintains that the AEDPA statute of limitations will be tolled during the pendency of his DNA motion. He maintains, in other words, that his one-year limitations period has not yet begun to run since his DNA motion was filed before the Arkansas Supreme Court rendered its final judgment on his Rule 37 petition.

26. The Eighth Circuit, however, has not yet determined whether a motion under Arkansas Code 16-112-202 entitles a prisoner to statutory tolling. If Mr. Echols waited to file his habeas petition until after exhausting his DNA claims, the state could argue at that time—and this court or the Eighth Circuit could rule—that his DNA motion did not come within the tolling provision of 2244(d)(2). If this court ruled at that time that the DNA motion did not qualify for statutory tolling, it would likely set the expiration of the 2244(d)(1) limitations period on October 30, 2004, one year after the Arkansas Supreme Court’s final disposition of his Rule 37 petition. Such a ruling would render Mr. Echols’s entire petition time-barred. In short, if Mr. Echols waited to file his habeas petition until after exhausting his DNA claims, he would risk forfeiting all federal review.

27. On the other hand, if Mr. Echols were to file a federal petition now

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containing only exhausted claims, he would be forced to forfeit any claims relating to his DNA motion and other federal constitutional claims yet to be decided by the Arkansas courts. Such claims could not be raised in a second or successive petition; such petitions are barred by 28 U.S.C. 2244(b).

28. Mr. Echols thus faces a Hobson’s choice. If he waits to file his petition until his DNA claims are exhausted in state court, he risks an adverse ruling on 2244(d)(2) tolling that would deny him all federal relief. But if he files a petition now including only exhausted claims, he forfeits all opportunity for federal review of his DNA-related and other claims still pending in state court. No prisoner—and especially no prisoner on death row—should be forced to make such a choice.

29. Mr. Echols is not seeking to circumvent the state court review process or to undermine the principles of comity that underlie the exhaustion doctrine. See Rose v. Lundy, 455 U.S. 509, 515-21 (1982). He has been diligent in pursuing his claims. Mr. Echols has made every effort to comply with both Arkansas’s procedural rules and those of AEDPA. The problem he faces is not one of his own making—it is the result of an unresolved question of federal law. This unique situation of uncertainty is precisely the sort of “exceptional” case where a district court should employ the stay-and-abeyance procedure under Lee v. Norris, supra.

30. In the alternative, this court could solve this problem by resolving the

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currently unresolved question of law. This court could issue a ruling that Mr. Echols’s state court DNA motion will entitle him to statutory tolling under 28 U.S.C. 2244(d)(2) during the pendency of that motion. It could then dismiss Mr. Echols’s petition without prejudice to refiling following complete exhaustion. See Slack v. McDaniel, 529 U.S. 473, 488-89 (2000); Stewart v. Martinez Villareal, 523 U.S. 637, 650-51 (1998); Singleton v. Norris, 319 F.3d 1018, 1028-29 (8th Cir. 2003); Camarano v. Irvin, 98 F.3d 44, 45-47 (2d Cir. 1996). This court could thereby allow Mr. Echols to complete his state court proceedings without a risk of forfeiting all federal review.

31. Mr. Echols is stuck in a bind created by the AEDPA limitations period, the rule against successive petitions, and the unsettled question of law regarding the status of Arkansas state DNA motions. He seeks to exhaust all claims in state court before pursuing federal remedies, but he obviously seeks to do so in a manner that will comply with AEDPA’s various procedural restrictions. He respectfully asks this Court to issue a ruling that will allow him to do so.

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GROUNDS FOR RELIEF

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32. This case arises under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, for each of the reasons set forth herein. The Arkansas state courts’ adjudications of the exhausted claims set forth in sections IV. and V., infra, constitute decisions that 1) were contrary to, or involved an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2).

33. Furthermore, should the unexhausted claims set forth in sections I., II., and/or III., infra, be decided against petitioner in the Arkansas state courts, such decisions will be 1) contrary to, or involve an unreasonable application of, clearly established federal law, within the meaning of 28 U.S.C. § 2254(d)(1) and/or 2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings within the meaning of 28 U.S.C. § 2254(d)(2).

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CLAIMS FOR RELIEF

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I. THE JURY’S EXTRAJUDICIAL RECEIPT AND CONSIDERATION OF THE INADMISSIBLE AND FALSE MISSKELLEY STATEMENT IMPLICATING ECHOLS IN THE CHARGED OFFENSES VIOLATED PETITIONER’S FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, CROSS-EXAMINATION, COUNSEL, AND DUE PROCESS OF LAW, REQUIRING THAT HIS CONVICTIONS BE VACATED



34. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

35. Prior to petitioner’s trial, the state tried and convicted Jesse Misskelley for allegedly participating with petitioner and defendant Jason Baldwin in the murders at issue. Misskelley was tried and convicted of murder in a separate trial that concluded shortly before the joint trial of petitioner and Baldwin. See Misskelley v. State, 323 Ark. 449 (1996)(setting forth the evidence adduced at Misskelley trial and disposing of Misskelley’s claims on appeal).

36. As the Arkansas Supreme Court noted, see Misskelley v. State, 323 Ark. 449, 459 (1996), the state’s case against Misskelley rested almost entirely on a statement which he made to police on June 3, 1993, implicating himself as well as petitioner and Baldwin in the murders for which petitioner and Baldwin were also convicted at their later trial. The Misskelley statement, however, was fundamentally unreliable and, in all respects material to Echols, utterly false.

37. Under firmly established Supreme Court precedent, it would have been

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error of federal constitutional dimension to admit the Misskelley statement at a joint trial of the declarant (Misskelley) and the codefendants (Echols and Baldwin) unless the declarant were to take the stand and be subject himself to cross-examination by his codefendants, an event which never occurred in this matter. Bruton v. United States, 391 U.S. 123 (1968). Injection of such evidence into the trial proceedings against Echols necessarily would have violated his federal constitutional rights, including those arising under the Sixth Amendment’s Confrontation Clause, because the extraordinarily prejudicial nature of a cross-incriminating statement of a non-testifying defendant cannot be dispelled by a trial court admonition limiting the statement’s admissibility to the declarant alone. Ibid.

38. It was for the foregoing reason that the state trial court severed the trial of Echols and Baldwin from that of Misskelley. Despite the importance of insulating the Echols-Baldwin proceeding from any taint of the Misskelley statement, however, a reference to the statement was injected into the Echols trial through a prosecution witness’s unresponsive answer to a question on cross-examination. While striking the answer from the record and admonishing the jury to ignore it, the trial court justified its ruling denying a defense motion for a mistrial on the ground that the jury had heard mention only of the statement’s existence, not

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its prejudicial contents.

39. Nonetheless, the trial of Echols and Baldwin was plagued by the very unfairness the severance of their case from Misskelley’s was designed to avoid. Having learned of its contents through media reports, jurors considered the Misskelley statement and relied on it to convict, as evidenced by the fact that a chart drawn up during jury deliberations and copied into one juror’s notes listed the Misskelley statement as a ground upon which to rest a verdict of guilt as to both defendants.

40. The jurors’ discussion of the Misskelley statement breached a direct judicial command. In addition, such discussion ran afoul of the Fifth, Sixth, and Fourteenth Amendments and firmly established Supreme Court precedent prohibiting jurors from considering in their deliberations information received from extrajudicial sources such as newspaper or television reports. For instance, in Turner v. Louisiana, 379 U. S. 466 (1965), the Court reversed the defendant’s murder conviction and sentence of death where two deputy sheriffs who served as bailiffs during Turner's trial also testified as witnesses for the prosecution. The Court explained:
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In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury.



Turner, 379 U.S. at 473; see also Rideau v. Louisiana, 373 U.S. 723 (1963) (relying on due process clause to reverse conviction of defendant where jurors discussed extra-judicial evidence in form of televised news report containing defendant’s pre-trial self-incriminating statements); Parker v. Gladden, 385 U.S. 363 (1966) (holding that bailiff’s negative comments concerning defendant’s character to one deliberating juror and improper comment to another mandated reversal given patent violation of defendant’s rights to confrontation, cross-examination, and counsel.)

41. The unfairness caused by the jury’s discussion and weighing of the Misskelley statement was even greater than would have resulted had the trial court erroneously admitted the out-of-court statement over hearsay and Confrontation Clause objections. In that instance, the defense, on notice that the statement was before the jury, could have proceeded during its case to demonstrate that every line of the statement was false. Instead, having heard no evidence to the contrary, the jury was left under the delusion that Misskelley had provided the police with credible information establishing his own culpability and that of his codefendants.

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The devastating impact of the extrajudicial information received by the jury dwarfed the persuasive force of the minimal evidence properly admitted into evidence against Echols. This grossly prejudicial Fifth, Sixth, and Fourteenth Amendment violation mandates the habeas relief sought in the instant petition.

II. ECHOLS WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE JUDGED BY TWELVE IMPARTIAL JURORS CAPABLE OF DECIDING THE CASE SOLELY ON THE EVIDENCE ADMITTED AND THE INSTRUCTIONS GIVEN IN COURT, MANDATING THAT HIS CONVICTIONS BE VACATED

42. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

43. The evidence described in the foregoing claim for relief concerning the extraneous information injected into the deliberations of the Echols jury proves the jury’s receipt of, and reliance on, extrajudicial information in patent violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. That same evidence also establishes a related but distinct constitutional deprivation of Echols’s right to twelve impartial jurors.

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44. During individualized voir dire at Echols’s trial, no juror admitted to being aware of the fact that Jesse Misskelley had given a statement or confession to police interrogators, and certainly none disclosed knowledge that any such

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statement implicated either Echols or Baldwin. Yet during deliberations the Misskelley statement was listed on a jury display board as a reason to convict both Echols and Baldwin. That conduct can now be explained by the fact that three jurors have now admitted at the time of jury selection they were aware of the Misskelley statement.

45. Furthermore, the foreperson has admitted an extensive familiarity with the media reports disseminated on the eve of trial, particularly those details incriminatory of Echols and Baldwin, despite the fact that during jury selection he denied knowing anything about the Misskelley matter other than that Misskelley had been previously convicted of something, although the foreperson did not know what.

46. A second juror at petitioner’s trial maintained during voir dire that he had not discussed the case with his father, but recently has stated that in a pre-trial conversation with that juror, his father “spit out” the details of the case. The receipt of that information surely explains the fact that during the trial this juror not only held the opinion that the defendants were guilty, but that they had supporters in the courtroom who were capable of killing the juror as well, leading the juror to be terribly frightened for his own life at a time he was supposed to be dispassionately deciding the guilt or innocence of Echols.

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47. A third juror at petitioner’s trial has sworn that she decided the guilt of the defendants before hearing closing arguments and the trial court’s instructions.

48. Several other jurors admitted during voir dire that they tended to believe that the defendants were guilty, although they promised to set those opinions aside.

49. The United States Supreme Court has held that “[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). “‘The theory of the law is that a juror who has formed an opinion cannot be impartial.’ Reynolds v. United States, 98 US 145, 155 [1878].” Id. at 722. While a juror who truly can put aside his or her opinions may fairly serve, “those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to [that juror].” Id. at n 3 (quoting Chief Justice Marshall in 1 Burr’s Trial 416 (1807).)

