IN THE
CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
NO. CR 93450 & 450A
STATE OF ARKANSAS - PLAINTIFF/ RESPONDENT
VS.
DAMIEN WAYNE ECHOLS - DEFENDANT/ PETITIONER
POST RULE
37 HEARING ARGUMENT
I. INTRODUCTION
Damien Echols's Ark. R.Cr.Proc. 37 Petition seeks relief based, inter alia,
on his claim of actual innocence. This wrongful conviction and punishment
occurred because Petitioner was denied rights guaranteed by the Constitution
and laws of the State of Arkansas and the United States of America.
At the time of the alleged offense, Petitioner was a 17-year-old boy without a
high school diploma, living in a house trailer shared with his mother and
sister. Although he was well known in the small community of West Memphis,
Arkansas, he had no history of conviction for violent crime. 2
To begin, by sweeping broadly, certain extraordinary events make this case
unique, even in the context of death penalty litigation: First, Petitioner's
courtappointed lawyers began, months before trial, negotiating for a movie
about his trial. They did not file a prepared Motion requesting funds for court
appointed experts, (Motion 31), to which Petitioner would have been entitled
under the Constitutional principles recognized by the United States Supreme
Court in Ake v. Oklahoma, 470 U.S. 68 (1985).
Rather than depend on the Court and the State of Arkansas to adequately fund
indigent defense (Trans. at p. 292), counsel chose to put their faith in the
New York film industry and negotiated with Creative Thinking International, 3
to do the movie. 4 Trial
counsel eventually entered into an agreement with the filmmakers whereby HBO
paid a sum of money, which turned out to be $5,000, 5
to the court appointed lawyers for Mr. Echols. This agreement was reached after
"part performance" during negotiations, namely a waiver of the
Petitioner's right to exclude cameras from the courtroom and two filmed
interviews of the Petitioner. Court appointed counsel used the funds to
reimburse themselves for out of pocket expenses, notwithstanding the express
terms of the agreement that any money would be held in trust. The financial
needs of the defense attorneys were real, but by choosing to negotiate with HBO
for the funds, rather than seeking them through approved channels, they created
a situation in which their personal finances conflicted with Petitioner's
interest. Based only on their belief about what the Court would pay, without
actually making an inquiry, trial counsel failed to request funds from the
court, then made inadequate expenditures to defend their client, and ultimately
misappropriated what little money they received rather than holding it in trust
for Petitioner.
Although it was of their own making, these circumstances manifest a conflict of
interest in fact, affecting defense counsels’ performance at trial. Hence, this
case should be reviewed under the relaxed standard of Holloway v. Arkansas,
435 US 475 (1980), Wood v. Georgia, 450 US 261 (1981) and Cuyler v.
Sullivan, 446 US 335 (1980)(Conflict of interest which adversely affects
counsel's performance cannot be harmless error).
Second, and equally prominent as a fatal defect in the trial proceedings, is
the ineffective assistance offered by trial counsel, which they now
unreasonably and irrationally describe as 'trial strategy.' The examination of
court-appointed counsel Val Price by Prosecuting attorney Brent Davis shows a
veritable minuet of mutual admiration among ex-school mates (Trans at p. 590).
It was ‘trial strategy’ for Mr. Price to want Mr. Echols to be on trial before
jurors, who already knew that co-Defendant Jessie Misskelley had already been
convicted and given a life sentence plus 40 years, on the theory that those
same jurors, knowing that a confession was admitted against Misskelley, would
acquit Petitioner in the absence of the Misskelley confession. It was 'trial
strategy' for defense counsel to seat those jurors who would not put aside what
they had heard about the case before trial. It was ‘trial strategy’ not to ask
that the venue be changed from the Second Judicial District or that the case be
continued after the Misskelley conviction, even when, as the Judge noticed,
everyone called for jury service knew about the details of the case.
Also offered as ‘trial strategy’ is the absurd contention that at trial, defense
counsel wanted the jury to hear testimony about the circumstances of the crime
having ‘trappings of the occult’ and the ‘satanic,’ because such testimony
would be to Mr. Echols’s benefit. Defense counsel’s ‘strategy’ was that such
evidence, ‘junk science’ patently inadmissible under Daubert v. Merrell Dow
Pharmaceuticals, Inc. 113 SCt. 2786 (1993), and its progeny, would be
rejected by the jurors, who would, therefore, acquit Petitioner. This
post-conviction theory of Mr. Price about ‘trial strategy’ is incompatible with
his vigorous efforts to exclude the ‘cult expert’ testimony at trial. In short,
his ‘trial strategy’ testimony at the Rule 37 hearing was not credible.
These are just a few examples of what no neutral and detached judge could
justify as a rational "trial strategy," and why trial counsels'
"defense" fails the Strickland test for Constitutionally effective
assistance of counsel.
II. JUDICIAL DISQUALIFICATION AND RECUSAL
Petitioner also continues to complain about the
Court's refusal to recuse itself. The Court insisted on personally conducting
the proceedings, despite the Court's inevitable reliance on its memory of the
proceedings at trial, including it's judicial conduct, case management, and
supervision of the proceedings, all of which would be reviewed in these Rule 37
proceedings. Because of the inherent conflict between the Court's role as an
elected Judge and the Court's role as witness, these proceedings have been, and
remain, fundamentally unfair.
Petitioner objected to the Hon. David Burnett hearing this Rule 37 Petition.
Mr. Echols objected at the beginning of these proceedings on May 5, 1998 and
subsequently on May 6 and June 1998, asking that the Court be self recused.
