West of Memphis: The Miscarriage of Justice Explained
I walked into the Sundace Film Festival premiere screening of the Peter Jackson/Fran Walsh-produced documentary West of Memphis admittedly knowing little about the case of the West Memphis Three beyond what Eddie Vedder had told me (and everyone else in the world) about them, and what little I'd retained. Three kids in Arkansas were apparently wrongly convicted for murder because they were a bit off and easily branded as Satanists by whatever hyper-right-wing community they lived in.
Thanks to director Amy Berg creating the 2.5-hour detailed explanation of the frustratingly tragic events of the case, I know there's a hell of a lot more to it than that simplistic notion, and we've also got a pretty damn good idea as to who might've actually committed the crime.
The misery starts with the discovery of the disturbingly mutilated bodies of three 8-year-old boys – Christopher Byers, Steven Branch and Michael Moore – in a creek in Robin Hood Hills, West Memphis, Arkansas in 1993. It continued with the Arkansas criminal justice system railroading teenagers Damien Echols, Jason Baldwin and Jessie Misskelley into prison in 1994 by branding them as Satanic cultists without any admissible evidence beyond hearsay testimony from some very questionable witnesses. Echols was even put on death row. However, the long, arduous story of hope starts with Lorri Davis, a woman who began exchanging letters with Echols after he was incarcerated – and a bond between the two grew strong enough for them to get married.
Davis' tireless dedication to seeing her husband freed and cleared of this miscarriage of justice against the constant stonewalling and intractability of the state eventually caught the attention of Walsh, Jackson's wife and frequent cinematic collaborator.
"I got an email from Fran and Peter one summer morning in Arkansas," Davis explained at Saturday's press conference for West of Memphis at the Blue Iguana Lounge in Park City, Utah. "They had sent some funding to help with the case, but they also sent a note that said 'anything we can do to help from New Zealand?' I wrote back immediately and Fran and I started this email correspondence that kind of gave me a reason to live for a while. It was just so amazing writing to her. She's such a remarkable, amazing… I could just go on and on."
"It began as an offer of help and it really evolved into a friendship," Walsh added. "I guess when you become emotionally invested in a friendship, then the case followed. We were curious about the case and astounded that, when we'd made the inquiry, that Damien, Jason and Jesse were still in prison. We couldn't quite believe it, and we offered any help we could."
"We got involved in about 2005," Jackson clarified, citing the importance of Paradise Lost: The Child Murders at Robin Hood Hills, the first of three earlier documentaries about the case by Joe Berlinger and Bruce Sinofsky, in raising awareness of the West Memphis Three. "By the end of 2008, we'd helped the defense team get into DNA testing and various forensic testing and bringing in the experts they never had at the original trial. What Fran and I thought we could bring to this – and certainly Lorri was very much part of this as well – was to figure out 'what experts can we bring in? What science can we bring in just to cut through all the nonsense that had been generated about this case?'"
"If you look at Paradise Lost and the footage of the original trial," Jackson noted, "you've got prosecutors and the judges and the police who are paid. They are paid to prosecute these guys, and the defense have got hardly anything. No resources. In fact, when the few experts that the defense called come on the stand, they are grilled about 'are you getting paid to appear here?' As if it's a crime. We just thought this is not the way that justice should work."
While wealthy celebrity assistance was certainly crucial in gathering new evidence, it was by no means an automatic turn of the tide. "We went down a huge amount of dead ends and disappointments," Walsh explained. "It was a lesson in disappointment. It was a bitter experience." This was acutely demonstrated when they spent so much time and effort gathering credible evidence contrary to the conviction, only to be flatly denied by Judge David Burnett, who presided over the original case.
"He just said 'it's not compelling.'" Jackson said. "The words 'not compelling' got us so angry, as you can imagine. We didn't know what to do. We felt that there was a willfullness within the state to not allow any of the new evidence to actually get out there. They wanted to suppress it. At that point, Fran and I thought, well, maybe we should turn to the thing that we know how to do, and that's to make a movie."
Enter Amy Berg, whose work Jackson and Walsh had appreciated in her Academy-Award nominated documentary Deliver Us From Evil, about Catholic Church sexual abuse.
