NEW EVIDENCE & LOOKING AT OLD EVIDENCE

[Obscuregawdess]

Fibers, under the
microscope

Eighty-three items of clothing were seized during the search and arrests. The clothes included 46 shirts, 10 pairs of pants, 5 pairs of shoes, 5 pairs of underwear, 4 pairs of socks, and 3 shorts. Of the shirts, 29 are described as black, usually with a design. These designs included 16 heavy metal bands (15 from Baldwin's household and one from Misskelley's), 1 country music, 2 sports teams (Rangers and Bulls), and 2 with Harley Davidson. Nine non-clothing fabric items were seized.

The seizures appeared utterly random. One pair of pants was taken from the Misskelley residence, six from Baldwin's, and three from Echols'. A throw rug was seized from the closet in the Baldwin household, and a piece of carpet from the Echols', but no floor item came from Misskelley's trailer. Two blankets, one from the grandmother's bedroom, and a sheet were collected from Echols' house and a heating pad cover was taken from the Baldwin's place. The seizures included the parents clothes (four housecoats) and clothes from siblings (a child's Garanimals brand shirt played prominently in the trial). One reason for the differences in the selected items is that Lisa Sakevicius, the criminologist who would later test the fibers for similarities was present at some of the searches but not others. As she said in court:

Sakevicius: . . .none of this case has been common practice for me. This is the first time I ever participated in a search of Defendants' or victims' homes. [Echols/Baldwin trial abstract]

Fibers Collected for Analysis

The victims bodies and their clothes were examined for anomalous fibers to identify the possible source of these among the clothes and fabrics entered into evidence. Fibers were collected from other evidence to try to connect such evidence to the victims' clothes. The specimens listed in the following section were deemed to have similarities to fibers from other evidence items by the Arkansas State Crime Laboratory (ASCL) and the Alabama Department of Forensic Science (ADFS). Lisa Sakevicius of ASCL testified extensively at the trials and John Kilbourn of ADFS testified at the Echols/Baldwin trial.

Significant Fibers

Seven sets of fibers were found to have similarities to fibers from other evidence items. These are presented below. The letters are mine to avoid confusion among the query numbers which varied between laboratories. Evidence items E1, E2, E3, E5, and E9 refer to the children's clothes recovered from the crime scene. Five of the sets of fibers (A-E) were found on the victim's clothes.

A. A green polyester fiber from E5, the cub scout cap retrieved from the crime scene. Another green polyester fiber was recovered from E3, the blue pants retrieved from the crime scene.
B. A green cotton fiber was retrieved from E3, the blue pants mentioned above. In the Alabama report this is described as two cotton fibers from E9, the victim's shirt with a surfboard design.
C. A red rayon fiber from E2, the black and white checkered shirt retrieved from crime scene.
D. Two red cotton fibers from E1, boy scout shirt retrieved from crime scene.
E. Three red cotton fibers found on E3, blue pants retrieved from crime scene.
F. Two black polyester fibers from E134, described as a knife in a black leather sheaf.
G. A blue polyester fiber from E134.
Comparisons

A microscopic analysis was made between the collected fibers and other fibers from evidence. The ADFS report lists the items sent for comparison. These were:
Microscope slides with fiber samples from 38 of the items seized during the arrests.
17 to 19 swatches from additional items seized at the times of arrests.
11 slides with fibers from the fabric of the victim's clothes from the crime scene.
Fiber samples from a bag found at the crime scene which contained several items including adult clothes.
A fiber sample from an orange chair at the West Memphis Police Department.
A fabric sample from a mortuary blanket.
Fibers from the bag found at the crime scene would result in similarities, although these evidence items were not claimed to have a connection to the crime. Its contents were described as one pair of 33-34 Jordache blue jeans, one black thermal undershirt, one pair of white socks, one tan short-sleeved shirt, a plastic bag, a piece of a bag, and two Bic razors. The trim size of these jeans were taken into account in the investigation and a couple of the thinner suspects were noted as to whether they had measurements of 33 waist and 34 inseam.

Similarities

Similarities were found between the above listed fibers and fibers from other evidence items. Reports were dated June 29, 1993 (ASCL) and January 5, 1994 (AFDS). The findings were:

A. A green polyester fiber from E5 was determined to be similar to fibers from E79, described in the evidence list as a "blue Muscle Beach T-shirt" from the Echols residence. The green polyester fiber from E3 was also found similar to the E79.
B. The (one or) two cotton fibers from E3 (or E9) were also deemed similar fibers from the Muscle Beach T-shirt.
C. A single red rayon fiber from E2 was determined to be similar to fibers from E99, a red house coat from Baldwins residence.
D. Two red cotton fibers from E1 were determined to be similar to fibers from E92, a red and white striped pull-over shirt from the Echols household AND similar to fibers from BR1, the bag with miscellaneous items found at the crime scene.
E. Three red cotton fibers from E3 were also determined to be similar to fibers from E92, a red and white striped pull-over shirt from the Echols household AND similar to fibers from BR1, the bag with miscellaneous items found at the crime scene.
F. Two black polyester fibers from E134 were determined to be similar to fibers from E78 Black t-shirt, Echols residence.
G. A blue polyester fiber from E134 was determined to be similar to fibers from a blue toilet seat cover from the Baldwin's home.
Controls

The possibility of direct transfer of fibers from fabrics in the victims homes was not addressed in the initial reports. On December 20, 1993, two of the victims homes were visited and a total of six clothing items were taken as controls, three shirts and one pair of pants from the Moore's household and two shirts from the Byers household.

In a report dated January 17, 1994, the red cotton fibers from D and E were deemed similar to a shirt from the Moore's household.

Evaluating the Evidence.

The different fiber sets tell different stories. Fiber sets F and G were both derived from a knife entered into evidence on June 9, 1993. This knife was identified as a 3-4 inch boot knife being from Jason Crosby who received it from Rick Appling. Appling stated that Baldwin and Echols never had the knife and he was only acquainted with them in passing. The fibers found on the knife were said to be from two sources: a t-shirt from the Echols household and a toilet seat cover from Baldwin's home. This knife was not put forward as a murder weapon.

In contrast the source of the red cotton fibers from D and E were significant: the clothes of the deceased. Unfortunately these fibers were promiscuous in their declared similarities, with possible sources including a pullover shirt from the Echols household, fibers from the bag of clothes found at the crime scene, and a red shirt taken from the Michael Moore household

The green polyester fibers from the cub scout cap and the blue pants (A) and the green cotton fibers (B) were all found similar to fibers from a Muscle Beach t-shirt from the Echols household (E79). In the Arkansas documents this was referred to as a blue shirt. In the samples sent to the Alabama Department of Forensic Sciences it was described as blue-green. During the trial, the source, E79, was described as a size six Garanimals shirt, belonging to Echols stepbrother. To further complicate matters, the cotton fibers were described as two and from E9 (the shirt with the surfboard design) in the Alabama report and as one from E3 (the shirt with the checkered design) in the Arkansas report.

The red rayon fiber (C) recovered from the victim's checkered shirt was the most heavily debated at trial. It was found to be similar to fibers from E99, the red housecoat seized from the Baldwin trailer, a robe worn by Jason's mother. After Lisa Sakevicius presented her findings for the prosecution's case, the defense brought in an expert, Charles Linch, who said the red rayon fiber was not similar. The prosecution rebutted with John Kilbourn of the Arkansas Department of Forensic Sciences who concurred with Sakevicius' opinion. In an odd twist, the defense expert, Charles Linch was found to have been on leave from a mental asylum.

All of the fibers from the defendants' homes were suggested to have been deposited by secondary transfer. For example, the clothes Damien wore at the time of the murder had picked up both cotton and polyester fibers from the a Muscle Beach t-shirt (or Garanimals shirt) in his home and then these fibers were transferred to several of the items of clothing of the victims during the crime.

As with much of the evidence in this case, the fiber analyses suffer from inconsistency. The selection of clothing and fabrics during the searches was haphazard. Then even though 92 fabric and clothing items were taken, comparisons were made to only 55 to 57 of these (two slides are ambiguous as to whether they refer to additional items). The attempt to find controls from the victims homes to test for primary transfer was anemic. Even though only six clothing items were taken from two of the victims homes, these managed to have similarities to two of the seven sets of fibers. The items taken from the victims home included 4 red garments and two black garments, but no blue or green garments to check for a source of the fibers in A, B or G.

Below is an extended diagram of the fiber analyses: the comparisons and the findings.



Recommended reading, "Fiber Evidence"( http://www.fbi.gov/hq/lab/fsc/backissu/ ... edric3.htm ) from Hair, Fibers, Crime and Evidence. Douglas Deedrick, FBI. In Forensic Science Communications, 2:(3)




http://www.jivepuppi.com/Fibers.html

[Obscuregawdess]

http://www.jivepuppi.com/polygraph.html

Prosecutor Brent Davis: You mean you don't want him to mention the "P" word?
Judge David Burnett: Yeah.
Attorney Val Price: Okay, that's what I was gonna ask. And that he's a "P" word person.
Burnett: Yeah. [Bench conference, Echols/Baldwin trial]

Approximately a year before the murders, the West Memphis Police Department obtained a polygraph machine and Detective Bill Durham was certified as a technician. Over the course of the investigation, nearly fifty individuals were polygraphed.

The reasons why several individuals were not polygraphed were noted. Using anti-epileptic drugs was one.

No polygraph - subject has seizures + takes Dilantin. [Bill Durham notes, Gary Poindexter interview, May 12, 1993]

This may have been why Mark Byers was spared. Other individuals on psychoactive medications were polygraphed including: Echols, taking an antidepressant; Timothy Dodson, being treated for schizophrenia; and, Thomas Polletta, taking medicine for PTSD.

Mild retardation was presented as a reason for not performing a polygraph.

Quirt is mildly retarded - has the mental capacity of about a 10 - 13 yr. old. [snip] He was fingerprinted but was not able to be polygraphed in Bill Durham's opinion due to his mental retardation. [Hester notes, Quirt Gregory interview, May 19, 1993]

Misskelley's borderline retardation did not excuse him, even though his mental age was argued to be within or below the range attributed to Gregory. Detective Mike Allen testified he did not know Misskelley was mentally challenged.

Defense attorney Dan Stidham: Did you know that he was slow or mentally deficient in any form or fashion?
Allen: In my opinion he was - he could understand everything I was telling him and was responding back and didn’t appear to be - didn’t appear to be slow, no. [Suppression hearing, January 13, 1994]

The "P" word - polygraph - was linked to another "P" word in this case. During his confession, Misskelley was asked by Ridge if he knew what a penis was. This was presented by the defense as evidence the police were aware he was mentally slow. Ridge defended his question.

Stidham: Can you explain to me why you had to explain to him what a penis was?
Ridge: That is not a term that is normally used by everybody in the community. [ibid]

Pass/fail

There are currently 41 polygraph reports available for those who took the examination. These included witnesses and suspects. Many of the questions were not directed at whether someone was personally involved in the crime; a finding of deception is not necessarily related to guilt. According to the reports, 13 individuals had shown at least one response classified as "deception indicated."

When one or more responses were deemed deceptive, a rationale was often provided in the post-polygraph notes. James Martin, the child molestor, failed two questions: "Do you know who killed those three boys?" and "Do you know what was used to tie up those three boys?" His reasons for failing were presented as

In the post test interview, the subject said he thinks shoe laces were used to tie the boys because logic tells him that the killer would use something already there. He also said he thinks the father of Steve Branch killed the boys. [Durham notes, James Martin post-polygraph interview, May 19, 1993]

Suspicion of someone was said to be sufficient to have Martin fail one question. In his extended interview before the polygraph, he mentioned the stepfather of Stevie Branch as someone he suspected. The other question, the specific knowledge of being tied with shoelaces was dismissed as something he had determined logically - even though in his interview he had said the perpetrator would be prepared and bring something to tie the victims.

Passing the polygraph was repeatedly equated with innocence. Louis Larry Baldwin, a local child molestor and the uncle of Jason Howard Baldwin (the "other" Jason Baldwin), offered no verifiable alibi. However, "Baldwin was scheduled to take a polygraph Friday July 2, 1993 at 10:00 a.m to clear up any suspicions of his involvement." [Mike Allen notes, Louis Larry Baldwin interview, July 1, 1993] (He passed.)

Kacie Crawford claimed to have heard Frankie Knight say his brother killed the boys. Knight was said to have threatened Kacie not to report this. On the bottom of her report, a large UNFOUNDED was scribbled in marker. Frankie Knight and his brother were said to have been "found to be clear of any suspicion at this point." Why? Knight's family knew the Byers, one of his brothers was friends with Ryan Clark. His older brother, David Wren, had amassed a remarkable criminal record for a teenager, including a jail break. In his interview Knight presented no alibi. But he did pass his polygraph. Wren also passed his polygraph.


Questions 6 through 10 of the Sudbury questionnaire.

Open to Interpretation

Not only were results open to rationalization, they were open to interpretation. Detective Durham concluded Misskelley had failed his polygraph examination, "lying his ass off." Misskelley's attorneys recruited Warren Holmes, a polygraph expert who had worked on the John F. Kennedy and Martin Luther King assassinations. Holmes read Misskelley's polygraph charts and concluded he had only lied about past drug use.

If polygraphs are valid and Holmes was correct, then Misskelley is innocent. If polygraphs are invalid, the entire foundation of the investigation was flawed. For Misskelley to be guilty, either Holmes would have to be wrong or this particular polygraph reading would need to be wrong.

A Lie Detecting Stone

I have a lie-detecting stone. It will dance and sing when people lie. Over the course of my investigation, I place it in front of fifty people. I interview them and it does nothing - it is, after all, a stone. Later, after two of these individuals are found guilty, my stone can claim a 96% success rate. It correctly did nothing when the 48 innocent people spoke in front of it, only failing to move for the two guilty.

The problems with polygraphs are more complicated than this. Unlike the stone, they do register responses. Deception, when the stakes are high, can initiate an elevated physiological reaction. The problem is that the results are not presented as such. It was not said, "specific questions elicited unusually heightened reactions." It was said Misskelley was "lying his ass off." And there's the rub: polygraphs are not given the weight of machines that etch out multiple graphs - they are claimed to be "lie detectors."

Various figures are bandied about for the accuracy of polygraphs. They are "95% accurate in the hands of a specialist." (Not as accurate as my stone.) Such statements make scientists cringe. Scientists want data that speak for themselves, not ones that only communicate via an elite priesthood. How does one know a given practitioner has that 95% accuracy or is only at 70%?

Polygraphs, in their ambiguities, solidify the prejudices of an investigation. They blunt the rational investigation. The things that make a good suspect are prior behavior, connection to the victims, indirect or physical evidence. These should not be negated or held hostage to the degree of physiological reaction suspects exhibit when they lie or tell the truth.




Detective Ridge notes, Misskelley polygraph. "Lying his ass off"


Gary Ray Chadwick 05-07-1993 (no deception indicated)
Timothy Robert Cotten 05-08-1993 (no deception indicated)
Damien Wayne Echols 05-10-1993 (deception indicated)
Christopher Douglas Littrell 05-10-1993 (no deception indicated)
Deanna Jane Holcomb 05-11-1993 (deception indicated to one question)
Murray J. Farris 05-11-1993 (no deception indicated)
Henry Franklin Knight 05-11-1993 (deception indicated to one question)
LG Hollingsworth, Jr. 05-11-1993 (deception indicated to one question)
Christopher Wayne Wahl 05-11-1993 (no deception indicated)
Kenneth Eugene Cagle 05-12-1993 (no deception indicated)
David Shane Wren 05-13-1993 (no deception indicated)
Edward Lynn Lucas 05-13-1993 (no deception indicated)
Richard Raymond Simpson 05-14-1993 (no deception indicated)
Jerry Alan Nearns 05-14-1993 (no deception indicated)
Timothy Wayne Dodson 05-14-1993 (no deception indicated)
Thomas Charles Polletta 05-14-1993 (no deception indicated)
Robert DeAngelo 05-15-1993 (no deception indicated)
Danny Wayne Leffler 05-15-1993 (no deception indicated)
Steve Dewayne Skaggs 05-15-1993 (no deception indicated)
William Lawrence Welch 05-15-1993 (no deception indicated)
Charles Douglas Morton 05-17-1993 (no deception indicated)
James Kenney Martin 05-18-1993 (deception indicated to two questions)
Anthony A Barnes 05-18-1993 (no deception indicated)
Michael Leiter 05-25-1993 (no deception indicated)
Charles Michael Craig 05-25-1993 (deception indicated to one question)
Joseph Michael Reneau 05-26-1993 (no deception indicated)
Richard Raymond Simpson 05-26-1993 (deception indicated)
Dustin Charles Boyle 05-26-1993 (no deception indicated)
Jeffrey Paul Looney 05-27-1993 (no deception indicated)
Victoria Hutcheson 06-02-1993 (no deception indicated)
Jessie Misskelley 06-03-1993 (deception indicated)
Jason Lance Crosby 06-08-1993 (no deception indicated)
Louis Larry Baldwin 07-02-1993 (no deception indicated)
David Sims 07-16-1993 (no deception indicated)
Ronald George 08-09-1993 (no deception indicated)
Jesse Andrew Hurst 09-10-1993 (deception indicated)
Kenneth Clyde Watkins 09-16-1993 (deception indicated to three questions)
Christie Dawn Jones 10-01-1993 (no deception indicated)
Sandra K. Nodini 10-04-1993 (deception indicated)
Kenneth Clyde Watkins 10-12-1993 (deception indicated to two questions)
Buddy Sydney Lucas 10-14-1993 (deception indicated to three questions)

[Obscuregawdess]

Sticks gathered from "crime scene".

Inspector Gary Gitchell: Did you ever use, did anyone use a stick and hit the boys with?
Jessie Misskelley: Damien had kind of a big old stick when he hit that first one, after he hit him with his fist and knocked him down and then he got him a big old stick and hit him.
Gitchell: What did the stick look like, I mean was it like a, a, a big log like that or is it, is it a stick?
Misskelley: It, I would say it was about that, about that big around, I would say about that long.
Gitchell: Okay
Detective Bryn Ridge: About the size of a baseball bat, maybe just a little bit bigger around?
Misskelley: Mm-hmm. That's about right. [Misskelley confession, June 3, 1993]

Big Old Sticks

Upon Detective Gitchell's prompting, Misskelley said a stick had been used to hit one of the children. Misskelley went on to state a stick was used to choke Chris Byers to death.

Ridge: Okay, which one did you see killed?
Misskelley: That one right there.
Gitchell: Now, you're pointing to the Byers boy again?
Misskelley: Mm-hmm.
Ridge: How was he actually killed?
Misskelley: He did, he choked him real bad like.
Ridge: Choked him? Okay, what was he choking him with?
Misskelley: His hands, like a, like a stick, he had a big old stick, and he's kind of holding it over his neck. [ibid]

Each of the victims received a number of blunt trauma injuries consistent with being struck by a heavy object. The wounds did not, however, contain any wood fragments or splinters.

Defense attorney Paul Ford: Ok. But you would expect to find those - some sort of wood fragment left behind?
Medical Examiner Dr. Frank Peretti: I think I would expect to find some fragments.
Ford: Did you?
Peretti: No. [Echols/Baldwin trial]

The prosecution presented the sticks as potential weapons. The defense went on to quiz Peretti as to a long list of items that could have caused the contusions.

a 2 x 4 piece of wood
a baseball bat - (noted it would have a different but similar pattern)
a rolling pin
the flat part of shovel
a broom handle
a mop handle
the shovel handle
a jack handle
a flashlight
a tire iron
hundreds of items (general statement)
hundreds of items located in almost any household
There was also no evidence that any of the victims had been choked.

Defense attorney Dan Stidham: Dr. Peretti, if you were told that one of the victims was choked, specifically the victim Byers was choked with a big old stick, would you expect to find some evidence, some abrasions, bruising, a line of demarcation, something indicating choking?
Peretti: I would expect to find a pattern or injury on the neck and the underlying neck muscles.
Stidham: Did you find any such patterns?
Peretti: No.
Stidham: Did you find any such patterns on the victim, Byers, specifically?
Peretti: No.
Stidham: Was there any abrasions or injury to the strap muscles of the neck?
Peretti: No.
Stidham: Were there any fractures of the larynx or the...how do you say that?
Peretti: Hyoid bone. No.
Stidham: Would you expect to find those had a victim been choked?
Peretti: Well, you may not find fractures of the hyoid bone because in young children it's very difficult to fracture it but I would expect to find hemorrhage.
Stidham: So does it appear be any--does there appear to be any evidence of sodomy or choking on any of these victims?
Peretti: Um, no. [Misskelley trial]

Before Misskelley's confession several objects that could have caused blunt trauma were collected by the police. From the crime scene:

E-17, a long thin branch found floating in the water.
E-41, a claw hammer.
From suspect Richard Cummings:

E-25, tire billy.
E-29, E-30, E-31 three hammers.
Shortly after Misskelley's confession, several more items were gathered from the crime scene including E-132, wooden slats. Then one month later, Ridge returned to the crime scene and retrieved two large sticks, E-138 and E-139.

