IN THE
WESTERN DISTRICT
CRIMINAL DIVISION
DAMIEN WAYNE ECHOLS, Petitioner,
CR-93-450A
vs.
STATE OF
PETITIONER DAMIEN
ECHOLS’S REPLY IN SUPPORT OF MOTION FOR A NEW TRIAL (Ark.
Code § 16-112-201, et seq.)
DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
RIORDAN & HORGAN
Telephone: (415) 431-3472
DEBORAH R. SALLINGS
(AR SBN 80127)
Local Counsel
Telephone: 501-330-2686
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
INTRODUCTION
At the time petitioner Echols filed his motion for a new trial in this Court in
April of this year, nearly fifteen years had passed since the horrifying
murders of three eight year old boys that give rise to the present prosecution.
It might be assumed that all information bearing on the accuracy of the
verdicts and the fairness of the trial proceedings in this case necessarily had
been unearthed in that period of time; anything not known
after a decade and a half never would be. Yet the legal landscape
of this case has taken a new and dramatic shift since April. Extremely
reliable information has surfaced for the first time that, if proven to be true
— and it will be — establishes beyond any doubt that
Echols’ murder convictions and sentence of death offend the fair trial
protections provided by the United States Constitution.
Even before he was seated as a member of the jury he would eventually direct as foreman, Juror Four had violated his oath to this
Court. He deliberately failed to give truthful answers to voir dire
questions in order to avoid being removed from the venire; during the taking of
evidence, he constantly discussed the case with an attorney he had hired to
represent his close relative in a separate criminal matter; he informed other
members of the jury of matters not in evidence in order to persuade them to
convict on the basis of that unadmitted and inadmissible information; he
expressed his intention to convict Echols even though he himself believed that
the evidence presented in court did not suffice to prove guilt beyond a
reasonable doubt; and, once he had succeeded in that objective, he lied to the
Court regarding his conduct as a juror.
None of this information newly presented to the Court could have been obtained
or presented by petitioner sooner than this June, as it was held in confidence
by the attorney in question until he obtained independent legal advice that the
information was not subject to a claim of attorney-client
privilege. Nor is consideration of the information barred by Arkansas
Rule of Evidence 606, as it
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concerns events before formal jury deliberations commenced. Having been denied
the fair trial constitutionally guaranteed him, petitioner’s execution
pursuant to a void judgment would be no more legitimate than had he never been
tried at all.
The state will no doubt respond that this new information is irrelevant to the
present proceeding under
In his opening brief, Echols demonstrated that neither he nor his
co-petitioners, Jason Baldwin or Jesse Misskelley, can be linked to any of the
DNA recovered from the crime scene or from the bodies of the three victims in
this case. On the other hand, he has presented reliable DNA evidence
that, if credited, conclusively excludes him and his co-petitioners as the
source of the DNA recovered at four relevant locations, including a ligature
used to bind one of the victims; a tree stump at the crime scene; a cutting
from the jeans of one of the victims; 1 and the penis of one of the victims. Given that the
new scientific evidence excludes him as the source of relevant DNA, petitioner
is entitled to a new trial under
1 The exhibit
demonstrating the presence of foreign DNA on the cutting from the pants of
Steven Branch was submitted as a supplemental exhibit (“OOOO”) by
counsel for petitioner Jesse Misskelley in his Rule 37 proceedings. As
with other exhibits already placed before the Court by counsel for Misskelley
or Jason Baldwin, Echols incorporates them by reference into his motion and
will file copies of them with the Court at the next appearance on August 20,
2008.
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112-201, et seq.) insofar as he can demonstrate
that the DNA test results, when considered with all other evidence in the case
regardless of whether the evidence was introduced at trial, establish by
compelling evidence that a new trial would result in an acquittal.
See Ark. Code § 16-112-208(e)(3); see also §
16-112-201(a)(2).
As Echols has maintained — and as a common sense reading of the statute
in its entirety demonstrates — the showing needed to obtain new trial
relief under the foregoing new trial provision is distinct from that which
conclusively establishes actual innocence and thus merits setting aside the
judgment of conviction in its entirety. See § 16-112-201(a)(1); petitioner’s Motion for a New Trial
(“Motion”), at 37-44. The state’s opposition ignores
the express wording and meaning of the statute, including § 16-112-208(e)
and other provisions, in a transparent effort to erect legal hurdles that no
petitioner could ever surmount and that the legislature did not intend.
See, e.g. Opp., at 14 (“Indeed, as to crimes like those committed by
Echols, it may be that DNA-testing results can never conclusively support a
claim of actual innocence.”) The state goes so far as to argue that in a
case in which a petitioner seeks a new trial partly on the basis of DNA results
that exclude him as the contributor of relevant physical evidence, that
petitioner is statutorily barred from also presenting newly obtained evidence
of innocence such as a confession of a third party to the charged crime.
To so read a statutory scheme intended to protect the innocent from wrongful
conviction would be utterly nonsensical. Equally unpersuasive is the
state’s application of the statutory provisions to the facts presented by
petitioner in this proceeding.
Echols discusses the state’s legal claims and factual arguments in turn
below.
I. THE STATE MISSTATES THE LEGAL
STANDARD GOVERNING GRANTS OF NEW TRIALS UNDER THE STATE’S NEW SCIENTIFIC
EVIDENCE STATUTE
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A. The Primary Guide to
Interpreting the New Scientific Evidence Statute Is the Plain Meaning of the
Language the Statute Employs
As discussed further in the subsections below, the first and primary rule of
statutory interpretation is the plain meaning rule, which has particular
application to determining the nature of the court’s task in assessing
petitioner’s instant application for relief under Ark. § 16-112-201
et seq. As the state Supreme Court recently explained:
. . . [T]he first rule in considering the meaning and effect of a
statute is to construe it just as it reads, giving the words their ordinary and
usually accepted meaning in common language. State v. Britt, 368
Maddox v. City of Fortsmith,
369 Ark. 143, 146-47, 251 S.W.3d 281, 284-285 (2007); see also Smith v. Fox 358 Ark. 388, 392, 193
S.W.3d 238, 241 (Ark. 2004) (“When reviewing issues of statutory
interpretation, the basic rule is to give effect to the intention of the
legislature, making use of common sense, and assuming that when the legislature
uses a word that has a fixed and commonly accepted meaning, the word at issue
has been used in its fixed and commonly accepted sense.” [Citations
omitted])
B. The State’s Analysis of
Ark. Code § 16-112-208(b) Is Both Flawed and Irrelevant
The state’s initial argument in opposition to petitioner’s motion
rests on Ark. Code § 16-
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112-208(b), which states:
If the deoxyribonucleic acid (DNA) test results obtained under this subchapter
are inconclusive, the court may order additional testing or deny further relief
to the person who requested the testing.
The state concedes that the term “conclusive” has not been defined
elsewhere in the statute (Opp., at10; see also Opp., at 12 [“. . . [T]he
measure of inconclusiveness under § 16-112-208(b) . . . is a case of first
impression for this Court . . .”]), but nevertheless interprets 208(b) as
mandating the denial of relief in any form where further testing is not
appropriate and the present DNA results — no matter how scientifically
conclusive that a petitioner is not the source of relevant DNA — are not
themselves legally conclusive in favor of innocence. See,
e.g., Opp., at 10-12.
