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Tainted Justice: West Memphis Three Freed From 18 Years in Prison Having Proved Their Innocence. Or Did They?

In 1993 Damien Echols, Jessie Misskelly and Jason Baldwin were convicted of first- degree murder in the gruesome, and allegedly satanic,  killings of Steven Branch, Christopher Byers and Michael Moore, three 8 year old cub scouts whose bodies were dumped in Robin Hood Hills. Steven Branch and Michael Moore drowned in 2 feet of water; Christopher Byers bled to death and his genitals were mutilated.

Subsequently,  the Arkansas Supreme Court upheld the convictions and sentences. Echols was on death row; Misskelly and Baldwin were serving life sentences.

On August 19, 2011, the three walked out of jail free and, as they contend, innocent. Innocent, after Baldwin and Echols pled guilty to three counts of first-degree murder and Misskelly pled guilty to one count of first-degree murder and two counts of second-degree murder.

How did the West Memphis Three end up back in court after their sentences were upheld only to have their convictions and sentences vacated and plead guilty, yet claim to be innocent?

As a criminal defense attorney in Minnesota for over 30 years, I have been in this situation. It is uncommon, but not rare. Undoubtedly, after the three had their convictions and sentences affirmed on appeal, they sought “ collateral review” of their cases. Collateral review is where the trial court reviews allegations of constitutional or statutory rights, as opposed to “direct review” where the appeals court reviews claims arising from the trial court.

Keep in mind that the trial courts are where trials are held. That is, prosecutors present evidence to the fact finder. The fact finder can be a judge (as in a court trial) or a jury in a jury trial. Once there is a conviction and a sentence has been imposed, then the defendant may appeal. On appeal, the appellate court does not take testimony or retry the case. The appellate court is an error-correcting court.

On appeal there are different standards of review the court applies. The purpose of these standards is to determine how much deference the appellate court gives to the trial court. In other words, if on appeal a defendant claims the trial court erred in admitting certain testimony, or evidence, the appellate court will apply the abuse of discretion standard. Why? Because the trial court heard the testimony and observed the demeanor of the witnesses. These observations are not in the record-and the appellate court does not take testimony on appeal.

Consequently, the trial court is vested with much discretion in admitting testimony. Therefore, the appellate court will require the complaining party on appeal about admission of evidence to establish the trial court abused its discretion in allowing the evidence.

If there were a collateral review, then the defendants created a record for review by the appellate court once their claims were denied. Apparently, the three claimed that certain errors occurred at trial. Baldwin and Echols claimed that the jury committed misconduct by accessing information about Misskelly’s confession that was not introduced in their trial.

All three alleged that their DNA was not present at the crime scene. On appeal, the Arkansas Supreme Court remanded the case to the trial court for  an evidentiary hearing to determine whether the jurors  committed  misconduct and to determine whether the absen of the defendants’ DNA  at the crime scene raised an issue of their innocence.

It is obvious that the attorneys and the judge met before the hearing to  discuss the purpose of the hearing and what each side intended to prove. Based on these discussions it became apparent to all parties that both sides wanted to avoid a new trial and, potentially, either total vindication or a verdict neither side could accept.

This is how the pleas were crafted. Welcome to North Carolina vs. Alford, a 1970 United States Supreme Court decision that permits a defendant to plead guilty to take advantage of a plea offer while claiming to be innocent. I usually utilize this plea procedure where the evidence is substantial, the defendant doesn’t recall what happened and doesn’t want to go to trial.

The critical language in an Alford plea is that the defendant admit that the prosecution has such evidence that there is a substantial liklihood that if a jury were to hear this evidence, they would convict. But the plea also allows the defendant the right to proclaim he is innocent.

This is what Echols, Misskelly and Baldwin did. They technically admitted they were guilty so the judge could impose a sentence, but then said they are innocent. This plea arrangement allows the prosecution to close this case with convictions. It also allows the defendants to hold their heads high while professing their innocence. But it  deprives the defendants from suing the state for wrongful conviction or any other tortious claim they could make.

And the West Memphis Three are on ten years unsupervised probation. No reporting to any probation officer. The purpose of unsupervised probation is to monitor the file. If any one of them is arrested for a new offense or a violation of probation, then the court will be notified and that probationer could be returned to prison for 21 years. 

This quirk in the law allowed all the parties to save face.

But what about Steven Branch? Christopher Byers? Michael Moore? Did the Alford plea deliver  justice? The prosecution says it did. That is why the prosecution is closing its file. There is(are) no other suspect(s) to prosecute.

