Posts (page 2)

By Mara Leveritt
Arkansas Times

Published 10/8/2009

Every now and then, the phonies in power tip their hand. That happened, for instance, when Richard Nixon tape-recorded his private conversations, a decision that later allowed the world to learn how far Nixon was from the statesman he pretended to be.

As Seymour Hersh wrote after hearing the tapes: “Pejorative words and phrases dominated... Jews were ‘kikes,' blacks were ‘niggers,' and reporters were ‘press pricks.' ”

What the Arkansas Supreme Court did last week was not nearly so outrageous. Nevertheless, the high court did tip its hand as to its character when it issued an order — that no one had requested — for no higher or necessary purpose than covering its own ass.

Here was the court's dilemma: Its own policies require that records that have not been sealed by a court order are open to the public. Yet, when I asked to see unsealed records relating to the appeals of Damien Echols, Jason Baldwin and Jessie Misskelley Jr., the men popularly known as the West Memphis Three, the court's clerk, Leslie Steen, told me that they were not available because he himself had sealed them.

Steen explained that some parts of Baldwin's appeal had been sealed by retired Circuit Judge David Burnett, and so Steen had taken it upon himself to seal the appeals of all three men in their entirety. When I objected that only courts are authorized to seal records, the clerk replied that he had been sealing records on his own volition for years, that the justices knew he did so, and that they had never objected.

I wrote a column following that conversation in which I criticized the Supreme Court for sanctioning an illegal activity. I also charged that the court was violating the Arkansas Freedom of Information Act, as well as its own administrative order regarding the availability of public records.

For a day or two after that, I allowed myself the slim hope that someone from the court would call and say, “We were sorry to read that your request was denied. That was obviously improper. You are welcome to see any records this court has that have not been sealed.”

Silly me. Not only did no call come, but the Arkansas Supreme Court has not publicly acknowledged at all the misuse of authority by its clerk. The body that is charged with the proper operation of this state's courts appears unwilling even to admit error when it occurs within its own walls.

But the court did take a kind of side-winding action. On Oct. 1, it issued an order requiring that Burnett “settle the record” as to which parts of the three men's appeals were sealed and which were not. In an unsigned opinion, the justices wrote that they had been “unable to determine” this matter for themselves.

That, my friends, is bunk, as Justice Paul Danielson — the only justice to dissent from the spurious opinion — politely pointed out. Danielson noted that asking a circuit judge to explain what had been sealed and what hadn't “vastly deviates from the typical procedures of this court.”

“Either the records, or portions thereof, were filed under seal at the circuit level, or they were not,” he wrote. “If the record does not indicate that certain exhibits or pleadings were filed under seal, then it seems clear they were not and are public record.

“It is the duty of the parties involved in a case, not this court, to ensure that certain documents are sealed if that is their intention. To this date, no motion to seal has been filed in our court in any of these cases.”

Danielson even delicately broached the subject of Steen's presumption that he could seal records at will. “After a case is filed with this court, our clerk is then to determine if that record, or portions therein, were originally sealed by the circuit court. If so, the same will be filed under seal here. The remainder is public record unless subsequently sealed by this court pursuant to a motion.” [Italics mine.]

This is no arcane debate about angels on a pin. Misuse of authority and disingenuous court orders are matters that strike at the very rule of law. They erode confidence in our courts.

The West Memphis case has become a symbol of that eroding confidence. But it represents only one of the hundreds of serious issues that come before the Arkansas Supreme Court every year. We citizens have a right to expect that our courts will address all of them with integrity — not cynical, self-serving, legalistic legerdemain when, for whatever reason, a court would rather not hold itself to the law.

http://www.arktimes.com/articles/articleviewer.aspx?ArticleID=28c54578-782f-4bb7-bece-40528a43f5b1

This was day two of Peretti’s testimony. The State moved once again to introduce State’s Exhibit 33 into evidence. This was a copy of Peretti’s curriculum vitae. Also entered were Exhibits 35-40 as well as the crime scene video narrated by Ridge during his testimony. At the close of yesterday’s testimony, the autopsies of Michael Moore and Steven Branch were completed. Today began Christopher Byers’ autopsy. As was the case yesterday, Peretti read from his own autopsy reports, speaking at the speed of light. He did cover the external and internal examinations as well as noting the injuries. He determined that Byers’ cause of death was homicide and due to multiple injuries. During the external exam, he said the Byers child had a pale body with multiple extensive injuries. Like the others, he had injuries to his ear and linear scratches. Peretti testified that Byers’ body was so pale because he had lost a massive amount of blood. He noted several bruises and contused areas, which meant he was alive during the attack. The most massive area of injury was to his genital region, and he stated that this area had been ‘excised and cut.’ He said that the skin on the shaft of the penis was cut in such a way to suggest that someone had been holding his testicles and then yanked them back to remove. He said other cuts in the area were defensive type wounds. He said the child was moving around while being attacked, trying to turn his body away from the knife. He said the injuries to the ear were consistent with a child being pulled forward for forced fellatio. He said he testified at the trials that the injuries were consistent, not that they were sexually inflicted. When asked if these injuries could have been made by an animal, Peretti said no. They were made with some type of ‘razor sharp implement or tool’ in his opinion.

Entered into evidence was State’s Exhibit 42, also known as the lake knife. He said this was something he did not see at autopsy. The State would come back to this knife.

Peretti was asked again what he meant by ‘contused’ areas, and Peretti said ‘bruising.’ He said there has to be life to have contusions. In other words, the injuries were antemortem. He said that injuries made to the mucosal surface of the mouth were done by the child’s teeth clamping down during a seizure. Peretti claimed that those who sustain massive head injuries will often have seizures. He said he saw no evidence of animal predation.