There are enormous problems with the state’s analysis under §
16-112-208(b). To begin, suppose a situation in which a defendant was
convicted of a rape-murder at a trial in which the prosecution argued strongly
that semen on the victim’s clothing was the same blood type as the
defendant’s, and on that basis the jury should find him guilty.
Years later, DNA testing conclusively establishes that the semen came not from
the defendant but from the victim’s husband, who could not have committed
the crime. Furthermore, a third party recently confessed to the murder in
question. According to the state, while the DNA evidence conclusively
excludes the defendant as the contributor of the semen and therefore wholly
undermines the state’s theory at trial, it alone does not establish his
innocence, as it does no more than prove the semen evidence is not relevant to
the crime. (Opp., at 14: “It is common sense that a person’s
exclusion as the source of some biological material found at a murder scene
neither means he was not there, nor that he was not the killer.”)
Since the scientific evidence is not (and cannot be) conclusive on legal
innocence, relief must be denied, the exculpatory confession notwithstanding.
In essence, the state argues that in enacting § 16-112-208(b) for the
purpose of exonerating the innocent, the Legislature passed a statute under
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which relief can never be obtained.
In fact, neither subsection 208(b) nor any other provision of the Arkansas
statute declares that the Court is authorized to deny relief where, as here,
the petitioner has presented evidence of test results that, if credited, are scientifically conclusive, i.e., where
they establish that the petitioner cannot have been the source of biological
material from locations already deemed relevant pursuant to the Court’s
initial testing order. To the contrary, the logical, common sense reading
of 208(b) is that it permits (and does not mandate) the denial of relief only
where the DNA results are scientifically inconclusive in the sense that they
neither include nor exclude the petitioner as the source of any relevant sample
— not the case here.
But the simplest response to the state’s argument as to §
16-112-208(b) is that Echols has not sought exoneration but a new trial
under § 16-112-208(e)(3). The latter
subsection expressly requires the Court to assess the DNA test results in light
of all the evidence and grant a new trial under specified conditions where, as
an initial matter, those results “exclude
a person as the source of the deoxyribonucleic acid (DNA)
evidence.” Ibid.
(emphasis added); cf. Weiss v. Maples,
369
In addition, while the
2 The analysis
mandated by the express language set forth in § 16-112-208(e)(3) is discussed further in subsection E, below.
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grounds of actual innocence, the state’s argument that this term
encompasses only those who can achieve absolute “exoneration”
through a conclusive legal showing of such innocence (Opp., at 11) imposes on
the statute a meaning that simply does not appear therein. Again, the
statute’s express terms control, and, as petitioner explained in his
opening motion, a petitioner able to prove innocence in the absolute measure
cited by the state is entitled to exoneration in the form of a judicial order
vacating the conviction in its entirety. See Motion, at 37 et seq.;
§ 16-112-201(a)(1). By contrast, the
petitioner who can demonstrate that the DNA results, weighed with the other
evidence, would preclude a reasonable jurist from convicting are entitled to
the lesser remedy of an order for a new trial. Compare § 16-112-201(a), (a)(1) with § 16-112-208(e)(3). But the latter
remedy no less than the former serves the purpose of “exoneration”
for the “actually innocent” where the state fails to prove guilt at
a retrial before a jury informed of all relevant and reasonably available
facts, including the new scientific evidence never presented prior to the
initial judgment of conviction. The statute’s interest in
protecting the actually innocent is thus wholly compatible with the new trial
provisions contained in § 16-112-208(e)(3).
C. To The Extent That Out Of
State Law Is Helpful In Interpreting The Arkansas Statutes, The Court Should
Look To Illinois Precedent
The state’s reliance on Louisiana’s DNA statute and related
precedent in support of the claim that, under 208(b), relief under the Arkansas
statute requires a conclusive showing of legal innocence (Opp., at 8,
12-13) is misplaced. The state has made no showing that the
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laws.” Accordingly,
Thus, in People v. Dodds, 344
Ill.App.3d 513, 801 N.E.2d 63, 279 Ill. Dec. 771 (2003), the Illinois Supreme
Court discussed the significance of DNA test results on biological material
which, if anything, were less exculpatory than Echols has proffered here,
insofar as (like this case) they did not match the petitioner but (unlike this
case) did not suggest the involvement of specific others in the crime. In
that context, the Court in Dodds
observed:
[I]f DNA evidence is truly exculpatory, a defendant's conviction should be
vacated and the defendant should be released, or some other similar resolution
should be had. See, e.g., A.
Cohen, Innocent After Proven Guilty: More
Inmates Being Set Free Thanks to DNA Tests and a Pioneering Legal Clinic,
Time, September 13, 1999, at 26, 28. If the results are neither truly exculpatory
nor inculpatory, i.e., they
are somewhere in between or are a non match, which is the situation in the
instant case, this may provide a basis for a defendant to file a postconviction
petition asserting a claim of actual innocence based on newly discovered
evidence.
Dodds, 344
Ill.App.3d at 519, 801 N.E.2d at 68, 279
D.
3 To be sure, Dodds
may read to impose on the petitioner a different standard for securing ultimate
relief, but the Arkansas statute, including subsection 208(e)(3), expressly
addresses and controls on the measure of proof needed to obtain a new trial
order in the present matter.
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As to the state’s claim that the Court should deny relief under
subsection 208(b) without a meaningful hearing because the present testing
results are not, as a legal matter, conclusively exculpatory (Opp., at
15), 4 the plain
language of related statutory provisions once again refutes it. Thus,
Ark. Code § 16-112-205 expressly mandates a hearing “[u]nless the
petition and the files and records of the proceeding conclusively show that the
petitioner is entitled to no relief . . . .” Because the test
results now before the Court arguably “exclude the petitioner,”
and, indeed inculpate others, he is entitled to make the new trial showing
expressly authorized by § 16-112-208(e)(3). The trial court’s
assessment of the DNA results in conjunction with all other evidence in the
case, moreover, cannot be meaningfully accomplished without convening a
meaningful evidentiary
hearing, as Dodds makes
clear:
We hold that once DNA testing is ordered and the results are favorable, at
least in part, to a defendant, such as where a non match is revealed, an
evidentiary hearing is necessary to determine the legal significance of the
results because such results would make a substantial showing of a
constitutional violation. In other words, the trial court is obligated to
conduct an evidentiary hearing to determine whether the DNA results would or
would not likely change the results upon a retrial. See K. Christian, _And the DNA Shall Set You Free_: Issues
Surrounding Postconviction DNA Evidence and the Pursuit of Innocence,
62 Ohio St. L.J. 1195, 1195 (2001) (advocating that if postconviction DNA
results are favorable to a defendant, the defendant should receive a hearing to
determine whether he or she is entitled to a new trial). See also National
Institute of Justice, Postconviction DNA
Testing: Recommendations for Handling Requests 1, 50 (1999)
(stating that _if DNA testing results seem to exculpate the defendant because
of an exclusion, an
4 Opp. at 15:
“[Petitioner’s] burden is now to demonstrate his actual innocence
by evidence that excludes him as the killer. As explained above, he has
not met it, and a hearing is unnecessary to conclude as much.”
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evidentiary hearing should be set to determine if there is a reasonable
probability of a change in the verdict or judgment of conviction_). . .
Dodds, 344 Ill.App.3d at 522,
801 N.E.2d at 71, 279
In view of the above, the state’s contention that this Court may now deny
relief under § 16-112-208(b) because the DNA results do not conclusively
establish his actual innocence and absolutely exonerate him as a matter of law
is untenable.
