Damien Echols Legal Defense Team Press Conference - November 1, 2007
[SLIDE: Echols v. Norris and Case No. displayed]
DENNIS RIORDAN, Lead Counsel:
...Gerald Skahan of Memphis, Tennessee, and our local counsel here in Little Rock, Deborah Sallings. We represent petitioner Damien Echols in the case of Echols versus Norris. Echols versus Norris is a federal habeas corpus petition proceeding in the Eastern District of Arkansas, here in Little Rock, arising out of the 1994 trial -- trials, really -- of three teenagers -- Damien Echols, Jason Baldwin and Jessie Misskelley, who were tried and convicted for the murders of three eight-year-old boys, Steve Branch, Chris Byers and James Michael Moore in 1993.
A federal habeas corpus petition is a proceeding sanctioned by the laws of the United States and the Constitution of the United States which gives a state prisoner, someone deprived of their liberty, and especially a state prisoner who has been sentenced to death -- as Damien Echols has -- the opportunity, after state proceedings are completed, to go into federal court and file the petition complaining that their state trial did not accord with the Bill of Rights, the federal Bill of Rights of the United States Constitution, which guarantees things like the right to counsel, the right to confront witnesses against you, the right to present a defense and the right to twelve impartial jurors.
To some people, these sound like technicalities. But since 1789, the founders of this country recognized that the only way to tell the difference between a guilty person and an innocent person with any reliability is to give them a fair trial. The case in front of the District Court, therefore, is primarily not about guilt or innocence. It's about whether the proceeding in Mr. Echols' case was fair. But due to a, quirk perhaps we call it, an exception in federal habeas corpus law, there are cases in which the threshold question for the court is: Is there evidence, sufficient evidence, to establish that someone is actually innocent of a crime? If that evidence exists, it means the court can proceed in a different kind of way to consider all of the fair trial claims that the petitioner brings. This is a case, filed on Monday, in which Mr. Echols presented evidence of actual innocence.
Actual innocence, in a legal sense, in the federal court means the following: Is new evidence that was not available at the time of the offense -- when you view it with all of the evidence concerning the case -- would a federal judge then be able to say, with confidence, that any reasonable juror would have a reasonable doubt about the defendant's guilt. To state it differently, is it the case that no reasonable juror would find the defendant guilty beyond a reasonable doubt. And a third way, can the judge be confident that with this new evidence, if that defendant were tried today, he would be acquitted. And we are here today to discuss the evidence that establishes that no reasonable juror would convict Damien Echols, essentially knowing what we know today.
The heart of this presentation is four experts who we will be calling today who are among the experts who provided the core of the new evidence before the District Court. They are Werner Spitz, probably the country's leading forensic pathologist, certainly the author of the bible of forensic pathology in this country. Richard Souviron, a renowned forensic odontologist, who was the key witness to the prosecution in convicting Ted Bundy, some years ago. Tom Fedor, who is a DNA expert, to discuss the new DNA evidence. And John Douglas, who headed the Criminal Analysis Unit of the FBI for twenty-five years. And we will move to them as quickly as we can.
But I think in order for anyone to have a full sense of the impact of this evidence, they have to have some context about what happened, what led to the arrest and conviction of Damien Echols. And once the experts have concluded, we're going to try and move through this in a systematic fashion. There's a lot of information to get out to you, we will throw it open for questions and answers, but we will ask that we complete all of the experts' presentations before that begins.
But let me begin in 1993 with the arrest of Damien Echols.
[CLIP BEGINS PLAYING] KAIT8 News, June 7, 1993: Good evening, I'm Diana Davis. And I'm Tom Brooks. In a statement given to police and obtained by a Memphis newspaper, seventeen-year-old Jessie Misskelley allegedly confesses to watching two other suspects choke, rape and sexually mutilate three West Memphis second graders. [garbled name] reports. According to the published report, Misskelley told police he watched eighteen-year-old Damien Echols and sixteen-year-old Jason Baldwin brutalize the children with a club and a knife. The report says Misskelley told police Echols and Baldwin raped one of the boys and sexually mutilated another as part of a cult ritual. Misskelley is quoted as saying he did not take part in the rape and mutilation, but that he helped subdue one victim who tried to escape. At a press conference, Inspector Gary Gitchell said the case against the accused teens is very strong. [SHOWS GITCHELL, UNKNOWN PERSON ASKS QUESTION] "On a scale of one to ten, how solid would your case be?" [GITCHELL RESPONDS] "Eleven." [UNSEEN CROWD LAUGHS AND CLAPS] It appears satanic worship may have played a role in the murders. Since the very beginning of the investigation, people all around West Memphis have come forward with stories of satanic cults. [END OF CLIP]
- Choked, Sexually Violated and Mutilated the BOys
- Beat the Boys With Knife and Club
- Satanic Cult Ritual]
So everyone in the State of Arkansas had been informed, beyond any reasonable doubt, eleven on a scale of ten, that Damien Echols choked, sexually violated and mutilated the victims, beat the boys with a knife and a club, as part of a satanic cult ritual. The only problem is that the statement of Gary Gitchell that convinced the citizens of this state that it was true was absolutely false. He knew, he had to know, that then, as now, there was not a single piece of credible evidence that tied Damien Echols to these crimes.
The two pieces of evidence that existed at that time were a statement by a woman who was facing embezzlement charges, that she would play detective, find out what went on in this case, she knew Misskelley and she told the police that as a detective Misskelley had taken her, with Damien Echols, to a satanic esbat. Her name was Vicki Hutcheson. What do we know today about Vicki Hutcheson? Every word was a lie. A complete fabrication, a product of police pressure to get results in the deaths of three children. [SLIDE: Arkansas Times article from Oct. 2004] That's one piece of evidence.
The second piece of evidence of course, was the statement taken from Jessie Misskelley, which any objective observer at the time would know could not possibly be true. Misskelley was borderline retarded. He was told to cooperate, he could cooperate, he knew there was a reward. He was told when he said he wasn't involved in satanic activity that he had failed the polygraph on that question. He didn't fail the polygraph. He said that he met with Echols and Misskelley and marched them off, uh, marched the boys off, he took them off their bikes while they were on their way to school at nine o'clock in the morning. At nine o'clock in the morning, those boys were in school, as they were all of that day.
A Dozen Reasons
1. Borderline Retarded
2. Knew of Reward
3. Was Falsely Told He Failed Polygraph
4. Murders Were in Morning
5. Boys Could Have Run Away
6. Boys Tied with Brown Rope]
He said that, and this is just so telling. We debated whether we were going to show you the proof of this. It's a picture of these three little boys bound with their shoelaces, feet to hands in a tortured position. The police tried desperately to get Misskelley to describe this. And finally they said, "Well, why didn't the boys run away? If they were tied up in a way that he could run away." He said, "Oh, they could have run away, we hit them." No human being, no human being who has ever seen a photograph of those three boys, could say that they were tied in a way that allowed them to run away. And Misskelley said they were tied with brown rope, no one could not know they were tied with their own shoelaces from their sneakers. He said one victim was choked to death. Absolutely false. None of the victims were choked. The victims were sodomized. Even in 1994, the State's pathologist said you cannot rape an eight-year-old boy if you're an adult and not leave overwhelming physical evidence of it. There was not one bit of evidence that any of these boys were sodomized.
The boys, he said, were beaten with their clothes on. Badly beaten with their clothes on. All of their clothes were recovered, there was no blood on them. He said that Baldwin called him at noon to say that the murders were completed. Jason Baldwin, like all of these victims, was in school at noon. And finally, they take this statement to a judge who refuses to give a warrant, he says "You've given me a statement that doesn't describe these crimes. They occurred in the evening, not in the morning." They go back to Misskelley in the interrogation and tell him that he had said that it was eight o'clock at night, which he never had. They supplied the time. And even though we now know it was the evening and Baldwin, uh Misskelley has described this as in the morning, there's never an explanation given of how he ever could have run into Echols or Baldwin, whose movements during that day were accounted for.
So when Gary Gitchell says "Eleven out of ten," he's talking about zero on a scale of ten. So, where do we go from there. The authentic assessment of the evidence as Echols' trial began came from the prosecutors.
[CLIP FROM 'PARADISE LOST'] Brent Davis: Unfortunately, we need his testimony real bad. If it was a perfect world, we would take what we have on Jessie and leave it and we'd go and get the other two. And get them and be happy. But it's not. We need his testimony to be sure and get convictions on the other two. [END OF CLIP]
What happens then, is that my friend Davis is saying that the statement of Misskelley is not only false and unreliable, it's inadmissable against either Echols or Baldwin. In this country, you can't put in a statement like that. You have to put a witness on the stand to be cross-examined. He is saying that unless we get Jessie Misskelley on the stand to give a credible version of this, we don't think we can win the case. And John Fogleman, the other prosecutor, at that point summarizes what they have without Misskelley.