On July 1, 1993, I went to the crime scene to determine if any evidence could be found that had been overlooked during the initial searches of the area of the above noted homicide. I discovered that there were two sticks at the crime scene that had gone previously undetected. [Report, Detective Bryn Ridge]

In contrast to "previously undetected," at the trial Detective Ridge described E-139 as being the stick that was used to jam the children's clothing into the mud. Even though it was by definition an item handled by the perpetrator, it was not collected as evidence until two months after the murders.

Ridge: [Referring to a photo] This is the crime scene - this is the area here where the body of Michael Moore was located, this is the stick E-139 that had the shirt wrapped around the end of it that was jabbed into the mud.
Fogleman: Is that exhibit 55 for identification purposes?
Ridge: If that's the exhibit number, I'm not certain. Exhibit 38 is a photograph of me as I'm removing this shirt from the end of that stick of E-139. [Echols/Baldwin trial]


Exhibit 38, Detective Ridge holding up a shirt. Ridge identified the stick in his left hand as E-139.

The defense objected to the introduction of the sticks that were gathered in July.

Defense attorney Val Price: Judge, at this time we'd object to this stick. This stick is E number E-139 which was not recovered by Detective Ridge at the crime scene - this was a stick that Mr. Ridge found at the crime scene two months after the murders on July 1, 1993 and we object to this stick as being of relevance for any purpose. [Echols/Baldwin trial]

This objection led to a voir dire with the defense contesting the relevancy of the evidence.

Price: Ok. Well, on - isn't it true that on July the 1st 1993, you went back to the crime scene and found E-139 - that stick?
Ridge: Yes sir, that's correct.
Price: Ok. So that stick was not the stick that was at the crime scene?
Ridge: Yes sir, it is the stick that was at the crime scene.
Price: Alright, so - I guess I'm confused. At the time, you did not take that stick into evidence - at the time that y'all recovered the bodies?
Ridge: No sir. I didn't take this stick into evidence until the statement of Jessie Misskelley in which he said a stick -
Price: Your Honor! Move for a mistrial. Your Honor! [ibid]

In the Echols/Baldwin trial, Misskelley's confession could not be referenced. Since Misskelley was unwilling to testify to support the confession, the defendants would be denied their right to face their accuser. The event that initiated the mistrial hearing was odd - the stick being referenced was cited as being used to hold down the clothes and by itself this had nothing to do with the Misskelley confession. Furthermore, the gross oversight in not collecting it as evidence, one of the few items that had been certainly handled by the murderer, was never explained.

The mistrial hearing took place out of the hearing of the jury. It was brief and dramatic. The arguments reflected what was asked and said. Judge Burnett lead the argument against a mistrial with the prosecution barely getting a word in. Between the time when it was made certain the jury could not hear until Burnett formally declared, "Denied" there were 42 statements. The defense made twenty of these, Burnett made sixteen, and Fogleman made six. Of those six, three were to ask that the testimony be played back and one was to ask permission to speak. Burnett phrased the precipitating exchange as:

Burnett: You [Price] said, "I'm confused on that, you mean you didn't take the stick on - on the day that you were first there" - I'm paraphrasing. And then you said, "Did you go back later?" and he [Ridge] said "Yes sir, I went back after Jessie Misskelley's statement." [Burnett, Echols/Baldwin trial]

Burnett went on to say Price's question asked for why he went back and the answer was appropriate to the form of the question. "He basically asked him, "Well, why did you go back?" and he was proceeding to tell him why." [Burnett, ibid]

The defense said that there was nothing in the question that required Ridge's response and asked repeatedly that the actual testimony be played back for consideration. In an odd twist, the prosecution also asked repeatedly that the tape be played back. Burnett refused: "I heard it. I know what he said and in my opinion, it's not - it's not error in the first place." [Burnett, ibid]

Two matters were of importance. First, whether an error was made when Ridge responded in such a manner, and second whether what happened merited a mistrial. Burnett said there was not an error (quoted above). Secondly, he ruled against a mistrial because (1) no error was made, (2) the jury (and everyone) knew of the existence of the confessions and (3) Ridge's comment was on its existence not its content. Furthermore, Burnett stated that a mistrial was a harsh remedy. Burnett denied the mistrial and denied a severance of trials.

Burnett mischaracterized the question and answer. There was no "why" being asked. It was a yes or no question. The comment made by Ridge did include the content of Misskelley's confession, the fact that Misskelley had mentioned a stick, giving an important validation to this piece of wood. Burnett overruled even the prosecution's wishes that the statements be played back.

Defense attorney Davidson: I don't think he said that, Your Honor. We would like to ask the tape be played back and see what it says.
Fogleman: Well, let's play it back.
Davidson: Ok.
Fogleman: Let's play it back.
Davidson: That's what we say.
...
Fogleman: Your Honor, the state submits that - and maybe it might be good to play back the question and what the answer was. [Echols/Baldwin trial]

Later, after the motion for mistrial was denied, the defense aggressively attacked Ridge for his delay in retrieving the sticks - this time without incident.

Davidson: And you left that at the scene, is that correct?
Ridge: That's correct.
Davidson: Did a lightbulb ever go off in your heading thinking when you pulled that out that there may be some evidential value in that stick - and you just left it out there? Anything ever go through your mind like that?
Ridge: Not on that day it didn't, no sir. [ibid]

The defense ridiculed the recovery of the sticks again in their closing arguments.

Paul Ford: Then, Officer Ridge hits the jackpot. "I'll go back in July and find the murder weapon!" Take this stick. It's evidence. Take this stick, it just crumbles. The bark just crumbles. Was there any of this -- was there any of this on any of the injuries? Dr. Peretti said no. It just crumbles. Is there any blood on it, any hair on it, anything on it? Yet they want you to believe that’s it. That’s what they want you to believe. The witnesses won’t tell you that, but these prosecutors want you to believe that’s it. Why else would it be here? Two months after the crime when this murder weapon appears. [ibid]

Val Price: The State had said, particularly the stick that was used to push some of the clothing down in the water. Part of that stick was up above the water. And the testimony was, yes when things are in water, it's hard to get prints off of 'em, but if objects, you know, it's possible to get fingerprints off objects that aren't in water. When the police went to the crime scene and found that particular stick that was wrapped around the clothing, what do they do with that stick? They left it at the crime scene. And it wasn't until, not one, but two months later, that Detective Ridge went back out there and found that stick and I think found another one. [ibid]

No tissue, blood or fingerprints were found on the sticks. The prosecution did put on a witness to say there was evidence that one of the sticks had been handled. Ralph Turbyfill was the Chief Latent Fingerprints Examiner with the Arkansas State Crime Laboratory.

Fogleman: Alright. I want to show you what's been introduced as State's Exhibit 53. Do you recognize that? [Exhibit 53 had been previously identified as E-17]
Turbyfill: Yes, I do.
Fogleman: Alright. And did you also examine that item?
Turbyfill: I examined this item, this item was uh, processed using a chemical called ninhydrin. N-I-N-H-Y-D-R-I-N, which is an amino acid indicator. On paper, cardboard, and unpainted wood, that chemical is used and it turns the fingerprints a light purple or violet, you can -- there are indications that amino acids are present on this, however, there are no latent fingerprints of value for identification.
......
Fogleman: Alright. Alright. Ok. And what - I'm a little confused - what is the purpose of the thing about the amino acids?
Turbyfill: The body has amino acids in it and one of the chemicals that we use reacts or colors that particular amino acid. And this pink reaction is the result of the coloring of that amino acid. Which uh - fingerprints has that amino acid and on paper, unpainted wood, and cardboard we can detect fingerprints using that chemical. So - I mean that, just because there's reaction, that doesn't mean it was handled or that it was a fingerprint.
Fogleman: Ok. So it could mean that it was handled or it could be from something in the water?
Turbyfill: That's correct. It's possibly because it was handled.

Amino acids are one of the basic building blocks of all life, including bacterial, algae, plant and animal. Although it is possible that this stick was handled (Ridge does not appear to be wearing gloves while holding E-139 in the above photo), it is also possible this was a non-specific reaction. It was certain that the stick used to hold down the clothes had been handled, but this showed no reaction.


The three sticks.






http://www.jivepuppi.com/jivepuppi_the_sticks.html

[Obscuregawdess]

The following is an excerpt from an ANB story by John Lyon:

If death row inmate Damien Echols were tried today in the 1993 killing of three West Memphis boys, he would be acquitted, attorneys for Echols told reporters Thursday.

“We are here today to discuss the evidence that establishes that no reasonable juror would convict Damien Echols, essentially knowing what we know today,” lead attorney Dennis Riordan said at a news conference at the University of Arkansas at Little Rock law school.

On Monday, Echols’ lawyers filed a motion in federal court to overturn Echols’ conviction based on new evidence that includes DNA test results showing that no genetic material from Echols - or two other men convicted in the killings - was found on the victims’ bodies.

A spokeswoman for 2nd District Prosecutor Brent Davis, the lead prosecutor in the case, said Thursday that Davis would not comment on the case or the defense attorneys’ remarks.






http://shaunhair.wordpress.com/2007/11/ ... d-convict/

[Obscuregawdess]

That alphabet soup of a headline refers to a hearing tomorrow in Jonesboro in the appeal of the West Memphis Three murder case and the case's potential, according to defense lawyers, for becoming a landmark on use of DNA evidence.
NEWS RELEASE

(JONESBORO, AR) – In what could potentially lead to a historic moment for the Arkansas justice system, an appearance will be held April 15 in the Craighead County Superior Court to schedule a hearing on new DNA and forensic evidence in the case of the West Memphis 3. Exoneration based on this evidence would mark the first DNA-based amnesty in the state of Arkansas.
“With this case comes the chance to change the future, particularly as it pertains to the Arkansas justice system,” said Dennis Riordan, attorney for Damien Echols. “Clearing the good names of these three men will hold the system accountable, helping to ensure justice for these individuals and so many others like them.”
In 1994, these three men—then teenagers—were convicted in the triple homicide of three young boys in West Memphis, Arkansas in May of 1993. Just a month after the murders, with no physical evidence tying them to the crimes, Jason Baldwin and Jessie Misskelley, Jr., found themselves facing life in prison, while Damien Echols was forced to confront the horror of death row. Coupled with the coerced and facially false confession of Misskelley, a mentally deficient 17-year-old, negligible circumstantial evidence landed these boys in prison, where they have been forced to grow up over the last 15 years.
Now, circumstance and conjecture have given way to hard science: not a single one of the DNA samples taken from the crime scene indicates the presence of Damien Echols, Jason Baldwin or Jessie Misskelley at the scene or near the victims. DNA on the bodies and clothing of the victims does, however, indicate the presence of others at the crime scene.
In addition to the DNA evidence, several nationally recognized experts such as forensic odontologist Dr. Richard Souviron and forensic pathologist Dr. Werner Spitz have given testimony that effectively debunks and rebukes the prosecution’s theory of Satanic murders. In 1994, the prosecution, using literally a grapefruit and a serrated knife to “prove” its point, asserted that marks on the bodies were knife wounds inflicted as part of an occult ritual. However, in a November 2007 press conference, both Souviron and Spitz clearly explained the wounds to be bite and claw marks as a result of post-mortem animal predation often common to Arkansas Delta Bayou ecosystems.
“It took maybe seconds to make that observation,” Spitz said. Regarding the prosecution’s knife theory, Souviron said, “To sell that to a jury is unconscionable, in my opinion.”
In a motion for a new trial based on the scientific evidence, counsel for Echols have stated: “The years since Echols’ 1994 convictions have witnessed the development of new scientific techniques that have generated DNA evidence then unavailable, as well as ‘other evidence in the case’ that must now be considered regardless of whether the evidence was introduced at trial.
Under Arkansas’s statutory scheme, to gain a new trial Echols need not prove who was the party or parties responsible for these terrible crimes, nor need he prove his own innocence beyond a reasonable doubt. Rather he must and will demonstrate that the evidence now available, viewed in its totality and with a dispassion that was simply impossible when the case was first tried, ‘clearly,’ ‘convincingly,’ and ‘compellingly’ ‘establish[es] ... that a new trial would result in an acquittal.’”
In response to an urgent need for local awareness about this case, Arkansas Take Action, a 501(c)(3) non-profit organization, was founded in 2007. This diverse group of concerned Arkansas citizens is fighting to set these innocent men free and see the true killers brought to justice. More information about the case and ATA can be found at www.freewestmemphis3.org.
Posted by Max Brantley on April 14, 2008 01:24 PM

[CherokeeKid]

Campaign about new DNA evidence in West Memphis case misleading, attorney general says

By The Associated Press

This article was published Wednesday, January 16, 2008.

Attorney General Dustin McDaniel said Wednesday that he hasn’t seen any evidence exonerating the three teens convicted in the brutal 1993 killings of three 8-year-old boys in West Memphis, slamming their supporters for running a “misleading” campaign.

“I’m growing increasingly frustrated by what I see as a misleading press campaign to suggest that there’s new DNA evidence that in some way exonerates these boys that a jury found guilty and whose appeals they all lost. There is no new DNA evidence that exonerates these boys at all,” McDaniel told reporters.

“If there was any new evidence that exonerated the defendants, I would be the first one to start approaching the governor on options on bringing justice to the matter. But I’ve seen nothing, at this point, that leads me to believe that Judge (David) Burnett should on the basis of newly discovered scientific evidence grant a new trial,” McDaniel said.

Laywers for Damien Echols say they plan to bring a new appeal to a state judge by the middle of next month. The decision comes after U.S. District Court Judge William R. Wilson Jr. asked Echols to present parts of his new wide-ranging appeal to state courts before seeking relief from federal courts.

Echols, now 33, was sentenced to death for the slayings of Stevie Branch, Christopher Byers and Michael Moore. Co-defendant Jason Baldwin received a life sentence without parole, while Jessie Misskelley received a life-plus-40-year sentence for the killings.

The three victims disappeared May 5, 1993, while riding bicycles in their quiet, tree-lined neighborhood. The bodies of the three Cub Scouts were found the next day in a watery ditch near their homes.

Police arrested the three teenagers after a confession by Misskelley in which he described how he watched Baldwin and Echols sexually assault and beat two of the boys. Misskelley said he ran down another boy trying to escape. Prosecutors say the killings stemmed from the teens’ participation in a satanic cult.

The Arkansas Supreme Court upheld the convictions, but a later documentary about the case sparked interest across the Internet, as well as among celebrities. Last month, about 150 supporters of the “West Memphis Three,” including Dixie Chicks lead singer Natalie Maines, rallied on the steps of the state Capitol.

Echols’ attorneys say much of the DNA testing ordered by the Craighead County Circuit Court in 2005 has been completed. Echols’ new appeal claims evidence tested from the crime scene showed no traces of the him or the two other men convicted in slayings, though much of the evidence failed to yield reportable results. The appeal also includes testimony from forensic experts saying the genital mutilation of one of the boys likely came from an animal after their deaths.

Echols’ attorneys said in a statement that the DNA evidence is still relevant even if it does not conclusively prove who didn’t kill the three boys.

“The question rather is whether any reasonable jury knowing what we now know about the state of the evidence would convict the defendants today,” attorneys Dennis Riordan and Donald Horgan said in a prepared statement.

http://www2.arkansasonline.com/news/200 ... his-case-/

[pax]

“If there was any new evidence that exonerated the defendants, I would be the first one to start approaching the governor on options on bringing justice to the matter. But I’ve seen nothing, at this point, that leads me to believe that Judge (David) Burnett should on the basis of newly discovered scientific evidence grant a new trial,” McDaniel said.

I think Attorney General McDaniel is correct that new evidence that the defendants' dna was not present at the crime scene isn't necessarily proof of exoneration.

But I think there are many other reasons to grant them a new trial, primarily the lack of due process they received at their original trials. I think if they received a fair trial today they'd be acquitted.

[Obscuregawdess]

“If there was any new evidence that exonerated the defendants, I would be the first one to start approaching the governor on options on bringing justice to the matter. But I’ve seen nothing, at this point, that leads me to believe that Judge (David) Burnett should on the basis of newly discovered scientific evidence grant a new trial,” McDaniel said.

I think Attorney General McDaniel is correct that new evidence that the defendants' dna was not present at the crime scene isn't necessarily proof of exoneration.

But I think there are many other reasons to grant them a new trial, primarily the lack of due process they received at their original trials. I think if they received a fair trial today they'd be acquitted.

INDEED, Pax! And how Burnett kept so much out for the defene and allowed so much in. He did not get prosecutors on misconduct, as he should have for allegedly bribing and threatening witnesses according to the witneses themselves... and how they moved Jessie from prison to the local jail before Damien and Jason's trial without Stidham's knowledge and visiting him every day. I am especially appalled at Burnett limiting Stidham's defense, Wilkins and especially Ofshe. Just ridiculous! With a fair trial today, I agree, they would all three be acquitted. No doubt in my mind.

[pax]

INDEED, Pax! And how Burnett kept so much out for the defene and allowed so much in. He did not get prosecutors on misconduct, as he should have for allegedly bribing and threatening witnesses according to the witneses themselves... and how they moved Jessie from prison to the local jail before Damien and Jason's trial without Stidham's knowledge and visiting him every day. I am especially appalled at Burnett limiting Stidham's defense, Wilkins and especially Ofshe. Just ridiculous! With a fair trial today, I agree, they would all three be acquitted. No doubt in my mind.

According to Blood of the Innocents, Burnett was highly regarded, courteous and thoughtful. But as a former prosecutor and judge, was known as pro prosecution and down on psychiatrists. During the trial he was writing a masters thesis on how expert testimony from psychiatrists doesn't help arrive at the truth any better than laymen opinions. I think Ofshe's testimony on weaknesses in confessions is very significant. Particularly that those who are less smart and lack self esteem are highly suggestible, that Misskely didn't say anything that wasn't highly leading from police, that there were tremendous inconsistencies in the 'confession,' and that we don't know what police were saying before and after the Jesse's statements because they aren't recorded. I'd like to read more about false confessions.

It's very interesting that Jesse recanted the entire 'confession' and that after he was convicted he refused to testify against Jason and Damien even though prosecutors offered to reduce his sentence. What a horrible tragedy if one long day he said stupid stuff that was used against him the rest of his life.

There was a hearing to suppress the confession, but Judge Burnett ruled to allow it. I'd like to read the transcript of that hearing if it's available. It seems to me it should have been suppressed. Even more shocking to me is that police and prosecutors used it as the basis to prosecute all three. It has so many holes, leading questions, inconsistencies about physical evidence, and huge gaps in time frames. I think it should have been suppressed. It's shoddy police work, imo.

[Obscuregawdess]

According to Blood of the Innocents, Burnett was highly regarded, courteous and thoughtful. But as a former prosecutor and judge, was known as pro prosecution and down on psychiatrists. During the trial he was writing a masters thesis on how expert testimony from psychiatrists doesn't help arrive at the truth any better than laymen opinions. I think Ofshe's testimony on weaknesses in confessions is very significant. Particularly that those who are less smart and lack self esteem are highly suggestible, that Misskely didn't say anything that wasn't highly leading from police, that there were tremendous inconsistencies in the 'confession,' and that we don't know what police were saying before and after the Jesse's statements because they aren't recorded. I'd like to read more about false confessions.

It's very interesting that Jesse recanted the entire 'confession' and that after he was convicted he refused to testify against Jason and Damien even though prosecutors offered to reduce his sentence. What a horrible tragedy if one long day he said stupid stuff that was used against him the rest of his life.

There was a hearing to suppress the confession, but Judge Burnett ruled to allow it. I'd like to read the transcript of that hearing if it's available. It seems to me it should have been suppressed. Even more shocking to me is that police and prosecutors used it as the basis to prosecute all three. It has so many holes, leading questions, inconsistencies about physical evidence, and huge gaps in time frames. I think it should have been suppressed. It's shoddy police work, imo.

I couldn't agree more, Pax. I am bugged at how the judge is biased against psychiatrists. I can see how sometimes it may be a little unnecessary, but in a situation such as this it was much needed like you said. I'll bet Jessie feels terrible about how this ended up for him, especially since the events he decribed probably never happened... and he has screwed up his life and two others'. What a tragic situation for three young boys and three young men.

I thought I posted that hearing in the trial/court thread but, if not, I'll send it your way.

[Obscuregawdess]

I see Ofshe worked on the Warren Jeffs case also... Interesting. I think Judge Burnett was also jealous of a man with so many credentials.

[Obscuregawdess]

CR 94-848 ___ S.W.2d ___



Supreme Court of Arkansas



Opinion delivered February 19, 1996



1. Appeal & error -- appeal of criminal conviction -- review of sufficiency -- general rule. -- It is the general rule that, where an appellant challenges the sufficiency of the evidence on appeal of a criminal conviction, the appellate court addresses that issue before all others.



2. Motions -- directed-verdict motion defined -- substantial evidence defined. -- A directed-verdict motion is a challenge to the sufficiency of the evidence; the test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury's verdict; substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture; the appellate court reviews the evidence in the light most favorable to the appellee and considers only the evidence that supports the verdict.