Petitioner and the Court well stated their positions on May 5 as follows:
[BY MR. MALLETT]:
Some say some say in the courts of the United States that an appearance of a
problem occurs when the state conveys upon the judge who presided in the trial
the responsibility for making a determination under a Rule 37 or similar
postconviction pleading.
THE COURT: You're saying some other judge should do it? Is that what you're
saying?
MR. MALLETT: Yes, your Honor, and that's what we're asking for in the motion.
THE COURT: That hasn't been the custom in the State of Arkansas. In fact, I
think it's probably been traditional that the presiding judge because of the
superior knowledge he might have of the facts and the conduct of the trial have
been expected to do their own Rule 37 petitions, and that's the course I'm gonna
follow.
(TRANSCRIPT OF HEARING ON RULE 37 PETITION, VOL. I, MAY 5, 1998, P. 12, LL.
622. HEREINAFTER ‘TRANS.’ )
The Court's having witnessed earlier proceedings, when Counsel for Petitioner
was not present, caused the Court to be a witness and comment upon its
observation and recollection during the Rule 37 hearing.
On the one hand, the Court gave weight to its memory, and on the other, by
being immune from process, the Court could not be confronted and
cross-examined. Following are samples from the many judicial comments showing
weight given to the Court's knowledge from having witnessed the earlier
proceedings.
On Funds for Experts:
THE COURT: Believe me, if you had ever broached the subject you or any other
attorney that any evidence that was know to you or the state at the time of the
trial contained unidentifiable [sic] bite marks, I would have provided funds
for someone to look into the matter. . .
(TRANS., VOL I, P.108, LL1217.)
On Whether Mr. Stidham Accurately Reported on Understanding That the
Court Would Pay $40 Per Hour for Out of Court Experts:
THE COURT: No. I never made that statement to anybody. (TRANS., VOL I P.174)
On Conduct of Voir Dire:
THE COURT: Go ahead. I think that probably happened more than one time during
the course of the voir dire where of the three that one or more might have been
excluded temporarily. (TRANS.,VALE,P.205.)
On the HBO Movie Contract:
[THE COURT:]....This contract we're referring to had to do with
compensation or payment. I was never aware of that until sometime way into the
trial and made inquiry. I was certainly aware that the camera was gonna be
there. We all were aware of that, and that was by consent and agreement early
on. (TRANS.,VALE,P.367.)
Q: Did you have any pretrial or precontract order from Judge Burnett
assuring you that your were insulated and you could open up your client to be
interviewed by the gentlemen from New York?
A: No, sir. I don't think Judge Burnett knew about the contract.
THE COURT: He didn't. (TRANS.,VOL.II,P.365,LL.10 16.)
On Evidence Introduced at Trial:
THE COURT: I don't was there any evidence of maggots?
MR. MALLETT: May it please the court, yes.
THE COURT: Well, I don't remember any. Okay. (TRANS.,VOL VI, P.1280, LL.912.)
On Witherspoon Questions:
THE COURT: You're not gonna find a silent record on the Witherspoon questions.
Those questions were asked, as I recall, in I might have asked 'em out here,
but they were asked in detail in chambers and that is recorded and they did
give verbal responses to the Witherspoon test.
To this argument, the Court did not take personal offense. Nevertheless, the
person of the presiding judge is not at issue, only the Court's unavailability
as a witness, its reliance on unrecorded events from trial and its use or abuse
of discretion.
This Honorable Court should acknowledge that the quality of justice, the
appearance of justice and the substance of justice to be better achieved by
having disposition ofthis Rule 37 Petition made by a judge who is not burdened
by the dual role of also being a witness.
III. GROUNDS STATED IN SECOND AMENDED PETITION FOR RELIEF
The Petitioner now reurges and preserves by reference all grounds for relief
incorporated in his Second Amended Petition just as if restated in this
argument. All claims are fairly supported by the record, testimony, and
exhibits introduced at the hearing. Counsel relies on the Record, the Rule 37
pleadings and the evidence, as well as this Argument, for preservation of his
grounds for a new trial and asks that each and every contention urged in the
Second Amended Petition receive ruling.
Petitioner will emphasize matters the Court first heard in the evidentiary
hearing.
The State utilized a "criminal profiler" during its investigation.
This fact was disclosed to the Court appointed defense attorney Val Price
("Price") before trial. As cocounsel Dan Stidham told the Court:
. . .I don't know whether Inspector Gitchell was lying to me or whether he just
forgot, but I wanted that information for obvious reasons, and I was very upset
that I didn't get the information when I requested it.
Q: [BY MR. MALLETT:] So the reference to profiling or information from Quantico
about criminal profiling came to your attention as a result of some information
Mr. Price provided you?
A: That's correct.
Q: Which in turn had been provided to him by the State of Arkansas?
A: That's correct.
Q: And that was in his possession at the time of Mr. Echols' trial?
A: That's also correct.
(TRANS., VOL. 1, P. 98, LL. 922.)
Although this investigative tool was not crucial to the evidence offered by the
prosecution, when reciprocal use was made, a Mr. Brent Turvey looked at the
evidence, and he suggested analysis by expert witnesses in fields never used by
the defense. Price didn't consider "bite evidence," because the
state's pathologist failed to make a written report of the potential
odontological evidence. (Trans.
at p. 5934.) Price also acknowledged he was not qualified to know
what experts might be helpful (p. 340, lines 17). He knew his problem, but he
didn't do anything about it.
