THIS IS A CAPITAL CASE
IN THE ARKANSAS SUPREME COURT

DAMIEN WAYNE ECHOLS, Petitioner,     
vs.  
STATE OF ARKANSAS, Respondent. 

Case No. CR 94-928 
(Direct Appeal)
Case No. CR 99-1060 
(Rule 37 Appeal)   
Craighead Co. Circuit Court Nos 93-450, 450A     
(Circuit Court Trial and Rule 37 Proceedings)    

PETITIONER’S MOTION TO RECALL THE MANDATE AND TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS OR FOR OTHER EXTRAORDINARY RELIEF


DENNIS P. RIORDAN
 (CA SBN 69320)
DONALD M. HORGAN
 (CA SBN 121547)
THERESA A. GIBBONS
 (CA SBN 191633)
523 Octavia Street
San Francisco, CA 94102
Telephone: (415) 431-3472 

DEBORAH R. SALLINGS 
  (AR SBN 80127)
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, AR 72211
Telephone: (501) 312-8500  
(Local Counsel)

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

Comes the petitioner, Damien Wayne Echols, by and through his undersigned counsel, and respectfully petitions this Court to issue an order 1) recalling the mandate pursuant to Ark. Supreme Court Rule 5-3(d) and 2) reinvesting jurisdiction in the Circuit Court of Craighead County for purposes of considering petitioner’s petition for a writ of error coram nobis or other extraordinary relief as appropriate.

I. PROCEDURAL HISTORY

A. Petitioner’s Conviction and Direct State Court Appeal

On March 19, 1994, following trial by jury, an Arkansas trial court sitting in the Craighead County Circuit Court in Jonesboro, Arkansas, entered judgment against petitioner for three counts of first degree murder in connection with the homicides of three eight-year old boys in West Memphis, Arkansas, in May, 1993.  On that same date, the trial court sentenced petitioner to death for the crimes. 

Echols timely appealed from the judgment and sentence, which were affirmed by this Court in an opinion issued on December 23, 1996 and reported at Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).  This Court thereafter issued its mandate to the Circuit Court.

Petitioner challenged this Court’s appellate ruling by filing a timely petition for a writ of certiorari in the United States Supreme Court, which petition was denied in an order issued on May 27, 1997.

B. The Concluded Proceedings Relating to Petitioner’s Motion for Post-Conviction Relief Under Rule 37

Meanwhile, on March 11, 1997, well prior to the conclusion of direct appellate proceedings on May 27, 1997, Echols filed a motion for post-conviction relief from the trial court’s judgment and sentence, pursuant to Arkansas Rule of Criminal Procedure 37.1 et seq. (“Rule 37")  Petitioner’s final Rule 37 petition, which raised many of the claims presented in the instant petition, was denied by the Craighead County Circuit Court in an order issued on June 17, 1999. 

Petitioner timely appealed from the Circuit Court’s June 17, 1999 order.  On April 26, 2001, this Court affirmed one portion of the district court’s ruling but otherwise reversed and remanded in light of the Circuit Court’s failure to make required factual findings as to petitioner’s claims.  See Echols v. State, 344 Ark. 513 (2001). 

Following remand, on July 30, 2001, the Circuit Court issued a new order again rejecting all of petitioner’s claims under Rule 37.  Petitioner timely appealed this order but it was affirmed in an opinion issued on October 30, 2003, as reported at Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003).

C. The Initial Motion to Reinvest Jurisdiction in the Circuit Court

On February 27, 2001, while the Rule 37 proceedings described above were pending, Echols petitioned this Supreme Court for an order reinvesting jurisdiction in the Circuit Court to allow him to seek a writ of error coram nobis.  This Court denied that petition in an opinion issued on October 16, 2003 (i.e., before the conclusion of the Rule 37 proceedings) and reported at Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003). The Court issued its mandate in the matter on November 13, 2003.

D. The Pending Motion to Permit Forensic Testing 
 
On July 25, 2002, and likewise while the Rule 37 proceedings remained pending, petitioner filed a “Motion for Forensic DNA Testing” (hereinafter “DNA motion”) in the Craighead County Circuit Court pursuant to Arkansas Code section 16-112-201 et seq.  Invoking the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection and due process of law, the motion asserted that the judgment and sentence should be vacated because petitioner was actually innocent of the crimes. 