At this point, Holt asked Peretti if he had his own ‘one-to-one’ photo of the genital injuries of the Byers child with the lake knife. Peretti said he did. Holt put a photo of the genital area up on a projector screen and much time was spent with Holt holding up the lake knife against the excised area. Holt made cutting motions while Peretti agreed that the ‘serrated’ [or saw tooth edge] edge of the knife caused the injuries to the thighs while the cutting edge made the marks that removed the skin and scrotum. Peretti admitted that when he consulted with Sturner about the autopsies, animal predation was raised, but there was no evidence of it. He said that all injuries were made by a cutting instrument.

Holt then moved on to the meeting held with the current defense, the experts, and Peretti. He said he considered the meeting a one-sided gathering. Holt asked what animals were suggested as possibly having caused the injuries, and Peretti said they were dogs, cats, rats, crawfish, turtles, minnows, feral dogs, and coyotes. He was then asked whether or not he thought the injuries were made specifically by turtles. Peretti said he thought it wasn’t possible because he knew how turtles fed and attacked their prey. He said turtles, especially snapping turtles, feed by holding down their food with their webbed feet splayed. He said they would dig their claws into it, and bite off chunks of flesh. He said they basically crush, rip, and then swallow. Holt asked if any of those animals mentioned or even turtles fed under water. Peretti said they did not and he didn’t know of any animal that could. He said if turtles had been responsible, there would have been claw marks, because turtles dig into their prey with their claws. He mentioned that he became ‘annoyed’ at the meeting in 2007 with the defense experts because they had changed from human bite marks to animals. He said he was criticized by these folks for missing a ‘bite mark’ in 1998 and now they were criticizing him for missing animal bite marks.

The State then moved on to a list of questions the defense had wanted Peretti to answer after that meeting. He did not respond then, but when Holt asked each, Peretti responded in kind during court. The letter from defense had asked if Peretti thought any of the injuries were postmortem animal activity. Peretti answered today and said no. He said the only postmortem injuries that he would identify were scratches that may or may not have been done by the bodies being dragged out of the ditch. He was asked whether he felt any abrasions were made by other means outside a sharp implement. Peretti said he did not. He said he was asked about how long he thought the assault took, and Peretti said he did not know that, either. He was asked in the letter if he thought the genital mutilation was anti or postmortem. Today, he answered that it was antimortem. When asked in the letter what was used, Peretti answered today that it was some type of sharp implement. In the letter, Peretti was asked if any of the abrasions on the left side of the face of one child had anything to do with a Satanic ritual, Peretti said not to his knowledge, but he didn’t know about Satanic rituals. He was asked about the grapefruit demonstration, if it made sense. Peretti said he was not the one to conduct the grapefruit ‘thing.’ Holt asked Peretti why he did not provide the information he was asked to regarding case studies. Peretti said he did not provide that information because it was ‘too hard.’ He said the computer system was old, and it was too difficult to pull the ‘thousands of files.’

When asked if he knew of any animal predation cases, he said he did. He said it mostly happens to elderly people who die in the home with their pets. He was asked why he didn’t think a turtle had degloved the penis of Christopher Byers. He said it was because a turtle wouldn’t do that. He said a turtle would have snapped the entire thing off. He said he knew of bodies being ‘eaten’ on in the woods by rats, roaches, and raccoons. He said the boys’ bodies were not shown to have ant activity. He said there were flies, but there was no smell as they had not yet begun to decompose. Peretti said all three victims were alive until they were submerged into the water. When asked if he thought turtles were in that area of Arkansas and Peretti said they most assuredly were, but he said it didn’t mean anything. He said there was a case he knew of where a body had been in the woods unclothed for about two or three days with about a hundred turtles in the area. Despite that, there were no turtle bite marks.

There was also mention of the ‘abrasions’ to the Moore child. A photo was shown of this area. It appeared to be two long ‘scratched’ areas of the same length. Peretti said these injuries were linear parallel abrasions that could not have been made by an animal. No animal that he knew of could do something like that.

On cross, Philipsborn asked Peretti about the case ‘annoying him.’ He said it was an annoying process and the case had cost him a lot of his time. He said he was annoyed that the ‘human bite mark’ of 1998 became an animal bite mark in 2007. He said he had a sound basis for his opinions and has steadfastly stood by them.

He was asked again about his background and the fact that he knew Sturner when he was working out of Rhode Island. He said Sturner came out to Arkansas first and then offered Peretti a job in his office. He said he began to make attempts at passing his board examinations. He said the first time, he was just doing it to do it. The second time, he took the exam seriously, but failed both attempts. Peretti said that during 1993/1994, he was still board eligible at the time, just not certified. When asked how many times one could attempt these exams, Peretti said he thought perhaps five. Philipsborn asked if he was certain about this, and he said those were the rules then.

Philipsborn then asked Peretti how easy it was for a defense attorney to receive a copy of the information in his files. He said it was an easy process. All defense attorneys must write a letter to the prosecutor and ask permission. Once it is granted, they are allowed access. He was then asked if either Paul Ford or Robin Wadley had ever contacted him. He said if so, he would have documented the visit or contact. He was shown Petitioners’ Exhibit 76A and 76B, which were copies of documents that his office might have generated. Peretti said they were. He said that when approved by the prosecutor, the defense attorneys would not have scheduled a visit with Peretti, he said the secretaries would have done that. He said he did not keep documentation of phone calls with defense attorneys. He was asked if he recalled a visit by Ford and Wadley. He said Paul Ford made arrangements to receive a copy of the files.

It was then brought up by Philipsborn during the meeting with the experts in May 2007, he had said he would give them information from a study, but said prior that he hadn’t wanted to do it, because it was too difficult. He was then asked if he had written an article in 2002 titled “Incidents and Autopsy Findings In Children/Drowning Deaths.” [Not 100% positive about title.] In this article, Peretti said he compiled his information from 439 cases from 1997-1999, and this had not been ‘difficult’ to do. Peretti said this was the case then, because they had had help from forensic pathology residents and other students. The information he had said he would provide would have had to have been compiled by him alone.

