By Chelsea Silverstein

In Part I of this investigation, we examined Jessie Misskelley’s confession under a due process clause analysis to reveal the coercive tactics that lead to a factually inaccurate confession by a vulnerable, borderline-retarded teen. That unreliable and highly prejudicial confession was leaked to the press without any mention of its weaknesses. Based on that confession, Jessie Misskelley, Damien Echols and Jason Baldwin appeared guilty to the general public before their trials even began.

Today we will examine his confession through the prism of the fifth amendment.

Just as the due process clause protects against involuntary confessions, the fifth amendment protects people from the use of “compelled” confessions in trials. Our judicial system is very protective of people’s fifth amendment rights against compelled confessions.  The Supreme Court has even acknowledged that any “police interview of an individual suspected of a crime has coercive aspects to it.”

To mitigate these coercive aspects, the Court in 1966 announced a rule in Miranda v. Arizona that required police to inform people of their Constitutional rights before beginning a formal interrogation. These rights, well known to all of us as the Miranda rights, require that people be warned of their right to remain silent, that anything they say may be used as evidence against them, and that they are entitled to an attorney and if they cannot afford one, the court will appoint one. Anyone who’s watched an episode of “Law & Order” knows that.

What’s not as well known:  courts presume that people haven’t waived these rights unless the government proves that they did so “voluntarily, knowingly and intelligently,”

Although Mr. Misskelley was read his Miranda rights, his age and cognitive disabilities should have been carefully considered when determining whether he validly waived them. And without a valid waiver, Mr. Misskelley’s confession should have been excluded from his trial.   Read more »

By Chelsea Silverstein

Late one afternoon in May 1993, three West Memphis, Arkansas second-grade boys were seen riding bikes through their neighborhood. Steven Branch, Christopher Byers and Michael Moore were brutally murdered later that evening.

The day after the boys went missing, authorities discovered their tortured, mutilated bodies, hog-tied and naked in a shallow creek surrounded by woods just a few blocks away from the boys’ homes. The crime scene provided little in the way of clues. The banks along the creek were cleared of all traces of blood and footprints, and the boys’ bodies, bikes and clothing had been dumped in the creek, further deteriorating any physical evidence.

Before long, rumors spread through West Memphis, filling in the evidentiary gaps. The murders, people stated with assurance, were the product of Satanic cult rituals.  Soon, three teenagers were the prime and only suspects, based on little more than their status as outsiders and fans of heavy metal music.

Early in the investigation, Steve Jones, a Juvenile Officer in the area, felt that the murders resembled a satanic sacrifice, and told higher-ups that he knew a teenager who was the likely culprit:  Damien Echols.

Without any evidence linking Mr. Echols to the murders, police began interviewing people who knew him. Among those interviewed was 17-year-old Jessie Misskelley. Although Mr. Misskelley was not then a suspect, his interview turned into a confession that also accused Mr. Echols and his best friend Jason Baldwin of the murders. All three young men were soon arrested.

Filmmakers Joe Berlinger and Bruce Sinofsky traveled down to West Memphis days after the arrests to cover the story of what they thought was a gruesome crime that had been solved, and its effects on the community.  Instead, they found that they were covering a modern-day witch-hunt; nothing about the three teens, the “West Memphis Three,” seemed remotely connected to the crime.

The 1996 HBO documentary, ”Paradise Lost: The Child Murders at Robin Hood Hills” turned out to be the first film of what became an award-winning trilogy. With full courtroom access, jailhouse interviews and behind-the-scenes strategy meetings, the film revealed the prejudices, constitutional missteps, and deficient physical evidence that the press, judge, and jury apparently ignored.

The film resonated with audiences, who started a movement to try to free the West Memphis Three. Last August, 18 years after their initial arrest, the three men finally walked free after entering an Alford plea deal. This legal mechanism allowed the defendants to maintain their innocence while entering a guilty plea. The plea gave the men their immediate freedom, and shielded the state from lawsuits and millions of dollars in damages – a virtual guarantee if there would have been a retrial.

All three films are fascinating but from a legal perspective, I was struck by what appeared to be judicial irregularities and violations behind Jessie Misskelly’s confession.  I wasn’t quite sure what the law was, and how his rights were violated. So I did some digging.

