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West of Memphis Review West of Memphis Review By Noah Goertemiller "It is better that ten guilty persons escape than that one innocent suffer." William Blackmun The Commentaries on the Laws of England1 Introduction Blackmun’s formulation has long been considered a bedrock principle of US criminal law jurisprudence, especially as manifested in its corollary: the presumption of innocence.2 However, wrongful convictions – such as those of the West Memphis Three – call into question the justice system’s commitment to this principle. The West Memphis Three, as Damien Echols, Jessie Misskelly Jr., and Jason Baldwin became known, are three young men from West Memphis, Arkansas, who as teenagers were wrongfully convicted of the brutal murders of three eight-year- old boys. Their struggle through the justice system is powerfully detailed in the 2012 documentary film West of Memphis, but the phenomenon of wrongful convictions is far from limited to their case. The following will briefly discuss this phenomenon, situate the case of the West Memphis Three within it, and examine the film as a piece of advocacy filmmaking within the innocence movement. Overview of Wrongful Convictions in the US According to The National Registry of Exonerations, the current tally of exonerations 1 William Blackmun, The Commentaries on the Laws of England 2 Coffin v. U.S., 156 U.S. 432, 453 (1895). “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” 1 nationwide since 1989 is 1,111.3 While that number alone is sufficient to raise concern, it represents just the tip of the iceberg because the figure is inherently underinclusive. There are countless innocent people serving sentences who, due to procedural or evidentiary issues, are unable to challenge their convictions; and therefore are forced to suffer, sometimes for decades, in the ultimate affront to Blackmun’s formulation.4 Also not included in the figure are the number of innocent persons who choose to plead guilty of a crime they did not commit in exchange for a lighter sentence, which is a tactic often used by those wrongfully imprisoned who do not think they will be able to prove their innocence in court and may feel that pleading guilty is their best option. Convictions of innocent persons occur for a variety of reasons, namely: eyewitness misidentification, false confession, perjury, false or misleading forensic evidence, and official misconduct by investigators or prosecutors.5 Any of these factors operating alone or together can lead to the conviction of an innocent person for a crime he or she did not commit. Despite the plethora issues with these factors, however, the court’s interest in finality often outweighs any concerns and the struggle for freedom can be a long, arduous process for those wrongfully imprisoned. Compounding the legal issues, these cases often get little if any public attention. Most wrongfully convicted inmates have a small community of sympathetic family, friends, and possibly attorneys that have invested in them, but it is rare for any one case to garner a large outpouring of support. The public at large, for good or ill, tends to maintain its faith in the justice 3 National Registry of Exonerations, About the Exoneration Registry, available at http://www.law.umich.edu/special/exoneration/Pages/about.aspx. 4 NATIONAL REGISTRY OF EXONERATIONS, EXONERATIONS IN THE UNITED STATES, 1989 – 2012, at 10 (2012), available at http://www.law.umich.edu/special/exoneration/Documents/exonerations_us_1989_2012_full_report.pdf. 5National Registry of Exonerations, Exonerations in the United States, supra note 4, at 40. For further discussion of the causes of wrongful convictions, see BARRY SCHECK, PETER NEUFELD & JIM DWYER, ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND HOW TO MAKE IT RIGHT (2003); JIM PETRO, FALSE JUSTICE: EIGHT MYTHS THAT CONVICT THE INNOCENT (2011). 2 system and takes at face value a court’s determination of guilt. On occasion, however, a case will gain notoriety and grip the public’s attention. The case of the West Memphis Three was one such case, as detailed in and evidenced by the 2012 investigative documentary film, West of Memphis.6 West of Memphis is the latest documentary by Amy Berg, director of the 2006 Academy Award-nominated documentary Deliver Us from Evil.7 The film was produced by filmmakers Peter Jackson and Fran Walsh, who approached Berg to make the film in 2008. Jackson and Walsh had been funding and investigating the case for a number of years, but their significant efforts to free the West Memphis Three stalled after a West Memphis judge denied their motion to hear new evidence and media coverage of the case, once frequent, became nonexistent.8 Jackson and Walsh determined that a new film on the case was the best course of action to reinvigorate public support and persuade the courts to