WM3

 
DENNIS P. RIORDAN
(CA SBN 69320)
DONALD M. HORGAN
(CA SBN 121547)
RIORDAN & HORGAN
 
DEBORAH R. SALLINGS
(AR SBN 80127)
 
 

            This case arises out of the slaying in 1993 of three eight-year-old boys in West Memphis, Arkansas. Chris Byers, Steve Branch, and James Michael Moore disappeared around 6:30 p.m. on May 5th. Their bodies were found the next day submerged in a drainage ditch in Robin Hood Hills, a wooded area near their homes, with that of Byers apparently sexually mutilated.
            The investigation and prosecution that followed these terrifying murders generated intense media attention and public outrage at a local, state, and national level. In June of 1993, three teenagers were arrested and charged with committing the murders as part of a satanic ritual. In March of 1994, following trial, petitioner Damien Echols, eighteen years old at the time of the charged offenses, was convicted and sentenced to death; his co-defendant Jason Baldwin, sixteen years old when arrested, was sentenced to life in prison without the possibility of parole. A third teenager, Jesse Misskelley, earlier had been convicted and sentenced to life with parole.
            This present motion for a new trial arises under Arkansas statutes passed in 2001, which provide that a petitioner is entitled to relief on a post-appellate claim of wrongful conviction if previously unavailable DNA test results, “when considered with all other evidence in the case regardless of whether the evidence was introduced at trial, establish by compelling evidence that a new trial would result in an acquittal.” Ark Code Ann. § 16-112-208 (e)(3). See also § 16-112-201 (new trial may be ordered for a person convicted of a crime where “the scientific predicate for the claim could not have been previously discovered through the exercise of due diligence and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would find the petitioner guilty of the underlying offense.”)     
            These Arkansas “new scientific evidence” statutes were passed in the wake of a nationwide wave of exonerations of persons whose convictions were exposed as wrongful by the increasing use of newly developed DNA technology.[1] At least part of the impetus for the enactment of the Arkansas statutes was the continuing controversy concerning the reliability of the judgments of conviction rendered in this very matter.
            The public disquiet over these verdicts stems from a deep and growing belief that the three defendants were convicted not because of what any of them had done but because of whom they were, or at least were portrayed as being. Their fate was likely sealed on the day of their arrests in June of 1993 when chief investigator Gary Gitchell announced to applause at a televised press conference beamed into countless households across the region that the strength of the case against the three was “eleven” on a scale of ten. That statement was demonstrably false. Nine months later on the eve of the trial of Echols and Baldwin, the prosecutors in the case, Brent Davis and John Fogelman, would tell the families of the victims a truth of which the public was not informed: the state’s attorneys feared the evidence they would introduce against Baldwin and Echols was too weak to convince a jury of the guilt of Echols and Baldwin.[2]
            Given Gitchell’s irresponsible statement, however, every potential juror at petitioner’s trial had been exposed to pretrial media reports about the case, and many, including some selected to serve on Echols’ jury, admitted to holding pre-existing opinions that he was guilty. Trial proceedings, in the prosecutor’s words, were surrounded by a “media circus” and a “shark feeding atmosphere” in which camera people rushed around the courthouse “like little packs of wolves.” Cf. Sheppard v. Maxwell, 384 U.S. 333, 351 (1966) (stating that in a capital case, “it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion”).
            The years since Echols’ 1994 convictions have witnessed the development of new scientific techniques that have generated DNA evidence then unavailable, as well as “other evidence in the case” that must now be considered “regardless of whether the evidence was introduced at trial.” Ark. Code § 16-112-208 (e)(3). In 2002, petitioner first filed a motion for DNA testing of evidence found at the crime scene. He will now place before this Court evidence not introduced at his 1994 trial because (1) in the case of the DNA evidence proffered herein, the scientific methodology by which it was gathered did not then exist; (2) as to the crucial opinions of forensic pathologists and odontologists now presented, petitioner had no means of obtaining and offering this evidence at trial; and (3) in other instances, petitioner’s appointed trial counsel failed to develop the exculpatory impeachment evidence presented herein.
            Under Arkansas’s statutory scheme, to gain a new trial Echols need not prove who was the party or parties responsible for these terrible crimes, nor need he prove his own innocence beyond a reasonable doubt. Rather he must and will demonstrate that the evidence now available, viewed in its totality and with a dispassion that was simply impossible when the case was first tried, “clearly,” “convincingly,” and “compellingly” “establish[es] ... that a new trial would result in an acquittal.” §§ 16-112-201(a)(2) and 208 (e)(3).
            The DNA evidence establishes that no genetic material of Echols or the other defendants was present on the victims’s bodies, as it would have been if the crimes had occurred in the manner hypothesized at Echols’ trial. Conversely, testing has established that genetic material on the penis of Steve Branch could not have come from any of the defendants or victims.
            Furthermore, a hair containing mitochondrial DNA consistent with that of Terry Hobbs, a stepfather of one of the victims (Branch), was found on the ligature used to bind another of the victims (Moore). Another hair found on a tree root at the scene where the bodies were discovered contains mitochondrial DNA consistent with that of David Jacoby; Hobbs was with Jacoby in the hours before and after the victims disappeared. This DNA evidence is the most powerful physical evidence found at the crime scene, and, standing alone, it greatly undermines the prosecution’s case against Echols. But there is more, including disturbing corroboration of the DNA test results that pre-dates petitioner’s recent discoveries. Years before the DNA link between Hobbs and the crime scene was discovered, Pam Hobbs, the mother of Branch, came forth with evidence that she believed linked Terry, her former husband, to the murders.
            Of equal importance is the forensic evidence recently developed and now presented to the Court. Nothing made a fair trial in this case more difficult than the fact that Echols was alleged to have participated in the sexual mutilation — skinning the penis and removing the testicles — of an eight year old boy. That allegation alone would surely irrevocably prejudice an accused in the eyes of most prospective jurors. But it has now been established that most of the wounds suffered by the victims, and particularly those to the genitalia of Byers, were not inflicted with a perpetrator’s knife, as alleged at trial, but resulted from post-mortem animal predation. That analysis and conclusion, reached by more than half a dozen leading forensic pathologists and odontologists who reviewed the autopsy tests, photos, and reports, were shared months ago with the state’s prosecutorial team and have gone unrebutted.
            The presence of animal predation exposes the falsity of practically the entirety of the state’s case against Echols, putting the lie to: (a) Dale Griffis, a “witchcraft expert” with a fraudulent Ph.D., who claimed the wound pattern of the victims and the mutilation of Chris Byers reflected satanic motivation; (b) Michael Carson, the jailhouse informant who testified that Baldwin admitted putting the victim’s testes in his mouth, a horrifying but wholly perjured assertion relied upon by Griffis to support his theory of satanists at work; and (c) the state’s claim that during a pre-arrest interview Echols had displayed knowledge of Byers’ injuries available only to one who witnessed his castration.
            The new forensic evidence also exposes the highly misleading and prejudicial nature of that portion of prosecutor Fogelman’s closing argument wherein he conducted an experiment which he claimed proved that a knife recovered from a lake behind Baldwin’s residence was the instrument which maimed Byers. No evidence in the record permitted the conclusion that the lake knife was used in the crime, yet Fogelman informed the jury in closing that he was able to reduplicate the measurements of the marks on Byers’ body by cutting into a grapefruit with the knife in question. The forensic evidence presented herein exposes Fogelman’s assertions to be utter falsehoods.
            The state will surely assert that the 1994 verdict of conviction presents an insurmountable obstacle to Echols’ present request for relief, contending that the fact that a jury of his peers then fairly found petitioner guilty precludes a finding that petitioner surely would be acquitted now. But that argument falls on Echols’ showing that the 1994 judgments were fundamentally flawed. Rather than being convicted on “evidence developed [on] the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel,” Turner v. Louisiana, 379 U.S. 466, 472-73 (1965), Echols was found guilty principally based on what jurors had heard and read outside the courtroom. Echols’ jury convicted him based on information both unadmitted and inadmissible at trial: a hearsay statement of codefendant Jesse Misskelley implicating Echols and Baldwin in the charged crimes. Echols was tried separately from Misskelley precisely in order to ensure that Echols’ jury would not be exposed to the Misskelley statement. Yet notes taken by a juror, as well as statements of jurors themselves, establish the central role played by the Misskelley statement during the deliberations of the Echols jury.
            Under controlling United States Supreme Court precedents, receipt by a jury of such an unexamined and inflammatory statement causes incurable prejudice. This case illustrates the wisdom of that rule. Virtually the entirety of the Misskelley statement was demonstrably false. When first interrogated, Misskelley, a mentally handicapped juvenile, said he had no personal knowledge of the murders. After hours of suggestive questioning, Misskelley, believing that his cooperation would lead to a reward rather than his own prosecution, claimed that he saw Echols and Baldwin sexually assault and beat the victims on the morning of May 5th. In fact, the victims and Baldwin all were in school at that time, and Misskelley’s description of the crimes was flatly contradicted in virtually every other respect by the physical evidence. Yet petitioner’s jury, which relied on news reports of Misskelley’s out-of-court statements to convict, never learned of the defects in Misskelley’s statements, precisely because the law deemed the “confession” too unreliable to justify its admission into evidence against Echols and Baldwin.
            Following the recent wave of exonerations due principally to DNA testing, a study examined the factors that had led to these wrongful convictions. False confessions by defendants “who were juveniles, mentally retarded or both” were the decisive factor in many flawed verdicts. Juries also had been misled again and again by flawed or fraudulent expert testimony; by jailhouse informants who gained benefits by committing perjury; and by mistaken eyewitness testimony, also present in this case.[3] And the likelihood of a wrongful conviction surely soars when prosecutors mislead jurors in closing argument.
            The investigation and trial of Damien Echols joined all of these factors together to create a perfect storm of adjudicatory error. Only a new trial can ensure that the public’s understandable demand for retribution does not produce a flawed judgment that adds an innocent man’s life to these crimes’s already tragic toll. This Court must remedy this grave miscarriage of justice by granting Echols’ motion for a new trial.
STATEMENT OF THE CASE
 
