A DISCUSSION OF LAW AND JOURNALISM

Revisiting a (Terribly) Wrongful Confession

Misskelley

 

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.  

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.

Comments

31 Comments »

31 Responses

  1. Lethalstorm says:

    Just once I would like to read an article about this case by a journalist that actually knows the facts. No mention of Jessie Misskelley Sr. going to get Jessie Misskelley Jr. for the police to question, indicating he knew where his son was.

    No mention of the miranda waiver Jessie signed.

    No mention of the subsequent 5 other confessions, even after he was convicted. One with his lawyer pleading with him not to. I suppose that one was coerced by police, too.

  2. Perry Jacobs says:

    @lethalstorm — sounds like you have a lethal storm swirling around your head. If you really believed what you said you should state your real name on the internet instead of just writing twisted versions of the facts.

  3. Lethalstorm says:

    http://nylssites.wpengine.com/lasisblog/2012/02/16/spelled-out-an-a-z-list-of-the-west-memphis-three/

    That story is filled with inaccuracies and misinformation as well. I will give the journalist credit for sitting through all three Paradise Lost films, though.

  4. I’m simply astounded that there are still people out there who believe the WM3 are guilty.

    They cite “Jessie’s multiple statements!!!!!” Um, take the time and actually READ THEM. They are ridiculous at best – they’re online at http://www.dpdlaw.com/jmstatements.htm . Only someone with an IQ lower than Jessie’s could possibly cite these as a basis to believe in guilt. All of them are internally inconsistent and don’t align with ANY of the physical evidence – not one piece.

    They cite Damien’s psych issues, as if this substituted for evidence. There was not a single hair, fingerprint, footprint, drop of blood, or strand of DNA that linked back to the WM3. In spite of Damien having shoulder length black hair and always wearing Army boots, which leave a somewhat distinctive print.

    Asserting that the WM3 are guilty does nothing more than make one look foolish and ignorant.

    Even the victims’ families (with the exception of the Moores, who refused to meet with the investigators in 2007) have seen the truth. The WM3 aren’t guilty. Hobbs most probably is.

  5. Lethalstorm says:

    @Fishmonger Dave When in either of my posts did I mention my belief in their guilt or innocence? Just sick of the misinformation being spread by individuals such as Chelsea Silverstein and yourself.

  6. Undine says:

    @lethalstorm — Even if he had signed a waiver of his Miranda rights, the guy had an IQ of a 3rd grader (at best — other psychologists put it as closer to 1st grade). What kind waiver is that? And there was a $35,000 reward for finding the murderers. That’s why the Misskelley’s thought it would be good to talk to the police. But the dad wasn’t there when his MINOR, MENTALLY CHALLENGED son was asked questions. You didn’t have to say anything about your belief in the WM3’s guilt or innocence. Your tone and refusal to see the facts in the light of day says it all. Shame on you.

  7. Lethalstorm says:

    @Undine Right. I tried to present the facts from callahan8k.com and was modded as spam.

    Try and understand that his father picked him up for the police. This site won’t let me link the proof of that. Also, was Jessie Misskelley Jr. receiving disability for his being mentally challenged? No.

  8. Undine says:

    @lethalstorm
    Are you saying that he wasn’t mentally challenged? Does someone not have a heart condition if he’s not taking heart medicine or being seen by a cardiologist?

  9. Lethalstorm says:

    It’s the bible confession that turns the tables.

    Was it a “false” confession? Maybe, but I don’t know. Do you?

    What was Jessie’s motivation to tell that story over and over again with such conviction? Did he recant the later confessions? Direct me to links of Jessie’s recanting of the bible confession, please — not being a wise guy, I really want to learn more.

    I guess we’d have to ask Jessie.

    I know people will say that Jessie doesn’t have the mental capacity to answer questions about his later confessions, but I really feel that he’s hurting the cause by not speaking out. Maybe he’s embarrassed about being tricked into the confessions and that’s why he’s acting evasive.

    However, I guarantee you that if Jessie wanted a lifetime pass to Wrestlemania-monter-truck-rally-5000 — and all it required was a 2000-word essay on “who is your favorite wrestler and/or monster truck?” Jessie would be able to knock out those 2000 words in an afternoon.

