Few, if any, candidates for the Arkansas Supreme Court have faced public
opposition for their prosecution of accused killers.

John Fogleman, who as a deputy prosecuting attorney sought the death
penalty for three teen-agers, may be the first.

Along with that opposition, he has plenty of support. Almost every
lawyer I know who has appeared in Fogleman’s court since he was elected a
circuit judge 15 years ago holds him in high regard. In 2008, the
Arkansas Trial Lawyers Association honored him as its Outstanding Trial
Judge.

But for those Arkansans who oppose him ? and
I am one ? the ugliness of the trials that launched his judicial career
cannot be forgotten.

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In 1993, three West Memphis children ? Christopher Byers, Michael Moore
and Stevie Branch ? were murdered. The following year, three Crittenden
County teen-agers ? Jessie Misskelley Jr., Damien Echols and Jason
Baldwin ? were put on trial for the crime.

Fogleman and prosecuting attorney Brent Davis sought the death penalty
for all three. Juries convicted the teen-agers, though only Echols was
sentenced to death. Baldwin and Misskelley received terms of life plus
40 years in prison.

But since those trials, many Arkansans, including the parents of two of
the victims, have come to believe that justice was not served ? not for
the accused and not for the victims.

Fogleman prosecuted the teen-agers using circumstantial evidence that he
knew, even then, was thin at best. In the years since those
convictions, even the threads of evidence he was able to weave have
frayed and fallen apart.

But Fogleman has no regrets. He recently told the Times, “I completely
stand by every step I took in that case,”

Within weeks after winning it, the young deputy prosecutor announced his
candidacy for judge in Arkansas’s Second Judicial District. He erected a
billboard near where the bodies of the three 8-year-old children were
found. It advertised that he could “make tough decisions in tough
cases.”

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Now, in his race for the state Supreme Court, Fogleman relies on a
website. There he says that our justice system only functions “if the
people have a measure of confidence that those of us involved in the
system are fair and unbiased.”
I agree with that. And that is the very reason I don’t want Fogleman on
our high court.

The tactics he used to win convictions of the men now known as the West
Memphis Three have spawned widespread mistrust ? not just of Fogleman,
but also of Judge David Burnett who allowed them (see page 13), and of
our state Supreme Court, which, so far, has supported everything that
has transpired in this now infamous case.

That is a harsh judgment, and I don’t like making it. But history will
probably judge this episode of our state’s legal history even more
harshly than I. Eventually, I believe, Fogleman and Burnett will be
blamed for having brought a great shame on Arkansas.

Before I go further, however, I should admit that I have been mistaken
about Fogleman in the past. In “Devil’s Knot,” my book about the West
Memphis trials, I wrote that Fogleman’s father had served on the state
Supreme Court, when in fact, it was his uncle. To make matters worse, I
also erred in stating which of his relatives had served on the local
school board.
Fogleman beat me up pretty good about those mistakes a few years ago,
when he spoke about the case at the University of Arkansas at Little
Rock’s Bowen School of Law. And that was fair enough.

But he used the courtroom ploy of suggesting that, if Mara Leveritt was
“so lazy and irresponsible” as to have gotten those details wrong,
readers could not trust anything else in her book. A couple of students
asked the judge if he could point to anything more substantive in
“Devil’s Knot” that was wrong.

As I recall, he could not. And there is plenty in there that’s damning.

‘Investigated thoroughly’
In a campaign speech last January in Trumann, Fogleman
acknowledged that, “This was a difficult case.” He added: “But it was
investigated thoroughly. Many people were looked at in this case. But I
will say, every piece of evidence we had pointed to those three.”

To the contrary, the investigation was deeply flawed. There was
significant evidence even at the time that pointed away from the three,
and more has recently developed.

We now know that police did not even interview Terry Hobbs, the
stepfather of victim Stevie Branch, after the murders. Questioning
relatives is fundamental in any investigation of murdered children
because, sadly, it is well known that most die at the hands of people
close to them.

