Wednesday, January 09, 2013

A Little-Known Legal Maneuver Let 3 Men Convicted Of Murder Get Out Of Jail While Still Admitting Guilt

by Abby Rogers

Prisoners Across America Have Been Sending Us Letters By The Hundreds
Three teens were convicted in the early 90s of the sexual assault and murder of three 8-year-old boys in West Memphis, Ark.

However, the teenagers always maintained their innocence and after nearly 20 years behind bars — and the help of some Hollywood heavyweights like Lord of the Rings director Peter Jackson — Damien Echols, Jessie Misskelly, and Jason Baldwin walked out of prison free men in August 2011.

But their eventual path to freedom was full of tricky legal maneuvers, the biggest of which was an agreement with prosecutors that required them to plead guilty while still maintaining their innocence.

An Alford Plea essentially lets defendants maintain their innocence — they say they didn't do it but admit the state has enough evidence to prove their guilt — while still technically pleading guilty.

After the Arkansas Supreme Court unanimously decided to grant the West Memphis 3 a new trial, the trio invoked an Alford Plea because it could help them avoid a risky new trial.

"So, there was a risk when it went back to trial that the [jury] would still vote for guilt," West Memphis 3 attorney Patrick Benca told Business Insider in an email. "There was the belief that maybe one or two of the jurors would stick to their guilty beliefs and hang the jury, which would have resulted in further delay to getting Damien, and the others out of prison. You can still research comments on the Internet and find these rogue opinions. Our deal got Damien and the others out now without having to address that risk."

Despite the fact the plea got them out of the jail, it didn't exonerate them. In the eyes of the law, the trio pleaded guilty to murdering Christopher Byers, Stevie Branch, and Michael Moore and will always carry the record to prove it.

But the case is far from over.

Now that the three are free men once again, their team has set about finding out who actually murdered the three 8-year-old boys.

West of Memphis, the latest documentary about the case, suggests Branch's stepfather Terry Hobbs should be investigated for the crime.

Attorneys for Echols said in January Hobbs' nephew told friends "my uncle Terry murdered those three little boys," Fox 16 reported at the time.

Hobbs has fought the allegations, calling them "more of a publicity stunt" than anything else.

But earlier this fall, prosecutor Scott Ellington agreed to look into the trio's allegations against Hobbs, according to the Free West Memphis 3 blog.

And it appears he has every right to do so. According to Benca, the West Memphis 3's Alford Pleas don't prohibit prosecutors from pursuing, and possibly convicting, additional suspects.

"It's no different than a prosecutor pursuing other leads when someone is found guilty," Benca said. If new evidence develops, he said, there's "an obligation to make things right."

West Memphis Three
Ellington added to West Memphis 3 FOI case
Posted by Max Brantley

ADDED TO LAWSUIT: Scott Ellington.
Mara Leveritt reports on a legal development in the ongoing West Memphis Three case.

Two parents of children murdered in West Memphis in 1993 still have not been granted access to evidence relating to those murders, despite a lawsuit against local officials and state claims that the case is closed. Now, Pam Hicks and John Mark Byers have amended their lawsuit to include as a defendant Scott Ellington, the district’s prosecuting attorney, who is also a candidate for Congress.

Hicks filed her lawsuit on June 22, after West Memphis police officials denied her request to view evidence in her son’s case. She made that request more than nine months after Ellington entered into an unusual deal by which with the men convicted of the murders—Damien Echols, Jason Baldwin and Jessie Misskelley—pleaded guilty and were freed from prison.

Earlier this week, Ellington said he had not yet seen the lawsuit. He added: “Once I get papers served on me, we’ll forward them on to whomever and respond accordingly.”

In a press conference after their release, on Aug. 19, 2011, Ellington said: “The legal tangle that has become known as the West Memphis Three case is finished.” Supporters of Echols, Baldwin and Misskelley have pressed, nevertheless, for their exoneration.

After Hicks sued the police department for violating the Arkansas Freedom of Information Act by refusing to grant her access to the evidence, West Memphis Police Chief Donald Oakes told the Arkansas Times: "It's our position that our primary responsibility is to protect the integrity of the evidence if at some point in the future a defense team or prosecutor wanted it tested."