            A.        Judgment, Sentence, and Direct State Court Appeal
 
            On March 19, 1994, following trial by jury, this Court entered judgment against petitioner Echols and his co-defendant, Jason Baldwin, for three counts of first-degree murder. On the same date, the Court sentenced petitioner to death.
            Echols timely appealed from the judgment and sentence, which were affirmed by the Arkansas Supreme Court in an opinion issued on December 23, 1996 and reported at Echols v. State, 936 S.W.2d 509 (Ark. 1996) (“Echols I”). Echols thereafter challenged the Arkansas Supreme Court’s appellate ruling by filing a timely petition for a writ of certiorari in the United States Supreme Court. That petition was denied in an order issued on May 27, 1997.
            B.        State Court Rule 37 and Coram Nobis Proceedings
            On March 11, 1997, well before the conclusion of his direct appeal, Echols filed a motion in this Court for post-conviction relief from the judgment and sentence pursuant to Arkansas Rule of Criminal Procedure 37.1, et seq. Following amendments, Echols’s final Rule 37 petition was denied by this Court on June 17, 1999.
            Echols timely appealed from this Court’s June 17, 1999 order. On April 26, 2001, the Arkansas Supreme Court affirmed one portion of this Court’s ruling but otherwise reversed and remanded because the ruling did not set forth certain required factual findings as to Echols’s claims. Echols v. State, 42 S.W.3d 467 (Ark. 2001).
            Following remand, in an order issued on July 30, 2001, this Court issued a new decision rejecting all of petitioner’s claims under Rule 37. Echols timely appealed this ruling, which was affirmed by the Arkansas Supreme Court in an opinion issued on October 30, 2003. Echols v. State, 127 S.W.3d 486 (Ark. 2003) (“Echols II”).
            On February 27, 2001, while the Rule 37 proceedings described above were pending, Echols also petitioned the Arkansas Supreme Court for an order reinvesting jurisdiction in this Court to allow him to seek a writ of error coram nobis. The Supreme Court denied that petition in an opinion issued on October 16, 2003 (i.e., before the conclusion of the Rule 37 proceedings) and reported at Echols v. State, 125 S.W.3d 153 (Ark. 2003).
            On October 29, 2004 (i.e., after the conclusion of the Rule 37 proceedings), Echols filed in the Arkansas Supreme Court a Motion to Recall The Mandate And to Reinvest Jurisdiction in The Trial Court to Consider Petition For Writ of Error Coram Nobis or For Other Extraordinary Relief. The motions were primarily founded on newly discovered evidence of jury misconduct and juror bias at the time of Echols’s state court trial. The state Supreme Court denied the motions in an order issued on January 20, 2005. Echols thereafter filed a petition for rehearing as to the January 20, 2005 order, alleging, inter alia, that the state Supreme Court’s disposition of the misconduct and bias claims effectively established that Echols’ petitioner’s trial lawyer had rendered constitutionally ineffective assistance of counsel by failing to present these claims in support of a motion for a new trial. That petition was denied in a state Supreme Court order issued on February 24, 2005.
C.        State Court Proceedings Based on New Scientific Evidence and Relating to the Present Motion
 
            On July 25, 2002, petitioner filed a “Motion for Forensic DNA Testing” (“DNA motion”) in this Court seeking relief from his convictions pursuant to Arkansas Code §§ 16-112-201 et seq., invoking the Eighth Amendment’s prohibition against cruel and unusual punishment, and the Fourteenth Amendment’s guarantee of equal protection and due process of law. Jason Baldwin, petitioner’s co-defendant at the state trial, likewise sought relief under this statutory authority, as did Jesse Misskelley, who was tried and convicted of murder in connection with the incident placed at issue at the Echols-Baldwin trial.
            In an order dated September 12, 2002, the Arkansas Supreme Court observed that petitioner’s DNA motion was an “appropriately filed” petition for relief within the meaning of section 16-112-210 et seq. Echols v. State, 84 S.W.3d 424, 426 (Ark. 2002) (per curiam).
            On January 27, 2003, this Court ordered the impoundment and preservation of all material that could afford a basis for petitioner’s actual innocence claim pursuant to this statutory scheme.
            On June 2, 2004, following negotiations among the interested parties, this Court issued an “Order for DNA Testing” directing that various items of evidence be subjected to appropriate forensic scientific testing at the Bode Technology Group (“Bode”) in Virginia. On February 23, 2005, this Court issued a “First Amended Order for DNA Testing” which amended the list of evidentiary items that would be subject to testing at Bode.
            DNA testing of the items identified in the February 23, 2005 Order was thereafter conducted at Bode. That testing has been substantially completed and the results reported in a series of documents issued by Bode, as discussed in more detail below (see Argument II, infra). Those results supply the factual basis for a key component of petitioner’s instant motion.
            D.        Federal Court Proceedings
            On October 28, 2004, Echols filed a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas. On February 28, 2005, Echols filed an amended petition for habeas corpus, and on October 29, 2007, a second amended petition for habeas corpus in that Court.
            On November 21, 2007, the federal district court issued a letter order stating that the court would hold the second amended petition in abeyance pending exhaustion of petitioner’s state court remedies, specifically, the instant proceedings brought in this Court pursuant to Arkansas Code §§ 16-112-201 et seq.
STATEMENT OF FACTS
            As noted in the Introduction, supra, by this motion petitioner contends that he is entitled to a new trial because (1) new scientific evidence excludes petitioner as the source of relevant DNA evidence on the victims and recovered at the crime scene; and (2) any reasonable juror presented with such evidence and with all other evidence in the case, whether or not the latter was admitted at trial, would not find petitioner guilty beyond a reasonable doubt. Ark. Code § 16-112-208(e)(3).
            Given this legal criteria and the recognized interest in preventing fundamental miscarriages of justice, see Echols v. State, 84 S.W.3d 424, supra, the scope of the evidence which this Court should consider in deciding whether petitioner is entitled to a new trial is extensive. Accordingly, Echols first summarizes below the evidence developed prior to and during petitioner’s trial. This summary includes facts concerning Misskelley’s statements which, while excluded from admission at petitioner’s trial, played an improper but critical role in Echols’ conviction. A summary of the DNA, forensic, and other evidence uncovered since the jury returned verdicts against Echols in 1994 will be presented in subsequent sections of the brief. These factual summaries in tandem will permit the Court to assess whether a reasonable juror considering all of this evidence would have a reasonable doubt as to Echols’ guilt, and whether matters established by means of the present motion entitle Echols to relief.
            Finally, in a separate and concluding section of the brief, petitioner addresses the significance of the initial verdicts returned against him, and specifically contends that those verdicts were not founded on a reliable jury assessment of the formally admitted evidence. In this connection, Echols sets forth in detail the specific facts establishing that juror bias and misconduct fatally undermined the integrity of the fact-finding mechanism at the 1993 trial. That showing, in turn, will supply the Court with an additional and compelling reason for disregarding the initial verdicts and the factual determinations purportedly supporting them when it evaluates the strength or weakness of the state’s case as it now appears.
            A.        The Charged Murders
            The Arkansas Supreme Court opinion affirming petitioner’s convictions on direct appeal described the charged murders as follows:
Michael [Moore], Christopher [Byers], and Steve [Branch] were eight years old, in the second grade, in the same Cub Scout troop, and often played together in their West Memphis neighborhood. On the afternoon of May 5, 1993, after school, Michael and Steve were riding their bicycles while Chris was skateboarding. Deborah O'Tinger saw the three boys walking through her yard between 5:45 and 6:00 that afternoon. Her recollection was that they were pushing a bicycle. At about 6:00 p.m., Dana Moore, Michael's mother, saw the three boys together. At that time Michael was riding his bicycle. Between 6:30 and 6:45 Brian Woody saw four boys going into some woods known as the Robin Hood woods. He noticed that two of the boys were pushing bicycles, one had a skateboard, and a fourth one was just walking behind them. Neither Michael, Christopher, nor Steve returned to their homes. Their parents called the police, and a search was begun.
 
The next morning, members of the Crittenden County Search and Rescue Unit discovered a tennis shoe floating in a ditch just north of Ten Mile Bayou. The Robin Hood woods drain into Ten Mile Bayou, and the members of the search unit knew the boys were last seen in that area. Detective Mike Allen walked along the ditch bank to the place where the tennis shoe had been found. He noticed that one area of the ditch bank was cleared of leaves, while the rest of the bank was covered with leaves and sticks. He described the cleared area on the bank as being "slick," but having "scuffs" in the cleared-off area. He got into the water, reached down to get the shoe, and felt Michael Moore's body. The corpses of Christopher Byers and Steve Branch were subsequently found about twenty-five feet downstream. Policeman John Moore, who was also there, said there was blood in the water, but none on the bank. Detective Bryn Ridge was also present and helped recover the boys' bodies. He collected the victims' clothes, three tennis shoes, and a Cub Scout cap that was floating in the water. He found a stick stuck in the mud that had one of the boy's shirts wrapped around the end that was stuck down in the mud. He dislodged another stick as he was removing the corpse of Michael Moore.
 
All three corpses had their right hands tied to their right feet, and their left hands tied to their left feet. Black shoe laces and white shoe laces were used as ligatures. Michael Moore's body had wounds to the neck, chest, and abdominal regions that appeared to have been caused by a serrated knife. There were abrasions over his scalp that could have been caused by a stick. Dr. Frank Peretti, a State medical examiner, testified that there was bruising and discoloring comparable to that frequently seen in children who are forced to perform oral sex. He testified that there were defensive wounds to the hands and arms. Moore's anal orifice was dilated, and the rectal mucosa was reddened. Dr. Peretti testified this injury could have come from an object being placed in the anus. Finally, Dr. Peretti testified that there was evidence that Moore was still alive when he was in the water, as there was evidence of drowning.
 
Steve Branch's corpse had head injuries, chest injuries, genital-anal injuries, lower extremity injuries, upper extremity injuries, and back injuries. The body had multiple, irregular, gouging wounds, which indicated that he was moving when he was stabbed. The anus was dilated. Penile injuries indicated that oral sex had been performed on him. There was also evidence that he, too, had drowned.
 
