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.


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. 




Little Caylee, Little Justice!

What went wrong?

Or did it?

While I discuss this travesty, reflect on why I believe our Courts of Justice are more appropriately characterized as Conflict Resolution Centers.

The travesty I refer to is not that Casey Anthony was acquitted. It was the correct decision for the correct reason. The travesty is that the general public was misled as to the purpose of the trial. Because of this misperception the public outrage was misguided and misdirected.

Before I continue, a caveat: I did not watch the entire trial. Consequently, I don’t know all of the evidence. But I do know the evidence, or lack of evidence, that buttresses my position.

Invariably, people who watched the trial wanted justice for Caylee. And when Casey was acquitted, there was outrage, anger. But justice for Caylee would, at most, be a consequence of a guilty verdict.

The reason for the trial was to hold Casey Anthony responsible for her daughter’s death. But if the trial was a search for the truth, then all must abide by the rules that guide the litigants in their pursuit of justice.

Some of these rules pertain to the presumption of innocence, the burden of proof and evaluation of witness testimony. To better understand the process, it helps to demystify the trial and application of these rules. There are basically three distinct parts to a trial. Jury selection, or ” voir dire” (meaning to speak the truth), allows the attorneys to question each prospective juror in an affort to find bases to have the judge remove an unfavorable juror due to state of mind (“I can’t presume someone charged with killing their child as innocent”)or, by statute, is unable to serve ( a convicted felon). Voir dire also allows the attorneys to properly exercise peremptory challenges ( no requirement that the attorney identify the reason for striking the juror ). At the conclusion of voir dire, the jury is empanelled to hear the evidence.

The next phase-trial-permits each side to present opening statements (what the attorney’s evidence expects to establish-with the observation that a criminal defendant need not present evidence since the defendant is presumed innocent ) followed by the calling of witnesses, beginning with the prosecution. At the conclusion of all the evidence (the prosecution leads with its case-in-chief; then the defense, if it chooses, presents its case-in-chief, followed by the prosecution’s rebuttal and the defense surrebuttal ) and the trial phase ends with final arguments based on the evidence and the agreed-upon law.

The last phase- jury deliberation- occurs during  an indeterminate length of discussion after receiving jury instructions from the judge, which each attorney had reviewed and either  accepted or rejected.

If it can be argued there was a miscarriage of justice, then the blame must be placed at the feet of the prosecutors. Why? Because they chose which charges and evidence to present to the jury. They framed their ” theory ” (legal argument) as murder and lying to the police and their “theme” (factual argument) as ” mother love ” versus ” party girl”.

As an aside, if you watch any criminal trials,  you will often hear the prosecution couch their theme in everyday, common emotions ( greed, love, hate ) that everyone understands. Simple to digest.

The defense, in a stunning revelation, identified their theory as Caylee accidentally drowned, but her death was covered up. In laying out his theory, the defense stated that Casey had been sexually abused. I say this was a stunning disclosure because as a criminal defense attorney for 32 years, I don’t recall ever giving an opening statement that I was not absolutely certain I had the evidence to support it, including having prepared the defendant to testify in his defense.

Why is this so important? Because when you make an opening as the defense did, you do a couple of things you should only do with great caution. First, you assume a burden of proof you don’t have.

Second, you give the prosecution an opportunity to attack the defendant in final argument. Ordinarily, a prosecutor can’t attack the defendant in final argument  because of the presumption of innocence. Now the prosecutor can challenge the defendant’s version of what happened and, in the process, cover up or gloss over the weaknesses in their case. In effect, shift the burden by claiming the defense did not prove what it alleged in its opening statement

So, what went wrong? It certainly was not the fault of the jury. Many legal pundits are quick to blame the jury, unless the verdict is as the pundits believe it should be.  However, this was a consciencious jury that followed the law. It has been disclosed that the jury foreman, alone,  took over 400 pages of notes.

