Few, if any, candidates for the Arkansas Supreme Court have faced public
opposition for their prosecution of accused killers.
John Fogleman, who as a deputy prosecuting attorney sought the death penalty for three teen-agers, may be the first.
Along with that opposition, he has plenty of support. Almost every lawyer I know who has appeared in Fogleman's court since he was elected a circuit judge 15 years ago holds him in high regard. In 2008, the Arkansas Trial Lawyers Association honored him as its Outstanding Trial Judge.
But for those Arkansans who oppose him ? and I am one ? the ugliness of the trials that launched his judicial career cannot be forgotten.
In 1993, three West Memphis children ? Christopher Byers, Michael Moore and Stevie Branch ? were murdered. The following year, three Crittenden County teen-agers ? Jessie Misskelley Jr., Damien Echols and Jason Baldwin ? were put on trial for the crime.
Fogleman and prosecuting attorney Brent Davis sought the death penalty for all three. Juries convicted the teen-agers, though only Echols was sentenced to death. Baldwin and Misskelley received terms of life plus 40 years in prison.
But since those trials, many Arkansans, including the parents of two of the victims, have come to believe that justice was not served ? not for the accused and not for the victims.
Fogleman prosecuted the teen-agers using circumstantial evidence that he knew, even then, was thin at best. In the years since those convictions, even the threads of evidence he was able to weave have frayed and fallen apart.
But Fogleman has no regrets. He recently told the Times, “I completely stand by every step I took in that case,”
Within weeks after winning it, the young deputy prosecutor announced his candidacy for judge in Arkansas's Second Judicial District. He erected a billboard near where the bodies of the three 8-year-old children were found. It advertised that he could “make tough decisions in tough cases.”
Now, in his race for the state Supreme Court, Fogleman relies on a website. There he says that our justice system only functions “if the people have a measure of confidence that those of us involved in the system are fair and unbiased.”
I agree with that. And that is the very reason I don't want Fogleman on our high court.
The tactics he used to win convictions of the men now known as the West Memphis Three have spawned widespread mistrust ? not just of Fogleman, but also of Judge David Burnett who allowed them (see page 13), and of our state Supreme Court, which, so far, has supported everything that has transpired in this now infamous case.
That is a harsh judgment, and I don't like making it. But history will probably judge this episode of our state's legal history even more harshly than I. Eventually, I believe, Fogleman and Burnett will be blamed for having brought a great shame on Arkansas.
Before I go further, however, I should admit that I have been mistaken about Fogleman in the past. In “Devil's Knot,” my book about the West Memphis trials, I wrote that Fogleman's father had served on the state Supreme Court, when in fact, it was his uncle. To make matters worse, I also erred in stating which of his relatives had served on the local school board.
Fogleman beat me up pretty good about those mistakes a few years ago, when he spoke about the case at the University of Arkansas at Little Rock's Bowen School of Law. And that was fair enough.
But he used the courtroom ploy of suggesting that, if Mara Leveritt was “so lazy and irresponsible” as to have gotten those details wrong, readers could not trust anything else in her book. A couple of students asked the judge if he could point to anything more substantive in “Devil's Knot” that was wrong.
As I recall, he could not. And there is plenty in there that's damning.
In a campaign speech last January in Trumann, Fogleman acknowledged that, “This was a difficult case.” He added: “But it was investigated thoroughly. Many people were looked at in this case. But I will say, every piece of evidence we had pointed to those three.”
To the contrary, the investigation was deeply flawed. There was significant evidence even at the time that pointed away from the three, and more has recently developed.
We now know that police did not even interview Terry Hobbs, the stepfather of victim Stevie Branch, after the murders. Questioning relatives is fundamental in any investigation of murdered children because, sadly, it is well known that most die at the hands of people close to them.
That hole in the investigation became more glaring last year, when new tests of evidence identified a hair in the bindings used on one of the victims ? a boy not his stepson ? as having come from Hobbs. Another hair was identified as having come from a friend of Hobbs,' a man who was with him on the night of the murders.
Also in the past year, after Hobbs told a newspaper reporter that he had not seen any of the children on the night they disappeared, three of his former neighbors came forward to dispute that. They said they saw him with the boys early that evening, but that police had never questioned them.
Another gaping hole in Fogleman's “thorough” investigation surrounds the muddy, bloody man who wandered into a fast-food restaurant on the night the boys disappeared. Workers at the restaurant, which was near where the bodies were found the next day, notified police, who took paper towels and scrapings of blood from the restroom where the man had tried to wash up, and a pair of sunglasses he'd left in the commode.
Later, at one of the trials, when a detective was asked about the crime lab's report on that evidence, the officer replied that it had not been sent to the crime lab. When asked why not, he said the the evidence had been “lost.”
The ‘duty to seek justice'
Some may say, “Well, Fogleman was the prosecutor. Trying to get convictions was his job.” That is a common but skewed view of the prosecutor's role. In its Standards for Criminal Justice, the American Bar Association stresses that, “The duty of the prosecutor is to seek justice, not merely to convict.”