Christopher Byers's corpse also had injuries indicating that he had been forced to perform oral sex. His head had scratches, abrasions, and a punched- out area on the skin, and one eyelid had a contusion. The back of the neck had a scrape. The inner thighs had diagonal cuts on them. The back of the skull had been struck with a stick-like, broomstick-size, object. The skin of the penis had been removed, and the scrotal sac and testes were missing. There were cuts around the anus, and the hemorrhaging from those cuts indicated he was still alive when they were made. Many of the cuts were made with a serrated blade knife. Byers did not drown; he bled to death.
 
The boys' bicycles were found nearby.
 
Echols I, 936 S.W.2d at 516-17.
            The record of petitioner’s trial also discloses that on the night of May 5, 1993, a black man was found in the women’s room at a nearby Bojangle’s restaurant, blood dripping from his arm, with mud on his feet, disarrayed, and slurring his speech. (EBRT 2211-12, 2999-3000.)[4] The women’s room had blood and mud in it. According to the restaurant manager, there was quite a bit of mud that had to be cleaned up. The man had “wasted a whole roll of toilet tissue by soaking up blood or grabbing it for himself.” The toilet paper “had blood all over it. It was saturated all the way down to the cardboard roll.” (EBRT 2213-14, 3001-02.)
            The police were summoned that night to the Bojangles restaurant, which is approximately one mile from the Robin Hood woods, but collected no evidence. (EBRT 772-77, 1551-56.) On the afternoon of May 6th, Detectives Ridge and Allen came out, took a report, and “then they took blood scrapings off the wall in the women’s restroom.” (EBRT 2215, 3003.) The detectives asked whether the man appeared to have muddy feet like those of the officers (who had been at the crime scene all morning) and the manager of Bojangles responded that the man did. (EBRT 2215, 3003.) The officers indicated they did not need to take possession of the bloody roll of toilet paper. (EBRT 2216, 3004.)
            Detective Ridge never sent the samples taken at Bojangles to the crime lab and then later lost them. (EBRT 810-11, 1589-90; 945, 1725.) A “negroid” hair was later discovered on a sheet used to cover the body of Chris Byers. (EBRT 1182, 1963.)
/ /
            B.        The Arrest of the Three Defendants
 
            The Echols opinion describes the events leading to the arrest of Echols, Baldwin, and Misskelley:                                     
On June 3, or almost one month after the murders, Detective Mike Allen asked Jessie Lloyd Misskelley, Jr., about the murders. Misskelley was not a suspect at the time, but Echols was, and it was thought that Misskelley might give some valuable information about Echols. Detective Allen had been told that all three engaged in cult-like activities. Misskelley made two statements to the detective that implicated Echols and Baldwin, as well as himself...
 
Misskelley, age seventeen, Echols, age nineteen [[5]], and Baldwin, age sixteen, were jointly charged with the capital murders of Moore, Byers, and Branch. Misskelley moved for a severance from Echols and Baldwin, and the trial court granted the severance
 
Echols I, 936 S.W.2d at 517.
            As noted above, upon the arrest of the three defendants, lead investigator Gary Gitchell held a press conference at which it was announced that Jesse Misskelley had confessed to seeing Damien Echols and Jason Baldwin use a knife to rape, sexually mutilate, and murder the three victims as part of a satanic ritual. Gitchell described the proof against the defendants as eleven on a scale of ten.[6]
C.        The Misskelley Trial, Verdict, And Proceedings Concerning Misskelley’s Possible Testimony in The Echols Case
 
            Misskelley’s trial began on January 18, 1994 in Clay County, after being severed from that of Echols and Baldwin. The proceedings were televised and widely reported in the print media. Petitioner below summarizes evidence from the Misskelley proceeding which was not formally admitted at his own trial but which, because it concerns the Misskelley confession improperly considered by the Echols jury, bears on the reliability of the previous verdict in this matter.
                        1.         Vicky Hutcheson
 
            Vicky Hutcheson was a prosecution witness at the trial of Jesse Misskelley and was the subject of testimony, although she was not called by either party, at Echols’ trial.
            Hutcheson testified at the Misskelley trial that in May of 1993, she lived in Highland Park in a trailer. Her son Aaron was good friends with the three murder victims, and Hutcheson became close friends with Jessie Misskelley. (MRT 970-71.)[7] At some point after the killings, she decided to play detective. (MRT 971-72.) She had heard about Damien Echols, so she had Misskelley introduce her to Echols. (MRT 972.)
            Hutcheson did a number of things to gain Echols’ confidence. She went to see Don Bray, a police officer at Marion, to get his library card to check out “some satanic books because they can’t be checked out just by normal [people]”; she spread the books around her coffee table. (MRT 972.) At the Echols trial, it was established that the West Memphis police, working with Vicky Hutcheson, had conducted audio and visual surveillance of Echols at Hutcheson’s home in an effort to catch Echols saying something incriminating, but to no avail. (EBRT 2153-54, 2940-49.)
            According to Hutcheson’s testimony in the Misskelley trial, at one point, Echols invited her to an “esbat,” which Hutcheson claimed was an occult satanic meeting mentioned in one of the witch books. (MRT 973.) Hutcheson, Misskelley and Echols went to the meeting in a red Ford Escort driven by Echols. Hutcheson claimed that from a distance she saw 10 to 15 people at the meeting. She asked Echols to take her home, but Misskelley stayed at the scene. (MRT 973-74.)
            On cross-examination, Hutcheson admitted that she had been in Officer Bray’s office on the day the bodies of the murder victims were discovered, the reason being she was being investigated in regard to a “a credit card mess-up.” (MRT 975.) She had been previously convicted in Arkansas for writing “hot checks.” (MRT 976.) After she began her cooperation with the police regarding Echols, authorities dropped all charges involving the credit card problem. (MRT 975.) Hutcheson frequently bought liquor for a fifteen-year-old friend of Misskelley’s (MRT 1214), and spent the night with Misskelley the night before he gave his statement to the police and was arrested. (MRT 976-77.) The defense proffered a witness who stated that on two occasions Hutcheson said that her son Aaron would receive reward money related to the case. (MRT 1268-69.)
            On January 29, 1994, the Arkansas Democrat-Gazette reported Hutcheson’s testimony that she “attended a satanic cult meeting with Misskelley and co-defendant Damien Echols.” (Exh. C; see also Exh. D, Jonesboro Sun article, Jan. 28, 1994.) The Democrat-Gazette also reported that Misskelley confessed that he and Echols and Baldwin were involved in satanic activities “and the sexual assaults, mutilations and beatings of the children.” (Exh. C.)
                        2.         The Misskelley Statement
            Expert psychological testimony at the Misskelley proceeding established that Misskelley had been diagnosed as mentally retarded, as had his brother. (MRT 342.) Misskelley’s arithmetic and spelling skills were on the 2nd or 3rd grade level. (MRT 344.) He tended to think in childlike ways as “a six [or] seven year-old child would do.” (MRT 346.) He performed psychological tests from the viewpoint of a five to seven year-old child. (MRT 349.) On moral reasoning test instruments, he again was very childlike. (MRT 351.) He was severely insecure and did not understand the world very well. When he was under stress, he rapidly reverted to fantasy and daydreaming “and at times can’t tell the difference between fantasy and reality.” (MRT 352.)
            The diagnoses of Misskelley were adjustment disorder with depressed mood, with a history of psychoactive substance abuse, including marijuana, huffing gasoline, and alcohol. (MRT 352.) He possessed borderline intellectual functioning. (MRT 353.) He had a diagnosed developmental disorder, as well as other dysfunctions “primarily schizotypal, antisocial, and dependent.” (MRT 353.) Misskelley had impaired memory, both long and short-term. (MRT 354.)
            The following facts concerning the Jesse Misskelley statement are taken from the opinion of the Arkansas Supreme Court affirming Misskelley’s convictions on direct appeal:
Approximately one month into the investigation, the police considered Damien Echols a suspect in the murders, but no arrests had been made. [Misskelley]'s name had been given to officers as one who participated in cult activities with Echols.[[8]]
 
Detective Sergeant Mike Allen questioned [Misskelley] on the morning of June 3, 1993. [Misskelley] was not considered a suspect at that time[.]
 
[Misskelley and Allen] arrived at the station at approximately 10:00 a.m. Detective Allen and Detective Bryn Ridge questioned [Misskelley] for about an hour when they became concerned that he wasn't telling the truth. In particular, he denied participation in the cult activity, a statement which was at odds with what other witnesses had said. At this point, the detectives decided to advise [Misskelley] of his rights. Detective Allen read him a form entitled "YOUR RIGHTS," and verbally advised him of the Miranda rights contained in the form. [Misskelley] responded verbally that he understood his rights and also initialed each component of the rights form. There was no evidence of any promises, threats or coercion...
 
After he was advised of his rights and had waived them, [Misskelley] was asked if he would take a polygraph examination. He agreed that he would. Detective Allen took [Misskelley] to look for his father so that his father could grant permission for [Misskelley] to take the polygraph. They observed Mr. Misskelley driving on the same road they were on, stopped him, and received the authorization. There was no evidence of promises, threats or coercion.
 
Upon returning to the station, Detective Bill Durham, who would administer the polygraph, once again explained [Misskelley]'s rights to him. [Misskelley] verbally indicated he understood, and initialed and signed a second rights and waiver form which was identical to the first.
         
Detective Durham explained to [Misskelley] how the polygraph would work and administered the test over the course of one hour. In Detective Durham's opinion, [Misskelley] was being deceptive in his answers and he was advised that he had failed the test. At that point, [Misskelley] became nonresponsive.
 