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That hole in the investigation became more glaring last year, when new
tests of evidence identified a hair in the bindings used on one of the
victims ? a boy not his stepson ? as having come from Hobbs. Another
hair was identified as having come from a friend of Hobbs,’ a man who
was with him on the night of the murders.

Also in the past year, after Hobbs told a newspaper reporter that he had
not seen any of the children on the night they disappeared, three of
his former neighbors came forward to dispute that. They said they saw
him with the boys early that evening, but that police had never
questioned them.

Another gaping hole in Fogleman’s “thorough” investigation surrounds the
muddy, bloody man who wandered into a fast-food restaurant on the night
the boys disappeared. Workers at the restaurant, which was near where
the bodies were found the next day, notified police, who took paper
towels and scrapings of blood from the restroom where the man had tried
to wash up, and a pair of sunglasses he’d left in the commode.

Later, at one of the trials, when a detective was asked about the crime
lab’s report on that evidence, the officer replied that it had not been
sent to the crime lab. When asked why not, he said the the evidence had
been “lost.”

The ‘duty to seek justice’
Some may say, “Well, Fogleman was the prosecutor. Trying to get
convictions was his job.” That is a common but skewed view of the
prosecutor’s role. In its Standards for Criminal Justice, the American
Bar Association stresses that, “The duty of the prosecutor is to seek
justice, not merely to convict.”

That leads one to wonder how much justice Fogleman and Davis were
seeking when they decided to mount three capital murder cases on the
botched and clumsy statement of 17-year-old Jessie Misskelley Jr.

Misskelley was a high-school dropout who’d been in special education
classes for as long as he stayed in school when, a month after the
murders, police brought him to the station for questioning. They grilled
him for close to eight hours. He had no parent or lawyer with him.

Misskelley began by saying that he knew nothing about the murders. But
at some point during the questioning, police used a tactic on him that
even the state Supreme Court later said came “perilously close to
psychological overbearing.”

After that, Misskelley started telling police he knew some things about
the murders. In disjointed answers to their questions, he said he’d seen
18-year-old Damien Echols and 16-year-old Jason Baldwin, beat, sodomize
and kill the children.

Misskelley also said that when one of the victims tried to escape, he
himself had caught and held the child for Echols and Baldwin to finish
off. Misskelley recanted those allegations the next day, but by then it
was too late.

Police had recorded two short segments of Misskelley’s day-long
questioning, and based on those, they arrested the three teen-agers.
Each was charged with three counts of capital murder.

When I interviewed Fogleman a few years after the trials, he
acknowledged that at the time of the arrests, “basically, the only thing
we had was Jessie’s statement.” And it wasn’t much of a statement, at
that. The state Supreme Court described it as “a confusing amalgam of
times and events.”

Initially, for instance, Misskelley said that the attacks took place in
the daytime, the victims having skipped school. But, as the police and
Fogleman knew, the children were in school all day and were last seen
alive at around dusk.

He said that the boys were tied with “brown rope,” when, in fact, they
were not tied with rope at all, but with their own shoelaces–black and
white.

He said they still had their clothes on when they were beaten and
stabbed, but the children’s clothes were recovered and they were neither
torn or bloodstained.

He said the children were sodomized, but the state pathologist reported
finding no evidence of that.

Davis and Fogleman knew that Misskelley was wrong in these key details,
but they did not question why. They did not, in the pursuit of justice,
take Misskelley to the woods where the bodies were found and videotape
him as they asked him to clarify his statement.

Perhaps that was too risky. Such a videotape would have had to be
disclosed to the defense, and might have made even more apparent
Misskelley’s ignorance of the crimes.

Instead, they chose to seek the death penalty for Misskelley based on
what he’d said. At his trial, when the West Memphis police chief was
asked why he thought Misskelley had gotten so many details wrong, the
officer replied, “Jessie simply got confused.”

Years later, when I put that same question to Fogleman, he himself
seemed confused: “I don’t know,” he said. “I don’t know. They were
generally consistent, but specifically, they weren’t. I don’t know.”

