Thursday, August 18, 2011

Speculation mounts on freedom for West Memphis 3 UPDATE

Posted By on Thu, Aug 18, 2011 at 3:27 PM

THE WEST MEMPHIS THREE: Echols, Misskelley and Baldwin in current Brian Chilson photos.
  • THE WEST MEMPHIS THREE: Echols, Misskelley and Baldwin in current Brian Chilson photos.

Big news is expected in circuit court in Jonesboro Friday morning when Judge David Laser holds a hearing — just announced today — on the West Memphis Three case. Families of defendants and victims are expected to be in court, suggesting far more than routine procedural matters are at hand.

None of the interested parties are talking (lawyers are gagged), beyond saying that those interested in the case will want to be present. But I began making calls early this morning when I received a tip from a local attorney predicting earth-shaking developments, now believed to be release of the defendants in return for pleas to reduced charges, perhaps done in a way that the defendants can still maintain their innocence.

The facts are well-known. Damien Echols, who is on Death Row, and Jason Baldwin and Jessie Misskelley Jr., who are serving life sentences, were convicted in the 1993 slaying of three West Memphis children — Christopher Byers, Stevie Branch and Michael Moore. The trials, though marred by bogus claims of Satanism and shoddy investigative tactics, had withstood appeals until recent developments allowed examination of DNA evidence. To date, none of the DNA gathered in the case has matched any of the defendants. That doesn't exonerate them, but it was powerful new evidence that they weren't involved in the crime. Strong new evidence also was introduced about potential jury misconduct, specifically improper consideration of a statement made by one of the defendants. All that prompted the Arkansas Supreme Court to order a new evidentiary hearing to see whether the defendants were entitled to a new trial. Judge Laser was assigned to hear the case. The previous judge, David Burnett, now is a state senator.

The evidentiary hearing was scheduled for December. The surprise hearing tomorrow alone suggests a major development is at hand. The buzz in the defense bar community is that the news is beyond major. Until now, Attorney General Dustin McDaniel's office has fought vigorously against new proceedings for the defendants and in support of their convictions. A development tomorrow in which he joined in a defense suggestion would be momentous, indeed. Freedom for the WM3? The speculation today includes that possibility, though questions are numerous about how you'd reach such an outcome and, if it were to happen, whether it would include pronouncements on guilt or innocence or state liability.

The judge's office released this statement about Friday's hearing:

The court will take up certain matters pertaining to the cases of defendants Baldwin, Echols and Misskelley on Friday, August 19. One session will be conducted out of public presence with all defendants present and another session will be conducted in open court. The session conducted in chambers will likely begin at 10 a.m. followed by a public session which will begin about 11 a.m. Space will be limited for the public session — first to the parties, counsel and court personnel, then to family members of the victims and family members of defendants with remaining seating to be occupied by media representatives and the public. There will be approximately 15 minutes between the chamber session and open session for media and public to be seated. Miss Stephanie Harris, Arkansas Supreme Court communication counsel, will be present on Friday to assist with implementation and will be the court's intermediary with public and press.

Mara Leveritt, our senior editor who's done groundbreaking reporting and who wrote the book "Devil's Knot" about the case, will be in Jonesboro for tomorrow's hearing. She has a subscription website at her homepage link for more reporting.

Here's the link to video of an Jan. 2011 interview Times reporter David Koon conducted with Jason Baldwin at Tucker Max.

UPDATE: An Arkansas Correction Department spokesman confirms that the three defendants left the prison's Super Max unit today in the custody of Craighead County officers for the hearing. The spokesman says the inmates took all their possessions with them. She said inmates leaving with all possessions was "unusual," but not unprecedented. She said it was the first time all three of the defendants had left the prison together since their incarceration.

Scott Ellington, now prosecutor in the case, will be in court tomorrow, but is also gagged, a spokesman said in response to a question about whether he still favored fighting to keep the convictions in place. Actions by McDaniel and Ellington both have political tentacles. McDaniel is to run for governor in 2014. Ellington has been weighing a race for Congress next year.

UPDATE II: A Memphis TV station reports that it has had sources confirm that an agreement has been reached that would produce the release of two of the three defendants, but hasn't yet provided other details. Our sources continue to indicate the deal covers all three defendants and that one discussion included the state agreeing to the motion for a new trial in return for an agreement from defendants to plead to charges that would qualify them for release for time served. By still having a conviction — a prospect the staunchest WM3 defenders can't stomach — the defendants would be unable to seek damages for false imprisonment or to participate in profits from books or movies about the case. A common plea bargain tactic is to allow a nolo contendere, or no contest plea, to a criminal charge, which is a way of getting a conviction without an admission of guilt. But it would be highly unusual 18 years after a conviction.

UPDATE III: Jackie Byers, wife of the stepfather of one of the victims, tells the Commercial Appeal that she's happy about the plea deal, though she's sorry it will include some sort of admission by the three to something they didn't do. Steven Branch, father of one of the victims, is not happy about the apparent deal, however, and is telling TV stations in Memphis about it. He views the deal as releasing the defendants in return for admission of guilt. The proceeding isn't likely to unfold exactly that way.


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