Detective Bryn Ridge and Inspector Gary Gitchell began another interrogation of [Misskelley] at about 12:40 p.m. They employed a number of techniques designed to elicit a response from [Misskelley]. A circle diagram was drawn and [Misskelley] was told that the persons who committed the murders were inside the circle and that those trying to solve the crime were on the outside. He was asked whether he was going to be inside the circle or outside. He apparently had no response. He was then shown a picture of one of the victims and had a strong reaction to it. According to Gitchell, [Misskelley] sank back into his chair, grasped the picture and would not take his eyes off it. Yet, he still did not speak. Finally, Gitchell played a portion of a tape recorded statement which had been given by a young boy named Aaron. The boy was the son of a friend of [Misskelley]'s and had known the victims.[[9]] The portion of the statement which the officers played was the boy's voice saying, “nobody knows what happened but me.” Upon hearing this, [Misskelley] stated that he wanted out and wanted to tell everything.
 
The officers decided to tape record a statement and received the confessions which are set out above. At the beginning of the first statement, on tape, [Misskelley] was advised of his rights for the third time. The rights were fully explained to him, and the waiver of rights read to him verbatim.
 
The evidence presented by [Misskelley] at the suppression hearing consisted primarily of the testimony of polygraph expert Warren Holmes. Mr. Holmes testified that, in his opinion, [Misskelley] had not been deceptive in his answers to the polygraph questions. He raised the possibility that [Misskelley] had been wrongly informed that he had failed.
 
Misskelley v. State, 915 S.W.2d 702, 710-11 (Ark. 1996).
 
            The Arkansas Supreme Court described the contents of Misskelley’s statements as follows:
At 2:44 p.m. and again at approximately 5:00 p.m., [Misskelley] gave statements to police in which he confessed his involvement in the murders. Both statements were tape recorded.
 
The statements were the strongest evidence offered against [Misskelley] at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration.
 
The statements were obtained in a question and answer format rather than in a narrative form. However, we will set out the substance of the statements in such a way as to reveal with clarity [Misskelley]'s description of the crime:
 
In the early morning hours of May 5, 1993, [Misskelley] received a phone call from Jason Baldwin. Baldwin asked [Misskelley] to accompany him and Damien Echols to the Robin Hood area. [Misskelley] agreed to go. They went to the area, which has a creek, and were in the creek when the victims rode up on their bicycles. Baldwin and Echols called to the boys, who came to the creek. The boys were severely beaten by Baldwin and Echols. At least two of the boys were raped and forced to perform oral sex on Baldwin and Echols. According to appellant, he was merely an observer.
 
While these events were taking place, Michael Moore tried to escape and began running. [Misskelley] chased him down and returned him to Baldwin and Echols. [Misskelley] also stated that Baldwin had used a knife to cut the boys in the facial area and that the Byers boy was cut on his penis. Echols used a large stick to hit one of the boys. All three boys had their clothes taken off and were tied up.
 
According to [Misskelley], he ran away from the scene at some point after the boys were tied up. He did observe that the Byers boy was dead when he left. Sometime after [Misskelley] arrived home, Baldwin called saying, "we done it" and "what are we going to do if somebody saw us." Echols could be heard in the background.
 
[Misskelley] was asked about his involvement in a cult. He said he had been involved for about three months. The participants would typically meet in the woods. They engaged in orgies and, as an initiation rite, killing and eating dogs. He noted that at one cult meeting, he saw a picture that Echols had taken of the three boys. He stated that Echols had been watching the boys.
 
[Misskelley] was also asked to describe what Baldwin and Echols were wearing the day of the murders. Baldwin was wearing blue jeans, black lace-up boots and a T-shirt with a rendering of a skull and the name of the group Metallica on it. Echols was wearing black pants, boots and a black T-shirt.
 
[Misskelley] initially stated that the events took place about 9:00 a.m. on May 5. Later in the statement, he changed that time to 12:00 noon. He admitted that his time periods might not be exactly right. He explained the presence of the young boys by saying they had skipped school that day.
 
The first tape recorded statement concluded at 3:18 p.m. At approximately 5:00 p.m., another statement was recorded. This time, [Misskelley] said he, Echols and Baldwin had come to the Robin Hood area between 5:00 and 6:00 p.m. Upon prompting by the officer, he changed that to 7:00 or 8:00 p.m. He finally settled on saying that his group arrived at 6:00 p.m. while the victims arrived near dark. He went into further detail about the sexual molestation of the victims. At least one of the boys had been held by the head and ears while being accosted. Both the Byers boy and the Branch boy had been raped. All the boys, he said, were tied up with brown rope[.]
[Misskelley]’s statements are a confusing amalgam of times and events. Numerous inconsistencies appear, the most obvious being the various times of day the murders took place. Additionally, the boys were not tied with rope, but with black and white shoe laces. It was also revealed that the victims had not skipped school on May 5.
 
Id. at 707-08.
 
3.         Other Evidence Bearing On The Unreliability of The Misskelley Statement
                      
            Not only had the victims attended school during the day on May 5, 1993, but Baldwin had as well, (MRT 946; EBRT 974, 1754), and it was established during the Echols trial that Echols had been at a doctor’s appointment that morning. (EBRT 1852, 1891, 1915, 1948, 2638, 2677, 2701, 2734.) Indeed, uncontradicted testimony was admitted at Misskelley’s trial that Misskelley had been on a roofing job the entire morning of May 5th. (MRT 1104-05, 1113.) That being so, when Misskelley early in his statement described getting up on the morning of May 5th, receiving a phone call from Jason Baldwin, meeting with Baldwin and Echols, and walking to the Robin Hood woods at 9 a.m. in the morning, he was describing a series of events that never happened.
            When Misskelley then described the victims being intercepted on the morning of the 5th as “they’s going to catch their bus and stuff, and they’s on their bikes,” and stated that the victims then “skipped school” (MRT 946-47), he was engaging in fiction. When he stated that he witnessed Echols and Baldwin committing the killings and then he “went home by noon,” he again was inventing a narrative, as both the victims and Baldwin were sitting in school while Misskelley was roofing at noon, and the victims were riding their bikes around their neighborhoods six and a half hours later. Detective Ridge, one of the interrogators, admitted being shocked when Misskelley said the little boys were killed at noon, because he knew the little boys were in school at noontime, and their killings occurred between 6:30 on May 5 and early in the morning on the 6th; he did not raise the inconsistency with Misskelley, however, because “when you start contradicting somebody, then they stop talking.” (MRT 904-05.)
            The police terminated the first recorded statement of Misskelley at 3:18 p.m. and attempted to obtain a warrant, but were told by the issuing magistrate that there were problems with the time sequence described by Misskelley. (MRT 154-56, 193, 212-20.) During the second interview beginning at 5 p.m., Misskelley moved the time the victims were seized back to five or six o’clock, again a false statement, only to have the police tell him he had stated earlier in the interview the time was actually seven to eight (which Misskelley had not done in the earlier recorded interview), a suggestion to which Misskelley then acceded. Having invented a story about meeting Baldwin and Echols and walking to Robin Hood woods in the morning, Misskelley never explained how he came to be in the presence of his codefendants later that day.
            Of great importance, a person who had in fact been present at the commission of the crime would have seen the victims hog-tied — i.e., left hand to left foot, right hand to right foot — with shoe laces of different colors, including white and black, taken from the victims’ own shoes. (EBRT 195-96, 971-72.) A true memory of binding the victims in such a horrible way with their shoelaces removed from their own sneakers would surely have been indelible. Yet in his statement Misskelley said only that the victims’ hands were tied, and that was done with brown rope. His interrogators attempted to have Misskelley correct this false description by suggesting the boys would have run away had only their hands been tied, but Misskelley failed to come up with the explanation that would have been obvious to any one who actually witnessed the murders: the hog-tying with shoelaces. Finally, Detective Ridge flatly asked, “were [their] hands tied in a fashion that they couldn’t have run, you tell me?” Misskelley replied: “They could run[.]”
            Ridge admitted to again being shocked when Misskelley falsely stated that the victims were bound with brown rope but agreed that he had been happy to get an incriminating statement from Misskelley because the police were under a lot of pressure to solve the crimes. (MRT 905-06.)
            Moreover, when Misskelley described Damien Echols taking a “big old stick” and using it to choke Chris Byers to death, he again was speaking falsely, for an autopsy revealed Chris Byers had suffered no injuries to his neck consistent with choking, much less the fractures that would result from being asphyxiated with a stick. (MRT 852.) Similarly, one of the few details that Misskelley readily volunteered at the beginning of his interview was he saw Echols “start[] screwing them,” (Exh. A), but the state pathologist testified that the victims suffered absolutely none of the injuries to their anal cavities that would necessarily be present if an adult sodomized a child. (EBRT at 1102-03, 1883-84.) And though Misskelly stated that he saw Echols and Baldwin “beat them up real bad” before the two took the victims’ clothes off, (Exh A), there was no blood nor any other evidence of a beating (tears or rips in the material) located on the victims’ clothing when it was recovered from the crime scene. (EBRT 957-63, 1737-43.)
            Testimony was offered at the Misskelley trial that on the day of Jessie’s arrest, he and Officer Allen joked about a reward of $40,000 and the fact that if a conviction was obtained, Jessie would be able to buy himself a new truck. (MRT 1183.) Finally, Misskelley’s defense called a substantial number of witnesses who testified that Misskelley had been at the Highland Trailer Park in the early evening of May 5th when the police were called to the area in regard to a neighborhood dispute, and then had gone wrestling. (MRT 1124-29, 1149-52, 1161-63, 1173-75, 1180-82, 1188-90, 1198-1200, 1211-13.)
            As was established at the Echols trial, there had been at least one other confession by a Christopher Morgan in regard to the murder of the three eight-year-olds that was deemed unreliable. Morgan, who knew the three boys and had left the Memphis area three or four days after the homicides, had told police in Oceanside, California in an interview on May 17, 1993 that maybe he had blacked out, screwed the three boys, killed them, and cut off their arms and legs. (EBRT 2054-61, 2841-48.)
4.         The Misskelley Verdict And Accompanying Publicity
 