E. Section 208(e)(3) Authorizes
a New Trial Where, as Here, a Petitioner Invokes Reliable Evidence of Both
Exclusions and Non-Matches Which, Considered in Conjunction with All Other Evidence in the Case, Compellingly Shows That No Reasonable
Jurist Would Convict
The state makes a series of remarkable claims — what are, in effect, a
series of fallback positions — as to how the subsection 208(e)(3) should
be most narrowly interpreted, none of which can be reconciled with the terms of
the provision itself.
Specifically, the state first contends that the language of subsection 208(e),
standing alone, demands conclusive proof of actual innocence before a new trial
may be ordered (Opp., at 13); that a new trial is appropriate only where the
DNA test results — without consideration of any other evidence —
establish actual innocence (Opp., at 15); that, to the extent other available
evidence is cognizable in assessing the new trial request, the Court should
consider only the likely impact of the DNA testing results along with all other
available evidence of guilt
but not innocence (Opp. at
13, 16-17 [again citing Louisiana precedent]); and that in no event may the
court engage in a “reweighing” of all other case evidence vis-a-vis
what the DNA results disclose when performing the new trial assessment
described in subsection (e)(3) (Opp., at 15-18). Petitioner considers
each of these claims in turn.
The state’s first proposition — that subsection 208(e)(3) itself establishes that a new trial is
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unavailable unless whatever evidence the court considers conclusively and
legally “excludes” the petitioner as a possible perpetrator —
makes no sense for the reasons stated in subsections B and C, supra, and also because it renders the
language in subsection 201(a) both superfluous and meaningless. Rose v. Arkansas State Plant Bd., 363
Ark. 281, 213 S.W.3d 607 (2005) (Court must construe statute so that no word is
left void, superfluous or insignificant, and in a manner that gives meaning and
effect to every word in the statute, if possible); Smith v. Fox, supra, 358 Ark. at 392, 193 S.W.3d at 241
(stressing importance of applying common sense in interpreting statutory
language).
If new trial relief requires that the DNA results, as a legal matter,
conclusively eliminate all possibility of the petitioner’s involvement
and point unambiguously to a single other culprit — a scenario which the
state at points demands but elsewhere acknowledges is a virtual impossibility
(Opp., at 14) — there is no place for the Court’s option of
“vacating and setting aside the judgment” and discharging the
petitioner, a remedy for which subsection 201(a) expressly provides. By
the same token, why would subsection 208(e) ever limit a petitioner’s
remedy to an order for a new trial if he has made so conclusive a legal showing
of actual innocence that he has foreclosed all possibility of his status as a
perpetrator?
The state next suggests that a new trial order may issue under subsection
208(e)(3) only where the DNA test results alone, rather than such results
considered in conjunction with other available evidence, supply compelling
evidence that no reasonable juror would convict upon a retrial. See Opp.,
at 15. This notion, however, violates the most fundamental rule of
statutory interpretation, as set forth in Maddox,
supra, 369 Ark. 143, 146-47, 251 S.W.3d 281, 284-285 (“[T]he
first rule in considering the meaning and effect of a statute is to construe it
just as it reads, giving the words their ordinary and usually accepted meaning
in common language.”) Again, when
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the Court considers a new trial motion under 208(e)(3), the statute expressly directs
that it determine whether “the DNA test results, when considered with all other evidence in the case
regardless of whether the evidence was introduced at trial, establish by
compelling evidence that a new trial would result in an acquittal.”
Ibid.
The plain meaning of the statute is that the DNA results together with the
other available evidence must inform the Court’s assessment whether the
petitioner has satisfied the actual innocence standard applicable to new trial
relief. 5 The state’s argument also defies common sense:
were the DNA results alone required to supply the compelling evidence described
in 208(e)(3), there would be no reason to examine the impact of the other
evidence at all.
The state’s third argument assumes that the Court will consider the
impact of the DNA results together with other evidence in the new trial
calculus, but asserts that the Court may only consider all other evidence of guilt, but not innocence, in assessing what a
reasonable juror would determine on retrial. Opp., at 13, 16-17.
The state plainly advances this claim in an effort to foreclose consideration
of petitioner’s extensive evidence that post-mortem animal predation
rather than a knife was responsible for the soft-tissue wounds sustained by the
victims (Opp., at 16-17), as well as the evidence of credible witnesses such as
Jennifer Bearden, who was on the phone with Echols at the time he is supposed
to have been committing the charged murders. The argument’s utility
to the state, however, does nothing to conceal its patent flaw: once again, the
express statutory language directs the court consider the DNA results with
“all other evidence in
the case . . .” See subsection 208(e)(3)
(Emphasis added) If the statute was intended to limit the court’s
review to
5
The meaning of the state’s claim that “the phrase [in subsection
208(e)(3)] referring to all other evidence] is set off
by commas in a sentence that explains the context in which a court may grant a
motion” (Opp., at 16) is unclear. To the extent the state is
suggesting that the directive to consider other evidence is a meaningless
aside, it simply attempts to read out of the statute language which it wishes
the Legislature had not included.
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evidence of guilt alone, it could have, and surely would have, said so.
Cf. Phillips v.
Finally, the state repeatedly contends that in no event may the court
“reweigh” the evidence because the time for such an exercise
purportedly ended with the conclusion of petitioner’s trial and appeal.
Opp., at 15-18. Here, yet again, however, the state’s claim cannot
be squared with the express language of section 208(e)(3) which plainly
requires the court to consider the impact of the DNA results together with all
other evidence and, on the basis of such consideration, decide whether a
reasonable trier of fact would convict upon retrial. Such an exercise, by
its very nature, necessarily entails a weighing
of the relative impact of various components of available evidence. The
obvious purpose of the hearing for which subsection 205 provides is to give an
opportunity for the Court’s reasoned consideration of all relevant
evidence implicated by the evidence and the weight thereof. Ibid.; see
also Dodds, supra, 344
Ill.App.3d 513, 801 N.E.2d 63, 279
F. The Arkansas Statute
Envisions Different Measures of Actual Innocence That Correlate to the
Different Remedies Identified Therein
In his opening motion (at 39-44) petitioner demonstrated that the nature of the
showing a petitioner must make in order to secure new trial relief under 208(e)
is akin to the showing a federal habeas petitioner must make to overcome state procedural
defaults, as that showing is explained in
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House v. Bell, 547 U.S. 518
(2006) and Schlup v. Delo,
513 U.S. 298 (1995), on which House
relied. 6
On the other hand, the greater showing that a petitioner must make to secure a
order vacating his conviction under 208(a) is akin to the conclusive showing of
innocence that might afford a federal habeas petitioner relief as the Supreme
Court discussed in Herrera v. Collins,
506 U.S. 390 (1993).
The state, however, argues that the showing required of a petitioner to obtain
a new trial under subsection 208(e) cannot be the rough equivalent of the Schlup standard discussed in House. The core of its reasoning
on this point is that satisfying the Schlup
standard merely endows the federal petitioner with a procedural benefit, while
a state petitioner who satisfies the standard set forth in subsection 208(e)
secures a far greater substantive benefit in the form of an order for a new
trial. Opp., at 21-22. Thus, in the state’s view, the required
showings cannot be identical or similar because the state remedy is different
and more generous than the federal one. This argument fails for three key
reasons. First, the
fact that a showing like that articulated in Schlup
should provide a state petitioner a greater, substantive benefit than a federal
petitioner is perfectly consistent with a legislative determination that the
state constitution affords greater rights and protections, including the right
to due process and the protection against cruel and unusual punishment, than
6 As the Supreme
Court stated in House,
“A petitioner's burden at the gateway stage is to demonstrate that more
likely than not, in light of the new evidence, no reasonable juror would find
him guilty beyond a reasonable doubt – or, to remove the double negative,
that it is more likely than not any reasonable juror would have reasonable
doubt.”
