Revisiting a (Terribly) Wrongful Confession
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.
Determining whether a defendant’s confession may be used as evidence against him at trial turns on whether that confession was truly voluntary. There are two provisions in the Constitution that protect against involuntary confessions: (1) the due process clause of the fourteenth amendment, which prohibits the states from depriving any person from life, liberty, or property without due process of the law; and (2) the fifth amendment, which protects people from the use of compelled confessions in trials against them.
Due Process Clause Analysis
“Due process of the law” is a procedural safety net set by the Constitution. It ensures that the “process” or procedures used in trial are fair. In 1973, the U.S. Supreme Court in Scneckloth v. Bustamonte, held that the due process clause requires that a defendant’s confession be truly voluntary. Due process is offended if a court, after examining all the circumstances, finds that a confession was made when the “defendant’s will was overborne.” In making its determination, courts, will consider a variety of factors surrounding a confession, including the defendant’s age, his education, his intelligence, the length of detention, and the repeated and prolonged nature of questioning. A confession that violates the due process clause can’t be used as evidence in a trial.
Under this analysis, the court in Mr. Misskelley’s murder trial erred, big time.
To start, Mr. Misskelley was only 17 years old when the murders were committed. He has an IQ score of 72 and psychological tests found that he operates roughly on the level of a third grader.
Further, when the police approached Mr. Misskelley they offered him a $35,000 reward for information about the murders. Not understanding that he could refuse, Mr. Misskelley agreed to accompany police to the station for questioning without his father or a lawyer. His interview began around 10:00 a.m. and continued until after 5:00 p.m. At the start of the interview, Mr. Misskelley told the officers that he knew nothing about the crime, and that he’d been in another part of the state for a wrestling match when the crime was committed.
But the police continued asking questions. During the many hours of interrogation, Mr. Misskelley provided factually inaccurate information, but police followed up, again and again, leading Mr. Misskelley where they wanted him to go. Once Mr. Misskelley said that he had committed the murders, for example, he told the police that they’d occurred at 9:00 a.m. With prodding from police officers who told him young the boys had been in school that day, he changed the time to 12:00 p.m. – and then to 5:00 or 6:00 p.m. when an officer informed him that the murders would have been committed later in the day, when it was nearly dark. There were many misstatements of what had actually happened, some that the police corrected, and some that they did not.
Shockingly, none of the inaccuracies seem to have given the police pause to doubt Mr. Misskelley’s statements.
As explained by an article in the State Bar of Michigan Disabilities Project Newsletter, the desire to please and overly trusting natures of retarded and developmentally disabled people often disadvantage them in interrogation settings.
In an effort to please those in authoritative roles, a defendant like Mr. Misskelley will often agree that something happened when it actually didn’t. In fact, the “confession” offered by defendants like Mr. Misskelley is usually the defendant’s repetition of statements made by the police, rather than the defendant’s own version of events. In a 1997 interview with the “Paradise Lost” filmmakers, Mr. Misskelley stated that he gave the police the answers they wanted so that they would stop questioning him and he could go home.
During his trial, an interviewing officer admitted to showing Mr. Misskelley photographs of the dead second-graders immediately prior to his confession. When asked about this tactic, the officer said it was because Mr. Misskelley was not talking, so “those techniques [were] used to invoke a response.”
The use of this tactic on a borderline retarded juvenile, after several hours of repeated, suggestive questioning at the police station, makes it clear that Mr. Misskelley’s confession was not voluntary in the legal sense of the word. He was merely repeating statements made by police and giving answers so that he could go home. Little did he know that these answers would keep him from home for more than 18 years. His confession was the product of coercive police tactics that offend the judicial process to this day.
We will continue with a fifth amendment analysis tomorrow, in Part II of this investigation.
And see here for an A-Z list of the travesty to justice experienced by the WM3.