No such uncertainty seemed to trouble him in court. While, at the law
school, he would attack the credibility of everything in my whole book
because of the errors he cited, at trial, with a teen-ager’s life on the
line, he was willing to dismiss Misskelley’s grossly wrong statements
about a crime in which he’d supposedly participated ? and ask the jury
to sentence him to death.

The jury would not go that far. It found Misskelley guilty and sentenced
him to life in prison.

When he appealed that conviction, the state Supreme Court noted that his
recorded statement had been “virtually the only evidence” presented
against him. And ruling that it would “defer to the jury’s
determination” about Misskelley’s “numerous inconsistencies,” it
affirmed his conviction.

In 2003, a forensic linguist published a detailed analysis of
Misskelley’s confession in a British academic journal. Dr. Martin D.
Hill concluded that, “None of the key, specific, verifiable details were
provided by the confessor,” and that “the police were the source of
nearly all of the substantive information regarding the crime.”

‘Negative evidence’
Misskelley was tried by himself because, however awkwardly, he
had confessed to police. Echols and Baldwin never did. And that
presented Prosecutor Fogleman with a dilemma. If Misskelley would not
appear at their trial and repeat his allegation, they could not even
play the tape-recording of his statement because to do so would deny the
two defendants their
constitutional right to face their accuser.

The prosecutors tried hard to get Misskelley, whose trial had just
concluded, to appear at the second trial and say again that he’d seen
Echols and Baldwin murder the children. They even offered to reduce his
sentence from life to a term of years, making him eligible for parole,
if he agreed.

The victims’ parents were not happy about the offer. Davis explained
that, without Misskelley, they faced serious doubts about being able to
convict the other two. “Unfortunately,” Davis said, “we need his
testimony real bad.”

Fogleman, at the same meeting, put it this way: “All is not lost if he
doesn’t testify. But the odds are reduced significantly. I mean, we’ve
still got someevidence.”

Here’s what he told the parents they had:
• Three fibers that even Fogleman admitted could not be linked to the
accused “to the exclusion of all others.”
• A woman’s claim that, on the night of the murders, she saw Echols
walking near where the bodies were found; the problem with her was that
she said Echols was with a girl, not Jason.
• The statements of two teen-age girls who said they’d overheard Echols
at a softball field bragging about having committed the murders.
• The claim of a jailhouse snitch that Baldwin had told him he’d killed
the boys ? but Fogleman warned the parents that the snitch “might not be
believed.”

“Oh, yes,” Fogleman added. “And the knife in the lake.”

Six months after the arrests, knowing he was heading into trials with
little evidence, Fogleman had an inspiration about where he might find
the murder weapon. He contacted a diver for the Arkansas State Police
and, according to the diver, told him what to look for and where to look
in a lake behind the trailer where Jason Baldwin lived.

In short order, the diver emerged with a knife –the type of knife the
state alleged was used on one of the children. Fogleman could establish
no direct connection between Echols and Baldwin and the knife, nor
between the knife and the murders. But he tried to make the most of it.

At the start of the trial of Echols and Baldwin, he told the jury, “I
want to tell you in advance, there’s going to be some … I guess you
call it ‘negative evidence.’ It doesn’t really show a connection to
anybody. … And you may wonder why we’re putting on evidence of a
negative, but we’ll explain that to you later.”

There was a lot of evidence presented that, like the knife, didn’t “show
a connection to anybody.” But Fogleman never did explain it.

‘Involved in the occult’
The biggest problem prosecutors faced in that second trial was
the lack of an apparent motive. Without Misskelley, who had described
the teens’ involvement in a “satanic cult” that met in the woods on
Wednesdays and built fires of “paper and wood and stuff” and “someone
brings a dog, and they usually kill the dog … and eat part of it…” ?
without that, the prosecutors could point to no reason why Echols and
Baldwin would have viciously killed three children they did not know.

The prosecutors were under no obligation to prove a motive, but they
worried that jurors might reasonably doubt that Echols and Baldwin would
have killed three children on a whim.