Peretti was asked about autopsy protocol and if it was usual for him to note who was in the room with him at the time. He said he did not keep those kinds of records, because there could be a number of people in the room doing other autopsies. He was asked that as a part of his protocol, did he mark things down on preprinted anatomic sheets. He said he did. He also said that it was his practice to complete one autopsy on one child, dictate notes, and then go back down to begin another. This information would have been in the files, available to defense upon permission, Peretti testified. He was asked when he finished autopsying the bodies and he said he wasn’t sure, but that he had kept the bodies an additional two or three days so that Sturner could check his reports. He said he had consulted with Dugan to ensure there were no bite marks on the bodies. Philipsborn asked if any notes were made by either Dugan or Sturner. He said they probably had, but they were not made part of the case file. He was asked if he had visited crime scenes before. Peretti said he had a lot in Maryland. When asked if he had gone out to the one in West Memphis, he said he had not, but only because he wasn’t invited to visit the crime scene. He said he had only recently viewed video of the crime scene.

Philipsborn then said Paul Ford had testified on September 24, 2008 that he had spoken specifically to Peretti about comments he had made. According to Ford, Peretti had told that injuries to the cheek of one child had been made by a turtle. Ford said this topic was approached at least once. Peretti said Ford lied, that he blatantly lied. He would have never said this, as it was ridiculous.

It was then Burt to begin his cross examination of Frank Peretti. He asked Peretti if it was reasonable for experts to disagree. Peretti said it was. He asked if Peretti did private consultations and Peretti said he did. When asked if he worked criminal cases for the defense or prosecution, Peretti said he rarely did that. His work focused mostly on civil cases.

Burt asked when he began his autopsies on May 7. He said he arrived at work by 7:00 a.m. and probably started half an hour later. He said it was his practice then to complete one autopsy at a time, leaving Christopher Byers for last as his injuries were more extensive. He said after each autopsy, he would dictate notes, have a rough draft typed up, and then moved on to another autopsy before finally double checking everything. He said he asked Dugan for a consult either May 7 or 8, but he couldn’t remember exactly. He said he had asked Dugan to determine if a mark on the Branch child was a human bite mark. He said he didn’t think it was, but wanted to consult Dugan as a ‘just in case’ type thing, because he knew this case would be complex, with a lot of media attention. He said other than Sturner, he did not consult with anyone else.

Peretti was then asked by Burt about a statement made to the press. This was time stamped and dated: May 7, 1993, at 1:20 p.m. He said what he told the media [whom he stated were camped out at his house] that the boys died from ‘multiple injuries.’ Burt asked if he had completed the autopsies on all three at that time. Peretti said he had completed perhaps one. When he was asked why he made these statements when the autopsies were complete, Peretti said it ‘didn’t take a rocket scientist to see the boys died of multiple injuries.’ He said he was only allowed to make this statement as the press was hounding them for a cause of death. He said the media wanted him to confirm whether or not there had been sexual abuse. He said information had been ‘slipped’ by someone in that office, because before long, everyone knew that one child had been mutilated. He said that somewhere, it had gotten out that he stated there was urine found in the stomachs of two victims. He said he did not say that, but it had gotten out that he had.

He was asked about the animal hair slides at that point, and he said he collected them, but gave them to another part of the lab to process. Peretti said he did not know if the hairs were human or animal. He said he was not responsible for processing this information.

Peretti was asked if he was aware one of his conversations with a defense attorney was taped [phone call]. Peretti said he didn’t. He said he was told by the prosecutors that if he spoke to defense, he was not to be taped. One did, of course, and it was Robin Wadley. During the conversation, Burt said he was asked if the anal dilation was indicative of sexual assault. Peretti told Wadley that it was not consistent with sexual assault. During trial, however, it was brought up that Peretti didn’t exactly say it in that fashion. He stated at trial that just because there is no evidence of it, didn’t meant sodomy hadn’t occurred. Peretti was asked if any ‘defense attorney worth his salt’ had an opportunity to tear into him because of his trial testimony v. his phone conversation, should they have done so. He said the attorney probably should have. These statements by prosecution were meant to be heard by the jury, and also to imply that if injuries were found on one ear, they were likely on the other, and a part of forced fellatio. He said Peretti went right along with what the prosecution wanted, even if he still insisted the anal dilation was not consistent. Peretti vehemently denied he ‘went along’ with the prosecution. Peretti was then directed to a literature from John Rup [sounded like Rupong yesterday…] stating that ear injuries on a child meant the child was sexually abused. In this information Peretti referenced, it said a combination of injuries on the ears and mouth was characteristic of forced fellatio. The article Burt read from stated that it actually referred to ear injuries consistent with physical abuse, not sexual. He asked Peretti to show him where it says these injuries were characteristic of forced fellatio. Peretti could not find this reference and said he had meant that on victims of gang rapes, injuries to their ears and mouths were signs of forced fellatio. Burt said that if research was done on literature written by John Rup, no one would find that information. Peretti said Rup had lectured, was an expert, but had never published anything.

No defense attorneys had caught this discrepancy. He asked that if Peretti was serving as a consultant on a case where he heard something not true, would he approach a defense attorney and tell them something wasn’t right with testimony. Peretti said he would.

Burt then went into the fact that Peretti was asked by the State to review the testimony given by defense experts Spitz, Baden, Souviron, and Ophoven. He said he only read part of Spitz, all of Baden, and some of Souviron. He said he couldn’t read much, because the defense expert’s opinions were ‘ridiculous.’ He was pressed by Burt, became irritated, and then stated angrily that Spitz was ‘incoherent,’ Baden ‘reasonable,’ and Souviron out in ‘left field.’ He said Spitz’ description of a dog shaking the bodies, smacking them against trees did not make sense. He went further and said that he felt their testimony was nothing more than a personal attack against him, to make him look incompetent. He said only Baden said that the autopsies conducted were fine. He said he didn’t think their opinions meant much, because they had not looked at the actual bodies. He said he didn’t feel badly for not supplying the information the experts asked for, because he had asked for photos and other materials from them, and did not receive anything. He went further and said he felt important being attacked by all these experts. He said he was only one person who was right, why did they need so many to prove he was wrong. If they were right, why didn’t they just choose one expert and have done with it. Peretti was steaming angry.