[CLIP FROM PL] John Fogleman: So that's what we've got, but that's all, basically, that we've got. Davis: You asked what the odds were of convicting without Jessie, and it's, you know, fifty-fifty might be good. [END OF CLIP]
What they're talking about is there's a statement by the Hollingsworth clan, that two members of the Hollingsworth family who said they saw Damien Echols and his girlfriend who was related to them, Domini Teer, on that evening out on the road not far from the crime scene. There's fibers from little childrens' clothing that were recovered on the, at the crime scene that -- the theory being that somehow a little shirt in Echols' home had a fiber transferred to him, and it got to the crime scene. There were two girls at a softball game who said they heard Echols say he killed the boys and he would kill two more. They mentioned Michael Carson, and you'll be seeing from him, a jailhouse informant who said that Jason Baldwin made an incriminary statement. And he said, and this is absolutely critical to what you're hearing today, he said, Fogleman says, "We found a knife in a lake behind the home of Jason Baldwin." The knife in the lake. So. But did Jessie Misskelley testify at the trial? No, he did not. He never, he had maintained his innocence after this statement, he never testified for the State. Well if that's the case, given what you saw, how did they get the conviction against Damien Echols? We'll be discussing each of these things again later, but one thing was absolutely critical to that conviction and to our presentation today. In the closing arguments --
[CLIP FROM PL] Fogleman: Is it a coincidence, this knife is found behind, in the lake, hidden behind Jason Baldwin's house? There are marks on Christopher Byers where you've got like a dash, where it's a cut, a cut and open space, a cut and an open space. And if you take this knife and do that, you can see it leaves a cut and an open space, a cut and an open space. Now if you take this knife, Exhibit -- Defense Exhibit 6, and even with the slightest pressure, it makes a straight line. [END OF CLIP]
So what have you, what have you just seen. The prosecutor has said that if you take a grapefruit and cut it with that big knife that you saw, you will get a -- that is a fair representation of what a knife does to human flesh. He has said that there is a certain pattern that would be made on the grapefruit same as made on human flesh by that knife, and he concludes by saying, "So therefore, you know this knife found in the lake was what was responsible, remember, for the sexual mutilation, the sexual mutilation of Chris Byers." None of that was supported by any evidence in the record. The State's pathologist said nothing more than this. That he could identify of hundreds of marks on these bodies. He said hundreds. He picked out two spots -- three spots -- that could have been made by a serrated knife, but any serrated knife. He could not say, could not attribute to anything. But you watch the prosecutor conduct an experiment which he represented to the jury proved conclusively that the same marks on that grapefruit had been made by that same knife on the body of Chris Byers.
Now, what do we know about what convinced the jury to convict. Remember, Jessie Misskelley did not testify. Jessie Misskelley's statement could never serve as any evidence in the case against Echols and Baldwin because in this country, evidence comes from the witness stand. Every jury is told you will decide this case on the evidence from the witness stand. But in the last couple of years, quite fortuitously, and this is the sort of fortune that can save a man's life, we have found the following.
We have found that there was -- even at the time, it was known that the jury put up big sheets of factors that they considered in convicting Echols and Baldwin. And they've been kept in evidence. And here the Echols one is, and people have examined this for years. But no one had really asked what that might be [SLIDE: Jury notes with blacked out line]. What was that? Why was it crossed out and who crossed it out? Years later an investigator for Jason Baldwin named Tom Quinn found one of the jurors who had not only taken compendious notes, but had copied a facsimile of that list into her notebook. The crossed out item is the Jessie Misskelley testimony.
The same is true of the Jason Baldwin list [SLIDE: Other list with two blacked out lines]. You will also see something crossed out on the Baldwin list. The woman's facsimile -- the juror's facsimile -- reveals it is the Jessie Misskelley statement. Jessie Misskelley -- uh, Jason Baldwin and Damien Echols were convicted illegally in violation of every basic principle of a fair trial because they were convicted by jurors on evidence that not only the jurors had never heard, but they couldn't have heard. And most importantly, had that statement been admitted, those jurors would have heard the eleven reasons why it was false. Because it was not admitted, because it was not admitted, because the defense was under the impression the jury didn't know about it or wouldn't rely on it. They didn't hear any of that evidence about how false it was. All they knew was the reports in newspapers that said consistently Misskelley identified these two defendants as murdering and raping these three victims. So that is the trial, that is the central claim, that unfairness, reliance on Misskelley's statement, in Echols versus Norris. But with that, I would like to reach the question of an addition to that, the unfairness of the trial. What is the new evidence that proves not merely that this was an unfair trial, but innocent men were convicted. And in particular Damien Echols. And with that, I'll turn to Don Horgan, who's going to introduce our experts.
DONALD HORGAN, counsel:
Good Morning. I'm going to take a minute or two here just to review some of the DNA evidence that has recently surfaced in the case. First, with a little background. In 2001, Arkansas, like a lot of other states, passed a statute that allows convicted criminal defendants to challenge their convictions with new DNA evidence that shows them to be actually innocent. Under that state statute and under an agreement the defendants reached with the prosecution, relevant items from the crime scene in this case were tested at the laboratory chosen by the prosecution, and that's Bode Laboratories in Virginia.
In late 2005, Bode issued its first report, showing DNA profiles of genetic material found on the victims and on other pieces of evidence from the crime scene. The lab was later given DNA samples both from the victims and the defendants and analyzed those. In the end, none of the Bode reports could link any of the DNA provided by the defendants to the victims or to the crime scene. And in fact -- and this is of great importance -- one report showed a piece of genetic material on the penis of Steven Branch that could not be linked to any victim or to any defendant. In the meantime, our investigators were obtaining DNA samples in the form of hair, cigarette butts, oral swabs, from people who had some connection to the events. These included samples from several people, including Steven Branch's step-father, Terry Hobbs. And later we received a sample voluntarily given by David Jacoby, a friend of Terry Hobbs, who was with Terry Hobbs on the day Steven disappeared.
We gave all these samples to Thomas Fedor, who's here today. He's an independent forensic serologist at the Serological Research Institute in California. Tom analyzed the samples and compared them to the testing results Bode had already given us. The result of that analysis, in May 2007, showed that a hair from a ligature used to tie up Michael Moore could be associated with Terry Hobbs. We provided that result to the prosecution right after learning of it. A much more recent analysis by Mr. Fedor showed that a hair found on a tree root, or a tree stump, at the crime scene could be associated with the DNA samples provided by David Jacoby. We also disclosed that result to the prosecution right after learning it. Mr. Fedor is now going to talk a little more about the meaning of those DNA results in a little more detail. Tom.
THOMAS FEDOR, forensic serologist:
Good morning, everyone. My name is Tom Fedor. I work for the Serological Research Institute in Richmond, California. The Serological Research Institute is often abbreviated, for convenience, S-E-R-I. SERI. I'll refer to my laboratory as SERI.
Cigarette Thought To Have Been Smoked By Terry Hobbs:
- Do not exclude the cigarette smoker as the source of a ligature hair on Moore.
- About 0.12% of the population could be the source of the cigarette butt DNA.
- About 1.5% of the population could be the source of the ligature hair]
What I did -- after Bode found very important things, firstly that none of the DNA from any of the crime scene evidence could be associated with Mr. Echols or Mr. Baldwin or Mr. Misskelley -- Was prepare the samples Mr. Horgan indicated he sent to me to the results that the Bode Laboratory actually got from hairs at the crime scene. What I learned from the cigarette butt that was thought to have been smoked by Terry Hobbs -- and I'll say thought to have been because one of them was recovered from the front yard of his residence. Another cigarette was recoved from an ashtray in his house. The DNA that I recovered from those cigarette butts does not exclude the person who smoked them from being the source of a particular hair found at the crime scene. That hair was associated with a ligature that bound the victim Moore.
Approximately 0.12% of the population could also be the source of that cigarette butt DNA, in case there is any doubt about whether it is Hobbs' DNA on that cigarette butt or not. Very few other people could have provided that particular DNA sample. In respect to the hair that was associated with the ligature, approximately 1.5% of the population at large could be the source of that hair. So, what we know now are two things. Terry Hobbs could be the source of that hair on the ligature. None of the defendants could be the source of that hair on the ligature.
In respect to items that Mr. Hogan indicated I tested from David Jacoby, the same sort of result is found. That is, what I have are a cigarette butt thought to have been smoked by him because someone visited his house and collected that cigarette butt. And as Mr. Horgan indicated, Mr. Jacoby generously provided a sample of his cheek swab, that I could test.