Petitioner contends that the use of a forensic odontologist, forensic
entomologist, and/or a forensic pathologist, as consulting experts and
eventually as testifying experts, would have corroborated Petitioner's testimony
that he is, in fact, innocent. Of course, as the Court heard, well-intentioned
and equally qualified experts may examine the same materials and disagree. But
failure to offer any experts that would have supported an alternative defense
theory was ineffective defense lawyering.' What was demonstrated, and cannot be
controverted, is that because of their ongoing negotiations with HBO, defense
counsel failed to file their Motion (Exhibit 31 ) and allowed Mr. Echols to go
on trial for his life without that very expert assistance that they believed
they needed. At the hearing, Mr. Price attempted an explanation as follows:
[BY MR. MALLETT:]
Q: In this case did you file any motions with Judge Burnett requesting
assurance that if you hired investigators or experts, they would be paid?
A: In this case Mr. Davidson and I thought long and hard about the issue of do
we need experts, what should we do about the money, is it possible to file
anything under seal, or is there another source to get money from. In this case
we decided not to go to Judge Burnett to seek funds. As a matter of fact, I
think we prepared a rough draft of a motion for funds, but we decided not file
that.
Q: What was the reason for that?
A: Somewhere along the same period is when we were approached by the producers
from Creative Thinking, the HBO producers, Mr. Berlinger and Mr. Sinofsky one
of those who earlier testified today.
Q: They approached you about whether they could do something for you by way of
providing money?
A: Right.
Q: For the benefit of Mr. Echols?
A. Yes, sir.
Q: In trade you would do something for them?
A: Yes, sir.
Q: Which is, the defendant Mr. Echols and you would cooperate with them in
their movie making effort?
A: Yes, sir.
Q: For three interviews?
A: Yes, sir.
Q: For twenty five hundred dollars per interview?
A: I think that was the amount. The total was seventy five hundred dollars.
Q: Did you get all your money?
A: No, sir. We've only received five thousand. They owe us twenty five hundred.
Q: It was because you were going to rely on that money to defend Damien Echols
in part that you decided you would not petition Judge Burnett for money?
A: Yes, sir.
(TRANS., VOL. 1, P. 164, L. 15P. 166, L. 3.)
Lacking confidence in either the funding for criminal justice in Arkansas, or
in this honorable Court, counsel declined to conduct a funded investigation,
and instead conducted no investigation, even in areas which they had once
identified as potentially fruitful. The Motion is discussed beginning at p. 330
of the transcript. Price's opinion was summarized at pp. 334-335:
[BY MR. MALLETT:]
Q: Do you agree that failure of this Court to order the funds for expert
witnesses be provided the defendant will violate his Sixth and Fourteenth
Amendment rights to effective assistance of counsel and due process of law?
A: That's what's stated in the document here.
Q: And you wrote that document?
A: Yes, sir.
Q: And you believe that's true?
A: Yes, sir.
Q: Believed it when you wrote it?
A: Yes, sir.
(TRANS., VOL. II, P.334, L.18P.335, L.3.)
Price went on to blame the State of Arkansas for failing to provide a mean of
enforcing Petitioner's rights under Ake v. Oklahoma:
A: There was no mechanism to get any money. After the case was over with, when
we asked to be paid a fee and we asked to be paid for the expert we used, we
didn't get the money. We had to wait a year and a half to get money because
Crittenden County and the State of Arkansas fought about who was to pay us, and
we had to wait a year and a half. So even if we would have filed the motion in
November of '93, there was no mechanism to give us money at that time.
[BY MR. MALLETT:]
Q: That is how you were forced to enter the movie contract?
A: Yes, sir. Well, I wouldn't say forced, but that was one of the reasons. I'm
not saying we were forced into a movie contract, but that is one of the reasons
that we did the movie contract.
Q: It's why we were motivated.
A: That was one of the reasons we were motivated.
(TRANS., VOL. III, P.583, L.14P.584, L.3)
Thus, they failed to provide effective help for Mr. Echols by failing to
investigate what Price foresaw were sources of potentially exculpatory or
mitigating evidence. Chambers v. Armontrout, 907 F.2d 825 (8th Cir.)
cert. denied, 498 US 369 (1990).
IV. TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE AT THE GUILT PHASE
Section B of the Second Amended Petition recites
"Constitutionally Ineffective Counsel in Guilt Phase" in 12 separate
paragraphs. Petitioner resurges these grounds. The record of jury voir dire is
inadequate, and to the extent that there is a record, it fails to show
appropriate voir dire in the context of a highly publicized capital case.
Because they failed adequately to address the issue on direct appeal,
amazingly, trial counsel learned for the first time in the Rule 37 hearing that
most of what the court reporter transcribed of questions to prospective jurors
by the judge and the attorneys was the expression, "no audible
response."
[BY MR. MALLETT:]
Q: Okay. Did you then read in preparation for the appeal the transcript of the
jury selection of the trial?
A. No, sir.
* * *
Q: The portion that I have read to you is a portion that you probably have
never read in your life. Is that correct?
A: That's correct.
Q: And you were probably unaware that the Court Reporter recorded no response
from anyone on the panel with response to the questions that I have read.
A: That's correct.
(TRANS., VOL. IV, P. 654, LL.2022; P. 65 6 L.24P.65 7, L. 5)
Petitioner also established in the Rule 37 hearing that the jurors were never
asked what was the content of the publicity they had seen and could remember.
At first, Price thought this was covered in his jury questionnaire. This was
incorrect.
[BY MR. MALLET:]
Q: What did you hear? What did you read? What did you see? The contents of the
information the actual contents of the information are not within the questions
asked in this thirtythree question questionnaire.
A: All right.
Q: So it didn't come out in the questionnaire?
A: Didn't that's right. I was mistaken when I testified previously.
(TRANS., VOL. II, P.261, LL18.)
As self justification, attorney Price agreed with what the Court had judicially
noticed at trial, namely that "everybody in Arkansas knew" that
coDefendant Misskelley had confessed:
[BY MR. MALLETT:]
Q: Everybody knew that Misskelley had made a statement against interest?