When asked about his lack of certification, Peretti said it did not mean much or prove that he was wrong or not competent to do the job. When Burt asked if the Arkansas Crime Lab was accredited, he said it was not necessary to perform their duties. When Burt pressed again, Peretti said they were applying to become accredited. To this, Burt said he would take this as a negative answer.

On State redirect, Holt asked that even if some injuries had been done by animals, did it still mean the boys had died of multiple injuries. Peretti said this was true. He again asked if contusions and hemorrhaging meant the injuries were antimortem and again, Peretti said this was true. When asked about the comment Ford said he made regarding a turtle bite mark, Peretti again denied he said this, once more calling him a liar. Holt gently asked if it was better to have seen the actual bodies than photos of them to render an opinion, and Peretti said it was best.

On Defense redirect, Philipsborn only asked if Exhibit 81 was information provided by Ford and Wadley, to which Peretti said it was.

On Defense redirect, Burt asked if seeing the bodies was better than rendering opinions based on photos. Peretti said it was. Burt then asked if he had ever viewed photos of an autopsy, rendering an opinion, involving children without ever having seen the actual bodies. Peretti admitted that he did while conducting a study at the Arkansas Children’s Hospital. Dr. Peretti was then excused.

The State next called Dr. William Sturner. He was asked by Holt to give his education, experience, and credentials to perform as a forensic pathologist. Sturner went into some detail, sharing that he worked with Dr. Baden in New York, that the two men were trained together. He said he had a lot of respect for Dr. Baden and his work. He also knows Vincent DiMaio and worked with Dr. Spitz. He was asked if he had been qualified to testify as an expert in every state where he worked. He said he had been. He was asked how he became aware of the case. He said he was asked to inspect a lab in Memphis when his office had called about the victims. Sturner said he immediately went back to Little Rock as either he or Peretti called him back for consult.

At this point, I will not go into specific detail of Sturner’s testimony regarding the autopsies or what he did or helped with. Considering the fact that Dr. Sturner was in the courtroom the entire time Peretti was testifying, he simply agreed with every finding Peretti made with regard to the injuries and the manner they happened [cutting tool, antimortem]. He probably would have done the same thing even if not present in the courtroom.

On Defense cross examination, Philipsborn again mentioned the relationship between Sturner and Baden, and Sturner and Spitz. He said he respected both men and they were well known authorities in their fields. He was asked again about the nature of the injuries and his opinion stayed steadfast with Peretti. There was an issue regarding a case he testified in where a pathology resident had assisted with an autopsy. At the time, he said he used the wrong ‘pronoun’ when testifying. He said he used ‘I’ instead of ‘we.’ He also said there was no evidence that any of the victims had been sexually assaulted.

On Defense cross examination, Burt asked how long Sturner had observed the bodies of the boys. He said it was at least an hour. He said he did not look at each and every injury. He was asked about an article he wrote in 1998 titled “Common Errors In Pediatric Forensic Data.” Sturner said he wrote this article because there was not much literature about this. Burt asked who else had written about it in the past, and he said he wasn’t sure. When Burt mentioned Dr. Ophoven, Sturner said he did remember this information now. He said she was the first expert in her field to do this and was very good at what she did. He was asked if he reviewed the expert testimony in August and he said he only received a couple of them, but only finished Baden’s. He asked Sturner if he felt Peretti was being personally attacked by Spitz, Baden, Souviron, and Ophoven. Sturner said he did not feel this at all. He said their testimony was not a personal affront to Peretti.

On State redirect, Holt asked if he had seen or felt anything was out of place with Peretti’s reports, would he have had trouble letting Peretti know. Sturner said he would not. He said their office was small and they often consulted with each other.

At this point, court was recessed. This is it for Jason and Jessie’s Rule 37. Burnett asked the attorneys for their information ASAP.

--Marie South

By Charlie Frago

The Arkansas Supreme Court on Thursday ordered the records for the men accused in the killings of three West Memphis boys to be sent back to the trial judge to determine which portions should be sealed.

The court in an unsigned order ruled that part of Jason Baldwin's court record in his post-conviction relief case had been ordered sealed by Craighead County Circuit Judge Charles David Burnett, but "we are unable to determine whether these exhibits were also filed under seal" for Damien Wayne Echols and Jessie Lloyd Misskelley, the other two teens convicted of killing three 8-year-old boys in West Memphis in 1994.

Echols and Misskelley are also appealing their convictions. Echols is on death row for three counts of capitalmurder. Misskelley's firstdegree murder sentence and Baldwin's capital murder sentence both carry life sentences.

Clerk of the Courts Leslie Steen has said that he sealed all three cases because they are so intertwined and he wanted to protect the integrity of the material. The state's top court ordered Burnett "to settle the record concerning which portions of the respective records are under seal."

Justice Paul Danielson dissented from the order, writing that "such an inquiry at this point is a simple one. Either the records, or portions thereof, were filed under seal ... or they were not." Danielson said the decision to send the records back to Burnett means "we are providing the circuit court with a second opportunity to seal portions of those records." That action "vastly deviates from the typical procedure of this court," Danielson wrote.

On May 5, 1993, Stevie Branch, Christopher Byers and Michael Moore were found beaten and hog-tied in a water-filled ditch in West Memphis. The case has received international attention.

Last month, two national criminal-defense organizations submitted friend-of-thecourt briefs contending that juror misconduct and what they deemed to be a likely false confession by Misskelley led to a wrongful conviction of Echols.

At the court, the cases are CR08-1481, Jessie Lloyd Misskelley, Jr. v. State of Arkansas; CR08-1493, Damien Wayne Echols v. State of Arkansas; and CR09-60, Charles Jason Baldwin v. State of Arkansas.

http://www2.arkansasonline.com/news/2009/oct/02/court-tells-judge-settle-seal-w-memphis-m-20091002/

By THE ASSOCIATED PRESS

JONESBORO — The mother of an 8-year-old boy found slain more than 15 years ago with his two friends says she believes the men convicted in the killings are innocent.

