Just returned from a star-studded concert for the West Memphis Three in Little Rock, Arkansas. For those who may not know of the WM3, check out www.wm3.org and http://www.freewestmemphis3.org, two of the best websites in the business, to educate yourselves about this terrible wrongful conviction which has cost three young teenagers (Damien Echols, Jason Baldwin, and Jesse Miskelley from West Memphis, Ark.) seventeen years of their lives so far.
My involvement in the case has been as a passive observer until recently when the Center on Wrongful Convictions of Youth (www.cwcy.org), was asked to file an amicus brief in the case before the Arkansas Supreme Court based on juror misconduct. Here's the issue we weighed in on in a nutshell and one of the strongest issues that will be argued in Damien Echols's case on September 30 in Little Rock.
Could Damien Echols and Jason Baldwin have received a fair trial when a juror, on his own initiative, decided to introduce the confession of Jesse Miskelley into the jury deliberations, even though the United States and Arkansas Constitutions barred that evidence from trial and the court specifically instructed the jurors not to consider it?
The answer of course is resounding "No" and here is why:
Confession evidence is the most powerful evidence in a court of law. Admission of a confession can render a trial superflous and almost guarantees a conviction. Even when confessions are uncorroborated, undermined by DNA evidence, filled with errors, taken from juveniles or the mentally retarded, etc, jurors have a hard time discounting them because they can't get past their own belief that they would never confess to a crime they did not commit, especially a murder which could result in a death sentence. Jurors need to be educated about false confessions -- the fact that they are far more common than people think (20-25% of 258 DNA exonerations), that they occur most often in murder cases (80% of documented false confessions), and that there are ways to distinguish between true and false confessions.
At the very least, the Constitution demands that a defendant have the chance to attack the reliability of the confession through cross-examination, expert testimony, and all the other tools of the adversary system. Cross-examination is so crucial to the truth-seeking function of our adversary system, that without it, it is like skipping the trial altogether and just convicting the defendant on the untested word of the agents of the State. For this same reason, courts do not allow the confession of one defendant to be introduced into evidence against another defendant at trial unless the defendant on trial has the ability to cross examine the confessor in the flesh. When one defendant fingers another one, jurors need to know what promises were made to that defendant, what benefits he is receiving for his testimony in terms of a sentence reduction, and what circumstances led to the confession in the first place. In Jesse's case, he recanted his confession and refused to testify against Jason and Damien despite the fact that he could have walked out of prison in little or no time for doing so. Jesse's unwillingness to testify against Jason and Damien prevented the prosecution from even mentioning the fact that Jesse had made a statement to the jury in the Echols/Baldwin trial.
At Damien's and Jason's trial, however, one of the detectives let slip the fact that Miskelley had made a statement, prompting an immediate call for a mistrial by the defense. The detective did not say anything about the details of Jesse's statement -- just the fact that he made one -- and the judge felt compelled to instruct the jury to disregard the detective's testimony on this point and to not consider the fact that Jesse made a statement in its deliberations.
New evidence has developed post-trial to indicate that the jury foreman, concerned that the State's case against Echols and Baldwin was weak, took the law and the Constitutions into his own hands and reminded his fellow jurors that Jesse had confessed. He not only discussed the fact that Jesse confessed, but he also brought into the jury room the details of the confession (as reported in the media), pronounced them to be true, and argued to the fellow jurors that people do not confess to crimes they did not commit. Affidavits from jurors and juror's notes demonstrate that Jesse's confession was put up on a chart and weighed along with other evidence in determining Echols and Baldwin's guilt. Once that confession was discussed during deliberations, Jason and Damien had no chance of being acquitted. None. Nada. Zilch.
This newly discovered evidence of juror misconduct is a game-changer. The beauty of this issue is that nothing short of a new trial can remedy it. The error is structural, fundamental, and so prejudicial that it can never be deemed "harmless." And it is not an issue that requires the court to blame the police, the prosecutors, the defense lawyers or the trial judge. It happened without the knowledge of all the parties and had it been known to the trial court at the time it heard the direct appeals of Damien and Jason, the court would have had no choice but to order a mistrial.
The issue of juror misconduct also relieves the Supreme Court of having to opine about the innocence or guilt of Jason and Damien. Nor does it require the Court to find that Jesse's confession is false (whether true or false is irrelevant, the fact that the defense was deprived of the chance to demonstrate its unreliability through cross-examination is all that matters). And it is newly discovered evidence that was not before the Court when it affirmed the convictions of the boys. The Court can order a new trial and uphold the credibility and integrity of Arkansas's justice system at the same time.
For those interested in reading the CWCY's amicus brief (written in large part by my colleague Laura Nirider), scroll down this page to get to the link:http://cwcy.org/CasesViewDetail.aspx?id=10
