West of Memphis, and Beyond

New Zealand hosts Damien Echols, and the new film on the West Memphis Three

by Gordon Campbell

For many at the Wellington screening of West of Memphis, it felt astonishing to be in the same room as Damien Echols. If the campaign to free the West Memphis Three had seemed never-ending, for Echols it meant 18 years in jail for a crime that he didn’t commit ( and for which he never received a fair trial) and including a decade spent in solitary confinement within one of America’s heinous Supermax prisons. Victories are rare, though – and as Echols later told the Wellington audience, this victory is one to celebrate, and a reason for feeling optimistic about the world.

Fortunately, there was also a lot to admire about Amy Berg’s documentary West Of Memphis. The film coherently presents a vast amount of evidence about the well-documented WM3 murder case while still finding ways to add fresh information and new dimensions to the story. Berg’s film is also a terrific vehicle for understanding much of the content and implications of the devastating October 27, 2007 affidavit of new evidence that eventually led to the release of the WM3, nearly a year ago. A reformatted version of that landmark document can be found here.

Fair to say though, Berg’s film is at its most compelling when it is presenting the reasons why we should believe in the innocence of Damien Echols, Jason Baldwin and Jesse Miskelley, and when it is expressing outrage about the wrongs done to them and to others punished unfairly within the justice system. ( And it would be naïve to assume that miscarriages of justice are limited to the US justice system.) Berg’s film is less convincing when it tackles its secondary theme, which is to suggest who might conceivably have been the perpetrator. This is a crucial next step, given that Arkansas governor Mike Beebe has said he is unlikely to consider a pardon for the WM3 unless and until someone else is proven guilty of the crime.

That’s clearly going to be a very difficult task – if only because the credibility of the Arkansas state authorities has been so blighted that even if investigators had the will to mount a fresh prosecution, it would be hard to imagine anyone trusting the outcome. Moreover, while Arkansas law officers (and especially prosecutor John Fogleman) deserve harsh criticism for what they did to the WM3, by the same token the authorities couldn’t hope to win a valid prosecution against for example, someone such as Terry Hobbs, with the evidence contained in West of Memphis.

Berg’s film points something of an accusatory finger at Hobbs on the basis of (a) forensic DNA evidence from the crime scene for which there is a competing explanation of secondary transfer (b) evidence from a hostile witness in the shape of Terry Hobbs’ former spouse, Pam Hicks (c) reported revelations about the Hobbs family which amount to hearsay about hearsay that is almost ten years old and (d) sightings by a near neighbour (Jamie Ballard) of Hobbs in close proximity to the three murder victims shortly before 6.30pm on the night of May 5, 1993.

On one level of course, Hobbs is merely a useful narrative device for West of Memphis to point to other avenues of inquiry that the official investigation left virtually unexplored. However, when the film appears to imply something more damning about Hobbs, it fails. For a sceptical viewer, one of the problems is that the second Paradise Lost film had traveled down much the same kind of road before.

No one would want to take any credit away from the makers of the Paradise Lost films, which remain the single most important factor in exposing the injustices done in this case. For totally understandable reasons given the situational logic of the time – back then, the threat of execution hung heavily over Echols – Paradise Lost 2 tried to go beyond the wrongful conviction focus of the initial film and sought to indicate other, credible suspects who had not been properly investigated. And thus it landed on the other stepfather among the families of the three victims, Mark Byers (pictured left).

While doing so, the makers of Paradise Lost 2 paid Byers for his participation in the film and he delivered them a toweringly narcisissistic performance of loony self-incrimination. Only problem being, we now know he was the wrong guy. With hindsight, Byers was a disturbed person getting paid, and choosing to act out some kind of emotional catharsis that (unwittingly on his part) could only serve to help the defence case – and in the process, he turned himself into the prime alternative suspect. (As Byers has since said, he missed school on the day they taught you how not to set about incriminating yourself.) Given how far he seems to have travelled psychologically since that time, Byers is a pretty interesting story of recovery in his own right.

This time around, can we be entirely sure that something similar isn’t accidentally being done with the evidence against Terry Hobbs? In some respects, the pattern of evidence marshalled against Byers in Paradise Lost 2 and against Hobbs in West of Memphis is similar. In both cases, much has been made of their possession of an allegedly incriminating knife. In both cases, prior and subsequent patterns of domestic violence have been cited – Byers, you will recall, was said to have abused his wife Melissa up to and including his shadowy role at the time of her mysterious death, which occurred a few years after the WM3 killings. Forensic evidence was also deployed in Paradise Lost 2 to suggest that the alleged knife marks on the boys’ bodies were human bite marks, and suspicion was cast on Byers for his abrupt decision to have his teeth removed, thus preventing any dental impressions being made. All of which has proven to be utterly irrelevant. By 2007, the forensic experts brought in by the WM3 defence team had concluded that the marks were caused neither by knife wounds nor by human bite marks, but by animal predation that occurred after the murders.

