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WM3 attorney Dan Stidham: on DNA, appeals, and possible 'domino effect'
This interview was conducted by email Nov. 29, 2006:
ML: You had young sons of your own and a young law practice when you were asked to represent Jessie Misskelley, Jr. How were you brought into the case and how did it effect your personal and professional life, both in the early days and in the years since?
DS: My oldest son was 8 years old in 1993, the exact same age as the victims, Michael Moore, Stevie Branch and Chris Byers. My youngest son just turned 10 a few months ago. Having young children from the time of the trials until now has made my involvement in the case a little more difficult.
There were lawyers that had approached the court and volunteered to represent Damien Echols and Jason Baldwin. I did not seek the appointment in any way. Apparently no one volunteered to represent Jessie Misskelley. It may have been due to the confession, but I am not sure about this. As it turned out, Judge David Goodson, who was from Paragould, my hometown, just happened to be on the bench in West Memphis the day that the three defendants were brought before the court for their first appearances. He had the task of appointing lawyers for each of the defendants because the local public defender in Crittenden County advised the court that he had a conflict of interest with the case. I found out years later that his “conflict” was that he was a Christian and could not represent a “devil worshiper.”
Judge Goodson called me at home early that morning and asked me if I would be willing to take on the task. My initial reaction was “no,” but I was intrigued just enough to ask the judge if I could have a few minutes to think it over and discuss it with Greg Crow, my law partner, at the time. He only gave me a few minutes to decide, and when I could not find Mr. Crow, I had to make the call on my own. I asked my Wife, Kim, what she thought about the situation. I was surprised when she told me I should do it, so I called the judge back in Marion, and accepted the appointment.
It would be an understatement to say that the whole experience of the case turned my world upside down. The many challenges that I faced, of course, were and still are, pale in comparison to the suffering that the six families of the victims and the defendants have endured. My family made a lot of sacrifices, and put up with my absence on many occasions, including holidays, birthdays, ball games, etc. due to the many years of investigation and appeals. My oldest son asked me once if I loved Jessie Misskelley more than I loved him and his brothers and sisters. That was tough! Through it all, however, they stood beside me and encouraged me to continue the fight.
Initially, the case did create a palpable measure of contempt for Mr. Crow’s and my involvement in it. Our local community really had a hard time initially coming to grips with our involvement in such a gruesome and horrible case. As the real facts of the case began to emerge, however, the public perception of our involvement began to change. In 2000, when I was out campaigning for judge—a part-time judicial position—people here told me they admired me for sticking by my client and for doing what was right. We won the election by a wide margin.
It is no secret that serving as court-appointed counsel for Mr. Misskelley created some financial hardship for Mr. Crow and myself. I worked on this case, and really almost nothing else, for the last six months of 1993 and the first three months of 1994. Eventually, our law practice recovered. Adding insult to injury was the fact that we did not get paid for representing Mr. Misskelley for about two years after the trial was over. In addition, we had more attorney hours in the case than both the other legal teams, and yet we were awarded the lowest fee. It amounted to just $19.00 per hour for each of the 2000 plus hours we had accumulated in the case up through the trial. The Arkansas Supreme Court awarded us a fee for the direct appeal, but I have worked pro bono on the case for the last 10 years.
For years, I worked alone on the case, all the time begging lawyers and forensic experts to assist me. My only real allies at that time were not lawyers or forensic experts, but investigative reporters from the Arkansas Times and HBO. The Arkansas Times stood alone as the only media outlet in the entire state who dared question the verdicts in this case and ask the simple but important question, “Where is the evidence?”
After the release of Paradise Lost on HBO in 1996, the case received a great deal of national and international attention. Lawyers (outstanding lawyers like Ed Mallett from Houston, Texas, and Barry Sheck from New York) began to appear on the scene to assist Damien Echols. I think that this was due in large measure to the fact that Damien Echols is on death row and the need to assist him was far more pressing than with the other two defendants.
Despite persisting begging, I could not find a lawyer in Arkansas, initially, who would agree to volunteer to work on the case on behalf of Jason Baldwin or Jessie Misskelley. I even assisted Jason Baldwin with his appeals because his family could not afford to hire a lawyer to work on his appeal. The time was about to run on one particular aspect of his appeals. Eventually, I was able to persuade two of the best criminal defense lawyers in Arkansas, John Wesley Hall and Jeff Rosenzwieg, to help with the case. Jeff is still involved in the case today.