A: I don't know if everybody knew that specific fact of the case. I mean, a lot
of people did.
Q: Well, you heard the Court's comment last time. Everybody in Arkansas knew
Misskelley made an incriminating statement.
A: Right. I remember the Court making that statement at trial when we objected.
Yes, sir.
Q: And you knew you were starting the trial two weeks after the trial of
Misskelley, right?
A: Yes, sir.
(TRANS., VOL. 2, P.289, L.23P. 290, L.8.)
Price's "strategy," according to this Rule 37 testimony, was that the
jurors, precisely because the publicity had informed them about Misskelley's
conviction, would find these defendants "not guilty" in the absence
of the "same evidence" that convicted Misskelley.
[BY MR. MALLET:]
Q: Why did it help Mr. Echols for you to invite, or be presented when others
invite, without your objection, one juror to blurt out what they said in the
presence of others.
A: The fact that some of the jurors had heard things from the media about the
case, and the fact that the prospective jurors had heard things about Mr.
Misskelley's case, our case was different. There was some several different
factors that were different in our trial than Mr. Misskelley's trial.(TRANS.,
VOL. II, P.305, LL.1330.)
Indeed, at pages 309 311 (page 310 is missing from the hearing transcript), we
see Price's lack of confidence in citizens called to jury service his limited
voir dire is justified by his opinions that jurors don't tell the truth.
Anyway, Price's alleged strategy, when scrutinized, turns out to be logically,
professionally, and Constitutionally unacceptable, and is simply an
afterthetrial excuse. The following passage is indicative:
[BY MR. MALLETT:]
Q: So you only knew what information they might have been exposed to, correct?
A: Yes, sir.
Q: And did not ask them to tell you the contents of the information they had
previously received about the case?
A: Yes, sir.
Q: As I was listening to you answer Mr. Davis' questions about the jury
anticipating more evidence of the satanic than was presented, I thought you
were telling me that what you wanted to have was a jury who knew everything
about the Misskelley trial. Is that what you intended to be telling us?
A: No, sir.
Q: It was as though you believed that the more prejudiced in favor of these
boys being the murders of those three little boys the more prejudiced they were
in that favor at the beginning of your trial the better off you were because
your case would be a different case than the Misskelley case. Is that what you
intended to tell us?
A: No, I didn't say that.
Q: What did you say?
A: You know, you're saying, the more prejudiced I'm I'm
Q: Well, what did you intend to say to communicate when you were saying that we
believe the jury anticipated a very strong state's case in this area, and it
wasn't so strong. What was what was you trying to tell us?
A: I was trying to say the jury thought there would be more evidence of the
crime itself and of Satanism and the occult and that type of evidence, and that
evidence didn't come forward.
Q: And so you wanted a jury that already had all that accusation, the
Misskelley trial, the Misskelley confession, the Misskelley conviction, you
wanted that as part of your theory of defense in the trial that started two
weeks after the Misskelley verdict?
A: Well, now you're saying Misskelley didn't have that much evidence about the
occult. In the confession of Misskelley, there was evidence of the occult, but
there was not that much other evidence in Misskelley's trial about this being a
satanic, cult-related killing.
Q: So you wanted a jury that knew all about the Misskelley trial, right?
A: Well
Q: Did I mean, that
A: They did know about it. [Emphasis added.]
Q: And you I'm trying to figure out as you were listen answering questions for
Mr. Davis if that's the kind of jury you wanted. Was it? The jury who was fully
informed about the Misskelley trial so they would see your trial was different.
Was that your strategy?
A: That was one of our strategies.
Q: All right. So you didn't want a jury that was gonna set aside everything
they had heard and then know that your case was different. That's what you told
Judge Burnett today.
A: Not necessarily, no, sir. I did not want the jury to know the details of the
Misskelley confession, and they didn't know about that from our trial.
Q: Well, what did -
A: 'Cause the Misskelley confession didn't didn't come in at our trial.
Q: How did you know what the juries knew from reading all of these fine
publications that you had read? The Misskelley confession was certainly
reported by all the media widely spread and widely reported, right?
A: Yes, sir.
Q: All right. So you wanted a jury, not that would set aside what they had
heard from the Misskelley trial, but would remember the evidence from the
Misskelley trial and then compare it to the evidence adduced in Mr. Echols'
trial. [Emphasis added]
A: In a certain aspect. That's that's one of the factors we looked at.
Q: Thank you.
(TRANS., VOL. IV, P.800, L.9P.803, L.7.)
The State's witness, Investigator Ron Lax, paid $1.19 an hour by the Court
(Trans. at p. 260), agreed that Price's theory of defense was that Petitioner
could not be convicted on the absence of the Misskelley confession:
[BY MR. MALLETT:]
Q: Do you recall having a meeting having attending a meeting in which you in
which Mr. Val Price said, well, in effect our defense will be as follows: Jesse
Misskelley has been convicted of murder on the strength of his confession and
though our jury knows that he was convicted on the strength of his confession,
his confession will not be offered as evidence in our case. Therefore, we will
be found not guilty.
A: Yes, sir.
(TRANS., VOL. VI,
P.127O LL.716.)
The general rule is that a juror's promise to set aside what that juror
has seen or heard before the trial and to rely on the evidence qualifies the
juror to serve. Here, when the question was asked, the answer, usually, was
"no audible response." It turns out Price's strategy, if he's to be
believed, is that the jurors either could not or would not set aside prior
knowledge.
