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 – call into question the justice system’s commitment to this principle. The West Memphis Three, as , 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 of three eight-year- old boys. Their struggle through the justice system is powerfully detailed in the 2012 documentary film , 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 , 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, , 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 Registry, available at http://www.law.umich.edu/special/exoneration/Pages/about.aspx. 4 NATIONAL REGISTRY OF EXONERATIONS, EXONERATIONS IN THE , 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 , 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 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. 25 (1970), where the Supreme Court upheld the constitutionality of Henry Alford’s plea of guilty despite maintaining his innocence. While similar, such a plea is distinct from a plea of nolo contendere in which a defendant agrees to be sentenced for a crime, but makes no claim of either guilt or innocence. 15 Id.

5 As referenced above, Misskelly confessed and implicated Echols and Baldwin. That confession made the prosecution’s case and without it none of the three may have ever gone to prison. With good reason, prosecutors and, more importantly, jurors and the public at large, have a very strong bias toward believing confessions. Everyone interrogated by the police has a liberty interest at stake; why would one act against that interest by admitting guilt in a criminal act?

Moreover, if one truly had nothing to do with the crime, how does a confessor tell the police enough information to make the confession believable? The issue is not that simple. Fifteen percent of exonerees at one time confessed to their crime. This number increases to twenty-five percent for homicide.16 When as many as a quarter of those wrongfully convicted of a certain type of crime confessed to that crime they did not commit, suspicions should be raised.

Police interrogations are intense experiences and, as Laura Nirider and Steve Drizin, professors at Northwestern who speak on the subject in the film, everyone has a breaking point.

At a certain point a lie can seem like the only escape. In addition, a common tactic in interrogations is to attempt to catch the suspect off guard by revealing a hidden fact and asking leading questions. From these facts, the person being interrogated that wants to end the interrogation can piece together an adequate enough story to please the officer and end the ordeal.

All of this is especially true for those with mental issues, like Misskelly, whose interrogation lasted for hours with police yelling at him and demanding that he confess. Moreover, as one of the more devastating segments of the film shows, the police were feeding him all the details and

Misskelly would just parrot it back. It is an eye-opening scene in the film, and it was well executed.

The biggest moment of the presentation of evidence was the alternate explanation of the three victims’ wounds. John Douglas, a former FBI expert, is commissioned by the filmmakers

16 National Registry of Exonerations, Exonerations in the United States, supra note 4, at 58.

6 to reexamine the autopsies. What he reveals is one of the more Perry Mason-like moments of the film. The cuts and genital mutilation described by the prosecutor as injuries that were most likely sustained as part of a cult ritual were determined by the expert to be more consistent with turtle bites. Turtles tend to eat softer, exposed flesh, which explains why the three boys’ ears and lips were severely damaged and Byers appeared to have been castrated. The angular marks covering the bodies, too, perfectly matched the marks left by a turtle bite. The satanic explanation is shown to be a hasty conclusion produced by a contemporary paranoia that had gripped police departments across the nation. The segment is a brilliant example of the consequences of letting one’s imagination get away from them and ignoring the simple answer right in front of their face.

It shows how quickly and strongly tunnel vision can set in among law enforcement and the prosecution. Had investigators not jumped to the conclusion that this was a cult killing, they may never have gone after Echols and none of the injustices that followed would have occurred.

While a thorough and engaging presentation, most of what West of Memphis presents in the first part of the film is not new ground. What sets the film apart is its offer of an alternate suspect. After thoroughly discounting the West Memphis Three as the killers, the film also dismisses rather casually Mark Byers—Christopher Byers’s adoptive father and one-time prime suspect in the case—as “the giant red herring of this case.” From there, the film focuses on Terry

Hobbs, Branch’s step-father. Hobbs was the last man to be seen with the three boys. He was the last to report his son missing. He returned home late that evening in freshly laundered clothes.

