Spoiler Scale (How spoilery is this article on a scale of 1 to 10?): 8
“I am going to influence the world. People will remember m[e].”
– Damien Echols, from Exhibit 500, page 50, in Echols v. State of Arkansas
The setting was West Memphis, Arkansas – a town of roughly 30,000 that sits on the other side of the Mississippi River from the relative metropolis of Memphis, Tennessee. On May 5, 1993, sometime between 6:30 and 8 p.m. on the evening of a full moon, three eight-year old boys were murdered – Stevie Branch, who lived with his mother, Pamela Hobbs, and his step-father, Terry Hobbs; Chris Byers, who lived with his mother, Melissa Byers, and his adoptive step-father, John Mark Byers; and Michael Moore, who lived with his father and mother, Todd and Dana Moore. Their bodies were found naked, their wrists tied to their knees with shoelaces, with multiple bruises, scratches, bite marks, and cuts; and Chris’ testicles and skin on his penis were missing. Their bodies had been submerged in a ditch filled with water, along with some of their clothing. Based in part upon the confession of Jessie Misskelley, who was aged 17 at the time of arrest and was reported to have an IQ of 72, the state prosecuted Misskelley, the supposed ringleader, Michael Wayne “Damien” Echols (aged 18 at the time of arrest), and Echols’ best friend, Jason Baldwin (aged 16 at the time of arrest). As Misskelley ultimately refused to testify against Echols and Baldwin, Misskelley was tried separately in February 1994, found guilty of various degrees of murder, and received a cumulative sentence of life plus 40 years. Immediately thereafter, Echols and Baldwin were jointly tried, and although Misskelley’s confession was not admissible, they were found guilty of capital murder; and in a separate sentencing phase, Echols received the death sentence and Baldwin a life sentence. The gruesome nature of the crimes garnered a great deal of local media attention, with the general consensus in the community attributing the murders to Satanic rituals. In August 2011, by agreement with the state, the “West Memphis Three” (also known by the catchier initialism “WM3”) were released for time-served upon the submission of an “Alford plea” – a guilty plea that allowed them to profess their innocence. As a practical matter, the Alford plea effectively ended the possibility of – and the uncertainty associated with – a new trial based on subsequent discovered evidence, which would surely take years to occur (if at all), while practically preventing the state from being sued or prosecuting any other suspects for the crimes.
Following the case from the original trial, co-directors Joe Berlinger and Bruce Sinofsky ultimately produced three Paradise Lost documentaries for HBO. Metallica stepped in to provide the soundtrack, as one of the suspects did profess a fandom for the group. Then came the bandwagon: Henry Rollins (punk rocker/monloguist), who held benefit concerts and compiled a benefit record; Eddie Vedder, who had Echols co-write a Pearl Jam song; and Natalie Main, whose comments prompted a defamation lawsuit from a potential suspect.
But a couple of documentaries from a guy who also directed Book of Shadows: Blair Witch 2 (2000) was just not going to do it. Bigger players with bigger pocketbooks were needed. In 2005, director Peter Jackson and producer Fran Walsh (Lord of the Rings trilogy (2001-2003)) decided to fund a new investigation to be chronicled in yet another documentary directed by Amy Berg – West of Memphis (2013). As Berlinger distinguishes the films, “The Paradise Lost trilogy represents objective journalism by people who are not the subjects and West of Memphis is one of the greatest examples of impassioned documentary advocacy I’ve ever seen.” (“Our Work Is Done: Joe Berlinger on Paradise Lost and West of Memphis,” Craveonline (December 31, 2012)).
As an initial matter, because of the high level of emotions surrounding this case and the tendency to take things out of context on the internet, it is worth noting the ultimate opinions of this blogger (based on the available information and rendered confidently from the comfort of his seat on a couch and the wisdom derived from an internet search engine):
- Not only did the defense raise reasonable doubt in the Misskelley and Echols/Baldwin trials, but it is more probable than not that none of the WM3 committed the murders at Robin Hood Hills.
- The current quantum of credible evidence, lacking as it is, does not sufficiently support a claim that any other particular person committed the murders either.
- Kudos should go out to the people who made the release of the WM3 possible – most notably, (i) the Berlinger/Sonofsky/HBO team, who inarguably got the ball rolling; (ii) Jackson and Walsh, who put their money where their mouths were to fund the best investigation that could be had under the circumstances; (iii) the people of Arkansas, for enacting a statute that allowed the WM3 and other defendants convicted before DNA tests were conducted an avenue for reconsideration of their case; and (iv) the defense lawyers, all of whom appeared to devote as much effort as they could muster with the resources they had.
If the WM3 cases should teach us anything, it is the destructive folly of using any means to achieve a desired end – no matter how noble that end may seem. As such, this essay is not intended to question guilt or innocence, but to explore how and why the WM3 documentaries (to varying degrees) spun the narrative of the WM3 away from certain relevant facts and why the entertainment industry grabbed hold of that particular narrative. After all, none of these celebrities were making benefit albums or holding fundraising concerts for the likes of the Innocence Project (a nonprofit dedicated to exonerating all of the wrongfully convicted).