reexamine the defendants’ claim of innocence.9 On its face, West of Memphis is a factual account of the investigation, trial, conviction, post-conviction battle, and eventual release of Damien Echols, Jessie Misskelly Jr., and Jason Baldwin, collectively known as the “West Memphis Three.” More than just detailing the facts, though, Berg created an exemplary piece of advocacy filmmaking that draws back the curtain on the failings of the legal system and the resulting wrongful convictions. As detailed in the film, the circumstances of the convictions of these three then-teenagers implicates every one of the wrongful conviction factors enumerated above,10 and the post-conviction failures and successes 6 WEST OF MEMPHIS (Disarming Films & WingNut Films 2012). 7 DELIVER US FROM EVIL (Disarming Films 2006). 8 WEST OF MEMPHIS, supra note 6. 9 See Interview with Edward Douglas, Film Critic, “Sundance Redux: West of Memphis Director Amy Berg,” ComingSoon.net (Jan. 30, 2012), available at http://www.comingsoon.net/news/sundancenews.php?id=86389. 10 WEST OF MEMPHIS, supra note 6. 3 that these defendants endured exemplify the hardships faced by wrongfully convicted inmates who also challenge their convictions. Who Are the West Memphis Three As the film presents a narrative account of the West Memphis Three, it is best to begin with a summary of their case. The series of tragedies began on May 5, 1993, when three eight- year-old boys—best friends Stevie Branch, Michael Moore, and Christopher Byers—were declared missing in West Memphis, Arkansas. After an overnight search, officers discovered the bodies of the three boys in a drainage ditch in Robin Hood Hills, near where they were last seen the previous evening. The bodies were stripped naked, hogtied with shoelaces, and covered in lacerations, including genital mutilation of Byers. Given the nature of the injuries, police officers immediately suspected the boys had been victims of a cult.11 Police first directed their investigation on Damien Echols, a high-school dropout with a juvenile record and an alleged interest in the occult. From Echols, police focused on his friend, Jason Baldwin, and their former classmate, Jessie Misskelly, Jr. Once police obtained a confession from the mentally challenged Misskelly, they arrested all three and charged them with the murders of the three boys. In separate trials fraught with perjury, misconduct, misleading and falsified evidence, and plethora other issues, all three were found guilty and convicted. Echols received the death penalty, and Baldwin and Misskelly received life in prison.12 The trials of the West Memphis Three were subject to much criticism. Concerned citizens began performing their own investigations, a movement that gained significant momentum following the airing of a Home Box Office (HBO) documentary on the trial.13 These efforts led 11 Id 12 Id. 13 PARADISE LOST: THE CHILD MURDERS OF ROBIN HOOD HILLS (HBO 1996). For further discussion, see infra. 4 to the collection of a large amount of new evidence in the case, such as recantations, expert testimony, and DNA testing. This evidence was presented before the court in two unsuccessful post-conviction relief applications, the first in 2008 and a second in 2010. However, in a surprise agreement with the prosecution, Echols, Baldwin, and Misskelly were given the opportunity to make Alford plea deals, an uncommon agreement in which one pleads guilty while maintaining his innocence.14 On August 19, 2011, the West Memphis Three accepted the plea deal, and they were released after serving more than eighteen years in prison.15 Analysis and Discussion Berg opens the film with an evocative image that sets the tone for the long road to justice the viewer is about to take with the West Memphis Three. Archival news footage from the day of the convictions is shown, and a large gathering of people outside the courthouse is revealed jeering at the teenagers as they are driven away to the prison. Interviews with residents and the victims’ families show a general feeling of satisfaction that justice was served by the convictions and that these boys were getting what they deserved. It is against this backdrop of overwhelmingly negative feelings that Berg develops the film. The film proceeds in a manner not unlike a legal argument in which the prosecutor’s case is deconstructed point by point. Much of this consists of fairly common types of new evidence that most viewers should easily comprehend: recantations of perjured testimony, alternate explanations of physical evidence, alibi witnesses, etc. However, Misskelly’s false confession is likely to raise questions for the viewer, making the part of the film analyzing it arguably the most important part of the film, even if it doesn’t treat it as such. 14 “Alford plea” refers to North Carolina v. Alford, 400 U.S.
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