"We needed to find a filmmaker who could come on board who was the perfect person," Jackson noted. "We needed someone brave. We needed someone not just to be a filmmaker, because this wasn't about making a movie. This wasn't saying 'come on board, here's a story, go make a film.' This was an ongoing case, and Amy's been on this almost as an investigative journalist more than a filmmaker for three years now, and the story has been evolving the whole time. As you saw in the movie, Amy was filming an interview last weekend."
That's less than a week before its premiere on Friday night at Sundance, and those most recent interviews are absolutely crucial to the chances for a full exoneration of the West Memphis Three. But we'll get back to that.
"This case and this story and all the people involved – there was just so much information to sift through," Berg told us about coming onto the project. "It was daunting at first. This was something that had been looked at and looked at, and there were certain areas that had been neglected. It was daunting, and it did become an investigation as much as it became a film."
But it was certainly both, and one of the more theatrical elements came from an unusual and striking sequence where the entire nature of the crime is changed because of turtles. More specifically, big, nasty, hungry turtles who live in abundance in the creek where the boys were found, and were very likely the cause of all the post-mortem mutilations of the bodies that had been previously blamed on occult practices. "Peter, when we first started working together, told me I should go do this pig-turtle experiment," Berg explained of the sequence where the scarring on the boys' bodies was compared to the scars the big turtles left on a pig carcass. "I thought he was crazy, I couldn't believe it. It was insane. We had to humanely kill a pig."
It was worth the karmic price, because by taking the horrifying torturous aspects away from the actual crime, West of Memphis paints a very different picture of what actually happened to these three boys – and they make a compelling case for the guilt of Stevie Branch's stepfather, one Terry Hobbs.
You may have heard that Damien, Jason and Jessie were finally released back in August of 2011 after 17 years in prison, but even that came at a significant price – having to plead guilty and innocent at the same time. It's a ridiculous arrangement brokered by current Arkansas prosectuor Scott Ellington known as "The Alford Plea," which essentially granted them their freedom while allowing the state to cover their own asses and prevent any kind of civil lawsuits for wrongful imprisonment. "I don't think that an exoneration is possible unless there is a conviction," Jackson lamented.
"As a legal matter, it's not technically true that there has to be a conviction of Mr. Hobbs for Damien, Jason and Jessie to be exonerated," explains Stephen Braga, one of the WM3's defense lawyers. "As a practical matter, Peter is 100% correct. The state is not going to reinvent the wheel on this. We'll have to give this to them somewhat on a silver platter. We've already given them some new declarations just yesterday, they'll look into it and we're continuing the work, but the clearest way to get an exoneration is to prove who else did it."
That leads us to those interviews Berg conducted last weekend, although they weren't even the first groundbreaking interviews she managed to land. "We had a secret weapon in Amy Berg," Braga explained. "People talked to Amy Berg who refuse to talk to defense lawyers. Michael Carson never talked to defense lawyers, but he's in the movie, he talked to Amy Berg, and the interview is amazing." Carson is one of those questionable witnesses who testified in the original trial who, along with Vicki Hutcheson, both recant their testimony in West of Memphis, further illustrating the depths the state went to in order to get their conviction.
"Those were people put into situations they wouldn't normally be put in," Baldwin, one of the WM3, said coming to their defense. "They were put into situations to save themselves by throwing someone else under the bus. Talking about Vicki Hutcheson and Michael Carson. They didn't make the right choice by doing that, but then again, who was putting them in that position? It was the West Memphis police department. They are the ones who should be held to a higher standard. They're the ones who took the oath to protect and serve the innocent. By doing what they did in that fashion, they didn't do that. They violated that oath, they violated the trust of the people, they violated us. They're the ones I don't have forgiveness for."
Berg had also managed to speak with Judge Burnett, whom she felt seemed "dark" and "corrupted," as well as one of the original prosecutors in John Fogelman, whom she feels has some "torture" and "is wrestling with something," although she thinks "they do believe in whatever their truth is, but it's different." She even spent enough time with Pam Hobbs, mother of one of the victims, to convince her that the wrong people were convicted, and that it very well might've been her ex-husband behind it all.
Last weekend's interviews, however, were with two young men acquainted with Michael Hobbs Jr., the nephew of Terry Hobbs, who responded to the WM3 Confidential Tip Hotline (501-256-1775) after an episode of 48 Hours, and claimed that Hobbs Jr. told them point blank that "The Hobbs Family Secret" was that Terry Hobbs, who has a history of violent behavior, killed those three boys.