Results from SERI Test of Cheek Swabs from David Jacoby and Cigarette Butt Thought to Have Been Smoked by Him:
- DNA test results from these two samples are th same and do not exclude the cigarette smoker as the source of the tree stump hair
- About 3% of the population could be the source of the cigarette butt DNA
- About 7% of the population could be the source of the tree stump hair]
The results from those two samples from Mr. Jacoby were the same as each other, confirming that Jacoby smoked the cigarette butt, if there was any question about that. But more importantly, the DNA results from Mr. Jacoby do not exclude him as the source of a hair found on a tree stump or a tree root at the scene of the crime. About 3% of the population could also be the source of the cigarette butt DNA, in case there was any question as to whether Mr. Jacoby was in fact the smoker of that cigarette. And about 7% of the general population could be responsible for that particular tree stump hair. None of the defendants could have been the source of that hair. None of the victims could have been the source of either hair, because -- as Mr. Horgan mentioned -- Bode has found none of the DNA evidence from the crime scene connects any of the defendants to the scene of the crime. That's my work. Thank you.
In addition to the DNA, there have been other defense discoveries that bear on the question of actual innocence. As some of you know, a critical prosecution theory at the 1994 trials, and Mr. Riordan mentioned this, was that the defendants used a survival knife to inflict most of the injuries on these victims. And that they used the knife before the children died. In late 2005, the defense hired a pediatric pathologist to review the autopsy reports, the photographs and other evidence, to get her opinion about the cause of the injuries. Her name is Janice Ophoven. A few months later we learned Dr. Ophoven's preliminary conclusion and that was that animals had actually caused most of these wounds and that they had happened after the time that the victims died. And of course if that were true, it was a very dramatic development, because it would expose key elements of the prosecution's case as utter nonsense.
So we then consulted with four other renowned experts. They included forensic pathologist Dr. Werner Spitz, who is here today, Michael Baden, Dr. Vincent Di Maio. In addition, forensic odontologists, Richard Souviron from Miami-Dade Medical's Office -- Medical Examiner's Office, here's here today, and Dr. Wood from Canada, Robert Wood.
The consensus reached by all of those experts was again, that most of the injuries to the skin of the victims, including the severe genital injury to Christopher Byers, were not caused by the use of a knife but by animal predation that occurred after death. The experts were also unanimous that none of the children had any injuries consistent with any form of sexual abuse. And as this view was emerging in May of this year, our experts presented those views at a meeting with the prosecution and with Dr. Peretti, who had done the original autopsies. And we all regarded that as a joint search for the truth.
Finally, in September of this year, we retained another forensic pathologist, Dr. Terry Haddix from Stanford University, to check on the validity of the animal predation theory and our other experts' views. We gave her all of the relevant background material. We said nothing to her about animal predation whatsoever. And Dr. Haddix concluded that animal predation had explained many of these injuries, that there was no evidence of any sexual abuse, and again most importantly, that there was no evidence on the childrens' bodies consistent with the use of a serrated knife.
Dr. Spitz and Dr. Souviron are now going to speak for a few minutes about their findings as to the nature and causes of these injuries. One other note before they do begin. We think it's appropriate in this setting to present only very limited photographic views of the injuries in order to illustrate the expert findings. But keep in mind that Dr. Spitz's findings, Dr. Souviron's findings, the finding of every other expert we have, is based on review of hundreds of autopsy and crime scene photographs. And the most relevant of those photographs and other materials are included in the federal filing that we submitted this past Monday. And with that, I will turn it over to Dr. Spitz to be followed then immediately by Dr. Souviron.
DR. WERNER SPITZ, forensic pathologist:
Good morning. I analyzed a lot of pictures. I analyzed a lot of written material. It is my opinion, or following on my opinions, injuries on the body surface of all the three victims, three boys, including the emasculation of Chris Byers, were produced by animals, after death.
None of the injuries were caused during life, and none were caused by a serrated knife, or any knife for that matter. These are not sharp injuries that have characteristics, and those characteristics are not identifiable or synonymous with a knife or any other sharp force type injury.
The type of animals, there are small animals and large animals. The spacing of the wounds that -- two of the pictures I have brought here -- are not consistent with the serrations on the skin. [SLIDE: Photos] When a dog or other carniverous animal attacks a body after death, or before death sometimes, they scrape the body. They move their claws on the body and try to bring the body closer to them and they do this several times. And you have here two of the victims that have the same identical injury and they, the spacing and the configuration of those injuries is not compatible with a serrated knife such as this or, for that matter, any knife.
I might say to you, in a, in a, just a couple of words, when these pictures first came to me, I couldn't understand what this issue was all about because it was so obvious that these are animal product. And I thought by the attorneys, it took maybe seconds to make that observation. Of course, it took a lot longer to read the material and to identify detail, but as far as satanic, cult-type injuries, I fail to see those in any of these victims.
There were obvious claw marks. There were, on all the victims, there was no evidence of sexual abuse, there was no evidence anywhere of anal penetration or mutilation or any way you want to call that. The, there was no other abnormalities on the bodies that would in any way conform with that which was alleged to have occurred.
I asked just a few minutes before this meeting started, I asked Dennis Riordan if he would allow you to view other pictures if you, he said, if you so wish, then he will be glad to show them to you.
Thank you very much.
DR. RICHARD SOUVIRON, forensic odontologist:
Good morning. My name is Richard Souviron. I am the Chief Forensic Dentist for Miami-Dade COunty, Florida, and have been in that capacity since 1967. I have published in Dr. Spitz's book, also in a handbook on bite mark identification, the degradation that occurs to humans by animals. Obviously, in my area, we see quite a bit of degradation from sharks, barracudas, alligators, which are not involved obviously in this case. However, we see degradation from other animals such as dogs, number one cause, deaths that have resulted from dog bites as recently as this year. In Naples, Florida, a jogger was attacked and killed by pit bulls. So I've had some experience in that regard. Additionally, the bite mark evidence that I've dealt with, obviously, particularly in cases like Ted Bundy, was human bites on other humans. In this case, we're dealing with animal bites on humans. My opinion that these bitemarks, and I concur with Dr. Spitz, that you don't have to be a rocket scientist to look at these things and know that these are bite marks and that they occurred post-mortem -- after death.
The area that I'm going to be involved with is to -- I think all of you saw the experiment with the grapefruit, where the knife was hit into the grapefruit and he said, "See these spaces? They match this knife." Which was quote, hidden, in a lake. That's their job, is to be as inflammatory as possible. That knife was hidden in the lake. Well, they found a knife in the lake that's a Rambo knife, that's what I call it. That's the knife [SLIDE: Photo of knife] And you don't have to be a rocket scientist, or a forensic dentist, or anything else to look at that, serrations on the back of that knife, and see these marks on this, these two human beings, and saying that that back end of that knife made these marks. I mean, give me a break. That is the most ridiculous statement that I've ever heard anybody make. And to sell that to a jury is unconscionable, in my opinion. These are scratch marks from claws from some type of an animal, a carnivore, as Dr. Spitz says. The genital injuries, which we cannot show you because they are so graphic and so disgusting that it's not for television.
[SLIDE: Forensic Conclusions
- Injuries on the body surface, including the emasculation, were produced by animals after death
- Wounds attributed to a knife or knives are in fact claw and/or bite marks caused by animals. None were caused by a serrated knife, or any knife.
- Byers' genital injuries were the result of ripping not of cutting with a knife. These injuries are post-mortem animal predation.]
I have a case in which that same type of injury is documented and occurred on an individual, and is reported in a textbook, and animals will go for the genital areas, animals will go for areas where there's blood. So, in this particular case, in my area of expertise, number one, there are no knife wounds on the body. Dr. Spitz didn't say this, but he pointed out yesterday, there are no stab wounds. If somebody's going to use a knife, what do you do with a knife, you run around and scrape with it like this? I mean, come on. You stab with a knife. There are no stab wounds on these bodies, any one of the three, have no stab wounds. So, this knife didn't cause any injuries. No knife caused any injuries. And the injuries to the body were post-mortem, done by animals. Thanks.
With that, let's return to this case. Remember, there were twelve obvious problems, obvious factors, that indicated Jessie Misskelley never saw these crimes occur. But given what we know now, how was it that Jessie Misskelley said anything about the genital mutilation of Chris Byers? Do we have a slide, oh, I'm sorry, why don't we go ahead with this.
[CLIP FROM PL] Scene with Gitchell on the stand. Tape playing.
Ridge: This is Det. Bryn Ridge of the West Memphis Police Department conducting an investigation of the triple homicide case file number 93-05-0666. Currently in the office with Jessie Lloyd Misskelley, Jr. .. What occurred while you were there?
Jessie: When I was there, I saw Damien hit this one, hit this one boy real bad and then, uh, and he started screwing them and stuff. [END OF CLIP]
That is the only statement that Jessie Misskelley volunteered. I saw him hit somebody real bad and start screwing them. We know, we know -- we knew then, and we know even more now, that the screwing thing never happened. That it was a fiction. But, he had made no reference to any knife. And it is Detective Ridge, who at one point earlier in the statement said, "Who had a knife?" And Misskelley then says, "Well, Baldwin did." And then he says, "Well, where was he cut?" Misskelley says, "He's cut on the face." That isn't what they're after. And it is at that point that Ridge says, "You know another boy was cut." Ridge says, "Another boy was cut." And he asks, "Where was he cut?" And Misskelley says, "Uh, at the bottom." Ridge says, "Is that the groin area?" Misskelley says nothing, I don't think he knows what a groin is. But then finally Ridge says, "if he knows where his penis is." And then Misskelley says, "Oh, that's where he was cut at." And it's Detective Gitchell, not Misskelley, who supplied the name of Byers as the boy who had been cut.