3. Jury -- determination of credibility -- free to believe part of evidence and reject other parts. -- Where inconsistencies appear in the evidence, the appellate court defers to the jury's determination of credibility; a jury is free to believe part of the evidence before it and reject other parts.



4. Criminal law -- "purposely" defined. -- Under Ark. Code Ann. § 5-2-202(1) (Repl. 1993),a person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.



5. Criminal law -- murder -- intent usually inferred from circumstances. -- In cases of murder, a defendant's intent is seldom capable of proof by direct evidence; it must usually be inferred from the circumstances of the killing.



6. Criminal law -- accomplice liability -- factors. -- A defendant may be found guilty not only of his own conduct, but also the conduct of his accomplice; where two or more persons assist one another in the commission of a crime, all are accomplices and criminally liable for each other's conduct; the following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation.



7. Criminal law -- accomplice liability -- mere presence, acquiescence, silence, or knowledge not sufficient -- when conviction will be upheld. -- Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice; where, however, the State establishes evidence that the accused purposefully aided in the commission of the crime, aconviction for first-degree murder based on accomplice liability will be upheld.



8. Criminal law -- accomplice liability -- substantial evidence that appellant purposely aided and facilitated commission of first-degree murder. -- The supreme court concluded that the jury's decision to convict appellant of a greater offense in the death of one of the victims indicated that much importance was placed on appellant's chasing down the boy and returning him to the scene where brutal beatings and sexual assaults were taking place; such an act was highly suggestive of joint participation in the crime; there was also evidence that appellant knew the night before the murders that his two accomplices were going to "get some boys" and hurt them; the supreme court noted that appellant's participation in bizarre cult activities with his accomplices, while not conclusive of intent standing alone, reinforced the probability of his participation in such brutal murders; finally, appellant's detailed knowledge of the injuries inflicted on the boys suggested that he was in physical proximity to the activities taking place and took a much more active role than he admitted; the jury was not required to give credence to the appellant's contention that, for the most part, he was merely an observer; the supreme court concluded that there was substantial evidence the appellant purposely aided and facilitated his accomplices in the commission of first-degree murder and held that there was sufficient evidence to support his conviction.



9. Criminal procedure -- confessions -- review of voluntariness -- factors. -- Where thevoluntariness of a confession is at issue, the supreme court makes an independent determination of voluntariness based upon the totality of the circumstances surrounding the confession and does not reverse the trial court's finding of voluntariness unless it is clearly against the preponderance of the evidence; among the factors to be considered in determining the validity of a confession are the age, education and intelligence of the accused, the advice or lack of advice on constitutional rights, the length of detention, the repeated or prolonged nature of questioning, or the use of mental or physical punishment.



10. Criminal procedure -- confessions -- custodial confession presumed involuntary. -- A custodial confession is presumed involuntary and the burden is on the State to show that the confession was voluntarily made.



11. Criminal procedure -- confessions -- false promise of reward or leniency invalidates confession -- no evidence appellant's confession obtained in such a manner. -- A confession obtained through a false promise of reward or leniency is invalid; however, there was no evidence that the appellant's confession was obtained in such a manner; despite the use of a circle diagram to encourage appellant to respond to questions, there was no implication that if the appellant talked the officers would recommend leniency or try to help him in any way; likewise, the existence of a monetary reward did not invalidate the confession; although their testimony was disputed, the police officers testified at thesuppression hearing that they did not communicate the reward offer to the appellant at any time, and the trial judge was entitled to believe this evidence.



12. Criminal procedure -- confessions --
-- age and mental capacity alone are not sufficient to suppress confession. -- While age and mental capacity are factors considered in determining voluntariness, they are not, standing alone, sufficient to suppress a confession.



13. Criminal procedure -- confessions -- youth alone not sufficient to exclude confession. -- At the time appellant was interrogated he was seventeen years old, and just thirty-seven days away from his eighteenth birthday; persons younger than he have been held capable of giving voluntary confessions.



14. Criminal procedure -- confessions -- low intelligence quotient alone will not render confession involuntary. -- Although evidence indicated that appellant's intelligence quotient was 72 and that he read at a third-grade level, a low score on an intelligence-quotient test does not mean that a suspect is incapable of voluntarily making a confession or waiving his rights.



15. Criminal procedure -- confessions -- appellant repeatedly advised of his rights -- no stranger to criminal-justice system. -- Appellant, who was nearly eighteen years old whenhe made his confession, was advised of his rights, both verbally and in writing, on three separate occasions over the course of four hours; there was evidence that, between 1988 and 1992, he had been advised of his rights in juvenile proceedings on three occasions; appellant was no stranger to the criminal-justice system, a factor that the supreme court has considered in the past.



16. Criminal procedure -- confessions -- four-hour interrogation not undue -- officers' persistent questioning was permissible -- no evidence of mental or physical punishment. -- Between the first time appellant was advised of his rights and the time he gave his first statement, a period of just over four hours elapsed, which was not undue; the officers' questioning was persistent, but that was permissible; there was no evidence of mental or physical punishment.



17. Criminal procedure -- confessions -- police may use some psychological techniques so long as accused's free will is not completely overborne -- numerous factors pointed to voluntariness of confession. -- The police may use some psychological tactics in eliciting a custodial statement so long as the accused's free will is not completely overborne; police use of a circle diagram symbolizing those who committed the murders and those who were trying to solve the crime, a polygraph examination, and a picture of the victim did not invalidate the confession; the supreme court observed, however, that the tactic of playing atape recording of a boy's voice saying "Nobody knows what happened but me" came perilously close to psychological overbearing, and the court could not condone its use; in this instance, however, because numerous other factors pointed to the voluntariness of the confession, the supreme court would not invalidate the confession.



18. Criminal procedure -- confessions -- trial judge's determination of voluntariness was correct -- waiver of rights was voluntary. -- After an independent review of the foregoing factors, the supreme court concluded that the trial judge's determination of voluntariness was correct; the appellate court was also convinced, based upon the same facts, that appellant's waiver of his rights was voluntary, knowing, and intelligent; when the supreme court analyzes the validity of a rights waiver, it looks to many of the same factors used in determining the voluntariness of a confession.



19. Criminal procedure -- confessions -- juveniles -- failure to obtain parent's signature on waiver form does not render confession inadmissible -- requirement of parental consent limited to juvenile-court proceedings. -- At the time the appellant signed his waiver, Ark. Code Ann. § 9-27-317(f) (Repl. 1993) provided that a juvenile's waiver form must be signed by a parent, guardian, or custodian; where a person under age eighteen is charged as an adult in circuit court, failure to obtain a parent's signature on a waiver form does not render a confession inadmissible; when a juvenile is charged as an adult, he becomes subject to theprocedures applicable to adults; the requirement of parental consent is limited to juvenile-court proceedings.



20. Constitutional law -- statutes presumed constitutional -- when classifications permitted. -- On appellate review, the supreme court presumes that a statute is constitutional, and the attacking party has the burden of proving otherwise; all doubts are resolved in favor of constitutionality; classifications are permitted that have a rational basis and are reasonably related to a legitimate government purpose; the supreme court's role is not to discover the actual basis for the legislation, but to consider whether any rational basis exists that demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government purpose.



21. Constitutional law -- statutes -- rationale for distinction between rights accorded those tried in juvenile court and those tried as adults. -- The supreme court concluded that a rationale could be found for a distinction between the rights accorded those tried in juvenile court and those tried as adults that would remove Ark. Code Ann. § 9-27-317(f) (Repl. 1993) from the specter of arbitrary and capricious government purpose, namely that a juvenile over the age of sixteen who commits a crime that would subject him to adult punishment will not be accorded the protection of full parental involvement in the interrogation process.



22. Criminal procedure -- warning to persons asked to appear at police station. -- Arkansas Rule of Criminal Procedure 2.3 requires an officer who asks a person to come to a police station to take reasonable steps to make it clear that there is no legal obligation to comply with the request.



23. Appeal & error -- objections must be raised in timely manner. -- Objections must be raised in a timely manner.



24. Appeal & error -- issue precluded from appellate review where there is no clear ruling by trial court. -- An issue is precluded from review on appeal where there is no clear ruling by the trial court; where appellant obtained rulings on the voluntariness of his confession and his waiver, but no ruling on his illegal seizure, the supreme court did not consider the issue.



25. Criminal procedure -- confessions -- failure of police to record entire interrogation --not required by Arkansas law -- considered as factor -- did not invaldate confession. -- Although appellant attacked the failure of the police to record the interrogation in its totality, no Arkansas law requires such a procedure; the supreme court will consider such a factor in the totality-of-the-circumstances mix but will not invalidate a confession for that reason alone.



26. Constitutional law -- statutes -- accomplice testimony -- rationale for greater safeguards where appellant's conviction is based on testimony of third person. -- Arkansas Code Annotated § 16-89-111(e)(1) (1987) provides that a conviction may not be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the appellant with the commission of the offense; there is a legitimate rationale for greater safeguards where an appellant's conviction is based on the testimony of a third person rather than on his own words.



27. Discovery -- denial of -- discretion of trial court -- policy considerations regarding depositions of police officers -- no abuse of discretion. -- Where the trial court offered to make the interrogating officers available for questioning but would not require them to submit to depositions, the supreme court declared that it does not reverse for failure to grant discovery in a criminal case without a showing of abuse of discretion; public-policy considerations dictate that depositions of police officers should not be taken as a matter of routine, but only in rare cases, subject to the trial court's discretion; a defendant's discovery needs are ordinarily met by the broad access given to him by the rules of criminal procedure; the supreme court found nothing in the record to indicate that the trial court had abused its discretion in denying the depositions.



28. Evidence -- trial court accorded wide discretions in rulings. -- A trial court is accordedwide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion.



29. Evidence -- polygraph tests -- results not admissible. -- Where appellant argued that his proffered evidence concerning the results of his polygraph test was necessary to apprise the jury of the totality of the circumstances surrounding his confession, the supreme court reasserted its long-standing rule prohibiting the admission of polygraph results.



30. Evidence -- trial court's exclusion of polygraph results upheld. -- The supreme court, noting the unreliability of polygraph tests, upheld the trial court's exclusion of evidence of the results of appellant's polygraph examination.



31. Evidence -- expert testimony -- witness not allowed to refer to interview with appellant -- no prejudicial violation of Ark. R. Evid. 703. -- Where appellant's expert in the coercive influence of police interrogation techniques was allowed to offer an opinion that the tactics used by the West Memphis Police were suggestive and led the appellant to make his statements but was not permitted to refer to a three-hour interview he had conducted with appellant, appellant argued that the trial court erred, citing Ark. R. Evid. 703 for the proposition that an expert must be able to reveal the factual bases for his opinions; the supreme court held that appellant had not shown that he was prejudiced under Rule 703 bythe court's ruling, noting that the expert was allowed to identify all other matters on which he based his opinion, such as the transcripts of appellant's statements, appellant's treatment records, the officers' notes, and the officers' testimony; additionally, during cross-examination, the expert was asked whether he had formed a preliminary opinion regarding the coercive nature of the interrogation, and he answered that his opinion at that point was "based on the materials available to me which included my having interviewed Jessie Misskelley"; the jury was thus informed that the expert had interviewed appellant and had used that interview as a basis for his opinion.



32. Evidence -- expert testimony -- "suggestibility" test results -- appellant not prejudiced by trial court's refusal to allow -- witness allowed to offer opinion. -- Where the trial court refused to allow evidence of a suggestibility test administered, admittedly for the first time, by a psychologist who, as appellant's expert witness, was allowed to offer his opinion and who, further, informed the court that his opinion would not be altered by the absence of test results, the supreme court concluded that appellant could not show that he was prejudiced by the court's ruling; the supreme court does not reverse in the absence of prejudice.



33. Evidence -- relevant evidence defined -- trial court's ruling on relevancy given great weight. -- Relevant evidence is any evidence having the tendency to make the existence ofany fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence; a trial court's ruling on relevancy is entitled to great weight and will be reversed only for an abuse of discretion.



34. Evidence -- every item of challenged evidence corroborated some aspect of appellant's confession -- evidence offered by the State to corroborate other evidence is relevant. -- The supreme court held that every item of evidence challenged by appellant as irrelevant served to corroborate some aspect of appellant's confession; evidence that is offered by the State to corroborate other evidence is relevant.



35. Evidence -- any corroboration of confession was highly probative -- ruling admitting evidence upheld. -- The supreme court rejected appellant's argument that the challenged evidence was more unfairly prejudicial than probative; with the confession being the State's only meaningful evidence against the appellant, any corroboration was highly probative; this was especially true in light of appellant's contention that his confession was false; the prejudicial effect of the evidence was not so high as to outweigh its important probative value, and the supreme court deferred to the sound discretion of the trial judge and upheld his ruling admitting the evidence.



36. Trial -- jury instructions -- AMCI 401 matched statutory language -- no error to refuseproffered non-AMCI instruction. -- If an Arkansas Model Criminal Instruction is available on a subject, a non-AMCI instruction should not be used unless the AMCI does not state the law; where the trial court instructed the jury on accomplice liability using AMCI 401, which matched the language contained in Ark. Code Ann. § 5-2-403(a) (Repl. 1993) and was a proper statement of the law, it was not error to refuse appellant's proffered instruction.



37. Trial -- jury instructions -- failure to instruct on lesser-included offense is harmless error where jury convicted defendant of greater offense. -- Failure to instruct on a lesser-included offense is harmless error where a jury has been instructed on some lesser-included offense yet has convicted the defendant of a greater offense.



38. Trial -- jury instructions -- proper to refuse instruction if not supported by rational basis -- no rational basis for manslaughter instruction. -- It is proper to refuse an instruction on manslaughter if there is no rational basis to support it; appellant, who asked for a manslaughter instruction on the chance that the jury might consider his conduct reckless, as opposed to purposeful or knowing, was fully aware of the magnitude of the crimes to which he was an accomplice; he was fully aware of the severe beating, cutting, and sexual molestation of the victims; his retrieval of the boy who tried to escape was evidence of an overall state of mind which far exceeded the "gross deviation from the standard of care" involved in reckless conduct; the supreme court held that there was no rational basis for amanslaughter instruction.



39. Criminal law -- motion for new trial -- newly dicovered evidence -- grounds for reversal. -- Newly discovered evidence is the least-favored ground for a new-trial motion; where a new trial is denied on this ground, the supreme court will reverse only for an abuse of discretion; to prevail, appellant must show that the new evidence would have impacted the outcome of his case and that he used due diligence in trying to discover the evidence.



40. Criminal law -- motion for new trial -- newly discovered evidence -- appellant did not use due diligence in trying to discover most of evidence. -- Although appellant used due diligence in seeking an opinion from the medical examiner regarding time of death, the same could not be said of the evidence regarding the use of a knife and the scene of the murders, which was brought out in the accomplices' trial on cross-examination; the supreme court determined that appellant did not show that, prior to his conviction, he could not have discovered such evidence.



41. Criminal law -- motion for new trial -- newly discovered evidence -- medical examiner's opinion would not have had impact on trial's outcome -- trial court did not abuse its discretion in denying new trial. -- The supreme court concluded that the medical examiner's opinion concerning time of death would not have had an impact on the outcomeof appellant's trial because appellant's statements were already filled with mistakes, inconsistencies, and gross inaccuracies regarding the time that the murders took place, and it was obvious that the jury disregarded appellant's time estimates, as it was their right to do; under the circumstances, the supreme court held that the trial court did not abuse its discretion in denying appellant's motion for a new trial.



Appeal from Clay Circuit Court; David Burnett, Judge; affirmed.



Stidham & Crow, by: Daniel T. Stidham and Gregory L. Crow, for appellant.



Winston Bryant, Att'y Gen., by: J. Brent Standridge, Asst. Att'y Gen., for appellee.



Bradley D. Jesson, Chief Justice.



On June 21, 1993, the appellant, Damien Echols, and Charles Jason Baldwin were charged with the murders of three West Memphis boys. Steven Branch, Christopher Byers, and Michael Moore, all eight years of age, had been missing since the early evening hours of May 5, 1993. Their bodies were found the next day submerged in a creek in a park-like area of West Memphis known as Robin Hood. The boys' bodies were nude, their hands and feet had been tied, and it was evident they had been severely beaten and mutilated.



The West Memphis Police began an extensive investigation. On June 3, 1993, they questioned the appellant regarding any knowledge he might have about the murders. In the course of theinterrogation, he made statements in which he implicated himself, Baldwin, and Echols. All three were arrested and charged with capital murder.



The appellant was tried separately from Baldwin and Echols.1 The jury convicted him of first-degree murder in the death of Michael Moore, for which he received a life sentence, and second degree murder in the deaths of Steven Branch and Christopher Byers, for which he received a combined sentence of 40 years. It is from these convictions that he appeals. He raises numerous and varied points for reversal. After thorough consideration of each issue, we find no error and affirm the convictions.



Sufficiency of the Evidence



It is our general rule that, when an appellant challenges the sufficiency of the evidence, we address that issue prior to all others. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The appellant's argument is directed solely to his first-degree murder conviction.



At the close of the state's case, and again at the close of all evidence, the appellant moved for a directed verdict. He claimed that the state failed to prove he had acted with the purpose of causing the deaths of the three boys, or that he had acted as an accomplice to the commission of a homicidal act. The trial court denied the motion.



A directed-verdict motion is a challenge to the sufficiency of the evidence. Durham v. State, 320Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury's verdict. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We review the evidence in the light most favorable to the appellee and consider only that evidence which supports the verdict. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).



The Moore, Byers, and Branch boys were last seen at approximately 6:00 p.m. on May 5, 1993. At least two of the boys were riding their bicycles. Their parents reported them missing at about 8:00 p.m. Police and area residents conducted a search later that evening, but the boys were not found. The search continued on May 6. The boys' bodies were discovered about 1:15 that afternoon.



On June 3, 1993, the crime having remained unsolved, Detective Sergeant Mike Allen sought the appellant out for questioning. The appellant was not considered a suspect, but it was thought he might have knowledge about Damien Echols, who was a suspect. Detective Allen located the appellant and brought him back to the station, arriving at approximately 10:00 a.m. Later in this opinion, we will address in detail the circumstances surrounding the appellant's interrogation. For now, it is sufficient to say that the appellant was questioned off and on over a period from 10:00 a.m. until 2:30 p.m. 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 the appellant 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 the appellant's description of the crime:



In the early morning hours of May 5, 1993, the appellant received a phone call from Jason Baldwin. Baldwin asked the appellant to accompany him and Damien Echols to the Robin Hood area. The appellant 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 appellant, he was merely an observer.



While these events were taking place, Michael Moore tried to escape and began running. The appellant chased him down and returned him to Baldwin and Echols. The appellant 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 the appellant, 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 the appellant 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.



The appellant 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.



The appellant 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.






The appellant 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, the appellant 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 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.



One of the interrogating officers later testified that his notes revealed the appellant told him he received a phone call from Baldwin on the night before the murders. Baldwin stated that they planned to go out and get some boys and hurt them.



The appellant'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. However, there were portions of the statements which were consistent with the evidence and were corroborated by the state's testimony and exhibits. The victims had been seen riding their bicycles.2 The medical examiner testified that the boys had been severely beaten. Two of them had injuries consistent with being hit by a large object. One of the boys had facial lacerations. The Byers boy had indeed been severely mutilated in the genital area. All the boys had injuries which were consistent with rape and forced oral sex. There was evidence that drowning contributed to the deaths of the Moore and Branch boys, but not the Byers boy. This is consistent with the appellant's statement that the Byers boy was already dead when he left the scene. The boys were in fact tied up, albeit with shoe laces rather than rope. Damien Echols was observed near the crime scene at 9:30 p.m. on May 5. He was wearing black pants and a black shirt and his clothes were muddy. A witness testified that she had attended a satanic cult meeting with Echols and the appellant. Steven Byers's mother testified that, approximately two months before the murders, her son told her that a man dressed all in black had taken his picture. There was evidence that Baldwin owned a shirt and boots of the type described by the appellant. Finally, a witness from the State Crime Lab testified that she found fibers on the victims' clothing which were microscopically similar to items in the Baldwin and Echols residences.



The appellant does not argue that the inconsistencies in his statements render them insufficient. Indeed, when inconsistencies appear in the evidence, we defer to the jury's determination of credibility. A jury is free to believe part of the evidence before it and reject other parts. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). However, the gravamen of this issue is whether the evidence contained in the statements supports a verdict of first-degree murder.



The appellant argues that he did not possess the requisite state of mind for the crime. The jury was instructed that they could find the appellant guilty of first-degree murder if they found he acted with the purpose of causing the death of one of the victims. This is consistent with the language ofArk. Code Ann. § 5-10-102(a)(2) (Repl. 1993).3 The jury was also instructed on accomplice liability as follows:



In this case, the state does not contend that Jessie Lloyd Misskelley, Junior acted alone in the commission of the offense of three counts of capital murder. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense. An accomplice is one who directly participates in the commission of an offense or who with the purpose of promoting or facilitating the commission of an offense agrees to aid, aids, or attempts to aid the other person or persons in the planning or committing the offense.



