Lawyers for 3 ask judge to look at talk in '93 trial
Posted on Wednesday, June 11, 2008
Defense attorneys for the three men convicted of killing three West Memphis boys in 1993 have asked a judge to examine a sealed affidavit that alleges improper conversations during the trial between the jury foreman and a nonjuror.
The request appears in documents filed Friday by the convicted men's attorneys, who also entered three new exhibits of their own under seal.
One of the new exhibits is an affidavit from former Little Rock television reporter Lyndall Stout. According to the attached, explanatory court documents, Stout's affidavit contains an assertion that the jury foreman admitted to her in the spring of 2005 that he and his fellow jurors discussed a confession that had been deemed inadmissible at Damien Echols and Jason Baldwin's joint trial.
The documents, filed in Craighead County Circuit Court, say Stout's affidavit corroborates the defense's claim that there was jury misconduct during the trial. The reporter's statement was entered under seal because it contains the name of the jury foreman. Jurors are identified in public documents by numbers.
But the name of the jury foreman is no secret. Juror No. 4, aka Kent Arnold, spoke to the Democrat-Gazette in 2000 and again on Tuesday.
Journalists and talk-show hosts from all over the nation have been calling him for years, Arnold said, but he usually doesn't agree to interviews.
Arnold was the jury foreman during the joint trial for Damien Echols, then 18, and Jason Baldwin, then 16. Jessie Misskelley, then 17, was tried separately, since he gave a confession to police. Because Misskelley refused to testify against Echols and Baldwin, his confession couldn't be admitted into evidence at the pair's trial.
The defense has long contended that the Echols-Baldwin jurors disregarded this fact and still considered the confession during deliberations.
Echols was sentenced to death; Baldwin to life. Misskelley also received a life sentence. An international effort to obtain new trials for them has been under way for years, and appeals hearings are scheduled for this fall.
ASKING FOR A LOOK Friday's defense filing asks Craighead County Circuit Judge David Burnett to look over an affidavit from a man who says Arnold discussed the case with him during the trial. The court documents assert that the alleged conversations bolster the defense's claim that the Echols-Baldwin jurors "improperly discussed and relied on the Misskelley statement, as well as the claims that Juror Number Four had erroneously discussed the trial with a nonjuror before its completion and had prejudged the defendants' guilt or innocence." The man's affidavit was entered under seal by his attorney, who isn't involved with either the case or the current defense team.
No one, including defense attorneys, has yet seen a copy of that affidavit.
Earlier this year, defense attorneys heard that Arnold had been discussing the case with a nonjuror during the trial, the filing states. Attorneys pursued this information and located the man.
But when the defense team contacted the man, he told them he was "concerned about whether the information he possessed was subject to a claim of privilege by Juror Number Four." Friday's filing doesn't identify the man, nor does it explain why privilege could be a factor. It asks a judge to release the affidavit to Arnold so that he may consider whether he wants to enter a claim of privilege. It also requests that defense attorneys and the prosecutor be given copies of the affidavit.
AN AGENDA ? Arnold, a home builder, assumes that the affidavit came from an attorney, given the question of privilege, but said he doesn't know who it could be. He said he has relied on legal representation from several lawyers over the years in his business dealings. He can't remember whether he called anyone during the trial, saying, "You're digging way back into something from 15 years ago. I'm sure if there was something that came up that I did not understand, I would have asked somebody." It's possible he called an attorney and asked questions about procedures during the trial, he said, but he can't remember anything that would have been considered improper.
"Asking what voir dire means - is that inappropriate ?
" It wouldn't surprise me to hear I asked questions about stuff. And it wouldn't be unlike me to discuss post-trial what went on during the trial." Arnold wondered if the man has an agenda in coming forward now, all these years later.
"Does he remember it accurately ? And what does he have to gain from it ?" Arnold also questioned the credibility of Stout's affidavit. He contended that Stout was deceptive about who she was and what she was doing when she interviewed him. He also questioned why a reporter would sign an affidavit for the defense team. It would appear, he said, that she was working for them rather than putting together an objective news story.
Arnold said he brought up the confession only after Stout backed him into a corner, asking him to justify the jury's verdict.
"Maybe you're not aware of the Misskelley confession," he recalls saying to the reporter.
He referred to it as proof that the jury, in the end, had made the right decision - not as something jurors took into consideration at the time of trial, he said.
"She misquoted me." Stout is on maternity leave from her television job in Pennsylvania, according to the station's Web site. She didn't return a call for comment. Attorneys cannot discuss the case, having been threatened by Burnett with contempt of court if they talk to reporters.
WHAT HE RECALLS When asked Tuesday if the jury discussed Misskelley's confession during deliberations, Arnold said: "During the trial, I think mention was made by somebody, a witness, in relation to Misskelley, and I think the judge said, 'Oh, by the way, you can't use that in... deliberations.' " Whether or not it was brought up, I don't think I could be accurate in telling you one way or another," he added, noting that it took place 15 years ago.
Arnold said the jury agreed to "throw all our ideas out on paper" in the form of a large list of pros and cons. "To the best of my recollection, we threw out ideas and that may have been one of them." But jurors determined that they couldn't consider the confession in their deliberations, Arnold said. It might have been then that someone scratched out items from the list, he added.
"That sounds like something that would have happened." The defense has referred to the scratch-outs as evidence of juror misconduct.
In an April filing for Echols, his attorneys argued, "In Juror Four's opinion, the jury could not ignore the Misskelley confession despite the court's instructions to do so." They base this belief on affidavits of two defense attorneys who interviewed Arnold in October 2004. Those documents also remain under seal because they contain the names of other jurors. Arnold said it bothers him that jurors don't get to hear everything about a case during a trial.
"What's interesting to me is that post-trial, when you get to go back and review the facts, is how much information they will not let come to a jury. Why not let the decision-makers have all that information ?" Asked if either the passage of time or new DNA test results have altered his opinion on the outcome of the Echols-Baldwin trial, he replied "I think the trial in its entirety was fair. Whenever you go looking back 10 or 20 years later, you ask, 'Would you make that decision then based on what you know now ?' " The other jurors - I don't know what they would say. I would say justice was served."
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