Pam Hobbs, mother of victim Stevie Branch, told Little Rock's KTHV she doesn't think Jason Baldwin, Jessie Misskelley and Damien Echols killed her son and two other 8-year-old boys, Christopher Byers and Michael Moore, in West Memphis in May 1993.

"I really think West Memphis was rushed for a conviction," she told the television station Thursday. "They took three teenagers and convicted them. I would like for them to look at evidence that has been presented to the court the last couple of years versus the circumstantial evidence that convicted the three men that are in prison."

Hobbs was in Jonesboro Thursday at a court hearing for Misskelley and Baldwin, who are seeking new trials. Special Judge David Burnett already rejected an appeal by Echols, who was sentenced to death for the killings.

The hearing for Misskelley and Baldwin is to continue Friday. The men claim they received ineffective legal help from attorneys in separate 1994 trials. Their appeals also say DNA evidence on items tested showed no trace of them and animals caused wounds to one of the victim's genitals, rather than prosecutors' claims the killers sexually mutilated the boy as part of a satanic ritual.

Assistant Police Chief Mike Allen, who was a sergeant at the time of the slayings, testified Thursday he found the first body in a bayou, but saw no animals.

"I would almost expect to see tadpoles or some type of fish, turtle or something in there but there wasn't anything there," Allen said.

Since the killings, documentaries about the case have sparked interest in the defendants, called the "West Memphis Three" by sympathizers. The men's supporters raised about $1 million to hire new lawyers and conduct DNA testing.

The latest round of appeals for the three men started when lawyers for Echols filed a federal appeal over the new claims and a judge there ordered the case reheard at the state level.

Last updated Thursday, October 1, 2009 9:12 PM CDT in News

Mara Leveritt's complaint about sealing of Supreme Court records in the West Memphis Three case by the court's clerk (rather than by order of any court) got attention from the Arkansas Supreme Court yesterday.

In a curious decision, it punted. Rather than telling its clerk to unseal records he had no business or authority to seal, it sent the entire record back to Circuit Judge David Burnett, who, as dissenting Justice Paul Danielson notes, now can have another bite at further unwarranted sealing of critical evidence in multiple cases.

There's no ground, 15 years after the murders, for sealing anything in this case, particularly the evidence that bears on a tainted jury. (Unless you are prosecutors who'd prefer no further exposure of underhanded actions in this case.) Someone will make the argument for open court to Burnett. His record in the case doesn't inspire hope that the public's interest will be served.

Posted by Max Brantley 10/02/09 06:15 AM

http://www.arktimes.com/blogs/arkansasblog/2009/10/open_the_records.aspx

On October 25th an exclusive silent auction of artwork will be held with work from 30+ prominent artists from the NYC contemporary art scene. The goal of this benefit is to raise much-needed legal funds for the final push to free Damien Echols.

Echols is an artist and writer who, at 18 years old, was wrongly convicted of murder in 1994 along with Jason Baldwin and Jessie Misskelley, and all became known as the West Memphis 3. Echols was merely a goth-metal kid in a conservative small town who was targeted for being different. Both the trial and investigation were characterized by egregious misconduct on the part of the authorities. Echols alone received the death sentence. The 1996 HBO documentary on this case,Paradise Lost, calls this miscarriage of justice a “new Salem witch trial.”

We—a cross section of artists, museum curators, gallery directors, musicians, and actors—believe in the innocence of Damien Echols. We have put this benefit together as a group of individuals with a common purpose. Unlike other fundraisers that raise money for blanket causes, or institutions, this benefit seeks to save the life of one person, a fellow artist. After 16 years on death row and as many denied legal motions, the Arkansas State Supreme Court will again consider Damien's lawyers' latest motion for a new trial.

Crucial new evidence of the WM3's innocence has been uncovered, including crime scene DNA that absolves Damien, Jason and Jessie and points to other persons. Some of the country’s leading pathologists have found that much of the forensic evidence presented to the juries that helped convict the West Memphis 3 was false and not consistent with the cause of death or wounds found on the bodies. And recently, sworn affidavits were presented to the ASSC detailing serious misconduct during Jason and Damien's original trial by the jury foreman.

DAMIEN ECHOLS IS INNOCENT & WE NEED YOUR HELP

Date: October 25, 2009 6-9PM
Place: Maccarone
630 Greenwich Street
New York, NY 10014
www.maccarone.net

ARTISTS
Allora & Calzadilla
Kristin Baker
Walead Beshty
Carol Bove
Peter Coffin
Jen DeNike
Carlton DeWoody
Anna Gaskell
Douglas Gordon
Adam Helms
Elizabeth Huey
Terence Koh
Nate Lowman
Corey McCorkle
Adam Pendelton
Genesis Breyer P-Orridge
Lisi Raskin
Mika Rottenberg
Taryn Simon
Mike Smith
Alec Soth
Francesco Vezzoli

BENEFIT COMMITTEE
Jen DeNike
Elizabeth Lovero
Eliza Ryan
Jenny Schlenzka

HONORARY COMMITTEE
Jackie Barrett
The Company
Margaret Cho
Lorri Davis
Kyle DeWoody
Anat Ebgi
Lisa Fancher
Robby Granoff
Dmitry Komis
Erica Papernik
David Raymond
Henry Rollins
Lisa Riordan Seville
Lonnie Soury
Amy Smith-Stewart
Cara Starke
Eddie Vedder
Nick Weist
Michael Wilson

For more information about the case: wm3.vox.com/wm3.org

All proceeds directly benefit the legal fund of Damien Echols through Arkansas Take Action, a non-profit 501(c)(3).

http://thecompanyart.com/wordpress/2009/10/01/damien-echols-benefit-at-maccarone-gallery-nyc/

Just letting everyone know that the official site is back on line! We're still making some tweaks and adding info but it's up and running. We'll still be posting current news here and on the site so you have two places to get WM3 updates.