The jury, already prejudiced toward Petitioner because of the pretrial
publicity, went on to hear, albeit with "limiting instructions," the
"jailhouse confession" of Defendant Baldwin and the cavalier,
dismissive but "incriminating" statement to girls at a softball game,
attributed to Mr. Echols. Price's testimony reaches the point at which the
defense of"trial strategy" should not be available.
His claims of "strategy" are incredible, unreasonable, and in
conflict with the record of the trial.
This "capital voir dire" departed from reason, conventional wisdom,
and Constitutional jurisprudence, which is that a defendant is more likely to
be convicted where his nontestifying codefendant has confessed. In fact, the
whole reason for severing Misskelley from these defendants must include the
Bruton 9 problem faced by the state
seeking to convict Misskelley with very limited evidence, other than his
confession. It would be inconsistent with this Court's jurisprudence in this
very case to approve, as Constitutionally effective trial strategy, a jury
composed of persons who knew the codefendant had been convicted upon his confession
and who would lie to get on the jury or who were not able to ignore the
Misskelley confession.
"Trial strategy" is not a magical talisman upon which every court can
hang its approval of Constitutionally inadequate representation. See, e.g. Rickman
v. Bell, 131 F.3d. 1150 (6th Cir. 1997), cert. denied, 118 S.Ct. 1827
(1998)(counsel's "total failure to actively advocate his client's
cause" had the effect of "provid[ing] [petitioner] not with a defense
counsel, but with a second prosecutor"; Foster v. Lockhart, 9 F.3d
722 (8th Cir. 1993)(counsel's decision not to investigate potentially viable
defense was unreasonable and could not be justified as "tactical
decision" to focus exclusively on alternative defense); Henderson v.
Sargent, 926 F. 2d 206 (8th Cir.), amended, 939 F.2d 586 (8th Cir. 1991),
cert. denied, 502 US 1050 (1992)(counsel's failure to pursue available theory
that killing was committed by someone other than petitioner "cannot be
justified as a strategic decision").
Counsel for Petitioner hopes that the Court will be outraged by this contract
with HBO, which, by its own terms, was kept secret from the Court.
The terms provided for money to be paid in trust to Mr. Echols. Although the
creation of the trust deposit was established in writing, there is not a
writing allowing these attorneys to reimburse themselves for outofpocket
expenses for which they never sought payment from this Court. The conduct of
Mr. Stidham, in recognizing his obligations under the Arkansas Rules of
Disciplinary Conduct to have an independent counsel advise Misskelley, should
be lauded by the Court as the sort of ethical conduct expected of members of
the Arkansas Bar.
As argument, Rule 37 Counsel for Petitioner observes that neither Misskelley's
civil attorney nor Mr. Price cut a good deal for their clients. Given the
notoriety of this case, Counsel suspects, without access to proof since the
Court sustained Motions to Quash HBO records, that there has been a tremendous
amount of money made by HBO and the Creative Thinking Producers, and that if
the movie rights were to have been sold at all, they should have been sold for
far more than the $5,000 paid Mr. Echols and the $7500, or equivalent amounts,
paid to the coDefendants and the families of the victims. Price just accepted
their first offer (Trans. at p. 372).
These continuing and protracted negotiations, occurring through and into the
time of trial, clearly proves that Price was burdened by a conflict of interest
in fact. Absent the movie negotiations, trial counsel would possibly have
protected Mr. Echols' rights under Arkansas Code of Judicial Conduct, Cannon
3(A)(7)(b), and kept the cameras out of the courtroom. Once the defendants were
convicted of capital murder under the factual circumstances here, the presence
of the cameras gave power to the deterrent argument of the prosecutor, namely,
that the relative weight to be given the aggravating circumstances in calling
for the death penalty would be increased to the extent that millions of people
would see the trial and pictures from the trial, reproduced in any form desired
by the producers, forever. 10
Another effect, of the movie of course, was that there was a day in September
1994, after which all this footage could be used for any purpose, for all time.
Hence, in making crucial decisions about trial strategy, counsel were
necessarily burdened by their own contribution to publicity that would
necessarily flow from a continuance, mistrial, or retrial following reversal on
appeal. There was no Motion for Continuance to a time later than two weeks
following the well-publicized Misskelley verdict. 11
There was no Motion for Change of Venue outside the Judicial District after the
Misskelley verdict. There were opportunities to allow the Court to grant a
mistrial because of misconduct by the prosecutor's phrasing of questions or to
the volunteered statement presented in violation of the Motion in Limine
relating to Misskelley's confession, but apparently, no such motion was made.
(Indeed, if Price, truly, as trial strategy wanted a jury that knew about the
Misskelley confession, why then was there a Motion in Limine and objection to
its violation by Officer Ridge?)
Another proof of conflict of interest in fact is that pursuant to a written
agreement, defense counsel Davidson was to hold the money "in trust"
for Petitioner. Instead, Davidson and Price, immediately upon receipt,
appropriated it for themselves as "reimbursement," contrary to the
trust agreement and without Petitioner's consent. They were in Jonesboro, while
he was on Death Row, thinking the money would be for the benefit of his child. (Trans. at p. 3956.)
As to the testimony and argument about "trappings of the
occult" and "satanic rituals" offered by Dr. Dale Griffis: the
gatekeeper function of the presiding judge was well established by Daubert v
Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). The objection
lodged by counsel was that Dr. Griffis was not an expert. The Court was not
assisted by any Constitutionally adequate discussion of the Daubert standard
and the admissibility of "expert testimony" in the social sciences.
Again, ignorance
of the law and failure to advocate on behalf of your client cannot be excused
as "strategy." Rickman v. Bell, supra, 131 F.3d. 1150; Foster
v. Lockhart, supra 9 F.3d 722; Henderson v. Sargent, supra, 926 F.