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does the federal constitution. See, e.g., State
v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004) (though
search-and-seizure language of state constitution is very similar to the words
of federal constitution’s Fourth Amendment, state affords greater privacy
rights in interpreting state constitution.)
Second, as petitioner has
explained, the language of the Schlup
standard, as articulated in House,
bears a striking resemblance to the new trial standard set forth in subsection
208(e), supporting the plain inference that the latter provision was modeled
on, and should be informed by, the former.
Finally, and in any event,
the Arkansas statute itself
contemplates that certain petitioners who present evidence under the new
scientific evidence statute may be entitled to an order vacating their
conviction (subsection 201(a)(1)), while others may be entitled to the lesser
remedy of an order granting them the remedy of a new trial (subsection 208(e)).
Because the provisions for different showings accompanied by
different remedies inheres in the statute itself, they must be
recognized and given meaningful effect. 7
7 On this last
point, and seeking to attack the statute’s provision for different
showings of innocence, the state does not dispute that subsection 201(a)
recognizes the remedy of ordering that a conviction be vacated, but instead
contends that such an order might violate the doctrine of separation of powers
because it would purportedly intrude on the executive branch’s right to
grant clemency. See Opp., at 23-24, note 11; see also Opp., at 4, note 2.
This claim, in turn, is premised on the notion that such an order would issue
“without a claim of error in the underlying proceedings.” Opp., at 24, note 11. The judicial branch, however, is
plainly authorized to issue such an order insofar as the detention and eventual
execution of one shown to be actually innocent would constitute an egregious
violation of that petitioner’s state and federal rights to due process
and his protections against cruel and unusual punishment. Significantly,
the
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II. IF CREDITED, THE DNA TEST RESULTS
“EXCLUDE” PETITIONER WITHIN THE MEANING OF § 16-112-208 (E)(3) AND, WHEN CONSIDERED WITH ALL OTHER EVIDENCE IN THE
CASE, WOULD LEAD TO AN ACQUITTAL AT RETRIAL
A. The Present Results
As petitioner has discussed, under § 16-112-208 (e)(1),
when “the (DNA) test results obtained under this subchapter exclude a
person as the source of the deoxyribonucleic acid (DNA) evidence,” the
Court may grant him a new trial if those DNA results, “when considered
with all other evidence in the case regardless of whether the evidence was introduced
at trial, establish by compelling evidence that a new trial would result in an
acquittal.” § 16-112-208 (e)(3).
In his initial motion, petitioner demonstrated one key exclusion in the form of
evidence that from the scores of items subjected to DNA testing pursuant to
this Court’s amended testing order, no
biological material could be linked to petitioner or to co-petitioners Baldwin
or Misskelley. At the same time, petitioner cited three DNA results
representing additional, affirmative exclusions of all petitioners that
likewise triggered the assessment of such results vis-a-vis all other case
evidence for purposes of considering the new trial application under subsection
208(e)(3). That exclusion evidence includes:
(1) a foreign allele located on a penile swab of victim Steven Branch;
(2) a hair recovered from the ligature used to bind Michael Moore that is
consistent with Terry Hobbs, the stepfather of Steven Branch, but not with the
hair of any of the petitioners; and
(3) a hair recovered from a tree stump at the crime scene very close to where
one of the bodies was recovered, which hair was consistent with David Jacoby, a
friend of Terry Hobbs whom Hobbs visited on the day the victims disappeared
and, again, not with the hair of any petitioner.
Subsequent to the filing of petitioner Echols’s initial motion, moreover,
Bode Laboratories
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has returned STR DNA results on a fourth
item, i.e., a cutting from the pants of one of the victims. The
significance of those results appears upon consideration of (1) the allegations
of, and exhibits to, petitioner Misskelley’s “Petition for Writ of
Habeas Corpus or Other Relief; Motion for New Trial; Amended and Supplemental
Petition for Relief under Rule 37.1; and Petition for Writ of Error Coram Nobis”
[hereinafter “Misskelley petition”] in case nos. CR-93-47 (
Subsequent testing of the first cutting (Bode no. 2S04-114-25, item ID 93-05716
E3 Q10, trial exhibit 45) by Bode Laboratories, however, refutes the purported
evidence and argument stating and/or suggesting that any sperm or reportable
DNA was present on the cutting. See Echols exhibit P, Misskelley exhibit EEE
(12-30-05 Bode STR report); Misskelley exhibits EE (affidavit of serologist Dr.
Zajac), FF (affidavit of Dr. Riley); discussion accompanying supplemental
exhibit
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OOOO to Misskelley petition, at 1-5). 8
Furthermore, results from a second Bode DNA test on the second pants cutting
(Bode no. 2S04-114-26, item ID 93-05716 E7 Q6, trial exhibit 48), as set forth
in a report issued by Bode on June 4, 2008, likewise refutes the
prosecution’s purported evidence and argument concerning the presence of
sperm at the same time it disclosed the presence of a partial DNA profile
consistent with a mixture. See supplemental exhibit OOOO to Misskelley
petition, at 1. The June 4th report continues that Echols, Baldwin,
Misskelley, Byers and Moore are excluded as possible contributors to this mixed
profile, although Steven Branch cannot be. Ibid.
B. Reliability and Significance
of the Results
In its opposition to the Echols’s present motion, the state notes that it
has “indulged” the accuracy of Echols’ DNA test results as to
the first three items of evidence identified in subsection A, above, but
disputes the legal significance of those results. Opp.,
at 29, note 12. The state nevertheless appears to challenge the
scientific significance of the third result, i.e., the one relating to the
Branch penile swab. That result indicates that the profile obtained from
sample 2S04-114-10E, an extract from a swab of victim Steven Branch’s
penis, “... suggest[s] there is a
foreign allele present that could not have come from the victims or defendants;
specifically, the ‘8’ allele at the D16S539 locus in the -10E
SF.” See Opp., at 29, note 12; Petitioner’s exhibit V-1. On
this point, the state cites its exhibit E, a letter date May 27, 2008, from
Kermit Channel, which disputes the validity of any such finding.
Petitioner Misskelley, however, has submitted exhibits from two DNA experts,
Dan Krane
8 Echols will
proffer copies of the relevant exhibits to the Misskelley petition and the
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and Jason Gilder, that not only support the conclusion as to the definite
presence of a foreign allele on the Branch penile swab, but which also opine
that the two alleles disclosed at the described locus do not represent a
“mixed profile” — a
possibility not foreclosed by the findings reported in exhibit V-1 — but
rather were likely contributed by the same person. See Misskelley
petition, exhibits UU and UU-1 (Krane affidavit and CV); VV and VV-1 (Gilder
affidavit and CV). On this basis, moreover, Krane and Gilder have
concluded that a single person, and not any of the petitioners or any of the
victims, was the source of the two alleles at the D16S539 locus in the -10E SF.