"Every time there's a story about this case, our tip line lights up," Braga explained. "So after somebody viewed this 48 Hours show, they called the tipline, we got the tippee to come to Washington with some friends and meet with me. I met with them for a day, got declarations under penalty of perjury, they passed polygraph examinations on what they said Hobbs Jr. told them. I think the significance of that for the case is that it's an ever-developing indication that maybe Terry Hobbs is the person who murdered those little boys. Maybe. We would never say we have proof positive beyond a resonable doubt that he did it, but the case is building and building and building. The significance of the new evidence for right now is it gives us a hook to go back to Scott Ellington, the prosecutor, and say 'will you please take a look at this? There's other new evidence in Amy's film besides these kids, besides these declarations, we've got some other witnesses we think you'd talk to [such as Michael Carson's interview]. Can we work with you now instead of against you and try to help solve this case?' He's indicated that he'll consider that in good faith, and hopefully he will."
One might be led to wonder why, with all this celebrity support, benefit concerts, publicity and new evidence behind them, and the tipping point appearing to be within their grasp during the making of West of Memphis, why Damien, Jessie and Jason decided to sign the Alford plea, making their exoneration more difficult. In fact, Jason Baldwin was adamantly opposed to the 'guilty but really I'm innocent' idea and almost torpedoed the deal for all three men. In a weirdly amusing moment in the film which illustrates the surreality of this case, Lorri Davis says "I'm going to send Eddie Vedder to talk to you," to try and convince him to change his mind. In the film, Vedder says he gave it a go, but completely understood Baldwin's princpled stance and didn't feel like he had the right to try to talk him out of it.
Pictured here: Don Horgan, Dennis Riordan, Damien Echols, Lorri Davis, Amy Berg, Peter Jackson, Fran Walsh. Speaking in header image above: Jason Baldwin
However, what finally turned the tide was realizing that Damien had been put into solitary confinement, and was having a really rough go of it. "If we would've kept fighting, if we would have not taken the plea, I think it's possible that perhaps we would have beaten this case, but that would be living in a vacuum," Echols explained. "The truth of the matter is they could have dragged this out forever. Just because we had a hearing in December meant nothing. They could have dragged this out for another five or ten years. Basically, whenver they came to us with this plea, it's almost like they're saying 'you can sign this paper right now and go home this week, or you can sit here and yeah, you may be able to beat us eventually, but we'll make sure that's a long, long way off in the future.' I didn't have that much time. I was very rapidly physically deteriorating. My health was going downhill really, really fast. Not to mention that, like the prosecutor says in the movie, he knew that if we got out and filed lawsuits, the state of Arkansas would have to pay us sixty million dollars. They could have had me killed in prison for fifty dollars any day of the week. I could have been stabbed to death walking down the hallway. I knew I would not have lived to see that exoneration."
"I was in a different situation than Damien was in," Baldwin added. "I was in general population. The earlier years were very difficult – my skull was shattered, my collarbone was broken – but as the years went on and people got to know me and got to know the case, all that changed. People were offering me prayers and hugs and support. Even though they were my guardians and their jobs were to keep me there, they wished they could've gave me the keys and let me go, which was a totally different situation from where Damien was at. So for me, making the decision to keep on fighting the good fight, whatever, wasn't that hard, but what made the decision for me was being reminded that Damien was where he was at. I was reminded of that right after we got out, we were in New York going to the Museum of Natural History. We were walking through there, and every five minutes or so, Damien would have to stop and catch his breath because he'd just been confined in this little cell. That hit home, and made me realize I made the right decision, because he's out here free now. From what I gather, he's getting pretty healthy. Lorri got him a weight set for Christmas, and they jog and run and you know, he survived."
So, after emerging from this horrible ordeal, even though they were eventually freed, what faith can any of these people have in the American criminal justice system?
"Working on this film, I have no faith in the justice system," Berg answered. "It's really hard. It's kind of the fundamental value, and I just feel like this has opened my eyes to so many wrongs and injustices. So I, personally, feel so let down by the system."
Echols went a step further. "They know, a lot of times, all they have to do is stall, and then people will move onto something else. They'll take an interest in something else and this will be forgotten about. We're talking about politicians. People think that people like judges and prosecutors and attorney generals gain these positions of power because they have some kind of better morals, or they've earned them in some way. The truth of the matter is they are politicians, just like senators, just like congressmen, and they do the same things that other politicans do. They lie, they manipulate facts, they do everything they can to make it look like they've never made a mistake."