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50. A pivotal factor in determining a prospective juror’s impartiality is his or her candor in responding to questions on voir dire. “Voir dire plays a critical function in assuring the criminal defendant that his [or her] Sixth Amendment right

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to an impartial jury will be honored.” Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). “The necessity of truthful answers by prospective jurors . . . is obvious.'" McDonough Power Equipment, Inc. v. Greenwood 464 U.S. 548, 554 (1984)(plurality) (Rehnquist, J.); see also McDonough, 464 U.S. at 556 (1984) (Blackmun, J., concurring) (“[T]he honesty and dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial.”); Clark v. United States, 289 U.S. 1, 11 (1933) (Cardozo, J.) (“The judge who examines on the voir dire is engaged in the process of organizing the court [and] if the answers to the questions are wilfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only.”)

51. In Irvin, supra, eight of the twelve jurors selected to sit on the defendant’s jury had formed the opinion that he was guilty based on exposure to pretrial publicity, although each stated “that notwithstanding his opinion he could render an impartial verdict.” Irvin, 366 U.S. at 724. The Supreme Court vacated the defendant’s murder convictions and sentence of death, holding that:

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With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two thirds admit, before hearing any testimony, to possessing a belief in his guilt.

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Id., 366 U.S. at 728.

52. In light of the foregoing precedent and related cases, the facts alleged in support of the present claim require vacation of Echols’s convictions for at least three closely related reasons.

53. First, the responses of certain jurors demonstrate that, contrary to the express assurances they gave to the trial court during voir dire, such jurors had in fact known the details of the devastatingly prejudicial Misskelley statement and of related negative publicity concerning petitioner. Such concealment demonstrates that one or more of the jurors who returned verdicts of guilt against Echols harbored an impermissible bias against him, a prejudicial violation of his rights under the Fifth, Sixth and Fourteenth Amendments.

54. Second, the responses of certain jurors likewise demonstrates that, again contrary to the assurances provided on voir dire, they prejudged defendant’s guilt prior to the close of evidence, again constituting a prejudicial violation of Echols’s rights under the relevant Constitutional guarantees.

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55. Third, the Supreme Court’s holding in Irvin, supra, 366 U.S. at 728, establishes that such disavowals of bias as were expressed by the jurors at Echols’s

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trial cannot under any circumstance be deemed conclusive when the exposure of jurors to inadmissible and prejudicial information is so great that a majority of sitting jurors was predisposed to a finding of guilt when selected to serve. That critical mass of bias and prejudgment was reached in this case, yet another reason why Echols’s convictions must be set aside.

III. PETITIONER’S INCARCERATION AND SENTENCE OF DEATH VIOLATE HIS FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT INSOFAR AS FORENSIC EVIDENCE NOT AVAILABLE AT THE TIME OF TRIAL DEMONSTRATES HIS ACTUAL INNOCENCE OF THE CRIMES

56. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

57. Subsequent to his convictions in this matter, petitioner filed a “Motion for DNA Forensic Testing” in the Arkansas Circuit Court for Craighead County pursuant to Arkansas Code section 16-112-202 et seq.

58. The biological material which is the subject of Echols’s pending motion for DNA forensic testing will establish that petitioner is actually innocent of the crimes of which he was convicted in the Arkansas trial court and for which he was sentenced to death. The judgment and sentence pursuant to which petitioner remains in custody and subject to execution by the state have thus been imposed in violation of the Eighth Amendment’s prohibition against cruel and unusual

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punishment and the Fourteenth Amendment’s guarantee of equal protection and due process of law, and must accordingly be vacated.

IV. THE STATE COURTS UNREASONABLY REJECTED PETITIONER’S CLAIM THAT HIS TRIAL COUNSEL LABORED UNDER VARIOUS CONFLICTS OF INTEREST WHICH DENIED PETITIONER HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL

59. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

60. Petitioner alleges that all of his convictions were obtained in violation of his Fifth, Sixth and Fourteenth Amendment rights to the effective assistance of counsel in light of trial counsel’s multiple conflicts of interest. The United States Supreme Court enunciated the standard for establishing such a violation in Cuyler v. Sullivan, 446 U.S. 335 (1980), and related precedent. The standard articulated in Sullivan holds that to establish a Sixth Amendment violation based on a conflict not exposed on the record in the trial court, a defendant must show: (1) the presence of an actual conflict of interest; and (2) that the conflict resulted in an adverse effect upon the lawyer’s performance. Once the defendant establishes such an adverse effect, he need not establish prejudice, which is presumed to result from the conflict. 446 U.S. at 349-50; Mickens v. Taylor, 535 U.S. 162, 172-73 (2002).

61. A defendant can establish an “adverse affect” on his counsel’s

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representation by demonstrating that “a specific and seemingly valid or genuine alternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests.” United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990) (citing Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982)). Alternatively, a defendant can show that “some plausible alternative defense strategy or tactic – ‘a viable alternative’ – might have been pursued. Perillo v. Johnson, 79 F.3d 41, 449 (5th Cir. 1996); see also United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988), cert. denied, 492 U.S. 906 (1989) (holding that to prevail on claim under Cuyler, the defendant simply needs to show that an alternative was available to counsel and that it ‘possessed sufficient substance to be a viable alternative’ [quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985)])

62. The defendant need not show that any such “available strategy” is likely to have resulted in a different outcome at trial. See, e.g., Rosenwald v. United States, 898 F.2d 585, 589 (7th Cir. 1990)(per curiam)(relief required even though strength of the state’s case makes it improbable the conflict caused any harm to the accused); Thomas v. Foltz, 818 F.2d 476, 483 (6th Cir. 1987) (pressure to plead guilty, brought to bear by conflicted attorney, requires reversal even though strength of state’s case makes it obvious non-conflicted attorney would have given

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same advice); United States v. Cancilla, 725 F.2d 867, 871 (2d Cir. 1984)(when conflict induced attorney to retreat from particular defense, reversal is mandated; “it is irrelevant that such a defense is unlikely to prevail and was unsuccessfully urged by [co-defendant]”; Westbrook v. Zant, 704 F.2d 1487, 1499, & n. 14 (11th Cir. 1983) (reversible error if conflict prompted counsel to refrain from raising a particular defense, even if that defense would not have proven successful); Brien v. United States, 695 F.2d 10, 15 (1st Cir. 1982) (to prevail on conflict claim, petitioner need only show conflicted attorney failed to pursue plausible strategy, not that strategy would have been successful).

63. In this matter, Echols alleges that his trial counsel labored under numerous conflicts of interest which adversely affected his performance in the course of his representation of Echols and within the meaning of Sullivan and related precedent, as set forth below:

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The HBO Contract

64. Prior to trial, trial counsel induced Echols’s agreement to conclude a contract with Creative Thinking International, a production company engaged by Home Box Office (“HBO”) to make a film about petitioner’s case and trial. In

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exchange for, inter alia, Echols’s participation in the making of the film, including, inter alia, Echols’s engagement in interviews and agreement to placement of cameras in the courtroom, HBO agreed to pay Echols $7,500. Trial counsel used some of the funds paid under the contract as compensation for expenses he incurred during the trial. In accordance with the terms of the contract, trial counsel did not disclose the existence and terms of the contract to the trial court during petitioner’s trial.

65. The HBO contract spawned an actual conflict between trial counsel’s interest in pursuing the best possible defense for Echols and counsel’s interest in the benefits he sought to reap from the contract including, inter alia, his long term pecuniary, professional, and social interests in release of a successful film. This actual conflict, moreover, resulted in several adverse effects on counsel’s representation of Echols, including the following:

a. Publicity concerning the underlying incidents in this matter was ubiquitous, intense and, to the extent it concerned petitioner’s background and character, overwhelmingly negative. Though the trial in the Misskelley matter had concluded a mere two weeks earlier, trial counsel failed to move for a continuance of the Echols trial date because he wished to conclude the trial before the film’s release. As he expressly conceded and the state Supreme Court expressly found

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(Echols v. State, supra, 354 Ark. at 546), trial counsel reasoned that the impending and pre-scheduled release of the film, production of which had been facilitated by counsel himself, would undermine petitioner’s defense at trial; as counsel stated, he “wanted the trial over before the film was shown” because the film, including its depiction of interviews with Echols, might have an impact on the jury. Counsel’s failure to seek the continuance led to the impanelment of jurors who, as alleged elsewhere in this petition, harbored a significant bias against Echols and/or who, during deliberations, considered extraneous prejudicial material in the form of the confession elicited from Misskelley.

b. As a result of the HBO contract, trial counsel relied on the meager funds to be paid from the HBO contract for such things as pretrial investigation, discovery, and expert witnesses at both the guilt and penalty phases of Echols’s trial, thereby causing counsel to forego funds that were available from the trial court upon request.

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c. As a result of the HBO contract, trial counsel devoted time otherwise available for trial preparation to participation in the production of the HBO film, including, inter alia, the staging of defense strategy meetings and other projects relating to such production.

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d. Adherence to the HBO contract also led counsel to refrain from challenging the use of cameras in the courtroom during Echols’s trial, which adversely affected the jurors’ capacity to neutrally and fairly evaluate the evidence in the case.

Prior Representation of Michael Carson

66. Michael Carson was a critical prosecution witness at Echols’s trial. Specifically, Carson testified that Jason Baldwin, Echols’s co-defendant, confessed his participation in the crime alleged against both Echols and Baldwin. Other state testimony established that Echols and Baldwin were best friends who spent virtually all of their available time together, and that they had been together shortly before the time of the homicides. Carson’s testimony as to Baldwin’s purported confession thus constituted devastatingly prejudicial evidence not only against Baldwin but against Echols as well. The Carson testimony was used as the basis for opinion evidence offered against Echols.

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67. Notwithstanding Carson’s pivotal role at trial, Echols’s trial counsel labored under a conflict of interest arising from his prior representation of Carson in a juvenile criminal matter, a conflict which trial counsel never disclosed to Echols. That conflict adversely affected trial counsel’s performance by causing trial counsel

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to refrain from conducting any cross-examination of Carson, despite such counsel’s knowledge of matters, including Carson’s prior criminal history, that would have gravely undermined Carson’s credibility before the jury.

Representation of Mark Byers’ Co-Defendant in Civil Action Pending at time of Petitioner’s Trial

68. John Mark Byers was a critical witness at Echols’s state trial. Among other things, defense counsel and, for a time, law enforcement viewed Byers as the possible perpetrator of the crimes alleged against Echols. Byers’s interests were thus diametrically opposed to Echols’s interests at Echols’s state court trial. Trial counsel, however, labored under a conflict of interest arising from his representation of two co-defendants of Byers on whose behalf Byers had testified in a civil matter involving an alleged burglary of a jewelry store. The civil matter had not been concluded at the time that Echols’s trial counsel questioned Byers at Echols’s trial. Trial counsel never disclosed the conflict to Echols.

69. Trial counsel’s loyalty to his civil clients and, by extension, to Byers adversely affected counsel’s representation of Echols at trial. While counsel conducted some examination of Byers concerning his possible involvement in the case, his divided loyalties led him to refrain from actively and zealously questioning

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and impeaching Byers on all relevant matters, including the full history of Byers’s prior criminal and violent conduct; Byers’s medical condition, including his affliction with brain tumors which, as trial counsel knew, could be associated with violent and criminal conduct; and Byers’s involvement in the civil case in which counsel represented Byers’ codefendant.

V. THE STATE COURTS UNREASONABLY REJECTED PETITIONER’S CLAIM THAT HE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF STRICKLAND V. WASHINGTON

70. The claims and factual allegations set forth in all other sections of this Petition are realleged as if set forth entirely herein.

