By Halina Schiffman-Shilo

“Our children are going to pay for our joyride.”

That was Robert F. Kennedy, Jr. in 2005, speaking about the coal industry’s destruction of West Virginia. Coal has made a few titans very rich, but it’s left many, many more Americans impoverished and sick, and our environment in shambles.

If you’ve never been to West Virginia, let me describe it for you: It’s breathtaking. From the rolling green Appalachian Mountains to valleys with rushing clear cascades and sheer rock outcroppings, it’s an outdoor enthusiast’s dream. It is also the setting of a powerful film about the coal industry. Released in 2011, ”The Last Mountain” is a skillfully-crafted documentary chockfull of sexy and politically divisive topics, ranging from big industry to corporate responsibility, and environmental damage to government regulation, just to name a few. Largely filmed in Coal River Valley, a region of southern West Virginia endowed with natural beauty, biodiversity, and coal, Mountain tells the story of how the mighty coal industry is systematically and mercilessly destroying communities across West Virginia. What it reveals is shocking.

Through the film, we meet a cast of players at the forefront of the fight against the coal industry. A motley crew of environmental lawyers, community members, and a group of scrappy activists engaged in some righteous civil disobedience (in treetops!) have banded together to stop mountaintop coal removal and take on Massey Energy, a coal conglomerate recently bought out by Alpha Natural Resources.

Though streaming on Netflix and Amazon, the film is currently unavailable on television or in the theatres; I was fortunate to see it at a private screening. So for those of you who can’t see it, here’s the story.   Read more »

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 Meghan Lalonde

West Memphis, 1993: Three eight-year-old boys brutally murdered in small-town Arkansas. Three satanic teenage “punks” to blame it on. When looking for suspects, these teenagers fit the bill – long hair, heavy metal fans, all dressed in black. There was even a confession. The story caught the attention of two HBO filmmakers, who decided to make a documentary about the horrible crime that traumatized the community.

The film that introduced the world to defendants Damien Echols, Jason Baldwin, and Jessie Misskelley – the West Memphis Three (WM3) – wasn’t supposed to be about wrongful convictions. It wasn’t supposed to be a project that led to two additional films over the next 18 years. It just turned out that way.

Last month, HBO premiered the third and final chapter of the documentary, “Paradise Lost 3: Purgatory.” I’d heard about it and thought it seemed interesting so on a rainy Friday afternoon I turned on the TV to give the first one a shot. Six hours, two sandwiches, and a full liter of Diet Coke later, I’d watched all three films, and I was reeling.

Searching for order in all the disorder, I’ve boiled it down to an A to Z list of some of the haunting and perplexing aspects about this terrible miscarriage of justice. There will be no “Spoiler Alert” here. Google the film and you’ll see that the three convicted murderers are free, released in August 2011 after entering into Alford Pleas (see “P” below). As with so many epic stories, knowing the ending doesn’t minimize the gripping nature of the journey.

Alternative suspects. One of the many critical shortcomings of the West Memphis Police Department was failing to search for leads on additional suspects. First, police never investigated Terry Hobbs, the stepfather of one victim with a history of violence. Mr. Hobbs claimed he hadn’t seen the children the day they went missing, but his neighbors are certain they saw him with the kids after school, around the time they were last seen. In 1993, these neighbors were never questioned. Police also botched the investigation of an unidentified black man who was seen at a local restaurant covered in mud and blood on the evening of the murders. They collected blood samples from inside the restaurant, then lost the evidence.

Blood. When the bodies of the three boys were discovered in a stream they were found naked, hogtied, stabbed, and mutilated. The prosecution argued that the murders occurred near where the bodies were found, but if that were true, wouldn’t there have been blood found at the scene? There wasn’t. Not even a drop. The use of a knife and ritual bloodletting thought to be part of satanic rituals were integral to the prosecution’s theory against the WM3 and yet there wasn’t any blood to be found. Recent forensic analysis has explained that the scratches and skin flaying of the victims were actually due to animal predation.

Celebrity support. Celebrities figured among thousands of supporters who learned about the WM3 from the first film. In 2010, Johnny Depp and Eddie Vedder hosted a benefit concert in their support. When the WM3 were released in August, Damien Echols, the defendant who had spent 18 years on death row, said he wanted to go to Disneyland. Mr. Depp made it happen.   Read more »

By Mercedes Hobson

On October 15, the sons of Ethel and Julius Rosenberg (Robert and Michael Meeropol) took part, for the first time ever, in a screening and discussion of the 1983 film Daniel, a movie inspired by their parents’ infamous trial, and ultimate electric chair execution, for conspiracy to commit espionage.

This screening and panel discussion was part of Fordham Law School’s sixth annual Forum on Law, Culture, and Society, hosted by Fordham Law professor Thane Rosenbaum. Joining the brothers and Professor Rosenbaum on the panel was New York Times columnist Clyde Haberman.

I was not at all prepared for the extraordinary emotions the event would evoke in the audience and in me. Upon walking in that evening I noticed that, as an under-30 law student, I was in the minority. Most of the crowd appeared to be of retirement age, with a sea of salt and peppered hair filling the auditorium, and the few individuals appearing to be in my age group were those either accompanying older attendees or working as staff for the festival. During the film’s execution scene, I heard sobs and then noticed that nearly the entire audience was trying, unsuccessfully, to stifle their tears.

During the discussion, I understood why. These were all individuals who had grown up during the Rosenberg Trial and had personal connections to the events that took place.   Read more »