Moreover, he had a history of violence and abuse of his former spouses, neighbors, and family members. This much was known at the time, but he did not fit the bill of “cult killer” as much as the “weird” teenagers that read Stephen King novels and dressed all in black. The film, however, adds several new pieces of evidence that strengthen the case against Hobbs. First, there are

7 interviews with Hobbs’s close friend, David Jacoby, wherein Jacoby slowly begins to realize that he was being used by Hobbs to build a fictitious alibi and he truly did not know where Hobbs was during the time of the murders. Second, Hobbs’s family members come forward via a West

Memphis Three tip line, alleging that the fact that Terry Hobbs was the perpetrator is known among them as the “Hobbs family secret.” Finally, mtDNA testing17 of a hair found caught in the knot of the shoelaces used to hogtie the boys was revealed to be consistent with Hobbs, a fact away from which Hobbs unconvincingly tries to divert attention. It is a compelling presentation that leaves the viewer at least suspicious of Hobbs, if not sure of his guilt. But it is where the film comes closest to crossing a dangerous line.

The West Memphis Three were convicted by the public as much as they were the jury.

Echols, Baldwin, and Misskelly were suspected and eventually convicted because they “fit the bill.” How is implicating Hobbs any different? Granted, there is significantly more evidence against Hobbs, but it is presented alongside so much questionable evidence and character attacks that is often feels as though the film is making the legally impermissible argument that Hobbs is a bad man, so he must have done this bad act. Obviously a film is not a courtroom and Berg is free to make those arguments, but doing so rings as borderline inappropriate and even reckless.

Such finger pointing may suggest Hobbs as the real perpetrator and win over a film audience, but may also result in the same injustices that resulted in the imprisonment of the West Memphis

Three. Echols has said as much himself.18

17 Mitichondrial DNA, or mtDNA, is extracted from mitochondrial cells unlike the typical nuclear DNA, which comes from the nucleolus in living cells. Because hairs do not contain living cells, for many years DNA was thought to be unrecoverable from hair. However, hairs do contain mitochondria, so with the advent of mtDNA testing, comparative DNA testing can now be done. See, e.g., Daniella M. Heywood, Richard Skinner & Paul A. Cornwell, Analysis of DNA in Hair Fibers, 54 J. COSMET. SCI. 22 (2003). 18 Interview with Damien Echols and Lorri Davis by Josh Modell, “West Of Memphis subject Damien Echols on his conviction, release, and closure,” AVClub.com, http://www.avclub.com/articles/west-memphis-three- subject-damien-echols-on-his-mu,91268/ (“What I always say is that I shouldn’t have to point the finger. The evidence should be enough.”).

8 The film’s greatest strength, however, lies in its ability to tell a very human story from a very inhuman circumstance. The shocking crimes, complicated legal proceedings, and unjust detention on display in the film are grounded by the support received by the West Memphis

Three both in a small and large scale. The viewer sees Echols and his wife bond over Stephen

King books; celebrities such as and organize a concert for their benefit; and random strangers join together writing letters of support, which they then held in a train more than a hundred yards long outside the West Memphis courthouse. The outpouring of love and care reminds the viewer that these legal issues so esoteric and technical have real effects on real people. The viewer is taken on an emotional journey through the ups and downs and successes and failures of the West Memphis Three in a way that makes it impossible to leave the film without a newfound commitment to justice administered correctly.

The film ends with imagery that calls the viewer back to the opening. Echols, Misskelly, and Baldwin, no longer teenagers, are seen exiting the courthouse following their Alford pleas.

Once again, they are met by a large crowd that has gathered outside. This time, however, they are met with cheers and an outpouring of support. Melissa Byers, the mother of one of the victims who was shown among the first crowd celebrating the convictions, was among the second crowd content to see justice prevail for the West Memphis Three, even as it meant renewed pain with the knowledge that whoever killed her son and his best friends still walked free.

The final moments see the West Memphis Three enjoying their first days of freedom united with their loved ones once more. Baldwin is shown eating dinner with his girlfriend and mother while marveling at cheese on a salad and owning his first suitcase. Misskelly is welcomed home with open arms by his old neighborhood as he slowly gets used to not being

9 surrounded by guards. Echols, two weeks on, shops the streets of New York with his wife. These bittersweet moments of the West Memphis Three adjusting to a new reality place the film in a greater perspective. The viewer celebrates the newfound freedom on screen, but the reality that these men were robbed of nearly two decades of their lives is never far from the viewer’s mind.

