http://www.wm3.org/live/trialshearings/ ... 132&page=9
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
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,
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
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
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.
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.
(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
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
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.
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
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
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.”
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
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
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.
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.
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.
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)
(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
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
13 Pharmacy records confirmed the prescription was dropped off on May 5th. (EBRT 1906, 2692).
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
phone on the day and evening of May 5th. 14
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
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
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)
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-
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
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.
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)
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)
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
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)
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.
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.
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,
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
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
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
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.
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
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.”
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.
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
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.
20 The authentication of these photos can be found in Exhibit D, the Affidavit of Dennis P. Riordan.
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
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
much confidence the jury placed in these two witnesses.
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
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
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
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