    It’s all about motivation.

  10. Undine says:

    @lethalstorm Is your real name Gary Gitchell?

    And nobody ever said Jesse doesn’t have 2000 words in him. And his confession came after he was steered into it. The tapes show that and the tapes are only the end of the questioning. I think it’s clear the poor guy is embarrassed he was tricked.

    I don’t even know what you’re going on and on about.

    He didn’t know when the murders happened, he said things that weren’t true, and he implicated the guys the police wanted him to and asked about.

    THERE IS NO DNA EVIDENCE CONNECTING ANY OF THE WM3 TO THE CRIME.

    THERE IS DNA EVIDENCE OF SOMEONE WHO IS NOT THE WM3 AND WASN’T ONE OF THE VICTIMS.

    THAT PERSON IS STILL OUT THERE.

  11. Lethalstorm says:

    18 years, more than 10 million dollars spent to prove their innocence and they could not.

  12. Undine says:

    @lethalstorm They weren’t given the chance.Would you blame the “witches” burned at the stake in Salem for not being able to prove that they were innocent? Come to think of it, you probably would.

  13. matrix1372000 says:

    @lethalstorm: Do you understand the historical implication of confessions? The reason that we have them? Confessions have been deemed one of the most reliable pieces of evidence that the government can obtain — BUT ONLY IF THEY ARE “TRUE” as a voluntary product, and one of self reservation. A false confession is product of manipulation and coercion. This is all about psychological decision making in light of the facts. This case has nothing to do with “motivation”

    The entire reason our criminal justice system is skeptic of confessions is because of police tactics just like this. Its the reason the Miranda doctrine came down — to prevent police from interrogating suspects in police environments where they are susceptible to coercion the most. For you to place emphasis on Jessie’s confession, under the totality of the circumstances, given all of the facts (including the one’s favorable to your argument) completely ignores the other facts in this case. And makes your argument VERY weak.

    Do you know why people confess? Because psychologically, people are susceptible to coercion. Especially if your a 17 year old, with mental deficiencies, in a room full of police officers who are eliciting questions to the 17 year old in form basically allows police to hear what they want. That’s just ONE of the many injustices that occurred to these poor kids.

    In addition, a case came down from the Supreme Court this year. You should read it. JBL v. North Carolina. Its about how minors are more susceptible to coercion in an interrogation even OUTSIDE of the police environment. Perhaps you should do more fact searching, and not assume Jesse would have a different “motivation” to answer questions related to wresting and monster trucks — an entirely different context than an interrogation for murder.

    Also, not the smartest move to attack Chelsea Silverstein who happened to put together a well written article, from a legal perspective, and based on credible information.

  14. Lethalstorm says:

    If by well written you mean omitted facts and information to support the story one has created, then sure. No mention of the bible confession as it is commonly known, where Jessie Misskelley Jr. confessed to his attorney Daniel Stidham who was pleading with him not to.

    Thankfully there is http://www.callahan8k.com where people who truly want to learn about this case can go, as opposed to watching PL 1, 2, and 3 and articles like this.

  15. Avery Wilson says:

    Reading through this thread, I had to laugh at @Undine’s question @lethalstorm was really Gary Gitchell — the unscrupulous prosecutor in the case.
    It’s the only way someone would be clinging to the twisted version of reality and facts that @lethalstorm is doing here.

  16. Lethalstorm says:

    @Avery Wilson Plenty of people are “clinging” to the actual facts, although they don’t have the money of, say, Peter Jackson to throw around. It hasn’t accomplished much as far as their claims of innocence though. Pulling everything out of walls, swimming pools, backyards and vehicles and spending $10M has NOT produced a single piece of evidence pointing to an alternative suspect or suspects, or presented a single piece of exculpatory evidence against these 3.

    I’m sorry if you and others choose to ignore that. Anyway, shouldn’t you be on the wm3 amazon wishlist page buying Jason’s Xbox 360 games for him?

  17. Lethalstorm says:

    callahan8k.com Don’t let a few biased mockumentaries and celebrities give you your opinion. Research the facts and make your own.

