Untying the Knot: John Mark Byers and the West Memphis Three (52 page)

¹⁴⁷
Arkansas Act 1708 16-112-201. This act, like others adopted by different states, was inspired by the case of Earl Washington in Virginia, a mentally challenged inmate who had come within nine days of execution in 1985. Although Washington’s sentence was commuted to life in 1994 by Governor Douglas Wilder, Washington had DNA evidence that excluded him as a suspect as early as 1993. Under Virginia’s draconian “21 day rule,” however, he was not able to have that evidence considered. Washington was pardoned by Governor James Gilmore on the capital murder charges in October 2000 and was released from prison on February 12, 2001, after spending almost seventeen years in prison.

¹⁴⁸
According to Terry Hobbs in his June 21, 2007, interview with the West Memphis Police Department, he and Pam were paid $25,000 for “life rights,” and since the couple had divorced some time in 2003, they split the payment evenly between them.

¹⁴⁹
In what is most likely a recreated scene in
Paradise Lost
, the following dialogue takes place between Lax and Echols’s attorneys Val Price and Scott Davidson:

Price
: Ron, how do you think this has gone so far, with the Mark Byers aspect? Obviously, we thought long and hard about mentioning a father as a possible suspect.

Lax
: I hate having to do that, but the way the circumstances are, it’s just coming out whether we really want to or not. I mean, you know, we had suspicions even before the knife showed up.

Price
: Do you think anybody realizes the reason for the three-day delay in Jessie’s trial, waiting on the DNA to come back on that Byers knife?

Davidson
: I doubt it.

Lax
: And even after the results came back, and it showed that it could be Mark’s blood as well as Chris’s blood, that doesn’t alleviate the fact that he said no one had ever cut themselves on the knife … and it shouldn’t have had blood on it at all.

Price
: [What] do you think [about] the theory, or the argument at least, that it wasn’t that the blood was on the blade that could easily be wiped off, but it was back in the hinges, where you wouldn’t think, if you were wiping off the blood—you wouldn’t think the blood would be inside the hinges—and that’s where they found that particular blood?

Davidson
: How do we get that in?

Price
: Well …

Davidson
: Just ask Gitchell?

Price
: Ask Byers. I mean, we could put Byers up on the stand.

Davidson
: I think the jury expects to see him now. They want to see him up there, see what he has to say. [To Lax] Don’t you think so?

Lax
: I think so. Yes.

¹⁵⁰
Among other matters, the contract stipulated that “Clear Pictures Ent. agrees that Bruce Sinofsky/Joe Berlinger will have no involvement in this production.”

¹⁵¹
Although the up-front money was paid, the contract, after being renewed once, was eventually allowed to expire in 2009 while the fate of the film was up in the air. Communications between Mark and Liz Fowler have been sporadic, and as of this writing, media outlets have been reporting that the film will begin filming in spring 2012, under the supervision of veteran director Atom Egoyan.

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According to the state crime lab in Little Rock, “hairs do not possess a sufficient number of unique microscopic characteristics to be positively identified as having originated from a particular item to the exclusion of all other similar items.”

¹⁵³
According to the United States Department of Justice, Bureau of Justice Statistics, for the years 1976-1994, children between five and fourteen years of age who were victims of a homicide had a 22.6 percent chance of suffering death at the hands of a family member. Further, less the 3 percent of all persons incarcerated for violent crimes against children are female.

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While the “new evidence” obtained by the Echols defense team, including the Hobbs and Jacoby hairs, was being evaluated, Echols successfully petitioned to have his existing appeals held in abeyance while his habeas petition was being prepared. Echols’s motion states, “It has previously been established that Hobbs was never questioned by police during the original investigation of the crimes,
despite the fact that the lead detective in the investigation of the murders has conceded that when a child homicide occurs, police should always consider the parents of the child as potential suspects”, and that it is “statistically proven that homicide victims are usually the result [
sic
] of family, close friends, [and] known acquaintances.”

However, in his 2009 deposition in his lawsuit alleging defamation on the part of Dixie Chicks singer Natalie (Maines) Pasdar, the following exchange took place between Hobbs and Pasdar’s attorney, D’Leslie Davis:

Q. You were not interviewed by the West Memphis Police Department in 1993, correct?

A. I was.

Q. Okay. And it was a formal interview?

A. Right.

Q. Do you know if they recorded it?

A. I don’t remember that

Q. Did they read you your rights?

A. No.

Q. Do you recall which police officer interrogated you?

A. No.

Q. Do you recall where the interview happened?

A. West Memphis Police Department.

Q. And did they call you down there to interview you?

A. They did.

Q. Were you alone or with anyone else?

A. Me and Pam went.

Q. So the two of you were interviewed together?

A. Maybe separate, but we went together.

Q. Other than that one interview in 1993, do you recall any other interviews with West Memphis Police Department in 1993?