It’s not the judge’s fault. Rarely does a judge inject himself/herself into a trial regarding presenting evidence without an attorney’s objection or invitation. They are loathe to intrude in the area of ” trial strategy.”

It’s not the defense attorney’s fault. He presented an opening that was, supposedly, based on good faith (i.e. he believed the evidence permitted this interpretation).

The fault must lie with the prosecution because, from my perspective, the prosecutors went out on a limb in presenting evidence from an expert that had never been peer-reviewed by others in that field ( odor detected in the car trunk ) to establish Caylee was in the trunk, decomposing. Without peer review, the opinion has not been tested to establish the expert’s credibility. Undoubtedly, the jury was instructed they could consider the expert’s education, the bases for his opinion, what he relied on in drawing his opinion, etc.  

But the most inexcusable mistake must have occurred in the defense’s final argument. Without any evidence in the record, the prosecution allowed the defense to argue that Caylee accidentally drowned. Before final arguments, the judge ruled that the defense could not comment on Casey having been sexually abused. Why? Because no evidence existed in the record. You cannot argue facts outside the record, unless opposing counsel doesn’t object and you can defend your position as grounded in good faith.

Even if the prosecution had not moved before arguments to restrict the defense’s reliance on accidental drowning, they could have objected during final argument that counsel was arguing facts outside the record. Had they objected,  I believe the judge would have sustained the objection and prevented counsel from relying on this argument.

There was no justice for Caylee in the jury’s verdict. Nor will there be. Nobody else will be charged with her death, intentional or otherwise. There was only resolution of a conflict. The prosecution said that Casey killed her daughter; the jury’s verdict said otherwise.

Based on the evidence presented by the prosecutors-and the argument the defense was allowed to make-the jury reached the correct verdicts for the correct reasons. But this begs the question: Where is justice for a little girl who left this world in a garbage bag and may be remembered as a footnote to a controversial  trial?

Little Caylee, little justice!

What Price Innocence for Ex-IMF Dominque Strauss-Kahn?

The focus and visibility brought to bear on the criminal justice system with the charging of Dominque Strauss- Kahn highlights two recurring, but troubling, issues that seem to be part and partial of our justice system. The first is the ubiquitous perpetrator walk or “perp walk.”

Regardless of your opinion of his guilt or innocence, how can we, as a nation that has enshrined the presumption of innocence in the federal and state constitutions,  reconcile the media feeding frenzy tainting a suspect’s right to a fair trial with that same suspect’s right to be presumed innocent? Even Mother Theresa would look guilty during a perp walk.

Why do we simply give lip service to this precious constitutional right? If Mr. Strauss-Kahn is guilty, then the evidence will seal his fate. Rape, in any form and of anyone is, by definition, indefensible. 

However, the jury’s  determination of whether the defendant is guilty or not guilty should be based on legally admissible evidence in a court of law, not in the court of public opinion. And the question for the jury is guilty or not guilty; it is never guilty or innocent as the jury never passes on the issue of innocence. A defendant is presumed to be innocent!

The dissemination of information to the media by the law enforcement community, including press releases by the prosecution, invariably is done so with the objective being to reach and, ultimately, taint the jury pool. We should not passively accept a defendant’s broadside attack on the character of the complainant anymore than such an attack on the defendant’s right to a fair trial with a fair jury.

And this leads to the second recurring issue. That is, the undermining and eroding of the presumption of innocence. The recent press releases state that the investigation is uncovering more damaging evidence. Why is this so important for public consumption? You can see this on full display in the Casey Anthony trial in Florida.

As to the Casey Anthony trial, I am not concerned with her guilt or innocence for purposes of this discussion. I am only concerned with each citizen’s right to a fair trial before a fair and impartial jury.

I guess most people will recognize the presumption of innocence and the right to a fair trial when it hits close to home:  one of their own is charged with a crime. That is not the threshold test for a defendant being tried fairly in the United States, nor should it be.