This instruction is consistent with AMCI 401 and Ark. Code Ann. § 5-2-403(a)(2) (Repl. 1993).



A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1993). In cases of murder, a defendant's intent is seldom capable of proof by direct evidence. It must usually be inferred from the circumstances of the killing. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995).



A defendant may be found guilty not only of his own conduct, but also the conduct of his accomplice. When two or more persons assist one another in the commission of a crime, all are accomplices and criminally liable for each other's conduct. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). The following factors are relevant in determining the connection of anaccomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. Id. Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993) (supplying intoxicant to one who later commits manslaughter does not support accomplice liability for manslaughter). However, where the state establishes evidence that the accused purposefully aided in the commission of the crime, a conviction for first-degree murder based on accomplice liability will be upheld. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994).



The jury's decision to convict the appellant of a greater offense in the death of Michael Moore indicates that much importance was placed on the appellant's chasing down the boy and returning him to the scene where brutal beatings and sexual assaults were taking place. Such an act is highly suggestive of joint participation in the crime. There was also evidence that the appellant knew the night before the murders that Baldwin and Echols were going to "get some boys" and hurt them. His participation in bizarre cult activities with Baldwin and Echols, while not conclusive of intent standing alone, reinforces the probability of his participation in such brutal murders. Finally, the appellant's detailed knowledge of the injuries inflicted on the boys suggests that he was in physical proximity to the activities taking place and took a much more active role than he admitted. The jury was not required to give credence to the appellant's contention that, for the most part, he was merely an observer. Riggins v. State, supra.



We conclude that there is substantial evidence the appellant purposely aided and facilitated his accomplices in the commission of first-degree murder and therefore find sufficient evidence to support his conviction.



Voluntariness of Confession



Prior to trial, the appellant moved to suppress his confessions on the grounds that they were not voluntarily given, that his waiver of Miranda rights was not made voluntarily, knowingly and intelligently, and that his waiver of rights was invalid because it was obtained without his parent's signature (the appellant was seventeen at the time he was interrogated).



The testimony at the suppression hearing revealed the following sequence of events leading up to the appellant's confessions. Approximately one month into the investigation, the police considered Damien Echols a suspect in the murders, but no arrests had been made. The appellant's name had been given to officers as one who participated in cult activities with Echols. Detective Sergeant Mike Allen questioned the appellant on the morning of June 3, 1993. The appellant was not considered a suspect at that time.



Detective Allen attempted to locate the appellant at home, but was unsuccessful. He found the appellant's father at his work place and told him he wanted to talk to the appellant. Mr. Misskelley, Sr., said he would find the appellant and bring him to the work place. When the appellant arrived, Detective Allen asked him if he could come with him to the police department to talk about the case. The appellant readily accompanied Allen. He was not handcuffed and rode in the front seat of thecar.



The two arrived at the station at approximately 10:00 a.m. Detective Allen and Detective Bryn Ridge questioned the appellant 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 the appellant of his rights. Detective Allen read him a form entitled "YOUR RIGHTS," and verbally advised him of the Miranda rights contained in the form. The appellant responded verbally that he understood his rights and also initialled each component of the rights form. There was no evidence of any promises, threats or coercion.



The form also contained a section entitled "WAIVER OF RIGHTS," which read as follows:



I have read this statement of my RIGHTS and I understand what my RIGHTS are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing, no promises or threats have been made to me and no pressure or force has been used against me.



The waiver was signed by the appellant.



After he was advised of his rights and had waived them, the appellant was asked if he would take a polygraph examination. He agreed that he would. Detective Allen took the appellant to look for his father so that his father could grant permission for the appellant to take the polygraph.4 Theyobserved 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 the appellant's rights to him. The appellant verbally indicated he understood, and initialled and signed a second rights-and-waiver form that was identical to the first.



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



Detective Bryn Ridge and Inspector Gary Gitchell began another interrogation of the appellant at about 12:40 p.m. They employed a number of techniques designed to elicit a response from the appellant. A circle diagram was drawn and the appellant 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 reaction to it. According to Gitchell, the appellant 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 the appellant'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, the appellant stated that hewanted 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, the appellant 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 the appellant at the suppression hearing consisted primarily of the testimony of polygraph expert Warren Holmes. Mr. Holmes testified that, in his opinion, the appellant had not been deceptive in his answers to the polygraph questions. He raised the possibility that the appellant had been wrongly informed that he had failed.



Seven days after the suppression hearing, the trial court entered an order denying the motion to suppress. The appellant argues that the court's ruling was erroneous.



When the voluntariness of a confession is in issue, we make an independent determination of voluntariness based upon the totality of the circumstances surrounding the confession. We do not reverse a trial court's finding of voluntariness unless it is clearly against the preponderance of the evidence. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). Among the factors to be considered in determining the validity of a confession are the age, education and intelligence of the accused, the advice or lack of advice on constitutional rights, the length of detention, the repeated or prolonged nature of questioning, or the use of mental or physical punishment. Id. A custodial confession is presumed involuntary and the burden is on the state to show that the confession was voluntarily made. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995).



The appellant offers several reasons why we should invalidate his confession. First, he arguesthat the confession was the product of a promise of reward or leniency. He points to the use of the circle diagram, which he describes as an implied offer of leniency, and to the existence of a $30,000.00 reward which was in effect at the time the appellant was questioned. A confession obtained through a false promise of reward or leniency is invalid. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). However, there is no evidence that the appellant's confession was obtained in such a manner. The circle diagram, while used to encourage the appellant to respond to questions, cannot be considered as a false promise of leniency. There was no implication that if the appellant talked the officers would recommend leniency or try to help him in any way. Likewise, the existence of a monetary reward does not invalidate the confession. Although their testimony was disputed, the officers testified at the suppression hearing that they did not communicate the reward offer to the appellant at any time. The trial judge was entitled to believe this evidence. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994).



Next, the appellant argues that his age and mental capacity rendered his confession involuntary. While age and mental capacity are factors we consider, those factors standing alone are not sufficient to suppress a confession. Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Douglas v. State, supra.



At the time the appellant was interrogated he was seventeen years old, and just thirty-seven days away from his eighteenth birthday. Persons younger than he have been held capable of giving voluntary confessions. Oliver v. State, 322 Ark. 8, ___ S.W.2d ___ (1995) (fifteen-year old); Douglas v. State, supra (fifteen-year old); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985)(sixteen-year old); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), cert. denied, ___ U.S. ___, 115 S.Ct. 134 (1994) (sixteen-year old). The appellant also points to evidence that his IQ was 72 and that he read at a third-grade level. A low score on an intelligence-quotient test does not mean that a suspect is incapable of voluntarily making a confession or waiving his rights. Oliver v. State, supra; Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990). Oliver is particularly on point. There, we held that a fifteen-year old with an IQ of 74 and a second-grade reading level was capable of comprehending his Miranda rights and of waiving those rights. The appellant's situation is similar. In fact, he was two years older than Oliver and had a slightly higher reading level.



As we have pointed out, the appellant was nearly eighteen- years old when his confession was made. He was advised of his rights, both verbally and in writing, on three separate and distinct occasions over the course of four hours. There was evidence that, between 1988 and 1992, he had been advised of his rights in juvenile proceedings on three occasions. He was no stranger to the criminal justice system, a factor which we have considered in the past. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Between the first time the appellant was advised of his rights and the time he gave his first statement, a period of just over four hours elapsed, which is not undue. The officers' questioning was persistent, but that is permissible. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). There was no evidence of mental or physical punishment.



The appellant argues that his statements should be suppressed because of the techniques used by the police in questioning him. He is referring in particular to the use of the circle diagram, thepolygraph, the picture of the victim, and the tape recording of the boy's voice. We have said that police may use some psychological tactics in eliciting a custodial statement so long as the accused's free will is not completely overborne. Noble v. State, supra. In Noble, we held that showing the accused a picture of the victim and telling him he would not pass a polygraph didn't invalidate a confession. The circle diagram is a rather innocuous means of getting an accused to talk. It does not have any features which strike us as overbearing. The tape of the boy's voice gives us pause. This is the type of tactic that comes perilously close to psychological overbearing, and we cannot condone its use. However, in this instance, since numerous other factors point to the voluntariness of the confession, we will not invalidate the confession.



After an independent review of the foregoing factors, we conclude that the trial judge's determination of voluntariness was correct. We are likewise convinced, based upon the same facts, that the appellant's waiver of his rights was voluntary, knowing, and intelligent. When we analyze the validity of a rights waiver, we look to many of the same factors used in determining the voluntariness of a confession. See Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Hart v. State, supra.



The appellant's next attack on the validity of his confession concerns the failure to have a parent sign his waiver-of-rights form. At the time the appellant signed his waiver, Ark. Code Ann. § 9-27-317(f) (Repl. 1993)
provided that a juvenile's waiver form must be signed by a parent, guardian, orcustodian.5 We addressed this issue most recently in Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). We held that, when a person under age eighteen is charged as an adult in circuit court, failure to obtain a parent's signature on a waiver form does not render a confession inadmissible. The issue was first addressed in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). That opinion was delivered on May 17, 1993, seventeen days before the appellant was interrogated. We held unequivocally that, when a juvenile is charged as an adult, he becomes subject to the procedures applicable to adults. Therefore, the requirement of parental consent is limited to juvenile court proceedings. The appellant urges us to overrule Boyd and its progeny, but it would be the height of unfairness for us to tell the prosecutors and law enforcement officials of this state that a parental signature was not necessary, then declare nearly three years later that lack of such a signature was fatal to an accused's confession. This is especially true in light of the fact that we reaffirmed Boyd in Ring and in the interim case of Rhoades v. State, 315 Ark. 658, 869 S.W.2d 698 (1994). We therefore decline the invitation to overrule this line of cases.

http://www.wm3.org/live/trialshearings/ ... =10&page=9

[Obscuregawdess]

The appellant further argues that the distinction between the rights accorded to those who are tried in juvenile court and those who are tried as adults violates the Equal Protection Clause. On appellate review, we presume that a statute is constitutional, and the attacking party has the burden of proving otherwise. All doubts are resolved in favor of constitutionality. Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994). Classifications are permitted which have a rational basis and are reasonablyrelated to a legitimate government purpose. Our role is not to discover the actual basis for the legislation, but to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government purpose. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).



We can certainly conceive of a rationale which removes this statute from the specter of arbitrary and capricious government purpose. The legislature recognized in Ark. Code Ann. § 9-27-318(c) (Repl. 1993) that a juvenile over the age of sixteen may be prosecuted as an adult where his act would constitute a felony if committed by an adult. This is an acknowledgement that an older juvenile who commits a serious crime may not receive the protection of juvenile proceedings, but will face the consequences as an adult. The same rationale applies to the statute at hand. A juvenile over the age of sixteen who commits a crime that would subject him to adult punishment will not be accorded the protection of full parental involvement in the interrogation process.



The appellant next contends that his confession should have been suppressed due to the failure of Detective Allen to comply with Ark. R. Crim. P. Rule 2.3. That rule requires an officer who asks a person to come to a police station to take reasonable steps to make it clear that there is no legal obligation to comply with the request.



This issue arose in a unique procedural way at the trial level. The appellant never raised the point in his motions to suppress or at any time during the suppression hearing. During the suppression hearing, Detective Allen testified that he asked the appellant if he would come with him to the station and the defendant voluntarily did so. However, the state, at this point, was unaware of anyRule 2.3 problem, and no further testimony was elicited. After the suppression hearing, the appellant, in a post-hearing brief, raised the issue for the first time.



We recognize that the state has the burden of proving the voluntariness of a custodial confession. However, we are hesitant to hold that a defendant may file a general motion to suppress, containing no notice of any technical deficiency, then require the state to put on evidence of compliance with all conceivable technical requirements of the Rules of Criminal Procedure. This is totally contrary to our rule that objections must be raised in a timely manner. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). However, just as importantly, the appellant did not obtain a ruling from the trial court on this specific issue. The court's order denying the motion to suppress was drafted by appellant's counsel. It declared that appellant's statements were voluntarily given, that the appellant was afforded his rights under the Constitution, that his rights were knowingly and willfully waived. There is no mention in the order, or during the course of any hearing, of a violation of Rule 2.3. An issue is precluded from review on appeal where there is no clear ruling by the trial court. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). In Bowen, the appellant moved to suppress his inculpatory statements on the grounds that his waiver of rights was invalid, his waiver was not voluntary, knowing, and intelligent, and his statements were the fruit of an illegal arrest. The trial court ruled generally on the waiver questions, but did not specifically rule on the illegal-arrest issue. We therefore declined to consider the issue on appeal. Similarly in this case, the appellant obtained rulings on the voluntariness of his confession and his waiver, but no ruling on his illegal seizure. As in Bowen, we will not consider the issue.



The appellant's final attack on the validity of his confession concerns the failure of the police to record the interrogation in its totality. No Arkansas law requires this. We will consider such a factor in the totality-of-the-circumstances mix, but we will not invalidate a confession for that reason alone.


Pre-Trial

Before we move on to consideration of trial errors, there are two issues which arose before trial and which we will now discuss. The first is the appellant's challenge to the constitutionality of Ark. Code Ann. § 16-89-111(d) (1987). The statute reads:



A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied by other proof that the offense was committed.



The appellant contrasts this statute with Ark. Code Ann. § 16-89-111(e)(1) (1987) which provides that a conviction may not be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the appellant with the commission of the offense. While offering no authority in support, he argues that the more stringent corroboration requirements in the case of accomplice testimony violate the equal protection clause. The same analysis we applied to the appellant's previous equal-protection challenge applies here. There is a legitimate rationale for greater safeguards when an appellant's conviction is based on the testimony of a third person rather than on his own words.



The next issue concerns the appellant's attempt to depose the interrogating officers. The courtoffered to make the officers available for questioning, but would not require them to submit to depositions. We do not reverse for failure to grant discovery in a criminal case without a showing of abuse of discretion. Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982); Ark. R. Crim. P. Rule 17.4. In Spencer v. State, 285 Ark. 339, 686 S.W.2d 436 (1985) and Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982), cert. denied, 460 U.S. 1022 (1983), we held that a defendant was not necessarily entitled to take the discovery depositions of state witnesses. We have never held that a defendant should be allowed to depose interrogating officers. The public-policy considerations alone dictate that depositions of police officers should not be taken as a matter of routine, but only in rare cases, subject to the trial court's discretion. A defendant's discovery needs are ordinarily met by the broad access given to him by the Rules of Criminal Procedure. We find nothing in the record of this case to indicate that the trial court abused its discretion in denying the depositions.



Evidentiary Errors



The next issues concern various evidentiary rulings of the trial court. We note at the outset that a trial court is accorded wide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).



As we alluded to earlier, the appellant procured the services of polygraph expert Warren Holmes. Holmes was prepared to offer an opinion that the appellant was not being deceptive when the polygraph test was administered to him. The appellant asked the court to allow this opinion intoevidence to show that he was falsely informed he had failed the test and that such false information was a catalyst to his confession. The court considered the evidence at the suppression hearing, but refused to allow any testimony at trial regarding the results of the polygraph. The court noted that such evidence would simply amount to a contest between two experts as to who had made the more accurate interpretation. The court said it would allow the appellant to show that he had been administered a polygraph and had been told he failed it. However, the appellant understandably declined this offer, fearing it might be too prejudicial in the absence of the countervailing opinion of Holmes.



Both the legislature and this court have recognized the inherent unreliability of polygraph tests. Ark. Code Ann. § 12-12-704 (Repl. 1995), provides that the results of a psychological stress examination shall not be admissible in the courts of this state. See also Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987); Baxter v. Dental Examiners Bd., 269 Ark. 67, 598 S.W.2d 412 (1980). However, the appellant argues that his proffered evidence was necessary to apprise the jury of the totality of the circumstances surrounding his confession. We believe our long-standing rule prohibiting the admission of polygraph results should prevail. Had the trial judge allowed Mr. Holmes to offer his opinion that the appellant's answers were not deceptive, the state would have offered the opinion of Detective Durham that the appellant's answers were deceptive. This would have created the very situation which the legislature and the courts have sought to avoid: the likelihood of credibility determinations being made by reference to the unreliable results of a polygraph examination. See generally Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990).



The appellant cites us to Rock v. Arkansas, 483 U.S. 44 (1987) for the proposition that evidence which might ordinarily be considered unreliable is admissible to protect a defendant's constitutional rights. Rock involved a defendant who testified in her own behalf and wanted to offer hypnotically refreshed testimony. The Supreme Court allowed the evidence, but the Court's ruling is not applicable to this case. Rock only applies to the testimony of the defendant, not to witness testimony. Further, the basis of the ruling was the protection of the defendant's right to testify in her own defense, which is not the issue here.



The appellant also cites Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988) for the proposition that evidence which may not be admissible to prove a person guilty is admissible as exculpatory evidence. Patrick involved the use of a portable breath test. We held that such a test could not be used to prove a person drove while intoxicated but could be used to prove that he did not. However, we were careful to make the point that such a test was sufficiently reliable to warrant admission into evidence. As we have already stated, that is not the case with polygraph results. We therefore uphold the trial court's exclusion of this evidence.

[Obscuregawdess]

I realize this wasn't exactly what you were looking for but I am not sure if I ever posted this.

[Obscuregawdess]

(based on prosecutorial misconduct) and Brief in Support

[pax]

I couldn't agree more, Pax. I am bugged at how the judge is biased against psychiatrists. I can see how sometimes it may be a little unnecessary, but in a situation such as this it was much needed like you said. I'll bet Jessie feels terrible about how this ended up for him, especially since the events he decribed probably never happened... and he has screwed up his life and two others'. What a tragic situation for three young boys and three young men.

I thought I posted that hearing in the trial/court thread but, if not, I'll send it your way.

Thanks. I'll find it.

[Obscuregawdess]

I am not sure if I have the original hearing to suppress confession transcript, but I am searching.

[Obscuregawdess]

Winter 1998



THE CONSEQUENCES OF FALSE CONFESSIONS: DEPRIVATIONS OF LIBERTY AND

MISCARRIAGES OF JUSTICE IN THE AGE OF PSYCHOLOGICAL INTERROGATION



Richard A. Leo

Richard J. Ofshe



I. Introduction



A. DEFINING THE PROBLEM



Because a confession is universally treated as damning and compelling evidence of guilt, [FN1] it is likely to dominate all other case evidence and lead a trier of fact to convict the defendant. [FN2] A false confession is therefore an exceptionally dangerous piece of evidence to put before anyone adjudicating a case. In a criminal justice system whose formal rules are designed to minimize the frequency of unwarranted arrest, unjustified prosecution, and wrongful conviction, police-induced false confessions rank amongst the most fateful of all official errors.



As many investigators have recognized, the problems caused by police-induced false confessions are significant, recurrent, and deeply troubling. [FN3] Police elicit false confessions so frequently that social science researchers, legal scholars, and journalists have discovered and documented numerous case examples in this decade alone. [FN4]



Yet no one knows precisely how often false confessions occur in the United States, how frequently false confessions lead to wrongful convictions, or how much personal and social harm false confessions cause. This is because: (1) no organization collects statistics on the annual number of interrogations and confessions or evaluates the reliability of confession statements; (2) most interrogations leading to disputed confessions are not recorded; and (3) the ground truth (what really happened) may remain in genuine dispute even after a defendant has pled guilty or been convicted. [FN5] These problems prevent researchers from defining a universe of confession cases, sampling a subset, and confidently determining the truth or falsity of each underlying confession.



Until these methodological obstacles are overcome, no one can authoritatively estimate the rate of police-induced false confessions or the annual number of wrongful convictions caused by false confessions. [FN6] The lack of such information also prevents researchers from estimating the full magnitude of personal and social harm that police-induced false confessions cause: the days and months innocent persons spend in pre-trial incarceration; the resources, time, and dollars wasted prosecuting and defending them; the months and years defendants languish in prison after wrongful conviction; and the additional crimes carried out by the true perpetrators.



Although it is presently not possible to estimate the magnitude of harm caused by false confessions, this article sheds light on another dark corner of the problem by addressing the following questions: What is the impact of demonstrably unreliable confession evidence on criminal justice officials? What are the consequences of false confessions on defendants as they move through the criminal justice system? And how much influence does a false confession alone exert on the decision-making of jurors?



B. FALSE CONFESSIONS AND THE ADMINISTRATION OF JUSTICE



Following Edwin Borchard's pioneering study of miscarriages of justice, [FN7] a series of investigators [FN8] have documented numerous cases of wrongful arrest and conviction of the innocent in the United States. [FN9] We continue the tradition of research into errors in the criminal justice system by reporting a study of sixty cases of police-induced false confessions in the post-Miranda era, [FN10] and by analyzing the consequences of these errors affecting defendants as they move through the criminal justice system. [FN11]



We suggest that confessions are regarded as the most damning and persuasive evidence of guilt simply because most suspects who confess are guilty, and because most confessions are corroborated by additional evidence. Under these conditions, however, it is impossible to isolate the effect of the defendant's "I did it" admission [FN12] on the decision-making of criminal justice officials and juries because the confession co-varies with inculpatory witness or physical evidence. The research reported here isolates the effect of a defendant's "I did it" statement on the decision-making of criminal justice officials and juries by studying only cases in which the defendant's confession is not supported by any physical or reliable inculpatory evidence. The research design thus allows measurement of the effect of an untrue admission when a detective, prosecutor, judge or jury is required to weigh the admission against evidence that would ordinarily establish the defendant's innocence.