See Misskelley exhibit UU, par. 10-11; Misskelley exhibit VV, par. 10-11.
Furthermore, the state attached the May 27, 2008 Channel letter disputing the
significance of the Branch penile swab results (Echols exhibit V-1) to its
opposition to the Misskelley petition. DNA expert Gilder has since
prepared a specific response to that letter, specifically challenging the
methodology employed by Channel and demonstrating the factual and analytic
flaws that discredit his conclusions. A copy of that second affidavit from Mr.
Gilder, dated August 11, 2008, accompanies the instant petition as exhibit BBB,
the final exhibit attached to Echols’ new trial motion having been
denominated AAA. 9
In light of the above, and as assessed at this stage of the proceedings,
petitioner’s evidence of exclusions has only grown stronger. The
state does not seriously dispute that the absence of a significant DNA match
between any of the tested items and any of the petitioners; or the presence of
Terry Hobbs hair in the Moore ligature; or the presence of his friend David
Jacoby’s hair on a tree stump at the crime scene. Petitioner,
moreover, has now presented credible evidence not only excluding him and the
other petitioners as the source of one
of the alleles on the Branch penile swab
9 The original of the
August 11, 2008 Gilder affidavit will be proffered to the Court at or before
the August 20, 2008 status conference.
-20-
but of both, which, rather
than indicating a “mixed profile” are attributable, in fact, to a
single other foreign contributor. In addition, in light of the Misskelley
exhibits discussed above, petitioner has both discredited the state’s
claim that semen was discovered on the cuttings from the pants and established
that neither he nor any other petitioner could be the source of any DNA located
there.
All of the foregoing evidence and exclusions, considered in
conjunction with other case evidence, supply compelling evidence that a new
trial in this matter would result in an acquittal. The absence of
a biological link between any tested item and any of the petitioners cannot be
reconciled with a prosecution scenario depicting an active, murderous rampage
by all petitioners at the crime scene. The presence of the Hobbs hair in
a ligature used to bind someone other than his own stepson, moreover, is
affirmatively incriminating of another, particularly when that evidence is
viewed in conjunction with the Jacoby “tree stump” hair; the
circumstantial evidence discussed in petitioner’s opening motion relating
to Hobbs (at 50-53); and the incriminating statements made by Hobbs concerning
his activities on the day the victims disappeared, as disclosed by petitioner
Baldwin in his “Statutory Habeas Corpus Petition, Motion for New Trial,
Rule 37 Petition, Petition for Writ of Error” in Case No. 93-450B.
See Ibid.,
exhibit 71 (Declaration of Sharon Nelson). The refutation of the
state’s allegations that semen was recovered from one of the
victim’s clothing further undermines the credibility of petitioner
Misskelley’s account of a sexual assault. And, as discussed below,
the inference of innocence driven by the foregoing results becomes
exponentially more powerful when considered in conjunction with the remaining
evidence in the case.
III. IF CREDITED, THE NEW
PATHOLOGY EVIDENCE WHOLLY UNDERMINES THE STATE’S THEORY OF THE CASE AS
PRESENTED AT PETITIONER’S TRIAL AND, WHEN COMBINED WITH THE DNA EVIDENCE,
WOULD LEAD TO ACQUITTAL AT A RETRIAL, THUS MERITING RELIEF UNDER ARK. CODE
§ 16-112-208 (E)(3)
A. Introduction
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The state’s response to petitioner’s newly presented scientific
evidence from a panel of highly qualified forensic pathologists is summed up in
the following passages from its brief:
[T]he post-mortem animal predation theory is incredible. Despite the
certainty with which Echols’s experts assert it today, it was not
propounded by the medical examiners who performed the autopsies on the victims
the day after their bodies were discovered...[T]he findings of the examiners
are clearly indicative of ante-mortem injuries (in addition to blunt trauma)
that are inconsistent with post-mortem predation....
The notion that the victims’ injuries were post-mortem animal predation
that escaped the observation of investigators and medical and dental experts at
the time the bodies were found, recovered, and examined requires the rejection
of common sense.
(Opp., at 25-26)
There are three telling replies to the state’s contentions. The
first is that the new evidence is in fact consistent with certain critical
findings of Dr. Peretti, who performed the autopsies on the victims and
testified as the state’s medical expert at trial. Rather than
contradicting Peretti in crucial respects, the new evidence provides the answer
to key questions that his findings raised but which were either not answered
or, in some cases, not even addressed at petitioner’s trial.
Second, the new evidence puts the lie to powerfully misleading arguments used
by the prosecutors to obtain petitioner’s conviction, arguments that were
utterly lacking in support in Peretti’s testimony. Third, to the
extent that there is a disparity between Peretti’s findings and those of
the petitioner’s experts, the latter, all of whom are board certified in
forensic pathology or forensic odontology and are leaders in their fields, are
both individually and collectively far more qualified than Doctor Peretti, who
has never managed to pass the boards in forensic pathology.
B. Doctor Peretti’s Own
Finding of Post-Mortem Injuries Supports The Theory Of
Animal Predation
-22-
The state has appended to its brief as Exhibit B the autopsy reports for the
three victims in this case. While those reports describe the injuries
suffered by the victims, they do not classify any of those injuries as
pre-mortem, peri-mortem, or post-mortem; indeed, those terms never appear in
any of the three reports. At petitioner’s trial, Doctor Peretti did
testify that the bodies had suffered post-mortem injuries, 10 a finding consistent with those
of Doctors Spitz, Souviron, DeMaio, Haddix, Woods,
That the victims suffered post-mortem injuries thus is not an
“incredible” assertion by defense experts, but rather an undisputed
fact. The question not addressed by Doctor Peretti in his autopsy reports
or testimony is the etiology of those post-mortem injuries. (See Haddix report, at page 8: “Curiously, Dr. Peretti states
in his testimony [Echols-Baldwin trial, Bates stamp 1845] that there are
postmortem injuries, however this is not further pursued either in direct or
cross examination.”) As to at least two victims, Moore and Branch,
Peretti concluded that they died of drowning, meaning that the post- mortem
wounds they suffered occurred after they first entered the body of water in
which their bodies were found the next day. In order for their
post-mortem injuries to have been caused by a human agency, the perpetrator
would have had to place their bodies in the
10 In
petitioner’s trial, Peretti testified that Chris Byers suffered
post-mortem injuries (RT 1065); in the Misskelley trial, he testified that some
injuries of Branch were post-mortem (RT 838).
11 A report by Doctor Janice Ophoven was submitted by counsel for
-23-
water while the victims were alive, waited until they
died, and then removed the bodies in order to mutilate them with a cutting
instrument before again placing them in the water where they were later
discovered. Doctor Peretti never advanced that “double entry”
theory in his autopsy reports or testimony, not did he ever deny that animal
predation would be a far more logical and far less “incredible” explanation
for the post-mortem wounds he himself found on the bodies.
C. The Post-Mortem Injury To
Byers’s Genitals
For the most part, the autopsy findings and testimony of Doctor Peretti did not
have any incriminatory value for the state at petitioner’s trial.
For example, the state did not argue that the blunt trauma wounds suffered by
the victims in any way tended to connect Echols or Baldwin to the charged
murders.