That leads one to wonder how much justice Fogleman and Davis were seeking when they decided to mount three capital murder cases on the botched and clumsy statement of 17-year-old Jessie Misskelley Jr.
Misskelley was a high-school dropout who'd been in special education classes for as long as he stayed in school when, a month after the murders, police brought him to the station for questioning. They grilled him for close to eight hours. He had no parent or lawyer with him.
Misskelley began by saying that he knew nothing about the murders. But at some point during the questioning, police used a tactic on him that even the state Supreme Court later said came “perilously close to psychological overbearing.”
After that, Misskelley started telling police he knew some things about the murders. In disjointed answers to their questions, he said he'd seen 18-year-old Damien Echols and 16-year-old Jason Baldwin, beat, sodomize and kill the children.
Misskelley also said that when one of the victims tried to escape, he himself had caught and held the child for Echols and Baldwin to finish off. Misskelley recanted those allegations the next day, but by then it was too late.
Police had recorded two short segments of Misskelley's day-long questioning, and based on those, they arrested the three teen-agers. Each was charged with three counts of capital murder.
When I interviewed Fogleman a few years after the trials, he acknowledged that at the time of the arrests, “basically, the only thing we had was Jessie's statement.” And it wasn't much of a statement, at that. The state Supreme Court described it as “a confusing amalgam of times and events.”
Initially, for instance, Misskelley said that the attacks took place in the daytime, the victims having skipped school. But, as the police and Fogleman knew, the children were in school all day and were last seen alive at around dusk.
He said that the boys were tied with “brown rope,” when, in fact, they were not tied with rope at all, but with their own shoelaces–black and white.
He said they still had their clothes on when they were beaten and stabbed, but the children's clothes were recovered and they were neither torn or bloodstained.
He said the children were sodomized, but the state pathologist reported finding no evidence of that.
Davis and Fogleman knew that Misskelley was wrong in these key details, but they did not question why. They did not, in the pursuit of justice, take Misskelley to the woods where the bodies were found and videotape him as they asked him to clarify his statement.
Perhaps that was too risky. Such a videotape would have had to be disclosed to the defense, and might have made even more apparent Misskelley's ignorance of the crimes.
Instead, they chose to seek the death penalty for Misskelley based on what he'd said. At his trial, when the West Memphis police chief was asked why he thought Misskelley had gotten so many details wrong, the officer replied, “Jessie simply got confused.”
Years later, when I put that same question to Fogleman, he himself seemed confused: “I don't know,” he said. “I don't know. They were generally consistent, but specifically, they weren't. I don't know.”
No such uncertainty seemed to trouble him in court. While, at the law school, he would attack the credibility of everything in my whole book because of the errors he cited, at trial, with a teen-ager's life on the line, he was willing to dismiss Misskelley's grossly wrong statements about a crime in which he'd supposedly participated ? and ask the jury to sentence him to death.
The jury would not go that far. It found Misskelley guilty and sentenced him to life in prison.
When he appealed that conviction, the state Supreme Court noted that his recorded statement had been “virtually the only evidence” presented against him. And ruling that it would “defer to the jury's determination” about Misskelley's “numerous inconsistencies,” it affirmed his conviction.
In 2003, a forensic linguist published a detailed analysis of Misskelley's confession in a British academic journal. Dr. Martin D. Hill concluded that, “None of the key, specific, verifiable details were provided by the confessor,” and that “the police were the source of nearly all of the substantive information regarding the crime.”
Misskelley was tried by himself because, however awkwardly, he had confessed to police. Echols and Baldwin never did. And that presented Prosecutor Fogleman with a dilemma. If Misskelley would not appear at their trial and repeat his allegation, they could not even play the tape-recording of his statement because to do so would deny the two defendants their
constitutional right to face their accuser.
The prosecutors tried hard to get Misskelley, whose trial had just concluded, to appear at the second trial and say again that he'd seen Echols and Baldwin murder the children. They even offered to reduce his sentence from life to a term of years, making him eligible for parole, if he agreed.
The victims' parents were not happy about the offer. Davis explained that, without Misskelley, they faced serious doubts about being able to convict the other two. “Unfortunately,” Davis said, “we need his testimony real bad.”
Fogleman, at the same meeting, put it this way: “All is not lost if he doesn't testify. But the odds are reduced significantly. I mean, we've still got someevidence.”
Here's what he told the parents they had:
• Three fibers that even Fogleman admitted could not be linked to the accused “to the exclusion of all others.”
• A woman's claim that, on the night of the murders, she saw Echols walking near where the bodies were found; the problem with her was that she said Echols was with a girl, not Jason.
• The statements of two teen-age girls who said they'd overheard Echols at a softball field bragging about having committed the murders.
• The claim of a jailhouse snitch that Baldwin had told him he'd killed the boys ? but Fogleman warned the parents that the snitch “might not be believed.”
“Oh, yes,” Fogleman added. “And the knife in the lake.”
Six months after the arrests, knowing he was heading into trials with little evidence, Fogleman had an inspiration about where he might find the murder weapon. He contacted a diver for the Arkansas State Police and, according to the diver, told him what to look for and where to look in a lake behind the trailer where Jason Baldwin lived.