A. I can’t recall any.

Q. Can you recall any in 1994?

A. Not really.

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In the January 4, 1994, report from the Arkansas State Crime Lab, no mention is made of any hair in or on the ligature binding Michael Moore. There is also no mention of ligature hair in Echols’s 2002 motion for forensic DNA testing, though there is mention of the ligature itself. In the 2005 report from Bode Laboratories in Springfield, Virginia, an item labeled “Hair from M. Moore ligature” was received and tested. This was the hair that “could not exclude” Terry Hobbs as the donor, meaning the mitochondrial DNA found in the sample matched that of Hobbs. In the case of the Hobbs sample, the lab states that all but 7 percent (although this number seems to vary) of the population can be excluded.

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Ron Lax refused to provide any information regarding any subject to this author. I was referred to Echols’s attorney, Dennis Riordan, who was under a gag order by Judge David Burnett, as were the other attorneys involved in the case.

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Interview of retired Officer Tony Anderson with Captain Ken Mitchell and Lt. Chuck Noles, June 22, 2007. Although Anderson says that all he had was a photograph—he couldn’t recall what kind of camera was used—he didn’t mention the existence of a mud cast. On May 13, 1993, Kathy Healey of the WMPD released evidence to the state crime lab described as “1 box w/a fingerprint in mud.” It was received by the lab and given lab case number 9305716.

¹⁵⁸
Ibid. Mitchell asked rather sheepishly if Anderson had compared the print with his own. “I sure did,” Anderson replied.

¹⁵⁹
David Ashbaugh,
Quantitative-Qualitative Friction Ridge Analysis
(Boca Raton, FL: CRC Press, 1999), cited in John D. Clark, “ACE-V: Is It Scientifically Reliable and Accurate?”
http://www.latent-prints.com/ACE-V.htm#_ftn1
. See also
http://en.wikipedia.org/wiki/Fingerprint
. The FBI hasn’t used a system of fixed points—also known as “Galton points”—for identification in many years. Rather, the fingerprint analyst evaluates the print in its totality to determine whether it matches a reference sample. This system, known as ACE-V (analyze, compare, evaluate, then verify), is based on a system developed by David Ashbaugh of the Canadian Mounted Police more than twenty years ago. Still, the Galton points serve as a basis for beginning the analysis, which includes three levels of detail for comparison. It is also significant that since many latent prints found at a crime scene are partials, using ACE-V makes obtaining a match more likely than does evaluating Galton points alone.

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Interview of Hobbs by WMPD, June 21, 2007.

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He told detectives Ken Mitchell and Chuck Noles the same story. According to Terry, he received a fifty-dollar fine for the incident.

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Serological Research Institute (SERI) report to attorney Michael Burt in San Francisco, May 11, 2007. Burt is an attorney who represented Jason Baldwin in his appeals. The report reads, in part, “A search of the FBI’s Mitochondrial DNA Database of 4839 samples (consisting of 1674 Caucasians, 686 Hispanics, 848 Asians, 326 Native Americans, 1305 Africans and African Americans) showed three (0.06%) to have the same mitochondrial sequence as the cigarette butts [taken from the front yard and ashtray at Terry Hobbs’ residence in Memphis].” At a press conference in Little Rock in November 2007, Thomas Fedor from SERI said that the hair would exclude all but 1.5 percent of the population but would not be enough for a positive identification.

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Douglas claims that it was he who discovered that Hobbs had never been interviewed by police. Ron Lax would not comment.

¹⁶⁴
Inquisitor Inc. website,
www.inquisitorinc.com
.

¹⁶⁵
According to court records, Lax was paid $1.19 per hour to testify for the state at Damien Echols’s Rule 37 hearing in either 1997 or 1998. It is doubtful that he ever received any direct payment for his work in the original investigation; there simply wasn’t any to be had.

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The reporter was Cathy Frye of the
Arkansas Democrat-Gazette
.

¹⁶⁷
Stephanie Scurlock “Mother of Young West Memphis Three Victim Arrested” WREG news, Memphis. Originally posted November 11, 2007.

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Hobbs was subsequently bailed out of jail by a “business acquaintance.”

¹⁶⁹
Along with Ann W. Burgess, Allen G. Burgess, and Robert K. Ressler, Douglas authored
Crime Classification Manual: A Standard System for Investigating and Classifying Violent Crimes
, now in its second edition (San Francisco, CA: Wiley, 2006). He also coauthored
Sexual Homicide: Patterns and Motives
with Ressler and Ann W. Burgess. Both are tools for law enforcement to aid in the development of offender profiles and to assist in crime scene investigation and interrogation of suspects.