Today, it was like a reunion of this case’s ‘players.’ Ridge, Allen, Sturner, and later Peretti were in the courtroom. Next door, Fogleman was presiding over court. I wanted to slap my hands over my ears and scream, “STOP THE INSANITY.” But I didn’t. I didn’t want to be kicked out of the courtroom.

Before any witnesses were called, the State and Defense had a few issues to clarify. Holt began by stating that looking at rebuttal, there was an issue with the shoelaces. Apparently, these shoe laces were sent to Bode Technology's and this office was then notified by Damien’s counsel to send them to another lab, Micro Trace. Holt made it a point to say that this Bode Technology was reputable and there was no reason for them to be sent to another lab, especially one that wasn’t accredited. Apparently, Burnett had ruled previously that no lab was to receive this material, especially one not accredited. Apparently, Damien’s attorney did something against a court order and there was no written stipulation from the defense for Jason and Jessie. They claimed they did not know these materials were sent from one lab to another. Holt stated that he was concerned with the integrity of evidence. Burnett said that Micro Trace must be contacted ASAP and asked to return the materials to the original lab.

The first State witness was Assistant Chief of Police Mike Allen. Holt asked Allen where he was employed and he stated the West Memphis Police Department [WMPD], currently holding the position of Assistant Chief of Police. He was asked what his job function was at the WMPD in May of 1993. He said he was a sergeant in the Criminal Investigation Division. He said back then, he was working the case of three missing eight-year-olds. He found out about the case the morning of May 6 during the morning meeting with Inspector Gitchell. Gitchell advised each person what section of town they were to look in, and Allen was specifically told to examine vacant houses in the Northeastern ward of town which extended from7th Street down through the city limits. Allen said he also searched the area known as the Robin Hood Hills [RHH].

Holt showed Allen State’s Exhibit 15, which was described as an aerial photo of West Memphis. Included in the view was East Junior High through Barton, with another area identified as Ten Mile Bayou. This photo was also part of the original investigation. In State’s Exhibit 16, Allen identified it as a photo of Ten Mile Bayou with a utility pipe across to the woods. The bottom area of the photo indicated West McCauley where it dead ends. Located near this was a retention pond, Blue Beacon Truck Wash, and RHH. He said RHH had both open and wooden spaces, and farm fields back to the east. There was a scale drawing made of the area as well as the utility pipe. Allen said that people could easily walk across it, much like a “pipe bridge.” State’s Exhibit 17 was another photo of the same area in 16 at a different angle. The street in the photo was identified as West McCauley to the dead end. At the top of the photo were I40 and 55, as well as the driveway to Blue Beacon. This area, more or less, was known as the Northeastern ward, which was where Allen was ordered to search [but not RHH].

Allen testified that he only searched RHH because Denver Reed from the Crittenden County Search and Rescue Squad had called him. Allen was shown State’s Exhibit 18, which was a photo of Ten Mile Bayou taken from the back of the area, and State’s Exhibit 16, another view from an easterly direction. He again stated he was called to RHH by Denver Reed as he had found a tennis shoe floating in a ditch in the woods. State’s Exhibit 19 was then shown to Allen, and he identified it as a photo of the tennis shoe and a Cub Scout hat [which he didn’t notice until later]. State’s Exhibit 23 was a photo west of the area taken in Exhibit 19. Allen said the shoe was in one area of the ditch that made it impossible for him to get to without moving around and down another area. He said he and other law enforcement officers noticed one steep side of an embankment ‘different’ from the others. He said the ‘difference’ was that the bank was ‘scuffed up, as if it had been cleared of leaves.’ When asked, Allen said he had testified about the crime scene at both hearings. In one of these photos, Allen recalled falling into the ditch. While reaching for the tennis shoe, Allen said he felt ‘something.’ He said the water in the ditch was not flowing or stream like. He said the bottom was mucky, but not that bad. When asked, Allen stated he had seen no aquatic or wild life.

Holt brought him back to the ‘something’ he felt in the ditch after he fell in. He said the body of Michael Moore had surfaced, and that’s when Diane Hestor called for other police back up. He said he didn’t ‘give the shoe another thought’ after the body surfaced, and that it would stay in place, since there was no movement in the ditch. He said Bryn Ridge was there before anyone else, but he thought Hestor had called Gitchell to come down as well. Ridge, Allen testified, had gotten into the water and searched downstream to find other victims. When Gitchell arrived, he cordoned off the entire wooded area and it became a crime scene.

In State’s Exhibit 26, Allen identified it as a photo of a group of trees, one with a knothole in the middle. He said it also included three sets of shoes and clothing items. The clothing found by Ridge was placed in the ditch, held down by sticks. The ditch was drained and sand bagged toward the Ten Mile Bayou. The water was pumped out with screens on the pump [and Allen said in the ditch] to trap any other type of evidence. There was nothing in the screens or aquatic life trapped. State’s Exhibit 20 and 25 was identified as a photo of the bottom of the ditch after the water was pumped out. It was then searched for evidence, but nothing was found. Allen testified that he did not notice any aquatic life. He did not notice minnows or tadpoles. He said they were in the woods until about seven or eight. Allen said he did not notice any mosquitoes. Weather wise, he said it was mild and hadn’t rained. Next, was State’s Exhibit 22, a photo of Ten Mile Bayou at the top of the ditch where water had been pumped and the area sand bagged. Next, State’s Exhibit 24, was a photo of Ridge at the top by the sand bags. Water was shown flowing toward him. Exhibit 27 was a photo of the pipe bridge coming from between the woods and the interstate from a southerly direction. Allen was asked if all photos were an accurate depiction of the area as he had known it, and he said they were.