In West of Memphis, the prime accuser of Terry Hobbs is his ex-wife, now called Pam Hicks. Perhaps for good reason, she still seems hostile to him. Whatever the prior justification, it is hard to envisage her as ever being a particularly credible witness in court. Among her claims against Terry Hobbs are (a) his history of violence towards her and her young son Stevie Branch (b) that he did the laundry at an oddly late hour on the night of May 5/early morning of May 6th 1993 while the three boys were still missing (c) that he had a locked strongbox that was found to contain a knife given to Stevie by his grandfather and that Pam says Stevie always carried, and would therefore have been taken from him by the murderer, or murderers.

One can only imagine what an aggressive defence attorney could do with this. As with Byers, the credit crawl for West of Memphis indicates that the family members were paid for their participation in the film, although other interviewees were not paid. This implies that Pam Hicks, her siblings and daughter Amanda were paid. Just like Byers in Paradise Lost 2, Amanda Byers appears on film to be an extremely disturbed person who is depicted in West of Memphis within what looks like a one-to-one therapy session with her counsellor in which she appears to be recalling a buried memory of being sexually molested by her father. If this counselling session was genuine, the filming looks grossly intrusive – and if the content was in any sense being acted out for the film makers, it would be ethically unacceptable. On whatever level, the Amanda footage does the film no favours.

As for the actual content of Pam Hicks’ (pictured left with Terry Hobbs) allegations…Are we to believe that a suspect so careful to destroy evidence (such that he allegedly washed clothes and other items on what was almost certainly the night of the murders) should keep a potentially incriminating knife of Stevie’s among his personal possessions? Hobbs’ version is that (a) he didn’t do the laundry that night and (b) that the knife isn’t incriminating – since he claims to have taken the knife off Stevie beforehand for safety reasons, because he didn’t want the eight year old carrying it around.

Pam Hicks could expect a hard time in court. In his testimony in the libel case against Natalie Maines/Pasdar of the Dixie Chicks, Terry Hobbs admitted under questioning to occasional drug use ; marijuana, cocaine and on one alleged occasion, to doing crystal meth with Pam and one of her sisters. In other interviews (such as the 2007 interview with Arkansas police that is available on Youtube) Hobbs mentioned friction with Pam – including an altercation arising from him allegedly finding her being openly unfaithful in the wake of a party at their home. Her credibility would come under examination in other ways. Among her past allegations against Hobbs (not included in West of Memphis) was that his locked strongbox also contained a denture, which she treated as incriminating, given the marks on the boys bodies. In essence, she had carried over the bogus suspicions against Byers from Paradise Lost 2 and attached them to her former spouse.

At this point, the most telling evidence against Terry Hobbs appears to be the DNA – linked hair found in the shoelace ligature used to tie up one of the boys, and also a hair found near to the crime scene that has been similarly DNA-linked to his good friend, near neighbour and former workmate David Jacoby. On the night of May 5th, there was a period where Hobbs went back and forth from the Jacoby house (where his then four year daughter Amanda was being cared for by David and Bobbie Jacoby) as he searched for the children – sometimes alone, and sometimes with David. With respect to the murders, there has been a persistent question mark as to whether one person acting alone could have captured, subdued and then consecutively murdered the three children. (Reportedly, the shoelace bonds tying the three children used three separate knots.)

At the Q & A session after the Wellington screening a question was put to the panel of Echols, his wife Lorri Davis and Peter Jackson as to whether David Jacoby should be regarded as a good guy or as a bad guy. In the course of his reply, Jackson pointed out that the presence of the Jacoby DNA –linked hair might have been a case of innocent secondary transfer from Hobbs, who could have picked it up for instance, from the Jacoby sofa on the evening of May 5.

If this DNA evidence ever came to be tested in court, a defence of secondary transfer would most likely be offered – given that Hobbs may or may not have innocently transferred such a hair at any time beforehand, or while perhaps tying his stepson’s shoes. This explanation is less convincing – but still not impossible – when one considers that the DNA- linked hair was actually found in the ligature tying up Michael Moore, and not in the shoelaces used to tie up Hobbs’ stepson, Stevie Branch. However, Todd Moore, Michael Moore’s father, has even quite recently said that he believes secondary transfer to be the explanation :

Even if it was Terry Hobbs’ hair, that fact would prove nothing. Our sons were best friends, and my child spent considerable time in Terry Hobbs’s home and could have picked up the hair on his shoe. This would be “secondary transfer” and makes the hair of no probative value.