Oakes said at the time that he thought there was “probably some room" to accommodate Hicks in some parts of her request. But he added: "The person who should decide access should either be the judge with jurisdiction or the prosecutor, not the police department."

In an interview this week, Ellington said he would “be tickled” to let the attorney representing Hicks and Byers see “anything and everything” in his possession relating to the West Memphis case, but that he and attorney Ken Swindle, of Rogers, had not been able to agree on a time. Swindle said that Ellington has not responded to repeated requests to do that.

Ellington said that the records in his office are “fairly miniscule, compared to what’s at the West Memphis Police Department.” He said he has “basically, old trial notebooks” prepared by former prosecuting attorneys Brent Davis and John Fogleman—“anything that they would have put together in the case.”

Ellington, who is currently running for Congress from Arkansas’s First Congressional District, said it was up to the West Memphis Police Department to decide what evidence it would allow to be viewed. He also deferred to the city attorney for West Memphis to decide which items were covered by the state FOI law and which were not.

“I think that FOI is for documentary evidence,” Ellington said. “It’s for documents. I don’t think it applies to other evidence.”

Still, Ellington admitted that he had, originally, supported the request from Hicks to see her son’s bicycle and other physical evidence that the police department had denied. “I had conversations with citizens who said, ‘What’s the big deal? What’s wrong with letting her see the bicycles?”

When Ellington called Oakes, he said, the chief told him he had no problem with letting Hicks see the “big property.” But, Ellington said, he understood the chief’s position that he did not want to “open up all the stuff from Bode labs,” a reference to the laboratory that analyzed certain fibers and DNA evidence.

The lawsuit naming Ellington claims that a Freedom of Information request was send to him on July 12, that Ellington acknowledged receipt of the letter “both over the telephone and by electronic communication,” and that he “has not provided the information requested.”

Through their attorney, Hicks and Byers asked the Circuit Court judge in Crittenden County to order Ellington and the police department to allow the parents, among other things, “to view and examine all evidence gathered in the investigation of the murders;” to provide “an evidence log or list identifying the physical evidence;” and to provide “all logs or other records indicating who has been permitted access to any of the physical evidence.”

The dispute over access to the evidence pits state and local officials against supporters of Echols, Baldwin and Misskelley who believe that the men are innocent and that the person or persons who killed the three eight-year-old boys in West Memphis almost 20 years ago remains on the loose.

Within the past five years, DNA identified as belonging to Terry Hobbs, the stepfather of Stevie Branch, was found inside one of the knots used to bind one of the other victims. A reward of $200,000 is still being offered for information that may prove crucial in the case.

If such information developed and someone new was charged with the murders, police and prosecutors would want to proceed to trial with evidence that had been properly preserved. That is why the public is not allowed to view evidence in cases that are still “open.”

But when prosecutors are satisfied that a case has been “closed,” either by convictions, acquittals, or for lack of evidence, files are opened and some evidence may even be returned to families.

In the West Memphis case, state and local officials seem to want to have it both ways. While claiming the case is closed, they are preserving the evidence in case, as Oakes put it, “at some point in the future a defense team or prosecutor wanted it tested."

A further twist on the discussion arose last week, during an interview with Kermit Channel, executive director of the Arkansas State Crime Laboratory. Channel said he hoped to be able to address criticisms of his lab that were leveled by Baldwin’s attorneys in letters that were sent to Gov. Mike Beebe, Attorney General Dustin McDaniel, and Ellington.

However, before he could respond, Channel said, he would need to check with Ellington. “I need to make sure I have authorization to talk about the case,” he said. “It’s still the prosecutor’s case. Whether there’s a conviction or an exoneration, in the eyes of the crime lab, this evidence is still protected by law, regardless of the judicial outcome.”


 Amy Swinderman

Ellington: "I said I would review any credible evidence presented by the defense counsel. We are continuing to do that."

Can you be more specific? What have you done? What is your timeline for addressing the information given to your office?

Ellington: "Part of the holdup is locating folks to talk to."

I can find them on Facebook. I live in Ohio. Additionally, I have also read that two of these people who offered information were arrested and actually in state custody for a certain period of time. Were they talked to then?

Ellington: "We told them they could look at anything prior to the Alford plea."

Does that include clothing, bicycles, wallets, etc.? And have you made those available to the parents?