2d 206.
The record does not reflect attorney Price separating himself from Baldwin's
request from a Motion in Limine excluding testimony about the occult, until the
Rule 37 hearing. (Counsel for Petitioner doesn't know what the word
"occult" means in an evidentiary context.) The court let in testimony
about the "occult" and the "satanic" as Rule 404(b)
evidence and without a Rule 403 objection. There was no objection to the
Court's limiting instruction.
Compare Price's position on Griffis at trial, and at the Rule 37 hearing:
[MR. PRICE:]
Trial: "We object to the Court qualifying Dr. Griffis as an expert." 12
Trial: "We also object to relevancy, Judge." 13
Trial: "Judge, we have the First Amendment in the
United States. A person is entitled to believe they can practice the freedom of
religion." 14
Trial: "There is no scientific basis for this
witness to testify that this is a cult-related killing." 15
In contrast, at the Rule 37 hearing, Mr. Price testified as follows:
[BY MR. MALLETT:]
Q: Now, I have read in the Opinion of the Arkansas Supreme Court on the is case
that it was the theory of defense propounded by propounded on behalf of Mr.
Echols at trial that the state's effort to offer testimony about Satan or
Satanism and cults groups of people that worship religions other than the
Christian religion or the Jewish religion and trappings of the occult I'm not
quite sure what that means but I know it was in the Dale Griffis testimony.
A: Right.
Q: I read in the Arkansas Supreme Court Opinion that it was the theory of
defense on behalf of Mr. Echols that this evidence should come in so that it
could be refuted. Did the Arkansas Supreme Court accurately capture your your
theory on that?
A: I believe that's correct.
(TRANS., VOL. IV, P. 664 LL. 115.)
This justification that the Defense wanted Griffis in is not credible because
it is incompatible with Price's objections at trial.
Price said not one word about wanting to have the jury hear Griffis' s testimony
until the case was on appeal. That this was his strategy at the time of trial
is not credible. And, in light of Daubers and Rule 403, to want this in would
have been a trial strategy so far from reason and common sense that it should
provide no assistance to the prosecution now.
Another example of the discovery, posttrial, of a self-serving rationalization
is attorney Price's explanation for why he did not seek a change of venue
outside the Second Judicial District, away from the media market where the
cases were covered. Price acknowledged that Craighead and Crittenden counties
are in the same media market (Trans. at p. 571). This, despite the fact that
the Court told the lawyers that, Arkansas law notwithstanding, this Court has
authority, on due process grounds, to move the case further away than
Jonesboro. Mr. Price confirmed this at the Rule 37 hearing:
[BY MR. MALLETT:]
Q: You were there. You've seen the previous pages. And then the judge goes on
to say, "There is case law within Arkansas that justifies and supports the
moving of the case outside the judicial circuit should it be necessary,"
and you were there?
A: Yes, sir.
Q: So whatever expression you may have expressed a few minutes ago about it had
to be within the circuit, in fact, Judge Burnett told you as you were
discussing venue, that he could move it outside the circuit according to case
law.
A: That's what it says on [sic] the transcript.
Q: Do you have any reason to believe that Judge Burnett was wrong?
A: Was wrong in
Q: Saying there was case law supporting him moving it?
A: Like I said earlier, I think there's one case that says that can be done.
(TRANS., VOL. I, P.191, LL.217.)
Attorney Price claimed in the Rule 37 hearing that, at the time, he disagreed
with the Court's view of the law. He put himself and Davidson in the position
of helping the Court avoid error against the State:
[MR. MALLETT:]
Q: Are you familiar with any body of case law that suggests that whenever there
is a tremendous amount of publicity a change of venue is one way to go to a
place where there's less effective publicity? You're generally aware of such a
body of law, aren't you?
A: Yes, sir.
Q: I mean, that's why we have changes of venue, right?
A: But Arkansas is specific about what the limitations are on a change of
venue?
Q: And that is in your belief to another county within the circuit?
A: Right. And there's there's one exception. There's one case that there they
as we discussed in the in the last hearing where they moved the case from Sabastian
County to a contiguous county which was not in the judicial district.
Q: If I understand your testimony then, that notwithstanding that case, your
decision to allow the case to proceed in Jonesboro without objection was
because of your belief that Arkansas law prohibits prohibited moving the case
outside of the circuit?
A. Yes, sir.
(TRANS., VOL. II, P.297, LL.323.)
Protecting the record for the prosecution by declining the Court's invitation
to request that the trial be moved to another place, and in all likelihood a
later time, to ensure a fair trial is hardly what the Constitution and the
adversary system of justice expect of defense lawyers.
In some cases, "Prejudice is presumed from pretrial publicity when [it] is
sufficiently prejudicial and inflammatory and [it] saturated the community
where the trials were held." Coleman v Kemp, 778 F.2d 1487, 1490
(11th Cir. 1985,) citing Rideau v. Louisiana, 373 US 723, 72627 (1963)
and Murphy v. Florida, 421 US 794, 79899 (1975). Petitioner submits that
the Second Judicial District of Arkansas was so saturated with pretrial
publicity, as this Court itself observed, that it was impossible for him to be
tried by "a panel of impartial, 'indifferent' jurors," as is his
right under the Sixth and Fourteenth Amendments to the United States
Constitution. Irvin v. Dowd, 366 US 717, 722 (1961). Admittedly, it is
rare for the facts to support a "presumed" rather than an
"actual" oreiudice standard. And it is reserved for an "extreme
situation." Coleman, supra, 778 F.2d. at 1490, quoting Mayola v.
