The West Memphis 3, The Death Penalty, And What Juries Get To See And Hear

West Memphis Three.jpgThe other night I watched “Paradise Lost: The Child Murders At Robin Hood Hill.” I was spurred to watch the movie by the fact that the three men accused of the horrific murders were released on August 19, after winning the right to a new trial on appeal, and by the fact that the “Paradise Lost” documentary is critically acclaimed (ranking number twenty-four on this New York Times list of the top documentaries and ranking highly on law professor Alberto Bernabe’s list of the top legal documentaries).
After watching the documentary, I found myself agnostic about the three defendants’ actual guilt or innocence. But what I found most remarkable about the documentary was the fact that the pieces of evidence that I found most telling were from candid moments captured by the ever-present cameras, candid moments of the sort you never see when a witness is giving a formal performance on the witness stand, as well as pieces of evidence which a jury would never get to hear, due to the rules of evidence. The whole documentary made me reflect on what a little glimpse that juries get of the actual facts, of the reality of a situation.
In watching “Paradise Lost,” the most important pieces of “evidence,” from my perspective, were from moments that the jury did not see or hear and, indeed, some pieces of evidence that a judge would never let a jury see or hear. For example, as the jury was out deliberating, the documentary crew captured a scene between Jason Baldwin and his lawyer in which the lawyer asked Baldwin in effect, “Do you think that [co-defendant] Damien Echols could have done it? Do you think he was capable of killing three boys?” Baldwin, Echols’ best friend, equivocated and he said he didn’t know. For me, that was damning. The fact that someone’s best friend would not say that it would be impossible for his friend to carry out such a heinous set of acts, made me doubt the actual innocence of Echols.
Interestingly, a jury would never in a million years get to hear that admission of Baldwin’s. In a criminal case, a defendant can introduce evidence of his good character to show that he never would have committed a crime that he was accused of, but the prosecution cannot do the same: the prosecution cannot use evidence of a defendant’s character to show the defendant had a moral capacity for committing a crime. (By clicking here, you can check out Federal Rule of Evidence 404 (“Character Evidence Generally”); most states have a cognate rule of evidence).
The other pieces of “evidence” that I found most telling in the “Paradise Lost” documentary were the candid moments that the documentary crew spent with witnesses outside the courtroom. For instance, the documentary crew captured John Mark Byers, step-father of one of the victims, on a firing range, acting out fantasies of sadistic revenge against the accused murderers. Later, come trial time, the defense team unearthed some inconsistencies in Byers’ statements to police and used the inconsistencies and other facts to argue that Byers may have been involved in the boys’ murders. They called Byers to the stand, and daringly pointed the finger at him. On the witness stand, Byers presented as a meek and mild-mannered man. But the scene of him on the firing range, articulating exactly what he’d do to the accused murderers if he were to lay his hands on them – the type of candid scene where a witness lets his hair down, the type of scene that a jury never gets to see – made me think strongly that Byers might have been capable of the type of violence involved in the murders.
Perhaps the starkest example of how differently witnesses can act on the stand, when they know they are being watched, compared to their every day life came in an interview with the mother of one of the murdered boys. The woman, prior to an on-the-air news interview being commenced was all-golly-gee-I’m-going-to-be-on-TV. Rather than a bereaved mother, she looked like an excited teeny bopper feverish at the thought of having her face plastered over all of the local television sets. As the camera man counted down, “In 3-2-1,” prior to the news team’s going live, the woman’s demeanor changed completely and she became a bereaved mother. The hyper-perky publicity hound side of her personality was sickening and destructive of her credibility. But it’s something a jury would never get to see: a jury almost always sees only the public face, the mask the witness wears during the public performance of testifying.
While our process gives the jury a picture of reality that is often too small and narrow, it is also prone to errors of showing the jury too much: of allowing jurors to hear evidence that is absolutely misleading and irrelevant. “Paradise Lost” illustrated this tendency perfectly with the “expert” testimony of a correspondence school PhD in the occult who essentially was put in front of the jury to convince them that Ecchols and Baldwin were satanists and therefore murderers. Even in today’s world of Daubert and Kumho Tire, many courts abdicate their role as gatekeepers and let in charlatans as experts, without looking closely at their methodologies. The testimony of such quack experts is unfortunately all-too-common in death penalty cases. The other day the Supreme Court ordered a stay of the execution of African-American death row inmate Duane Buck, based on the fact that a psychological expert, Walter Quijano, was allowed to testify at the sentencing phase of Buck’s trial that black and Hispanic convicts are more dangerous than other convicts.
Our system’s tendency to let dangerously misleading evidence in front of jurors was also on my mind recently, as I read the news of how a suspect in a high-profile violent robbery in Woburn, MA was arrested and identified based on an unusual ankh tattoo sported by the robber. When such evidence of an unusual identifying characteristic is presented to a jury, it is normally very powerful. The jury tends to reason that, if one in a million people has such a peculiar tattoo, the odds of the defendant being the wrong man are one in a million. But in fact, this is a statistical fallacy known as “the prosecutor’s fallacy.” The actual odds of the defendant being the right man based on the tattoo are much lower: they are one in however many people out there have the same tattoo. Nevertheless, I know of no jurisdiction where a defendant can have a judge charge the jury to be wary of this fallacy. The evidence that the jury receives inevitably presents a distorted view of the world.
I came away from “Paradise Lost” nauseated by the murders and uncertain of whether Ecchols or Baldwin were involved. Even considering some of the new DNA evidence that has been unearthed in their cases, I am uncertain whether Ecchols and Baldwin are actually innocent.
I also came away convinced, more than ever, that the criminal process can never provide the certitude necessary to prevent the execution of the innocent. Juries get to see too little and too much of the reality of what happened outside the courtroom for us to presume they can render infallible verdicts.
Dahlia Lithwick had an excellent article in Slate today, pointing out how Republicans like Rick Perry are skeptics about government’s ability to do run anything – from a health care system to public works projects – but that they are absolutists when it comes to the government’s ability to discern guilt or innocence with enough certainty to kill the convicted.
But it’s not just Republicans who are prone to overrate the capacities of our judiciary. It’s also lawyers, lawyers who are so intimately familiar with the wonderful beauty of parts of our system of justice, that they believe boundlessly in our system’s capacities. It was a law professor after all, John Henry Wigmore, who famously declared that, “Cross-examination is the greatest engine for the search for truth.” When, for whatever reason, we fall prey to the idea that we can reach from the well of a courtroom to the pure reality of events that transpired outside of that courtroom, we risk the state-sanctioned murder of an innocent man.
PS: I would love to see some experts on professional responsibility, such as Professor Bernabe, give us their take on the ethics of the defense team’s allowing such unrestricted behind-the-scenes access.

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