In short order, the diver emerged with a knife --the type of knife the state alleged was used on one of the children. Fogleman could establish no direct connection between Echols and Baldwin and the knife, nor between the knife and the murders. But he tried to make the most of it.
At the start of the trial of Echols and Baldwin, he told the jury, “I want to tell you in advance, there's going to be some ... I guess you call it ‘negative evidence.' It doesn't really show a connection to anybody. ... And you may wonder why we're putting on evidence of a negative, but we'll explain that to you later.”
There was a lot of evidence presented that, like the knife, didn't “show a connection to anybody.” But Fogleman never did explain it.
‘Involved in the occult'
The biggest problem prosecutors faced in that second trial was the lack of an apparent motive. Without Misskelley, who had described the teens' involvement in a “satanic cult” that met in the woods on Wednesdays and built fires of “paper and wood and stuff” and “someone brings a dog, and they usually kill the dog ... and eat part of it...” ? without that, the prosecutors could point to no reason why Echols and Baldwin would have viciously killed three children they did not know.
The prosecutors were under no obligation to prove a motive, but they worried that jurors might reasonably doubt that Echols and Baldwin would have killed three children on a whim.
They made the decision to call Victoria Hutcheson to the stand. The young mother testified that Echols had driven her and Misskelley to an “esbat,” which she described as something like a witches' orgy. She said she'd become frightened and asked to be taken home.
In 2004, Hutcheson told a reporter for this paper that “every word” of her testimony “was a lie.” At the time of the murders, she was being investigated for hot checks and credit card fraud. She said police threatened her with the loss of her son if she did not say what they wanted her to say.
Even at the trial, defense attorneys undercut Hutcheson's story with testimony that Echols did not drive, had never driven, and had no driver's license or access to a car. But with Hutcheson, Fogleman had set the stage to suggest a motive for the murders.
He began by reminding jurors of the date on which they occurred: May 5, 1993. He then asked Judge David Burnett to “consider taking judicial notice that there was a full moon on May fifth, according to an almanac.”
Here began the most infamous part of the trial ? the part in which Fogleman and Davis, with the complicity of Burnett, attempted to prove that Echols and Baldwin killed the children as part of an occult or satanic ritual. To do this, they brought in their big gun, Dr. Dale W. Griffis, a self-proclaimed “cult expert.”
Defense attorneys quickly established that the Ph.D. Griffis claimed he had was a fraud ? that he'd obtained it, without ever attending a class, from a mail-order diploma mill. They argued that Griffis was not qualified to testify as an expert.
But Burnett ruled that he would accept Griffis as an expert “based upon his knowledge, experience and training in the area of occultism or Satanism.” He allowed Griffis to testify about the aspects of the crime that he said bore “trappings of occultism.”
There were three victims, Griffis explained. There was blood and water involved. Echols wore mostly black. He and Baldwin liked heavy metal music. And, as Fogleman had established, the murders took place on the night of a full moon.
When Fogleman asked Griffis about how he recognized “young people involved in the occult,” Griffis responded gravely: “I have personally observed people wearing black fingernails, having their hair painted black, wearing black T-shirts, black dungarees, that type of thing. Sometimes they will tattoo themselves.”
Defense lawyers got Griffis to concede that, in fact, police had found nothing at the scene related to the occult. They'd found no carved pentagrams, for example; nothing resembling an altar, no bits of candle wax, no knife or robes or anything else suggestive of a satanic ritual.
By the end of the trial, it was clear that Fogleman's case against Echols and Baldwin consisted almost entirely of the elements he'd outlined for the victims' parents, plus Griffis' testimony about “occultism.”
In his closing remarks, Fogleman reminded the jury of what Griffis had said about “this satanic stuff.” Then he instructed the jurors to look at Echols. “You see inside that person,” he told, “and you look inside there, and there's not a soul in there.”
Parts of the trial smacked of rhetoric from the Inquisition. Fogleman had presented little substantive evidence against Echols, and even less against Baldwin. Nevertheless, he urged the jurors to sentence both boys to death.
They complied in part, sentencing Echols, the group's purported ringleader, to death and Baldwin to life in prison.
‘I couldn't do it'
Six years after the trials, when I was writing “Devil's Knot,” I learned that, midway in the second trial, the prosecutors were concerned enough about the adequacy of their case that they offered a deal to Baldwin. Through an intermediary they told him that, instead of seeking the death penalty for him, they would seek a term of years, making him eligible for eventual parole.
All he had to do was testify that Echols had done the killing. “I told him, ‘I couldn't do it even if you said you'd let me go right now,' ” Baldwin told me. “And I told him I didn't want to hear no more about it.”
He refused and remained at his trial facing possible death. Had he accepted the offer, he would be free now.
At great cost to themselves, both Misskelley and Baldwin refused to help Fogleman win his case. He won anyway, but nothing about those wins brings credit to him, to his profession or to this state.
In light of Fogleman's conduct at those 1994 trials and all that's happened since, it's intriguing to contemplate what evidence his successors could possibly bring, if ? as remains possible ? a state or federal court were to order even one of the three a new trial.