Untying the Knot: John Mark Byers and the West Memphis Three (44 page)

The exposure of the case expanded when the ASSC announced that during the summer of 2010, cameras and software had been installed and tested and would make the court’s oral arguments available to viewers over the Internet. After
48
Hours
Mystery
, Voices for Justice, and
Larry
King
Live
, as well as the announcement of the soon-to-be-released
Paradise
Lost
3
, the court needed to prepare for extra demands on its available bandwidth.
²⁰⁸
Chief Justice Jim Hannah said, “The judiciary, as an institution, has a history of not looking forward to change, and we do not do change well.” He relented, however, and said that he and his fellow justices were “proud to be using this technology” by providing live streaming video of oral arguments.

At the lectern at the ASSC that Thursday morning in Little Rock, Dennis Riordan, accompanied by second chair Donald Horgan, gave a powerful argument, one that wasn’t explicit in the writ, but one that he would pound home to the bench for the bulk of the twenty minutes allotted to him. The case for a new hearing would require that all evidence, old and new, be considered, Riordan argued. The so-called DNA statutes (Ark Code 116 sections 201-208) had been incorrectly interpreted by Judge David Burnett when he denied Echols’s appeal. Riordan, referring to the state’s brief to the circuit court, told the justices, “It may seem that that would be hyperbolic on my part, to say that the state’s taken a position that no one could ever prevail under these [statutes]. But I quote from their brief in the circuit court: ‘The state does not shrink from Echols’s charge that relief may never be granted under this view of the statute, but embraces it out of confidence that the Arkansas criminal justice system does not convict the innocent.’” The ASSC found this ludicrous. The court’s justices seemed to be favorably disposed toward Echols from the beginning of Riordan’s argument. Associate Justice Elana Cunningham Wills had recused herself, possibly because she had spent twenty-two years in the attorney general’s office. Her replacement, Little Rock attorney Jeff Priebe, seemed as open to a wide interpretation of the statute in question as did his fellow justices. This exchange between Priebe and Assistant Attorney General David Raupp is a case in point:

Priebe
: Counselor, what harm is there in allowing [Echols] to introduce evidence from the last seventeen years?

Raupp
: Well, the harm is in the finality of the criminal judgment that is not demonstrated to have any constitutional or procedural defect, and just to try it again. It sounds to me, Justice Priebe, as though you’re suggesting that every fifteen or seventeen years or so, we ought to try cases again to reestablish guilt, and I suppose a legislative judgment could be made to that effect . . . The harm is to the criminal justice system’s interest in finality and the work that gets done in evaluating whether justice has been served . . . The question is now, can he demonstrate his own innocence?

Raupp, like Burnett, was apparently
tired
of this case.

After the hearing, Mark Byers had the opportunity to do something he’d waited ten years to do: outside the courthouse that day, he confronted author Mara Leveritt with the things she had written about him in
Devil’s
Knot.
Leveritt was covering the ASSC hearing and was chatting amiably outside the courthouse with director Joe Berlinger. Mark was nearby, signing autographs and visiting with supporters. He approached Leveritt, and the two shook hands. Berlinger scrambled to get his cameraman in position.
²⁰⁹
Leveritt asked Mark for his phone number, and Mark told her, as he tells everyone, that he’s listed in the phone book under his own name; he has never been hard to find. Her next request was a jaw-dropper: “Would you sign my book?” The question hung in the air like a boulder in one of those old Road Runner cartoons.

“Would you apologize for the things you said about me in your book that were untrue?” he finally asked.

She feigned surprise. “Like what?”

Mark began with the account in
Devil’s
Knot
in which Leveritt had accused Mark of holding his parents at knifepoint for drug money when he was a teenager in Marked Tree.
²¹⁰
After a discourse on his criminal record and the case made against him by Leveritt and other supporters, Mark got down to the heart of the matter, at least for him. “It has hurt to lose my wife, and it has hurt to lose my son. But I want to tell you what tears my heart apart more than anything is to be blamed for it, to be spit on and asked to leave restaurants, to go into church and have the pastor say, ‘We’re glad you’ve come, but you’re too controversial; don’t come back.’” Leveritt weakly attacked Mark for his treatment of the West Memphis Three during the months leading up to the trials in 1994, but the attempt fell flat. A disassociated journalist was no match for a then-grieving parent.

Mark tried to explain to Leveritt why Terry Hobbs should have been investigated as thoroughly as he himself was. “If he had been, we wouldn’t be here today,” he said. But Leveritt wouldn’t let it go. She continued to hammer Mark on his criminal record, particularly the 1987 conviction that she covered in excruciating detail in
Devil’s
Knot
and the subsequent expunging of that conviction.

“Why was it expunged?” Leveritt asked, something she hadn’t asked Mark prior to writing
Devil’s
Knot
, as was the case with almost everything else she had written about him. Mark attempted to explain to her the facts of the situation—that it was expunged per a prior agreement with the court—but she wasn’t interested. She stuck to the accusations of cronyism that characterized nearly all of her writing.

“Now what was it you wanted me to sign?” he asked.

“My book.”

“Well, I’m sorry, but I won’t be able to do that because I don’t endorse it. You’ve badgered me and bad-mouthed me long enough and had many people say bad things about me because of what you wrote, so as far as endorsing anything you’ve got? I wouldn’t endorse it. I do appreciate your apology. It shows that you are a woman of integrity to apologize. However, my hypocrisy goes only so far. And to sign your book? No way.”