[SLIDE: Misskelley Confession
Misskelley made no reference to a knife in his statement prior to being asked by Detective Ridge: "Who had a knife?" Misskelley then responded that Baldwin did. After Misskelley said one boy was cut on the face, Ridge told Misskelley that another boy was cut and asked where. After Misskelley stated "at the bottom," Ridge suggested the "groin area," to which Misskelley made no reply. Finally, Ridge asked Misskelley if he "knows where his penis is," and Misskelley agreed "that's he was cut at." It was Detective Gitchell, not Misskelley, who then supplied the name of Byers as the boy who had been cut.]
In other words, Jessie Misskelley never saw any genital mutilation, because there was no genital mutilation by the perpetrator of these crimes. To the extent that his statement includes a reference to it, it's completely supplied by his interrogators.
The knife in the lake. The knife in the lake. Now let's turn back to the knife in the lake. We had a representative of the State hold up a grapefruit as an analog to human flesh. Our filing in federal court says that, that, that the analog of a grapefruit to human flesh being cut is like comparing cutting chalk to comparing cheese. It's a fraud. It can't be done. He makes the marks himself. And he describes to the jury how they're measured, and he says, "I'm telling you. You can superimpose them, they're exactly there." It's a classic -- there is no testimony in the record to that. It's a classic instance of prosecutorial misconduct, in attempting to inform a jury of facts that are unbased in the evidence. It is a federal Sixth Amendment right violation, it is a critical claim in front of the federal court right now.
In rebuttal argument, Prosecutor Brent Davis says, "Well take this knife" -- and you saw it, there's a sharp edge on the front and the serration is actually on the back side of the knife. And he says, "If you're cutting the penis with the sharp edge, then the serrated edge will be making marks on the thigh of Chris Byers." No foundation for that in the record, it's simply not true. And I assure you,that if you can stomach looking at these autopsy photos, when you see, when you see the thighs of Chris Byers with hundreds of marks on them -- you'd still be there with a knife trying to make that number of marks. You will see, it is truly obvious where this predation came from. A phenomenon -- and this is attested to in the federal writ, that, if you can bear this -- called degloving. There was a big scene in the trial, it's in the DVD about the trial, in which the State's pathologist is asked, "Well, how could you do that surgical operation on the penis? Wouldn't you need a scalpel, wouldn't you have to do it in an operating room, could you do it on a bank, could you do it in the water?" And he says, "I don't know how you could remove the skin that way." It is well established in the medical literature that if something like an animal pulls on the testes, the skin of the penis comes off like a glove, leaving the corpus of the penis on the body, which is exactly what happened in this case.
Go then to another critical piece of evidence against Echols. Bryn Ridge says, "You know, when I talked to Echols three days after the crime, he knew that one of the boys was cut worse than the others." Well, we've supplied the court with any number of newspapers that reported the fact that Byers was cut worse than the others. But the inference that Echols knew this because he was there to see the emasculation of Byers is, as so much in this case, simply false.
And then, and then, and this is truly -- there is a study recently on wrongful convictions, including death convictions, they list the factors that are most common in the last two hundred cases. One is false confessions by teenagers, mentally deficient people, or both -- Jessie Misskelley. Another one is the production of jailhouse informants who say, "Oh! The defendant confessed to me." Now you can have a tape recording of that, it's credible. He says he can confess that the murder weapon is buried under his house, they find it, it's credible. There is no form -- no prosecutor can put an uncorroborated jailhouse informant on the stand, uncorroborated, and know that he is, that that is not perjury. There is no one who can possibly know if it is perjury.
Let's look at Michael Carson.
[CLIP FROM PL] Davis: Did you have an occasion again while you were in the detention facility to ask him, was he involved in the murder of the three eight-year-olds?
Carson: Yes. I think it was like the next day. I believe it was the next day.
Davis: And, can you tell us what the scenar -- what was going on, what was happening at the time that occurred?
Carson: Well me and Jason Baldwin were scraping up the cards, going ourselves for lunch, I said, "Just between me and you, I won't say a word, did you do it?" He said, "Yes" and he went into detail about it.
Davis: You say he went in more detail. What did he tell you?
Carson: He told me how he dismembered the kid, or I don't know exactly how many kids, he just said he dismembered 'em. He sucked the blood from the penis and the scrotum, and put the balls in his mouth. [END OF CLIP]
So, this supposedly happened within twenty-four hours of Carson -- who's in jail for about three burglaries, including at sixteen years old, breaking into a house to steal guns. Comes in and says Jason Baldwin, who has made a statement to no one, within twenty-four hours confessed that to him. Did he, does Carson go to the police, does he mention it to the jailers, no. Eight, nine months later when Jessie Misskelley is finally on trial, Carson comes forward for the first time to say that Jessie, uh, Jason Baldwin told him that he put Chris Byers' balls in his mouth. You have just seen, you have just seen someone lie under oath to send a man to the death chamber. Lie under oath. And I won't go into detail here, but it won't be that long before the story of Michael Carson and his years since then are told by attorneys for Jason Baldwin. And when that story is told, if there were ever any doubt, you will see that this is the classic form of jailhouse uncorroborated perjury. And, of course, the forensics make that clear. That was an animal that caused that wound to Chris Byers.
However, however, it was that testimony that led Dale Griffis to say, "Well, this is a satanic killing. Damien Echols was involved in it, he's a satanist and I'll tell you that it's a satanic killing." On what basis does Mister, does "Doctor" Griffis say this. First, let's deal with "Doctor" Griffis. Do we have a graphic...
[CLIP FROM PL]
Ford: This is a mail order college, isn't it? What classes did you take between 1980 and 1982 to obtain your Master's degree?
Griffis: (no response)
Ford: What classes?
Griffis: (no response at first) I testified --
Ford: I'm asking what classes, what classes did you take?
Griffis: I told you, I answered that before, none.
Ford: You did not take any classes. Between 1982 and 1984, when you became a Ph.D., what classes did you take?
Ford: None. Okay. [END OF CLIP]
[SLIDE: Prosecution Expert: Dale Griffis
- Claimed Wounds on Left Side of Face Indicated Satanic Murder
- Satanic Opinion Relies on Carson Perjury
- Fraudulent Credentials]
Doctor, Doctor Griffis attended Columbia Pacific University by mail, he said. A Ph.D., a Ph.D. in cult studies from Columbia Pacific University, which was shut down by the State of California in 1997 as a fraudulent diploma mill. Dr. Griffis says that he knows that this is a satanic crime because there is a wound on the left side of Steve Branch, and left side facial wounds are satanic, as opposed to right side facial wounds, which I assume are Christian. [laughter] And he says the other reason that he knows, oh well he says that it's a satanic killing because it happened, it happened in between two -- May fifth is in between May first, which is a satanic holiday, in the Catholic school I was raised in it was the date of the beginning of Month of Our Mary, and Walpurgisnacht and ?vane. I called Ken Lanning, who is the FBI -- and John Douglas will talk about this more -- the FBI expert on satanic activities then, because they were coming in from all around the country. He said they all had calendars of the satanic holidays. He said it was over for him when he saw a calendar of 120 satanic holidays and murders, they said, were committed within two days of each of them, okay, multiply 120 by two or three.
He relies on Carson. Okay, Carson, he's asked, assume that Jason Baldwin put the balls of Chris Byers in his mouth, is this a satanic killing. Yes. As Ken Lanning said, "If they had killed these kids with a whoopee cushion, Dale Griffis would have come in to testify that a whoopee cushion is a satanic instrument of murder." Here is his new book (holds up a copy of "Secret Weapons"). Here is his new book, 2001, in which he details how he discovered that two thirteen-year-old girls were taken over by the CIA, given electroshock treatment, and at the age of fourteen became military pilots and committed assassinations for the CIA and then were brainwashed to forget it. And it was only with his assistance that he was able to recover the memories of this abuse of these thirteen-year-old girls by the CIA.
This is a man who stands on the same level as those who claim that the World Trade Center bombing was a result of explosives in the basement. And that all of the Jews in the building were given notice so they could out before the bombing was committed. There is probably no greater disgrace in the history of death penalty litigation in this country, that Dale Griffis was placed on the stand in a death penalty case to testify and offer testimony as the basis for killing Damien Echols. And with that, I would like to turn to someone who actually does know something about analyzing crime, John Douglas, twenty-five years with the FBI Criminal Analysis Unit.
JOHN DOUGLAS, profiler:
Thank you. Good morning.