On Defense redirect, Hendricks asked if the morning meeting was the first time he had heard of the missing children. Allen said it was. He said before going to RHH, he looked in his assigned ward from 8:00 a.m.-1:30 p.m. when Denver Reed called about the shoe. Before that, he had received no other information. He was asked if he and Diane Hestor had searched together. He said they had not. He said he had parked his unmarked car at West McCauley where he was first greeted by Denver Reed and Steve Jones. There were no civilians involved at that moment. Hendricks then reviewed the steps taken by Allen before entering the woods and then falling into the ditch. Allen said the water in the ditch came to about his knees in some areas, then as far up as his crotch area in others. Once Allen fell in the water, Hendricks asked what he could see. He said he could not look down to see the body of the first victim [Michael Moore], but could see a slip of skin indicating there was a body.

Allen was then asked to give a background of his career in law enforcement. He said he began working in Johnson County as dispatch and a jailer. In 1981, he came to the Crittenden County Sheriff’s Department working three days as dispatch and three days as a jailer. By 1984, he became a criminal investigator. He said he trained at Camden, but as far as ‘learning the job of a homicide investigator,’ it was more along the lines of on the job training. When asked if he had had any training dealing with child homicide, Allen could not say. He did say he had not had any experience dealing with crime scene investigation regarding victims who been submerged in water. He was asked by Hendricks to provide a list of people, as he knew, that were in the area to help with the investigation. Allen said it was Ridge, Bill Durham, and Tony Anderson. He said very few people had entered the crime scene. He asked if Allen knew that Ridge had searched by ‘racking his hands’ along the banks and the bottom of the ditch. Allen said he had not been aware at that the time. There was a lot of contention at the amount of space there was between the discovery of Michael Moore and the other two boys. Allen was asked if he was familiar with different types of wild life in RHH at the time. He said he was not, but had seen turtles in the woods. He was asked if he thought all the movement, noise, etc. would have scared off the animals, and Allen said it could have. Allen was asked if he had heard of Turtle Hill, and he said he had not.

On Defense redirect, Burt asked Allen what he meant by a ‘scuffed’ off area in the woods. And he said it was without leaves. There was an area of dirt roughened up, but no visible shoe prints. It was simply ‘different’ from other areas. At the original trial for Jessie Misskelley, Burt said Allen testified that he saw mud on the grass, but he did not remember that testimony. He said he did not know what kind of activity, animal or human, caused that ditch embankment to look ‘different.’ He said he was not aware other officers had searched the same area earlier in the day. He asked if he knew the specific way Ridge searched in the ditch, moving north to south, raking his hands, etc., and if that movement could have caused any animal life to have been scared away from the area. He said he did not know about Ridge’s movements. When asked if he was looking out for any animals, Allen said he was only concerned with water moccasins, and his own personal safety, but didn’t make it a point to notice anything else out in the woods.

On State redirect, Allen testified in Damien Echols’ Rule 37 proceedings that he was asked if he noticed any animal activity. Allen again said he saw nothing in the ditch. He was asked again about the ‘different’ ditch bank, but does not know if the activity was animal or human made.

The next witness called by the State was Bryn Ridge. Holt asked Bryn Ridge who he worked for, and he said he was a Captain at the WMPD. He said in 1993, he was a detective and asked to search for three missing eight-year-old boys. He said he had arrived at work before eight and went to RHH, which was the last place the boys were said to have been. He said he searched every area he could by foot until he felt it was necessary to use his three-wheeler.

Ridge was shown State’s Exhibit 28 and 29. He said it was a photo of West Memphis, RHH, the 76 Truck Stop, and the Blue Beacon. He was also shown Exhibits 15-29 and asked if they were an accurate depiction of the area. He said they were. He then stated he was informed the afternoon of May 6th that a body was found. Ridge jumped into the ditch, moving North to South, and racking his hands along the ditch banks and the bottom. As has been brought up before, he did this until he was up to his neck in water in the Ten Mile Bayou and then he moved back. He said the water was no more than three and a half to four feet deep in the ditch. He said like Allen, he was wary of snakes, but knew that they didn’t stay in water very long at a time. Also like Allen, he said he did not notice any aquatic life, minnows, or turtles. He said he was a hunter, but had never known these animals to be in RHH. He was asked if he was familiar with Turtle Hill and the two trails over it. He said he was. Turtle Hill, Ridge testified, was a natural and manmade hill. Holt then played a portion of the crime scene video that Ridge narrated. He identified the points in the woods where the bodies were found and other evidence collected.

On Defense redirect, Philipsborn asked if there were notes taken that gave an accurate account of time. Ridge said someone was taking notes and accurate time accounts. He said they searched long into the evening, when it became dark, he mentioned that the mosquitoes became ‘bad.’ He was asked how he came to do the search of the ditch. Ridge answered that he was the WMPD work horse back then and would usually do anything others couldn’t or wouldn’t do. Ridge was asked if they were asked to consult with a Criminalist or the ME. Ridge said he hadn’t, and that it was not his ‘level.’ Philipsborn asked Ridge how long it took him to process the scene, if it was an hour or more. Ridge answered it was at least an hour, if not longer. He was asked if he had ever processed a scene with multiple victims before then and he said no. Allen had mentioned in his testimony that no civilians or others had been in the woods, but the video showed several. He asked Ridge about this as well as the setting up of the pump to drain the ditch. He said it took a while to start and it didn’t operate optimally for a bit. Philipsborn asked about Ridge and hunting. Ridge said that when he hunted, he normally went alone and there was usually as little noise as possible. Philipsborn asked if all the noise in the area, the people, etc. could have scared anything away that was there, and Ridge said it was possible. Philipsborn also asked if Ridge had kept in touch with the Arkansas Crime Lab and he said on occasion. He was asked if he was made aware by the lab that an animal hair slide was part of evidence. He said he was not.

On Defense redirect, Burt asked Ridge if his 7:30 search was the only one done in the area. He said he ran into a ‘few’ people, to which Burt asked if it was more like fifteen. Ridge said it was nothing near that. Burt stated that in testimony presented at Jessie Misskelley’s hearing, Ridge testified that he had come up on fifteen people in same area of his early morning search. He said he ran across a few people, including a teenager on a bike, who was also searching for the boys, and wasn’t ‘a suspect.’ He said he had seen others, but not in the small area of RHH. Ridge said he had noted ‘peck’ marks on the body of Steven Branch, but he didn’t think it was the ‘pecking of an animal.’ He said he was clearly not trained to determine that, but he knew what he believed had caused the marks. He was sure it was done by cutting. When asked about the ‘clean’ ditch embankment, he said he thoroughly believed he knew how that happened as well.