The notable exception was the genital injury exhibited by Chris Byers, whose
scrotum and penis skin had been removed from his body before it was recovered.. As Echols’ motion for a new trial
demonstrates, that injury was the key evidentiary underpinning for three
important components of the state’s theory of the case: (1) the scrotum
and skin of Byers’ penis were removed by use of a particular cutting
instrument — a “survival” knife found in a pond behind
Baldwin’s house; (b) Baldwin was present when the scrotum were removed,
at which time, according to the testimony of jailhouse informant Michael
Carson, Baldwin put the severed testes in his mouth; and (3) the sexual
mutilation killings proved the killings were part of a satanic ritual, and thus
(according to “Doctor” Dale Griffis of the fraudulent Ph.D.)
could be linked to Echols, who had displayed an interest in the occult.. All of these cornerstones crumble, and the state’s case with
them, if the Byers’ injury resulted from post-mortem predation.
The expert pathological evidence now offered by petitioner regarding the Byers
genital mutilation — that the nature of the injury is entirely
inconsistent with the use of the knife in the lake
-24-
and is attributable to post-mortem animal predation — is not contradicted
by the autopsy findings or trial testimony of Doctor Peretti. In neither
did he classify the genital injury as pre-mortem or peri-mortem, as opposed to
post-mortem. Peretti did testify at trial that two marks on other parts
of Byers’ body were consistent with the use of some serrated knife (but
no one knife in particular) but did not offer an opinion as to the cause of, or
agency by, which Byers’ scrotum and penis skin were removed. The
assertion that the lake knife caused the genital injury was proffered in
closing argument by the prosecutors.
The testimony that Peretti did give regarding the Byers’ genital injury
in fact is completely consistent with the conclusions proffered by the
petitioner’s experts. On cross-examination by counsel for Jason
Baldwin, Peretti stated that, if done by a cutting instrument, removal of the
skin of the penis while leaving the corpus of the penis intact would have
required a very sharp instrument such as a scalpel; would have taken a good
deal of time and a fair amount of surgical skill; that if done on the ground at
the crime scene would have resulted in a very significant spillage of blood
that could not easily be cleaned up; and would have been virtually impossible
to do in the water where Byers’ body was eventually recovered.
Peretti, a trained physician, would have a difficult time performing the
operation himself. (RT 1109-1118) That testimony completely undermined
the state’s contention that the Byers’ penile skin was removed at
the crime scene by a teenager wielding the large, dull survival knife found in
the lake, and left any claim of human agency problematic.
There is, however, an explanation of the injury which fully fits the facts, is
consistent with Peretti’s testimony on cross-examination, and is
well-supported by the medical literature: that of “degloving,” in
this case by post-mortem animal predation. The “degloving” analysis
now has been proffered by a number of this country’s leading forensic
pathologists and odontologists. The “incredible” theory in this
case is not animal predation, but that tendered to the jury by the
-25-
prosecutors — i.e., that Byers was castrated by
Echols or
D. The New Forensic Evidence Is Simply Far More
Reliable Than The Reports of Doctor Peretti, Who Is Not Board Certified
As demonstrated above, the key conclusions of petitioner’s forensic
experts are not contradicted by either Doctor Peretti’s autopsy reports
or his trial testimony. Indeed, his letter filed on May 30,
What is certainly true is that the petitioner’s forensic experts draw
conclusions that Doctor Peretti did not advance in his autopsy reports or at
trial, such as the role of animal predation and “degloving” in
causing the victims’ injuries. The state claims that the new
evidence and findings defy “common sense” because they could not
have “escaped the observation of investigators and medical examiners and
dental experts at the time the bodies were found....” (Opp., at 26)
The simple truth is that Doctor Peretti, while a veteran of many autopsies, is
in a very
12 Echols v. State, 936 S.W.2d 509, 969
(Ark. 1996): “On cross-examination, Dr. Peretti testified that he had
never stated that the knife found behind Baldwin's house caused the
injuries....”
13 The May 30th
letter does state that the autopsies revealed no human bite marks, a statement
with which petitioner’s forensic experts are in agreement.
-26-
meaningful sense not a fully qualified forensic pathologist, as he has never
been able to obtain board certification in that discipline. Doctor
William Sturner, then
Doctor Haddix is a assistant professor of forensic
pathology at the
The new forensic evidence is powerful and convincing. At a minimum, this Court
cannot discount the animal predation evidence unless and until it convenes an
evidentiary hearing where it can be tested by the adversary process.
IV. THE EVIDENCE ESTABLISHING
THAT THE JURY FOREMAN AT PETITIONER ECHOLS’S TRIAL WAS BIASED AND ENGAGED
IN BLATANT MISCONDUCT IS RELEVANT AND ADMISSIBLE IN THE PRESENT ACTION
A. Introduction
In his motion for a new trial, Echols stated: “The state will surely
assert that the 1994 verdict
-27-
of conviction presents an insurmountable obstacle to Echols’ present
request for relief, contending that the fact that a jury of his peers then
fairly found petitioner guilty precludes a finding that petitioner surely would
be acquitted now.” As noted above, the state indeed has made that
precise response in urging this Court to deny Echols’ motion for a new
trial without holding an evidentiary hearing. (Opp., at 18: petitioner
must present “necessarily extraordinary proof” for nothing else “could
undo a presumptively valid criminal conviction;” Opp., at 13: DNA-testing
results alone must exclude petitioner as the perpetrator because
“[n]othing less could compellingly lead to an acquittal when considered
with all other evidence that previously supported a verdict of guilt beyond a
reasonable doubt...”)
Anticipating the state’s argument, Echols contended in his motion that
the 1994 judgments were fundamentally flawed. Rather than being convicted
on “evidence developed [on] the witness stand in a public courtroom where
there is full judicial protection of the defendant’s right of
confrontation, of cross-examination, and of counsel,” Turner v. Louisiana, 379 U.S.
466, 472-73 (1965), Echols was found guilty principally based on what biased
jurors had heard and read outside the courtroom. Echols’ jury
convicted him based on information both unadmitted and inadmissible at trial:
media reports concerning a (demonstrably false) statement of codefendant Jesse
Misskelley implicating Echols and
Since the filing of Echols’ new trial motion in April, yet more evidence
of bias and
-28-
misconduct on the part of the jury foreman at Echols trial has surfaced; that
evidence could not have been presented to the Court at an earlier time and
plainly falls outside the scope of Rule 606. On May 30, 2008, an affidavit was
filed with this Court by a prominent
In his prior pleadings in this Court and the Arkansas Supreme Court, Echols
identified the jury foreman only as Juror Number Four in an effort to maintain
his privacy for as long as possible, although that identity necessarily would
be revealed at an evidentiary hearing in this matter. Recently, however, the
foreman consented to an on-the-record interview with the Arkansas Democrat
Gazette resulting in the publication of an article in that paper on June 11,
2008. That article contained the foreman’s name and his comments
that he may have called an attorney and “asked questions about procedures
during the trial.” 14
Given the foreman’s decision to speak openly about the events in
question, there appears to be little reason to avoid identifying in court
papers Juror Number Four as well as the affiant attorney with whom the foreman
spoke during the trial, but in an excess of caution, petitioner will continue
the practice of non-identification.
B. Statement of Facts
The affidavit filed with this Court on May 30, 2008
speaks for itself. Counsel for Echols has not seen it, but has received
information from sources other than the affiant as to the affidavit’s
14 “Lawyers for
3 Ask Judge To Look At Talk In ‘93 Trial,”
by Cathy Frye, June 11, 2008.