The Four Documentaries and the Narrative that the Entertainment World Could Get Behind
If there is one WM3 documentary where the advocacy of these documentaries gets closest pure investigative journalism, it would be the original Paradise Lost: The Child Murders at Robin Hood Hills (1996), which covers and contextualizes the original trials of the WM3 as they happened. The film opens with the crime scene footage, set to the somber “Welcome Home (Sanitarium).” Interviews with the surviving parents/step-parents reflect the shock felt by the small, relatively poor, uneducated, and religious community. From the gruesome nature of the crimes, which were unprecedented in the area and appeared out of the local law enforcement’s league, suspicions of ritual killings quickly bubbled to the surface. And based on his reputation, within less than a month after the murders, Echols quickly became suspect number one. To a large extent, Baldwin’s guilt arose by association.
Part I of the original documentary deals with the circumstances surrounding Misskelley’s confession and his resulting trial, while Part II covers the Echols/Baldwin trial. Of all of the documentaries, the original Paradise Lost gets closest to an objective assessment of the facts that the police, the prosecution, and jury were actually privy to at the time the WM3 were found guilty. Most significantly, the viewer gets to see portions of Echols’ own testimony at trial. Eventually, however, this exercise in investigative journalism inadvertently becomes something else, as the filmmakers themselves literally became a part of the trial. Nonetheless, the documentary represents a watershed moment for the WM3 – a rallying point for those who believed they were innocent. The viewer was left with the lingering question: How could the police, the prosecution, the judge, and jury, and indeed, the whole West Memphis community have allowed this to happen?
From the very first installment, and even more so in the second, the filmmakers presented a cultural response to this question. We were treated to a plethora of images of images of religious fanatics living in a backwoods community with a church on every corner.
From the get go, the oversimplified take away was that these are the kind of people who are ultimately responsible for this particular travesty. And each successive documentary became less an indictment on various aspects of the current judicial system (i.e., problems that may plague a broader scope of cases) and more a salvo in a culture war between the liberal elitists on the coasts and the good people of small town middle America.
Paradise Lost 2: Revelations (2000) begins with a recap and a summary of the effects of the first documentary. Echols was in the last stage of his state appeal based on a claim of ineffective assistance of counsel. Tellingly enough, Echols asserted that his legal counsel had a conflict of interest because they were paid to appear in the original documentary. And to a large extent, success had defeated the Paradise Lost team, as new defense attorneys refused to appear in interviews, cameras are no longer allowed in hearings, etc. To compensate, the filmmakers more fully embraced their participatory role as they track the internet swell of WM3 supporters inspired by the original documentary.
Among the most significant
“revelations” red herrings of Paradise Lost 2 were one new development and another that was intimated in the first documentary. The former involved a photo of one of the victim’s body that the defense purported to show a bite mark, which by the way, did not match the defendants.
The prosecution countered the defense’s contention by noting that the medical examiner had originally considered and rejected the possibility that the wounds were the result of a bite. Of course, this supposed breakthrough is never mentioned in the subsequent documentaries because the forensic big guns who would later join the defense team (including the doctor who wrote the textbook referred to by the Medical Examiner in the original trial) attributed such bites – as well as the missing genitalia – to snapping turtles that would have been present in the water where the bodies were submerged.
Paradise Lost 2 also expanded upon the possible involvement of John Mark Byers – the adoptive step-father of one of the victims – who the police investigated and the defense attempted to implicate in the original Echols/Baldwin trial.
Byers’ own inconsistent statements and strange behavior provide most of the drama in the film. We are told that since the first trial, Melissa Byers died under mysterious circumstances with an autopsy sealed pending further investigation. By the time we witness Byers revisiting the scene of the crime to light a mock funeral pyre for the WM3, the intended message is clear: Byers is a wacko. However, the end of the film reveals Byers passing a polygraph examination arranged by the filmmakers, although they qualify the results by noting that Byers was on several mood-altering medications prescribed for anxiety. And by the beginning of the next documentary compiled a decade later, Byers and Echols have made nice and Byers is firmly rooted in Team WM3.
So much for the continued relevance of Paradise Lost 2.
With film footage stretching back to 2005, the Oscar-nominated Paradise Lost 3: Purgatory (2012) effectively recaps the most important portions of the prior two films (aided by unused footage from the original documentary) and adds the final chapter of the WM3 ordeal – both in terms of the case itself and the media groundswell in support of the WM3.
We are also introduced to Lorri Davis, a New York architect who viewed the original documentary, became obsessed with the case, and eventually married Echols in prison in 1999. Why she did not appear in Paradise Lost 2 is not entirely clear.
