by Max Brantley
Two parents of children murdered in West Memphis in 1993 still have not been granted access to evidence relating to those murders, despite a lawsuit against local officials and state claims that the case is closed. Now, Pam Hicks and John Mark Byers have amended their lawsuit to include as a defendant Scott Ellington, the district’s prosecuting attorney, who is also a candidate for Congress.
Hicks filed her lawsuit on June 22, after West Memphis police officials denied her request to view evidence in her son’s case. She made that request more than nine months after Ellington entered into an unusual deal by which with the men convicted of the murders—Damien Echols, Jason Baldwin and Jessie Misskelley—pleaded guilty and were freed from prison.
Earlier this week, Ellington said he had not yet seen the lawsuit. He added: “Once I get papers served on me, we’ll forward them on to whomever and respond accordingly.”
In a press conference after their release, on Aug. 19, 2011, Ellington said: “The legal tangle that has become known as the West Memphis Three case is finished.” Supporters of Echols, Baldwin and Misskelley have pressed, nevertheless, for their exoneration.
After Hicks sued the police department for violating the Arkansas Freedom of Information Act by refusing to grant her access to the evidence, West Memphis Police Chief Donald Oakes told the Arkansas Times: "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."
Oakes said at the time that he thought there was “probably some room" to accommodate Hicks in some parts of her request. But he added: "The person who should decide access should either be the judge with jurisdiction or the prosecutor, not the police department."
In an interview this week, Ellington said he would “be tickled” to let the attorney representing Hicks and Byers see “anything and everything” in his possession relating to the West Memphis case, but that he and attorney Ken Swindle, of Rogers, had not been able to agree on a time. Swindle said that Ellington has not responded to repeated requests to do that.
Ellington said that the records in his office are “fairly miniscule, compared to what’s at the West Memphis Police Department.” He said he has “basically, old trial notebooks” prepared by former prosecuting attorneys Brent Davis and John Fogleman—“anything that they would have put together in the case.”
Ellington, who is currently running for Congress from Arkansas’s First Congressional District, said it was up to the West Memphis Police Department to decide what evidence it would allow to be viewed. He also deferred to the city attorney for West Memphis to decide which items were covered by the state FOI law and which were not.
“I think that FOI is for documentary evidence,” Ellington said. “It’s for documents. I don’t think it applies to other evidence.”
Still, Ellington admitted that he had, originally, supported the request from Hicks to see her son’s bicycle and other physical evidence that the police department had denied. “I had conversations with citizens who said, ‘What’s the big deal? What’s wrong with letting her see the bicycles?”
When Ellington called Oakes, he said, the chief told him he had no problem with letting Hicks see the “big property.” But, Ellington said, he understood the chief’s position that he did not want to “open up all the stuff from Bode labs,” a reference to the laboratory that analyzed certain fibers and DNA evidence.
The lawsuit naming Ellington claims that a Freedom of Information request was send to him on July 12, that Ellington acknowledged receipt of the letter “both over the telephone and by electronic communication,” and that he “has not provided the information requested.”
Through their attorney, Hicks and Byers asked the Circuit Court judge in Crittenden County to order Ellington and the police department to allow the parents, among other things, “to view and examine all evidence gathered in the investigation of the murders;” to provide “an evidence log or list identifying the physical evidence;” and to provide “all logs or other records indicating who has been permitted access to any of the physical evidence.”
The dispute over access to the evidence pits state and local officials against supporters of Echols, Baldwin and Misskelley who believe that the men are innocent and that the person or persons who killed the three eight-year-old boys in West Memphis almost 20 years ago remains on the loose.
Within the past five years, DNA identified as belonging to Terry Hobbs, the stepfather of Stevie Branch, was found inside one of the knots used to bind one of the other victims. A reward of $200,000 is still being offered for information that may prove crucial in the case.
If such information developed and someone new was charged with the murders, police and prosecutors would want to proceed to trial with evidence that had been properly preserved. That is why the public is not allowed to view evidence in cases that are still “open.”
But when prosecutors are satisfied that a case has been “closed,” either by convictions, acquittals, or for lack of evidence, files are opened and some evidence may even be returned to families.
In the West Memphis case, state and local officials seem to want to have it both ways. While claiming the case is closed, they are preserving the evidence in case, as Oakes put it, “at some point in the future a defense team or prosecutor wanted it tested."
A further twist on the discussion arose last week, during an interview with Kermit Channel, executive director of the Arkansas State Crime Laboratory. Channel said he hoped to be able to address criticisms of his lab that were leveled by Baldwin’s attorneys in letters that were sent to Gov. Mike Beebe, Attorney General Dustin McDaniel, and Ellington.
However, before he could respond, Channel said, he would need to check with Ellington. “I need to make sure I have authorization to talk about the case,” he said. “It’s still the prosecutor’s case. Whether there’s a conviction or an exoneration, in the eyes of the crime lab, this evidence is still protected by law, regardless of the judicial outcome.”