This article explores whether contemporary American psychological interrogation practices continue to induce false confessions like the third degree methods that preceded them. This article also analyzes how likely police-induced false confessions are to lead to the wrongful arrest, prosecution, conviction, and incarceration of the innocent. And this article examines with field data [FN13] whether confession evidence substantially biases a trier of fact even when the defendant's statement was elicited by coercive methods. [FN14] We explore this issue with cases in which the defendant's statement has not only been coerced but is also demonstrably unreliable, and in which other evidence proves or strongly supports the defendant's innocence.



Part II of this article discusses the selection and classification of the sixty disputed confession cases under study. [FN15] Part III describes the findings of our research. Part IV analyzes the deprivations of liberty and miscarriages of justice associated with the sixty cases described in this article. Finally, Part V discusses the import of this research and offers some concluding remarks.



II. Method



A. SELECTION AND CLASSIFICATION



Cases of disputed confessions were identified through multiple sources: electronic media database searches; directly from case files; [FN16] and from secondary sources. The sixty cases discussed below do not constitute a statistically adequate sample of false confession cases. Rather they were selected because they share a single characteristic: an individual was arrested primarily because police obtained an inculpatory statement that later turned out to be a proven, or highly likely, false confession.



Based on the information that we obtained and reviewed, all of the cases studied satisfy the following conditions: no physical or other significant and credible evidence indicated the suspect's guilt; [FN17] the state's evidence consisted of little or nothing more than the suspect's statement "I did it;" and the suspect's factual innocence was supported by a variable amount of evidence--often substantial and compelling--including exculpatory evidence from the suspect's post-admission narrative. [FN18] For every case included in this study, there was no credible evidence corroborating the defendant's "I did it" admission or supporting the conclusion that he was guilty. [FN19]



Based on the strength of the evidence indicating a defendant's probable innocence, each case was classified into one of three categories: proven false confession; highly probable false confession; or probable false confession.



For the thirty-four cases classified as proven false confessions, the confessor's innocence was established by at least one dispositive piece of independent evidence. [FN20] For example, a defendant's confession was classified as proven false if the murder victim turned up alive, the true perpetrator was caught and proven guilty, or scientific evidence exonerated the defendant. Not only was the confessor definitively excluded by dispositive evidence, but the confession statement itself also lacked internal indicia of reliability. Any disputed confession case that fell short of this standard--no matter how questionable the confession and no matter how much direct or circumstantial evidence indicated the suspect was innocent--was excluded from this category.



For the eighteen cases classified as highly probable false confessions, the evidence overwhelmingly indicated that the defendant's confession statement was false. [FN21] In these cases, no credible independent evidence supported the conclusion that the confession was true. Rather, the physical or other significant independent evidence very strongly supported the conclusion that the confession is false. In each of these cases, the confession lacked internal reliability. Thus, the defendant's statement is classified as a highly probable false confession because the evidence led to the conclusion that his innocence was established beyond a reasonable doubt.



For the eight cases classified as probable false confessions, [FN22] no physical or other significant credible evidence supported the conclusion that the defendant was guilty. There was evidence supporting the conclusion that the confession was false, and the confession lacked internal indicia of reliability. Although the evidence of innocence in these cases was neither conclusive nor overwhelming, there were strong reasons--based on independent evidence--to believe that the confession was false. Cases are included in this category if the preponderance of the evidence indicated that the person who confessed was innocent.



We recognize that for any case that could not be classified as a proven false confession, there is a possibility that our classification of the case might be in error. Despite strong evidence supporting the conclusion that the confession is false, it remains theoretically possible that one or more of the defendants we classify as false confessors may have committed the crime. Nevertheless, we believe that the disputed confessions discussed in this article would be judged false by an overwhelming majority of neutral observers with access to the evidence we reviewed. [FN23]



B. POST-ADMISSION NARRATIVE ANALYSIS



When evaluating the likelihood that a person committed a crime, investigators should first consider witness statements, biological evidence linking the suspect to the crime (fingerprint, DNA, hair, etc.), and alibi evidence. The identification by an eyewitness, the identification of the person as the donor of one or more type of biological material found at the crime scene, and the lack of an alibi all point to guilt. By contrast, an opposite pattern of evidence (e.g., no match with eyewitness descriptions, exculpating biological evidence, and the existence of an unimpeachable alibi) all support innocence.



In addition to these traditional sources of evidence, the defendant's post-admission narrative of the crime may provide helpful evidence of guilt or innocence, assuming contamination [FN24] has been eliminated. If a suspect has made an "I did it" admission and given a post-admission narrative of a crime, the fit--or lack thereof--between the contents of the narrative and the crime scene facts provides evidence of guilt or innocence. Evaluation of the fit can reveal that a suspect possesses the sort of accurate, personal knowledge of the specifics of the crime that the perpetrator would be expected to have, or it can demonstrate the suspect's ignorance of the crime because his answers about the crime scene evidence are grossly incorrect. [FN25]



The fit between the specifics of a confession and the crime facts determines whether the "I did it" admission should be judged as reliable or unreliable evidence. There are at least three indicia of reliability that can be evaluated to reach a conclusion about the trustworthiness of a confession. Does the statement: (1) lead to the discovery of evidence unknown to the police? (e.g., location of a missing weapon that can be proven to have been used in the crime, location of missing loot that can be proven to have been taken from the crime scene, etc.); (2) include identification of highly unusual elements of the crime that have not been made public? (e.g., an unlikely method of killing, mutilation of a certain type, use of a particular device to silence the victim, etc.); or (3) include an accurate description of the mundane details of the crime scene which are not easily guessed and have not been reported publicly? (e.g., how the victim was clothed, disarray of certain furniture pieces, presence or absence of particular objects at the crime scene, etc.).



If, for example, a suspect's post-admission narrative either leads the police to missing evidence, or reveals that the suspect knew precisely how the victim was bound and mutilated, or which window was jimmied open with what sort of unlikely tool, then the suspect possesses actual knowledge of the crime that would reasonably be expected of the perpetrator. Therefore, the suspect's confession should be deemed reliable. If, on the other hand, the suspect is unable to provide police with accurate information revealing evidence not already known to them (e.g., where to locate the murder weapon or the loot), is demonstrably wrong about the method of killing, or is demonstrably inaccurate about the specifics of the crime scene, then the statement should be judged unreliable and, if anything, treated as evidence of innocence. Therefore, the statement should be seen as lacking evidence of actual knowledge--something to be expected of a false confessor who has not been contaminated by the police or due to leakage of information into the community.



When the police elicit a post-admission narrative from a suspect, they typically seek only information about major crime elements (e.g., location of the missing weapon, type of mutilation, etc.). However, a suspect's report about the mundane (but unique or improbable) details of the crime and the crime scene is of great value in establishing a suspect's guilt or innocence. [FN26] This is true, in part, because the suspect's knowledge of mundane details is less likely to be the result of contamination by the police. Mundane details are less likely to have been mentioned during off-tape conversations or during the pre-admission phase of an unrecorded interrogation.



A suspect's post-admission narrative need not demonstrate indicia of reliability in each category for it to reveal personal knowledge of the crime. It is generally accepted that one or more aspects of a crime may be so heinous that a guilty party may refuse to state them even while admitting to other major components of the crime. For example, Richard Allen Davis, who admitted to kidnapping and killing a child, was not willing to admit that he also raped her. [FN27] Nevertheless, if a defendant has been properly and thoroughly debriefed, his personal knowledge of the crime should allow him to supply sufficiently detailed information to prove a confession's reliability by demonstrating his specific knowledge of what happened (e.g., the circumstances of the kidnapping, the child's clothing, the location of the killing ground, the description of the killing scene, etc.), even if he resists confessing to certain particularly heinous acts.



C. POLICE-INDUCED FALSE CONFESSION



Police-induced false confessions arise when a suspect's resistance to confession is broken down as a result of poor police practice, overzealousness, criminal misconduct and/or misdirected training. [FN28] Interrogators sometimes become so committed to closing a case that they improperly use psychological interrogation techniques to coerce or persuade a suspect into giving a statement that allows the interrogator to make an arrest. Sometimes police become so certain of the suspect's guilt that they refuse to even-handedly evaluate new evidence or to consider the possibility that a suspect may be innocent, even when all the case evidence has been gathered and overwhelmingly demonstrates that the confession is false. Once a confession is obtained, investigation often ceases, and convicting the defendant becomes the only goal of both investigators and prosecutors. As the investigative process progresses, some interrogators, who overstepped procedural boundaries to obtain a false confession, engage in criminal conduct to cover up their procedural violations (e.g., coerce false witness statements, suborn perjured testimony from snitches, or perjure themselves at suppression hearings or at trial). Furthermore, some prosecutors who are determined to convict obstruct justice by withholding exculpatory evidence from the defense. [FN29]



American police are poorly trained about the dangers of interrogation and false confession. Rarely are police officers instructed in how to avoid eliciting confessions, how to understand what causes false confessions, or how to recognize the forms false confessions take or their distinguishing characteristics. [FN30] Instead, some interrogation manual writers and trainers persist in the unfounded belief that contemporary psychological methods will not cause the innocent to confess [FN31]--a fiction so thoroughly contradicted by all of the research on police interrogation [FN32] that it can be labeled a potentially deadly myth. This fiction perpetuates the commonly held belief that only torture can cause an innocent suspect to confess, and it allows some police to rationalize accepting coerced and demonstrably unreliable confession statements as true. [FN33]



D. FALSE CONFESSION CASES



* * * *



III. Findings



A. PROVEN FALSE CONFESSIONS



There are four sub-types of proven false confessions: the suspect confessed to a crime that did not happen; the evidence objectively demonstrates that the defendant could not possibly have committed the crime; the true perpetrator was identified and his guilt established; or the defendant was exonerated by scientific evidence.



1. The Suspect Confessed to a Crime That Did Not Happen



Police interrogators may extract a confession to a crime that did not, in fact, occur. In Austin, Texas in 1990, after twice failing a polygraph test, Billy Gene Davis confessed that he killed his ex-girlfriend; she subsequently turned up alive in Tucson, Arizona. [FN136] Even if the underlying event did in fact occur, police may induce a confession to a non-existent crime. In 1993, Phoenix, Arizona police elicited a confession from Christina Mason to killing her three-month-old infant by letting another woman inject the child with heroin and cocaine to prevent it from crying. [FN137] The autopsy, however, revealed no drugs other than Tylenol in the baby's body, and the medical examiner concluded that the likely cause of death was pneumonia or a viral infection. [FN138]



2. The Defendant Could Not Have Committed The Crime



Police may extract a confession from an individual who could not have committed the crime. In 1987, Los Angeles, California police interrogators elicited false confessions from two suspects--Ruben Trujillo and Pedro Delvillar--to the same double murder and robbery. [FN139] Yet both men were in police custody (one in a county jail and the other at a California Youth Authority facility) for other crimes when the murders occurred. [FN140] In another example of flawed interrogation, police in Laguna Beach, California obtained a confession to arson from Jose Soto Martinez in 1993, but prosecutors dismissed charges when they discovered that Martinez had been in a Mexican prison at the time of the arson. [FN141] Similarly, in 1986 Montana police elicited a false confession to a sexually motivated killing from Ivan Reliford, but later discovered that Reliford was in custody when the crime was committed. [FN142]



The cases in this study reveal many reasons why someone could not have committed the crime to which he confessed. In 1973, Connecticut State Police elicited a confession from Peter Reilly to killing and mutilating his mother. [FN143] After a jury trial, conviction, and then reversal by an appellate court, the prosecutor handling the second trial discovered that the former prosecutor's files contained documents showing that Reilly arrived at the scene of the murder only minutes before the police and thus could not have committed the crime. [FN144]



In 1982, James Harry Reyos confessed in New Mexico that he had killed a Catholic priest a year earlier. [FN145] The victim died between 7 p.m. and midnight in Odessa, Texas, [FN146] but gas receipts and an eyewitness established that Reyos was in Roswell, New Mexico (200 miles away) at 8 p.m. that evening, [FN147] and a speeding ticket proved that he was also in Roswell shortly after midnight. [FN148] To have committed the murder, Reyos would have had to drive 200 miles to the murder site, kill the priest in no more than one minute and speed 215 miles back to where he received the speeding ticket--in four hours (averaging well over 100 miles an hour on narrow, country roads). Eventually the state's attorney handling Reyos' appeal conceded that Reyos could not have committed the crime. [FN149]



In 1995, in Portland, Oregon, police extracted false confessions from Rick Nieskins and Christopher Cole to the 1991 murder of John Sewell. [FN150] Both men were charged with homicide, and both spent thirteen months in jail awaiting trial--even though two other men had been convicted of Sewell's murder in 1991 and had always maintained that they acted alone. [FN151] Prosecutors eventually dropped charges against Nieskins after records showed that he could not have committed the crime because he was at a homeless shelter in Seattle at the time of the killing. [FN152] Once they acknowledged Nieskins' false confession, prosecutors admitted that Cole also could not have been involved in the crime and dropped charges against him. [FN153]



3. The True Perpetrator Was Identified and His Guilt Established



Police may elicit a confession that is proven false when the true perpetrator is identified. Sometimes this occurs fortuitously when police encounter the perpetrator in connection with another crime and obtain a demonstrably reliable confession. In 1979, after twenty-one hours of interrogation by West Virginia State Police, Paul Reggetz confessed to murdering his wife and two children. [FN154] Reggetz spent eleven months in pre-trial incarceration before one of his neighbors confessed. [FN155] In 1990, Suffolk County, New York police interrogated Anthony Atkinson for three-and-a-half hours before he confessed to murder and sodomy. [FN156] Later, two other men confessed to the crime, and charges against Atkinson were dismissed. [FN157] In 1994, Guy Lewis confessed to Memphis, Tennessee police to shooting and killing his girlfriend. [FN158] The prosecutor was preparing to bring charges against him when Tony Hedges and Michael Maclin were arrested and each confessed to the murder. [FN159] In 1996, Robert Moore confessed to the capital murder and robbery of a taxi driver after Nassau County, New York detectives interrogated him for twenty-five hours. [FN160] Moore was released only because police happened to arrest one of the actual killers on unrelated charges, and he confessed and identified his two co-perpetrators. [FN161] In 1996, in Daytona Beach, Florida, police extracted a confession to capital murder and robbery from Donald Shoup, a mentally handicapped teenager. [FN162] While Shoup was awaiting trial, the true killer confessed. [FN163]



In one of the century's most dramatic and disturbing false confession cases, prosecutors dismissed charges against three false confessors after routine detective work identified the true killers. [FN164] In 1991, during interrogations that lasted up to twenty-one hours, Maricopa County Sheriffs in Phoenix, Arizona coerced false confessions from Leo Bruce, Mark Nunez, and Dante Parker to the mass murder of nine persons at a Buddhist temple. [FN165] While prosecutors were preparing capital cases against the defendants, a ballistics test was carried out on a rifle that was picked up for testing the same day that Bruce, Nunez, and Parker were interrogated. [FN166] It proved to be the murder weapon. The rifle had been in the possession of Jonathan Doody and Alex Garcia the night of the murder. Searches led to the discovery of loot in the possession of both Doody and Garcia. Both adolescents confessed to the murders, and Garcia supplied the police with a detailed account of how he and Doody planned and carried out the killings. [FN167]



Garcia not only confessed to the nine Temple murders, but also to murdering Alice Marie Cameron shortly before being arrested for the Temple murders. [FN168] The police delayed doing the ballistics test on the rifle that led to Garcia's arrest because they were occupied first with coercing false confessions from Bruce, Nunez, and Parker and then with the media storm and public protests against the police that followed the disputed confessions. [FN169]



To make matters even worse, Maricopa County Sheriffs had also extracted a confession to Cameron's murder from George Peterson, a mentally ill adult, during a sixteen hour interrogation. [FN170] When Garcia admitted to the Cameron murder fourteen months later, Peterson was awaiting trial for capital murder for the same crime. [FN171]



4. The Defendant Was Exonerated By Scientific Evidence



Police may elicit a confession that is conclusively proven false by scientific evidence. In 1996, police in West Palm Beach, Florida elicited a confession to capital murder from Martin Salazar, but prosecutors dropped charges when the defense discovered that fingerprint evidence clearing Salazar had been withheld by the police and the prosecutor. [FN172] During an interrogation in 1980, Chicago police reshaped a dream by Steven Linscott into a murder confession, but DNA testing established his innocence many years later. [FN173] In 1983, Virginia police elicited several confessions from Earl Washington--including one to the rape and murder of Rebecca Williams. [FN174] In 1993, DNA evidence established that Washington could not have been responsible for any of these crimes. [FN175] In 1996, in Sitka, Alaska, Richard Bingham confessed to being the lone rapist and killer of seventeen-year-old Jessica Baggen. [FN176] DNA testing excluded Bingham as the source of the semen found in the victim. [FN177] The foreign hair found on the victim's body was not Bingham's nor was the fingerprint found on a cigarette pack at the crime scene. [FN178] Bingham was also unable to describe the unusual properties of the physical scene where the body was found nor the unusual way in which the victim had been silenced. [FN179] Bingham was acquitted at trial. [FN180]



Notwithstanding the numerous examples of proven false confessions reported in this article, it is difficult to establish conclusively that a defendant's confession is false even when the evidence of innocence is compelling. Once a suspect has confessed, it is rare for the crime to evaporate, for the true perpetrator to be apprehended, for police or prosecutors to discover that the defendant could not have committed the crime, or for scientific evidence to exonerate him. The standard for inclusion into the proven false category--established innocence--is a formidable barrier.



B. HIGHLY PROBABLE FALSE CONFESSIONS



While our research has unearthed numerous examples of highly probable false confessions, only a small number of these cases are reported here.



1. Bradley Page



In 1984, Oakland, California police persuaded Bradley Page that he killed his girlfriend, Bibi Lee. [FN181] His vague, confused, and speculative confession occurred during a sixteen hour interrogation that was only partially recorded. [FN182] Despite Page's confession, no evidence (physical or otherwise) corroborated his involvement in the crime. [FN183] On the other hand, abundant evidence supported the conclusion that he was innocent. [FN184]



Page's post-admission narrative did not fit the known crime facts. Page stated that Lee died after he slapped her with the back of his hand, [FN185] causing her to fall and become unconscious as a trickle of blood came from her nose. [FN186] It was not until days after the interrogation that the coroner determined that Lee had three large breaks at the base of the skull, causing considerable bleeding. [FN187] At the time of Page's interrogation the police did not know the extent of Lee's skull fractures, nor apparently did Page. [FN188] Page also stated that he made love to the dead body on a blanket taken from his vehicle; [FN189] in fact, the blanket contained no evidence of sexual activity, [FN190] no blood stains from Lee's massive head wounds, [FN191] no signs of having been washed, [FN192] and the hairs found on the blanket were not Lee's. [FN193] Page guessed that he used a spare hubcap that was in his vehicle in an attempt to bury Lee, [FN194] but the fibers and soil from the hubcap did not match either the fibers of Lee's clothing or the soil where her body was found. [FN195] Page also stated that he dragged Lee's body more than 100 yards before burying it. [FN196] Had this happened there would have been a trail of blood [FN197] that surely would have been found by the various search and rescue and dog tracking teams that, beginning the day after her disappearance, spent hundreds of hours combing the area where Lee's body was eventually found. [FN198]



In addition to the numerous discrepancies between Page's post-admission narrative and the facts of the crime, police ignored eyewitness evidence pointing to another suspect. [FN199] In 1994 CBS News identified Michael Ihde--whose appearance was consistent with the reported eyewitness evidence and whose DNA and pattern of killing linked him to other local area murders--as Lee's murderer. [FN200] Ihde was in prison in Washington State for two similar murders when he bragged that he killed three San Francisco Area women--one of whom was non-white (Lee was Asian American). [FN201] Having convicted Page after two jury trials, [FN202] Alameda Country prosecutors declined to charge Ihde with Lee's murder, but did charge him with a similar murder that happened within weeks of Lee's death. [FN203]



2. Tom Sawyer



In 1986, Clearwater, Florida police coerced a confession from Tom Sawyer to the rape and murder of Janet Staschak after sixteen hours of interrogation that included numerous threats. [FN204] There was no evidence linking Sawyer to the crime, [FN205] and his post-admission narrative fit poorly with the facts of the case. [FN206] For example, presuming that Staschak had been sexually assaulted, the interrogators led Sawyer to admit to both vaginal and anal rape during the creation of the post-admission narrative of the crime, [FN207] but the medical examiner reported no evidence of sexual assault. [FN208] Despite strenuous efforts by the interrogators, Sawyer was unable to corroborate the confession by supplying information about the victim's missing clothing, missing keys, or the tape used to bind her. [FN209] After the trial judge suppressed Sawyer's confession, [FN210] the state dismissed the charges, since no evidence of his guilt existed. [FN211]



3. Martin Tankleff



After five-and-one-half hours of accusatory interrogation in 1988, [FN212] Suffolk County, New York police obtained a confession from Martin Tankleff, then seventeen-years-old, to brutally stabbing and murdering his parents. [FN213] No evidence linked Tankleff to the crime, and his post-admission narrative did not match the facts of the case. [FN214] Instead, Tankleff's narrative matched (indeed it was) the flawed theory of the crime that police detectives held at the time of Tankleff's interrogation. [FN215] Tankleff confessed to killing his parents with a dumbbell and a watermelon knife, yet both items tested negative for blood traces, hair and fibers. [FN216] Medical testimony established that the head injuries to Martin's father were caused by a hammer. [FN217] Tankleff confessed to beating his mother with a dumbbell and then fighting with her, which would have been consistent with the defensive wounds on her arms, but Tankleff's body was unscratched and the absence of any bruises suggested that he had not been in a life or death struggle with anyone. [FN218] Tankleff confessed that he took a shower to wash away the substantial bloodstains the killings would have left on the perpetrator, but no blood residue or hairs from his parents were found in his shower. [FN219] Tankleff had one bloodstain on his shoulder that could have been acquired when he discovered the bodies, but would have been washed away if he showered to remove the substantial bloodstains that likely marked the killer. [FN220] Tankleff confessed to assaulting his parents between 5:35 a.m. and 6:10 a.m., but his mother's time of death was established to be much earlier. [FN221] Tankleff confessed to killing his mother and then walking through the house before attacking his father, but none of his mother's blood was found along this pathway. [FN222] The killer used gloves, but Tankleff's confession made no reference to gloves. [FN223] Tankleff confessed that after showering he removed his father from the chair and did not shower again, yet Tankleff's clothes were not bloodstained. [FN224] His confession was not corroborated by the physical evidence that should have linked him to the crime (if, in fact, he were guilty) and was merely a regurgitation of the factually erroneous theory the detectives admitted they had initially held. Nevertheless, a jury convicted Tankleff of two counts of second degree murder. [FN225] Tankleff's judge sentenced him to prison for fifty years to life. [FN226]



4. Richard Lapointe



In 1989, two years after the murder of Bernice Martin, Manchester, Connecticut Police interrogated Richard Lapointe, the husband of the victim's granddaughter. [FN227] During an unrecorded nine and one-half hour interrogation, Lapointe, a mentally handicapped adult, signed three contradictory confessions to raping, stabbing, and strangling the victim. [FN228] No physical evidence either linked Lapointe to the crime or corroborated any of his incriminating statements. In fact, each of Lapointe's three confessions was inconsistent with the others and contradicted the facts of the crime. [FN229] In 1992, a jury convicted Lapointe of capital felony murder and eight related charges, and sentenced him to life in prison without the possibility of parole plus sixty years. [FN230] Lapointe remains in prison today with little hope of ever being released.