            On January 28, 1994, the Jonesboro Sun carried a front page story about the playing of the Misskelley confession in court, including graphic descriptions of Echols and Baldwin beating and sexually abusing the three victims. (Exh. D.) An article in the Jonesboro Sun on February 4, 1994 reported the prosecutor’s use in closing argument of the Misskelley statement, including its references to Echols and Baldwin. (Exh. E.) Misskelley was convicted in Clay County on February 4, 1994. Press coverage of the verdict on February 5th described Misskelley’s statement of June 3, 1993, stating that Misskelley had confessed that he had helped subdue the victims but that it was Echols and Baldwin who “beat, cut, and sexually abused the boys.” (See Exh. F, Arkansas Democrat-Gazette article, Feb. 5, 1994.)
            D.        The Echols Trial
                        1.         Pretrial Proceedings
            On February 22, the day jury selection was to begin in the Echols-Baldwin trial, this Court held an extended proceeding in chambers dealing with the issue of whether, in an effort to obtain the testimony of recently-convicted Jesse Misskelley, the prosecution had acted improperly in interviewing Misskelley on a number of occasions over his attorney’s objections and, in some instances, without defense counsel being present, and in then having Misskelley brought to Jonesboro to testify at the Echols-Baldwin trial. (EBRT 512, et. seq.; 1290, et seq.) The Court indicated that it would find an independent attorney to interview Misskelley and determine whether he wished to testify over the objections of his trial attorneys in return for use immunity, (EBRT 560-618, 1338-96), and appointed Philip Wells to perform that task. (EBRT 576, 1354.) Mr. Wells interviewed Misskelley and reported that Misskelley wished to consult with his parents before deciding whether to enter into a bargain in exchange for his testimony. (EBRT 578-82, 1356-60.)
            The following morning, newspapers reported that the trial judge in the Echols and Baldwin case had cleared the way for Jessie Lloyd Misskelley Jr. to testify against Echols and Baldwin. One report continued:
Misskelley’s testimony or statement is important to prosecutors. In a June 3, confession to West Memphis police, he said he helped Echols and Baldwin subdue the victims on May 5 and watched as the teen-agers beat and sexually abused Christopher Byers, Michael Moore, and Steve Branch.
 
(Exh. G, Arkansas Democrat-Gazette, Feb. 23, 1994.) The press further reported that the prosecution had asked Jesse Misskelley’s father to convince his son to testify in return for a reduced sentence of forty years. (Id.)
            Also on the morning of February 23rd, the court announced that Misskelley had decided not to testify, and the parties agreed that there would be no further contact with him by the prosecution without prior notice to defense counsel. (EBRT 619, 1397.)
            On February 25, 1994, Baldwin’s attorney, Paul Ford, asked to make a record regarding his objection to statements made by Phillip Wells that Ford saw on television the previous evening. (EBRT 672, 1451.) Ford characterized the statements as “alarming . . . by virtue of [Wells] . . . standing as a liaison of the Court[.]” Ford stated:
On a Channel Eight news report last night [Wells] said that Jessie had not made up his mind. [Jessie] was going back and forth whether he would testify, whether he would not testify. He was talking to his daddy. But he also said that [Jessie] has decided if he will testify, he will testify to the truth.
 
And I feel like that statement coming from that impartial capacity means that it’s almost the Court indicating that if he testifies, he will be testifying to the truth[.]
 
(EBRT 672-73, 1451-52.)
                        2.         Press Coverage of Opening Statements
            Following opening statements on February 28, 1993, the Arkansas Democrat-Gazette reported that Echols, Baldwin, and Misskelley had been arrested “based on a statement Misskelley gave police describing their involvement in the killings.” (Exh. H, Arkansas Democrat-Gazette, March 1, 1994; see also Exh. I, Jonesboro Sun, March 2, 1994 (“Misskelley confessed to being present while Echols and Baldwin killed the boys.”).) The article continued that a transcript of the statement revealed that Misskelley said “Echols and Baldwin killed the boys while he watched, and that the three teenagers belong to a cult whose members eat dogs during rituals.” (Exh. H.)
            On the same day, Paul Ford and petitioner’s trial counsel, Val Price, objected outside the presence of the jury that Phillip Wells was standing at the courtroom rail and holding what amounted to a press conference regarding whether or not Jessie Misskelley had decided to testify. (EBRT 887-89, 1667-69.) The Court stated that it had been inappropriate for Wells to describe himself as a court liaison and he would tell Wells to refrain from making comments in the future. (EBRT 888-89, 1668-69.)
                        3.         The Prosecution’s Evidence Against Echols
 
            In denying Echols’ direct appeal, the Arkansas Supreme Court summarized the evidence introduced against him at trial as follows:
Anthony and Narlene Hollingsworth were well acquainted with Echols and testified that they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found. The witnesses testified that Echols had on a dark-colored shirt and that his clothes were dirty. ..
 
Twelve-year-old Christy VanVickle testified that she heard Echols say he “killed the three boys.” Fifteen-year-old Jackie Medford testified that she heard Echols say, “I killed the three little boys and before I turn myself in, I'm going to kill two more, and I already have one of them picked out[.]”
 
Lisa Sakevicius, a criminalist from the State Crime Laboratory, testified that she compared fibers found on the victim's clothes with clothing found in Echols's home, and the fibers were microscopically similar.
 
Dr. Frank Peretti, a State Medical Examiner, testified that there were serrated wound patterns on the three victims. On November 17, 1993, a diver found a knife in a lake behind Baldwin's parents' residence. The large knife had a serrated edge and had the words “Special Forces Survival Roman Numeral Two” on the blade. Dr. Peretti testified that many of the wounds on the victims were consistent with, and could have been caused by, that knife.
 
Deanna Holcomb testified that she had seen Echols carrying a similar knife, except that the one she saw had a compass on the end. James Parker, owner of Parker’s Knife Collector Service in Chattanooga, Tennessee, testified that a company distributed this type of knife from 1985-87. A 1987 catalog from the company was shown to the jury, and it had a picture of a knife like the knife found behind Baldwin’s residence. The knife in the catalogue had a compass on the end, and it had the words “Special Forces Survival Roman Numeral Two” on the blade. The jury could have made a determination whether the compass had been unscrewed, and, in assessing the probativeness of the location of the knife introduced at trial, heard ample evidence that Echols and Baldwin spent much time together[.]
 
The State's theory of motive was that the killings were done in a satanic ritual. On cross-examination, Echols admitted that he has delved deeply into the occult and was familiar with its practices. Various items were found in his room, including a funeral register upon which he had drawn a pentagram and upside-down crosses and had copied spells. A journal was introduced, and it contained morbid images and references to dead children. Echols testified that he wore a long black trench coat even when it was warm. One witness had seen Echols, Baldwin, and Misskelley together six months before the murders, wearing long black coats and carrying long staffs. Dr. Peretti testified that some of the head wounds to the boys were consistent with the size of the two sticks that were recovered by the police.
 
Dr. Dale Griffis, an expert in occult killings, testified in the State’s case-in-chief that the killings had the “trappings of occultism.” He testified that the date of the killings, near a pagan holiday, was significant, as well as the fact that there was a full moon. He stated that young children are often sought for sacrifice because “the younger, the more innocent, the better the life force.” He testified that there were three victims, and the number three had significance in occultism. Also, the victims were all eight years old, and eight is a witches' number. He testified that sacrifices are often done near water for a baptism-type rite or just to wash the blood away. The fact that the victims were tied ankle to wrist was significant because this was done to display the genitalia, and the removal of Byers's testicles was significant because testicles are removed for the semen. He stated that the absence of blood at the scene could be significant because cult members store blood for future services in which they would drink the blood or bathe in it. He testified that the “overkill” or multiple cuts could reflect occult overtones. Dr. Griffis testified that there was significance in injuries to the left side of the victims as distinguished from the right side: People who practice occultism will use the midline theory, drawing straight down through the body. The right side is related to those things synonymous with Christianity while the left side is that of the practitioners of the satanic occult. He testified that the clear place on the bank could be consistent with a ceremony[.]
 
Lisa Sakevicius, the criminalist who testified about the fibers, stated that Byers's white polka-dot shirt had blue wax on it and that the wax was consistent with candle wax.
 
Detective Bryn Ridge testified that Echols said he understood the victims had been mutilated, with one being cut up more than the others, and that they had drowned. Ridge testified that when Echols made the statement, the fact that Christopher Byers had been mutilated more than the other two victims was not known by the public[.]
 
Echols took the witness stand . . . . When asked about his statement that one victim was mutilated more than the others, he said he learned the fact from newspaper accounts. His attorney showed him the newspaper articles about the murders. On cross- examination, Echols admitted that the articles did not mention one victim being mutilated more than the others, and he admitted that he did not read such a fact in a newspaper.
 