71. Petitioner alleges that all of his convictions were obtained in violation of his federal constitutional right under the Sixth Amendment to the effective assistance of counsel under an additional analysis established by Supreme Court precedent. In Strickland v. Washington, 466 U.S. 668 (1984), the Court held that in order to succeed in challenging a conviction on this basis, (1) The defendant must show that counsel’s performance fell outside the wide range of professional competence; and (2) the defendant must prove that his trial counsel’s conduct was prejudicial to his case, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

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different. Strickland, 466 U.S. at 688-93. Stated otherwise, “. . . to establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance fell below an objective standard of reasonable competence, and that the deficient performance prejudiced the defendant.” United States v. Villalpando, 259 F.3d 934, 938 (8th Cir. 2001) (citing Strickland, 466 U.S. at 687).

72. Under Strickland, decisions may not be viewed as “tactical,” and hence do not merit deference, when they are the product of counsel’s ignorance or lack of preparation. Wade v. Armontrout, 798 F.2d 304, 307 (8th Cir. 1986); see also United States v. Gray, 878 F.2d 702 , 711 (3d Cir. 1989). Furthermore, a “reasonable probability” of a different outcome does not require a showing that counsel's conduct more likely than not altered the outcome in the case, but simply “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693-4; see also Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (A “reasonable probability” is less than a preponderance of the evidence)

/ /

73. Petitioner alleges that his trial counsel rendered objectively deficient assistance in the following instances, the prejudicial impact of which, considered alone and cumulatively, mandates reversal under Strickland:

Jury Voir Dire

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74. First, trial counsel unreasonably failed to conduct a constitutionally adequate voir dire of prospective jurors or submit to jurors a constitutionally adequate pre-trial questionnaire, despite the presence of extensive prejudicial publicity concerning Echols, as set forth above. Of great importance, such publicity included extensive reporting both of the Misskelley confession implicating defendant as a primary participant in the homicides and Misskelley’s potential appearance as a witness for the prosecution in the case.

75. Notwithstanding these developments, trial counsel rendered deficient performance by, inter alia, a) unreasonably failing to conduct an adequate inquiry into the bias of potential jurors; b) unreasonably failing to determine the extent and effect of potential jurors’ exposure to news accounts surrounding the case, including but not limited to the Misskelley confession, and to other extraneous matter; c) unreasonably failing to recognize the harm that would be effected by intentionally selecting jurors even after counsel learned of their exposure to

/ /

prejudicial matters; and d) unreasonably failing to excuse potential jurors in view of that harm.

76. The foregoing errors and omissions were prejudicial to petitioner within the meaning of Strickland because, among other things, and as set forth above, they

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resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

Failure to Move for Continuance

77. Second, trial counsel unreasonably failed to move for a continuance of petitioner’s trial to permit the negative publicity surrounding the case to subside. This omission prejudiced petitioner under Strickland not only because the presence of such publicity swayed jurors against petitioner as a general matter, but also because it resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

/ /
/ /

Failure to Seek Second Change of Venue

78. Third, trial counsel unreasonably failed to move for a second change of venue out of Craighead County despite the intense negative publicity surrounding the case in that locale and the juror responses on voir dire establishing that most had

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formed an opinion as to petitioner’s guilt. Here again, the omission prejudiced petitioner under Strickland because, inter alia, it likewise resulted in 1) juror exposure to extraneous evidence, including the Misskelley confession, and 2) the empaneling of biased jurors who, contrary to their promises to the court and their obligations as jurors, considered the Misskelley confession and other extra-judicial evidence during their deliberations.

Failure to Retain and Use Experts

79. Fourth, trial counsel unreasonably failed to investigate, select, retain, and make appropriate use of experts, including a forensic odontologist, forensic entomologist, and/or forensic pathologist in connection with petitioner’s trial. The omission was prejudicial under Strickland because, inter alia, it prevented Echols from rebutting the unreliable and highly prejudicial expert evidence adduced by the state at trial and from corroborating petitioner’s claim that he was actually innocent of the alleged crimes.

/ /

Failure to Challenge Expert Testimony Relating to the Occult

80. Fifth, trial counsel unreasonably 1) failed to adequately challenge the proposed introduction of purported expert testimony from prosecution witness Dale Griffis, who rendered a variety of speculative and damaging opinions linking both

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defendant and the homicides to occult practices; and 2) failed to challenge the trial court’s instructions concerning the permissible uses of such testimony. The bases for such challenges was readily available to counsel in light of the Arkansas Supreme Court’s holding in Prater v. State, 307 Ark. 180 (1991), which adopted a standard of expert testimony admissibility similar to that adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

81. These failures prejudiced Echols within the meaning of Strickland because, inter alia, they led directly to the jury’s consideration of Griffis’ fundamentally unreliable and highly inflammatory testimony. The failure further prejudiced Echols because, in his testimony, Griffis relied on the Michael Carson statement implicating Jason Baldwin in concluding that the homicides were occult-related, thereby permitting the jury to rely on that statement as a basis for incriminating petitioner, notwithstanding the fact that the statement should have been deemed flatly inadmissible against petitioner for any purpose pursuant to the dictates of the Fifth, Sixth and Fourteenth Amendments.

Unreasonable Presentation of Evidence at Sentencing

82. Sixth, at sentencing, trial counsel unreasonably introduced testimony from defense expert James Moneypenny concerning petitioner’s mental health

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history; unreasonably failed to object to cross-examination of Moneypenny concerning excerpts drawn from Echols’s mental health records; and unreasonably failed to seek a limiting instruction as to the use of the Moneypenny testimony. These failures prejudiced Echols under Strickland because, inter alia, Moneypenny’s testimony and cross-examination disclosed grossly inflammatory and otherwise inadmissible material that patently undermined rather than advanced the effort to mitigate the evidence relating to penalty.

Failure to Investigate and Present Mitigating Evidence at Sentencing

83. Seventh, trial counsel unreasonably failed to investigate and present substantial mitigating evidence on Echols’s behalf at sentencing. This failure prejudiced Echols within the meaning of Strickland because, inter alia, it undermined the defense effort to challenge evidence in aggravation which was introduced by the state and which resulted in the sentence of death ultimately imposed by the trial court.

INCORPORATION OF STATE RECORD

84. Petitioner hereby incorporates by reference the entire state court record relating to the allegations contained in the instant petition, including but not limited to all related proceedings in the Crittenden County Circuit Court, Arkansas, and the

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Craighead County Circuit Court, Arkansas, as well as all proceedings reported and described in Echols v. State, 326 Ark. 917 (1996), Echols v. State 344 Ark. 513 (2001), Echols v. State, 350 Ark. 42 (2002), Echols v. State, 354 Ark. 414 (2003), Echols v. State, 354 Ark. 530 (2003).

CONCLUSION

Petitioner has no plain, speedy and adequate remedy to obtain his immediate release from the conditions of custody presently imposed on him.

WHEREFORE, petitioner respectfully requests that this Court:

1. Issue an order holding the instant petition in abeyance to permit petitioner to exhaust all of his present claims in the Arkansas state courts; or, alternatively, issue an order finding that petitioner’ pending state DNA proceeding tolls the statutory deadline for seeking habeas relief in this court under the AEDPA, and dismissing the instant petition without prejudice to its timely refiling after the conclusion of that state court proceeding;

2. Grant leave to amend the petition, as may be appropriate;

3. Issue its writ of habeas corpus or an order to show cause to the Attorney General of Arkansas to inquire into the lawfulness of petitioner's convictions;

4. Convene an evidentiary hearing to resolve all disputed issues of fact;

5. After full consideration of petitioner’s claims, set aside petitioner’s convictions and/or sentence of death;

6. Grant petitioner whatever further relief is appropriate in the interest of justice.

DATED: October 28, 2004

Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
THERESA A. GIBBONS
DEBORAH R. SALLINGS




By _______________________



DENNIS P. RIORDAN, Cal. SBN 69320
RIORDAN & HORGAN
523 Octavia Street
San Francisco, CA 94102
(415) 431-3472



Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

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VERIFICATION

DENNIS P. RIORDAN declares under penalty of perjury:

I am counsel for petitioner Damien Wayne Echols. My offices are in San Francisco County, California. In my capacity as attorney for petitioner I am making this verification on his behalf because these matters are more within my knowledge than his.

I have read the foregoing petition for a writ of habeas corpus, and declare that the contents of the petition are true to the best of my knowledge.

Executed this 28th day of October, 2004, at San Francisco, California.



_______________________
Dennis P. Riordan
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Motion to Dismiss Petition for Writ of Habeas Corpus for...

Postby Obscuregawdess » Tue May 27, 2008 1:35 pm

Non-Exhaustion

Damien Echols

http://www.wm3.org/live/trialshearings/ ... year=2005# --images available on site

THIS IS A CAPITAL CASE

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION




DAMIEN WAYNE ECHOLS PETITIONER
ADC #SK931

v. Case No. 5:04-CV-391-WRW

LARRY NORRIS, Director, RESPONDENT
Arkansas Department of Correction




MOTION TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS FOR NON-EXHAUSTION

COMES NOW Respondent, Larry Norris, by and through counsel, Mike Beebe, Attorney General, Brent P. Gasper, and Joe Svoboda, Assistant Attorneys General, and for his response, states:

I. Statement of Facts and Procedural History

Petitioner Damien Wayne Echols is a state prisoner currently sentenced to death for three counts of capital murder committed in West Memphis, which is in Crittenden County, Arkansas. Venue was transferred to Craighead County, and, after a trial, a jury found him guilty of these crimes on March 19, 1994. A copy of the judgment and commitment order is attached as Respondent's Exhibit "A." 1

Echols appealed his convictions, initially raising thirty (30) points on appeal, and the Arkansas Supreme Court affirmed the convictions on December 23, 1996. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996) (hereinafter referred to as Echols I). A copy of his





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1 Because of the voluminous number of exhibits, they will not be attached here and will be filed with this Court under different cover contemporaneously with the filing of this motion. Additionally, some of the appellate briefs and abstracts submitted as exhibits are printed on both sides of the paper -- as they were tendered to the Arkansas Supreme Court -- and we reprinted as double-sided due to size and volume considerations.

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abstract of pleadings and testimony, volumes I and II, are attached as Respondent's Exhibit "B," collectively. A copy of his direct appeal brief is attached as Respondent's Exhibit "C." A copy of the State's supplemental abstract and response brief is attached as Respondent's Exhibit "D." A copy of Echols' reply brief is attached as Respondent's Exhibit "E." A copy of the opinion is attached as Respondent's Exhibit "F." Echols petitioned the United States Supreme Court for a writ of certiorari, which was denied on May 27, 1997. See Echols v. Arkansas, 520 U.S. 1244 (1997). A copy of the denial is attached as Respondent's Exhibit "G."

While the United States Supreme Court still considered the petition for writ of certiorari, on March 11, 1997, Echols filed a petition for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure in the circuit court of Craighead County. A copy of his petition is attached as Respondent's Exhibit "H." Another Rule 37 petition was filed on November 7, 1997. A copy of this petition is attached as Respondent's Exhibit "I." An amended Rule 37 petition was filed on December 12, 1997, although the attached copy, Respondent's Exhibit "J," is not file-marked. 2 A motion to clarify or amend the Rule 37 petition was filed on June 9, 1998. A copy of this motion is attached as Respondent's Exhibit "K." On June 29, 1998, Echols filed both a motion for leave to further amend his Rule 37 petition as well as a second amended Rule 37 petition. Copies of the motion and the petition are attached as Respondent's Exhibits "L" and "M." The following grounds were raised in his original Rule 37 petition:

1. Deprivation of due process and his right to counsel and to effective assistance of counsel at both stages of his trial and on appeal in the following ways:

a. counsel failed to conduct voir dire examination appropriate to death penalty litigation or involving prejudicial pretrial publicity;



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2 Its filing, however, is reflected on the attached docket sheet. See Respondent's Exhibit "II."

