The 'big ask' 

An insider's view of the legal maneuvers that freed the West Memphis Three.

Last November's Arkansas Supreme Court decision marked the first time any court had acknowledged a need to revisit any part of the controversial 1994 trials, let alone "all" of the evidence. It was a pivotal change, and others quickly followed.

Immediately after the court's ruling, won by San Francisco attorney Dennis Riordan, death-row inmate Damien Echols and his wife Lorri Davis startled supporters by hiring Stephen L. Braga, of Washington, D.C., as their team's new lead attorney. When Deborah Sallings, the Arkansas member of Echols' team, resigned at about the same time, Davis and Braga were left looking for another Arkansas lawyer to take her place amid preparations for the critical hearing the high court had ordered.

Davis said she and Braga approached many local attorneys, but found none willing to defend Echols, who was sentenced to death 17 years before for the murders of three West Memphis children. They were growing despondent when someone recommended they contact Little Rock attorney Patrick Benca.

"I met with Lorri and Steve right here in this office," Benca recalled this week, in the book-lined conference room of his 19th Century office on Broadway. "I was nervous. I really wanted the job. What defense attorney wouldn't want to be part of what was going on?"

When reminded that others declined, Benca said, "Yeah. I don't understand that."

One of the things Braga asked Benca was whether he had a good working relationship with David Raupp, the chief deputy to Arkansas Attorney General Dustin McDaniel. Benca replied that he considered Raupp "a good attorney and a good guy," and that he'd "never had any problems with him." Benca added that he had known McDaniel for years — that the two had gone through the University of Arkansas at Little Rock and the UALR School of Law together.

Davis and Braga brought Benca onto the Echols defense team in late January. Like Braga, Benca agreed to work pro bono.

It took him about a month to get up to speed, reading all the records in the case—and watching the HBO documentary films. In early spring Benca emailed Braga: "I'm prepared. I'm ready to do whatever you need me to do."

Braga wanted help getting some records relating to the victims' autopsies. Benca contacted Raupp, who agreed to release some of them. Benca was working on obtaining the others, when, in early summer, the laboratory conducting new DNA tests on evidence from the 1993 murders began issuing its first results.

To the lawyers' disappointment, the scientific findings did not definitively point to a different assailant. But neither did they trace to Echols or his co-defendants, Jason Baldwin and Jessie Misskelley, Jr. That absence of evidence underlined a fact that had been apparent in this case from the start: there never was any physical evidence — from the time of the murders to these new tests — that could be linked to the men in prison.

In July, while the lab was still conducting tests, Braga submitted a status report on the information received so far to Circuit Judge David L. Laser, who had been assigned to review the case. "At this point in time, we were trying to make some decisions," Benca said. He and Braga pondered the seemingly far-fetched idea of asking the state's attorneys to agree to skip the evidentiary hearing, which Laser had scheduled for December, by agreeing that new trials were warranted.

So far, everyone on the state side had fought tooth-and-nail to resist new trials for the men. But Braga and Benca thought there was a chance that neither they nor the defense teams would want to "waste all that time" going through an evidentiary hearing if, in the end, Laser was going to order new trials. That would require all sides to present the same evidence again — this time before juries — in one, two or even three trials — depending on what Laser ordered.


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