We in fact were contacted in 1993. Two of my colleagues were contacted. We primarily provided advice relative to neighborhood investigations, what types of questions they should be asking when they went around the neighborhood knocking on doors. We then were contacted, later during the trial, and Ken Lanning was contacted by one of the prosecutors about utilizing satanism as a defense. And Lanning, who's a good friend of mine and colleague, laughed at him and said, "You better not use it. You better not use satanism as a defense, because the defense team is going to chew you up and spit you out. Just go with your forensic evidence, just have your, lead with your forensic evidence for the solution of the crime." Well, as you know, there were no forensic evidence to go on, so they fell back on satanism as a motive in this case.
The early 1970s and '80s, we began to see at the FBI Academy, police officers coming in from around the world, the media was playing up that there were 50,000 children abductions in the United States. One out of three children were being sexually assaulted. As a result of this type of information, I went to the National Institute of Justice and I received two grants to conduct research. First research was sexual homicide patterns and motives, the second research was to conduct a violent crime study, a Crime Classification Manual (holds up copy of book), which we're now in the second edition. The first edition, we addressed every possible homicide we considered using satanism as a possible, you know, as a possible category. But then we decided to go out and conduct interviews -- like David Berkowitz, the Son of Sam, and Richard Ramirez, the Nightstalker -- which we did. And hundreds of other cases. And the cops were kind of throwing around words like ritual in their cases, and using it interchangably with satanic, with satanic crimes. We did a close evaluation, we looked at these cases. Ken Lanning and I, and my other colleagues, we didn't see one. We didn't see one case. And that, the first publication was in 1992. This was just published, the second edition was just published last year, in September of 2006.
And those 50,000 kids who were being abducted in the United States, we worked through the Office of Juvenile Justice and Delinquency Protection, there's about 100 every year that are abducted. True abductions of children, stranger types of homicides, that's all we see. All the other abductions are pretty much parental types of abductions and we usually recover those children. So being tasked with this, I was interested, was this going to be the first case. I knew a little bit about it, not much about it. I didn't want to interview the subjects in the case that were convicted. I wanted to rely just on the facts, the information. I did get to interview some of the now suspects in this particular case.
And the Crime Classification Manual is broken down into: Group Cause, meaning is there multiple offenders involved in this case; is it a Sexual Homicide, is that the motive; is it a Criminal Enterprise, meaning that is there an angle where there's a financial connection to the subject and the children; and the fourth one is whether or not it's a Personal Cause Homicide. I looked at all the different categories, I looked and reviewed the information relative to the case and pretty clearly, it was pretty easy to me, to define this case as a Personal Cause Homicide. This is not a homicide, either, perpetrated by a stranger. The person responsible for this crime knew these victims, and knew these victims relatively well. The question I'd ask myself is, if the motivation is murder, if the initial intent is murder, go ahead and kill. Why did the subject decide to tie up the victims after stripping them down naked. I believe the initial intent, in my analysis, was not to kill but was to taunt and to punish. Punish these individuals. I saw criminal sophistication at the crime scene. The tying of the wrists to the ankles. I searched cases all over the world, I couldn't come up with a similiar types of cases.
What I saw the offender, we call him the unsub, decide to get into the water to secrete the clothing by pushing down with the sticks in the clothing, hiding the clothing, along with the three victims. Using that kind of concerted effort, we're not looking at teenagers committing crimes like this. You're looking at somebody who's relatively criminally sophisticated. We're looking at somebody who's been violent in the past, who's violent now, at the time this crime was perpetrated, and would also be violent in the future. So I did this detailed analysis, went to the Inquisitor investigative, private investigators in Memphis. And what they said was is Douglas is describing some people here that we ought to take a look at.
And lo and behold, David Jacoby was never interviewed by law enforcement. He waited for the cops to come knocking on his door. Terry Hobbs was never interviewed by the police, until we conducted interviews of Terry Hobbs. Then, by, I interviewed him two times. I had one interview where he was very, very credible because I didn't have any background information on him. But then five days later, when we get this more detailed information, specific information, I talked to a total liar on a Monday night. He's a total liar, the guy I'm talking to now is being confronted with his lies, and it's a totally different type of bird. The person responsible for this crime can look at you right in the eye, can look at a camera and say "I didn't do it" because he's a psychopathic personality. There is no remorse. Anyone who perpetrates a crime like this and leaves the victims like this, in this condition, is only concerned about himself. You can put him on the polygraph, he'll pass the polygraph, particularly fourteen years later.
So looking at this case, to me, besides being a travesty of justice, this is not a satanic murder. There's no ritual. There's no ritualistic crime going on here. I talked to Mark Byers the other night, we talked with the families here, I told all the families, I said, "Mark Byers' son was not targeted." Everyone thought he was targeted. In fact, even Mark Byers would be the person responsible for the triple homicide. The child who was targeted, was targeted by a predatory animal. That was exposed the greatest, and where the animal could get to that child. It's equal. There was no preferential victim at all. All three children would be attacked by predatory animals. Yes, we do have a killer. And again, the killer went through this concerted effort because he lives nearby. He tried to delay his identification because he lived in the neighborhood. And he did his best to delay that by hiding the bicycles, secreting the clothing, and also hiding the victims in the bayou. So later on if you have any more specific questions, I'll be glad to address them. Thank you.
We're going to bring the experts here in a panel in just a, two minutes. But let me conclude with a couple of other items. I mentioned before, and it was one of the things that John Fogleman mentioned in talking to the families before the trial, that the Hollingsworth Clan saw, said they saw Damien Echols with Domini Teer, who they were related to, out on the road.
[SLIDE: Hollingsworth Clan
- Prosecution Said ID Mistaken
- Anthony - Ten Year Felony Probation for Sexual Abuse of Minor Sister
- Narlene - Pending Case for May 5th Accident]
And that testimony was offered at trial. A problem with that is that the prosecution's theory that these two people couldn't identify the person they were related to. They were wrong when they said it was Domini Teer. And they were, because the police verified that she was home at the time. They said you should believe they correctly identified Echols, even though they couldn't identify their own relative. What didn't come out at trial is that both Narlene and Anthony, Anthony Hollingsworth, had a very strong motive to be as friendly and cooperative with the prosecution as they could. Anthony, because in a case involving -- prosecuted by John Fogleman the year before, 1991 -- he had received a ten year felony probation for the sexual abuse of his eight-year-old sister. Narlene had actually gotten into, and she said this at trial, that she had gotten in a car accident on May fifth, the day the boys disappeared. What she didn't say was it resulted in a pending vehicular case against her, which was resolved favorably after she came forward and said that she had seen Damien Echols and Domini Teer out on the road.
I mention also that at the time, the police interviewed Damien Echols and his mother. They said he was on the phone with Domini Teer. They interviewed Domini Teer, she confirmed that was true. They interviewed Jennifer Bearden, who confirmed that was true. Jennifer Bearden has filed an affidavit in the federal case, now ten years later saying that she's never forgotten this case. She's now twenty-three, she's a Criminology major, she would have no reason in the world to continue to offer support to someone who was involved in these crimes. She said, "At 9:30 that night, Damien Echols was on the phone with me."
So let me just conclude with -- go back to our actual innocence test. The federal court will have to decide whether, whether today, tried today with this information, Damien Echols would be acquitted. Well let's look at the conclusion of the argument that convicted him back in 1993. (reads from slide) They, the defense, makes a big deal, there's no evidence at the scene. But think about it a minute. It's not that there's no evidence connecting their client, because what evidence was found out there connects to one of these two, for the most part.
[SLIDE: Closing Statement
They make a big deal about there's no evidence at the scene. But think about it a minute. It's not that there's no evidence connection their client because what evidence was found out there connects to one of these two, for the most part. What they want you to do is say there's no evidence. But there's no evidence out there that points to anybody else...if someone else had committed the crime then...you'd see evidence that didn't connect. And you don't have that.]
What they want you to do is say there's no evidence. But there's no evidence out there that points to anybody else. If someone else had committed the crime then you'd see evidence that didn't connect. And you don't have that. (finishes reading)
There is no evidence at the crime that connects to them. There is evidence at the crime scene that points in another direction. If this case were tried today, Damien Echols would be acquitted. He is actually innocent, and he has a meritorious claim for all of the reasons we have stated that his first trial was unfair. We're going to ask our experts to come up and take seats here. In the interest of time, at least initially, we're going to limit questions to the members of the media. We ask you to just state your name and identify your media ...
Question: In your investigation, have you found a motive for why Terry Hobbs might have committed the crime? (???)