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b. his counsel inappropriately entered into a contract with HBO to record pre-trial proceedings, as well as the trial itself, undermining Echols' ability to defend himself;

c. counsel failed to make adequate efforts to obtain state funding for expert witnesses, such as crime scene analysts;

d. counsel failed to object to leading questions, answers based on conjecture, hearsay, badgering of witnesses, and improper closing argument by the prosecutor;

e. counsel failed to have blood splatters found on Echols' necklace tested and fully explore the possibility that DNA evidence would help the defense;

f. counsel failed to request a mistrial or admonition when objecting to a leading question identifying a weapon as "...a sharp object such as a knife."

g. counsel failed to attempt impeachment of state witness Michael Carson;

h. counsel failed to argue that Officer Ridge's volunteered reference to a co-defendant's alleged confession was not inadvertent;

i. counsel failed to move in limine barring evidence linking Echols to occult/satanic practice;

j. counsel failed to move to preclude purported expert testimony introduced to explain that the triple homicide was motivated by satanic practices and/or beliefs;

k. counsel opened the door to defendant's connection to the occult through his cross-examination of Officer Ridge, notwithstanding a court order barring such evidence;

l. counsel failed to determine if Dr. Griffis' testimony had a scientific basis to,

i. object when the trial court changed the standard of admissibility from that applicable to scientific evidence to specialized knowledge;

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ii. argue that, to the extent that a field of satanic knowledge existed, it was a social science, and as such, was, under Daubert, subject to the same standard of admissibility that applied to physical science;

iii. move to reopen the hearing and recall Dr. Griffis and cross-examine him on issues that became relevant only after the trial court's decision altering the standard of admissibility;

m. counsel failed to move to reopen the hearing to call Dr. Robert Hicks to testify in rebuttal that the area of satanic studies, as applied to criminal cases, lacked reliability and was helpful only to the extent that it inflamed the jurors' existing prejudices;

n. counsel failed, because of his conflict of interest, to raise any of these issues on direct appeal;

o. presented Dr. James Moneypenny and advised him to bring to court Echols' records he had reviewed, without adequately interviewing Moneypenny and without adequately advising Echols of the consequence of waiving his patient-psychotherapist privilege;

p. counsel failed, in voir dire, opening or closing statement, to properly educate the jury on the issues involved in a capital sentencing;

q. counsel failed to focus the jury's attention on the role of mitigation or the humanity of their client and the need for each juror to be satisfied beyond a reasonable doubt of the appropriateness of the death penalty;

r. counsel failed to study and know the law about what constitutes "mitigating" evidence;

s. counsel failed to object to instructions and comments by the court that violated Mills v. Maryland, which told jurors if they made the three requisite findings (that, beyond a reasonable doubt, an aggravating circumstance existed, that it outweighed any mitigating circumstances found to exist, and that the aggravating circumstance justified a sentence of death) "you will impose the death penalty";

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t. counsel failed to preserve cumulative reversible error argument by not complaining about individual comments;

u. counsel failed to request transcription of the jury selection process so that this critical stage of the proceeding could not be reviewed for error by the Arkansas Supreme Court or reviewed for the purpose of post-conviction proceedings;

v. counsel failed to conduct post-trial interviews of jurors regarding the trial court's ex parte meeting with them about threats;

w. counsel failed to properly present errors to the trial court and failed to properly preserve them for appeal:

i. by not laying a foundation under Ark. R. Evid. 803(18) by identifying a particular treatise to which the witness Hicks could refer in seeking admission of writings of Ken Lanning;

ii. by not attempting to show the trial court that more than one quotation in the publications of Lanning and Hicks contradicted the State's theory of the case;

2. The aggravating circumstance found in this case is unconstitutional;

3. The trial court improperly ordered the court reporter to refuse to transcribe voir dire of respective [sic] jurors;

4. The trial court erred by denying separate trials for Echols and Baldwin;

5. The trial court erred in not excluding evidence;

6. The trial court erred in allowing the testimony of Dr. Jennings;

7. The trial court improperly denied defense questioning of John Mark Byers;

8. The trial court erred in improperly allowing the introduction of a knife found behind Baldwin's residence;

9. The trial court erred in improperly allowing the introduction of sticks found near the victim's bodies;

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10. The trial court erred in improperly giving an accomplice instruction;

11. The trial court improperly granted an ex parte continuance to the prosecution;

12. The trial court improperly found that the death penalty is not cruel and unusual punishment;

13. The capital murder statute does not give proper notice of the criminal offense, does not narrow the crime for which capital punishment may be imposed, and is void for vagueness due to overlap with the statute for first-degree murder;

14. The capital murder statute improperly requires the death penalty;

15. The cruel and depraved aggravating circumstance does not genuinely narrow the types of persons deserving of a life sentence from those eligible for the death penalty;

16. Prosecutorial misconduct.

The following new grounds were raised in Echols' second Rule 37 petition:

1. Newly discovered evidence can establish Echols' actual innocence;

2. Trial counsel failed to adequately investigate the facts.

The following new ground was raised in Echols' amended Rule 37 petition:

1. Ineffective assistance of counsel in the failure to request a change of venue to a county outside of the Second Judicial District.

The following new grounds were raised in Echols' second amended Rule 37 petition:

1. Ineffective assistance of counsel in the failure to adequately investigate or question John Mark Byers due in part to the fact that one of the defense attorneys had a conflict of interest in that he represented Byers' codefendant in a contemporaneous civil suit;

2. Defense counsel failed to raise on appeal the trial court's inadequate questioning of jurors about the content of threats and

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communications during the trial and their effect on the jury deliberations;

3. Prosecutorial misconduct and violation of Brady v. Maryland in that the Sheriff's department discouraged a favorable witness from testifying.

The trial court conducted hearings over the course of almost a year and denied the petition in its entirety on June 17, 1999. A copy of that order is attached as Respondent's Exhibit "N." On May 25, 2000, Echols filed a timely appeal, raising the following grounds:

1. The trial court's order does not comply with the requirements of Rule 37.3 of the Arkansas Rules of Criminal Procedure in that it fails to make findings of fact sufficient to permit meaningful appellate review of Echols' claims for relief;

2. The trial court applied the wrong legal standard in assessing Echols' claim that his counsel was burdened by multiple conflicts of interest that adversely affected counsel's conduct of the defense. In the alternative, the record establishes conclusively that Echols' counsel labored under a "conflict in fact" and Echols' defense was adversely affected as a result;

3. The trial court failed to permit inquiry into relevant factual matters that are essential to the fair and reliable disposition of Echols' claim that his counsel was burdened by multiple conflicts of interest that adversely affected counsel's conduct of the defense;

4. The trial court failed to inquire into the existence of a conflict of interest when that conflict should have been apparent from the circumstances before the court;

5. The trial court erred in denying relief on Echols' claim of ineffective assistance of counsel at trial, under Strickland v. Washington;

6. The trial court erred in declining to recuse itself so that the court might testify as a witness;

7. The court should remand to permit a full and fair inquiry into juror receipt of extraneous information during the trial;

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8. Echols' death sentence rests on a constitutionally invalid aggravating circumstance;

9. The court should reverse based on the other grounds presented in Echols' pleadings in the court below.

A copy of Echols' Rule 37 appeal brief, in two volumes, is attached as Respondent's Exhibit "O." A supplemental abstract to that brief was filed on October 3, 2000, and is attached as Respondent's Exhibit "P." On April 26, 2001, the Arkansas Supreme Court affirmed in part and remanded in part. See Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001)(hereinafter referred to as Echols II). A copy of the opinion is attached as Respondent's Exhibit "Q." The Arkansas Supreme Court remanded the case to the circuit court and ordered it to make factual findings and legal conclusions only as to the issues raised by Echols on appeal, as all other claims raised in the circuit court but not argued on appeal were considered abandoned. See id., 344 Ark. at 519, 42 S.W.3d at 471-482.

Pursuant to the order of the Arkansas Supreme Court, the circuit court issued an amended order, still denying Echols' Rule 37 petition, on July 30, 2001. A copy of that order is attached as Respondent's Exhibit "R." Echols then appealed that ruling to the Arkansas Supreme Court, raising the following points:

1. The circuit court's verbatim adoption of the prosecutor's proposed findings denied Echols due process on remand and in the present appeal and fails to comply with the court's prior ruling;

2. Echols' counsel labored under a "conflict of fact" which adversely affected his defense;

3. The circuit court erred in refusing to permit inquiry into relevant factual matters that are essential to the fair and reliable disposition of Echols' claims;

4. The circuit court must reverse because it failed to inquire into the existence of a conflict of interest when it reasonably should have known that the conflict existed;

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5. Echol's counsel failed to provide him effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments;

6. Echols was denied effective assistance of counsel at the punishment stage;

7. There were no findings on important punishment issues.

A copy of Echols second Rule 37 brief and his reply brief are attached as Respondent's Exhibits "S" and "T." The Arkansas Supreme Court affirmed on October 30, 2003. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003)(hereinafter referred to as Echols III). A copy of the opinion is attached as Respondent's Exhibit "U."

In the interim, on February 27, 2001, Echols filed a petition in the Arkansas Supreme Court, asking that jurisdiction be reinvested in the circuit court to allow him to seek a writ of error coram nobis. A copy of Echols' petition/brief is attached as Respondent's Exhibit "V." The Arkansas Supreme Court denied that petition on October 16, 2003. See Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003)(hereinafter referred to as Echols IV). A copy of that opinion is attached as Respondent's Exhibit "W." On October 24, 2004, Echols filed in the Arkansas Supreme Court a motion to recall the mandate and to reinvest jurisdiction in the trial court to consider petition for writ of error coram nobis or for other extraordinary relief. A copy of that motion is attached hereto as Respondent's Exhibit "X." 3 Specifically, Echols argued that the Arkansas Supreme Court wields the inherent power to recall the mandate and should do so where warranted by extraordinary circumstances. Further, Echols argued that the Arkansas Supreme



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3 Additionally, Echols filed many supporting exhibits under seal with permission from the Arkansas Supreme Court. The stated reason to put the exhibits under seal was that they contained the identities of the jurors. Because those were filed under seal, they will not be included here. However, if this Court wishes to see the supporting exhibits filed under seal, the Respondent will seek permission from the Arkansas Supreme Court to disclose them to this Court as exhibits in related litigation.

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Court should allow him to return to state court through a writ of error coram nobis to address his claim of "fundamental error extrinsic to the record which might have resulted in a different verdict." See Respondent's Exhibit "X" at 6. The "fundamental errors" of which Echols complained were:

1. The jury received and considered extraneous information during deliberations at petitioner's trial, specifically, the confession of Jesse Misskelley, and that such conduct flatly violated his rights under the Fifth, Sixth, and Fourteenth Amendments, fatally undermining fair consideration of the otherwise meager evidence adduced by the prosecution in support of its case;

2. As disclosed by evidence of their responses on voir dire and recent admissions, certain members of the jury harbored an impermissible bias against Echols, in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments.