In all candor, I must say that I didn’t want to be a lawyer any more the day after the Arkansas Supreme Court affirmed Jessie Misskelley’s conviction in 1996. For the first and only time, I actually considered walking away from both the case and my chosen profession. The way that the court refused to address one of our issues on appeal was particularly hard for me to understand. That issue, which would have required an automatic reversal of Mr. Misskelley’s conviction and rendered his entire confession invalid, was not even addressed by the Supreme Court. Instead, the court ruled that the issue had not been raised in a timely fashion even though Mr. Crow and I had raised the very issue in the form of a written motion, and brief, both of which were part of the official record of the case. After licking my wounds for a few days, I decided that this setback would only serve to focus and strengthen my resolve.
The release of Paradise Lost II: Revelations on HBO in the Spring of 2000, brought many changes to the case. On the day after the film aired, I received 1500 emails from all over the world asking how to help. The attention to the case that the film generated resulted in the most profound acts of compassion and generosity that I have ever experienced. In addition to the many thousands of smaller donations to the WM3 legal defense fund, there have been several substantial gifts made by truly “anonymous benefactors” and from some very well known celebrities as well.
Of all people who have come forward and wanted to truly make a difference in this case, and believe there have been many, the one that stands out the most in my mind is Eddie Vedder of Pearl Jam. His contribution to the case does not stand out to me because of any particular dollar figure associated with it—(frankly I don’t know how much, if any, money he has contributed to the case)—instead it stands out to me personally because of his enormous compassion for humanity in general, and justice in particular for the WM3. He is, without a doubt, the most genuine, caring and compassionate person that I have ever met. This is a man who really wants to make a difference in this world, and his list of endeavors goes far beyond helping the WM3.
ML: You took the unusual step of testifying on Jessie’s behalf at his Rule 37 hearing, in which he claimed he had received “ineffective assistance of counsel.” As I recall, the lawyers who represented Damien and Jason did not do that. What, essentially, did you tell the Court in support of Jessie’s appeal?
DS: Actually, Mr. Misskelley’s Rule 37 Petition has not yet been adjudicated by the Court. Neither has Mr. Baldwin’s Rule 37 Petition. I was actually subpoenaed and testified at Mr. Echol’s Rule 37 hearing in Jonesboro.
The primary reason for my being subpoenaed for Echols’ Rule 37 hearing was the unique issue raised by Echols’ lawyers regarding the money paid to the Defendants by HBO. The Echols team argued that the arrangement adversely affected the outcome of the Echols/Baldwin trial. I was subpoenaed to bring attention to the fact that I had handled that issue differently than did Echols and Baldwin’s lawyers. I felt that it was improper for me to be involved in any negotiations with HBO back in 1993, so I helped the Misskelleys retain separate counsel to deal with that issue. I don’t want to create any misconceptions about this issue. Ultimately, some of the money from HBO was used to hire experts, etc. for the Misskelley defense, just like in the Echols/Baldwin trials. The only difference was that I didn’t negotiate with HBO.
Val Price, one of two lawyers who represented Damien Echols at trial, was called to testify at Echols’s Rule 37 hearing. I anticipate that I will be called as witness by counsel for both Baldwin and Misskelley when their petitions are heard. My belief is that the court is waiting to see the results of the current DNA testing before ruling on these petitions.
ML: Is it generally the rule in the United States that claims of ineffective assistance of counsel are heard by the trial judge, or is Arkansas unique in this?
DS: I am only familiar with the rule in Arkansas, but I am told that it is somewhat unusual. The rationale employed by Arkansas courts on this particular issue is that the trial judge who presided over the actual trial is in a superior position to judge the effectiveness of trial counsel, which is the primary issue in a Rule 37 proceeding. The trial judge’s ruling is then reviewed by the appellate court.
ML: You’ve told me that certain rulings in Jessie’s case illustrate some concerns you have about the treatment of juveniles under Arkansas law, especially when the juveniles have been charged as adults. Can you explain some of those concerns?
DS: My concern about the law with regard to juveniles being tried as adults in the Misskelley case was centered around the fact that under the juvenile code in 1993, no juvenile in Arkansas could waive their “Miranda” rights without a parent also being present and signing off on the waiver. This did not occur in this case. Since Mr. Misskelley was 17 at the time of the alleged crimes, we argued that his confession should be inadmissible because the police did not get a Miranda waiver from Misskelley’s father.
The Arkansas Supreme Court ruled that since Mr. Misskelley was charged by the state as an “adult,” the juvenile code did not apply, thereby making his status as a juvenile inconsequential. Interestingly, had Misskelley been charged as a juvenile, with some lesser crime, he would have been entitled to the same “protections” afforded to other 17-year-olds, and his confession would have been “tossed out.” Since the confession was the only evidence offered against Misskelley at trial, the case would have been over before it started.
