by Max Brantley
Mara Leveritt, who's in Marion, says Hicks wants to know why police won't show her her son's bicycle, clothing, a friendship bracelet and other evidence it collected while investigating the case. She wants to view and examine all evidence. Hicks told Leveritt in an interview that many reporters and others had viewed and handled the material over the years and some items had even been put up for sale on eBay until Hicks, known as Hobbs at the time of the murders, asked that they be taken down.
The police denied her attorney's written request to see the evidence earlier this month. The case is officially closed. Three men were convicted, but released last year from prison under an unusual deal in which they admitted guilt but maintained their innocence. A motion for a new trial seemed likely to be granted on account of accumulated new evidence, including DNA evidence and allegations of juror misconduct, Prosecutor Scott Ellington has said.
West Memphis City Attorney David Peeples was out of town today and a spokesman said he wouldn't be returning messages today. Police Chief Donald Oakes did call. He hadn't seen the suit. Oakes, chief since last year but a member of the force since the crimes occurred, said the department had routinely denied access to sealed evidence except on court orders.
"It's our position that our primary responsibility is to protect the integrity of the evidence if at some point in the future a defense team or prosecutor wanted it tested," he said.
Oakes said his primary concern was sealed evidence that it had been sent for testing in the past and might be tested in the future. He said he personally had no objection to review of such things as the boys' bicycles, produced in open court and handled by many people. Hicks, though she mentioned that item in an interview with Mara Leveritt, didn't mention that in her letter or the lawsuit. She just made a general request to view all evidence.
"I think there's probably some room" to accommodate Hicks in some respects, Oakes said. "The person who should decide access should either be the judge with jurisdiction or the proesecutor, not the police department." He said the department would of course comply with an order to open things. He noted that the case file, which includes crime scene photos and the like, IS open. "But we would not thrown open the door to the vault and have people passing evidence around and handling it."
Hicks' attorney Ken Swindle of Rogers argues that the Freedom of Information Act requires the police to show her the evidence in the case. The police contend the law applies to records, not evidence. The police also cited a victims of crime law that requires police agencies to impound and retain evidence in serious criminal cases, but does not require the "return" of evidence. Swindle said Hicks is seeking the return of no evidence, only the ability to view it. Swindle argues that the state law requiring retention of evidence, without a specific exemption of public access, is presumptive indication that the material should be open to inspection.
"I want to see if the stuff is still there," Hicks told Leveritt. "I just want to see it for myself and reassure myself that they still have it." She said she'd like the return of her son's personal items, "but I don't know if that's ever going to be a possibility."
She said she couldn't understand the police barring her. "It's quite upsetting when any Tom, Dick and Harry off the street has been able to look at it, but they're denying me the right to see it. That makes me angry."
The West Memphis police, in denying access to Hicks, also cited a state Supreme Court case in which an FOI complaint failed to win seed samples tested by the state Plant Board. In that case, Swindle acknowledged, the court said a “seed sample does not meet the definition of a ‘public record,’ because it cannot be said to be an object ‘on which records and information may be stored or represented.’”
But, Swindle countered, "The testing of seeds is to be distinguished from evidence in a criminal prosecution. In a criminal prosecution, it is the evidence itself, not documents about the evidence, that are presented to the jury. Therefore, unlike the seeds in Nolan, the evidence in a criminal case here does directly present information to the public, and therefore is an object ‘on which . . . . information may be stored or represented.’”
Unlike the seeds in the Plant Board case, Swindle's suit says, the evidence in this case is of high public interest.
A string of documentary films and in-depth reporting on the case have suggested a number of problems in evidence gathering, handling and trial use in the 1994 convictions of three teens, Damien Echols, Jason Baldwin and Jessie Misskelley. Their release as convicted felons satisfied neither those who believe in their innocence nor those who believe in their guilt. Pressure has continued for reopening of the case to find people responsible for the slayings.
Hicks called for reopening of the case last January because of new information that has been unearthed since the convictions in 1994. She says she believes the men convicted in the case are innocent of the crime. Hicks' former husband, Terry Hobbs, to whom she was married when her son and Hobbs' stepson was killed, has figured prominently in news coverage about alternate theories in the case.
"In 1993, I chose to believe the cops," Hicks said today. "Now I feel like I was totally let down. I feel like I was let down by the West Memphis police in 1993 and I feel my state is letting me down now."
She said she had called Prosecutor Ellington weeks ago to meet with him about reopening the case. "Still to this day he has not called me back."
She said she doesn't object to freedom for the three men convicted. "I blame the state of Arkansas. They came up with something out of their hat. To the state of Arkansas, it's a done deal. But to me, i have no closure."
Swindle said he does not know why police and city have responded as they have.
"It does not make sense under the law," he said.
John Mark Byers, stepfather of Chris Byers, another of the young victims, joined Hicks and Swindle at the courthouse and may join in the action.
Byers said he was never asked in 1993 to come identify his sons clothing. He has been asking to see his sons belongings since 2010. He now resides in Tennessee and has been denied on that basis. He questions the constitutionality of limiting FOI to "citizens" of Arkansas.