We also learn that in 2007, DNA tests were conducted on the physical evidence left from the crime scene. Although there was very little evidence to begin with, none of the hairs found are consistent with any of the WM3. The filmmakers also explore the possibility of jury misconduct. An affidavit is presented (albeit hearsay) indicating that the jury foreman in the Echols/Baldwin trial discussed the case with an attorney during deliberations, and according to juror’s notes, spoke about the Misskelley confession to other jurors (even though it was not admissible evidence). The potential for a retrial or reversal of the conviction begins to emerge, as the filmmakers trace the long procedural road that ultimately lead to the Alford plea.
In Paradise Lost 3, the focus also shifts away from Byers to a new potential suspect – Terry Hobbs, another stepfather of one of the victims – who has a history of violence, offered inconsistent alibis for his own whereabouts, and most significantly, is tied to the crime by a single hair found in a ligature on Michael Moore based on DNA tests conducted in 2007. That said, forensic serologist Thomas Fedor states that the DNA match with Hobbs was also consistent with 1.5% of the population, and under the circumstances, would not be sufficient to convict Hobbs beyond a reasonable doubt. Notably, Fedor’s warning about relying upon the DNA evidence as affirmative proof of guilt is conspicuously absent from the last documentary, which loosely parallels Paradise Lost 3.
West of Memphis (2012) is directed by Amy Berg and co-produced by Berg, Peter Jackson, Fran Walsh, Echols, and his wife, Lorri Davis. Regarding West of Memphis, the late Roger Ebert stated, “If you only see one of them, this is the one to choose, because it has the benefit of hindsight.” Of course, to the extent that a documentary is intended to serve as an institutional and community-wide indictment, hindsight becomes part of the problem. Ironically enough, for the first time in any of the documentaries, Berg gained access to one of the most important players in the case – an actual juror in the Echols/Baldwin trial, who sat and heard weeks of evidence in the original proceeding and was privy to the 11 hours of deliberations by the body that made the ultimate factual determinations. And yet, over the course of two and half hours, we get three seven-second snippets (1) a recounting of how she did not know how to get out of jury service (read: this lady must be lazy and uninvolved); (2) her belief that Echols was the “mastermind” of the crime (read: this lady must be dumb); and (3) her belief that a particular knife was used to kill one of the children to support Jackson’s contention that this was the un-credible evidence relied upon in the original Echols/Baldwin trial (read: this lady must be really dumb). The opportunity to honestly explore the perspective of the jury is wasted while the film makes only piecemeal distinctions between (a) all the exculpatory evidence that the WM3 were wrongfully convicted and (b) the evidence that the jury was actually privy to during the trial.
Although there are fewer actual facts and objective analyses presented in 147 minutes of West of Memphis than in 121 minutes of Paradise Lost 3, we are treated to more time with the stars, like Eddie Vedder singing “The Times They Are a Changing,” Johnny Depp reading from Echols’ journal, and Henry Rollins name-dropping and greeting fans.
If one already knows how the case turns out from the beginning (and it would be difficult not to at this point), all of this gives West of Memphis the feel of a victory lap for the celebrity WM3 bandwagon.
But the biggest problem with West of Memphis – which, to a lesser extent, is also a problem with two of the other three documentaries – is the indulgence in the same type of conduct that the filmmakers indict the community/criminal justice system for. Paradise Lost 2 directed the ire on someone that viewers on the coasts are more likely to consider their own brand of weirdo – the bible-thumping, gun-toting John Mark Byers. With the benefit of establishing a DNA link between Hobbs and a hair found in the ligature of one of the victims, Paradise Lost 3 dropped Byers and focused briefly on another evil stepfather of a victim – Terry Hobbs. But whereas the filmmakers of Paradise Lost 3 left the cameras on while forensic experts hired in 2007 specifically warned against persecuting another suspect based on the scant DNA evidence, Jackson and Berg are not so equivocal, lest they muddy the message of West Memphis Three.
After decrying and ridiculing the specter of Satanism that infected the original investigation, the filmmakers resort to dubious allegations of child molestation. What is the evidence that Hobbs was a molester? Hobbs’ ex-wife’s sister (Judy Sadler) remembers a conversation with Hobbs’ deceased stepchild Stevie Branch (when he was six years-old and she was 14) indicating that not only was Stevie beaten with a belt and locked in a closet when he didn’t do what he was told, but Hobbs would come into Stevie’s room and make him watch Hobbs masturbate as Stevie was forced to “mess with” his sister Amanda. Of course, Hobbs denies this in his deposition, but as any good lawyer knows, simply hearing the question is often all that’s needed to push the necessary buttons in the intended finders of fact. Amanda specifically denies this allegation as well, but the implication of the filmmakers is clear: Amanda is an emotionally troubled young adult and recalls having dreams of having sex with her father, so it must have happened. At one point in the film, Jackson declares that “justice should be fair, it should be honorable, it should be decent.” Indeed.