-29-
contents. On that basis, petitioner submits the evidence before
this Court supports the following factual conclusions.
Just before or during the voir dire at petitioner’s trial, which took place in the last week of February of 1994, Juror Number
Four, who was a prospective juror at the time, retained an attorney in an
effort to prevent serious felony charges being filed against a close relative
of Number Four. At the same time, Number Four also retained the attorney
to represent himself in matters related to his real estate business. The
attorney so retained is an ex-prosecutor and former state official.
Between the end of February and the first week of April, 1994, the attorney in
question was involved in attempting to prevent the filing of charges against
the close relative of Number Four. Once charges were filed in April of
that year, the attorney represented the close relative through the time of his
guilty plea in September of 1994. The court file containing that plea has been
lodged with this Court. Between late February and September of 1994, the
attorney was in regular telephone contact with Number Four both in regard to
his relative’s case and the juror’s own business matters.
During their initial phone call or during calls soon thereafter, Juror Number
Four informed the attorney that he had been called as a prospective juror in a
trial in
-30-
would have required him to respond to the question.
At some point during the prosecution’s presentation of its evidence,
Number Four asked the attorney why the state had not yet presented proof of a
confession by one of the defendants in the case, Jesse Misskelley. Number
Four, who was an avid newspaper reader, was aware of the confession because it
had been described in newspaper articles and other media reports in the period
before the
While evidence was still being presented in the Echols-Baldwin trial, Number
Four expressed to the attorney the opinion that most jurors were prepared to
convict before the trial was over, but that a few jurors still had to be convinced.
Number Four was surprised that some of the jurors had been unaware of the
Misskelley confession, but there had been some reference to the confession
during courtroom proceedings, and that reference had helped the majority who
had known of the confession in its effort to convince the others of the
inadmissible confession’s existence. This is a clear reference to the
blatantly improper reference to the Misskelley statement during the testimony
of Detective Ridge, which drew a motion for a mistrial from Echols
counsel. The motion was denied, with the jury being admonished to ignore
the reference. See Echols’ New trial Motion, at page 33.
During one conversation, Number Four told the attorney the evidence was to
close the next day; that the prosecution had presented a weak case; and that
the prosecution had better present something powerful the next day or it would
be up to Number Four to secure a conviction.
Following the verdicts in the penalty phases of the trial, Juror Number Four
engaged in two
-31-
colloquies with the Court, one with the jury as a whole, 15 one by himself, 16 in which he falsely assured the
Court that he had not engaged in misconduct or relied on extrajudicial
information in reaching his verdict.
15 The
Court: Can you give me your assurances that at least to this point in this
case that there has been no contacts from outside the
family, media, or anyone else that would in any way influence your findings?
Jurors: Yes.
The Court: Are each of you satisfied and can you give me your personal
assurance that you have only considered the evidence that was introduced in
court by proper court procedure?
Jurors: Yes.
The Court: Okay. Do any of you feel that there has been anything
whatsoever that in any way affected your ability to deal strictly with the
evidence that was produced in court?
Jurors: No.
(RT 2643-44) (Emphasis added)
16 The
Court: Did it have – and you didn’t even discuss it in your
deliberations?
[Foreman:] I think if – I think if anybody would be interested, the only thing that was discussed during
deliberations was only facts in evidence that was delivered to us and nothing
else.
(RT 2656) (Emphasis added). It bears notice that in his recent interview with
the Arkansas Democrat Gazette, Number Four agrees that the Misskelley
confession was discussed in the jury room during deliberations.
-32-
C. The Information Before
the Court Is Neither Privileged or Barred from Consideration by Evidence Code
Section 606, Nor Is its Presentation Untimely
1. Privilege
Had Juror Number Four ever possessed a claim of attorney-client privilege, he
would have waived it by discussing publicly the contents of his conversations
during trial with the attorney he retained, as he did in his recent interview
with the Arkansas Democrat Gazette. That aside, the attorney-client privilege
does not apply to communications that are unrelated to the matter for which the
client has sought representation. Number Four’s jury service had
nothing to do with his relative’s criminal prosecution or his own
business affairs, and thus his improper conversations concerning
petitioner’s trial cannot have ben privileged.
The attorney-client privilege is defined by Arkansas Rule of Evidence
502. It defines the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person
from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client (1)
between himself or his representative and his lawyer or his lawyer's
representative, (2) between his lawyer and the lawyer's representative, (3) by
him or his representative or his lawyer or a representative of the lawyer to a
lawyer or a representative of a lawyer representing another party in a pending action
and concerning a matter of common interest therein, (4) between representatives
of the client or between the client and a representative of the client, or (5)
among lawyers and their representatives representing the same client.
-33-
Wigmore:
(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal adviser,
(8) except the protection be waived.
8 John Henry Wigmore, Evidence
§ 2292, at 554 (McNaughton rev. 1961); accord
Any privilege that might have attached to communications between Number Four
and the attorney did not apply to statements regarding Echols’s trial
because Echols’s trial had nothing to do with matter for which
representation was sought. As the definitions above make clear, the privilege
does not apply to any
communication between attorney and client. Rather, it only applies to
communications made “for the purpose of facilitating the rendition of
professional legal services.”
Put simply, the “mere fact that an attorney was involved in the
communication does not automatically make it subject to the attorney-client
privilege.” Mueller & Kirkpatrick, Evidence_ 5.11 (3d ed.
2003); see McCormick on Evidence_
88 (6th ed. 2006). Statements are privileged only if they are
“relevant to the legal subject matter on which the client seeks legal
assistance.” Geoffrey C. Hazard, Jr. et al., The Law and Ethics of Lawyering 259 (4th ed. 2005).
Thus, as state and federal courts around the country have recognized, an
attorney-client communication must “relate to the purpose of obtaining
legal advice before it is protected.” Simon v. G.D. Searle & Co.,
-34-
The relevance requirement derives from the goals of the privilege. The
attorney-client privilege “is designed to secure subjective freedom of
mind for the client in seeking legal advice.” Byrd v. State, 326
There is simply no need to cover communications regarding facts unrelated to
the case, because covering such communications would do nothing to facilitate
the goal of effective legal services. As the
Juror Four’s statements had nothing to do with the matters for which he
had retained the attorney had been retained.
Consequently, they were not privileged. Indeed, there is not even a
-35-
colorable argument that any statements about the Echols-Baldwin trial were made
for the purposes of facilitating the rendering of legal services. The
relevance requirement conclusively defeats any claim of privilege.
2. Rule 606
Rule 606 bars the admission of evidence concerning what occurred during a
jury’s deliberations and what affected the jury’s verdict, subject
to the exception that evidence may be taken concerning the jury’s
consideration of extraneous information or outside influences. 17 The
Rule plainly has no application to the information provided by the attorney,
since that information concerns misconduct engaged in, and bias and prejudgment
of guilt displayed, by Number Four before the formal jury deliberations began. State v. Cherry, 341
17 Arkansas Rule of
Evidence 606(b), adopted in 1975, reads:
Upon an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon his or any other
juror’s mind or emotions as influencing him to assent to or dissent from
the verdict or indictment or concerning his mental processes in connection
therewith, nor may his affidavit or evidence of any statement by him concerning
a matter about which he would be precluded from testifying be received, but a
juror may testify on the questions whether extraneous information was
improperly brought to the jury’s attention or whether any outside
influence was improperly brought to bear upon any juror.