Echols I, 936 S.W.2d at 518-19.
            A reviewing court faced with an insufficiency of the evidence claim must assume that all of the state’s evidence is credible and draw every rational inference supported by that evidence in favor of the prosecution. The Arkansas Supreme Court did just that in rejecting Echols’ insufficiency claim on direct appeal. That ruling by the Court, however, did not address the relative strength of the proof offered by the state, an issue relevant to the instant motion. In fact, the accuracy and persuasiveness of each component of the state’s evidence against Echols was subject to serious question.
                                   a.         The Ballpark Girls
            In rejecting Echols’s appeal of the denial of his Rule 37 motion, the state Supreme Court observed that the “most significant” evidence offered against petitioner at trial “were his statements that were overheard by two girls that he had ‘killed the three boys,’ and that ‘I'm going to kill two more, and I already have one of them picked out.’” Echols II, 127 S.W.3d at 504 (citing Echols I, 936 S.W.2d at 518).
            Echols did attend a softball game with Baldwin sometime between May 5th and his arrest on June 3rd. (EBRT 1962, 1976 2748, 2762.) According to the two girls, Echols’s statements were made near a concession stand to a “whole crowd of people,” (EBRT 1815, 2600), at least six or seven of whom were with Damien, (EBRT 1825, 2611), and were heard by one of the girls at a distance of 15 to 20 feet. (EBRT 1818-1819, 2604, 2605.) Neither of the girls came forward with their story until after Echols had been arrested. (EBRT 1817, 1831, 2603, 2617.)
                                    b.         The Knife in the Lake
            There was no meaningful evidence that the knife in the lake (State’s exh. 77) was used in the slaying of the three boys. Doctor Peretti said some of the boys’ wounds were made with a serrated knife, and therefore were consistent with the serrated knife found in the lake, but Peretti testified that the same could have been said of almost any serrated knife. (EBRT 1108, 1889.) Indeed, Doctor Peretti said that the victims’ wounds could have been caused by a serrated knife owned by Mark Byers, the step-father of Chris Byers, (EBRT 1085, 1866), which did have on it traces of blood consistent with that of the young Byers.[10] Just as Peretti could not say the Byers knife was used in the slayings, he could not say that the knife in the lake was so used. (EBRT 1109, 1890.) See Echols I, 936 S.W.2d at 969 (“On cross-examination, Dr. Peretti testified that he had never stated that the knife found behind Baldwin's house caused the injuries[.]”)
                        k                      c.         The Hollingsworth Testimony
            Anthony and Narlene Hollingsworth testified that “they saw Echols and his girlfriend, Domini Teer, walking after 9:30 on the night of the murders near the Blue Beacon Truck Stop, which is near Robin Hood woods where the bodies were found.”
            There is evidence in the record that the Hollingsworths were related to Domini Teer, and it was Domini that they described in more detail in their testimony. (EBRT 1969-70, 2755-56.) Narlene, who had had a “wreck” earlier in the day and was feeling sick, identified Domini based in part on her pants with flowers on them that Narlene had seen Domini in previously. (EBRT 1295-96, 1300, 1303, 2076-77, 2081, 2084.) Anthony was specific in his physical description of Domini as being extremely thin, 5' 4" in height, and having red hair. (EBRT 1283, 2064.) But in Teers’s interview with the police on September 19, 1993, provided the defense in discovery, she stated that she had been home at 9:30 p.m., talking on the phone with petitioner Echols, who was also at home. (Exhibit M) In closing, the state agreed that the Hollingsworths were wrong in their positive identification of Domini. In the prosecution’s view, the person they identified as Domini was not even a female at all, but most likely was Jason Baldwin. (EBRT 2499-2500, 3288-89.)
            Additionally, the time of the supposed identification of Echols by the Hollingsworths, if believed, created more problems for the state’s case than it resolved. Doctor Peretti’s best estimate of the victims’ time of death was between 1:00 a.m. and 7:00 a.m on May 6th. (EBRT 1121, 1902.) If Echols had been walking with Domini near the Blue Beacon at 9:30 p.m. on the 5th, the state still would be left without an explanation of how Echols could be exercising control of the victims, who apparently were not killed until hours later.
            Narlene Hollingsworth admitted during her cross-examination that she was aware that her nephew L.G. Hollingsworth, whom she had been with earlier in the day, “probably” had been a suspect in the charged murders (EBRT 1303, 1310-11, 2084, 2091-92.)[11] At one point in her testimony, she stated that her son Anthony ate with the family, but lived out in a camper on her land, because “he has to.” (EBRT 1305, 2086.) The prosecution objected; Narlene added “He didn’t kill anyone;” and the court sustained the objection. (Id.)
            The testimony of the Hollingsworths apparently was met with a good deal of levity in the courtroom. Prosecutor Fogelman noted in closing: “I don’t think any one of you could forget Anthony and Narlene’s testimony...You laughed. We laughed. The defense attorneys laughed. Everybody laughed.” Fogelman argued that the testimony of the Hollingsworths should not be rejected because they were “simple.” (EBRT 2499, 3289.)
                                    d.         The Fiber Evidence 
           A prosecution witness testified that a green cotton and two green polyester fibers found on one of the victim’s clothing was similar in consistency and appearance to the fibers of a child’s shirt made of a cotton polyester blend found in the Echols residence. (EBRT 1468-69, 2251-52.) Echols could not have worn the t-shirt found in his home, a size 6. (EBRT 1470-71, 2253-54.)
            When the witness testified that a fiber was microscopically similar to that found in a garment, that simply meant that if a rack of clothes at Walmart was made at the same time from the same fiber, a fiber identified as microscopically similar to those of one garment also “could have come from one of these other items that was hanging on the same rack.” (EBRT 1474-75, 2257-58.) The prosecution witness agreed that there were insufficient unique individual microscopic characteristics to identify the green fiber as coming from the size 6 shirt, which in fact was blue in color. (EBRT 1474, 1477, 2257, 2260.)
                                    e.         The Ridge Statement
            Detective Bryn Ridge testified that in an unrecorded interview he conducted over many hours on May 10, 1994 with Echols, petitioner said he understood the victims had been mutilated, with one being cut up more than the others, and that they had drowned. (EBRT 1566, 2349.) This statement would be incriminating if the fact that one of the victims (Chris Byers) had been injured more than the other two victims was not yet in the public domain.
            Echols testified that on May 10th he discussed with Ridge things he had “seen on TV, newspapers [and] people talking,” (EBRT 2029, 2816), and that when Ridge had asked him whether one victim had been hurt worse than the others, he had replied, “I guess so.” (EBRT 1958, 2029-30, 2744, 2816-17.) The local and state press had reported on May 7, 1993, the day following the discovery of the bodies, that the victims had been bound and sexually mutilated, and that Mark Byers, the father of Chris Byers, had stated that one boy had been hit over the eye, another’s jaw was injured, and the third “was worse than that” or “looked worse than that.” (See Exh. K, Commercial Appeal, May 7, 1993; Exh. L, West Memphis Evening Times, May, 7, 1993; and Exh. M, Democrat-Gazette, May 8, 1993.) Thus, the fact that one victim had been more severely mutilated than the others was in the public domain three days before the May 10th interview. Furthermore, as Ridge himself testified, at the time of the interview there were “all kinds of rumors of how people thought they died” circulating at the time in the community. (EBRT 1577, 2360.)  
            Additionally, prior to May 10th, Echols had already been through at least two other interviews in which police officers, including Officer Sudbury, had discussed the murders with him at length and asked the same leading questions as did Ridge from a questionnaire developed by Sudbury. (EBRT 1571, 1586, 1588, 1956, 2354, 2369, 2371, 2742.) Echols had discussed with Sudbury rumors that he had heard about the condition of the bodies, which everyone in West Memphis was talking about. (EBRT 1954-55, 2740-41.)
                                    f.          The “Occult Expert” (Dale Griffis)
            Although claiming to have earned a masters and doctorate in three years from “Columbia Pacific University” (a “school without walls” in California), Griffis lived in Ohio and worked as a full time police officer and took no classes while earning these degrees. (EBRT 1745, 1752-1753, 2529, 2536-37.) Griffis once described his role as helping “brother police officers” who are under “a hell of a lot of pressure when I get there.” (EBRT 1800, 2584.)
            On cross-examination, Griffis could offer no empirical basis for his speculation that the date of May 5 suggested a satanic impulse for the killings, or that satanic killings are more likely when the moon is full. (EBRT 1777-79, 2561-63.) He agreed that the manner in which the victims were displayed could indicate a sex crime, not a satanic one; the same was true of the genital mutilation. (EBRT 1780, 2564.) He knew of no satanic crime in which the victims were bound as they were in this case. (Id.) Griffis did refer to a killing in Rhode Island as involving satanic motivation, but that crime involved a female burned in a circle containing a pentagram; none of these factors was present in the present case. (EBRT 1781, 2565.) Griffis agreed that the bodies could have been placed in water to drown or conceal the victims, rather than for satanic reasons. (EBRT 1781-82, 2565-66.) He also agreed that the absence of blood at the scene could simply mean that the victims were killed somewhere else. (EBRT 1783, 2567.)
            Defense expert Robert Hicks was employed by the Department of Justice of Virginia and had published two books on the issues of police investigation and alleged satanic crimes. (EB 2227-28, 3015-16.) Hicks had acquired his advanced degree from a major university which requires candidates to be on campus and actually attend classes, (EBRT 2225-26, 3013-14) — in contrast to Griffis’s mail-order “masters” and “Ph.D.” that he had obtained in three years without attending classes while working full time as a police officer, (EBRT 1752-53, 2536-37). Hicks testified that there was no empirical basis for Griffis’ opinions about the charged murders having the “trappings of occult killings,” be it in relation to pagan holidays, the full moon, disfigurement or display of sexual organs, or the cleaning of a crime scene. (EBRT 2254-58, 3042-46.) Indeed, in response to a defense objection that Griffis’ failure to cite specific cases revealed there was no “established scientific opinion or body of work which is the basis of his opinion,” the Court observed it did not “know of any particular scientific field other than perhaps what he’s indicated that would allow such testimony.” (EBRT 1722-23, 2506-07.)
                                    g.        The Michael Carson Testimony
            Michael Carson testified that he talked to Baldwin about the murders. The Arkansas Supreme Court described the Carson testimony as follows:
I said, just between me and you, did you do it. I won't say a word. He said yes and he went into detail about it. It was just me and Jason [Baldwin]. He told me he dismembered the kids, or I don't know exactly how many kids. He just said he dismembered them. He sucked the blood from the penis and scrotum and put the balls in his mouth.
Echols I, 926 S.W.2d at 520.
 