The Court denied the motion on January 20, 2005. See Echols v. State, CR-94-928, CR-99-1060 (Ark. Sup. Ct. Jan. 20, 2005) (hereinafter referred to as Echols V). A copy of the opinion is attached as Respondent's Exhibit "Y." Echols next filed a petition for reconsideration, but that was denied on February 24, 2005. A copy of that opinion is attached as Respondent's Exhibit "Z." Complete copies of Echols' appelate docket sheets, as retrieved from the Arkansas Supreme Court's website, are attached as Respondent's Exhibits "AA" and "BB." 4

Echols also filed a state habeas corpus petition pursuant to Ark. Code Ann. §16-112-201 et seq. on July 25, 2002, in the Craighead County Circuit Court. A copy of that petition is attached as Respondent's Exhibit "CC." An appendix to that petition was filed later, on September 5, 2002. A copy of that appendix is attached as Respondent's Exhibit "DD."



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4 The appellate cases, CR-94-928 and CR-99-1060, have been merged for the purposes of Echols V and therefore reflect, most recently, the same filings. See Echols v. State, 350 Ark. 42, 84 S.W.3d 424 (2002) (holding that both cases are separate cases and would be considered individually, but both would be submitted and heard on the same date). However, both are attached as exhibits for this Court's reference.

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Specifically, Echols invoked the "New Scientific Evidence" provision of the state habeas statutes. That statute reads, in part:

(a) Except when direct appeal is available, a person convicted of a crime may commence a proceeding to secure relief by filing a petition in the court in which the conviction was entered to vacate and set aside the judgment and to discharge the petitioner or to resentence the petitioner or grant a new trial or correct the sentence or make other disposistion as may be appropriate, if the person claims that:

(1) Scientific evidence not available at trial establishes the petitioner's actual innocence; or

(2) The scientific predicate for the claim could not have been previously discovered through the exercise of due diligence and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would find the petitioner guilty of the underlying offense.

(b) Nothing contained in this subchapter shall prevent the Arkansas Supreme Court or the Arkansas Court of Appeals, upon application by a party, from granting a stay of an appeal to allow an application to the trial court for an evidentiary hearing under this subchapter.

Ark. Code Ann. §16-112-201 (Supp. 2003). Pursuant to his petition, Echols alleged that certain pieces of evidence were not subject to new methods of DNA testing at the time of his trial due to the non-existence of those methods at that time. He listed numerous pieces of evidence, from hair samples to a bloody knife to semen stains on one of the victims' jeans that he wanted tested with new methods of DNA testing.

The circuit court ordered the preservation of the evidence listed in the habeas corpus petition on January 28, 2003, and on May 21, 2003, Echols filed a supplement to his original motion for DNA testing, asserting additional factual and legal grounds in support of his petition. A copy of the court's order and of Echols' supplement are attached as Respondent's Exhibits "EE" and "FF." On June 2, 2004, the circuit court ordered the testing of certain pieces of

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evidence pursuant to an agreement between the State and Echols' attorneys as to which pieces of evidence would be tested, who should pay for the testing, who should test the evidence, and certain time frames for these things to be accomplished. A copy of that order is attached as Respondent's Exhibit "GG." That same day, the State and Echols filed a joint status memorandum in the circuit court, outlining the current status of the case. A copy of that memorandum is attached as Respondent's Exhibit "HH." As of the date of this motion to dismiss, the state-habeas DNA petition is still being litigated in Craighead County Circuit Court. For this Court's reference, a complete copy of the circuit court docket sheet is attached as Respondent's Exhibit "II."

Echols next filed the instant petition, alleging the following:

1. The jury's extrajudicial receipt and consideration of the inadmissible and false Misskelley statement implicating Echols in the charged offenses violated [Echols'] federal constitutional rights to confrontation, cross-examination, counsel, and due process of law, requiring that his convictions be vacated;

2. Echols was deprived of his federal and state constitutional rights to be judged by twelve impartial jurors capable of deciding the case solely on the evidence admitted and the instructions given in court, mandating that his convictions be vacated;

3. [Echols'] incarceration and sentence of death violate his federal constitutional right to due process and protection against cruel and unusual punishment insofar as forensic evidence not available at the time of trial demonstrates his actual innocence of the crimes;

4. The state courts unreasonably rejected [Echols'] claim that his trial counsel labored under various conflicts of interest which denied [him] his Sixth Amendment right to the effective assistance of counsel;

5. The state courts unreasonably rejected [Echols'] claim that he was deprived of his constitutional right to the effective assistance of counsel within the meaning of Strickland v. Washington.

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On February 28, 2005, before the Respondent filed his response to the original petition, Echols filed his first-amended petition, alleging no new grounds, but instead merely supplementing the procedural history of the case in light of the February 24, 2005, opinion from the Arkansas Supreme Court (Echols V), which denied his petition for rehearing, and expressly conceding that all but Echols' third ground in the original petition were now exhausted.

Respondent contends that as of the date of this motion, Echols is currently in state custody and is housed on Death Row.

II. Reasons the Petition should be Dismissed

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State." See 28 U.S.C. §2254(b)(1)(A). It is clear -- admittedly so, even by Echols himself -- that at this moment in time, he is still litigating his case in state court. He continues to litigate his state habeas corpus petition regarding the DNA testing of certain pieces of evidence in the Craighead County Circuit Court. See Respondent's Exhibits "CC," "EE," and "FF." The issue before this Court is whether to dismiss the instant petition for non-exhaustion or to do what Echols has suggested and hold the instant petition in abeyance while he continues -- and ultimately concludes -- his state-court litigation. However, binding precedent of the United States Supreme Court and the Eighth Circuit Court of Appeals requires that this Court shall dismiss the instant petition without prejudice, allowing Echols to return to federal court once his state-court remedies have indeed been exhausted, or allow him to dismiss the unexhausted claims and proceed here on only those claims that are clearly exhausted. This Court cannot hold this case in abeyance during the pendency of the state-court litigation.

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In Victor v. Hopkins, 90 F.3d 276, 279-80 n.2, 282 (8th Cir. 1996), cert. denied 519 U.S. 1153 (1997), the Eighth Circuit held that a federal court has no authority to hold a habeas proceeding in abeyance and maintain a stay of execution while the petitioner returns to state court in an effort to exhaust available remedies. Rather, if a federal court determines that a petitioner has not exhausted his state remedies, the court must afford the petitioner the limited options stated in Rose v. Lundy, 455 U.S. 509 (1982).

In Rose, the Supreme Court noted that the prior version of 28 U.S.C. §2254 "expressly require[d] the prisoner to exhaust 'the remedies available in the courts of the State,'" id. at 519, and that, consequently, a district court must dismss a habeas petition containing unexhausted claims. Id. at 522. Further, the Rose Court held that if a petition contains both exhausted and unexhausted claims, the petitioner may elect to abandon his unexhausted claims and proceed with habeas corpus review of his exhausted claims only, or alternatively, he may elect to dismiss the entire petition without prejudice in order to exhaust any available state remedies. Id. at 518-20. And subsequently, in Pliler v. Ford, the United States Supreme Court emphasized that dismissal of an unexhausted petition remains the only proper course of action under Rose, notwithstanding AEDPA's newly imposed limitation period. Pliler v. Ford, __U.S.__, 124 S.Ct. 2441, 2445 (2004). 5 For these reasons, Echols' motion for a stay of this proceeding must be denied.

As a matter of comity, the state courts should have the first opportunity to review federal constitutional issues and to correct federal constitutional errors made by the state's trial courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A federal-habeas petitioner, therefore,



--------------------------------------------------------------------------------

5 The Respondent likewise recognizes that Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003), is currently on review in the United States Supreme Court, No. 03-9046. However, as much as Echols asserts that "it appears likely" the Court will recognize the stay-and-abey procedure, the Respondent asserts just the opposite, and has joined in an amicus brief arguing against the procedure. Oral arguments were held on January 12, 2005, according to the United States Supreme Court website.

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must exhaust all available avenues of relief in the state courts before the federal court will consider a claim. 28 U.S.C. §2254(b) & (c). A claim is considered exhausted if "the petitioner has afforded the highest state court a fair opportunity to rule on the factual and theoretical substance of his claim," or failing that, if no "non-futile state court remedies remain available" to him. E.g., Ashker v. Leapley, 5 F.3d 1178, 1179, 1180 (8th Cir. 1993).

Echols concedes that his petition is "mixed," in that grounds, except his third, are exhausted. See Echols' petition at 7. For the most part, the Respondent agrees with Echols in this assessment. However, because his third claim, involving the DNA testing of evidence, is still being litigated in Craighead County Circuit Court, even Echols agrees that this Court cannot address it at this time. In fact, the testing of the evidence has not even been finished yet. One can only speculate to what extent the results of the DNA testing will affect the case and, potentially, given the already-lengthy history of this case, those matters could be litigated in state court for years to come. Simply, it is premature for this Court to consider the petition as it is currently drafted, with one clearly unexhausted claim. Pursuant to Victor v. Hopkins and Rose v. Lundy, as the law stands today, this Court must either dismiss the instant petition in its entirety and require that Echols fully exhaust all his state court remedies or, if Echols so chooses, it can dismiss claim three and proceed here on the four remaining claims.

If, however, this Court finds that Echols has no available state court remedies and finds that this petition is properly and timely filed, or if this Court dismisses, at Echols' request, those claims it finds to be unexhausted and proceeds here with those claims that it finds exhausted and properly filed, the Respondent respectfully requests that he be allowed to respond in kind to the merits of the petition and be allowed to raise any and all procedural defenses that would normally be available to him.

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WHEREFORE, the Respondent prays that the Court dismiss Echols's petition for a writ of habeas corpus without prejudice and without a hearing pursuant to Rule 8(a) of the RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS as he is currently still pursuing his state-court remedies.



Respectfully submitted:



MIKE BEEBE
ATTORNEY GENERAL



OFFICE OF THE ATTORNEY GENERAL
323 Center Street, SUITE 200
Little Rock, AR 72201
(501) 682-8131



By: (signed)
Brent P. Gasper
Ark. Bar No. 98240
Joe V. Svoboda
Ark. Bar No. 744144
Attorneys for the Respondent

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been mailed via U.S. Mail, postage prepaid, to

Dennis P. Riordan
Donald M. Horgan
Theresa Gibbons
Attorneys for the Petitioner
523 Octavia Street
San Francisco, California 94102

Deborah R. Sallings
Attorney for the Petitioner
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, Arkansas 72211

on this 2nd day of March, 2005.

(signed)
Brent P. Gasper
Attorney for the Respondent




-17-
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Response to Motion to Dismiss Amended Petition for Writ of

Postby Obscuregawdess » Tue May 27, 2008 1:37 pm

Habeas Corpus

Damien Echols

http://www.wm3.org/live/trialshearings/ ... &year=2005 --images available on site

THIS IS A CAPITAL CASE

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION






DAMIEN WAYNE ECHOLS, ) Case No. 5:04CV00391-WRW
Petitioner

vs.

LARRY NORRIS, Director,
Arkansas Department of Corrections,
Respondent.
__________________

RESPONSE TO MOTION TO DISMISS
AMENDED PETITION FOR WRIT OF HABEAS CORPUS

DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
THERESA GIBBONS
(CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472

DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
(Local Counsel)

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

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Petitioner DAMIEN WAYNE ECHOLS hereby responds as follows to Respondent Norris's Motion to Dismiss Petition for Writ of Habeas Corpus for Non-Exhaustion ("Motion to Dismiss"), filed with this Court on March 2, 2005.