Alabama, 623 F.2d 992, 997 (5th Cir. 1980). However, as Petitioner pointed
out in the Introduction, this case is unique in many ways: the murders in the
case involved sensational facts, they occurred in a small community, the
pretrial publicity saturated the community, and even the nation, and a
confessed codefendant had been tried and convicted in a heavily publicized
trial a mere two weeks before the start of Petitioner's own trial.
Had trial counsel bothered to research the law on the subject and to present a
factual basis for the claim to the Court, Petitioner is confident that a
request for change of venue outside the Second Judicial District would have
been granted on Constitutional grounds, as the Court itself intimated Trial
counsel's testimony reflects that failure to do so was based on ignorance of
applicable Constitutional law, since he stated he was familiar only with state
jurisprudence on the subject and believed, erroneously, that a change of venue
could not be granted under state law. Surely, even trial counsel cannot argue
that ignorance was "trial strategy." Trial counsels' conduct was
grossly ineffective as a result.
The Court learned at the hearing what the Defendant never knew at the time of
trial: that the same John Mark Byers that Price called to the stand, and
lightly presented as an alternate suspect, had been a codefendant of Price's
clients in a civil trespassing and conversion case pending in Arkansas courts
for years. To accuse a man of killing his stepson is something one should do
only if such an accusation is fairly supported by evidence, direct or
circumstantial. This was a big decision reached in a meeting reenacted for HBO,
according to the attorneys and their investigator. Price acknowledged restaging
the trial strategy meeting to make the movie more entertaining and successful
(Trans. at 3423). (The filmmakers say this never happened.) The presentation
probably worked to the benefit of the prosecution. In evidence is the movie,
Exhibit 32, "Paradise Lost: The Murders at Robin Hood Hills." Toward
the end of the movie, a portion of Byers' testimony is presented. The viewer
sees the Prosecuting Attorneys, being interviewed by HBO. Prosecutor John
Fogelman, since elevated to the bench, says that to a jury it would look
"desperate." Brent Davis concludes: "of course, then, the
Defense didn't even have the guts to actually ask him did he do it."
Mark Byers was called to "insinuate" he committed the murders (Trans.
at p. 596), but his full of history of violent criminal conduct was never
presented (Trans. at p. 596).
Again, there is the appearance here of a conflict of interest in fact. Counsel
also didn't question Byers about the allegation that he had committed a
burglary of a jewelry store and the taking of property, which would have been a
serious felony if prosecuted. Counsel never advised Petitioner or the Court of
his previous relationship with Byers in the jewelry store case. Also, Price
never told Petitioner he had served as counsel for the witness Michael Carson,
who testified that codefendant Baldwin had made a jailhouse confession. Again,
there was a conflict of interest which adversely affected counsels'
performance. The movie, of course, had the potential to make the participants
famous (Trans. at p. 366367).
V.TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE AT THE PUNISHMENT
PHASE
No one watching the movie, trial, or reviewing the transcript will ever forget
the devastating cross-examination of Dr. James Moneypenny, presented as a defense
witness. Moneypenny told the jury the records showed that unnamed persons told
the Defendant he could be compared with serial killers Ted Bundy and Charles
Manson. Without a Rule 403 objection or any limitation, the image of Mr. Echols
as a calculating serial killer was thus introduced through double hearsay from
an unnamed source by a witness produced by the defense. Attorney Price wanted
these statements into evidence, even though he knew they could have been
redacted from records or excluded:
[BY MR. MALLETT:]
Q: And by bywell, of course, you could ask Doctor Moneypenny if he'd read the
records that he was holding, but by letting them into evidence, you wanting the
jury to have an opportunity to review all evidence admitted by the Court chose
to let the jury have this complete medical history file -
A: Yes, sir.
Q: that was two inches thick, right?
A: Yes, sir.
Q: And you knew that that was not admissible if you objected to it?
A: Perhaps.
(TRANS., VOL IV, P.814, L. 16P.815, L. 1 .)
It is not controverted that Petitioner's doctorpatient privilege was waived.
Likewise, these doublehearsay comments could have been excluded under Rule 403.
Price is proud to report a jury finding that Petitioner committed these three
murders while acting under extreme mental or emotional disturbance. Of course,
if that is a mitigating circumstance, the jury gave it less weight than the
other facts, since it still sentenced Petitioner to death.
Attorney Price was professionally unprepared to present mitigating evidence on
Petitioner's behalf at the punishment phase of the trial. Indeed, Mr. Price
believes that mitigating evidence is any evidence bad about the Defendant.
Failure to investigate and present mitigating evidence is a classic example of
ineffective assistance of counsel. See Austin v. Bell, 126 F.3d 843 (6th
Cir. 1997), cert. denied, 118 S.Ct. 1526 (1998)(counsel did not present any
mitigating evidence because "he did not think it would do any good";
counsel's "reasoning does not reflect a strategic decision, but rather an
abdication of advocacy"); Hill v. Lockhart, 28 F.3d 832 (8th Cir.
1994), cert. denied, 513 US 1102 (1995); Starr v. Lockhart, 23 F.3d 1280
(8th Cir. 1994).
This does not compare favorably with the recollections of the investigator Ron
Lax, the employer of Ms. Glori Shettles who attempted to develop mitigation
evidence for use at the punishment phase. Mr. Lax's candid description of the
disinterest of the lawyers was also presented at the hearing.
Point 4 calls the Court's attention to what the Court told the jury, namely,
the instruction "you will impose the death penalty" based on the
findings presented by the statute, thus substituting his instruction for the
jury's considered moral judgment about whether to impose the death penalty on Mr.
Echols. This was clearly a violation of Mills v. Maryland, 386 U.S.3676
(1988) and Constitutional error.