Moreover, any legal defence would also be likely to focus on a perennial hypothesis not referred to in West of Memphis – and one that derives from the Jacoby/Hobbs DNA-linked hairs not being the only hairs found in proximity to the crime scene. I’m referring of course, to the “Mr Bojangles” phantom suspect. For brevity’s sake, I’ll quote the description from pages 4-5 of the March 9, 2007 email from WM3 defence attorney Dennis Riordan to Arkansas prosecutor Brent Davis, which is available here.

As Riordan says :

The prosecution used the absence of blood at the crime scene to rebut the defence argument that a likely suspect was “ Mr Bojangles” – a black man who walked into the Bojangles restaurant, located a half mile from the crime scene at 8.30pm on the night of May 5th, within two hours of the victims’ disappearance. This man was incoherent and dripping blood, entered the women’s room at the restaurant and spread blood and feces on the walls and then left. The police collected samples of the wall smearings the next day, only to lose them. A hair of an Afro-American located at the crime scene has been subjected to DNA mitochrondite testing. You argued to the jury that this unstable man ‘unsteady on his feet’ could not have been responsible for these crimes because ‘who-ever did it was so careful that there’s not any blood in the area.’ Proof of largely postmortem injuries would wholly undercut the argument of a necessarily cleaned-up crime scene.

If ever a prosecution case was brought to court in future – one based, say, on a combination of DNA analysis and circumstantial evidence – one could safely predict that the defence would ensure that Mr Bojangles would rise again, as an alternative route of inquiry not taken at the time, and now lost to history. Incidentally, the Arkansas police not only lost the wall smearings, but their officer conducted her interview with the Bojangles manager through the restaurant’s drive-through order window. Classy.

Since there are a few diehard holdouts who still believe the WM3 are guilty, it should be noted that the prosecution did also claim to have found red rayon fibre at the crime scene similar to fibre on a bathrobe owned by Jason Baldwin’s mother, and ditto for green polyester and cotton fibres found on Christopher Byers’ shirt that were similar to those in a shirt worn by Damien Echols’ half brother – but such items were mass produced, and a more likely source of the fibres would have to be the green backpacks worn by Stevie Branch and Michael Moore, and Stevie’s red shorts – both items being attested to as being seen by their young acquaintance Allen Bailey Jnr when he last saw them on their bikes at around 5.45pm on May 5th near the edge of Robin Hood Hills.

Finally, this may as good a place as any to discuss the timeline. For good reason, West of Memphis begins by establishing a timeline for the events of May 5th. According to Pam Hicks, Michael Moore and Stevie Branch left the Hobbs home at around 3.30pm for the Moore house – with Stevie being on strict instructions to be home by 4.30pm before Pam left home to begin her 5-9pm work shift at the Catfish Island restaurant. The two kids just missed Chris Byers, who reportedly stayed at the Hobbs’ house to watch a Muppets programme on TV with little Amanda Hobbs until 4pm, before he left to catch up with his friends. Terry Hobbs probably got home between 4.15-4.30 and he and Amanda took Pam to work, and picked her up again just after 9pm, at which time Terry Hobbs called the police to notify them that Stevie was missing.

On the way to Catfish Island around 5pm, Terry Hobbs has said that he and Pam checked at the Moore household, where there was no sign of the children. Between 5.15pm-9pm Terry Hobbs was periodically at the Jacoby house where he left Amanda to the care of Bobbie Jacoby and then – at times while alone and at other times while in the company of David Jacoby- he went searching for Stevie, and crossed paths en route with both Dana Moore (Michael’s mother) and with Mark Byers, who were also out looking for their children with a growing number of residents, friends and relations. The neighbourhood sighting just before 6.30pm by Jamie Clark Ballard of Terry Hobbs nearby the children, can and should be aligned with other timeframe reports of the children being sighted in the early evening of the same night, in the vicinity of Robin Hood Hills.

This timeline is relevant to the (inevitably speculative) matter as to when and where the children were severely beaten, before being dumped to drown in the creek. This, in turn, goes to motive. From 6.30pm until the time that he (with Amanda in tow) picked up his wife from work. Terry Hobbs had only a spasmodic alibi derived from either being at the Jacoby house or while out searching in the company of David Jacoby – but at the same time, the neighbourhood was also increasingly being crisscrossed by other searchers looking for the children.

Jacoby can almost certainly be discounted in any accomplice role if – as speculated – who-ever committed the crime did so via an impulse of the type born of an anger say, directed at the children for not being home on time or for other domestic matters, rather than through the actions of a Bojangles-like outsider. Though these scenarios are entirely speculative, surely being asked to help to cover up the out-of-the-blue murders of three local children would severely test the loyalty of even the closest of friends. As to where and when….initially the creek was thought to be merely a dumping ground for the bodies, but this was partly due to the relative abscence of blood, and to the related theories arising from what is now believed to be post mortem injury. Even now, almost everything about (a) the motive (b) the murder site (c) the timeline for the crimes and (d) whether one or more perpetrators were involved, remains entirely speculative.