Ellington: "It would be a dereliction of my duties not to review credible evidence." Followed by, "one thing that's very important that I want to say is, if anyone has information, DON'T BRING IT TO ME. There are ways to get it to the defense counsel. They will vet it, and if THEY find it's credible, they can send it to me."

Why does the defense counsel have the responsibility to investigate evidence in a case you, yourself, consider to be open? Is this not the responsibility of your office? And finally, they have already presented you with credible evidence that you have obviously not touched for about a year. Why should the citizens of Arkansas feel confident that you will pursue the evidence (after someone does all the work for you)?

 Courtenay Penick
This guy needs to not be involved AT ALL. He screwed it up enough the first time. I'd love to see this case re-opened in a foreign jurisdiction. The judge himself, kept the appeals out long enough, because they kept handing it to the same biased judge. They have something to cover up, no doubt. This case will never be solved as long as the same players are involved.

 Lein Anderson
Mr. Ellington, your body language says you are lying. If I was a juror I would vote to disbar you immediately. You have failed to do your job and you are dragging your feet. This is a travesty and has always been. One thing is for sure you are a dyed in wool politican who is well versed on the double speak and saying nothing worth listening too. You need to be fired!

 Ralph Noyes
He needs to lose his law license.

There's a judge, former prosecutor, now under state criminal investigation in Texas, just north of Austin, for prosecuting a murder case in the 80s that he HAD to know was bogus. He concealed evidence that showed the accused was innocent.

Ambitious prosecutors WILL do things like this, sad to say.

Mr. Ellington has a LOT of explaining to do.

 Yvonne Hughson
You have got to be kidding me??? He can turn up at a press conference but refused to answer emails or telephone calls from Attornies, hides from being served his subpoena and is seen at the court house yet has his deputy testify for him. AND was claimed on his behalf it is an ongoing active investigation yet couldn't produce anything to prove it is. How is it that Amy Berg is able to track down people of interest but this guy can't? Shaun Wheeler is right. 2 of the parties those affidavits involve are easily accessable to interview, and, he's done nothing since the affidavits were provided to him in Dec 2011. The interviewers might as well have asked Ellington how long is a piece of string? The last person seen with the murdered children was Terry Hobbs as his neighbours say in their affidavits. His brother was overheard assuring Terry he was safe as they already had convictions, and Terrys nephew confessed that his Uncle had murdered those 3 children and it was the 'family secret'. Terry Hobbs alibi witness also throws him under the bus. Ellingtons piece of string seems exceptionally long......

 Ralph Noyes
This was a Christianist witchhunt and the lynching of three stupid hippies from Day One.

Everyone involved, including the West Memphis police, the prosecutor, the judge, and the jury -- especially that influential juror who engaged in serious juror misconduct -- have left a stain on the State of Arkansas that time will not erase.

"QUESTION: If Scott Ellington is telling the truth, why is he trying his case in the media instead of showing up in court? "

Bizarre you should say that because that has been the defense's tactic since the original trials.

 Amy Swinderman
What other recourse did they have?

 Shaun Wheeler
QUESTION: If Scott Ellington is telling the truth, why is he trying his case in the media instead of showing up in court?

Is he afraid of going on record in the only setting that counts? Where his law license can be placed in jeopardy? Statements on television are nice, but statements in court are oh so much better.

 Shaun Wheeler
Ellington is being untruthful and less than candid.

Two of the parties responsible for the statements have been arrested no less than twice since the affidavits were put into Scott Ellington's hands.

Neither of those two parties have been interviewed by Scott Ellington or any person working at his direction.

If nearly a year is inadequate time for Scott to drive to Mountain Home and interview somebody who is sitting in jail, how much more time does he plan on taking?

Mr. Ellington assumes that by merely pointing to the defense he can abdicate his responsibility to the voting public. He is correct to point out that his license to practice law hangs in the balance. Perhaps it's time to see how much the scales have tipped in favor of disbarment.

Surprise, surprise, it seems that between filming 12 hours of hobbits walking around, Peter Jackson found time to indeed do something interesting. Jackson and his producing/life partner, Fran Walsh, are financing a series of giveaway screenings of West of Memphis, their documentary about a West Memphis Three, in and around a district where a prosecutor who worked out a defence understanding is using for congress. That’s as tighten as it gets to gangsta for a dude from New Zealand.