Introduction

Now pending before this Court is Damien Echol's Amended Petition for a Writ of Habeas Corpus filed on February 28, 2005. As discussed below, that petition contains a single constitutional claim that, through no fault of petitioner, is as yet unexhausted in the state courts. In light of that circumstance, petitioner has asked that the amended petition be stayed and held in abeyance until the state court disposes of the claim. Respondent Norris, in turn, has moved for dismissal on the grounds that the Supreme Court and the Eighth Circuit do not permit use of the "stay and hold" procedure.

Subsequent to the filing of respondent's motion, the Supreme Court issued its decision in Rhines v. Weber, __U.S.__, 125 S.Ct. 1528 (March 30, 2005). Rhines expressly holds that a district court can and should stay a mixed habeas petition and hold it in abeyance to permit exhaustion where, as here, (1) the petitioner has good cause for the failure to exhaust, (2) the unexhausted claim(s) is potentially meritorious, and (3) there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. Id., at 1535. Petitioner's stay and hold

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request should accordingly be granted and respondent's motion to dismiss denied.

I. STATEMENT OF FACTS

A. Procedural History

On October 28, 2004, petitioner Echols filed his initial petition for federal habeas corpus relief in this Court, challenging his 1993 convictions in an Arkansas trial court on three counts of first degree murder, crimes for which the trial court imposed a sentence of death. The October 28th petition challenged the validity of Echols's convictions on five federal constitutional grounds involving (1) juror misconduct; (2) juror bias; (3) DNA evidence indicating actual innocence; (4) his trial lawyer's conflict of interest; and (5) his trial lawyer's ineffective assistance of counsel. The first, second, and third claims, along with an element of the fifth claim, however, had not been exhausted in the Arkansas courts at the time that the original petition was filed, rendering it a "mixed" petition within the meaning of Rose v. Lundy, 455 U.S. 509 (1982).

By order issued on November 4, 2004, this Court required Respondent Norris to file a response to Echols's petition. Respondent thereafter sought and received two extensions of time, to and including March 7, 2005, to file the response. In the meantime, on February 28, 2005, petitioner filed an amended petition for a writ of habeas corpus containing essentially the same claims as those

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asserted in the October 28, 2004 petition. The first amended petition, however, now informed the Court that, but for the claim founded on DNA testing that would exonerate petitioner of the state crimes, all claims presented therein and elements thereof had, as of February 28, 2005, been exhausted in the state courts. Amended Petition, at 10-11, par. 25.

B. Petitioner's Request that the Amended Petition Be Stayed and Held in Abeyance

Apart from reiterating the bases for each of petitioner's federal claims, the amended petition expressly addressed the significance of the unexhausted DNA claim. Responding to statute of limitations concerns raised by 28 U.S.C.section 2244, the petition requested that this Court stay and hold the still-mixed petition so that exhaustion could be achieved in the Arkansas state courts. See Amended Petition, at 10-16, par. 25-36.

Among other things, the petition observed that every Circuit other than the Eighth had authorized the regular use of the "stay-and-abeyance" procedure for mixed petitions, and that the Eighth Circuit did not conclusively prohibit it. Id., at 12, par. 29. The petition further noted that the Supreme Court had granted certiorari to settle the propriety of the procedure in Rhines v. Weber, 346 F.3d 799 (8th Cir. 2003), cert. granted 124 S.Ct. 2905 (June 28, 2004) and that, based on

-4-


the concurring and dissenting opinions in Pliler v. Ford, 124 S.Ct. 2441 (2004), it appeared likely that, when fairly presented with the issue, the Court would likely endorse it in cases such as this one. Amended Petition, at 11-12, par. 27-29.

C. Respondent's Challenge to the Stay and Abeyance Procedure as the Basis for the Motion to Dismiss

Respondent Norris filed his Motion to Dismiss on March 2, 2005, i.e., after the filing of Echols's amended petition on February 28, 2005. The initial and more lengthy portion of the motion (pp. 1-13) recounted the procedural history of the case in both the state and federal courts. The concluding portion of the motion (pp. 13-16) sought an order dismissing the amended petition.

In this connection, respondent observed that under Rose v. Lundy, supra, the Supreme Court had held that, pursuant to the prior version of 28 U.S.C. section 2254, a district court confronted with a mixed petition such as that presented here must dismiss it to permit exhaustion of the claims in the state courts. Motion, at 14. Respondent further argued that the Eighth Circuit did not permit use of the stay-and-hold procedure. Id. Respondent acknowledged that the Supreme Court had granted certiorari in Rhines to consider the propriety and availability of the procedure, but predicted that the Court, in the end, would disapprove it. Id., at 14 n.5. On these bases, Respondent urged the Court to "dismiss the instant petition

-5-


in its entirety and require that Echols fully exhaust all his state court remedies or, if Echols so chooses, it can dismiss claim three and proceed here on the remaining four claims." Id., at 15.DECISION IN RHINES V. WEBER, THE COURT SHOULD STAY THE AMENDED PETITION AND HOLD IT IN ABEYANCE PENDING EXHAUSTION OF PETITIONER'S THIRD CLAIM IN THE STATE COURTS

On March 28, 2005, the Supreme Court issued its decision on the merits in Rhines. 125 S.Ct. 1528 (2005). The Court acknowledged the presence of the dismissal rule set forth in Rose, supra, but observed that it had been adopted when there "was no statute of limitations on the filing of federal habeas corpus petitions." Id., at 1533. For this reason and others, the Court ultimately ruled that a district court should exercise its discretion to stay and hold a mixed petition to permit exhaustion in the state courts "if the petitioner had good cause for the failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id., at 1535.

Petitioner plainly satisfies the criteria set forth in Rhines bearing on the decision whether to stay and hold a mixed petition. Petitioner's unexhausted claim asserts that DNA testing authorized by the Arkansas courts will establish

-6-


Echols actual innocence, rendering the judgment and sentence of death a violation of his federal constitutional rights including, inter alia, his federal constitutional protection against cruel and unusual punishment. See Amended Petition at 27-28, par. 63-65. That is a claim which is at the very least potentially meritorious, since the degree of merit will reflect the extent to which the present state testing establishes that Echols was not the perpetrator of the crimes.

Petitioner, moreover, has good cause for the failure to exhaust. The state statutes authorizing convicted state defendants to pursue testing of DNA evidence in order to establish actual innocence did not come into being until August 13, 2001. See Ark. Code Ann. §16-112-201 et seq. As respondent's motion concedes (id., at 10) petitioner filed his state application for relief pursuant to the DNA statutes in July, 2002, i.e., during the time that other state collateral proceedings (i.e. the "Rule 37" proceedings) were still ongoing and well before those other proceedings concluded at the end of October, 2003. Indeed, in granting a stay of the other collateral proceedings in September, 2002, the Arkansas Supreme Court stated that the DNA application had been "appropriately filed in circuit court under procedures established by Act 1780," Echols v. Arkansas, 350 Ark. 42 (2002). Furthermore, as the state's procedural history also concedes, litigation relating to the DNA motion has been ongoing since the time it was filed. Motion,

-7-


at 11-12.

In short, petitioner initiated his application for relief under the DNA statute in a timely fashion and has been litigating issues relating to the application, including appropriate testing procedures, at all times thereafter. Nothing in the state court record establishes a lack of diligence in Echols's effort to obtain a dispositive ruling on the application. See Motion, at 10-12. Whatever delay has accompanied the application to date is best attributed to the novel legal issues it has raised; the fact that Jason Baldwin and Jesse Misskelley, the two other state defendants convicted in connection with the underlying crimes, are now participants in the testing procedures initiated by Echols's application; and the remarkably tedious research and preparation required to ensure that the relevant testing samples are reliably located and identified. In this case, these very circumstances not only demonstrate the presence of good cause for the failure to exhaust, but also undermine any possible suggestion of dilatory litigation tactics on Echols's part. See Rhines, 125 S.Ct. at 1535. 1

//



--------------------------------------------------------------------------------

1 Should respondent allege the absence of good cause for the failure to exhaust, the absence of a potentially meritorious claim, or the presence of dilatory litigation tactics, petitioner respectfully requests an opportunity for further briefing and/or hearing to develop the record on such matters.




-8-




Petitioner recognizes that, in light of AEDPA's expressed interest in finality, the Supreme Court in Rhines stated that where the stay and hold procedure is employed,

...[D]istrict courts should place reasonable time limits on a petitioner's trip to state court and back. See, e.g., Zarvela, 254 F.3d, at 381 ("[District courts] should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed").

Rhines, 125 S.Ct. at 1535.

Here, of course, should a stay be granted, the Court need not set a time limit for commencing proceedings in the state court because they are already underway. Echols, moreover, can further represent, notwithstanding respondents' dire prediction of further, interminable delay (motion, at 15), that authorization for actual DNA testing has already been provided to the responsible forensic laboratory, and that results on the testing are likely to be produced in a matter of months. Of course, if that testing yields the results that Echols predicts, it should trigger appropriate relief in the state courts and render further proceedings in this Court unnecessary.

//

-9-


Finally, Echols agrees that, should a stay be granted, a thirty-day period for re-commencing proceedings in this court following exhaustion of the DNA claim in the state courts is entirely reasonable.

Conclusion

For the foregoing reasons, petitioner respectfully requests that this Court issue an order staying the amended petition and holding it in abeyance until thirty days following the exhaustion of his third claim, relating to DNA testing, in the Arkansas courts.

DATED: April 28, 2005

Respectfully submitted,

DENNIS P. RIORDAN
DONALD M. HORGAN

By (signed)
Donald M. Horgan

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

-10-
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Reply to Echols' Response to Motion to Dismiss Petition for

Postby Obscuregawdess » Tue May 27, 2008 1:38 pm

Habeas Corpus

--images available on site

http://www.wm3.org/live/trialshearings/ ... &year=2005


THIS IS A CAPITAL CASE

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION






DAMIEN WAYNE ECHOLS PETITIONER
ADC #SK931

v. Case No. 5:04-CV-391-WRW

LARRY NORRIS, Director, RESPONDENT
Arkansas Department of Correction



REPLY TO ECHOLS' RESPONSE TO MOTION TO
DISMISS PETITION FOR HABEAS CORPUS

COMES NOW Respondent, Larry Norris, by and through counsel, Mike Beebe, Attorney General, Brent P. Gasper, and Joe Svoboda, Assistant Attorneys General, and for his reply to Echols' response to the motion to dismiss, states:

Petitioner Damien Wayne Echols is a state prisoner currently sentenced to death for three counts of capital murder committed in West Memphis, which is in Crittenden County, Arkansas. Venue was transferred to Craighead County, and, after a trial, a jury found him guilty of these crimes on March 19, 1994. Echols filed a petition for a writ of habeas corpus on October 28, 2004, and an amended petition on or about February 28, 2005. Respondent filed a motion to dismiss the petitions on March 2, 2005, arguing that under 28 U.S.C. §2254(b)(1)(A) and Victor v. Hopkins, 90 F.3d 276 (8th Cir. 1996), because Echols filed a "mixed" petition containing exhausted and unexhausted claims, this Court had no authority to hold the case open under the theory of stay-and-abeyance, as Echols requested, and that he must exhaust "the remedies available in the courts of the State," pursuant to Rose v. Lundy, 455 U.S. 509, 519 (1982).