  18. Magick Trick says:

    DNA from a victim’s parent, that could easily be transferred DNA, hardly makes a case either. And Gitchell wasn’t the prosecutor — Avery, you should get some facts yourself.

    This entire story is a fairy tale. Believe they are innocent if you will, but rewriting the facts hardly gives credence to your points.

  19. Avery Wilson says:

    @magick trick: ha ha — you’re right. I meant to say Gitchell was the lead investigator — he just ACTED LIKE HE WAS THE PROSECUTOR!!! Even worse.

  20. Lethalstorm says:

    From the Misskelley trial, testimony of Dr. William Wilkins, expert witness for the defense:

    DAVIS: So let—knew the difference between right and wrong?

    WILKINS: Yes.

    DAVIS: And he had the ability to form his conduct to that required by the law at the time of this incident?

    WILKINS: Yes.

    DAVIS: And he wasn’t mentally retarded?

    WILKINS: No.

    DAVIS: And in fact on his previous IQ tests he had an average performance level?

    WILKINS: Yes.

    http://www.callahan.8k.com/wm3/wwilkins2.html

  21. Lethalstorm says:

    No mention of Jessie Misskelley’s previous IQ test score of 88. No mention of Misskelley’s malingering index which strongly indicated he was faking to aid in his defense. These aren’t opinions, they are the documented results of his testing.

    The fact is Jessie Misskelley isn’t retarded- even when he TRIED to be.

  22. Lethalstorm says:

    Not understanding that he could refuse, Mr. Misskelley agreed to accompany police to the station for questioning without his father or a lawyer.

    9:45am: Allen went to Jim’s repair and met with Jessie Sr who went and picked up Jessie Misskelley Jr. Jessie Misskelley Jr then went with Detective Sgt Allen to the West Memphis Police Department.
    11:00am: Detective Sgt Allen read Jessie Misskelley Jr his rights according to the Miranda Rule with Detective Ridge being a witness to the procedure. It was determined that it would be necessary for Misskelley Sr to sign a consent to allow Jessie Jr. to submit to a polygraph examination.
    11:15am: Detective Sgt Allen went with Jessie Misskelley Jr to find his father to obtain consent to take a polygraph examination. Sgt. Allen had Jessie riding as a unsecured passenger in the front seat at which time he met Jessie at or near Missouri Street and Shopping Way. Sgt. Allen met with Jessie Misskelley Sr at Chief’s Auto Parts where he explained the upcoming procedure and obtained a written consent for Jessie Misskelley Jr to take a polygraph examination.
    http://callahan.8k.com/wm3/jmtl.html

    Not only is this article factually inaccurate, it was poorly researched.

  23. Lethalstorm says:

    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.

    An alibi that was proven to be false over the course of Misskelley’s trial:

    DAVIS: And you’ve indicated that you previously gave a statement to police, right?

    REVELLE: Yes sir.

    DAVIS: And in fact, you sought out the police to tell them that you knew for certain that Jessie Misskelley was with you on the fifth. Isn’t that right?

    REVELLE: Yes sir.

    DAVIS: Ok. And you told police, you told Mr. Stone, you told everybody on June ninth “The reason I remember it was the fifth is because that’s the night we paid $300 dollars” right? That’s what you told them?

    REVELLE: Yes sir, that’s what I’d said.

    DAVIS: Ok. I wanna show you a receipt. (HANDING) And does that receipt have your name at the top?

    REVELLE: (EXAMINING) Yes sir.

    DAVIS: Ok. You’re Fred Revelle, right?

    REVELLE: Yes sir.

    DAVIS: Ok, and does that receipt reflect that you paid Charles Stone $300 dollars?

    REVELLE: Yes sir.

    DAVIS: Ok, and what date does that receipt show?

    REVELLE: April 27th.

    Shockingly, none of the inaccuracies seem to have given the police pause to doubt Mr. Misskelley’s statements.

    Shockingly, all of these inaccuracies should give readers pause to doubt this misleading article.

  24. Lethalstorm says:

    Transcript of Fred Revelle’s testimony:
    http://callahan.8k.com/wm3/frevelle.html/

  25. Avery Wilson says:

    Lethal Storm: get a life. None of your “inaccuracies” are in fact, inaccuracies. You have people who’ve recanted their testimony. Liars. Scared of police. You’re wildl wrong. And nothing you said changes the fact that Misskelley just wanted to go home.