An analysis of the fit between Lapointe's post-admission narrative and the facts of the crime reveals that it would have been virtually impossible for Lapointe to have committed the crime in the time available to him. In an interview with his wife immediately following Lapointe's arrest (an interview police chose to record), [FN231] Mrs. Lapointe recounted her husband's activities on the day of her grandmother's death. Her account provided Lapointe with an alibi for all but thirty to forty-five minutes of the day. [FN232] In that brief period Lapointe would have had to have walked ten minutes to Bernice Martin's apartment, have coffee with her, rape her, bind her, stab her, set fire to the apartment and walk back to his residence. [FN233] Yet, when he returned after his walk Lapointe did not appear sweaty or disheveled. [FN234] Lapointe confessed to killing the victim at the location in her apartment where the police believed she had been stabbed, on the couch. [FN235] However, medical testimony established that she was not killed while on the couch. [FN236] Lapointe admitted to an erroneous police theory of the victim's death, manual strangulation with both hands, [FN237] but the medical examiner reported that the victim died from strangulation by compression (i.e., a blunt object had been pushed against the right side of her neck). [FN238] Lapointe confessed to moving the victim's body (the police theory of the crime at the time of the interrogation), which weighed 160 pounds. [FN239] However, Lapointe, suffers from Dandy-Walker Syndrome [FN240] and has shunts surgically inserted in his head that render him incapable of lifting more than fifty pounds. [FN241] Lapointe confessed to the sexual assault theory of the crime held by the police--rape with his penis. In fact, the victim was raped with a blunt instrument. [FN242] The killer's gloves were left behind at the crime scene, but they were too large to fit Lapointe's tiny hands. [FN243] Eyewitnesses saw a large man who did not match Lapointe's description running away from the crime scene; [FN244] they insisted that this man was not Lapointe. [FN245]



5. Jessie Misskelley, Jr.

In 1993 West Memphis, Arkansas police coerced a confession from Jessie Lloyd Misskelley, Jr., a mentally handicapped seventeen-year-old. [FN246] He confessed to participating as an accessory in the brutal murder of three eight-year-old boys. [FN247] Misskelley's statement to police was inconsistent with the facts of the case, was not supported by any evidence, and demonstrated that he lacked personal knowledge of the crime. Misskelley confessed that he witnessed the murders taking place around noon [FN248] when, in fact, the victims were all in school. They did not disappear until after approximately 5:30 p.m. [FN249] Misskelley confessed that a brown rope had been used to bind the boys [FN250] when, in fact, shoelaces of various colors had been used. [FN251] Numerous alibi witnesses testified that at the time the three children disappeared and for the next five hours (during which the murders probably occurred), Misskelley was at a wrestling competition in a town forty miles away from the crime scene. [FN252] Despite the complete lack of any evidence of Misskelley's participation in the crime and despite his grossly incorrect confession, an Arkansas jury convicted Misskelley of one count of first degree murder and two counts of second degree murder. [FN253] He is currently serving a life sentence. [FN254]



6. Gary Gauger



In 1993, after eighteen hours of confrontational, intense and highly deceptive interrogation in McHenry County, Illinois, sheriff's detectives extracted from Gary Gauger a hypothetical, unsigned confession to the brutal murder of both his parents. [FN255] According to police, Gauger said that he approached his parents from behind and slit their throats. [FN256] However, his alleged confession was inconsistent with the facts of the crime. [FN257] Even though police confiscated more than 160 items from the house where the double murders occurred, [FN258] not a single piece of evidence linked Gauger to the crime. [FN259] Police could not find any of Gauger's blood on knives [FN260] or faucets, [FN261] even though he allegedly washed his hands after the double murder. [FN262] Gauger gave the police the wrong number of slash wounds to his mother's throat, and his confession did not make any mention of the additional bludgeon wounds that his father suffered. [FN263] Gauger confessed to the police theory of the crime--slashing his parents' throats from behind while they were standing. [FN264] If they had been killed as Gauger described, blood would have spurted from both parents' throats across the room and onto the walls. [FN265] Though police found the victims lying in pools of blood, there was little or no blood on the walls and shelves surrounding them. [FN266] Moreover, medical testimony established that the victims' throats were slit while they were on the ground, not while they were standing. [FN267] An autopsy revealed that both victims had been beaten over the head, and that Gauger's father had been stabbed in the back--facts not contained in the confession. [FN268] A jury convicted Gauger of first degree murder. [FN269] The trial judge initially sentenced him to death, [FN270] but subsequently re-sentenced Gauger to life imprisonment without eligibility of parole. [FN271] Sixteen months later, an Illinois Appeals Court reversed his conviction and released him from prison because police had improperly obtained his confession. [FN272] Since then, federal prosecutors have charged two men belonging to a Detroit-based motorcycle gang with the murders of Gauger's parents. [FN273]



7. Edgar Garrett



In 1995, police in Goshen, Indiana persuaded Edgar Garrett that he killed his daughter, Michelle, [FN274] who had mysteriously disappeared. [FN275] During fourteen hours of interrogation, [FN276] Garrett gave an increasingly detailed confession describing how he murdered his daughter, [FN277] whose body had not yet been found. [FN278] No independent evidence linked Garrett to the crime or corroborated his confession, [FN279] and his post-admission narrative contradicted all the major facts in the case. [FN280] Garrett confessed to walking into a park with his daughter through new-fallen snow, bludgeoning her with an axe handle at a river's edge and dumping her body in the river. [FN281] However, the police officer who arrived first at the crime scene did not see footprints in the snow-covered field at the entry to the park, but instead saw tire tracks entering the park, bloody drag marks leading from the tire tracks to the river's edge and a single set of footprints going to and returning from the river. [FN282] Obviously, Michelle Garrett's body had been unloaded from a vehicle and dragged to the river, but Edgar Garrett did not own a car, and no evidence was ever uncovered that he had access to a car that day. [FN283] Michelle's coat was recovered from the river separately from her body, [FN284] suggesting Michelle had been killed indoors and transported to the river-bank.



Garrett's confession expressed the theory the police held at the time of the interrogation--that Michelle was clubbed to death. [FN285] It was not until weeks later, when her body was recovered, that the police and Garrett learned that Michelle had been stabbed thirty-four times. [FN286] Michelle's head showed no evidence of blunt force trauma, and, not surprisingly, the axe handle Garrett supposedly used to kill her carried no traces of her hair or blood. [FN287] At trial, the jury acquitted Garrett of capital murder. [FN288]



8. Douglas Warney



In 1996, Rochester, New York police elicited a confession from Douglas Warney to the brutal stabbing and murder of sixty-three-year-old William Beason. [FN289] Warney, a mentally handicapped man who was suffering from AIDS-related dementia at the time of his interrogation, [FN290] confessed to stabbing Beason fifteen or more times. [FN291] The District Attorney initially charged Warney with capital murder, [FN292] but reduced the charge to second degree murder after the New York media published several high profile stories criticizing his charging decision (even though the confession, if true, supported a capital charge). [FN293] There was no physical evidence linking Warney to the brutal murder. [FN294] Instead, virtually all of the physical evidence contradicted Warney's confession. [FN295] Warney confessed that he stabbed Beason in the kitchen, but Beason was found stabbed in his bedroom. [FN296] There was no blood in the kitchen. [FN297] Warney confessed that he cut his finger during a struggle with Beason and wiped his hand in the bathroom. [FN298] A medical examination shortly after Warney's arrest revealed no evidence of a cut, [FN299] and laboratory tests showed that the blood in the bathroom did not come from Warney or Beason. [FN300] The killer left a trail of blood at the scene, but none of the blood matched Warney's blood type. [FN301] Warney confessed that he threw his bloody clothes into a garbage can outside his apartment, but the garbage contained no bloody clothing. [FN302] Warney confessed that he drove his brother's brown Chevy to the murder, but his brother had not owned a Chevy for six years and did not own a car at the time of the killing. [FN303] Nevertheless, a jury convicted Warney of second degree murder, [FN304] and the judge sentenced Warney to twenty-five years to life. [FN305]



C. PROBABLE FALSE CONFESSIONS



1. Tammy Lynn Harrison



In 1979, following several days of intensive interrogation by Duncanville, Texas police Lieutenant Robert Moore, Tammy Lynn Harrison, a seventeen-year-old, signed a confession to stabbing her mother to death. [FN306] Moore coerced Harrison's confession by repeatedly telling her that she would die in the electric chair if she did not confess. [FN307] There was no physical or other evidence connecting Harrison to the crime, [FN308] and she steadfastly maintained her innocence, [FN309] repudiating her post-admission narrative while making it. [FN310] After the trial judge ruled Harrison's confession inadmissible, the prosecutor dismissed all charges for lack of evidence. [FN311] Shortly after the confession was suppressed, the Duncanville Police Department fired Lieutenant Moore. [FN312]



2. Barry Lee Fairchild



In 1983, Pulaski County, Arkansas sheriffs extracted a confession from Barry Lee Fairchild, [FN313] a mentally handicapped African-American, [FN314] to participating as an accessory in the abduction, rape and murder of Majorie Mason. [FN315] There was no independent evidence connecting Fairchild to the crime; [FN316] in fact, blood, hair and semen failed to positively link Fairchild to the crime. [FN317] Fairchild maintained his innocence and insisted that he confessed only because Sheriff Tommy Robinson and Deputy Sheriff Larry Dill physically beat, assaulted, and threatened him. [FN318] Fairchild's videotaped confession statement shows him looking away from the camera and responding to the prompting of others in the room. [FN319] In 1990--seven years after Fairchild's conviction on capital murder charges--thirteen African-American men publicly disclosed that, like Fairchild, they too had been detained for questioning about the Mason murder and were tortured. [FN320] One of these men, Michael Johnson, reported that he heard sheriffs in the next room torture Fairchild into confessing. [FN321] Two former Pulaski County Sheriff Deputies, Frank Gibson and Calvin Rollins, have admitted that physical assault and abuse were common interrogation tactics at the time of Fairchild's arrest. [FN322] Nevertheless, all of Fairchild's legal appeals failed, and he was executed on August 31, 1995. [FN323]



3. Jane Bolding



In 1985, after twenty-three hours of continuous interrogation, Virginia police extracted a confession from nurse Jane Bolding to injecting two patients with fatal doses of potassium. [FN324] The prosecution charged her with three counts of first degree murder and seven counts of assault with intent to murder. [FN325] No credible evidence linked Bolding to the crimes. [FN326] The medical examiners had initially classified Bolding's patients as dying from natural causes. [FN327] The trial judge suppressed Bolding's confession and then acquitted her of all charges. [FN328] He wrote that, "the state at most has placed the defendant at the scene. . . . The state's reach exceeded its grasp. The evidence failed to supply the missing link that would tie the defendant to the criminal act." [FN329]



4. Delbert Ward



In 1990, New York State Police interrogated Delbert Ward, a fifty-nine-year-old illiterate and mentally handicapped farmer. Ward eventually signed a confession admitting that he had murdered his brother, William, by putting his hand over William's nose and mouth. [FN330] Ward reported that he had been intimidated into confessing, [FN331] and thereafter steadfastly maintained his innocence. [FN332] When the Assistant Medical Examiner of Onondaga County, Dr. Humphrey Germaniuk, filled out William Ward's death certificate and turned the body over to the funeral home, he did not believe that a homicide had occurred. [FN333] However, immediately after learning of Delbert Ward's confession, Dr. Germaniuk re-classified William Ward's death as a homicide. [FN334]



There was no credible evidence linking Delbert Ward to his brother's death. Instead, the evidence supported the conclusion that William Ward died of natural causes, not of asphyxiation. Four common and telltale signs that should have been present if William Ward had died of asphyxia were not there: (1) William Ward's nose and mouth were free of trauma or blood; (2) there was no evidence of regurgitation; (3) there was no thinning of the blood; and (4) there was not a bluish or purple appearance to the skin. [FN335] At the same time, William Ward's enlarged heart, clogged coronary and pulmonary arteries, and his fluid-filled lungs supplied clear evidence that he had died of natural disease. [FN336] Nevertheless, at trial, Dr. Germaniuk testified for the prosecution that William Ward died of asphyxiation, [FN337] while the forensic pathologist Dr. Cyril Wecht testified for the defense that William Ward died of natural causes. [FN338] After almost nine hours of deliberation, the jury acquitted Ward of murdering his brother. [FN339] Two days after the trial, the investigator who had elicited Ward's false confession "was reprimanded and ended up taking an early retirement in Florida." [FN340]



5. Luis Roberto Benavidez

In 1992, in Simi Valley, California, Luis Roberto Benavidez confessed to the slaying of Marcos Anthony Scott more than two years earlier. [FN341] Benavidez claimed that he confessed only because his interrogators threatened to send his girlfriend to prison for the murder and place their two-year-old daughter in a foster home if he did not confess. [FN342] The police denied that they coerced Benavidez's confession, [FN343] and the judge ruled that the confession was admissible. [FN344] There was no credible evidence linking Benavidez to the crime, and the jury acquitted Benavidez of the murder charge. [FN345] The jury forewoman stated that "the prosecution did not prove that Roberto was the killer. We had to find corroborating evidence besides his confession that pointed to his guilt. . . . there was no separate evidence to substantiate the murder charge." [FN346]



6. Linda Stangel



In 1995, Oregon State Police coerced Linda Stangel into confessing to shoving her boyfriend, David Wahl, off a trail 320 feet above the Oregon Coast. [FN347] After Wahl's death, Oregon State Police lured Stangel from her home state, Minnesota, back to Portland by secretly funding her trip (via Wahl's family) to attend Wahl's memorial service. [FN348] After Stangel arrived in Portland, the police transported her to the scene of the alleged crime, several hours away. [FN349] Knowing that Stangel was terrified of heights, [FN350] two detectives obliged her to walk up the narrow, steadily rising bluff trail from which they presumed her boyfriend had fallen. Stangel broke down in apparent fear of the cliff edge as they climbed the trail. [FN351] Despite considerable pressure from the police, Stangel maintained her innocence prior to being manipulated up the trail, [FN352] and consistently told police that she had last seen Wahl when he went off to take a walk along the coast. [FN353] To escape the immediate stress of the narrow and terrifying heights, Stangel confessed to accidentally pushing her boyfriend off the cliff. [FN354] The police elicited Stangel's confession not only by playing on her fear of heights, but also by using the accident scenario technique [FN355] to create the impression that her admission--to pushing Wahl off the cliff in a panic after he gave her a "joking, fake push"-- carried no punishment. [FN356]



Yet there was no evidence linking Stangel to the crime. Stangel's several different accounts of her panic response were inconsistent with one another and all failed to describe physical circumstances that would have caused Wahl to fall from the cliff--even if Stangel had panicked and pushed him. Moreover, the state never produced any evidence that a crime occurred, since Wahl's body did not wash up for weeks, [FN357] and thus no cause of death could be determined. [FN358] Based solely on the contents of her coerced and unreliable confession, [FN359] a jury convicted Stangel of second degree manslaughter, [FN360] and she was sentenced to more than six years in prison. [FN361]



IV. False Confessions and Case Outcomes



* * * *



B. CLASSIFYING CASE OUTCOMES



In general, false confession cases can be usefully divided into two categories: those that result in pre-trial deprivations of liberty (Type I cases); and those that result in miscarriages of justice and wrongful deprivation of many years of liberty and/or of life (Type II cases). Type I cases occur when police, prosecutors, trial judges or juries correct the initial error of relying on a questionable confession. There are multiple points in the trial process at which the criminal justice system has the potential to be self-correcting. Indeed, the rules of American criminal procedure are structured to allocate the risk of error so as to minimize the possibility of convicting the innocent.



1. Type I Cases: False Confessions That Do Not Lead to Conviction (52%)



a. General



Sometimes police extract a confession from an innocent suspect that they initially believe to be true, but either they or the prosecutors realize is false before the filing of charges. In other instances, police and prosecutors realize that an innocent suspect has confessed because it is physically impossible for the suspect to have committed the crime. Sometimes officials do not come to the realization that the confession is false until after another suspect has confessed to the crime. And sometimes police and prosecutors never come to this realization even though the confession is demonstrably not true (i.e., contradicts the known facts of the crime).