John Douglas: We have specific details, yes, but (screeching microphones)… We did find specific details – I don’t know if this is the forum that we should be presenting some of the… What I look for in a case is precipitating factors and events leading up to the crime. The person responsible for the crime on May 5th, 1993 just didn’t wake up one morning and decide today I’m going to go out and kill. So what you do is you look at suspects, and if you do background checks on any people you look for a series of events leading up – precipitating factors, interpersonal relationships, failings in a marriage, financial problems. You’ll see this with a lot of different types of violent offenders. And you look at that. So without being specific here, I did see these factors very obvious to me. From the first interview that I did, because I didn’t have the background information, I was pretty much blindsided, I should have had more information going in, but I just didn’t have the opportunity. But five days later when it came up to all this other information. Had the police back in 1993 – had they done a background check it would have come to me or one of my colleagues and say ok what do you think of this guy? I would say put him on the front burner – put him on the front burner. Let’s see if he has the motive. Let’s see if he has the means and the opportunity. The opportunity is critical in a case like this cause what you need to have for this – you don’t need a lot of time, but is there a window of opportunity – about an hour, an hour and a half which we saw with him – he has an hour or an hour and a half window of opportunity. That’s plenty of time to perpetrate a crime. Then we saw other statements, conflicts in statements that he gave to the police over the years and to us. So you put him on the front burner; now it’s up to the police or whomever to come up with evidence to link him to the crime. I’m just really directing them to a suspect, and he looked good.
Dennis Riordan: Let me say this… Certainly as a defense attorney… One of the horrors of this case is that within hours of the Misskelley statement, as flawed as it was, the State had been told that the crime had been solved beyond all question. It was a rush to judgment, the worst kind of rush to judgment. No one is saying that we have developed in this case evidence that establishes the guilt much less the guilt beyond reasonable doubt of anyone else. What we are saying is that there’s no credible evidence that links any of these defendants to the crime. There is, unlike the statement in closing argument, strong evidence which at least points strongly away. And that is the question that we’ll be addressing in federal court.
Question: Mr. Riordan, Mara Leveritt, Arkansas Times. You mentioned that the forensic evidence that you presented to…?… our State Crime Lab…? When you had discussions with them have they agreed, have they (corroborated/cooperated?) or have you reached a certain… ? …
Dennis Riordan: We met at the Arkansas Crime Lab – I think that there was a good deal of coverage of the meeting in May with the assumption that it involved DNA, but it was in the fact was forensic pathologist Michael Baden who is one of our experts, Richard Souiviron was there, Dr. Wood from Toronto, Vincent DeMaio one of the country’s leading forensic pathologists. We met with Brent Davis; we met with Dr. Peretti; we met with members of the crime lab. We presented information to them. There was a discussion about them making available all cases for the last number of years that might involve bodies in water to see if there were comparisons and so forth. We have not heard from them, as our writ details. In early this month we sent them a renewed letter with specific interrogatory saying, Dr. Peretti – do you agree or disagree with the finding of animal predation and on what basis? As of yet there has not been a response to that letter.
Question: ? from KATV here in Little Rock. My question is if you’re ruling out satanic cult as the motive, what would be your speculation… (?)
Dennis Riordan: Well, I think I will refer to John that we will – he has referred to information that has been looked at. The exposition of a motive certainly isn’t part of the writ that we have filed. We’ve limited it to the hard evidence. All we have said, by the forensic staff for instance, that there is a hair that is not inconsistent with Terry Hobbs; it’s in a ligature. We’ve said and as David Jacoby was completely forthcoming in giving us a buccal swab – hardly the action of someone with a guilty conscience. But it is also true, and the DNA experts will tell you this, that there are many ways that a hair could get to a particular location and the fact that Mr. Hobbs was in the presence of Mr. Jacoby playing the guitar the hour before the boys disappeared can provide an explanation of transference there. But again what we are interested in doing is establishing the actual innocence in the legal sense of Damien Echols. And I have said this before, I’ve said it from my entry into the case – the worst thing that we can do is either – because at that time the focus was in a different direction – is get a tunnel vision about that or suggest, or suggest – I think the greatest obstacle to our winning this case is people saying, But if we don’t stick with these three guys, who do we have? That would mean that someone else is out there. And we don’t want to lose them without replacing them with somebody, and we have to say if we can demonstrate the actual innocence of Damien Echols, it is not our legal burden to solve this crime. And we don’t have the resources to do it.
Question: ??… Why would you choose to lay out your case in a format like this? (microphone cuts off)
Dennis Riordan: Well let me be clear on two things. Everything that you have heard today we laid out before we ever went to court in meetings with the Prosecutor. And let me make it clear that I think Brent Davis, certainly since my entry into this case, has been – that his attitude has been we do not oppose testing, we agree with testing, in this case we want to make sure we have the right person. And in that spirit, each time that we have come up with something that we think is relevant, we have met with him and presented it to him – both in the forensics and in the DNA. We deliberately have made no public statement beyond court recordings until the time that this writ was filed. Quite frankly the reason we’re doing it in this forum is that, when we filed that writ we got perhaps 300 requests, as we knew we would, from media outlets around the world. And the reason we chose to do it in this form as opposed to quick, on the sidewalk interviews is that we thought we owed it to people to do it in a serious presentation with the substance of this evidence presented as opposed to simply making conclusionary statements without giving people a chance to evaluate what it is that we’re talking about.
Question: (mic off)… to taunt and/or to punish. Could you elaborate a little bit more on that – the intent?
John Douglas: If the motivation was to kill then do it – go ahead and do it. But to strip the children down naked for a period of time like this and then at some point it is my opinion that the subject begins to lose control. It could very well be comments made by one of the children. Again I stated earlier I do not believe this is a stranger type of a murder. And that the subject then at that point went beyond just the taunting, the teaching these kids a lesson – he had to kill them. He had to destroy the evidence. [End of part 1] And then the way, as I stated earlier, the way they were hidden, the way the clothing was hidden, the bicycles thrown into the bayou. I believe the subject came from that particular neighborhood and that’s where if this was back in 1993 I’d be steering them in that direction. And of course parents are always considered suspects – first suspects you look at in cases like these.
Question: Mr. Douglas, have you ever seen a case similar to this?
John Douglas: No, I’ve never seen a case – I’ve done thousand of cases and my colleague when we were with the bureau we’d do a thousand a year. I didn’t see any case like it and particularly with teenagers. It just showed a higher level of criminal sophistication for teenagers to do something like that. Certainly we’ve had teenagers involved in killings, a lot of school shootings, but never like this at all. And on a side note too – when I’ve seen cases, when I’ve dealt with multiple subjects and you’re offering multiple subjects in cases deals to testify against somebody else and then they’re not even going to do it, I thought that was quite surprising too relative to their innocence. They wouldn’t even testify against their fellow colleagues – they took the time. Which was really unusual.
Question: What likelihood of hairs being transferred from a body – maybe I go into the woods and I have a hair on my body and it’s transferred to a ligature like that? What’s the possibility of that? That’s what Mr. Hobbs says to us possibly happened and the reason that his hair appeared at the crime scene.
Thomas Fedor: It’s possible that someone other than delivered his hair, if it is his hair, to the scene. In the same way that it must be possible that Mr. Hobbs, if it was him, transferred David Jacoby’s hair to the scene. Hairs that are acquired from somebody else – that we don’t grow ourselves – simply adhere by static electricity to our clothing and they fall off from time to time. Things can speed up the transfer of hairs; things can slow down the transfer of hairs. Activity speeds it up; inactivity slows it down. That sort of thing.
Question: So would it be unusual (?) a hair in that…
Thomas Fedor: Well, it’s possible that his stepson legitimately carried Terry Hobbs’ hair to that scene – that’s certainly possible. It need not require Mr. Hobbs to be present. Although on the other hand it is possible that Mr. Hobbs and not his stepson brought that hair to the scene. There really isn’t any way to be sure.
Dennis Riordan: Again in terms of our case, anyone who posits a theory – innocent ways that innocent people could have left evidence at the crime scene – has to deal with the fact that if that’s the case, if things are left that easily and are there, how could three unsophisticated teenagers brutally murder three boys and not leave evidence? And remember we’re talking a foreign allele – which is a genetic element – on the penis of Steven Branch.
Question: ?… I understand that in 1993 the medical examiner said Byers bled to death – how do you explain that? Are you saying the medical examiner was wrong?
Werner Spitz: Yes, I think the medical examiner was wrong. I think they all drowned. The injury in the groin area was almost bloodless or was bloodless for all intents and purposes. And showed ripping, chewing by a predator animal, a carnivorous animal, a large animal with evidence that this did not occur during the life of the boy. So there could not have been bleeding from that source.
Question: …?… Just curious why it’s taken fifteen years to get to the point where you guys are at right now and why it took so long to draw these conclusions as to – and to be able to file …?… in a federal court. Why did it take fifteen years to get to this point?
Dennis Riordan: The simplest answer to that is that there was very, very little interest in providing to three indigent kids who lived in trailer parks the resources to defend themselves in this case. It is alleged in our petition in federal court, for instance, that trial counsel was ineffective in the constitutional sense, enough to overturn a conviction, for not retaining a pathologist – no pathologist. The police arrived at that scene, declared this to be a genital mutilation – they’re not pathologists. And there was going to be no questioning of that from that point on by the state’s pathologist and there was no defense pathologist who had been retained to combat these results. Now DNA, of course the reason that we can do the DNA is because it did not exist at the time and Arkansas has authorized this because the technology has come into existence since then. But this is a case in which the defense investigator was eventually paid $1 an hour by the state of Arkansas for his efforts on behalf of Damien Echols. This is what happens when you don’t need pathologists because everybody knows, as Gary Gitchell did, exactly what happens in this crime from day one.