We argued, unsuccessfully of course, that this was a violation of the “equal protection clause” of the U.S. Constitution. The issue, in a nutshell, is: shouldn’t the level of constitutional safeguards for a child be the same, or greater, if that child is facing a serious punishment, or even the ultimate punishment, the death penalty? It seems to me that any juvenile should have the benefit of having their parent present under such dire circumstances. No parent would want their child questioned by police for any crime, much less one where the death penalty could be imposed, without the benefit of them being present and assisting the child with making a decision such as this.
The way the court applied the rule, the parent would have a right to be present and sign the waiver if the child had thrown a rock through someone’s window, but not if they were being questioned about a “serious” crime like murder. It’s not like the police didn’t know what they were wanting to talk to Misskelley about, it was a murder case. They didn’t follow the rule, but the court held that it didn’t matter since Misskelley was charged as an “adult” instead of as “juvenile.” This rule seems even less logical when you consider how and when every prosecutor determines whether or not to file a case in juvenile court. If the prosecutor knows that any confession in the case is going to ruled inadmissible if the case if filed in juvenile court, do you think that he or she will filed it there knowing that he/she will lose the case? No way!
When you add the fact that Misskelley was not only a juvenile, but he was mentally handicapped as well, the unfairness of the situation becomes even more apparent.
ML: Six years ago this month you filed a motion with Judge David Burnett seeking additional testing of evidence in Jessie’s case. Please outline the legal process that followed and tell us where the DNA testing stands now.
DS: Back in 1993, DNA technology was in it’s infancy. It now has evolved into a much more definite process and new DNA technology has overturned many wrongful convictions in this country and prevented many more from talking place in the first place. As I recall, I filed that motion prior to the Arkansas Legislature passing the relatively new DNA testing act that allows prisoners to conduct DNA analysis of evidence in their case. The motion was amended to include the procedures and protections that were incorporated into the DNA statute.
After the initial motion and amended motion were filed with the court, the new lawyers involved in the case took over the process of negotiating with the prosecution and establishing the proper protocol for getting certain items of evidence tested at an approved DNA testing facility. This process of negotiating and entering into an agreed order to accomplish the testing itself has taken a tremendously long period of time. It is taking even longer to complete the testing.
Despite the fact that this is a very complicated issue, I have been extremely frustrated at the length of time this all has taken. Unfortunately, I am not at liberty to discuss the exact details and the exact status of the DNA testing, but I can say that I think that we are getting very close to the end of the process. I am extremely hopeful about the outcome of this DNA testing and I continue to hope, and pray, that it will assist us in establishing the innocence of the three convicted defendants and bring the real killer, or killers to justice.
ML: I know you’ve spoken to law groups about this case. What is the general reaction of those audiences? What questions do you hear most often?
DS: I began speaking about the case at bar association and trial lawyers functions almost immediately after the trials were over. Over the years, I have spoken to other professional groups, including criminal profilers and forensic specialists. I also get invited to speak about the WM3 case on college campuses. I really love to do this as it gives me a unique opportunity to discuss a case that, in many ways, has become an icon for injustice in America.
The question that I hear most is, “How could this have happened in America?” Audiences from outside the state (including lawyers, forensic experts, academics and students), are just absolutely stunned at the lack of any real, or physical, evidence against Baldwin and Echols, and the fact that a man could be on death row based on such evidence. They incorrectly assume that this kind of thing could only happen in Arkansas, or some other place in the “south.” I take them through other examples of similar miscarriage of justice cases in places like California (the McMartin pre-school case) and New York (the Central Park jogger case) and they begin to realize that this kind of thing can—and does—happen everywhere.
In the beginning, it seemed that I would only get invited to speak outside of Arkansas. This began to change, however, with the release of your book, Devil’s Knot. Suddenly, people from Arkansas began to get informed and very interested in the case. They were also very stunned at the facts of the case that were not reported in the media during the trials or that could not be compacted into the format of a 2 ½ hour HBO documentary.
Shortly after the [2002] release of Devil’s Knot, which by the way, is unquestionably the authoritative reference source on the WM3 case, I was invited to speak at the “Equal Justice Works Symposium on Wrongful Convictions” at my alma mater, the University of Arkansas School of Law in Fayetteville. This was both an honor, and a milestone, in that it was the first time that I had been invited to speak about the “WM3” case in the state of Arkansas at an event where the case was overtly focused on as a “wrongful conviction.” I had the honor of serving as a panelist with Attorney J. Gordon Clooney of Philadelphia, who has successfully exonerated a wrongfully accused man on death row in Louisiana, and Court TV host and commentator, James Curtis.