The Type I false confession cases described above include: Billy Gene Davis' confession that he killed his ex-girlfriend (who turned up alive); [FN373] Ruben Trujillo's, [FN374] Pedro Delvillar's, [FN375] Jose Soto Martinez's [FN376] and Ivan Reliford's [FN377] confessions to crimes which were committed when all were in custody; Christina Mason's confession to killing her child, who died of natural causes; [FN378] and Martin Salazar's confession to a crime that scientific evidence proved he did not commit. [FN379]



b. Confessions From The True Perpetrator



Often police or prosecutors only discover and acknowledge their error in eliciting a false confession or charging an innocent defendant prior to conviction because they have accidentally or unintentionally obtained a reliable confession from the true perpetrator(s) of the crime. [FN380] Several such cases described above include: Paul Reggetz, who was cleared of murdering his wife when a neighbor confessed to the crime; [FN381] Anthony Atkinson, who confessed to murder and sodomy but was released when two other men confessed to the crime; [FN382] Guy Lewis, who confessed to killing his girlfriend, but was released when the real killers confessed; [FN383] Robert Moore, whose confession to capital murder and robbery was disregarded when the true killer confessed and identified his two co-perpetrators; [FN384] and Donald Shoup, whose capital murder charges were dropped after the true killer confessed. [FN385]



c. Prosecutorial Intervention



Though it appears to happen relatively infrequently, prosecutors sometimes drop charges against a defendant who has confessed because the confession does not match the facts of the crime and the prosecutor thus recognizes that it is of no evidentiary value. In 1991, Snohomish County, Washington prosecutors dropped charges against Charles Lawson when they realized that Lawson had wrongly reported many of the crucial facts in his confessions to two separate murders. [FN386] Similarly, in 1994 prosecutors in Louisiana dismissed second degree murder charges against Cyril Walton after realizing that many of the details in his confession simply did not fit the facts of the crime. [FN387]



d. Judicial Suppression



Sometimes prosecutors are forced to drop charges after a judge suppresses a confession because there is no physical or even uncompromised testimonial evidence to implicate the defendant. In 1983, using a guided visualization and relaxation based hypnotic induction, Wheeling, Illinois police elicited from fourteen-year-old William Boyd a confession to murdering a schoolmate. [FN388] Although bite marks on the victim's body did not match Boyd's teeth, prosecutors charged him with murder. [FN389] After a Cook County Circuit Court judge suppressed Boyd's confession, prosecutors dismissed charges. [FN390] Similarly, in the Sawyer case, [FN391] Florida prosecutors dismissed charges after the trial judge suppressed Tom Sawyer's grossly inaccurate confession. [FN392]



Though judges can prevent Type I cases from developing into Type II cases if they suppress the confession prior to trial, [FN393] they may also vacate a conviction both prior to and after sentencing. This happened to the charges against Lavale Burt in 1985. Chicago, Illinois police extracted a confession from Burt after slapping him around, threatening him with the death penalty, and fabricating evidence of his guilt. [FN394] A jury subsequently convicted Burt. Between his conviction and sentencing, however, the grandmother of the murder victim contacted the judge and provided new evidence showing that Burt was not the killer, causing the trial judge to vacate his conviction. [FN395] Similarly, a judge in Montgomery, Alabama vacated Melvin Beamon's 1989 murder conviction (and twenty-five-year prison sentence) after an eyewitness to the crime came forward and exonerated him. [FN396] Beamon had confessed after seventeen hours of interrogation, during which Montgomery, Alabama police beat and threatened to shoot him. [FN397]



e. Jury Acquittals



If police fail to detect that a confession is unreliable, prosecutors fail to dismiss charges and the judge fails to suppress the confession, [FN398] the defendant may still be able to persuade a jury of his innocence. Though juries tend to regard confessions as the most probative and damning evidence of guilt possible, [FN399] they sometimes acquit defendants who have confessed falsely. [FN400] For example, in 1986 after almost ten hours of interrogation, [FN401] police in Flagstaff, Arizona extracted a highly probable false confession to a Navajo ritual slaying from George Abney in a recorded interrogation. [FN402] At trial, the defense presented Abney's unimpeachable alibi, identified the likely killer and analyzed the interrogation for the jury--who acquitted Abney. [FN403] In 1993, Mesa, Arizona police interrogators elicited a highly probable false confession to sexual assault of a minor from Dale Zamarrippa. Zamarrippa was also eventually acquitted by a jury. [FN404] In 1997, a jury in Juneau, Alaska acquitted Richard Bingham of first degree murder and sexual assault. [FN405] Not only did Bingham's confession contradict the facts of the crime, but a spot of blood found on one of Bingham's sneakers was not the victim's and the semen found on the victim's body was not Bingham's. [FN406] In 1989, a Minneapolis, Minnesota jury did not merely acquit Betty Burns of the attempted murder to which she had confessed, but took the additional unusual step of publishing a thirteen page letter denouncing the interrogation of Burns, expressing alarm that the true perpetrator remained at large, calling for reforms both in the police and prosecutors' offices, and requesting that Burns' record be expunged and she be compensated for her ordeal. [FN407]



2. Type II Cases: False Confessions That Lead to Wrongful Conviction and

Imprisonment (48%)



a. General



Type II cases are those in which miscarriages have occurred and the justice system has clearly failed: not only have innocent individuals been made to confess to crimes they did not commit, but they have also been wrongly prosecuted, convicted, and imprisoned. False confessions may lead to wrongful conviction either when a suspect pleads guilty to avoid an anticipated harsher punishment or when a judge or jury convicts at trial. Following Type II errors, some suspects are eventually released and exonerated; some are released after serving a prison term but are never exonerated; and some false confessors are sentenced to life terms and remain incarcerated to this day. Several false confessors in this study were sentenced to death, and in one case the defendant was executed.



Confession evidence is sufficient to produce wrongful arrests, convictions and incarceration. In practice, criminal justice officials and lay jurors often treat confession evidence as dispositive, so much so that they often allow it to outweigh even strong evidence of a suspect's factual innocence. All of the police-induced false confessions documented here resulted in some deprivation of liberty. Fifty-two percent of the false confessors' wrongful deprivation of liberty ended before conviction, while 48% of the defendants suffered miscarriages of justice.





b. Plea Bargains

If it seems counter-intuitive that an innocent person would confess falsely, the specter of an innocent false confessor pleading guilty seems fantastic. Yet this is not uncommon. [FN412] As Table B2 indicates, in 12% (7) of the cases reported here, the false confessor chose to plead guilty to avoid an anticipated harsher punishment--typically the death penalty.



i. Jack Carmen



In 1975 Jack Carmen, a mentally retarded twenty-six-year-old, confessed to the kidnapping, rape and murder of a fourteen-year-old girl in Columbus, Ohio. [FN413] Though there was no evidence against Carmen and three eyewitnesses placed him elsewhere at the time of murder, Carmen pled guilty to the crime to avoid the death penalty. [FN414] Instead he was sentenced to life in prison. [FN415] Two years later, an appellate court judge nullified Carmen's conviction, and he was subsequently acquitted in a jury trial. [FN416]



ii. David Vasquez



In 1984, David Vasquez, who is also mentally retarded, [FN417] confessed three times [FN418] and subsequently pled guilty to the murder of Carolyn Hamm, for which he was sentenced to thirty-five years in prison. [FN419] In Vasquez's case, the police also subsequently identified the true murderer, a serial killer, [FN420] and Vasquez was released from prison after serving almost five years of his sentence. [FN421]



iii. Johnny Lee Wilson



Vasquez was fortunate compared to Johnny Lee Wilson, another mentally retarded adult. [FN422] In 1986, Aurora, Missouri police induced Wilson to confess to murder and arson. [FN423] Wilson pled guilty to first degree murder to avoid the death penalty and instead was sentenced to life in prison without the possibility of parole for fifty years. [FN424] Although in 1988 the true killer confessed and provided officials with details of the crime that only the perpetrator would know, Wilson was not released from prison until 1995--more than eight years after his conviction, when the Governor of Missouri pardoned him. [FN425]



iv. Paul Ingram



In 1988, police in Olympia, Washington extracted from Paul Ingram a highly probable false confession to numerous fictitious crimes [FN426]--including sexually molesting his two daughters, [FN427] supervising the gang rape and bondage of his daughters and wife on numerous occasions, [FN428] and being a demon-possessed member of a satanic cult [FN429] that allegedly committed murders, [FN430] performed coathanger abortions, [FN431] signed loyalty oaths in blood, [FN432] engaged in bestiality, [FN433] and dismembered, sacrificed and cannibalized small children. [FN434] The prosecution was able to save face by getting Ingram to enter a guilty plea to six counts of third degree rape. [FN435] Though the sensational and bizarre circumstances of Paul Ingram's case remain unique in the annals of American interrogation history, the outcome of his case is not. Despite compelling evidence that his guilty plea was predicated upon a false confession, [FN436] Ingram remains incarcerated. [FN437]



v. William Kelley

[Obscuregawdess]

Bill Durham - Suppression hearing

BILL DURHAM

having been first sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:

DIRECT EXAMINATION

BY MR. FOGLEMAN:

Q. Will you please state your name and occupation?

A. Bill Durham, detective, West Memphis Arkansas Police Department.

Q. How long have you been employed in law enforcement?

A. All totaled, approximately twenty years.

Q. I want to direct your attention to June third, 1993. On that date did you have occasion to come into contact with the defendant Jessie Misskelley, Junior?

A. Yes, I did.

Q. Do you know the approximate time?

A. Approximately 11:15 to 11:20 A.M.

Q. Did you have a conversation with him?

A. Yes, sir, I did.

Q. Prior to having a conversation with him, did you advise him of his rights?

A. Yes, sir, I did.

Q. How did you do that?

A. By means of an advice of rights form outlining his rights which I placed this so he could read as I read his rights to him to make certain there's no misunderstanding. I also explained what each of the rights meant. He initialed each of the rights individually and then signed the waiver of rights.

Q. When you turned it toward him, did it appear that he was reading?

A. Yes, sir.

Q. I want to show you State's Exhibit Eleven for identification purposes and ask if you can identify that?

A. Yes, sir. This is a photocopy of the rights form signed by Jessie Misskelley on June 3, 1993, at 11:30 A.M. witnessed and signed by myself.

Q. In advising him of his rights I think I understood you to say that you read them to him?

A. Yes, I did.

Q. After you read each right, did you inquire whether he understood those rights?

A. Yes, sir.

Q. Did he indicate that he understood them?

A. Yes, sir, he did.

Q. How did he indicate?

A. He said he understood.

Q. Did he also place his initials?

A. Yes, sir, he did.

Q. Did you use any force, promises, threats or coercion to get him to place his initials by each of his rights?

A. No.

Q. Did you also go over the waiver of rights portion?

A. Yes, I did.

Q. Did you ask him to sign the form?

A. Yes.

Q. What was his response?

A. He indicated he understood, and he did sign his name.

Q. Were you present?

A. Yes, sir.

Q. Did you see him sign his name?

A. Yes, sir.

Q. Was there anybody else present?

A. No, sir, not at that time.

Q. Did you use force, promises, threats or coercion to get Jessie Misskelley, Junior to sign this form or to talk to you?

A. No.

MR. FOGLEMAN: We would offer State's Exhibit Eleven.

MR. STIDHAM: No objection.

THE COURT: It may be received without objection.

(STATE'S EXHIBIT ELEVEN IS RECEIVED IN EVIDENCE)

BY MR. FOGLEMAN:

Q. I also want to show you State's Exhibit Ten and ask if you can identify that?

A. It's a polygraph examination release form signed by Jessie Misskelley, Junior.

Q. What involvement did you have with the polygraph release form?

A. The consent for the polygraph with Jessie Misskelley, Senior had already been signed, given consent by his father, and witnessed by Detective Allen. When I was given this form, Jessie Misskelley, Junior was with me. I again went over this, explained some of the words I thought he might have a problem with. He said he understood. He signed it in my presence, and I witnessed his signature.

Q. Did you use any force, promises, threats or coercion to get him to sign the form or to take a polygraph examination?

A. No.

Q. Do you know approximately how long the defendant was with you?

A. He was with me approximately an hour.

Q. From approximately when to when?

A. From approximately 11:15 until 12:15, 12:20 somewhere in that area.

Q. After the last chart you ran, did you make a notation of the time?

A. Yes, sir, I made a notation at the end of that particular chart.

Q. Do you know what time that was?

A. If memory serves me correctly, it was 12:11 P.M.

Q. During the course of your involvement with the defendant, was there any force, promises, threats or coercion at all during the course of your involvement with the defendant?

A. No.

Q. After you completed your polygraph examination, what did you do then?

A. I asked Jessie Misskelley to sign his polygraph sheet, which he did. I then advised Mr. Misskelley of the test results.

Q. And did you conduct a post test or try to conduct a post test interview?

A. I attempted to and he refused to answer any questions.

Q. When you say, "he refused," what do you mean?

A. He remained silent. When I told him the test results, he slumped down in the chair, turned his head toward the opposite wall, and refused to answer my questions, made no sound or responses whatsoever.

Q. When you say, "he refused," did he say, "I refuse"?

A. No, sir. He was silent.

Q. After he was silent, what did you do?

A. When I saw he was not going to respond, I left my office, leaving Misskelley sitting there, advised Gitchell and Ridge of the polygraph test results and explained to them that Misskelley would not talk to me and perhaps someone else should try to question him.

CROSS EXAMINATION

BY MR. STIDHAM:

Q. Officer, do you know why Detective Ridge's notes reflect that the polygraph examination lasted from 10:30 to 12:30?

A. You'd have to ask Detective Ridge that question.

MR. FOGLEMAN: Where are you referring to in his notes?

MR. STIDHAM: It is the typewritten notes.

BY MR. STIDHAM:

Q. Have you seen those notes before?

A. No. To the best of my recollection, I have not.

Q. You don't have any explanation as to why these notes would reflect that?

A. Those are not my notes.

Q. You don't have any reason to know why that reflects that?

A. No, I can't answer that question.

Q. It is your testimony that you had Mr. Misskelley for about an hour?

A. Yes, sir.

Q. There were three charts done on the polygraph test?

A. That's correct.

Q. Each of these charts last approximately three minutes?

A. No, sir.

Q. That's not correct?

A. No, sir. Did you say twenty minutes?

Q. No. I said three minutes per chart.

A. Approximately each chart would last approximately two minutes. I ask a series of ten questions. I must wait a minimum of ten seconds between the subject's answer before I ask the next question. In a ten question chart that's going to make the actual end test itself per chart to be approximately two minutes long.

Q. So we've got about Six minutes of charts?

A. Correct.

Q. What happened the other 54 minutes?

A. When Mr. Misskelley first came into my office, I did an information sheet which is part of my report. I went over the advice of rights with him. I spent at least twenty minutes explaining to him how the test works, the conduct of the test, what I expected him to do as far as cooperation with the test itself, what the attachments to the instrument did and the basis for the instrument.
We talked in terms that I felt he understood -- he indicated that he did -- as far as the central nervous system, the autonomic system, and various physiological responses of the human body. I also asked him questions dealing with the matter at hand.
I formulated a test question sheet. I reviewed the questions with him twice. Once while I was formulating the questions and then again prior to the end test itself.
I explained to him that these would be the questions which are all worded so he can answer yes or no. I reviewed the questions with him in advance and explained to him that these would be the questions, that they would be asked in the same order each and every time and there would be no deviation in the manner in which the questions were asked prior to the test itself.

Q. When did you first realize you were going to conduct a polygraph exam?

A. I will have to guess probably fifteen minutes prior to Misskelley coming into my office.

Q. It would have been about --

A. I think Detective Allen had said they wanted a polygraph test on Misskelley and, of course, I can't tell you what happened with Jessie Misskelley, Junior prior to him coming into my office.

Q. Were you present at the detective's meeting?

A. I was.

Q. You remember the detectives or the group of you all discussing the fact that you had information that Jessie was at a cult meeting with Damien?

A. Of my own memory I don't recall that.

Q. Was there any mention of a polygraph test made at that meeting that morning?

A. I can't recall that. There had been many instances where they were mentioning someone taking a polygraph test, but it wasn't always possible to schedule them on the day it was brought up. Had it been mentioned that morning, which I don't vividly recollect, that is not to say I would have done it on that particular day had he not been available.

Q. (HANDING) Do you recognize that photograph?

A. This appears to be the photograph that was taken in my office while I was out with the flu last week.

Q. Does it reflect the polygraph machine?

A. It shows the polygraph instrument mounted on the polygraph desk.

Q. Do all four of those photographs depict your office and the polygraph machine?

A. They show my polygraph and also the examiner's chair.

Q. Would these photographs be a fair and accurate depiction of your office where the polygraph machine is and where the polygraph tests are administered in West Memphis?

A. Not at the present time and not at the time I did these tests.

Q. What do you mean by that?

A. I can see there is a softball bat laying in the corner. I received that bat approximately the second week of December. It was given to me by another officer. And it was not in the office on the date that I conducted this polygraph test or any of the tests related to this case. It had been there since the middle of December and it is not in my office at the present time.

Q. So you're saying that the photographs in and of themselves are representative of your office with the exception of the aluminum baseball bat propped up in the corner?

A. Let me look at them again.

Q. (HANDING)

A. There's one other change. You show a large chair. That chair was not there when I conducted any of these tests involving this matter. That chair was put there sometime later in the summer when we got a different conference table and chair in Inspector Gitchell's office and I inherited that chair because I didn't have enough seating in my office. So the chair was not there at the time I conducted the test. Neither was the softball bat. Everything else appears to be accurate.

Q. That baseball bat wasn't in there on June third when you gave the polygraph test to Mr. Misskelley?

A. No.

MR. FOGLEMAN: Subject to the limitations that Officer Durham has put on the contents of the room we don't have any objection. We do think it would be helpful for the record if it could be stated when the photographs were taken.

MR. STIDHAM: They are on the photographs themselves. January fourth, 1994.

THE COURT: Are you offering them?

MR. STIDHAM: Yes, your honor.

THE COURT: They may be received without objection.

(DEFENDANT'S EXHIBIT TWO A, B, C AND D ARE RECEIVED IN EVIDENCE)

BY MR. STIDHAM:

Q. Was there a point during the polygraph examination of Jessie Misskelley, Junior that Mr. Misskelley became angry?

A. No, sir, not in my presence.

Q. Did you ever get angry at him at any time during the test?

A. No.

Q. Why did Detective Allen have to come in the room and restrain Jessie?

A. He didn't come in my office and restrain Jessie in my presence.

Q. It didn't happen?

A. Not in my presence. I can't say it never happened. I'm saying I never saw that happen.

Q. What were the results of Jessie's polygraph test?

A. It was my opinion that he was deceptive to the relevant questions dealing with his involvement in this homicide.

Q. Those questions you asked him -- do you have those in front of you?

A. Yes.

Q. The first question was, "Have you ever taken a polygraph test before?"

A. That's correct. It is an irrelevant question.

Q. Does it matter?

A. No, it doesn't.

Q. Second question is, "In regard to the deaths of those three boys, are you going to tell the truth during this test?" Is that a relevant question?

A. It is a sympathetic relevant, weak relevant.

Q. Third question, "Have you ever been in Robin Hood Hills?"

A. Relevant question.

Q. Question four, "Do you smoke dope?"

A. That's a control question.

Q. "Have you ever took part in devil worship?"

A. That's a relevant question.

Q. Question six, "Have you ever sold any dope?"

A. That's a control question.

Q. "Have you ever attended a devil worship ceremony in the Turrell/Twist area?"

A. That's a relevant question.

Q. Eight, "Have you taken any drugs or medication today?"

A. That's an irrelevant question.

Q. Number nine, "Are you involved in the murder of those three boys?"

A. That's a relevant question.

Q. Ten, "Do you know who killed those three boys?"

A. that, too, is a relevant question.

Q. Which questions do you contend that Mr. Misskelley was being deceptive on?

A. My written report only reflects the relevant question dealing with the matter at hand, which of course would be 3, 5, 7, 9 and 10. The other questions are used for different purposes. They don't deal with the matter at hand per se.

Q. Did you ever tell Jessie Misskelley at any time that you knew he was lying because his brain was telling you that he was lying?

A. I not only did not make that statement, I have never made a statement like that.

Q. Did you explain to Jessie what a polygraph test was?

A. We covered that in the pre-test interview.

Q. So I assume you informed Jessie that he had flunked the test?

A. That's correct.

Q. Did he make any response to you?

A. At that particular point he slumped in his chair, turned to his right and faced the opposite wall and made no response.

Q. So for the record then you're saying that he was deceptive in question two?

A. I beg your pardon?

Q. Which questions was he being deceptive in your analysis?
That would be questions two --

A. Mr. Counselor, questions 3, 5, 7, 9 and 10 are the relevant questions dealing with the matter at hand. The other questions are either control questions or separation questions. They are not part of the test per se other than for the sake of scoring.

Q. Are you contending then that he was being deceptive in 3, 5, 7, and 9?

A. And 10.

Q. And you didn't care about any of the other questions? Did you score them at all?

A. They are control questions. I looked at those questions. If you want to know the results, I'll certainly tell you. Yes, in my opinion that he was lying. He did not intend to tell the truth during this test and, yes, he had both smoked and sold dope, but that was not the issue at hand.

Q. So he flunked every one of them?

A. No, sir.

Q. Which one did he pass?

A. The very first question.

Q. Why did you think it was important to mix drug questions with homicide questions?

A. A control question is a control question. If a person responds to it, then of course it is a good control. If there is no response to that question, then it becomes an irrelevant question to the subject at hand. If you ask relevant questions directly in a row, then you're not running a zone of comparison polygraph test. You're doing a peak attention type test, and that is not what this was.
It doesn't matter whether the question was related. At the time I ran this test, you must understand that Jessie Misskelley, Junior was not a suspect. He was at that time, I was told, that he was most probably a reluctant witness. The purpose of the test was to basically see if he had information that might be helpful to us in the investigation of this matter and questions dealing with his involvement or knowledge were questions to determine whether he was or whether he was not involved in the murder itself.
The questions dealing with does he know who -- if he had been a reluctant witness, he may have overheard conversations. Here again is one of the situations where we are searching for information.
Question number nine dealing with involvement in the murder themselves was a cover question to -- as I had -- to determine whether or not he was involved himself or not or whether he might possible have information that would benefit us in the investigation.
Had he been a suspect at the time, I would have asked a different series of questions that would have been more specific and more direct. At the time I did the test on Jessie Misskelley, Junior, he was not a suspect.

Q. Officer Durham, you mean to tell me that you just dragged anybody and everybody off the streets of West Memphis and gave them this test and see if they were telling the truth or not?

A. I did not give everyone on the streets of West Memphis a polygraph test. Depending on the individuals and depending on what they had to say in the pretest would determine the type of questions or the wording of the questions that I would ask.
If he had said that he had been in Robin Hood Hills but hadn't been there in the last year, for instance, then I would have asked him had he been in Robin Hood Hills in the last year. But he said he had never been there, which in my opinion was not the truth.