Question: Do you believe the State has been working against what the Defense has been trying to do by exonerating these three men of these charges. Do you feel like as you try to proceed in the court case that they’ve been working against you as much as you think they did during the trial proceedings?
Dennis Riordan: Well, Don and I came into this in 2004 and the reason for that was the state proceedings ended then and people associated with Damien Echols’ defense said we need someone who knows the ins and outs of federal habeas corpus, which is an incredibly arcane area. When we talked to Brent Davis with members of the attorney general’s office on Monday, Brent of course is very, very familiar with the evidence but when you get into talking about AEDPA and time limits and successive petitions and procedural bars very few criminal lawyers deal with that. So it’s at that point that we came into it and all I can say is that since our entry into this case Brent Davis has maintained and continues to maintain – perhaps someday we’ll persuade him – that these convictions are valid, but he certainly has engaged in a cooperative effort around things like DNA testing, certainly has made available the state’s forensic pathologist for the meetings we’ve talked about. So we absolutely feel that he certainly has his viewpoint on it but has proceeded in a completely professional way in terms of the proceedings that we’re now involved in in State and Federal Court.
Question: Can you tell me about the Defense Fund? (or something to that effect ?)
Dennis Riordan: Well, I’ll tell you what I know about that. What I know about that is that Lorri Davis, the wife of Damien Echols contacted us in 2003 and said, you know, we’ve been told you guys know federal habeas corpus, will you get involved in this case? And we said we’re lawyers in San Francisco, it requires – you’re unhappy with the level investigation and factual investigation, so you need that on the ground in Arkansas. How can we possibly do this? And she has said work on the case and I will find a way to raise funds. And all we know is that every now and then we contact her and say, Lorri we haven’t heard from you in awhile, and she says I’ll get to work on this. I think you’re aware that there’s an enormous amount of interest in this on the Internet and so forth – I think she makes pleas there. I don’t think it’s a secret that when we got into the case… well the DNA testing… The reason we got the DNA testing here – there’s a statutory right to it, but generally the state will often fight a defendant because it costs a lot of money. And the agreement was reached - the defense has funded all of this. The DNA testing has cost the state nothing which it’s usually the state that provides this to indigent defendants. Now I don’t think it’s a secret that people like Eddie Vedder have done concerts and raised a lot of money to pay for that DNA testing and [End of part 2] the Bode lab doesn’t know the words “pro bono” – it’s very expensive stuff. So all I know is we’ve been able to keep going because Lorri Davis has continually reached out to people like that, and people like Eddie Vedder to raise money. You know, we hired these experts. These experts testify for the Prosecution; they testify for the Defense. If they did this pro-bono they’d be accused of having favoritism. All we can say is they quoted us the same rate that they would quote a prosecutor. And Lorri and others have raised the money to bring them into the case.
Question: The attorney general’s office has made a comment in the past couple of days that this could take anywhere from months to several years just to come to some kind of resolution. Are you guys ready to deal with that volume (?) and what kind of battle do you have ahead of you?
Dennis Riordan: The way that this works is that we’re now in – this is a little complicated. There is a DNA action going on in state court – the DNA statute that was passed to allow DNA testing and that is pending before Judge Burnett. What we did, and the federal court was willing to say because that’s pending you can keep going there until it’s over and then come over to federal court. We believed that we had sufficient evidence of actual innocence that we wanted to get going on the federal side because that’s where most of our claims are. They’ve been rejected by the state courts; they’re pending in front of the federal judge. So we are dealing with a state DNA action, we are dealing with a federal action. The judge in that case will order the State to respond. Generally when you get a 200-page petition with expert reports like this you’re going to get at least several months to respond to it and what you’re then looking at is the possibility that in district court in Little Rock – and of course it’s the Judge who decides this and not any of the lawyers – he will come and say I think we’ve got factual issues about DNA that we need to resolve, get your experts in front of me. I think this question of animal predation is key to whether a fair trial was received or whether there is actual innocence. Let’s get these experts in front of me. Let’s put Dr. Peretti on the stand under cross-examination. Let me hear from Dr. Spitz and Dr. Souviron, and I want to see their credentials; I want to see their credibility; I want to see how convincing their testimony is. And very possible he’s going to say you’ve made allegations about these charts, what went on in the jury room. This is very rare. But it is allowed both under State and Federal rules. If the allegation is that that jury room was contaminated by newspaper reports, by information that came in from the window as opposed to from the witness stand, he can call those jurors in and say I want to know what went on in the jury room. And so we’re talking about conceivably a possible - and he could say I want to hear one of those issues and not the other two. But you’re talking about a potentially complex evidentiary hearing which is almost like a trial except a different set of players testifying and offering evidence in federal court. So what is fair about the attorney general’s report is that if he said I’ve seen ten death cases and they take several years to resolve in federal court, he’d be accurate. We certainly want to press forward. We don’t think this is the end of it. We have done DNA testing and we mentioned the foreign allele on Steve Branch’s penis. It’s one allele – you can exclude people from being the contributor, and all the defendants have been excluded by Bode. But on one allele you can’t say who it is. But that’s what they call STR testing, and Tom can tell you it’s something Tandem, etc. But there’s now a form of mini-STR testing that’s been used in the World Trade Center and they have from incredibly small - and Tom can address this – amounts of DNA material been able to get fuller profiles then anyone ever imagined before was possible. And maybe if you just want to take a second to comment…
Thomas Fedor: If I may. DNA technology is about to change again quite significantly in that techniques have been developed to work with samples that are even smaller and more degraded then the samples that we can work on today successfully. And given the small amounts of DNA that could not have come from the victims that was recovered from the scene, this new technology I think holds up promise of developing further characteristics of this DNA that clearly doesn’t belong there. With the hope that perhaps we can develop more than one allele, more than several alleles and perhaps get enough information with this new technology on these very, very small samples of DNA to actually name an individual as the source. At the moment that is still a promise more than a reality. My own laboratory has not yet instituted or implemented this new mini-filer technology it’s called because it is more miniaturized than the current technology. And my understanding is that the Bode DNA laboratory is getting ready to implement this new technology, so I think we’re going to see some startling developments…
Question: …?… Bode …?
Thomas Fedor: Yes, actually because in my own view I think that that particular substance, whatever it is, has much greater potential for identifying a person than the hairs that I’ve been looking at so far.
Donald Horgan: But there are additional materials at Bode that cannot be analyzed with their present testing protocol, but that would be subject to further analysis with this type…
Donald Horgan: Well for instance the ligatures themselves have been looked at and, unfortunately, it looks like there’s a lot of mixed profiles on the ligatures, so it’s not necessarily clear that if you were to do a more sophisticated testing approach on those it would ever disclose anything. But a number of other items that are listed on the Bode report – and that’s included in the federal filing you can look at – and in the STR section of that report we would likely go back to Bode and ask if there’s anything more to be drawn from many of those other materials.
Dennis Riordan: Let me clarify one thing which is that the hairs that Tom referred to and the statistics that he used are probabilities – they can sometimes be startling probabilities – but they can only be probabilities because it’s the maternal DNA that they call mitochondrial DNA it’s common to a maternal line and therefore people in that maternal line will share it. You can never say it is a single individual. The STR technique that we’ve referred to here – when I referred to an allele, a single allele was under the STR method, but the STR method if you get sufficient information can point to one individual in the world or one in a billion. So the development of – I think it’s fair to say Tom that no matter how sophisticated mitochondrial techniques get, they may get better in terms of the probabilities you’ll never be able to list an individual. But the STR and greater accuracy there could conceivably take a very small amount of material and allow you to pinpoint an individual.
Thomas Fedor: Dennis has obviously been doing his homework because he’s exactly right. The particular genetics of the DNA that’s contained in hairs like that was recovered from the ligature are such that the DNA testing of those hairs does not distinguish between, for example, Terry Hobbs and all of Terry Hobbs’ siblings, and Terry Hobbs’ mother and all of her siblings, and all of Terry Hobbs’ children and their cousins, etc. It’s inherited through the maternal line strictly and that means that any one member of that maternal line could also be the source of say the ligature hairs as say Mr. Hobbs is. So there’s no way from that particular evidence to ever individualize for example whether it was Mr. Hobbs’ or Mr. Hobbs’ brother if he has one, for example.
Question: You’re saying that (…?…) becomes available, more testing could be done in this case. If this writ fails it’s not over yet (?) and is there a point where you say we’ve done all we can do here or how many years are…?
