Mara Leveritt reports from West Memphis at a hearing on a suit seeking access to police evidence in the West Memphis Three murder case:
Circuit Judge Victor Hill said this morning that he will take under advisement two important issues concerning freedom of information in Arkansas and issue a ruling early next week.
The matters arose as the result of a lawsuit filed by two of the parents of children murdered in West Memphis in 1993. Pam Hicks and John Mark Byers want to see evidence collected by police during the murder investigation.
They have also asked to see evidence in the possession of prosecuting attorney Scott Ellington, who is currently running for Congress.
The parents attorney, Ken Swindle of Rogers, argued that Ellington did not respond to a freedom of information request on behalf of the parents within the time required by the state’s freedom of information act.
Ellington was seen in court prior to the hearing, but he did not appear at it to testify on his own behalf. A deputy prosecutor from his office testified that Ellington had asked him to appear instead. Swindle complained about his difficulties in contacting Ellington, despite weeks of trying. Byers called Ellington “gutless” for not appearing in person at the hearing.
Under questioning, the deputy prosecutor, Curt Huckaby, said that there were three affidavits in Ellington’s possession that constituted an ongoing investigation. These documents were turned over to Judge Hill. The first was said to have been received in December 2011.
Under questioning by Swindle, Huckaby said that no action had been taken on any of the affidavits. However, he said that interviews were planned.
Swindle argued that the “passive receipt” of documents does not constitute an “ongoing investigation.”
The second subject the judge said he would consider as a result of this morning’s hearing concerned evidence collected by the West Memphis police department.
David Peeples, city attorney for West Memphis, argued that documents would be made available to the parents, but that other evidence did not fall under the requirements of the freedom of information statute.
He maintained that police had an obligation to preserve evidence for possible testing in the future.
Swindle responded that his clients did not seek the return of the evidence or seek to touch the evidence. He said they only wanted to view it, “to make sure it is there.”
He added, “So this is no small thing we are asking for.”
Court adjourned for lunch. The hearing is to resume at 1:30 PM.