Subsequently, the United States Supreme Court handed down its opinion in Rhines v. Weber, 125 S.Ct. 1528 (March 30, 2005). Echols now requests this Court employ the principles

-1-


of Rhines and stay-and-abey the instant case, allowing him to complete the state-habeas DNA proceedings currently pending in Craighead County Circuit Court. However, Respondent respectfully disagrees with this argument, and believes that Rhines is not applicable in the instant case, and, as such, again asks this Court to dismiss the instant action for Echols' failure to fully exhaust all available state remedies.

The language of Rhines is straightforward. Specifically:

[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.

Rhines, 125 S.Ct. at 1535 (emphasis added). Essentially, the Rhines Court addresses those instances where a petitioner must return to state court in order to exhaust his state remedies, yet still has the federal limitations period to contend with. Indeed, the factual scenario of Rhines is drastically different than the one in the instant case. In Rhines, the petitioner filed a mixed habeas petition with eleven months still left in the one-year statute of limitations period, but with no pending state-court proceedings. Id. at 1532. After filing an amended petition some months later, the district court found that some of his claims were not exhausted, but by that time, his federal limitations period had run. Id. The petitioner requested that the district court stay-and-abey the proceedings, because if the court dismissed the mixed petition for failing to exhaust, he could not re-file due to the expiration of the federal limitations period. Id.

However, Echols' federal limitations period has at no time started running by virtue of his lengthy and overlapping state-court proceedings. If this Court dismissed the instant petition, Echols federal habeas' limitations period would still not begin to run until the conclusion of the

-2-


state-habeas DNA proceeding currently pending in Craighead County Circuit Court. 1 Given the lengthy procedural history of this case, that time period could be several years if the results of the DNA testing inure to Echols' benefit and one takes into account all circuit court hearings and appellate proceedings such a result would invariably lead toward.

Echols has not failed to present his claims in state court. In fact, up to this point, he seemingly has litigated every claim available, oftentimes overlapping in several different legal avenues. The one claim still viable in state court was commenced before the filing of his federal habeas petition and he readily admits that he filed his federal petition in order to "cover his bases" so-to-speak, just in case his state habeas DNA action didn't for some reason toll the limitations period, which it surely does. Simply, the Rhines stay-and-abey procedure is available to those petitioners who are required to return to state court in order to exhaust claims, not for petitioners who are already there. As such, Rhines is inapplicable to the case at bar and this Court should grant Respondent's motion to dismiss the mixed petition pursuant to Rose.

WHEREFORE, the Respondent prays that the Court dismiss Echols's petition for a writ of habeas corpus without prejudice and without a hearing pursuant to Rule 8(a) of the RULES GOvERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS as he is currently still pursuing his state-court remedies.

Respectfully submitted:

MIKE BEEBE
ATTORNEY GENERAL





--------------------------------------------------------------------------------

1 While Echols expresses concerns in his original federal habeas petition that his state-habeas DNA petition might not toll the statute of limitations because that issue has not squarely been addressed by a federal court, Respondent firmly believes that it would as a valid state-court post-conviciton proceeding and would have no issue with this Court's finding it as such.

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OFFICE OF THE ATTORNEY GENERAL
323 Center Street, SUITE 200
Little Rock, AR 72201
(501) 682-8131

By: (signed)
Brent P. Gasper
Ark. Bar No. 98240
Joe V. Svoboda
Ark. Bar No. 744144
Attorneys for the Respondent

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been mailed via U.S. Mail, postage prepaid, to

Dennis P. Riordan
Donald M. Horgan
Theresa Gibbons
Attorneys for the Petitioner
523 Octavia Street
San Francisco, California 94120

Deborah R. Sallings
Attorney for the Petitioner
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, Arkansas 72211

on this 13th day of May, 2005.

(signed)
Brent P. Gasper
Attorney for the Respondent

-4-
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"A good heart is better than all the heads in the world." *Edward Bulwer-Lytton

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Reply to Echols' Response to Motion to Dismiss Petition for

Postby Obscuregawdess » Tue May 27, 2008 1:39 pm

Habeas Corpus

--images available on site

http://www.wm3.org/live/trialshearings/ ... &year=2005

THIS IS A CAPITAL CASE

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION






DAMIEN WAYNE ECHOLS PETITIONER
ADC #SK931

v. Case No. 5:04-CV-391-WRW

LARRY NORRIS, Director, RESPONDENT
Arkansas Department of Correction



REPLY TO ECHOLS' RESPONSE TO MOTION TO
DISMISS PETITION FOR HABEAS CORPUS

COMES NOW Respondent, Larry Norris, by and through counsel, Mike Beebe, Attorney General, Brent P. Gasper, and Joe Svoboda, Assistant Attorneys General, and for his reply to Echols' response to the motion to dismiss, states:

Petitioner Damien Wayne Echols is a state prisoner currently sentenced to death for three counts of capital murder committed in West Memphis, which is in Crittenden County, Arkansas. Venue was transferred to Craighead County, and, after a trial, a jury found him guilty of these crimes on March 19, 1994. Echols filed a petition for a writ of habeas corpus on October 28, 2004, and an amended petition on or about February 28, 2005. Respondent filed a motion to dismiss the petitions on March 2, 2005, arguing that under 28 U.S.C. §2254(b)(1)(A) and Victor v. Hopkins, 90 F.3d 276 (8th Cir. 1996), because Echols filed a "mixed" petition containing exhausted and unexhausted claims, this Court had no authority to hold the case open under the theory of stay-and-abeyance, as Echols requested, and that he must exhaust "the remedies available in the courts of the State," pursuant to Rose v. Lundy, 455 U.S. 509, 519 (1982).

Subsequently, the United States Supreme Court handed down its opinion in Rhines v. Weber, 125 S.Ct. 1528 (March 30, 2005). Echols now requests this Court employ the principles

-1-


of Rhines and stay-and-abey the instant case, allowing him to complete the state-habeas DNA proceedings currently pending in Craighead County Circuit Court. However, Respondent respectfully disagrees with this argument, and believes that Rhines is not applicable in the instant case, and, as such, again asks this Court to dismiss the instant action for Echols' failure to fully exhaust all available state remedies.

The language of Rhines is straightforward. Specifically:

[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.

Rhines, 125 S.Ct. at 1535 (emphasis added). Essentially, the Rhines Court addresses those instances where a petitioner must return to state court in order to exhaust his state remedies, yet still has the federal limitations period to contend with. Indeed, the factual scenario of Rhines is drastically different than the one in the instant case. In Rhines, the petitioner filed a mixed habeas petition with eleven months still left in the one-year statute of limitations period, but with no pending state-court proceedings. Id. at 1532. After filing an amended petition some months later, the district court found that some of his claims were not exhausted, but by that time, his federal limitations period had run. Id. The petitioner requested that the district court stay-and-abey the proceedings, because if the court dismissed the mixed petition for failing to exhaust, he could not re-file due to the expiration of the federal limitations period. Id.

However, Echols' federal limitations period has at no time started running by virtue of his lengthy and overlapping state-court proceedings. If this Court dismissed the instant petition, Echols federal habeas' limitations period would still not begin to run until the conclusion of the

-2-


state-habeas DNA proceeding currently pending in Craighead County Circuit Court. 1 Given the lengthy procedural history of this case, that time period could be several years if the results of the DNA testing inure to Echols' benefit and one takes into account all circuit court hearings and appellate proceedings such a result would invariably lead toward.

Echols has not failed to present his claims in state court. In fact, up to this point, he seemingly has litigated every claim available, oftentimes overlapping in several different legal avenues. The one claim still viable in state court was commenced before the filing of his federal habeas petition and he readily admits that he filed his federal petition in order to "cover his bases" so-to-speak, just in case his state habeas DNA action didn't for some reason toll the limitations period, which it surely does. Simply, the Rhines stay-and-abey procedure is available to those petitioners who are required to return to state court in order to exhaust claims, not for petitioners who are already there. As such, Rhines is inapplicable to the case at bar and this Court should grant Respondent's motion to dismiss the mixed petition pursuant to Rose.

WHEREFORE, the Respondent prays that the Court dismiss Echols's petition for a writ of habeas corpus without prejudice and without a hearing pursuant to Rule 8(a) of the RULES GOvERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS as he is currently still pursuing his state-court remedies.

Respectfully submitted:

MIKE BEEBE
ATTORNEY GENERAL





--------------------------------------------------------------------------------

1 While Echols expresses concerns in his original federal habeas petition that his state-habeas DNA petition might not toll the statute of limitations because that issue has not squarely been addressed by a federal court, Respondent firmly believes that it would as a valid state-court post-conviciton proceeding and would have no issue with this Court's finding it as such.

-3-


OFFICE OF THE ATTORNEY GENERAL
323 Center Street, SUITE 200
Little Rock, AR 72201
(501) 682-8131

By: (signed)
Brent P. Gasper
Ark. Bar No. 98240
Joe V. Svoboda
Ark. Bar No. 744144
Attorneys for the Respondent

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been mailed via U.S. Mail, postage prepaid, to

Dennis P. Riordan
Donald M. Horgan
Theresa Gibbons
Attorneys for the Petitioner
523 Octavia Street
San Francisco, California 94120

Deborah R. Sallings
Attorney for the Petitioner
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, Arkansas 72211

on this 13th day of May, 2005.

(signed)
Brent P. Gasper
Attorney for the Respondent

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For Echols: Order (US District Court)

Postby Obscuregawdess » Tue May 27, 2008 1:40 pm

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION




DAMIEN WAYNE ECHOLS PETITIONER

5:04-CV-OO391 WRW

LARRY NORRIS. Director of the
Arkansas Department of Correction RESPONDENT




ORDER

Pending is Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus for Non-Exhaustion (Doc. No. 11). Petitioner has responded (Doc. No. 15) and Respondent has replied (Doc. No. 16).

I.

It is undisputed that Petitioner's DNA claim has not been exhausted in state court. 1

The procedural history of this case is lengthy. A full summary can be found in one of the most recent state court opinions Echols v. State. 2 For purposes of Petitioner's habeas petition, the Arkansas Supreme Court entered a final order on October 30, 2003. 3 Under the Antiterrorism and





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1 See Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus for Non Exhaustion, page 15: see also Petitioner's Response to Motion to Dismiss Amended Petition for Writ of Habeas Corpus, page 4.
Petitioner's Claim III is his DNA claim. The Court will refer to this claim as his "DNA claim."
2 2005 WL 107133 (January 20, 2005).
3 See Echols v. State, 354 Ark. 530 (October 30, 2003).

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Effective Death Penalty Act of 1996, 28 U.S.C.A. §2254. Petitioner has one year from the state court's final order in which to file his habeas petition in federal court. Petitioner filed his habeas petition on October 28, 2004 and his Amended Petition on February 28, 2005. Petitioner concedes that when he filed both his original and amended petitions, his DNA claim had not been exhausted in state court. Specifically, under Arkansas Code Annotated §16-112-201. Petitioner's DNA claim was filed in Craighead County Circuit Court on July 25, 2002 and is currently pending. 4

Although Petitioner was aware of the exhaustion requirements, he knowingly filed his habeas Petition because, even though his DNA claim was not exhausted, there was uncertainty as to whether the DNA claim would toll the AEDPA's one-year statute of limitations. "Accordingly, acting with an abundance of caution and in light of the sentence imposed in this matter, Echols submitted his original federal habeas petition prior to October 30, 2004. Again the claims in the instant amended petition relate back to the date of filing the original petition." 5 Petitioner has requested that the Court stay the case and hold it in abeyance pending resolution of his DNA claim in state court.