As Damien Echols indicated with some annoyance during the panel discussion after the Wellington screening, there is another film currently being made about the case. It is a drama directed by Atom Egoyan, best known for his film The Sweet Hereafter. This new film (called Devil’s Knot) is based on the best-selling 2002 nonfiction book of the same name about the WM3 case written by the Arkansas investigative journalist Mara Leveritt. It will focus on the early “Satanic panic” phase of the case, and will star Reese Witherspoon as Pam Hicks/Hobbs, and True Blood’s “Bill Compton” (better known in real life as Stephen Moyer, spouse of Anna Paquin) will play the state prosecutor John Fogleman. Colin Firth will play the private detective Ron Lax, depicted here as the dogged hero of the tale who uncovers the exonerating evidence. Firth, presumably, will be reviving the startling Southern accent that he first unveiled in the 2010 indie film Main Street.

Echols’ distinct lack of enthusiasm for the Egoyan film may also have something to do with a tactical disagreement that became evident in 2008, around the same time that I interviewed Mara Leveritt about the WM3 case for Scoop.

While the tabloids focused at the time on the management of WM3 donations, the more substantive issue had to do with tactical priorities, as to whether court action on Echols’ case should be the prime focus. In reply to my question in 2008 on this point, Leveritt said :

I believe that simultaneous appeals should be mounted for all three men for two reasons. First, all deserve that shot at freedom. And second, a successful attack on any of the cases would seriously damage the others. The assault on Misskelley’s conviction would focus on the circumstances under which police obtained his confession. Baldwin would argue, I believe, that he deserves a new trial because his attorney was ineffective to the point of dereliction, particularly by calling only one witness on behalf of his client, who was on trial for his life. In my view, the state’s case against Baldwin was thin to the point of non-existence and Baldwin has a good case that his lawyer’s failure to attack it warrants a new trial. I believe if efforts had been made to achieve this, a new trial might have been ordered for Baldwin already, and if that had happened, the state’s case against Echols and Misskelley might also now be fatally weakened.

With that in mind, Leveritt and Dan Stidham (the defence attorney at the Echols/Baldwin trial) set up a separate appeal fund and website. Egoyan’s Devil’s Knot film is, in fact, the current version of the Dimension Films project referred to by Terry Hobbs during his testimony in the course of his ill-fated attempt to sue Natalie Maines/Pasdar of the Dixie Chicks for libel back in 2009.

What does the future now seem to hold for the main protagonists? As Mara Leveritt has also mentioned on her blog, Jesse Miskelley has already suffered serious consequences from taking the Alford plea. These consequences go well beyond the fact that the Alford plea bargain closed the door on any chance of compensation from the state of Arkansas. Post release, Misskelley and his girlfriend set up house with a friend who was the custodial parent of a young child, and the friend’s estranged partner then went to court to prevent his child living in the same house as a confessed child killer – and reportedly, Peter Jackson came to Misskelley’s assistance with a donation to help pay his rent for a year.

As Echols said at the Wellington screening, Jason Baldwin is currently living in Seattle and studying law – reportedly, with a view to eventually enabling him to assist other innocents caught up in the justice system. Echols himself has other WM3 related projects in various stages of completion - These include a memoir due to be published in September by Penguin’s Blue Rider Press. According to a statement from the publisher:

“The as-yet untitled book will be Echols’ account of the trial proceedings and eighteen years spent on death row, including his personal and public quest for exoneration, his prison diaries, and accounts of support from his wife and friends.”

In addition, and as reported earlier this year on Nikki Finke’s Deadline site, Echols’ as yet unseen memoir has already been optioned as a feature film by Johnny Depp’s Infinitum Nihil production company, with Echols and Lorri Davis listed as executive producers. That seems fitting. As Echols said in Wellington, until now the story of the West Memphis Three has been told by other people – by the state of Arkansas, by the media, by various WM3 supporters, and by others. In West of Memphis (and with the memoir and the mooted film) Echols at least, is finally being able to tell his own story. Free at last. Even if, as also seemed evident in Wellington, Echols is – unsurprisingly – not yet entirely free of the effects of his ordeal.

I have no significant new information about Burk Sauls and Kathy Bakken, whose WM3 website provided an invaluable lifeline of information and commentary for WM3 supporters all around the world, thanks to some 15 years of their tireless work. As for Mark Byers…only a few days ago, US media reports said that Byers has just written and published his own book on the case, called Untying the Knot. An excerpt from the book is available on johnmarkbyers.com.

Meanwhile, on terryhobbs.com it is reported that Amanda Hobbs celebrated one year of sobriety on July 22, 2012.

ENDS

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