On January 27, 2003, the Circuit Court judge who presided at petitioner’s trial ordered the impoundment and preservation of all material that could afford a basis for petitioner’s actual innocence claim pursuant to this statutory scheme.  Testing of the material subject to the Circuit Court’s preservation order and related trial court proceedings remain in progress as of the time of filing the instant petition.

II. This Court Wields the Inherent Power to Recall the Mandate, And Should Do So Where Warranted by Extraordinary Circumstances In a Capital Case

Pursuant to Supreme Court Rule 5-3(d) and this Court’s decision in Robbins v. State, 353 Ark. 556, 354 Ark. 1, 114 S.W. 3d 217 (2003), petitioner Echols hereby requests that this honorable Court recall the mandate it issued following disposition of the direct appeal in this matter and reopen this case to permit Echols to pursue the further relief sought by this motion and accompanying memorandum and exhibits. 
 
In Robbins, this Court issued an order recalling the mandate and reopening the case of a defendant who had been sentenced to death and whose state appeal had previously concluded.  Such an order was the only means by which the Court could address a fundamental error it had overlooked in disposing of the defendant’s concluded appeal. In support of its decision, the Court observed that, “[t]he power of an appellate court to recall its mandate, if the circumstances warrant it, is recognized both in federal courts and state courts across the country. [Citations omitted].”  Id., 353 Ark. at 563, 114 S.W. at 221. 

To be sure, the Court in Robbins held that its discretionary exercise of such power, equivalent to reopening the case, should be exercised only in “extraordinary circumstances,” id., 353 Ark. at 564, 114 S.W. at 222.  In this connection, the Court expressly approved the federal standard for granting of recall requests, which, inter alia, holds that power to recall is “one of last resort, to be held in reserve against grave, unforeseen contingencies,” but which authorizes such action where it will operate to avoid a miscarriage of justice as defined by federal habeas jurisprudence, see id., 353 Ark. at 563, 114 S.W. at 222 (citing Calderon v. Thompson, 523 U.S. 538, 549-50, 118 S.Ct. 1489 (1998)), and where it issues pursuant to the Court’s inherent power to protect the inherent integrity of the judicial process within a given Circuit, see id., (citing Demjanjuk v. Petrovsky, 10 F.3d 338, 357 (6th Cir. 1993)). 

The Court in Robbins further elucidated the relevant standard for recall and the extraordinary circumstances which may justify it when it recognized that “ . . . the death penalty is a unique punishment that demands unique attention to procedural safeguards . . . .”  id., 353 Ark. at 561, 220, 114 S.W. at 220, further observing that in Bivens v. State, 11 Ark. 455, 457 (1850), it had “‘voiced its belief in the ‘humane principle applicable in general to criminal cases, and especially those where life is involved,’ and declined to exalt form over substance when dealing with the death penalty. . .”, Robbins, 353 Ark. At 561, 114 S.W. at 220.  The Court then summarized a host of cases, including two involving this petitioner, in which it had “. . . set aside strict adherence to procedural rules in connection with post conviction relief out of concern for fairness in death penalty cases.”  Id.
 
Petitioner submits that the developments described hereinafter in the instant case warrant an order recalling the Court’s previously issued mandate and reopening the case for further proceedings in the Circuit Court.  Like the defendants in the Arkansas cases cited and summarized in Robbins, petitioner is presently subject to a sentence of death.  Furthermore, the errors which undersigned counsel present on his behalf surfaced only recently and, as discussed, are as fundamental and constitutionally egregious as any imaginable.  Specifically, in finding that petitioner had committed the homicides alleged against him and that he deserved to die for them, jurors relied on the incriminating but highly unreliable confession of Jesse Misskelley, an alleged co-participant in the crimes. The Sixth Amendment absolutely prohibited consideration of that confession, which consequently was excluded from admission at the Echols trial, and the jury’s misconduct in discussing the unadmitted and inadmissible Misskelley statement largely accounts for the jury’s verdicts in a case otherwise bereft of compelling evidence of petitioner’s guilt.