The two most recent lectures that I have given were right here in Arkansas and were before two of the largest crowds that I have spoken to. The first was earlier this year at the University of Central Arkansas in Conway and the latest was last week at Arkansas Tech University in Russellville. In addition to an overview of the case, I also speak about specific issues like “satanic panic,” false confessions and criminal profiling techniques.
ML: Because of Damien’s death sentence, much of the post-trial legal effort has centered on his case. Some of us have presumed that rulings that affect him might also affect the prospects of Jason and Jessie. Is that a valid assumption?
DS: I think that a “domino effect” could be likely should Echols be granted a new trial. The one issue that might not be included in this effect, of course, would be the confession issue since it only relates technically to Mr. Misskelley. It is conceivable that Mr. Baldwin and Mr. Echols could receive new trials and that Mr. Misskelley’s conviction might stand independently due to his so-called confession. The confession issue is unique to the Misskelley case although it is now clear that the Echols/Baldwin jurors considered the Misskelley confession even though it was inadmissible in their trial and they were instructed by the court not to consider it in their deliberations. We know this because the jury had listed the Misskelley confession as the #1 reason to convict Echols and Baldwin in their notes which appeared in the jury room after the trial.
ML: Please explain the status of all appeals at this moment.
DS: Other than the DNA testing issues, Damien Echols has exhausted his state appeals and is now in federal court on what is considered his final “stage” of appeals. While there are other ways that he could try and mount collateral attacks on his conviction, he is essentially down to the last appeal in Federal District Court.
Misskelley and Baldwin still have not exhausted their state appeals as they both have their Rule 37 Petitions still pending before Judge David Burnett. These include the ineffective assistance of counsel claims that Echols has already litigated. They have the beneft of being able to have whatever results we get from any of the DNA testing currently in progress prior to exhausting the last of their state appeals, and as such, are in a better position procedurally than Echols. Assuming that their last state appeals are unsuccessful, they, too, would move on to their “one shot” final appeal in federal court.
ML: You recently described your current role as mainly that of “cheerleader.” What can you tell us about the legal teams that are now in place? What can we expect from them in the months ahead?
DS: This is a hard issue for people to understand due to the way our system of justice is set up and the rather unique qualities of this particular case. Because I obviously cannot present my own “ineffectiveness of counsel” arguments on behalf of Mr. Misskelley to Judge Burnett, other lawyers have to represent Mr. Misskelley on this issue. This is why I have been trying to recruit other lawyers to represent Mr. Misskelley for a number of years so that this claim can be presented to the Court.
Because of this, and the adversarial nature of our criminal justice system, I am disqualified from being a part of the “Misskelley Defense team” when it comes to presenting evidence of my own “ineffectiveness” to the Court. I know this is a complicated issue, but I really am incapable of explaining it any better.
Yes, it is true that I am no longer “counsel of record” because of the issues set forth above. I cannot be. I am, however, counsel of “origin” so to speak, and have been on the ground since day one back in 1993. I made a promise to Jessie Misskelley almost 14 years ago that I would fight for him as long as it takes, and I have every intention of keeping that promise so long as I am not conflicted out of any particular issue on appeal, and so long as I continue to have the confidence of the Misskelley family and the consent of the other lawyers involved.
Over the years, I have seen several lawyers come and go in this case. I can tell you without any hesitation whatsoever, that Mr. Misskelley, Mr. Baldwin, and Mr. Echols are quite fortunate to have the caliber of legal talent working for them that is currently in place. These are the brightest and most qualified lawyers that I have ever encountered. While I haven’t had the pleasure of meeting Mr. Echol’s new lawyer, Dennis Riordan, he enjoys a fantastic reputation. I can’t say enough about attorney John Phillipsborn, from San Francisco, who is now representing Jason Baldwin. I consider him to be one of the very best criminal defense lawyers in the entire country. I have watched as his leadership has brought together an amazing team of lawyers and forensic experts from around the country to work on this case, including Attorney Michael Burt, from Los Angeles, who is now lead attorney for Mr. Misskelley.
ML: Is there anything you’d like to add? Any confusion you’ve encountered with regard to this case that you’d like to clear up? Any word about Jessie’s outlook–and your own–you’d like to pass along?
DS: I would just ask that everyone continue to pray for justice in this case. Not just simply justice for the WM3, but justice for these innocent victims and their families, who deserve so much more than what they received by way of a meaningful investigation into these horrible crimes.
I would also ask everyone to remember that this miscarriage of justice occurred because of intolerance and fear. Now that we know that there is no such thing as “satanic ritualistic homicide” and that “false confessions” are real and do happen, maybe we can work together to avoid tragedies like this from ever happening again.
To read Stidham’s analysis of the murder investigation and trials, go to Synopsis of the Case at WM3.org.