Q. Let's assume for a minute that I'm not a lawyer and you're not a polygraph guy and the police pick you up, take you down to the station and ask you these ten questions. Would you feel like you were a suspect if you were asked these ten questions?

A. I'm glad you asked me personally because if I was a suspect in any manner -- and I have taken polygraph test myself -- I would gladly take a polygraph test at anytime for anybody at the present time if there is any question as to my honesty or integrity, Mr. Counselor.

Q. How long have you been administering polygraph tests?

A. I graduated from the Zahn Institute of Polygraph in Miami, Florida, in December of 1981. I became licensed in the state of Tennessee in early 1982 through the Memphis Police Department.

Q. Why didn't you do a peak of attention test on Jessie Misskelley?

A. Following this test -- is that what you're asking?

Q. I mean, why didn't you do it in the first place?

A. A peak attention test is generally a searching peak attention. Such as an example where a person is -- is as -- I want to do it in a way that you can understand.
The last time -- this case out West where a person was linked to a crime, a murder, and he had buried the body and it was important to the investigators to find where the body was located. They had narrowed it down to a certain area and they drew the area off in certain graphs and numbered them one through seven and a question on the test was, "Is the body buried in zone one, zone two" so forth and so on, and through the unknown searching peak attention they were able to isolate the area and later locate the body. That is the true purpose of doing a peak attention.
As far as doing a peak attention following this polygraph test --

Q. That's not my question. My question is, why didn't you do it to begin with?

A. Because I use a zone of comparison. I use a zone of comparison which to the best of my knowledge -- and I have read this in the AAPA journals -- is the only polygraph technique that is recognized in the American Association of Chiefs of Police.

Q. Had you determined that Mr. Misskelley had been telling the truth and was not being deceptive on the questions, you would have turned him loose, right?

A. It is not my place to turn someone loose or incarcerate them based on polygraph test results. If Mr. Misskelley had in my opinion been telling the truth, then I would have told the lead investigator that in my opinion Mr. Misskelley had told the truth in regard to the relevant questions.

Q. Do you ever yell at suspects when you're giving the polygraph test?

A. No.

Q. Do you ever yell at suspects when you're interrogating them?

A. No.

(WITNESS EXCUSED)

John Murray - Suppression hearing

JOHN MURRAY

having been first sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:

DIRECT EXAMINATION

BY MR. FOGLEMAN:

Q. Will you please state your name and occupation?

A. John Murray. I'm an investigator with the Crittenden County Sheriff's Department.

Q. In the course of your duties have you had occasion to come in contact with Jessie Misskelley, Junior?

A. Yes, I have.

Q. When was that?

A. It was the tenth month, 23rd day of '92.

Q. Did you say the 23rd day?

A. Yes, sir.

Q. Would you --

A. 27th -- I'm sorry.

Q. When you had this contact with Mr. Misskelley, did you advise him of his rights?

A. Yes, I did.

Q. How did you do that?

A. I read from a rights form each one of the rights to him as he read along with me and after reading each rights a response of the word "yes" and his initial was placed on that line.

Q. Did -- after you read the right to him, did he indicate to him whether or not he understood the right?

A. Yes, he did.

Q. How did he signify that understanding?

A. He put the word "yes" on the line and he stated that he did understand them.

Q. Did you do the same procedure for each of those five rights?

A. Yes, I did.

Q. Did he indicate that he understood all those rights?

A. Yes, he indicated to me that he did.

Q. Did you use any force, promises, threats or coercion to get him to place his initials on it?

A. No, I didn't.

Q. Did you then ask him if he was willing to make a statement?

A. Yes, I did.

Q. Did he sign the form?

A. Yes, he did.

Q. Did you use any force, promises, threats or coercion to get him to sign the form?

A. No, I didn't.

Q. Did you sign as a witness?

A. Yes, I did.

Q. Who else was present?

A. William Wood, Junior, Union Pacific Railroad.

MR FOGLEMAN: We would offer State's Exhibit Four.

THE COURT: It can be received for the purpose of this hearing. I'm not ruling on their admissibility in the trial itself. In your motion on the eleven year old, I might reconsider that if it became necessary to introduce it at trial. So you can preserve any objection you have on admissibility for trial purposes on all exhibits that are received today, if it becomes necessary.

(STATE'S EXHIBIT FOUR IS RECEIVED IN EVIDENCE)

BY MR. FOGLEMAN:

Q. Did Mr. Misskelley appear to understand the rights?

A. Yes, sir, he advised me that he did understand his rights.

CROSS EXAMINATION

BY MR. STIDHAM:

Q. Are you familiar with Jessie?

A. Yes.

Q. You know that he's slow?

A. Yes.

Q. Did you take any special precaution to be sure he understood his rights?

A. I asked him whether or not he understood each one of the rights. If he did not understand, I would explain them.

Q. If he's slow, how is he going to know if he understood them?

A. I asked him whether he did and he stated he did understand.

Q. You just assumed then that he did?

A. That was my opinion that he understood.

Q. Do you notice anything strange about Jessie's signature?

A. It is printed instead of handwritten.

Q. Doesn't that bother you?

A. No, sir. Each time I have talked to him in the past and whenever he has signed, he has printed.

Q. That's kind of unusual, isn't it?

A. We have quite a few juveniles that I have dealt with that print their name instead of writing it.

Q. He never made any attempt to invoke any of his constitutional rights?

A. No, sir.

REDIRECT EXAMINATION

BY MR. FOGLEMAN:

Q. In completing that form did you get a date of birth from him?

A. Yes, I did.

Q. What was that?

A. 7-10-75.

MR. FOGLEMAN: Your Honor, he would have been thirteen at the time of the other rights, not eleven.

MR. STIDHAM: Did his father sign that?

THE WITNESS: No, sir.

(WITNESS EXCUSED)

Gheric Bruce - Suppression hearing

GHERIC BRUCE

having been first sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:

DIRECT EXAMINATION

BY MR. FOGLEMAN:

Q. Will you please state your name and occupation?

A. Gheric Bruce and I am security officer for Federal Express.
Q. Mr. Bruce, back in 1988 what was your employment?

A. I was employed with East Arkansas Juvenile Services in Marion.

Q. What was your position?

A. Well, I was intake officer, probation officer, and parole officer so I would have had several different jobs.

Q. During your employment with the juvenile services office, did you have occasion to come in contact with Jessie Misskelley, Junior?

A. Yes.

Q. I want to show you what's been marked for identification as State's Exhibit Three and ask if you recognize that?

A. Yes, I do.

Q. During your employment and in regard to your contact with Jessie Misskelley, Junior, did you have occasion to advise him of his rights?

A. Yes, I did.

Q. How did you advise him of his rights?

A. Okay, I told him that he had the right to remain silent.

Q. Did you read the form to him?

A. Correct.

Q. After you read the form to him, did you ask him if he would sign it?

A. Before I asked him to sign, I also asked if he understood.

Q. What did he say?

A. Yes.

Q. Did you then ask him to sign the form?

A. Yes.

Q. Did he sign the form?

A. Yes.

Q. Did you use any force, promises, threats or coercion to get him to sign the form?

A. No.

Q. Who else was present when you advised him of his rights?

A. His father.

Q. Anybody else?

A. No.

Q. I saw another name on that.

A. It says his mother. I remember his father.

Q. You didn't remember his mother being there?

A. No.

Q. Did you also sign the form?

A. Yes.

MR. FOGLEMAN: We would offer State's Exhibit Three.

MR. STIDHAM: My only concern would be -- it would appear Mr. Misskelley would have been eleven years old at that time.

MR. CROW: What is the relevance of what he did back -- some -- 1998.

THE COURT: Are you saying he wasn't cognitive at eleven? I'm going to allow it. Overruled.

(STATE'S EXHIBIT THREE IS RECEIVED IN EVIDENCE)

(WITNESS EXCUSED)

Jerry Driver - Suppression hearing

JERRY DRIVER

having been first sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:

DIRECT EXAMINATION

BY MR. FOGLEMAN:

Q. Will you please state your name and occupation?

A. Jerry Driver. I'm the chief juvenile officer for Crittenden County.

Q. In the course of your duties as the chief juvenile officer have you had occasion to come in contact with Jessie Misskelley, Junior?

A. Yes, sir, I have.

Q. Either right before or right after you were sworn, did you hand me this file?

A. Yes, I did.

Q. Does that file contain the juvenile matters that are relevant to Jessie Misskelley, Junior?

A. Yes, it does.

MR. STIDHAM: May I inquire as to the relevance of this?

MR FOGLEMAN: This is going to the number of times that Jessie Misskelley has been advised of his rights in the past.

THE COURT: I'm going to allow it.

BY MR. FOGLEMAN:

Q. I am going to refer specifically to March the 31st, 1993.

A. Yes, sir.

Q. On that occasion did you have an opportunity to come into contact with Jessie Misskelley?

A. Yes, I did.

Q. At that time did you advise Mr. Misskelley of his rights?

A. Yes, I did.

Q. How did you advise him of his rights?

A. I read him a rights statement, asked him if he understood each one. Had him read him over, initial the rights and sign a statement that he wished to talk to me. Also his father signed.

Q. His father was present?

A. Yes, he was.

Q. I want to show you what appears to be a waiver of rights marked for identification as State's Exhibit One and ask if you can identify that?

A. (EXAMINING) Yes, sir, that is the rights form that was signed on 3-31-93.

Q. Is that a copy of the rights form that you used to advise Jessie Misskelley of his rights under the Constitution and laws of the State of Arkansas and the United States?

A. Yes, it is.

Q. I notice before each right there is a blank and it has got some initials. Who placed those initials there?

A. Mr. Misskelley.

THE COURT: Are you talking about the defendant or his dad?

THE WITNESS: The defendant.

BY MR. FOGLEMAN:

Q. Before the second right -- when did he put these initials there?

A. After I read the rights to him.

Q. After you read, for instance, the first one -- he has the right to remain silent, what did you say?

A. I asked him if he understood that right.

Q. What did he indicate?

A. That he did.

Q. After he indicated that he did, what did you ask him to do?

A. To put his initials by that right.

Q. Did you do that same procedure for each right?

A. Yes.

Q. Following the advice of rights, is there a portion headed "waiver?"

A. Yes there is.

Q. What did you do in regard to this section?

A. We asked him as it states here, "Do you understand each of these rights as I have explained them to you?"

Q. What was his response?

A. His response was that he did and we had him place his initial in the box for yes.

Q. "Having these rights in mind, do you wish to talk to us now?"

A. Yes.

Q. What was his response?

A. That he did.

Q. Did you ask him if he would sign the form?

A. Yes.

Q. Did he sign it?

A. Yes, he did and I also advised him to read it over again.

Q. Who put the date after his signature?

A. I don't recall.

Q. Then who signed besides Jessie Misskelley, Junior?

A. His father Jessie Misskelley, Senior and myself.

Q. Any forces, promises, threats or coercion used when you advised him of his rights?

A. No, sir.

MR. FOGLEMAN: We would offer State's Exhibit One.

MR. CROW: No objection.

(STATE'S EXHIBIT ONE IS RECEIVED IN EVIDENCE)

BY MR. FOGLEMAN:

Q. I want to refer your attention to -- it looks like October 28th, 1992. Do you know who advised him of his rights on that occasion?

A. I believe it was me.

MR. STIDHAM: That's not proper if he's not sure.

THE WITNESS: It was me.

BY MR. FOGLEMAN:

Q. How can you tell?

A. The rest of my paperwork has my signature on it.

Q. Is that paperwork done at the same time you gave him his rights?

A. Yes, sir.

Q. Was this October 28th, 1992?

A. Yes, it was.

Q. Did you use the same type of form this time?

A. Yes.

Q. Did you follow the same procedure?

A. Yes.

Q. And did you use any force, promises, threats or coercion on this case?

A. No sir.

Q. Did you advise him of each right?

A. Yes, sir.

Q. Did he indicate that he understood each right?

A. He indicated that he did, and I once again indicated he should read it over before he sign it.

Q. Did he place his initials as before?

A. Yes, sir.

Q. Any force, promises, threats or coercion used on this occasion?

A. No, sir.

Q. Who else signed?

A. His father signed it and I don't believe I signed it. I don't see my name on there but it was with the other forms.

MR. STIDHAM: We object to this exhibit because I don't think it has been properly authenticated. This witness doesn't know for sure he was present when this happened.

THE COURT: Overruled. You were present you prepared the paperwork?

THE WITNESS: Yes, sir, I just neglected to sign this particular form.

(STATE'S EXHIBIT TWO IS RECEIVED IN EVIDENCE)

THE COURT: You said you asked him to read it. Do you know whether or not he had the ability to read?

THE WITNESS: It appeared that he did. He read it over and signed it.

THE COURT: Did he ask any questions?

THE WITNESS: No, sir. I asked him several times if he had any questions.

THE COURT: Did his father have any questions?

THE WITNESS: No, sir.

THE COURT: Was he given an opportunity to read it in each case?

THE WITNESS: Yes, sir.

THE COURT: Did he attempt to do so or appear to do so?

THE WITNESS: Appeared to do so.

CROSS EXAMINATION

BY MR. STIDHAM:

Q. Would you take a look at Mr. Misskelley's signature on that form?

A. Um-hum.

Q. Do you notice anything strange about his signature?

A. It's not in cursive.

Q. Does that bother you?

A. No, sir.

Q. How do you know he can read and write?

A. He indicated to me that he could.

Q. You just always accept that without question?

A. I asked him if he had any questions about this. We went over each one of them. He said he had no questions, that he understood it. I asked him to read it over. He took it, appeared to be reading it and then signed it.

Q. Isn't it true that he just signed it without looking at it and just summarily did it?

A. No, sir, that's not true.

Q. Is there a reason why Jessie Senior signed this form?

A. Yes, sir, we always have the parent sign.

Q. That's the law, is it not?

A. In intake, yes, sir.

(WITNESS EXCUSED)

http://westmemphisthreediscussion.yuku.com/forums/12

[Obscuregawdess]

Maybe you can do better than me. That last one was the closest I could find.

[pax]

Maybe you can do better than me. That last one was the closest I could find.

No way!

Thanks. Lots to read.

[Obscuregawdess]

No way!

Thanks. Lots to read.

You're welcome. the last one is the only one that transcribes portions of the motion to suppress confession pre-trial hearing. the others are after he was convicted, appeals, articles, etc. The last post is all I could find of the actual hearing.

[Obscuregawdess]

BY CATHY FRYE

Posted on Wednesday, June 11, 2008

Defense attorneys for the three men convicted of killing three West Memphis boys in 1993 have asked a judge to examine a sealed affidavit that alleges improper conversations during the trial between the jury foreman and a nonjuror.

The request appears in documents filed Friday by the convicted men's attorneys, who also entered three new exhibits of their own under seal.

One of the new exhibits is an affidavit from former Little Rock television reporter Lyndall Stout. According to the attached, explanatory court documents, Stout's affidavit contains an assertion that the jury foreman admitted to her in the spring of 2005 that he and his fellow jurors discussed a confession that had been deemed inadmissible at Damien Echols and Jason Baldwin's joint trial.

The documents, filed in Craighead County Circuit Court, say Stout's affidavit corroborates the defense's claim that there was jury misconduct during the trial. The reporter's statement was entered under seal because it contains the name of the jury foreman. Jurors are identified in public documents by numbers.

But the name of the jury foreman is no secret. Juror No. 4, aka Kent Arnold, spoke to the Democrat-Gazette in 2000 and again on Tuesday.

Journalists and talk-show hosts from all over the nation have been calling him for years, Arnold said, but he usually doesn't agree to interviews.

Arnold was the jury foreman during the joint trial for Damien Echols, then 18, and Jason Baldwin, then 16. Jessie Misskelley, then 17, was tried separately, since he gave a confession to police. Because Misskelley refused to testify against Echols and Baldwin, his confession couldn't be admitted into evidence at the pair's trial.

The defense has long contended that the Echols-Baldwin jurors disregarded this fact and still considered the confession during deliberations.

Echols was sentenced to death; Baldwin to life. Misskelley also received a life sentence. An international effort to obtain new trials for them has been under way for years, and appeals hearings are scheduled for this fall.

ASKING FOR A LOOK Friday's defense filing asks Craighead County Circuit Judge David Burnett to look over an affidavit from a man who says Arnold discussed the case with him during the trial. The court documents assert that the alleged conversations bolster the defense's claim that the Echols-Baldwin jurors "improperly discussed and relied on the Misskelley statement, as well as the claims that Juror Number Four had erroneously discussed the trial with a nonjuror before its completion and had prejudged the defendants' guilt or innocence." The man's affidavit was entered under seal by his attorney, who isn't involved with either the case or the current defense team.

No one, including defense attorneys, has yet seen a copy of that affidavit.

Earlier this year, defense attorneys heard that Arnold had been discussing the case with a nonjuror during the trial, the filing states. Attorneys pursued this information and located the man.

But when the defense team contacted the man, he told them he was "concerned about whether the information he possessed was subject to a claim of privilege by Juror Number Four." Friday's filing doesn't identify the man, nor does it explain why privilege could be a factor. It asks a judge to release the affidavit to Arnold so that he may consider whether he wants to enter a claim of privilege. It also requests that defense attorneys and the prosecutor be given copies of the affidavit.

AN AGENDA ? Arnold, a home builder, assumes that the affidavit came from an attorney, given the question of privilege, but said he doesn't know who it could be. He said he has relied on legal representation from several lawyers over the years in his business dealings. He can't remember whether he called anyone during the trial, saying, "You're digging way back into something from 15 years ago. I'm sure if there was something that came up that I did not understand, I would have asked somebody." It's possible he called an attorney and asked questions about procedures during the trial, he said, but he can't remember anything that would have been considered improper.

"Asking what voir dire means — is that inappropriate ?

" It wouldn't surprise me to hear I asked questions about stuff. And it wouldn't be unlike me to discuss post-trial what went on during the trial." Arnold wondered if the man has an agenda in coming forward now, all these years later.

"Does he remember it accurately ? And what does he have to gain from it ?" Arnold also questioned the credibility of Stout's affidavit. He contended that Stout was deceptive about who she was and what she was doing when she interviewed him. He also questioned why a reporter would sign an affidavit for the defense team. It would appear, he said, that she was working for them rather than putting together an objective news story.

Arnold said he brought up the confession only after Stout backed him into a corner, asking him to justify the jury's verdict.

"Maybe you're not aware of the Misskelley confession," he recalls saying to the reporter.

He referred to it as proof that the jury, in the end, had made the right decision — not as something jurors took into consideration at the time of trial, he said.

"She misquoted me." Stout is on maternity leave from her television job in Pennsylvania, according to the station's Web site. She didn't return a call for comment. Attorneys cannot discuss the case, having been threatened by Burnett with contempt of court if they talk to reporters.

WHAT HE RECALLS When asked Tuesday if the jury discussed Misskelley's confession during deliberations, Arnold said: "During the trial, I think mention was made by somebody, a witness, in relation to Misskelley, and I think the judge said, 'Oh, by the way, you can't use that in... deliberations.' " Whether or not it was brought up, I don't think I could be accurate in telling you one way or another," he added, noting that it took place 15 years ago.

Arnold said the jury agreed to "throw all our ideas out on paper" in the form of a large list of pros and cons. "To the best of my recollection, we threw out ideas and that may have been one of them." But jurors determined that they couldn't consider the confession in their deliberations, Arnold said. It might have been then that someone scratched out items from the list, he added.

"That sounds like something that would have happened." The defense has referred to the scratch-outs as evidence of juror misconduct.

In an April filing for Echols, his attorneys argued, "In Juror Four's opinion, the jury could not ignore the Misskelley confession despite the court's instructions to do so." They base this belief on affidavits of two defense attorneys who interviewed Arnold in October 2004. Those documents also remain under seal because they contain the names of other jurors. Arnold said it bothers him that jurors don't get to hear everything about a case during a trial.

"What's interesting to me is that post-trial, when you get to go back and review the facts, is how much information they will not let come to a jury. Why not let the decision-makers have all that information ?" Asked if either the passage of time or new DNA test results have altered his opinion on the outcome of the Echols-Baldwin trial, he replied "I think the trial in its entirety was fair. Whenever you go looking back 10 or 20 years later, you ask, 'Would you make that decision then based on what you know now ?' " The other jurors — I don't know what they would say. I would say justice was served."

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[pax]

The reason Misskeley's statements couldn't be used against Echols and Baldwin is because the Supreme Court ruled, in a case called Bruton, a confession cannot be used against another defendant if the confessor refuses to testify. It's not fair to use a confession if the person who made it cannot be cross-examined, as defendants have the constitutional right to confront their accusers. It's a shame that juror calls it a confession without having known its weaknesses, or the misconduct through which it was obtained. One reason for overturning all three convictions is that Arkansas law provides once a defendant invokes his fifth amendment right against self-incrimination, interrogations must cease. Police, prosecutors and Judge Burnett continually abused that privilege to the point where it clearly affected the outcome of the trials.

[Obscuregawdess]

You're so right, Pax. Abuse, misconduct, conspiracy, incompetent, corrupt, fanatical, and BULLSHIT all come to mind when it comes to the trials and investigation...