Dennis Riordan: Well, the best we can answer that question in one sense – Don and I are going to be on this case until Damien Echols is executed, God forbid, or Damien Echols walks out of prison. [End of part 3] You are right that under procedural rules were this writ in front of the district court to fail it gets increasingly difficult to mount another legal challenge to it, but on the other hand if we had a mini-STR finding that allows us to pinpoint a particular individual who contributed that allele then you may be getting up to the kind of evidence that … The whole actual innocence thing that I talked about is a way of overcoming the procedural of objection (?) – it’s too late – like the question there it’s now thirteen years down the line – it’s too late now to find out we’re wrong about Damien Echols. Actual innocence gets you past that and the more actual innocence that you can prove, then the more willing a court is to forgive things like procedural delays.
Question: I spoke with Terry Hobbs’ attorney and he implied that this filing, this timing this forum is a publicity stunt to maybe get press for a movie in the works? What’s your reaction to that?
Dennis Riordan: Damien Echols is sentenced to death. If Don and I didn’t exist there would absolutely be an effort by someone in capital cases to represent him in that context. Actually I’ll give you a better answer, ok. There has been an attempt to make a movie about this case, and we have written the people who are involved in it and said we’ll kill you – with evidence - with evidence. Let me clarify what I meant to say. We will kill your project and you are foolish to attempt this because you have no idea what’s going on in this case and thus, to this stage, we’ve been successful. And the last thing we want in this case is a movie. And I can assure you – I will be glad to assure you – that if we can win this case we will never be involved in a movie. Our concern is here – we’re death penalty lawyers, we’ve litigated serious issues like this in many cases and I have never in a death penalty case been able to mount anything like the showing of actual innocence that we think has been shown and we believe will continue to grow in this writ(?).
Question: What does your client Mr. Echols, what does he think about (…?…)?
Dennis Riordan: Don and I met with him on Monday. He knew that we were very, very close to filing this and he said I haven’t been able to sleep all week and I said, I assure you, neither Don nor I have slept all week either. We were up to 3:30 on Sunday morning preparing the final arguments for the filing on Monday. You know he’s – when I first met Damien and all of this DNA stuff was under way, and I find out I’m representing a client who is immersed in DNA testing, which for all I know – he wants me to come in and say he’s innocent and for all I know, after I say that, we’re going to get a DNA test that points right at him. And I tried to feel him out about that. And Damien Echols has from day one said forensics, DNA, everything – don’t avoid anything, don’t worry about turning over a rock. I want it. I want it. I want it. And has never ever conveyed any uncertainty. There are DNA cases and we’ve had them where people talk about they want DNA and they want DNA and they want DNA and then you have a private meeting with your client and you know you say this stuff actually works. It really works. And you’ve been telling your mother and your sister that you’re innocent and they believe it and they support you. Do you really want this DNA test? And they say no, no – I’d rather just go on maintaining my innocence with my mother and my sister. He has been unequivocal that the more investigation that is done the more – the absence of evidence against him will become apparent.
Donald Horgan: And he does believe that now things are moving forward after so many delays.
Question: How many times have you prevailed in cases with like evidence for someone on death row?
Dennis Riordan: I alluded to the fact before that federal courts usual talk about actual innocence – I mean not about actual innocence, but about unfair trials. And I have prevailed in a fair number of cases – both death cases and murder cases which are non-death cases over a 30-year career. I have never made an actual innocence claim, because an actual innocence claim is relatively new. It was in 2006 that the United States Supreme Court decided a case called House vs. Bell and said that Mr. House had come up with enough new evidence to constitute actual innocence and, therefore, he could bring all of his claims even thought the state was saying, no, no there’s problems, they’re untimely and so on. I will tell you this – we argued this in the writ – this showing is stronger – is considerable stronger than the showing, we believe, in House vs. Bell that was declared by the United States Supreme Court by a 5-4 decision to be sufficient to constitute actual innocence.
Question:… ?… habeas corpus?
Dennis Riordan: … certain claims that we’ve made that the state will have to admit are valid in federal court. There are other claims, for instance the unfair jury – and they will say no, no, no it came too late and they didn’t get a hold of that in 2004 so you the federal court can’t hear it. But if the court finds actual innocence and says, no if I find actual innocence I can hear anything. I can hear anything. And that’s the significance of the actual innocence claim. In death penalty litigation, removing all procedural defaults, eliminating all state arguments that it took too long is an enormous, enormous step and an enormous advantage for a litigate.
Question: …? Over the course of time it seems like …?… family members have popped up as suspects in this case, so I have to ask if you guys are simply trying to prove that Damien and these other boys did not do this why is there so much focus on Terry Hobbs. Is there really significant enough DNA evidence that can point to Terry Hobbs, especially when the fact that the hair in the shoe string could have come from inside the house. I’m just stressing some of the things that I’ve heard from folks in the region who are familiar with the story. Is this evidence enough to say Terry Hobbs could have really done this?
Thomas Fedor: The two hairs that I know about – the one that could have in fact come from Mr. Hobbs and the one that could have in fact come from David Jacoby – constitute what I call weak evidence. Because there are other people it could have come from and there isn’t any way to really prove our selection of possible sources for that hair. I don’t think – my personal opinion – I don’t think that that hair evidence would be enough to convict Mr. Hobbs or Mr. Jacoby or anyone that would be in a similar situation because it’s simply not strong enough. The percentages I gave of people who could be the source of those hairs are 1.5% of the population in the respect to one hair and 7% in respect to the other hair. That’s not particularly strong evidence and especially in the context of what most people are accustomed to with DNA testing. These odds are considerably weaker than what we would call an STR DNA test that virtually provides a (? source?).
Dennis Riordan: I agree with Tom – and here’s the significance of that. If Terry Hobbs or someone was tried on this evidence, a lawyer would be up there saying how many people are there in West Memphis or in Memphis? 1.5% of them that’s thousands of people - that’s a reasonable doubt. But the significance of this for, because the judge is going to say would Damien Echols be acquitted? Would a reasonable juror find Damien Echols guilty beyond a reasonable doubt? A defense lawyer gets up there and says there is not one piece of evidence that points to Echols in nearly as strong a way as the others that might point to Hobbs. So that is the – from that point of view, from that point of view [End of part 4], if the Prosecution’s saying that we found that fiber at the crime scene that could have come from a shirt that Echols’ little brother had or it could have come from any other shirt in Wal-Mart. And you compare that on the one hand to a scientific percentage that limits down to a relatively small number of people, one of whom had the opportunity as John said and was in the area – without indicting Terry Hobbs, a reasonable jury is not going to say that’s proof beyond an reasonable doubt as far as Damien Echols is concerned. And you add it to the grapefruit experiment – a Prosecutor saying that I have demonstrated to you that these marks are the marks on the body of Chris Byers – was just rubbish. It was absolute, unmitigated rubbish that experiment.
Question: So is the evidence in connection to Terry Hobbs in and of itself or is that mention to show the innocence of Damien Echols?
Dennis Riordan: Unlike other theories – may be so-and-so, may be a family member – they’re a bad guy, they’ve got a drug history – all we know is that a report arrives from a scientific lab that says your client has no evidence at the crime scene. We have located someone who is consistent. By the way, that someone who is consistent is someone who certainly was in the area. I mean do we not present that? Is that not a compelling argument for a judge trying to decide if Echols would be convicted? I’m just telling you that absent the kind of prejudice that was generated in 1993, a competent trial lawyer could not lose Damien Echols’ case today, because there’s not a single piece of credible evidence that connects him to the scene and anything that they say is credible is far outweighed by things that could point in other directions. No reasonable juror would find guilt beyond a reasonable doubt. Conversely, any reasonable juror were this case tried today would have a reasonable doubt. The jury would acquit.
Question: So the DNA evidence indicates that not necessarily that it’s likely that Hobbs did it, but just that it is evidence that it’s more likely that Hobbs could have done it given that hair then perhaps that Damien could have done it. So the point of bringing it up isn’t to say that Hobbs did it but is to say that there’s more evidence – or one could think it could might more likely that Hobbs did it versus Damien because there’s no evidence there are all.
Dennis Riordan: You know if you were to have a crime and an eye witness was able to identify the model of the car seen leaving the crime, and it was a very rare model – very, very few people have it – 1% of the population has it. And it so happens that a potential suspect is one of the relatively few people who have that car, same model, same type, very rare. What Prosecutor wouldn’t stand up in front of a jury and say that’s a powerful piece of circumstantial evidence? A defense attorney would say it’s not conclusive. But it certainly as part of a mosaic would be a powerful piece of evidence. And if you accuse someone else of the crime what defense lawyer wouldn’t say they don’t have anything that links my guy to the scene – what about the guy who owns that very rare car. And that’s what we’re talking about here. And as I said before the last thing as defense lawyers we would intend to do is indict and convict someone beyond a reasonable doubt of this case. The evidence as to Hobbs, even less so to Jacoby, I don’t think should be viewed that way, but is it evidence that would lead any reasonable juror to acquit Damien Echols? Yes, I it would.
I think we’re about at the end of the day. You’ve been very patient. It’s an extraordinary, extraordinary case, and we thank you for the opportunity to bring this information to you today. [End of part 5]