  26. Lethalstorm says:

    @Avery Wislon You need to do better than that. The testimony I posted was from a DEFENSE witness. Misskelley’s own expert witness on the stand said he is not retarded.

    What you’re doing is standard supporter response when the real facts about this case are brought to light. You deflect. You lie. You bring up other details that have nothing to do with the matter at hand.

    Misskelley wanted to go home. Sure. He should have thought about that before he helped kill Chris Byers, Stevie Branch, and Michael Moore. Because nothing you say changes the fact that Misskelley, Echols, and Baldwin were tried and convicted of those murders, then pled Guilty to the same charges.

  27. Avery Wilson says:

    GOTCHA, you weasellly Lethal Storm.

    You wrote on Feb 24 on this very site “When in either of my posts did I say anything about guilt or innocence?” as though you were just looking into the facts and didn’t have an opinion of what happened.

    With your last post, you showed yourself to be a true believer in the guild of the WM3. My guess is you’re one of the people involved in investigating or prosecuting the case.

    Your arguments and facts are truly pathetic and twisted. I feel sorry for you.

  28. Lethalstorm says:

    @Avery Wilson You say my facts are twisted yet provide no documented proof to dispute them.

    You are also an idiot. I was accused of being a non. I was never asked if I believed them to be guilty or innocent.

    Like all supporters you cannot handle the true facts in this case. You and your ilk are the only ones twisting facts and trying to rewrite the history of it.

    For anyone interested in the truth, educate yourself. Don’t let the media and celebrities do it for you.

    http://callahan.8k.com/

  29. skates says:

    Lethalstorm sinks to a new low level by stating that Misskelley had a previous IQ score of 88. This is absolutely false. 88 was a subscore. His full scale scores for the two administrations of the test were 73 and 72, as the article states. Why tell the truth when it’s so easy to lie and allow 3 innocent men to serve the time that another should be serving.

  30. Veronica says:

    I have read all the info on callahan.8k.com and a couple of other web sites and watched all documentaries. I have read almost every piece of information on the case and I can’t say for sure whether the WM3 are innocent or guilty. What I can say is the West Memphis PD, Judge Burnett and the prosecutors are a joke. The fact that the killers are walking around free whether it be the WM3, Terry Hobbs or whom ever else is solely their fault. They failed Chris, Stevie and Michael. West Memphis PD was not qualified to handle this type of investigation and refused help. Judge Burnett was biased from the very beginning and still is. Bottom line:
    There is no evidence showing the WM3 are guilty. Jessie Miskelley confessed the first time for a shot at the reward money and confessed the other times for a shot a reduced sentence before he actually wised up. It is what it is. I think the whole “retarted” thing is a little played out already. Unfortunately it is a little too late for justice for these precious TRUE victims (the children). I think it is time to let them rest in peace and let the kharma police handle the cold blooded killers.

  31. Veronica says:

    I would also like to add that exhibit 500 is not sufficient proof that Damien is a killer. Yes he had mental issues and a little arrogant but why does that make him a killer. If you read everything else he went through in his childhood it’s no wonder he rebelled. What child, teenager deals with moving around a lot, an abusive stepfather and father and a mother who just rules it out as “my kid is crazy he needs meds” well. All other so called evidence (he was seen walking by the service road muddy, he stomped a sick dog, Jessie’s false confessions) is nothing more than a pitiful attempt by what can possibly be the worst police department in the country to close their most high profile case ASAP. If a confession like Jessie’s is enough to deem the WM3 guilty then by those same standards the Black Dahlia case and The Keddie Murders would have also been solved. I would like to end this by saying anyone who can say the evidence against the WM3 proves guilt but any evidence against Terry Hobbs (I say him because he is the only alternative suspect there is currently tangible evidence against) is a bogus attempt by high profile supporters to get child killers off with murder is definitely being biased about this horrible incident. If there is one thing we all owe these three precious children who lost their lives it is to treat all information in an unbiased manner so that the truth can finally be exposed without any doubts and they can finally rest in peace. Poor babies.

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