Echols and Jackson – the latter of whom professes to have a “pathological hatred of bullying” – overreach in another important respect. In the original Paradise Lost, the West Memphis police were characterized as lacking the resources and experience necessary to deal with a crime of this nature and facing mounting pressure from the public to find justice. Although chief investigator Gary Gitchell and the original prosecutor John Fogleman barely appear, both are accused of intentionally pursuing the WM3, with knowledge that they were innocent, for the purpose of moving up the political ladder (as Echols puts it). What is the specific evidence of this evil motive directed at the WM3 (as opposed to mere negligence and overzealousness)? A juvenile officer (Steve Jones) alleges the prosecutor (Fogleman) once told him that Fogleman did not actually believe Satanism was actually involved in the murders. That’s it. And yet this assertion of a knowing conspiracy against the kids who were different is subverted by the fact that the police actively investigated another suspect at one point in the proceedings (John Mark Byers). But with a rather interesting choice of words, Jackson dismisses this inconvenient aspect by lumping Echols and Byers together as “equally theatrical perpetrator(s).” In other words, those red state hicks really don’t much care for theatrical people.
To be sure, with Echols and Davis co-producing and narrating, West of Memphis is – more than any of the other documentaries – the Damien Echols Show. Indeed, we hear virtually nothing from the other two members of the WM3 until the last 10 minutes in a few brief post-release scenes. What we are treated to instead is an Echols/Davis love story against all odds. Echols and Davis married in 1999, but curiously enough, we never learn what happened to Damien’s girlfriend, Domini, and his newborn baby, who were paraded out in the aftermath of the trial in the first documentary.
In terms of objectivity, West of Memphis is essentially Bowling for Columbine (2002) dressed up like The Thin Blue Line (1988). Favorable reviewers qualify the documentary as a piece of advocacy (see, e.g., “A Happy Ending, Sort of, Comes with No Closure,” NYTimes, 12/24/2012, “Review: West of Memphis,” Arkansas Online, March 8, 2013), as if such a moniker is somehow an excuse for portions of the film that are downright disingenuous with the facts (e.g., the portrayal of Echols’ purported alibi witness, as discussed below). Moreover, such descriptions beg a rather obvious question: With a release date of more than a year after the formal closure of the case and release of the WM3, and with no connection to any other cases, what exactly are the filmmakers of West of Memphis advocating?
How Much Truth Is Enough in a Documentary?
With this story evolving in tandem with the rise of the internet age, the case for wrongful convictions of the WM3 is not without its own vocal detractors. Perhaps the most concise articulation is “The Case Against the West Memphis Three,” at wm3truth.com. To be sure, much of the “evidence” against the WM3 listed on the anti-WM3 websites – along with the conclusions drawn – can be described as dubious at best. But these detractors also present some cogent points backed by facts that are only briefly mentioned or wholly omitted from the documentaries. (For the curious, a large collection of written, audio, and photographic documentation of the case is also archived at http://callahan.8k.com/.)
Of course, this merely highlights a more general question about the genre: To what degree does the documentarian owe the viewer the whole truth? And can the problem be dispensed with by labels (i.e., “journalism” v. “advocacy”)? Perhaps we could begin to address these issues by assessing what happens when a documentary that attempts to summarize ends up missing significant facts. The answer: advocates tend to fill in the blanks with their own facts. And in some cases, they just make up facts of their own. For example, when confronted by a phone caller on a radio show who dared to suggest that the WM3 received their due process and one should not simply rely upon HBO documentaries for one’s conclusions, Rollins responded as follows:
“… [W]hen you apprehend someone, you read them their Miranda Rights and they’re formally arrested. Also, young men – anybody is allowed to have legal counsel present when they’re being interrogated by detectives and you’re suppose to have that made known to you. Jessie Misskelley – this was never made known to him, he did not even know what a lawyer was. And so when you’re being questioned for 14 hours, uh – you’re suppose to have an attorney present and he did not, nor did he know that that was an option to him. This is a breakdown in what’s called due process. This did happen.”
Except it didn’t. According to public records, Misskelley had previously appeared with the representation of a lawyer in Juvenile Court for theft and criminal mischief, respectively, in 1988 and 1992. Furthermore, the intake and other police records from 1993 (see here) do not support the assertion that his interrogation lasted 14 hours. Misskelley must have had a better recollection of the passage of time than of the nature and existence of legal counsel. In any event, neither Rollins nor any of the filmmakers account for the fact that Misskelley had failed a polygraph test administered the same day (prior to the confession, but after having been given Miranda warnings and receiving the permission of his parent) or that Misskelley later provided statements consistent with his confession: (1) to a defense lawyer on February 9, 1994 (see here) while they were attempting to cooperate with HBO; and (2) to prosecutors, against his own lawyer’s advice and in exchange for “use immunity” on February 17, 1994 (see here). Does all of this mean Misskelley’s confession is persuasive? Probably not. But on the other hand, is it fair for the documentarians and Echols to allege that the police and prosecution knowingly persecuted innocent kids (as opposed to being negligent and/or overzealous) without presenting this information as well?
