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New trial may hinge on DNA statute 

McDaniel 'dodging and weaving' on law, attorney says.

click to enlarge RIORDAN: Says if AG is right, no one could get a new trial based on DNA evidence.
  • RIORDAN: Says if AG is right, no one could get a new trial based on DNA evidence.
On Sept. 30, the Arkansas Supreme Court will hold a hearing to determine whether Damien Echols, one of the men now known as the West Memphis Three, will get a new trial. Nearly two weeks ago, some of the West Memphis Three's most famous supporters gathered in Little Rock for "Voices for Justice," an event to raise awareness about the case and Echols' hearing. The event was considered a huge success by organizers, but the concert and star-studded press conference that preceded it perhaps overshadowed a key impediment to the three's efforts to get a new trial.

According to Dennis Riordan, an attorney for Echols, the attorney general's interpretation of the state's DNA statute, if accepted by the court, will not only keep Echols and co-defendants Jason Baldwin and Jesse Misskelley behind bars, but it also could prevent anyone from ever being granted a new trial based on DNA evidence.

"This case has significance far beyond [the West Memphis Three], in terms of Arkansas society and protection of the act, passed this decade in line with all of the wrongful convictions in the country, to have a mechanism by which those convictions can be rectified. That's what will be at stake at the court proceeding at the end of [this] month," Riordan said at the press conference.

In a brief filed in the case, Riordan argues the attorney general is urging the court to "interpret the state's DNA statutory scheme so as to make it functionally impossible for the wrongly convicted to gain relief."

In 2001, the Arkansas legislature passed a law granting post-conviction access to DNA testing for those potentially wrongfully convicted of their crimes. Since then,

DNA testing in the West Memphis Three case (the three were convicted in 1994 for 1993 crimes) turned up no trace of the defendants on evidence taken from the crime scene. The DNA evidence did suggest that a hair found in the rope used to tie up the victims belonged to Terry Hobbs, stepfather of one of the victims. Neither absence nor presence of DNA alone is proof of guilt or innocence.

Attorney General McDaniel has argued that using DNA evidence to overturn a conviction could be an unconstitutional conflict with the governor's clemency power.

"Such a request for relief from a criminal judgment without a claim of error in the underlying proceedings," the attorney general wrote in a circuit court brief, "is a request for clemency, vested in the Governor... The General Assembly cannot delegate this power to the courts without infringing on the governor's powers."

Aaron Sadler, a spokesman for McDaniel, later said in an e-mail that "the statute can be interpreted consistently with that power when interpreted only to provide a new trial." Which is all Echols's attorneys are asking for.

"The attorney general's interpretation of the statute ensures a convicted defendant the ability to establish his innocence. Such proof must be a very high bar, and is not likely to often, if ever, be met in cases like this in which DNA evidence offers little proof either way," Sadler wrote.

But that's exactly the problem, Riordan says.

"If they're saying they're not proposing a demise of the DNA statute then they're dodging and weaving," he says. "What they say is if you think about it, DNA alone can never ever prove somebody innocent. They say that doesn't prove someone's innocence because maybe he was standing next to the guy that actually did it and maybe he's an accomplice. So, all DNA testing can prove is that it wasn't your DNA, it doesn't mean you weren't in on the crime. So alone it can never be enough."

The attorney general essentially agreed with this position in a court filing.

"The forum the statute provides may well never yield relief due to confidence that the Arkansas criminal-justice system does not convict the innocent..." McDaniel wrote.

So who's right? That will be decided at the hearing. University of Arkansas at Little Rock Bowen School of Law professor Felecia Epps says it comes down to two views that are polar opposites.

"The defense, based on the absence of DNA and the presence of the DNA from other people, want to use the statute to be able to go back and get all the evidence at the trial questioned again, bring in all the things that we've heard since this trial went down," Epps says. "They want to say that under the statute you can do all that. The attorney general wants it the other way and really wants to say, look, you're limited to what you presented at trial and the only way this DNA evidence would be helpful is if it actually showed that you were not guilty. The language does support the defense when you look at that."

McDaniel says Arkansas still provides meaningful opportunities for defendants to overturn their convictions and that Riordan's fears are unfounded.

The real question is if the state is so sure of the guilt of these three men, then why not grant them a new trial? The attorney general's office had no response.

"That's a good question," says Epps. "Sometimes we're interested in finality and we make these slippery slope arguments like, if you do this here that's going to open the door for all kinds of other cases to be re-litigated. And that might be what the legislature intended. In some instances, if a situation isn't crystal clear, or there's any ambiguity there, the defense gets the benefit of that. So maybe the defense should get the benefit here and if the legislature thinks that's not correct, they'll come back and change it."

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