III. The Court Should Grant Petitioner Leave to Initiate Further Proceedings in the Trial Court to Address His Claim of Fundamental Error Extrinsic to the Record Which Might Have Resulted in a Different Verdict

A. Bases for Granting Leave

Apart from its inherent power to recall the mandate, this Court has the authority to reinvest the trial court with jurisdiction to address fundamental error of the type alleged by petitioner here.  See, e.g., Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002)(recognizing Court’s authority to so proceed to permit trial court’s consideration of petition for writ of error coram nobis); cf. Larimore v. State, 327 Ark. 271, 278-79, 938 S.W.2d 818, 821 (1997) (once judgment has been affirmed on direct appeal, Supreme Court must grant permission before petitioner may proceed with writ of error coram nobis))
 
The writ of error coram nobis is an extraordinary remedy which should be allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature, and a presumption of regularity attaches to the criminal conviction being challenged. Larimore, supra, 327 Ark. at 279 (citing United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954).  As the Court in Larimore further observed:

We have outlined the following guidelines for trial courts to consider when determining whether to grant a writ of error coram nobis:

     (1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;

     (2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid.   The court is not required to accept at face value the allegations of the petition;

     (3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay, the petition will be denied;  and

     (4) The mere naked allegation that a constitutional right has been invaded will not suffice.   The application should make a full disclosure of specific facts [relied] upon and not merely state conclusions as to the nature of such facts.

Id., 327 Ark. at 406-07, 17 S.W. at 93.  
 
As to the necessary effect of the error on the judgment addressed in the first of the foregoing criteria, the Court in Larimore further observed that the question whether the relevant error was sufficiently prejudicial to warrant relief  turns upon the question of whether there was a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the disputed evidence surfaced at trial. Id., 327 Ark. at 407-08, 17 S.W. at 93-94.  The Court then stated:

[W]e hold that in our review of the granting of a petition for a writ of error coram nobis in this case and all future cases we will determine whether there is a held that the relevant test is “. . . whether there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial.”

Id., 327 Ark. at 407-08 , 17 S.W. at 93-94 (Emphasis added)

The standard adopted by this Court in Larimore for assessing whether coram nobis relief is appropriate – a “reasonable probability” of a different outcome – has been uniformly described by courts throughout the country as “not stringent,” requiring a showing by less than a preponderance of the evidence that the outcome of the proceeding would have been different had the claim’s rights not been violated.  See, e.g., Skaggs v. Parker, 235 F.3d 261, 270-71 (6th Cir. 2000) (“[A] petitioner [claiming error under this standard] need not prove by a preponderance of the evidence that the result would have been different, but merely that there is a reasonable probability that the result would have been different.”); Hull v. Kyler, 190 F.3d 88, 110, (3d Cir. 1999)(the reasonable probability standard “is not a stringent one,” and is “less demanding than the preponderance standard)(citation omitted); Paters v. United States, 159 F.3d 1043, 1049 (7th Cir. 1998)(Rovner, J., concurring)(the reasonable probability standard “clearly is less demanding than a preponderance of the evidence standard”); Belyeu v. Scott, 67 F.3d 535, 540 (5th Cir. 1995) (under reasonable probability standard, “the result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the [error] cannot be shown by a preponderance of the evidence to have determined the outcome.”)
 
Furthermore, in order to authorize the circuit court to consider a request for coram nobis relief, an appellate court need not find that a petitioner has conclusively demonstrated that he is entitled to relief under the foregoing guidelines.  As the Court of Appeals has noted, “When such a petition [for writ of error coram nobis] is directed to the appellate court, the burden on the petitioner is less than that imposed on him in the trial court where the merits of the petition are to be determined.”  Shamlin v. State, 19 Ark. App. 165, 167, 718 S.W. 462, 464 (1986).  Accordingly, the burden on Mr. Echols is to make an appropriate showing with respect to each of these considerations, namely, that the claimed error is sufficiently fundamental to warrant correction in a coram nobis proceeding; that he has shown diligence in presenting it to the courts for review; and that he has alleged specific facts, supported by substantial evidence, which may warrant a finding that the claimed error was reasonably likely to have affected the outcome of petitioner’s trial.