            Carson, who was sixteen at the time of his testimony, was then attending an alternative school for “kids who have trouble keeping up or troublemaker” and was “really nervous” testifying. (EBRT 1173, 1180.) Carson had spent five days in the same juvenile detention facility where Baldwin was being held in August of 1993. (EBRT 1165.) Carson was being held in relation to a burglary he committed to steal guns in Craighead County, but also had burglarized and destroyed property inside a home in Lawrence County. (EBRT 1174, 1182-83.) Carson claimed that after being in solitary for two days, he met Baldwin on the third day and played cards with him. (EBRT 1176.) At that time, Baldwin denied his involvement in the murders, but a day later admitted his culpability and gave Carson details. (EBRT 1167, 1177.)
            Carson purportedly told his father about Baldwin’s alleged admission in September or October of 1993, but did not contact authorities with his story until February 2, 1994, at the height of media focus on the Misskelley trial. (EBRT 1184.)
            The trial judge informed the jury that Carson’s testimony was limited to Baldwin. (EBRT 1164.) But when Dale Griffis’ testified that the killers of the three victims “were using the trappings of occultism during this event,” testimony which was primarily offered against Echols, he did so in response to a hypothetical question which assumed “that the testimony showed that the defendant Jason Baldwin sucked the blood from the penis of one of the victims.” (EBRT 1758.) Thus, despite the court’s admonition, the state relied on the Carson testimony to convict Echols.
                        4.         The Prosecution’s Reference To Misskelley’s “Confession”
 
            Prior to the Echols-Baldwin trial, prosecutor Davis had stated that the state needed Jesse Misskelley to testify against Echols and Baldwin “real bad.”[12] Misskelley was not called to testify, and any out-of-court statements he had made were plainly inadmissible against Echols and Baldwin. Because there was no evidence linking Misskelley to the charged crimes other than his out-of-court statements, no evidence concerning Misskelley was in any way relevant or admissible at the Echols and Baldwin trial. The only impact that mentioning Misskelley during the Echols-Baldwin trial could have had on jurors would be to provoke those jurors to connect the defendants to the charged crimes based on what they had heard outside the courtroom regarding Misskelley: i.e., that he had confessed to, and been convicted of, the charged murders.
           On March 1, 1994, the second day testimony was taken, in response to a question that called for a yes or no answer,[13] West Memphis Police Department Detective Bryn Ridge stated on cross-examination, “I didn’t take this stick into evidence until the statement of Jessie Misskelley, in which he said . . .” (EBRT 923, 1703.) Petitioner’s trial counsel, Val Price, immediately objected and moved for a mistrial. In further discussion outside the presence of the jurors, Price argued, “The basis [for the mistrial] is the question that I asked the officer did not call for him blurting out the fact that Jessie Misskelley gave a confession. The whole purpose for our trial being severed from Mr. Misskelley’s trial in the first place, was the confession that Jessie Misskelley gave.” (EBRT 924, 1704.)
            This Court reasoned, “He shouldn’t have volunteered that, but I certainly don’t see any basis for a mistrial.” (EBRT 925, 1705.) After more objections by counsel, this Court stated, “I suggest, gentlemen, that there isn’t a soul up on that jury or in this courtroom that doesn’t know Mr. Misskelley gave a statement. Now the contents of the statement certainly would be prejudicial. And the contents of the statement, this Court will not allow, and that was the reason for the severance in the first place.” (EBRT 930-31, 1710-11.) Ultimately, the Court gave the following cautionary instruction to the jury:
Ladies and gentlemen, you are instructed and told at this time that you are to disregard and not consider the last response made by Detective Ridge to a question from Mr. Price and you’re to – if you can remember it – you’re to strike it from your mind and not give it any consideration.
 
(EBRT 934, 1714.)
            The following day, the press reported Ridge’s reference to the Misskelley statement, stating that the police had “used Misskelley’s June 3 statement to pull together enough evidence to arrest the three teenagers in the deaths.” (Exh. N, Arkansas Democrat-Gazette, March 2, 1994) It was also reported that the Court had suggested “there isn’t a soul up on that jury or in this courtroom that doesn’t know Mr. Misskelley gave a statement.” (Id.) The Jonesboro Sun reported that “[u]nder the hearsay law, the state is prevented from telling jurors about Misskelley’s June 3 confession to West Memphis police.” (Exh. I.)
            The press also reported on March 2nd that negotiations by the prosecution to obtain Misskelley’s testimony were continuing, and that Phillip Wells had been appointed by the court “to meet with Misskelley to give him a ‘fresh perspective’ on what effect his testimony could have on his own case and that of Baldwin and Echols.” (Exh. N.) Wells, who described himself to the press as a “court liaison,” had announced to the media that there was “no question the prosecution’s office will benefit” from Misskelley’s possible testimony. (Id.)
                        5.         The Print Evidence
            Detective Bryn Ridge testified that casts were made of prints at the crime scene, one a shoe print, another that could have been a barefoot print or fingerprint. (EBRT 965-66, 1745-46.) The police were unable to match the print with anyone’s known print. (Id.) They had obtained fingerprints and barefoot prints of Echols. (Id.) They never found anything from the Echols household that matched any prints in the area of the crime scene. (EBRT 972, 1752.) They never found any shoe imprints that matched those of the victims. (EBRT 973, 1753.)  
                        6.         The Alibi Evidence
            Echols offered extensive evidence, including his own testimony, that he was never in Robin Hood Woods on May 5, 1993, and thus could not have killed and did not murder Chris Byers, Michael Moore, and Stevie Branch.
            Pam Hutchinson, petitioner’s mother, testified that on May 5, 1993, she was living at the Broadway Trailer Park in West Memphis with Joe Hutchinson, her husband and Damien’s father, her mother, her daughter Michelle, and Damien. (EBRT 1847, 2633.) Pam awoke Damien around 10 A.M. because he had a doctor’s appointment around 10:30 or 11:00. After leaving the doctor’s and dropping off a prescription,[14] Mrs. Hutchinson left Damien off at Lakeshore at about 1:00 p.m. at the home of his girl friend, Domini Teer. (EBRT 1852, 2638.) She returned home and stayed there until about 4:00. She received a phone call from Damien and went with Joe and Michelle to pick him and Domini up at the laundromat on Missouri Street. (EBRT 1853, 2639.)
            They then dropped off Domini before going to the Marion Discount Pharmacy to pick up Damien’s prescription at about 4:00 or 4:30. (EBRT 1854-55, 2640-41.) They then went home together and had dinner. (EBRT 1855, 2641.) Around 7:00 p.m, the family — Pam, Joe, Michelle, and Damien — went to see the Sanders family on Balfour street in West Memphis. (EBRT 1856, 2642.) Only Jennifer, the Sanders’ daughter, was home, so they left a note. (EBRT 1857, 2643.) Damien returned home for the entire evening and stayed on the phone. (EBRT 1858, 2644.) Pam remembered that Damien and Domini had an argument before Damien went to bed at about 11:00 p.m. (EBRT 1859, 2645.)
            Michelle Echols likewise testified that on May 5th, her mother took her brother to the doctor. (EBRT 1915, 2701.) Michelle stayed home until about 4:00 p.m., then went with her mother and father to get Damien and Domini from the laundromat. (EBRT 1916, 2701.) They picked Domini and Damien up from the laundromat, took Domini home, and then went back home. (EBRT 1917, 2703.)
            They stayed home for a while and then went to Randy and Susan Sanders’ house. It took them 10-15 minutes to get there. No one was at the Sanders house except for Jennifer. (EBRT 1918, 2704.) They watched a bit of television there, including part of “Beverly Hills 90210.” They then returned home. When they got home, Michelle used the phone and then her brother Damien was on the phone for quite a while. (EBRT 1919-20, 2705-06.) When she woke up the next morning at 9:00 a.m., her brother was still there. (EBRT 1921, 2707.)
            Jennifer Sanders confirmed that Pam and Joe Hutchinson, Damien, and Michelle visited her home on the evening of May 5th, (EBRT 2115-2116, 2902-03); her sister Stacy Sanders, who was visiting her cousin across the street, saw the Hutchinson family at the Sanders’ home on that night as well. (EBRT 2106-07, 2893-94.) The Sanders girls recalled that their parents had been out at a casino the night of May 5th, which their father and an independent witness confirmed. (EBRT 2126-28, 2133, 2913-15, 2920.)
            Petitioner testified he remembered going to the doctor’s office on May 5th because his ex-stepsister Carol Ashmore was there. (EBRT 1948, 2734.) He did not really recall what else he did that day, but was probably around the laundromat at 4:00 to 4:30 when his mother picked him and Domini up. (EBRT 1949, 2735.) He recalled going to the Sanders house when Jennifer was there alone. (EBRT 1950, 2736.) He then went home and talked on the phone to Holly George, Jennifer Bearden, Domini Teer, and Heather Cliette. Bearden gave a statement to the police on September 10, 1993, later provided to the defense in discovery, confirming that she had spoken to Echols on the phone on the evening of May 5, 1993. (Exh. O.) Echols and Domini had some kind of an argument. (EBRT 1952, 2738.)[15] He did not leave the house on the evening of May 5th. He did not kill any of the youngsters. He had nothing to do with their death, and had not even heard of them before he saw it on the news. He had never been to the Robin Hood Wood area. (EBRT 1953, 2739.)
            In rebuttal, the state did not call Jennifer Bearden, Domini Teer, Holly George, or Heather Cliette, or offer any other evidence refuting Echols’ testimony that he spoke to them on the phone on the day and evening of May 5th.
E.        The Echols Jury’s Bias and Misconduct
 
            Finally, as noted previously, evidence which has surfaced since the time of the Echols trial establishes that the fact-finding process during jury deliberations was gravely compromised by undisclosed juror bias against petitioner and serious instances of jury misconduct. That misconduct included the jury’s explicit reliance on the Misskelley confession in determining that the petitioner was guilty. Such juror bias and misconduct, discussed in detail in Echols’ concluding argument below, erodes any confidence the Court might otherwise have for the findings made and the verdicts returned by the Echols jury in 1993.
I.         PETITIONER IS ENTITLED TO RELIEF FROM HIS CONVICTIONS UNDER THE STATE’S “NEW SCIENTIFIC EVIDENCE” STATUTES IF HE CAN SHOW THAT UPON CONSIDERING THE NEW SCIENTIFIC EVIDENCE AND ALL OTHER EVIDENCE IN THE CASE — WHETHER OR NOT PREVIOUSLY ADMITTED OR ADMISSIBLE AT TRIAL — NO REASONABLE JUROR WOULD FIND HIM GUILTY BEYOND A REASONABLE DOUBT
                                  