And it’s plain that Mr. Misskelly’s confession should never have been admitted into evidence in his trial.   Read more »

By Leah Braukman

Gerald Magliocca of Concurring Opinions recently dedicated a blog entry to his favorite U.S. Supreme Court opinion, the 1970 admiralty law case Moragne v. States Marine Lines. The case was the first to recognize a wrongful death action in maritime law, overturned 84 years of precedent, and explained the history of the relevant law, from the ‘felony-merger’ doctrine in England to the Death on the High Seas Act. “Take a look sometime”, urged Mr. Magliocca. “You’ll be glad you did.”

Inspired by the notion of having an all time favorite Supreme Court opinion, I contacted a few of New York Law School’s professors to find out which Supreme Court opinion was tops in their personal Hall of Fame – and I was fascinated by their answers.

Drumroll, please……

Professor Nadine Strossen chose West Virginia State Board of Education v. Barnette of 1943. When asked why she so favors this particular case, Professor Strossen smiled and shot back, “Where to start?”   Read more »

By Russell Smith

Joseph Bray recently did something we wager he will never do again:  he forgot his wife Sonja’s birthday. She took umbrage at this flagrant violation of a Marriage Commandment – and a fight ensued. Things turned physical, Mrs. Bray called the police, and when they arrived, she told them that that her husband had pushed her onto the couch, grabbed her near the neck and balled up his fist, though he didn’t strike her. Mr. Bray was arrested and charged with battery.

After a night in jail, the couple appeared before Judge John “Jay” Hurley for a “first appearance hearing.” Mrs. Bray informed Judge Hurley that she loved her husband, she wasn’t hurt and she didn’t fear him.

It was just before Valentine’s Day, and since this seemed like a “minor incident,” Judge Hurley decided to play Cupid. He agreed to release Mr. Bray on his own recognizance – but only if he took his wife out for a birthday celebration, with a card, flowers, a Red Lobster dinner, and bowling.

The story quickly became a media darling, appearing on ABC, CBS, CNN, MSNBC, and NPR. It was even satirized by “Saturday Night Live.” (On Weekend Update, Seth Meyers discussed the story and deadpanned:  “Red Lobster—where people are sentenced to dinner.”) Some pundits felt that Judge’s Hurley’s order was romantic , and some argued that it didn’t take the domestic violence charges against Mr. Bray seriously enough.

And still others wondered: “Can judges really order people to do things like this?”

The Wall Street Journal Law Blog posed the question, but stopped short of answering it. Problematically, the Law Blog’s analysis relied on a case dealing with sentencing a defendant who had already been convicted of a crime – not, as in the Brays’ case, a judge’s power to place conditions on the defendant’s release prior to trial.

So while it is true that a federal appellate court held that it was not a cruel and unusual punishment for a judge to sentence a mail thief to stand outside a post office holding a sign that read: “I stole mail. This is my punishment” – it’s also irrelevant.

In fact, a review of the applicable law reveals that Judge Hurley lacked the authority to order the Brays a birthday dinner.   Read more »

By Steven Ward

Anyone who watches NFL games each week is witness to organized warfare, with players delivering excruciating and merciless blows to the opposition. To deal with the frequent injuries, players are often given a shot of the painkiller Toradol, known medically as Ketorolac, before games.

A dozen former NFL players have filed a class-action in U.S. District Court in New Jersey against the league, claiming that they weren’t warned of the consequences of taking the drug. The players allege that among other side effects, Toradol masked pain, which masked the symptoms of concussion.  Playing through their head injuries, the suit states, has brought on long term debilitating conditions, such as “anxiety, depression, short-term memory loss, severe headaches, sleeping problems and dizziness.”

If the NFL is taking these allegations seriously, it has a funny way of showing it:  it still permits the painkiller to be administered during play.

In a recent NY Times op-ed, former Denver Broncos player (2003-2008) Nate Jackson, who is not a party to the lawsuit, wrote of his own experiences with the drug, which included routinely lining up with his teammates before games for injections. He was never quite sure why.

As to how much Toradol he was given during his tenure with the Broncos, or the results of any tests given at the time of his playing, the op-ed was silent — not because Mr. Jackson didn’t want to tell us, but because he couldn’t.

He can’t access his medical records: “Even after I filed a workers’ compensation lawsuit against the Broncos a year ago that later included a request for that folder,” he writes, “I still don’t have it. The team hasn’t released it to me.”

How can this be? All of us have an absolute right to our medical records, right?   Read more »