Respondent, on the other hand, claims that Petitioner's case is not ripe for review before the Court, and has requested that the Court dismiss the petition for failure to exhaust. Respondent also asserts that the Court should not hold the case in abeyance because that is not consistent with Supreme Court precedent. 6 Respondent claims that this Court must dismiss the entire petition: or



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4 See Echols v. State, 350 Ark.42 (2002).
5 See First Amended Petition for a Writ of Habeas Corpus by a Person in State Custody. page 10.
6 See Respondent's Reply to Petitioner's Response to Motion to Dismiss Petition for Habeas Corpus.

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dismiss the unexhausted claim and allow Petitioner to amend his Petition once his unexhausted claim is exhausted at the state court level.

II.

Before a federal court may grant habeas relief to a state prisoner, the petitioner must exhaust state court remedies. 7 State courts should have a proper opportunity to address a petitioner's claims of constitutional error before those claims are presented in federal court. 8 The requirement of exhaustion of remedies is satisfied if the petitioner has "fairly presented" a claim to the state court, thus preserving the claim for federal review by properly raising both the factual and legal bases of the claim in state court proceedings, affording that court "a fair opportunity to rule on the factual and theoretical substance of [the] claim. 9 "In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts." 10 Also, if it is unclear whether a state court would entertain the claim or whether it is procedurally defaulted, the federal court must either dismiss the petition without prejudice; or stay the claim until the claim is presented to the state court.'' 11

III.

In Rhines v. Weber, the United States Supreme Court recently addressed the issue of "mixed



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7 28 U.S.C.A. §2254(b)(1)(A): Krimmel v. Hopkins. 56 F.3d 873 (8th Cir. 1995).
8 Coleman v. Thompson, 501 U.S. 722. 729-32 (1991).
9 Krimmel 56 F.3d at 876.
10 McCall v Benson. 114 F.3d 754. 757 (8th Cir. 1997)(citations omitted).
11 See Sloan v. Delo. 54 F.3d 1371. 1381 (8th Cir. 1995)(internal citations omitted).

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petitions" petitions containing both exhausted and unexhausted claims and the "stay and abey procedure." 12 In Rhines, the United States Supreme Court recognized the delicate balance between reducing delays in habeas cases and affording petitioners full and fair adjudication. The Court held:

The enactment of AEDPA in 1996 dramatically altered the landscape for federal habeas corpus petitions. AEDPA preserved Lundy's total exhaustion requirement. see 28 U.S.C. §2254(b)(1)(A) ("An application for a writ of habeas corpus...shall not be granted unless it appears that...the applicant has exhausted the remedies available in the courts of the State"), but it also imposed a 1-year statute of limitations on the filing of federal petitions, §2244(d). Although the limitations period is tolled during the pendency of a "properly filed application for State post-conviction or other collateral review," §2244(d)(2), the filing of a petition for habeas corpus in federal court does not toll the statute of limitations. Duncan, supra. at 181-182. 121 S.Ct. 2120.

As a result of the interplay between the AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with "mixed" petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review. For example, if the District Court in this case had dismissed the petition because it contained unexhausted claims, AEDPA's 1-year statute of limitations would have barred Rhines from returning to federal court after exhausting the previously unexhausted claims in state court. Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the petitioner's chances of exhausting his claims in state court and refiling his petition in federal court before the limitations period runs are slim. The problem is not limited to petitioners who file close to the AEDPA deadline. Even a petitioner who files early will have no way of controlling when the district court will resolve the question of exhaustion. Thus, whether a petitioner ever receives federal review of his claims may turn on which district court happens to hear his case.

We recognize the gravity of this problem and the difficulty it has posed for petitioners and federal district courts alike. In an attempt to solve the problem, some district courts have adopted a version of the "stay-and-abeyance" procedure employed by the District Court below. Under this procedure, rather than dismiss the mixed petition pursuant to Lundy, a district court might stay the petition and hold it



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12 Rhines v. Weber. 125 S.Ct. 1528 (2005).

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in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.

District courts do ordinarily have authority to issue stays, see Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). where such a stay would be a proper exercise of discretion, see Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997). AEDPA does not deprive district courts of that authority, cf.28 U.S.C. §2254(b)(1)(A) ("An application for a writ of habeas corpus...shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State" (emphasis added)), but it does circumscribe their discretion. Any solution to this problem must therefore be compatible with AEDPA's purposes.

One of the statute's purposes is to "reduce delays in the execution of state and federal criminal sentences, particularly in capital cases." Woodford v. Garceau. 538 U.S. 202. 206. 123 S.Ct. 1398. 155 L.Ed.2d 363 (2003). See also Duncan, 533 U.S. at 179, 121 S.Ct. 2120. AEDPA's 1-year limitations period "quite plainly serves the well-recognized interest in the finality of state court judgments." Ibid. It "reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review." Ibid.

Moreover, Congress enacted AEDPA against the backdrop of Lundy's total exhaustion requirement. The tolling provision in §2244(d)(2) "balances the interests served by the exhaustion requirement and the limitation period," "by protecting a state prisoner's ability later to apply for federal habeas relief while state remedies are being pursued." Duncan, supra, at 179, 121 S.Ct. 2120. AEDPA thus encourages petitioners to seek relief from state courts in the first instance by tolling the 1-year limitations period while a "properly filed application for State post-conviction or other collateral review" is pending. 28 U.S.C. §2244(d)(2). This scheme reinforces the importance of Lundy's "simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." 455 U.S. at 520. 102 S.Ct. 1198.

Stay and abeyance, if employed too frequently, has the potential to undermine these twin purposes. Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition. Cf. Duncan, supra, at 180. 121 S.Ct. 2120 ("[D]iminution of statutory incentives to proceed first in state court would...increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce").

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For these reasons, stay and abeyance should by available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. §2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").

Even where stay and abeyance is appropriate, the district court's discretion in structuring the stay is limited by the timeliness concerns reflected in AEDPA. A mixed petition should not be stayed indefinitely. Though, generally, a prisoner's "principal interest...is in obtaining speedy federal relief on his claims," Lundy, supra, at 520. 102 S.Ct. 1198 (plurality opinion), not all petitioners have an incentive to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death. Without time limits, petitioners could frustrate AEDPA's goal of finality by dragging out indefinitely their federal habeas review. Thus, district courts should place reasonable time limits on a petitioner's trip to state court and back. See, e.g., Zarvela, 254 F.3d. at 381 ("[District courts] should explicitly condition the stay on the prisoner's pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed"). And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all. See id., at 380-381.

On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. See Lundy, 455 U.S. at 522, 102 S.Ct. 1198 (the total exhaustion requirement was not intended to "unreasonably impair the prisoner's right to relief"). In such a case, the petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. For the same reason, if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief. See id., at 520, 102 S.Ct. 1198 (plurality opinion) ("[A petitioner] can

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always amend the petition to delete the unexhausted claims, rather than returning to state court to exhaust all of his claims"). 13

Clearly, it would be a miscarriage of justice if Petitioner were not afforded federal review of his habeas petition. However, Petitioner's claim first must be fully exhausted at the state level before the Court can review all of his claims. 14 Petitioner has not been able to exhaust his claims in state court and must be afforded the opportunity to do so. Petitioner has demonstrated that there is good cause to hold his habeas petition in abeyance while his DNA claim is litigated. His claim was filed correctly under Arkansas Code Annotated §16-112-201: and Petitioner is awaiting the results so that he may litigate his claim in state court. There is no evidence that Petitioner has engaged in abusive litigation tactics or intentional delay. As Justice O'Connor stated in Rhines, "the petitioner's interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions." 15 Absent delaying tactics on petitioner's part, Justice O'Connor's admonition must, and should be, heeded.

THEREFORE, after careful consideration, Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus for Non Exhaustion is DENIED (Doc. No. 11). Based on Rhines v. Weber. Petitioner's Petition and Amended Petition for Writ of Habeas Corpus both will be stayed and held in abeyance until Petitioner's DNA claim is exhausted in the state court. Petitioner must continue to pursue his DNA claim in state court with diligence, and file his Amended Petition with the Court within ninety (90) days after the state court's disposition. Nothing in this Order may be considered



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13 Rhines 125 S.Ct. at 1533 (emphasis added).
14 Coleman 501 U.S. at 729.
15 Rhines 125 S.Ct. at 1535.

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a dismissal or disposition of this matter.




IT IS SO ORDERED this 18th day of August, 2005.



/s/Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE





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(Echols) Status Report Re: DNA Testing

Postby Obscuregawdess » Tue May 27, 2008 1:47 pm

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Second Status Report Re: DNA Testing

Postby Obscuregawdess » Tue May 27, 2008 1:48 pm

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THIS IS A CAPITAL CASE
IN THE ARKANSAS SUPREME COURT
DAMIEN WAYNE ECHOLS Defendant,
STATE OF ARKANSAS, Plaintiff.

Case No. CR 94-928
Case No. CR 99-1060

Craighead Co. Circuit Court Nos 93-450, 450A

DEFENDANT ECHOLS
SECOND STATUS REPORT RE: DNA TESTING

DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472

DEBORAH R. SALLINGS
(AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500
(Local Counsel)
Attorneys for Defendant DAMIEN WAYNE ECHOLS

In response to this Court’s letter of June 27, 2007, counsel for Petitioner/Defendant Damien Echols provides the following report on the status of DNA testing being conducted in support of his motion for relief under 16-112-201, which motion is now pending in the Craighead County Circuit Court.

(1) The extensive DNA testing which was the subject of an initial agreement by the parties and which was embodied in the Circuit Court’s First Amended DNA Order for DNA Testing filed on February 23, 2005 has essentially been completed. Such testing has been conducted at Bode Laboratories in Virginia.

(2) The DNA testing results returned to date disclose that none of the genetic material recovered at the scene of the crimes was attributable to Mr. Echols, Echols co-defendant, Jason Baldwin, or defendant Jessie Misskelley (Arkansas v. Misskelley [CR 94-848]).

(3) Although most of the genetic material recovered from the scene was attributable to the victims of the offenses, some of it cannot be attributed to either the victims or the defendants. Counsel for Petitioners/Defendants Echols, Baldwin, and Misskelley, and Craighead County Prosecuting Attorney Brent Davis have entered into discussions concerning how best to determine the evidentiary significance of the laboratory’s results returned in the initial round of testing. These discussions have resulted in a recent agreement to subject certain critical evidentiary items to more extensive testing in light of their potential significance to establishing the identity of the perpetrator(s) of the offenses. In addition, the parties are presently discussing whether, in light of the current test results, a limited number of other items impounded during the investigation should be subjected to testing by Bode. We will inform the Court within sixty days of the outcome of those discussions.

Counsel for Echols is, of course, prepared to provide the Court with any further information it should request concerning this matter.

DATED: July 17, 2007

Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
DEBORAH R. SALLINGS

By DENNIS P. RIORDAN

Attorneys for Defendant DAMIEN WAYNE ECHOLS
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ASSC Request for DNA Status Report (Echols)

Postby Obscuregawdess » Tue May 27, 2008 1:50 pm

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