B. The Court Should Grant the Instant Motion Given the Nature of the Alleged Error, Petitioner’s Due Diligence, and the Specific Evidentiary Material Proffered in the Exhibits Accompanying the Motion 

Petitioner advances two essential claims in connection with his proposed petition for a writ of error coram nobis or other extraordinary relief, a memorandum in support of which is attached hereto as Exhibit A.  First, petitioner alleges that the jury received and considered extraneous information during deliberations at petitioner’s trial, specifically, the confession of Jesse Miskelley, and that such conduct flatly violated petitioner’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, fatally undermining fair consideration of the otherwise meager evidence adduced by the prosecution in support of its case.  Second, petitioner alleges that, as disclosed by evidence of their responses on voir dire and recent admissions, certain members of the jury harbored an impermissible bias against petitioner, once again in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments. Such errors warrant coram nobis relief from the judgment because, as is more fully developed in the memorandum that would be tendered in support of the proposed petition (Exhibit A), they are fundamental in nature and are founded on facts which would have prevented rendition of the judgment if known to the trial court, and which, through no negligence or fault of the defendant, were  not brought forward before rendition of that judgment. Larimore, supra, 327 Ark. at 406-07, 17 S.W. at 93.

Furthermore, petitioner has been diligent in seeking coram nobis or similar relief.  Evidence of the jury’s misconduct and bias surfaced only recently, as reflected in the juror affidavits and reports of juror statements included as exhibits submitted under seal in support of the accompanying memorandum. The jury’s listing of the Misskelley statement as a reason to convict on the lists drawn up during deliberations, which have been maintained by state agencies since petitioner’s 1994 trial, was covered over by an unknown person at an unknown time, and came to light only recently when a juror provided petitioner with a copy of her notes from the trial.  Furthermore, the jury foreperson’s recent statements, which are key to petitioner’s claims of both juror misconduct and juror bias and which appear in Exhibit W (submitted under seal), establish that prior to his October 8, 2004, interview concerning this matter, the foreperson had consistently rejected requests made by lawyers as well as reporters and others for comment concerning this matter.
  
 / /
 
Finally, and also in accordance with the requirements of Larimore, supra, 327 Ark. at 406-07, 17 S.W. at 93, petitioner’s allegations of fundamental constitutional error are not stated in conclusory form, but are instead supported by specific and extensive facts.  Such facts are discussed at length in petitioner’s accompanying memorandum and are further supported by the affidavits and other exhibits attached to this motion as well as by the previous findings appearing in opinions issued by this Court.

CONCLUSION

For the foregoing reasons, and for those set forth in the accompanying memorandum and exhibits, petitioner respectfully requests that this Court issue an order recalling its mandate and investing the Circuit Court of Craighead County with jurisdiction to consider Echols’s petition for a writ of error coram nobis and/or other appropriate extraordinary relief.
 
DATED: October 28, 2004

Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN 
THERESA GIBBONS
DEBORAH R. SALLINGS

By   _______________________
          DENNIS P. RIORDAN

Attorneys for Petitioner
DAMIEN WAYNE ECHOLS

INDEX of Exhibits

Exhibit A - Petitioner’s Memorandum In Support of Motion To Recall The Mandate And To Reinvest Jurisdiction In The Trial Court

Exhibit B - Echols-Baldwin Reporter Transcripts

Exhibit C -  Echols-Baldwin Voir Dire (filed under seal)

Exhibit D - Affidavit of Dennis P. Riordan

Exhibit E - Democrat-Gazette - January 29, 1994

Exhibit F - The Jonesboro Sun - January 28, 1994

Exhibit G - Arkansas Times - October 7, 2004

Exhibit H - Jonesboro Sun - February 4, 1994

Exhibit I - Arkansas Democrat - February 5, 1994

Exhibit J - Democrat-Gazette - February 23, 1994

Exhibit K- Democrat-Gazette - March 1, 1994

Exhibit L - Jonesboro Sun - March 2, 1994

Exhibit M - Teer Report

Exhibit N - The Commercial Appeal - May 7, 1993

Exhibit O - West Memphis Evening Times - May 7, 1993

Exhibit P - Democrat-Gazette - May 8, 1993

Exhibit Q - Arkansas Democrat - March 2, 1994

Exhibit R - Bearden Report

Exhibit S - Affidavit of Theresa A. Gibbons (filed under seal)

Exhibit T - Affidavit of Deborah R. Sallings (filed under seal)

Exhibit U - Affidavit of Juror Seven (filed under seal)

Exhibit V - Affidavit of Juror Six (filed under seal)

Exhibit W - Affidavit of Tom Quinn (filed under seal)

Exhibit X - Photographs