-36-
case, expressly finding Ark.R.Evid. 606(b) not implicated because the
information on which the new trial grant rested did not involve matters
relating to jury’s “formal deliberations”).
In Witherspoon v. State, 322
On appeal, the defendant challenged the admissibility of the testimony of her
fellow jurors. One testified that she stated that all of the officers who
had participated in the criminal investigation had been promoted.
3. Timeliness
Petitioner could not previously have raised a claim based on this information
because it was held in confidence by the attorney in question until now,
apparently in the mistaken and now corrected belief that the information was
privileged.
D. The Affidavit Now Before the
Court, Which Petitioner Could Not Possibly Have Presented at an Earlier Point
in Time, Demonstrates That Petitioner’s First Trial Was Marred by
Outrageous Juror Misconduct and Bias, Precluding Any Reliance on the Resulting
Verdicts as a Basis for Denying Echols’s Present Claims
“[T]he right to jury trial guarantees to the criminally accused a fair
trial by a panel of
-37-
impartial, ‘indifferent’ jurors.” Irvin
v. Dowd, 366
Furthermore, “[i]n the constitutional sense, trial by jury in a criminal
case necessarily implies at the very least that the “evidence
developed” against a defendant shall come from the witness stand in a
public courtroom where there is full judicial protection of the
defendant’s right of confrontation, of cross-examination, and of counsel.
Turner v.
Under these controlling precedents, a trial in which most jurors decide guilt
based on extrajudicial information that the federal constitution deems
inadmissible, and do so before the presentation of evidence has been completed
is, quite simply, a sham proceeding. The extremely credible evidence now before
the Court establishes that is precisely what occurred in this case.
V. THE STATE’S EVIDENCE AT
EARLIER TRIALS WOULD NOT IMPEDE AN ACQUITTAL AT A NEW TRIAL
Finally, the state argues that irrespective of the new evidence now before the
Court, Echols would be still be convicted on the basis of the evidence offered
at the 1994 trials of the three defendants.
Thus, even accepting Echols’s theory of relief, his DNA-testing results
– even if considered with his otherwise uncognizable
new-forensic-evidence and his criticisms of the trial evidence against him
– do not establish by compelling evidence that he would be acquitted when
those results are considered with the extra-trial evidence of his guilt,
particularly his admission and that of his codefendants’ [sic]. One
need only cast the question in light of his own proposed standard
-38-
to see that his motion must be denied. Is it reasonable for a juror
– even in light of Echols’s exclusion as the source of some
biological material from the crime scene and his post-mortem animal-predation
theory – to nevertheless believe that his admissions of guilt and that of
his codefendants’[sic], his physical and
temporal proximity to the crimes, and the circumstantial and motive proof for
the crimes consistent with the admissions, all come together to make him
guilty? A reasonable juror could so conclude, and, consequently, his
motion must be denied.
The following points are in order:
1. If the state did manage to put the Misskelley statement into evidence
at a new trial, it now would prove exculpatory. As the previous section
of this brief demonstrates, Echols was convicted at his first trial because the
jury, while aware of the existence if the Misskelley statement, learned none of
the facts that expose it as palpably false, nothing more than a confession
wrested from a mentally defective subject who actually believed that he would
be rewarded for the information he provided his interrogators. Now when
the phenomenon of false confessions, particularly from mentally retarded
juveniles, is well-documented, no reasonable juror would accept the statement
of a supposed eyewitness who described a mid-morning massacre when the three
victims were safely at school, who was so suggestible that he was easily be
persuaded to turn nine in the morning to eight in the evening, and who could
not describe anything that happened at the crime scene without being prompted
to do so by his questioners. Misskelley described strangling and sodomy
of the victims that the DNA and medical evidence proves never occurred, but,
despite intense prompting, could not describe the hog-tying that no witness to
the crime could ever forget.
2. The state cites the Misskelley confession as proof that a knife was
used to cut Byers on the penis. But (a) Misskelley, as demonstrated in
Echols’ motion for a new trial, only agreed to a knife scenario after his
interrogators told him that a knife was involved; and (b) Peretti’s own
testimony established that the removal of the skin from Byers’ penis by cutting
instrument would
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have required a virtuoso surgical operation that Misskelley never described
because, as the new forensic evidence will conclusively prove, that process
never occurred.
3. The state also argues that a reasonable jury would convict Echols
based on Baldwin’s “confession” to Michael Carson that
4. The state claims credibility for evidence that Echols was in the
vicinity of the crimes near the time the boys disappeared, but unbeknownst to
the jury that convicted Echols at the first trial, that identification
testimony came from a convicted child molester, Anthony Hollingsworth, who was
then on probation for sexually assaulting his eight year old sister, Mary.
Anthony’s mother, Narlene, who testified similarly to Anthony, had
reasons to curry favor with the prosecution both because of Anthony’s
status and her own pending vehicular charges. At the 1994 trial, the state was
forced to concede that the Hollingsworths’ identification of Domini Terr
as being in the same vicinity was mistaken (or fabricated).
The state cannot expect any reasonable juror to accept the testimony of the
Hollingsworths
18 Echols
incorporates by reference Exhibits Thirty Four to Forty Three in support of
Baldwin’s Motion For a New Trial and Rule 37 petition in case nos. CR
93-450 and 93-450B into this response, and will proffer copies of those
declarations, which concern Michael Carson, at the status hearing to be held on
August 20th.
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once that juror learns of not only of their past bias and self-interest, but of
Anthony’s continued career as a sex offender in Crittenden County, where
he has been charged with at least three recent sexual assaults, at least one
against children. (Cases 2007-1235; 2007-962; 2007-1325). 19
5. The state claims that a jury would convict on the basis of the
testimony of the “ball park girls” that Echols proclaimed to
bystanders at a softball that he had killed the victims and would kill other
children as well. But Echols adamantly maintained his innocence in during many
hours of interrogation at police headquarters the week after the crimes.
Any reply he may have made in reply to taunts at the game or in a sick attempt
at humor could not be taken seriously, which is why Donna Medford, the mother
of Jodee, one of the adolescent witnesses, did not report them at the time.
On the other hand, the declaration of Jennifer Bearden, who has absolutely no
reason to perjure herself to assist Echols, puts him on the phone with her at
the time the boys disappeared miles away. Bearden is vastly more credible
than, for example, the Hollingsworths. No reasonable juror could find the alibi
testimony of Bearden, Domini Terr, and Echols’ mother refuted beyond a
doubt by the state’s deeply flawed evidence.
6. Perhaps the most telling rejoinder to the state’s claim
that it maintains a case strong enough to convict is the assessment of Juror
Number Four, who told his attorney in 1994 that the state had presented a case
so weak that it would be up to him to secure a conviction by resorting to
reliance on information not in evidence. The new DNA evidence, when considered
in conjunction with all other relevant evidence, would lead to acquittal at a
new trial.
CONCLUSION
19
Records of Anthony’s recent charges are judicially noticeable, and will
be filed with the Court at the status conference on May 20th.
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For the foregoing reasons, petitioner Echols’ motion for a new trial
based on new scientific evidence must be granted.
DATED: August 12, 2008
Respectfully submitted,
DENNIS P. RIORDAN
DONALD M. HORGAN
By _______________________
DENNIS P. RIORDAN
By _______________________
DONALD M. HORGAN
Attorneys for Petitioner
DAMIEN WAYNE ECHOLS
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