VI. DEFENSE COUNSEL WAS CONSTITUTIONALLY INFEFFECTIVE ON APPEAL
Five separate paragraphs are presented in the Rule 37 Petition. Petitioner
respectfully requests that this Court conduct a cumulative error analysis as
well as discussing individual errors in its evaluation of the consequences of
the flaws in the trial and on appeal.
The Court has already seen that any reviewing court, state or federal, cannot
find any waiver of Petitioner's right to have all proceedings recorded, nor any
way to determine the answers of jurors in voir dire, where all the court
reporter could determine was "no audible response."
Petitioner does complain about the Court conducting an ex parte interview of
jurors about potential threats received by a juror during trial. Petitioner's
Rule 37 Counsel has not interviewed the jurors, and the Court has indicated
that it is not permissible in the Court's view to interview the jurors. Counsel
respectfully objects to this instruction and requests leave to interview the
jurors without threat of any sanction.
At trial, the Court restricted efforts of defense counsel to impeach the
so-called "cult expert," Dale Griffis. At the Rule 37 hearing, it was
developed that attorney Price did not have a clear understanding that Ark. R.
Evid. 803(18) would permit him to offer as substantive evidence readings from
materials authenticated by the witnesses or the Court. Hence, at trial, the
Court erroneously restricted defense counsel on grounds of "hearsay,"
and appellate counsel was ineffective for failing to advise the Arkansas
Supreme Court that this limitation was improper. Evitts v. Lucey, 469 US
387 (1985); see also, Robbins v. Smith, 125 F.3d 831 (9th Cir. 1997); Mason
v. Hanks, 97 F.3d 887 (7th Cir. 1996)(appellate counsel was ineffective for
omitting an apparently meritorious claim); Mayo v. Henderson, 13 F.3d
528 (2d Cir. 1994)(counsel omitted significant state law issue but pursued
weaker claims).
As to whatever transpired in the ex parte, in camera proceedings in which the
Court took it upon itself to question jurors as to threats and whether that
experience tainted the validity of subsequent proceedings conducted with
counsel present, the only best witness is the Hon. David Burnett, now reviewing
this argument. Petitioner finds himself in the untenable and illogical position
of arguing that the witnessjudge should rule that his judicial conduct of these
in camera proceedings violated Mr. Echols's rights to public trial, effective
assistance of counsel, right to confront witnesses, and due process of law.
VII. THE "AGGRAVATING CIRCUMSTANCE" DESCRIBED IN THE STATUTE
AND JURY INSTRUCTIONS IS UNCONSTITUTIONAL
Petitioner complains that the Constitutionality of the Arkansas Supreme Court's
interpretation of the phrase in the Penal Code, "especially cruel and
depraved," is a law question not yet resolved by the United States Supreme
Court or conclusively settled by the United States Court of Appeals for the
Eighth Circuit. So, too, § 54604(8) of the Arkansas Code is unconstitutionally
overbroad and vague, contentions reiterated and not abandoned here.
VIII. REMAINING GROUNDS
There are remaining grounds, on which there has never been Federal habeas
corpus review, which were discussed in the opinion of the Arkansas Supreme
Court. They are adopted from the Second Amended Petition for Relief and are
here, for all purposes renewed and presented as if repeated verbatim.
Petitioner respectfully urges that a review of the full trial record and at the
Rule 37 proceeding entitles him to reconsideration and relief on all these
grounds.
IX. CONCLUSION
This Court now has an opportunity to demonstrate with courage and certainty
that Petitioner Damien Echols is entitled to a new trial.
Respectfully submitted,
AL SCHAY (Court Appointed Counsel for Petitioner)
[address]
Little Rock, AR 72201
EDWARD A. MALLETT
[address]
Houston, TX 77002
(713) 2281521
(713) 2280321 Fax
ATTORNEYS FOR PETITIONER DAMIEN WAYNE ECHOLS
CERTIFICATE OF SERVICE
I hereby certify that I have served a true copy of the foregoing Motion by
regular mail to:
Brent Davis, Esq.
Prosecuting Attorney
[address]
Jonesboro, AR 72403
this 11th day of May 1999.
Todd Newton
Assistant Attorney General
[address]
Little Rock, AR 72201
[signed]
EDWARD A. MALLETT
[footnotes]
l) Herrerra v. Collins, 506 US 853 (1993).
2) He did have a juvenile record for being in a deserted house
with a teenage female.
3) A business entity under contract with Home Box Office,
a subsidiary of Time Warner, Inc.
4) Here, the moviemakers will be referred to as
"HBO."
5) Another $2,500 is owed, according to Price (Trans., p.
251).
6) The test for determining whether a Defendant's rights to effective assistance
of counsel under the Sixth and Fourteenth Amendments have been violated was
articulated by the US Supreme Court in Strickland v. Washington, 466 US
668 (1984). Under Strickland, Counsel is ineffective when his or her conduct so
undermined the proper function of the adversary process that the trial cannot
be relied on as having produced a just result. Numerous subsequent cases have
refined the standard and are discussed and cited below.
7) See, e.g. Groseclose v. Bell, 130 F.3d 1150 (6* Cir.1997), cert.
denied, 118 S.Ct.1826 (1998); Deluca v. Lord, 77 F.3d 578 (2d Cir.),
Cert. denied, 117 S.Ct.83 (1996).
8) See Exhibit 31.
9) Briton v. United States, 391 u.s. 123 (1968).
10) See Trans. at p. 1266.
11) Trans. at p. 290.
12) Trial trans. at p. 1655,11.
1011.
13) Trial trans. At p.l687, 1.6.
14) Ibid, at 11.1214.
15) Trial trans. at p. 1722.