The New Zealand-based filmmaker and his producing partner wife, Fran Walsh, are bankrolling a debate to spin adult a feverishness on Scott Ellington, who is using as a Democrat to paint a state’s initial congressional district in a House of Representatives. Ellington also is a prosecuting profession in assign of a scandalous West Memphis Three triple child-murder box of 1993. In 2011, he authorised an surprising understanding in that a contingent of group sent to jail underneath questionable pretenses was expelled after 17 years as enlarged as they concluded to ostensible Alford pleas, wherein defendants claim their ignorance yet acknowledge justification exists that theoretically could find them guilty.

Well, observant he was “the prosecuting attorney” of a box isn’t wholly accurate. Ellington wasn’t a prosecutor there until 2007, when he became a Deputy DA until he was inaugurated DA in 2010. So he didn’t indeed try a strange case, he only presided over a Alford Plea deal, which, nonetheless kind of screwed up, did get a guys out of jail.

[Jackson and Walsh] along with Hollywood backers including Johnny Depp and Pearl Jam’s Eddie Vedder, wish to entirely discharge Damien Echols, Jessie Misskelley Jr. and Jason Baldwin. And they wish to vigour Ellington — who admits in a film that he sought such a defence in partial so that a group could not record a multimillion-dollar polite fit opposite a state for unfair bonds — to rethink his position.
Ellington, adult opposite a well-funded Republican in a solidly regressive district, is a enlarged shot to win anyway, according to Arkansas State Poll executive Janine Parry. [THR]

Under a circumstances, it seems a small uncanny that they picked this guy. Meanwhile, a decider who presided over a strange case, David Burnett, who pronounced publicly after a defence understanding that he still thinks a 3 are murderers (aren’t judges ostensible to be impartial?), is using unopposed as an obligatory state senator. we theory we can’t change an choosing with no opponent.

Here’s an mention from Ellington’s central matter on because he offering a Alford Plea:

Echols and Baldwin mount convicted of 3 depends of Murder in a First Degree. Misskelley stands convicted of one count of First Degree Murder, and dual depends of Murder in a Second Degree, thereby affirming a verdicts a dual juries handed down seventeen years ago.

A 2010 Arkansas Supreme Court statute brought to light a really genuine unfolding that any of a defendants could expected accept a new trial. we trust that allegations of bungle on interest of a juror in a Echols-Baldwin hearing would expected outcome in a new hearing being systematic possibly by a circuit probity or sovereign court. we serve trust it would be most unfit to put on a correct box opposite a defendants in this sold box after eighteen years of extended litigation. Even if a State were to overcome in a new trial, sentences could be opposite and a appeals routine would start all over again.

Since a strange convictions, dual of a victims’ families have assimilated army with a defense, publically [sic] proclaiming a ignorance of a defendants. The mom of a declare who testified about Echols’s admission has publicly questioned her daughter’s truthfulness, and a State Crime Lab worker who collected fiber justification during a Echols and Baldwin homes after their arrests has died.

In light of these resources we motionless to perform defence offers that were being due by a defense. we NEVER deliberate ANY arrangement that would annul a verdicts of those dual juries. Guilt or Innocence was NEVER ON THE TABLE.

Today’s move allows a defendants a leisure of debate to SAY they are innocent, yet a FACT is, they only beg GUILTY. we strongly trust that a interests of probity have been served today.

On interest of a State we have recorded a verdicts of those juries and averted some-more enlarged and dear trials and appeals in this case.

The authorised mixed that has turn famous as a West Memphis Three box is finished. [ArkansasTimes]

TRANSLATION: “Even yet we only pronounced these guys are guilty, I’m disturbed that a genuine hearing competence outcome in their being valid innocent, so we railroaded them into a crappy understanding to save face.”

Forget what we pronounced earlier, this man is really an greasy sh*tweasel. Even if a screenings don’t impact a election, during slightest some-more people will know what a sh*tweasel he is, that seems like a estimable cause. Also, this is conjunction here nor there, yet “West of Memphis” is a laziest pretension ever.

Peter Jackson perplexing to confuse West Memphis 3 prosecutor is posted at Movie Chart with URL address :