It is a harsh reminder that justice delayed is justice denied.

Paradise Lost Trilogy

A discussion of media representations of the West Memphis Three would be remiss without mention of and ’s Paradise Lost Trilogy of HBO documentary films.19 The first, 1996’s Paradise Lost: The Child Murders of Robin Hood Hills, received Emmy and Peabody Award accolades and started an international movement to “Free

The West Memphis Three.” In fact, it was Paradise Lost that first got West of Memphis producers Jackson and Walsh interested in the case. Berlinger and Sinofsky followed the film with two sequels: Paradise Lost 2: Revelations in 2000 and Paradise Lost 3: Purgatory in 2011, both of which were well received and earned their own accolades, including Emmy and Oscar nominations. Together the three films are heralded as touchstones of investigative true crime documentary filmmaking and evidence of the power of film to effect social change. With such high praise for already existing works, one might question West of Memphis’ role in the body of work. It is clear while watching the films, however, that Berg made an effort to complement, not replace the Berlinger and Sinofsky’s films.

Each Paradise Lost film focuses on a different stage of the case. The first only tells the history of the crime and trial. It reveals the police investigation and follows Echols, Baldwin, and

Misskelly through their trials while showing the hysteria that overtook the town of West

19 PARADISE LOST: THE CHILD MURDERS OF ROBIN HOOD HILLS (HBO 1996); PARADISE LOST 2: REVELATIONS (HBO 2002); PARADISE LOST 3: PURGATORY (HBO 2011).

10 Memphis. It ends with their convictions and reveals nothing of their failed appeals. Coming at such an early stage, the film does not champion the innocence of the West Memphis Three as much as its successors, but it is clear even then that there is something unfair in the proceedings and that the three were convicted more on their alleged beliefs than any concrete evidence.20

The second film, aptly subtitled “Revelations,” details the discoveries following the convictions that began to cast serious doubt on the West Memphis Three’s guilt. Many of these findings came as a result of the “Free the West Memphis Three” movement spawned by the first

Paradise Lost. Citizen investigators active in the movement worked tirelessly to discover new evidence that might prove who actually committed the crime. Their investigation and the film focused on Mark Byers as a possible actual perpetrator. As revealed in West of Memphis, more evidence has shown Byers to be a likely “red herring” in the case, making this the weakest of the three, but it remains a compelling chapter nonetheless, mostly thanks to its updates on the failed appeals.21

The third film revisits the case ten years later and covers the West Memphis Three’s 2011 release. As Berlinger and Sinofsky and Berg were filming many of the same events simultaneously for their respective films, it is most clear here where their focuses diverge. Where

Berg’s film focused on the experiences of Echols, Baldwin, and Misskelly during this process,

Berlinger and Sinofsky shift their lens to the other players in the system. Berlinger and Sinofsky interview the prosecutors, the judges, the residents of West Memphis, and many others. The film looks at how the town and the justice system in West Memphis react to their release as well as the role of the “Free the West Memphis Three” movement. It presents an engaging look at the support system behind the West Memphis Three and the amount of hard work that went into

20 PARADISE LOST: THE CHILD MURDERS OF ROBIN HOOD HILLS (HBO 1996). 21 PARADISE LOST 2: REVELATIONS (HBO 2002).

11 winning their freedom.22

Ultimately, with a total runtime of more than three times longer than West of Memphis, the Paradise Lost trilogy operates as the perfect supplement for those left wanting to know more following Berg’s film. Berg tells the human story, while Berlinger and Sinofsky tell the courtroom drama. That is not to say that either is better, but Berg’s is much more approachable compared to the weighty Berlinger and Sinofsky films.

Conclusion

West of Memphis offers a ringing indictment of the injustices the justice system can too often be guilty of. It is also a very frank account of the difficulties faced by those who attempt to right those wrongs. But it is also a story of hope. Hope for the three men who have regained their freedom. Hope for the town of West Memphis that saw a wrong in its past righted. Hope that the justice system might once again commit itself to the value of justice measured by the truth, not the number of convictions, where the imprisonment of one innocent, or three, is a far greater harm than the freedom of ten guilty.

22 PARADISE LOST 3: PURGATORY (HBO 2002).

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