            A.        The Arkansas Statutory Standard
 
            The 2001 statutes which provide relief for convicted parties based on exculpatory scientific evidence not available at the time of a petitioner’s trial contain a range of remedies: namely, “to discharge the petitioner or to resentence the petitioner or grant a new trial or correct the sentence or make other disposition as may be appropriate....”[16] (Emphasis added; see also § 16-112-208 (e)(1) (“If deoxyribonucleic acid (DNA) test results obtained under this subchapter exclude a person as the source of the deoxyribonucleic acid (DNA) evidence, the person may file a motion for a new trial or resentencing.”) (Emphasis added)
          Likewise, the 2001 statutes contain multiple standards defining the showing required to obtain relief. Specifically, § 16-112-201 (a) (1) mandates a remedy where “[s]cientific evidence not available at trial establishes the petitioner's actual innocence,” while § 16-112-201 (a) (2) orders relief where “[t]he scientific predicate for the claim could not have been previously discovered through the exercise of due diligence and the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would find the petitioner guilty of the underlying offense.” The two subsections are separated by an “or,” compelling the conclusion that they delineate conceptually distinct standards.
            This motion for a new trial presents an issue of first impression in Arkansas: i.e., which of these statutory standards for relief applies to the present motion, which seeks a new trial grant rather than the discharge of the petitioner? To state it differently, what legal standard must be met when the petitioner seeks not a directed verdict of acquittal as a matter of law from the circuit court which presided over his or her trial, but rather a new trial at which a jury will again decide guilt or innocence, albeit on the basis of a record amplified by new scientific evidence?            The most reasonable reading of § 16-112-201, the flagship of the “new scientific evidence” statutes passed in 2001, is that a greater evidentiary showing is required to obtain a greater remedy. A petitioner who wishes to be fully “discharged” from the criminal charges of which he or she has been convicted — in essence, a “get out of jail” card — must affirmatively prove to the court which tried the case that he or she is “actually innocent.” See § 16-112-201(a)(1). On the other hand, to gain a new trial, a petitioner must convincingly prove that he would be acquitted at a new trial. § 16-112-201(a)(2) (relief warranted if “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would find the petitioner guilty of the underlying offense.”) The evidentiary hurdle which must be cleared to obtain a new trial thus is considerable, yet clearly demands a lesser showing than that required to obtain a judicial order of acquittal. That conclusion is bolstered by § 16-112-208 (e)(3), the 2001 statute which expressly deals with claims for a new trial based on DNA evidence, and which directs that a new trial be granted “if the deoxyribonucleic acid (DNA) test results, when considered with all other evidence in the case regardless of whether the evidence was introduced at trial, establish by compelling evidence that a new trial would result in an acquittal.” (Emphasis added)
            B.        The House Decision
            The Arkansas Supreme Court has yet to render a decision in which it applies the statutory scheme for obtaining a new trial based on new scientific evidence to a specific set of facts. The bifurcation in statutory standards for relief in the post conviction context discussed above, however, does find a close parallel in the federal habeas corpus jurisprudence of the United States Supreme Court, which draws a distinction between the showing of “actual innocence” needed to wholly exonerate a defendant under the due process clause, and that showing of “actual innocence” which meets the statutory standard needed to defeat all state claims of procedural default. For that reason, the Supreme Court’s decision in House v. Bell, 547 U.S. 518 (2006) bears directly on the issue of the quality and quality of new evidence needed to establish “that no reasonable fact-finder would find the petitioner guilty of the underlying offense.” § 16-112-201(a)(2).
            In House, the defendant had raised a number of federal constitutional claims that the Tennessee courts had held could not be addressed on the merits because they were procedurally defaulted, i.e., they were brought too late in the course of state proceedings. The Supreme Court had previously held in Schlup v. Delo, 513 U.S. 298 (1995), that claims defaulted in state court due to state procedural rules generally cannot be heard in federal court, but that there is a “miscarriage of justice” exception for extraordinary cases where it appears likely that the defendant is innocent.
            House defined this “miscarriage of justice” standard as follows: “A petitioner's burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt – or, to remove the double negative, that it is more likely than not any reasonable juror would have reasonable doubt.” Id. “[B]ased on [the] total record, the court must make ‘a probabilistic determination about what reasonable, properly instructed jurors [now] would do.’” House, 547 U.S. at 538.
            Furthermore, just as Arkansas law requires that the new scientific evidence must be considered in the light of “all other evidence in the case regardless of whether the evidence was introduced at trial,” so the House-Shlup rule holds “the habeas court must consider ‘all the evidence,’ old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.” Unlike insufficiency of the evidence claims, as to which the habeas court must resolve every credibility issue and draw all reasonable inferences in favor of the prosecution, “[b]ecause [such a] claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record. If new evidence so requires, this may include consideration of ‘the credibility of the witnesses presented at trial.’” House, 547 U.S. at 538-39 (citing Schlup, 513 U.S. 298, and Jackson v. Virginia, 443 U.S. 307, 330 (1979).)
            House involved the murder of one Carolyn Muncey in Tennessee in the mid-1980s. No one witnessed the crime, although a witness testified that he had seen the defendant and his car in the area where the body was later discovered. The defendant had made false statements concerning his whereabouts when arrested, but testified and maintained his innocence at trial. “Central to the State's case... was what the FBI testing showed — that semen consistent (or so it seemed) with House's was present on Mrs. Muncey’s nightgown and panties, and that small bloodstains consistent with Mrs. Muncey’s blood but not House's appeared on the jeans belonging to House.” 547 U.S. at 528-29. House was convicted and sentenced to death.
            In House, the Supreme Court considered new DNA evidence, obtained through technology unavailable at the time of his trial, as to which it was undisputed that “in direct contradiction of evidence presented at trial, DNA testing has established that the semen on [the victim’s] nightgown and panties came from her husband . . . not from House.” Id. at 540. The state argued that this new evidence was irrelevant because it went only to the issue of whether the crime had been committed for a sexual motivation, and motive was not a necessary element of the charged crime that the government had to prove, at least at the guilt phase of House’s trial. The majority soundly rejected that contention:
From beginning to end the case is about who committed the crime. When identity is in question, motive is key. The point, indeed, was not lost on the prosecution, for it introduced the evidence and relied on it in the final guilt-phase closing argument. Referring to "evidence at the scene," the prosecutor suggested that House committed, or attempted to commit, some "indignity" on Mrs. Muncey that neither she "nor any mother on that road would want to do with Mr. House." 9 Tr. 1302-1303. Particularly in a case like this where the proof was, as the State Supreme Court observed, circumstantial, State v. House, 743 S.W.2d, at 143, 144, we think a jury would have given this evidence great weight. Quite apart from providing proof of motive, it was the only forensic evidence at the scene that would link House to the murder[.] . . .
 
A jury informed that fluids on Mrs. Muncey's garments could have come from House might have found that House trekked the nearly two miles to the victim's home and lured her away in order to commit a sexual offense. By contrast a jury acting without the assumption that the semen could have come from House would have found it necessary to establish some different motive, or, if the same motive, an intent far more speculative. When the only direct evidence of sexual assault drops out of the case, so, too, does a central theme in the State's narrative linking House to the crime. In that light, furthermore, House's odd evening walk and his false statements to authorities, while still potentially incriminating, might appear less suspicious.
 
Id. at 540-41.
            The Court then turned to the evidence that House’s pants had blood on them inconsistent with his own but consistent with that of the victim. On federal habeas, the defense had presented strong evidence that the victim’s blood had been spilled on House’s pants while both pieces of evidence were being transported in the trunk of the same car on their way to the FBI lab in Washington. The Court’s analysis of the evidence concerning spoilation of the “blood on the pants” evidence follows:
In sum, considering “all the evidence,” Schlup, 513 U.S., at 328 (quoting Friendly, 38 U. Chi. L.Rev., at 160), on this issue, we think the evidentiary disarray surrounding the blood, taken together with Dr. Blake's testimony and the limited rebuttal of it in the present record, would prevent reasonable jurors from placing significant reliance on the blood evidence. We now know, though the trial jury did not, that an Assistant Chief Medical Examiner believes the blood on House's jeans must have come from autopsy samples; that a vial and a quarter of autopsy blood is unaccounted for; that the blood was transported to the FBI together with the pants in conditions that could have caused vials to spill; that the blood did indeed spill at least once during its journey from Tennessee authorities through FBI hands to a defense expert; that the pants were stored in a plastic bag bearing both a large blood stain and a label with TBI Agent Scott's name; and that the styrofoam box containing the blood samples may well have been opened before it arrived at the FBI lab. Thus, whereas the bloodstains, emphasized by the prosecution, seemed strong evidence of House's guilt at trial, the record now raises substantial questions about the blood's origin.
 
Id. at 547-48.
 
            The majority observed that if the attack on the physical evidence had been all that the defense presented, the state’s countervailing evidence might have been sufficient to prevent relief, but the defense had also presented at the federal habeas hearing disturbing evidence that Mrs. Muncey had been killed by her husband, including extensive testimony of the husband’s abuse of his wife and, most importantly, of the husband’s admission to neighbors that he had killed his wife. Those neighbors were impeached with the fact that they had not come forward earlier, a fact they attempted to explain. The Court concluded:
It bears emphasis, finally, that [the neighbors’] testimony is not comparable to the sort of eleventh-hour affidavit vouching for a defendant and incriminating a conveniently absent suspect that Justice O'Connor described in her concurring opinion in Herrera as "unfortunate" and "not uncommon" in capital cases, 506 U.S., at 423; nor was the confession [the neighbors] described induced under pressure of interrogation. The confession evidence here involves an alleged spontaneous statement recounted by two eyewitnesses with no evident motive to lie. For this reason it has more probative value than, for example, incriminating testimony from inmates, suspects, or friends or relations of the accused.
 
                       The evidence pointing to Mr. Muncey is by no means conclusive. If considered in isolation, a reasonable jury might well disregard it. In combination, however, with the challenges to the blood evidence and the lack of motive with respect to House, the evidence pointing to Mr. Muncey likely would reinforce other doubts as to House's guilt.
 
Id. at 552-53.
 
            The House Court held that the petitioner had met this “actual innocence” standard:
 
Out of respect for the finality of state-court judgments federal habeas courts