Echols was also keenly aware of how fortunate he was to have celebrities on his side. "I would ask everybody to look into the case of a man named Timothy Howard, who is on death row and who is one of the ones who I believe is also innocent," he told us. "Really, what it comes down to in these cases is that you can have all the evidence in the world that shows you didn't do it, and if there's not some sort of outside attention focused on it, if the media doesn't pick up on it, then the system will do nothing but sweep it under the rug and murder that person. It happens all the time. A lot of times, the only thing that makes a difference is how much outside attention is focused on the case."
Braga understands this acutely as well. "These cases, Damien says it in the movie, they're out there," he said. "Since the Alford plea, I've probably gotten 50 letters and emails from other inmates on death row around the country saying 'I've got the same problem, I need the same help. Can you get the Alford plea for me?' I can't. This case is unique that way – all the pressure that built up as a result of all these folks' efforts. But there are a lot of cases out there, and the system is not about truth. It's about justice within the circumstances that the system operates on. The best we can do. When things go wrong, the best we can do is really bad, but most of the time, it's kind of a rough justice, the way the system is built to administer."
Dennis Riordan, the San Francisco lawyer who eventually agreed to take on this Arkansas case and became crucial to the defense, had a more conciliatory response. "My view of the American criminal justice system is much like what Churchill said about democracy: It's the worst system in the world except for all of the others. Having had a lot of experience with other judicial systems, this one actually, in most cases, functions well. Most cases are settled by a resolution that often is the correct resolution. The incredible human tendency, though, is that if something is true 80, 90 percent of the time, who wants to spend the mental effort saying 'you know, I've got to figure out whether it's true in every instance'? Most of that time will be wasted. Most of the time, the case the cops give me will be the right one."
However, this case was unique in Riordan's mind, due to the stunning lack of any actual evidence. "This was the kind of case, difficult as it was, that is why you become a lawyer."
Don Horgan, Riordan's law partner, did try to point out a silver lining. "There was one point when the system actually did respond in this case – in the Arkansas Supreme Court in 2010. That was the one time I felt good about the system, because those judges were thoughtful, they analyzed the statute in the way it ought to have been, and they actually issued a very, very good opinion, not just for Damien and Jason and Jessie but everyone who comes after them. It's an expansive view of what the DNA statute is and what it should allow."
But Horgan completely understood how demoralizing this experience has been. "I suppose, on the other side of it, the fact that it took so long and we lost every legal effort up to that point – that relentless chain of losses and the feeling that the system just wasn't listening is very distressing. That it took so much effort and all these great people coming together – Fran and Peter and the resources they devoted, and Amy's contribution, and Arkansas Take Action and the celebrity support, everybody – that it took that much effort and that long is saddening because we know how many people are out there who won't get this attention. They will languish in prison and many of them will be executed, and that is a terrible shame."
So, what about the West of Memphis film itself, which this long-winded article is ostensibly about? Damien Echols is proud of it. "This is the first time that we've ever been able to have input into anything that's been done on our lives or on the case," he said. "All the other documentaries or TV shows or magazine articles, whatever they were, they were all someone else's work, someone else's ideas, someone else's vision. This is the first time that we've ever gotten to actively put our stamp on it and make it our project, and for us, it's a good sense of accomplishment."
Peter Jackson summed it up well, giving all credit to Amy Berg. "What I'm incredibly proud of in the film, and it's entirely Amy's doing, is the humanity that's on display. Our involvement in the film was originally the evidential part of it, but Amy, spending so much time in Arkansas, found the humanity in all its forms. There's good, there's evil, there's hope, there's despair, there's love, there's hatred, there's greed, there's kindness. Every aspect of who we are is demonstrated on screen by the various people in this film. Ultimately, it's so soppy to say 'love triumphs,' but it was Lorri who got this to where it is today."
Indeed, Lorri Davis' herculean efforts made all of this happen, and now that they're free to finally live together, she and Echols have vowed to never return to Arkansas. Where will they go? "We haven't actually decided yet," Davis answered, "but it's a great problem to have."
Learn more about the efforts to free wrongly convicted people with The Innocence Project.
To contribute to the fund to help Damien, Jason and Jessie in the wake of being unable to get any compensation for spending half their lives in prison, go to WM3.org.
If you happen to have any information concerning the case, call the West Memphis 3 Confidential Tip Line – 501-256-1775.