On State redirect, Holt asked what he meant about how he believed it happened. He said it appeared as if a person had done it. He said there was grass embedded in the mud by a raking hand.

The next witness to be called by the State was Frank Peretti. He was asked to state where he is employed. Peretti replied that he works for the Arkansas Crime Lab. He said he was the individual to autopsy the three boys. He said he testified about the autopsies at the original hearings as well as Damien Echols’ Rule 37. He was qualified by the Court to testify as an expert witness. He began his career in Rhode Island, where their homicide rate is low compared to when he began working in Maryland, where theirs is much, much higher. He said he gained experience inMaryland, and performed approximately 350 autopsies a year. He said he has done autopsies on victims found in water sources. He said that few bodies are subject to animal predation.

Peretti said that before he began medical school, he majored in biology and chemistry. He deemed himself an animal lover and breeds turtles as a hobby. He said he mostly has Arkansas breeds of turtle, but also has more exotic breeds as well. Some of them are Alligator Snapping Turtles, and Peretti testified that one of them weighs about fifty pounds and is seventeen years old. He consults with Kelly Irwin and is called to examine turtles that have certain ailments. He stated he also wanted to work on Arkansas legislation regarding ASTs. He said he also performs autopsies on turtles. Holt wanted to then submit Peretti as an expert on the Arkansas turtle. [I apologize as I am not sure what happened with this…I totally didn’t get this part other than the fact that Court rules stated the Defense could only ask witnesses what they knew as of 1993, and the State should follow those rules. Was this part of it? Only the Shadow knows, it seems.]

Holt then moved on to the autopsy reports Peretti prepared. This is where my notes become dicey, but not by my own fault. Peretti read through his own reports, reads fast, and I cannot write that fast, but I will sludge through as much as I can.

The first autopsy report was that of Michael Moore. Peretti read through his external description of the body, including all injuries suffered. There was mention of ‘cloth’ in Moore’s hand. There were numerous injuries including scratches to his nose, ear injuries, and injuries found under the restraints. There was also swelling of the lips. When discussion of the ear injuries came about [which Peretti said were consistent on all three victims], Holt asked if he had any experience in identifying why these injuries were found on all three boys. Peretti said he did. He said they were typical of sexual child assault. He said another expert had similar views, one whom he worked with before by the name of Joseph Rupong [forgive the spelling]. Peretti said he knows of no type of animal predation that could have caused any of the injuries. There were also ‘moon-shaped’ marks noticed that were identified as fingernail marks by Peretti. Injuries to the hands were seen as defensive type wounds. Moore likely died as a result of blunt force trauma and drowning as there was evidence of bloody fluid in his lungs. There were contusions mentioned as well as hemorrhaging. Peretti felt as if all wounds were done anti-mortem because of the presence of bruises and contusions. There was anal dilation, but seemed to be normal postmortem changes. The second report was that of Steven Branch. Like Moore, Branch suffered contusions and ear injuries along with a massive skull fracture. He noted that the abrasions to the face were caused by cutting or gouging injuries. Peretti believes all three boys were lying down when attacked, and that Branch’s skull fracture is so severe because his head pounded hard ground. Branch was noted to have injuries to his hands that were considered defensive type wounds. The injury that was once noted as having been a human bite mark was what Peretti thought could have been done by a belt, especially considering the X shape in the middle. Again, due to the presence of what Peretti identified as contusions and hemorrhaging, he was alive when bound. Injuries were not postmortem, they were anti-mortem and not caused by animal predation. Peretti said he took great care with the reports and asked Dr. Dugan and Sturner to review them to ensure they were ‘done right.’ Peretti also mentioned the injury to the Branch boy’s penis. He said that due to the high coloration of the tissue, along with the demarcations, it was suggestive of sexual abuse. When Holt asked if he knew of any reason three boys would be bound naked without it having a sexual connotation, Peretti said no. He said the presence of bloody fluid in the lungs indicated Branch had died from drowning as well as from his massive head trauma. He said Branch had probably gone into ‘neurogenic’ shock due to the head injury, a state where he said his system had begun to fail. Peretti said all injuries to the boys are consistent and almost identical to each other, not possible by any method other than cutting.

Holt wanted to continue and go on with the other autopsy report, but Burnett said he had guests coming in town and wanted court to end [at 5:00] and resume first thing in the morning. Burnett asked both sides if they would be done tomorrow, and they said ‘definitely.’ Heard that Sturner is testifying after Peretti, but I don’t think Perper or Irwin will be. I do not know this for sure, it’s what I thought I heard.

Standard Disclaimer: If I have something wrong or outright stupid, if you were there, please correct me.

-- Marie South!

Even though the State promised to have their witnesses present in August, it asked for a continuance on Day 5 in order to call at least two witnesses on October 1 & 2nd in Jonesboro AR. One of their experts is said to be Dr. Joshua Perper, a medical examiner from Broward County FL, who will contradict Dr. Werner Spitz's conclusions that the wounds on the little boys were caused by animal predation, not knives. (Dr. Spitz literally wrote the book on forensic pathology.) Also expected to appear is Dr. William Q. Sturner, then Chief Medical Examiner with the unaccredited Little Rock crime lab in 1993. He claims to have supervised Dr. Peretti's autopsies the Friday he performed them even though Sturner was documented as being in Memphis TN inspecting its Medical Examiner's office that day. Jason and Jessie's San Francisco attorneys, John Philipsborn and Michael Burt, will be present to cross examine whichever witnesses do take the stand on Thursday and Friday.

We urge all supporters that can make it to attend what we hope are the final two days of Jason and Jessie's Rule 37 hearings!