And what about the West Memphis Three? How many people can say they pled guilty, were sentenced, but still are innocent? Well, actually, there are many who have been convicted, sentenced and still claim they are innocent. The prisons are bursting at the seams with innocent prisoners. Ask them.

And this is why we have the Innocence Project. It took dedication and a sharp focus on the issues to bring about what is perceived by most as justice.

 

 

Have Gun, Will Travel…Fast and Furious to Mexico. Thanks ATF!

Question: How do convicted felons repeatedly possess and distribute numerous guns without fear of arrest, let alone prosecution?

Answer: By purchasing guns from “straw purchasers,” who purchased the guns from gun dealers cooperating with the Bureau of Alcohol, Tobacco,  Firearms and Explosives (ATF)- an agency within the United States Department of Justice- to permit gun sales without completion of the mandatory background checks or interdiction by agents.

Oops!

Rep. Darrell Issa (R. Calif.), Chairman of the House Committee on Oversight and Government Reform, and Sen. Chuck Grassley (R. Iowa), Ranking Member of the Senate Judiciary Committee,  have been conducting congressional hearings regarding guns being purchased in Phoenix, Arizona, by those who then resell the guns to Mexican drug cartel associates, all with the cooperation of the gun shop owners.

Why would a federal agency, whose mission statement is to keep guns out of the hands of criminals, conduct such an operation? As ATF spins it, the purpose of Operation Fast and Furious was to trace the distribution network to discover who are the end users/possessors of these guns.

The congressional hearings have disclosed that two other federal agencies within the Department of Justice may have been involved: the Drug Enforcement Administration and the Federal Bureau of Investigation.

Rep. Issa and Sen. Grassley continue to forge ahead in their investigation, and what has come to light is disturbing. Over 2,000 guns were permitted to cross over into Mexico unimpeded. And recent evidence has surfaced that some Mexican drug cartel members acted in an informant capacity against their competitors. And they were allowed to import cocaine, methamphetamine and marijuana into the United States.

Didn’t ATF learn anything from the FBI’s spectacle in Boston Ma., when that agency developed its Top Echelon Informant Program designed to recruit informants within the ranks of street criminals? That program ultimately snared two highly-prized Irish mobsters: Whitey Bulger and Steve “the Rifleman” Flemmi.

These two serial killers were courted by FBI Agent John Connolly, who ran interference for Bulger and Flemmi while they continued their crime spree, decimating the Mafia in north Boston and placing a choke hold on Boston street crime.

To say the FBI was outmanuevered by streetwise Bulger and Flemmi is to recognize the obvious. Now history repeats itself in Phoenix.

 ATF Acting Director Kenneth Melson has appeared before the committee with counsel. Why? Because evidence has surfaced that many ATF officials were in the loop, being routinely briefed on the “progress” of the program?

And,  Attorney General Holder has stonewalled the committee’s investigation. Why? Because many within Justice were aware of this debacle as it unfolded? 

As a criminal defense attorney for over 30 years, I have handled many federal prosecutions in and outside Minnesota involving ATF, DEA and FBI. I cannot fathom a defense where I contend my client didn’t intend to distribute guns or drugs; he only wanted to determine how wide-spread drug/gun possession was in his community. That is not a viable defense.

 And ATF’s explanation for the distribution and eventual recovery of a minimal number of guns is equally laughable.

So where does the congressional hearings go from here? Through the subpoena process the committee should be able to identify the crimes that were committed and who committed them. And then, to borrow a phrase from Rep. Nancy Pelosi (D. Cailf.), “drain the swamp.” That is, can you say “Indictment?”

How many guns have found their way into the hands of killers?

How much dope has found its way into our communities?

How many people have died because of the arrogant and misguided policy of the ATF?

I’m reminded that our President campaigned on a platform of transparency. He selected and supported Attorney General Holder who, I assume, shares the President’s core policy of transparency. Where is that transparency now?  Obama and Holder should have a heart-to-heart talk, maybe over a beer.

Light is the best disinfectant. Let the hearings go forward. Hold those accountable who were irresponsble in conceiving, implementing and protecting  this disasterous program. This is not about politics. It is about holding the ATF to its mission statement: prevent criminals from having guns. It is about holding the DEA to its mission statement: prevent illegal drugs from entering our communities. And it is about holding the FBI to its mission statement: to uphold and enforce the criminal laws of the United States.

But most importantly, it is about the United States Congress carrying out its obligation: to protect its citizens from rogue agents/agencies that believe they are above the law. 

 

 

 

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