The
ASSC
Returns
a
Surprise
Decision

Priebe and his six colleagues on the bench didn’t buy Raupp’s argument. According to the sixteen-page opinion issued on November 4, 2010, “Echols was entitled to an evidentiary hearing under this subsection [of the law] before the motion for a new trial was ruled upon.” This time, and in accordance with the statute, the high court ruled that Echols’s hearing was to include “all evidence,” whether or not that evidence was introduced at the original trial in 1994. This would include the evidence of juror misconduct that his defense team felt would be among the strongest in obtaining a new trial. The thrust of Dennis Riordan’s argument during his twenty minutes before the court had focused on these points, and his victory, after seventeen years of rejection, was nothing less than stunning. In his opinion, Associate Justice Ronald L. Sheffield wrote, “It is clear that each of the alternative reasons for denying Echols’ motion [by Judge Burnett] for a new trial rests, in part, on the circuit court’s [erroneous] interpretation of the DNA testing statutes.”

Shortly after the ASSC rendered its decision ordering the lower court to “promptly set an early hearing for the petition and response,” Arkansas attorney general Dustin McDaniel responded, saying that he “respect[ed] the decision” of the ASSC but that his office also “intend[ed] to fulfill its constitutional responsibility to defend the jury verdicts in this case.” McDaniel was simply doing what he was paid to do, but the state’s high court had determined that Echols must be allowed to present his case virtually unfettered by further legal obstacles. Echols’s life was at stake, and someone had finally acknowledged it.

If the lower court were to decide that new trials—or a new
trial
, singular, for all three defendants—were justified, Echols would be hard to beat. The high visibility of the case and the changing social mores that would be alluded to by Judge Burnett, combined with Echols’s high-powered defense team, might be enough to establish reasonable doubt. Echols and Lorri Davis made the “helpful suggestion” that the hearing be skipped and the proceedings move straight to the trial phase. It would save time and money, they said, since, should they prevail at the hearing, a jury trial would have to be held where they would present essentially the same case. Having the hearing waived was unlikely, but it showed the confidence that Echols and his supporters were gaining. A date for the hearing would soon be set for December 4, 2011, in Jonesboro in the former courtroom of the Honorable David Burnett. This time, however, there would be a new face at the bench, and Echols felt good about his chances with Judge David Laser, as indicated by an interview he gave to KATV reporter Heather Crawford.

Reporter:
If you do get a new trial and it goes before a new jury, there’s always that chance the jury could say guilty as charged. Do you think about that happening? Do you think that could happen?

Echols:
No, I don’t. I don’t think after they hear everything we’ve collected over the past seventeen years—I don’t think there is any chance [at] all of that happening.

Reporter:
How confident are you that you will get a new trial?

Echols:
100 percent
.

Echols sounded supremely confident, and indeed, it would seem he had reason to be. This was, after all, the biggest break in his quest for freedom since his arrest in 1993. But was the state just going through the motions of justice in order to prevent being reversed upon further appeal? If Echols were to lose in the lower court this time, his appeal would be heard by the US District Court of Appeals where he had originally filed his habeas petition. Who knew how long that would take or what the outcome would be? The granting of an evidentiary hearing by the ASSC could simply be the court acknowledging what most people already suspected: Judge David Burnett had been ready to hightail it from the bench to grab a state senate seat, and he wasn’t going to let the case he was so “tired of” get in his way. Naturally, he denied this. “I made my opinion and they made theirs. That’s the way the system works. I did what I thought was appropriate at the time. Times change and circumstances change, and I guess they had a different view than I did.”
²¹¹

Little Rock KATV reporter Heather Crawford conducted her fourth interview with Echols on November 17, 2010, to get his reaction to the unanimous decision (7-0) by the ASSC. “I suspected it would [be] sent back. I didn’t think it would be unanimous. That in itself was a huge confidence booster, that every single judge on the Arkansas Supreme Court agreed that this evidence should be heard, and they sent it back to be heard. That in itself felt like almost a miracle to me.” Indeed, unanimous decisions are relatively rare, but the WM3 supporter community has often been characterized by unwarranted optimism, and it probably didn’t surprise them at all. “We are ecstatic and hopeful,” Lorri Davis said when she got the news.

There would be no smoking gun in this case when it came to solving the crime itself. There was no more crime scene DNA to examine, at least nothing that had been disclosed by either side. Proof of juror misconduct would nullify the
process
, but not the substance. The forensic and circumstantial evidence—with the exception of two hairs—did nothing to identify the killer(s). In anticipation of the evidentiary hearing, the defense was busy searching every avenue for additional evidence to introduce.

On May 17, Dustin McDaniel made it official: the state of Arkansas would not fight the introduction of evidence of juror misconduct at the evidentiary hearing. Another major hurdle in the case had been cleared.

Reviewing
the
Evidence

So what exactly was the evidence to be presented at the hearing in December? A partial list might include the following:

1. Forensic expert testimony that proved animal predation, not knives, was the cause of the wounds sustained by the victims.

2. DNA evidence excluding the defendants but
not
Terry Hobbs and David Jacoby.