The Truth That Doesn’t Get in the Way of a Good Story
The relevant question that we should be discussing is not what has been achieved by these four documentaries, but how it was achieved. If the tale of the WM3 teaches us any lesson, it is the dangerous folly of using any means to justify a desired end, no matter how sympathetic those ends are – i.e., making someone pay for those horrible crimes, presumption of innocence be damned. Without the benefit of 20/20 hindsight gained from a team of forensic experts opining that no knife was involved in the crime and the DNA testing conducted 12 years after the original trial, there are a number of relevant facts, which were known at the time of the original trial, that suggest that there might have been other reasons to look at Echols in particular as a potential suspect and perpetrator. Yet it is inexplicable – and not simply unfussy – that in 10 hours of documentaries, none of these facts are vetted.
As an initial matter, it is worth noting that Echols himself seems to be the most significant source of the WM3 characterizations, many of which receive virtually no scrutiny on screen – even in the three documentaries where Echols is not serving as co-producer. For example, in a twist that would make Johnny Cash proud, Echols has repeatedly propagated the legend that conditions were so abhorrent on death row that he now must wear protective sunglasses due to a decade of being deprived of sunlight. Echoing Paradise Lost 3 and West of Memphis, in this post-release interview on The View [0:05 to 0:31], Echols says, “they say you’re allowed out of your cell for an hour a day, but what that means is that they take you out of your cell and put you in another cell.” Apparently, only one local reporter actually delved deep enough to find out who was responsible for such a deprivation. That is, the prison does allow an hour of outside time; however, Echols himself refused to take his allotted time outside because the yard was “filthy.” (My Fox Memphis interview [4:07].) Echols is clearly an adherent to the first rule of propaganda: Never let the truth get in the way of a good story.
According to Echols’ own 2012 memoir, Life After Death, the story here is that “a bad hairdo, a black wardrobe, teenage angst ridden ‘poetry’ … is enough to send you to prison.” (See also post-release interview on The View [0:48].) Or as he put it in the documentaries, West Memphis was his Salem, and he was the witch.
In a narrative that requires demonizing the community of West Memphis and endearing the left-leaning celebrities and their fans, it is essential that Echols – the purported ringleader of the WM3 – be portrayed as someone that all those artists and fans can relate to.
“I immediately related to Damien and what he went through growing up. He comes from a small town from Arkansas. I come from a relatively small town in Kentucky. I can remember being kind of looked upon as a freak or, you know, different because I didn’t dress like everybody else. So I can empathize with being judged by how you look as opposed to who you are.”
– Johnny Depp (“A Cry for Innocence,” CBS (2010) [22:26]).
“Damien liked to hang out alone and wrote he was depressed. Hello! He liked to listen to weird music. Check! He was a wise ass in the face of law enforcement. Are you kidding? It could have been me.”
– Henry Rollins, West of Memphis
And with the narrow-minded ignoramuses in the red states constantly deriding the morality of popular music and movies, why wouldn’t they rush to Echols’ defense? But what Echols’ fans fail – or simply do not want – to recognize is that, reasonable doubt and a lack of physical evidence aside, Echols himself was probably the worst enemy of the WM3.
The WM3’s Worst Enemy: Damien Echols
The original Paradise Lost visually presents the fashion and musical tastes of Echols and Baldwin in an attempt to explain why they stood out in West Memphis. In West of Memphis, the characterization is primarily verbal and relatively terse: Echols was depressed and dressed differently, kept a creepy notebook with a pentagram on it, aspired to be a magician, and loved Stephen King books. But the reality that defies these characterizations in the WM3 documentaries is that Echols was far from simply an angst-ridden teenager with the wrong hairdo. “The truth is far more complex, and it has been buried by Echols’ deep-pocketed public relations machine,” as one journalist who covered the original trial puts it. “[T]he perfect storm that put Echols on death row includes one critical element he isn’t willing to consider: his own baffling, often frightening behavior.” (Marc Perrusquia, “Memoir’s Missing Element: Damien Echols Doesn’t Confront His Own Baffling Behavior,” The Commercial Appeal (October 7, 2012).)
Consider this exchange between Piers Morgan and Echols in a recent post-release interview:
Piers Morgan: “Were you a troublemaker or just a bit different?”
Damien Echols: “The most trouble I had ever gotten into was running away from home as a teenager.”
Piers Morgan: “Did you ever break the law?”
Damien Echols: “No”
Echols has also characterized his teen mental state as depressive and borderline suicidal. Bit there were a number of facts that suggested that Echols was a danger to more than himself. Echols had been suspended from high school on multiple occasions – admitting at trial that on one occasion he had tried to “claw the eyes out” of a fellow student. (See Echols v. State, 326 Ark. 917, 942 (1996).) In the year prior to the murders, Echols had first been arrested and convicted of burglary and “sexual misconduct” (translation: 17 year-old caught having sex with a 15 year-old), which landed him in his first visit to juvenile detention.