They made the decision to call Victoria Hutcheson to the stand. The
young mother testified that Echols had driven her and Misskelley to an
“esbat,” which she described as something like a witches’ orgy. She said
she’d become frightened and asked to be taken home.

In 2004, Hutcheson told a reporter for this paper that “every word” of
her testimony “was a lie.” At the time of the murders, she was being
investigated for hot checks and credit card fraud. She said police
threatened her with the loss of her son if she did not say what they
wanted her to say.

Even at the trial, defense attorneys undercut Hutcheson’s story with
testimony that Echols did not drive, had never driven, and had no
driver’s license or access to a car. But with Hutcheson, Fogleman had
set the stage to suggest a motive for the murders.

He began by reminding jurors of the date on which they occurred: May 5,
1993. He then asked Judge David Burnett to “consider taking judicial
notice that there was a full moon on May fifth, according to an
almanac.”

Here began the most infamous part of the trial ? the part in which
Fogleman and Davis, with the complicity of Burnett, attempted to prove
that Echols and Baldwin killed the children as part of an occult or
satanic ritual. To do this, they brought in their big gun, Dr. Dale W.
Griffis, a self-proclaimed “cult expert.”

Defense attorneys quickly established that the Ph.D. Griffis claimed he
had was a fraud ? that he’d obtained it, without ever attending a class,
from a mail-order diploma mill. They argued that Griffis was not
qualified to testify as an expert.

But Burnett ruled that he would accept Griffis as an expert “based upon
his knowledge, experience and training in the area of occultism or
Satanism.” He allowed Griffis to testify about the aspects of the crime
that he said bore “trappings of occultism.”

There were three victims, Griffis explained. There was blood and water
involved. Echols wore mostly black. He and Baldwin liked heavy metal
music. And, as Fogleman had established, the murders took place on the
night of a full moon.

When Fogleman asked Griffis about how he recognized “young people
involved in the occult,” Griffis responded gravely: “I have personally
observed people wearing black fingernails, having their hair painted
black, wearing black T-shirts, black dungarees, that type of thing.
Sometimes they will tattoo themselves.”

Defense lawyers got Griffis to concede that, in fact, police had found
nothing at the scene related to the occult. They’d found no carved
pentagrams, for example; nothing resembling an altar, no bits of candle
wax, no knife or robes or anything else suggestive of a satanic ritual.

By the end of the trial, it was clear that Fogleman’s case against
Echols and Baldwin consisted almost entirely of the elements he’d
outlined for the victims’ parents, plus Griffis’ testimony about
“occultism.”

In his closing remarks, Fogleman reminded the jury of what Griffis had
said about “this satanic stuff.” Then he instructed the jurors to look
at Echols. “You see inside that person,” he told, “and you look inside
there, and there’s not a soul in there.”

Parts of the trial smacked of rhetoric from the Inquisition. Fogleman
had presented little substantive evidence against Echols, and even less
against Baldwin. Nevertheless, he urged the jurors to sentence both boys
to death.

They complied in part, sentencing Echols, the group’s purported
ringleader, to death and Baldwin to life in prison.

‘I couldn’t do it’
Six years after the trials, when I was writing “Devil’s Knot,” I
learned that, midway in the second trial, the prosecutors were
concerned enough about the adequacy of their case that they offered a
deal to Baldwin. Through an intermediary they told him that, instead of
seeking the death penalty for him, they would seek a term of years,
making him eligible for eventual parole.

All he had to do was testify that Echols had done the killing. “I told
him, ‘I couldn’t do it even if you said you’d let me go right now,’ ”
Baldwin told me. “And I told him I didn’t want to hear no more about
it.”

He refused and remained at his trial facing possible death. Had he
accepted the offer, he would be free now.

At great cost to themselves, both Misskelley and Baldwin refused to help
Fogleman win his case. He won anyway, but nothing about those wins
brings credit to him, to his profession or to this state.

In light of Fogleman’s conduct at those 1994 trials and all that’s
happened since, it’s intriguing to contemplate what evidence his
successors could possibly bring, if ? as remains possible ? a state or
federal court were to order even one of the three a new trial.