Consider “Exhibit 500” – a 500-plus page compilation of documents of Echols’ mental health history prior to the murders – virtually none of which appear in any of the documentaries. (For an objective and even-handed assessment of Exhibit 500, as “a mixture of fact, misinformation, and allegation,” see “Damien’s Demons, Part 2, www.jivepuppi.com.) In recent interviews, Echols attributes the admission of such evidence to Baldwin’s attorneys and their efforts to shift guilt onto Echols. (See “Interview, Damien Echols Lorri Davis Travel ‘West of Memphis’,” Hollywood Chicago (January 15, 2013).) But the undisputable fact is that Exhibit 500 was compiled by Echols’ own investigator, and along with the testimony of psychologist Dr. James Moneypenny, was first offered by Echols’ attorneys in the sentencing phase of the Echols/Baldwin trial – that is, after Echols had already been found guilty of capital murder, but before the jury determined whether or not Echols would receive the death sentence. In light of Exhibit 500, Dr. Moneypenny was compelled to admit that Echols had an “all powerful God-like image of himself,” his own parents were concerned with his Satanism and devil worship, and that his medical file contained notations that Echols “[p]retty much hates the human race” and believes “he obtains his powers by drinking the blood of others” which “makes [him] feel like a god.” (326 Ark. at 943.) Although the witness accounts vary, the most sober account of a rather disturbing incident that occurred during his institutionalization indicates that after a fellow inmate cut his arm, Echols sucked the blood from the wound. (See Exhibit 500, pp. 82, 341, 357, and 464.) Even his own father had reason to fear him, as Echols himself admitted on the stand that he threatened to “eat him alive.” (326 Ark. at 942.) And his troubles were not limited to the backwoods town of West Memphis, manifesting even when his family lived in Portland, Oregon.
Whatever the original intent Echols’ lawyer, the admission of Exhibit 500 backfired. Echols received the death penalty while Baldwin did not. Presumably, the tactic was so disappointing that in the midst of his primary appeals, Echols filed a motion pro se (separating himself from his attorneys), pleading with the Arkansas Supreme Court to reconsider only the guilty verdict and not the sentencing phase – i.e., whatever you do, please don’t look at Exhibit 500. (321 Ark. at 427.) Nonetheless, in 2001, Exhibit 500 popped up again on appeals in support of Echols’ allegation that he was incompetent to stand trial, along with the testimony of a Berkley psychiatrist Dr. George Woods who asserted that antidepressants may have heightened Echols’ manic episodes by creating a “psychotic euphoria.” Suffice it to say, both claims failed.
To be sure, the original Paradise Lost documentary includes Echols’ own testimony involving his journal for the purpose of mocking the inability of the prosecution to understand the difference between Wicca and devil-worship, as well as an oblique mention of being “hospitalized” when Echols explains why “Welcome Home (Sanitarium)” is his favorite song. Reference is also made to an accusation of drinking blood, as if it is just part of a general religio-hysterical fear of heavy metal kids in West Memphis. But beyond that, there are no references to the criminal or mental health history of any of the WM3. Rather, the prevailing narrative necessitates that there be no remotely explicable answer to the fundamental question implicitly focused upon by the filmmakers: How could a jury have possibly given Echols the death sentence?
What About Those Alibis?
In a case supported primarily by circumstantial evidence, a solid alibi can often be the most effective defense. As such, one cannot help but notice that throughout all four documentaries, we hear cursory references to alibis, but not much else. (See here for a description, along with links to documents, of the “shifting” alibis.)
At his own separate trial, Misskelley presented 12 alibi witnesses (including his own father) to attest that he was present at a disturbance at the Highland trailer park at 6:30 p.m. the evening of the murders and then drove to another town to attend a wrestling match at 7:30 p.m. And in West of Memphis, Misskelley’s attorney Dan Stidham (who elsewhere in the film admits he did not do a “good job”), summarily concludes that “looking through the juror’s notes, they hardly seemed to pay attention during the alibi portion of it.” Berg had access to an actual juror, but we never hear what she thought or what the jury discussed, and what we do not hear in the documentaries is relevant. That is, what we are not told is that the testimony ended up being rife with inconsistencies indicating that the wrestling trip occurred on a different date. Indeed, the prosecution offered rebuttal testimony of three officers who responded to the disturbance, none of whom recalled seeing Miskelley where he should have been.
As echoed emphatically in West of Memphis, Echols has stated that he was at home at the time of the murders, there were many people who could tell them that he was at home, and “they never let them testify.” (See here at 2:03.) By “they,” as it bears emphasizing, Echols means his own defense attorneys. Keeping in mind that the murders took place sometime between 6:30 and 8 p.m., in statements Echols and his girlfriend made to police within a week following the murders, Echols claimed to be with Baldwin and his girlfriend during the relevant time period. A few days later, the alibi changed with a statement made by Echols’ mother: his mother took Echols and his girlfriend to the laundromat that afternoon; at 6:45 or 7:00 p.m., he, his sister, his mother, and his father drove over to the Sanders house for a visit for approximately 20 to 30 minutes; and upon returning, Echols remained at home for the rest of the evening. His mother, his sister, and the two Sanders daughters corroborated his story in a statement given to police about four months after the murders, although his father expressed doubts that Echols had accompanied them to the Sanders home. (See here.) One of the Sanders daughters (Jennifer Sanders) did in fact testify at trial on Echols behalf, but her testimony was rebutted by a prosecution witness who demonstrated that the specific event that she tied to her recollection of the day of the murders actually occurred much later. In any event, Echols’ own testimony regarding the purported Sanders visit did not go so well.
Echols’ testimony that he spent the rest of the evening talking on the phone with his girlfriend or three other girls did not go so well either. In their statements given to police, none of the four could attest that they spoke to Echols between 5:30 to 9:20 p.m. on the evening of the murders. West of Memphis presents one of those girls (Jennifer Bearden) to state that she was never given a chance to testify to Echols “alibi,” as she reads from a portion of a statement she made to police on September 10, 1993, indicating that she had been on the phone several times from after school through 9:30 p.m. on the night of the murders. But the devil is in the details. Keeping in mind that the murders likely occurred some time between 6:30 p.m. and 8 p.m., in that same statement to police, Bearden also indicated that during that, after having a 5-minute phone call with Baldwin and Echols no later than 5:30 p.m. that day, she next called Echols at approximately 8 p.m., upon which Echols’ grandmother answered and indicated he was not at home; and she did not end up successfully contacting Echols by phone again until 9:20 p.m. at the earliest. In other words, by Bearden’s own police statement, of which she only reads a selective part in West of Memphis, her testimony not only would have confirmed that she did not speak to Echols on the phone during the time of the murders, but it would have supported the prosecution’s assertion that Echols was not even home. (See here.) The same is reflected in a statement by another potential alibi witness that he named (Heather Cliett), who indicated that she tried to call Echols starting at 9 p.m., but was unable get him on the phone until 10:30 p.m. (See here.) As such, it should come as no surprise that none of the girls were actually called as witnesses by the defense and that no phone records were produced at trial.
Baldwin could not consistently account for his time either. As briefly mentioned by Baldwin’s mother in Paradise Lost 2, school records would have shown that Baldwin was in school, at least until 3:30 p.m. According to his alibi, supported by statements from Baldwin’s mother and uncle, Baldwin mowed his uncle’s lawn until approximately 6 p.m. on the evening of the murders, after which he went to Wal-Mart with a friend (Ken Watkins). Baldwin’s brother stated that Baldwin returned home at approximately 7 p.m. accompanied by Watkins. (See here.) However, Watkins told several different stories in statements to police – none of which were consistent with the alibis of Baldwin or Echols. (See here and here.) Another friend (Garrett Schwarting) also gave two inconsistent statements about Baldwin’s whereabouts. (See here and here.)
“I felt that if I was unable to establish an alibi, presenting an incomplete one was more detrimental than presenting one at all. … When we were in trial I realized that Echols’ alibi defense was ‘not very, very strong…’. It was like a house of cards.”
– Paul Ford, Baldwin’s lead defense attorney, Abstract of Rule 37 Hearing (2008)
Faced with what they were presented with at the trial, it is not surprising that the jury in the Echols/Baldwin trial did not find any credible alibi. What is inexplicable is that – in trying the case in the court of public opinion – the filmmakers let the defendants simply state that they had alibis without any intellectually honest consideration of the veracity of those claims, much less why the defense team did not offer them up.
What About the Jury?
The tide of mainstream opinion about the WM3 turned about five years ago – about the time that the media stopped using terms like “allegedly” or “may be” and starting using terms like “wrongfully convicted” and “innocent” – when the defense enlisted top criminal lawyers and forensic experts to formally revisit the case. As it turns out, the ultimate hero in this story may be the Arkansas legislature, which passed a law opening the door for the reconsideration of prior criminal cases in light of DNA testing not originally conducted at trial. Since the DNA tests were conducted in 2007, we have been repeatedly told that none of the evidence from the crime scene is a match with the WM3, and one of the hairs matches Hobbs. What we are not told is that there was strikingly little DNA evidence recovered from the crime scene – indeed, there were only six hairs not belonging to the victims, which hardly proves the negative or the positive.
In 2007, we also learned (via press conference, no less) that the forensic experts enlisted by the defense – none of whom actually examined the bodies – opined that the missing penis and genitals from one of the victims was mostly likely attributable to animal predation. In the minds of the WM3 supporters, these expert opinions became gospel, and the entire theory of the prosecution – relying upon a Satanic ritual involving a knife – became preposterous. So in the wake of the release of the WM3, the likes of Judge Jennie Pirro (who should know better) towed the party line in expressing righteous indignation against a court that could find the WM3 guilty in light of such a lack of DNA evidence. (See here at 3:36.) Yet no one seems willing to acknowledge that the convicting jury only heard evidence that was available in 1994. At that time and place, there was no DNA evidence, much less a CSI effect. Of course, this is not to suggest that the jurors involved should be let off the hook with respect to what they did know. After all, as a general matter of U.S. constitutional law, no trial judge can make – and no appellate court can change – the factual determinations necessary to find guilt of a capital crime or the imposition of the death penalty. Those lie almost entirely with the jury.
All of that said, important questions linger. Did the jurors in the Misskelly trial really believe the internally consistent confession of a defendant with a 72 IQ? Was the knowledge of the Misskelley confession dispositive to the jurors in the Echols/Baldwin trial – even though it was not presented as evidence in the prosecution’s case? Did the jury foreman in the Echols/Baldwin trial really lie to get on the jury with an agenda to prosecute, and did that agenda really affect the other 11? Rather than making assumptions and taking the off-handed comments of interested lawyers and defendants at face value, inquiring minds want to know: What were these jurors thinking?
Unfortunately, none of the Paradise Lost documentaries – over seven hours of screen time devoted to the case – include an interview with a single juror. Practically speaking, this may not be the fault of the filmmakers. Then again, it might. Amidst all the background text that appears within the films, there are no assertions of thwarted efforts to speak to the jurors. And if you clearly cross the line from journalism to advocacy, as had occurred by the end of the first documentary, why would any juror subject him or herself to that? Surprisingly, however, Berg and company were able to secure an interview with a juror; but as discussed in detail above, they appear to squander the opportunity to really confront one of the persons who are the most directly responsible for the plight of the WM3. Or perhaps they asked the relevant questions of the juror, but just didn’t like the answers.
The Problem With Black and White Films … And I Don’t Mean Oldies
So what’s the harm in a documentary that casts in blacks and whites as opposed to the shades of truth? The answer is illumination. Without the nuances, we never come to appreciate the real dimensions of the problems (e.g., with the jury system, prosecutorial discretion, the death penalty, etc.). By painting the enemy in broad strokes, we never really get to know him. Are we, as an audience, not intelligent enough to process a complex set of circumstances and still see injustice?
In this regard, contrast the WM3 documentaries with the far lesser-known Incendiary: The Willingham Case (2011). Willingham was convicted of capital murder when his house burned down, killing his three children, in 1991. Indeed, publications with the reputation of the New Yorker did not take notice until five years after his execution (David Mann, “Trial By Fire: Did Texas Execute an Innocent Man?”, September 7, 2009). Why not? The effects of the case were even farther reaching than the WM3. There was questionable behavior by Governor Rick Perry, who would later become a candidate for President. There was junk science that potentially affected a number of arson convictions. And there was even a culture war aspect: much like Echols, Willingham was also dubbed a sociopath by “experts” who testified based on his skull and serpent tattoo and a poster on his wall of metal band Iron Maiden. But in the midst of indicting a number of actors in the Willingham case, from top to bottom, directors Joe Bailey, Jr. and Steven Mims managed to make a compelling documentary without whitewashing its imperfect victim.
That said, Echols could be the subject of a very interesting documentary where Echols does not control the message – one that paints him as a three-dimensional character, not just the put-upon cultural victim but a grown-up kid still clamoring for attention almost two years after his release. (Witness Echols most recent headline regarding his permanent relocation to – wait for it – Salem, Massachusetts. “Black & Blue,” Boston Magazine, 6/25/2013.) Unfortunately, none of the four WM3 documentaries manage to scratch much off of Damien Echols’ veneer.
In any event, the flavor of the narrative generated by the documentaries has expanded into other media, including the 2002 book by Mara Leveritt, Devil’s Knot: The True Story of the West Memphis Three. When confronted with a letter from original prosecutor John Fogleman to a West Memphis Three supporter, detailing numerous inaccuracies in the book, Leveritt began, “I want to acknowledge that I did, in fact, make some mistakes in the book.” But don’t feel too badly for Leveritt because, like Echols himself, Hollywood never lets the truth get in the way of a good story: Devil’s Knot has been adapted into a feature film which is currently in post-production, directed by Atom Egoyan, and starring Reese Witherspoon and Colin Firth. [EDIT (7/5/2014): Review of Devil’s Knot (2014)])
Paradise Lost: The Child Murders at Robin Hood Hills (1996): B+
Paradise Lost 2: Revelations (2000): C
Paradise Lost 3: Purgatory (2012): B
West of Memphis (2012): C