Reflections on Injustice: Dan Stidham and the West Memphis Three Case

Morehead's Musings: Mr. Stidham, thank you for your willingness to do a follow up interview on the West Memphis Three case (previous interview here) in light of last week's surprising release of Damien Nichols, Jessie Misskelley, and Jason Baldwin. Before we move to questions related to an update on the case, can you comment on your legal work since you served as defense attorney for one of the defendants, and how you have stayed involved as this case developed over the years?

Dan Stidham: I served as Jessie Misskelley’s court-appointed trial counsel, and was involved in all of his appeals up until 2008. At that time I became a full-time State District Court Judge here in Arkansas, and could no longer serve as counsel for Mr. Misskelley. In addition, I had become a witness in the case with regard to the Rule 37 appeals for both Mr. Misskelley and Mr. Baldwin. I could not be a lawyer, a judge and/or a witness in his case all at the same time. After 2008, I continued to serve as an “unofficial” advocate for all of the West Memphis Three and the fight for their freedom. I often referred to myself as the “Cheerleader” after that time. The Rule 37 hearings lasted on and off for two years.

After the trial ended in 1994, I made a promise to Jessie that I would continue to fight for him for as long as it took to get him released for a crime that he did not commit and correct this injustice. After 18 years and 78 days, I was finally able to fulfill that promise a week ago and it was an awful good feeling I must say to be in the Courtroom watching it unfold. I would have gladly spent another 18 years if that would have been necessary, but I am glad that they are now finally free.

Morehead's Musings: Since the original conviction a number of interesting developments occurred over the years, such as new DNA evidence. Can you sketch some of this, and how it seemed to strengthen the case for the innocence of the WM3 rather than the State of Arkansas?

Dan Stidham: During the latter stage of the appeals and the quest for new trials for the WM3, the defense team was never charged with proving that any particular individual or individuals were actually responsible for the crimes, though that would have been a huge bonus and made it even easier and more clear that the WM3 were not responsible for the deaths of the three eight-year-old kids. Through the use of the best forensic technology and experts available including DNA analysis, the defense was able to demonstrate that no reasonable jury would convict these kids in the event a new trial be granted. Of course, the State fought us “tooth and nail” for many years before an agreement for testing the evidence was reached. There were several DNA profiles taken from biological material found at the crime scene and on the bodies, but not once did any of it point back to, get linked or relate to, in any form or fashion, the WM3. DNA in a hair found in one of the ligatures used to bind one of the victims was found to match Terry Hobbs who is victim Stevie Branch’s father. Another DNA match was discovered on a tree stump where the bodies were found which belonged to David Jacoby who was with Terry Hobbs on the day of the murder. There is also a partial DNA sample that was taken from one of the penile swabs done at autopsy that does not have enough genetic markers to definitively state that it belongs to any particular individual as compared to the rest of the population, but there was enough markers to exclude all known samples in the case including all three convicted men. Just in the past two weeks, two other “foreign” DNA samples were discovered on some shoelaces that do not match any known samples in the case again excluding the WM3.

Also, witnesses began to recant their 1993 and 1994 statements and defense investigators uncovered additional new evidence that lead to the inescapable conclusion that these kids were absolutely innocent. The legal team continued to expand to include lawyers from all over the country, and none of us, including the celebrity donors, were going to let this injustice stand. Then suddenly the media finally realized that the nonsensical drama that was presented in court in 1994 to obtain the convictions against the WM3 was not what they had been told it was, and what was left of the State’s case completely unraveled.

The prosecution’s theory was that the case was a Satanic Ritualistic Homicide. The problem with this is that just like the Easter Bunny and the Tooth Fairy, there is no such thing as a Satanic Ritualistic Homicide. The FBI’s own Ken Lanning has never been able to document a single case of Satanic Ritualistic Homicide anywhere on the planet. Similar studies in the UK have revealed the same thing. Thus, as it became more and more apparent that there were going to be new trials in the case, the state was going to have to use the only evidence that they had left which was Misskelley’s Satanic Ritualistic Homicide false confession. Some of your readers will point to other statements Misskelley said, or may have made, subsequent to the trials Misskelley is so mentally handicapped, he would say or admit to anything. I know this because I have been the only person on the case who has watched this unfold over the course of the past 18 years. I could get him today to admit to killing JFK in Dallas in 20 minutes or less and he wasn’t even born yet in 1963. He and I could sit down and solve every “unsolved” murder in the country if people were still willing to believe in false confessions. Those who use Misskelley’s false confession as evidence of guilt for the WM3 simply do not understand the dynamics or the psychology of interrogations and false confessions. If they themselves were ever submitted to the same mental torture that Misskelley endured then they would immediately understand. Another example of a coerced confession would be any one of our pilots who are interrogated and forced to give false confessions even though they are trained on how not to do this. No human can withstand mental torture for very long, especially someone who is mentally handicapped.

Frankly, “Yea,” “Uh-huh,” and “Okay” are not words consistent with a real confession. This is what you find in the Misskelley statements. Police officers today are trained not to ask leading questions and look for information from suspects that only that only someone who was actually at a crime scene would actually know about. Police and Prosecutors (for the most part) today understand these dynamics and no reasonably intelligent police officer or prosecutor today would even file charges based on such ridiculous evidence, much less accept Misskelley’s statements as either accurate, or as an indication of guilt.

In 1993 and 1994, very few people in the world understood the concept of false confessions. One of the three who did, was with me in the courtroom at the Misskelley trial and Judge Burnett refused to allow him to testify or qualify him as an expert. Ironically, two weeks later in the Echols-Baldwin trial, he allowed a so-called expert in the occult to testify despite the fact that he had an illegitimate mail order PhD from a diploma mill to allow prosecutors to present evidence of a Satanic Ritualistic Homicide, again a phenomenon that simply doesn’t exist. Simply put, the judge allowed junk science to be injected into the trial and scientifically reliable evidence to be excluded.

“Satanic Panic” convicted the WM3 and the hard work of many people from all around the world refused to let this injustice stand. To try and get a conviction, the State would have had to overcome the best experts and lawyers in the world, and try to prove the first ever Satanic Ritualistic Homicide in the world. No small task I can assure you. The new experts stated that what police and prosecutors thought was sexual mutilation in 1993 was actually post-mortem animal predation.

Morehead's Musings: Observers, particularly those who have followed the WM3 case for years, were stunned last week when it was learned that a meeting in court was scheduled involving the defendants, their families, and legal authorities in Arkansas. Speculation then followed that some kind of deal was in the works, and to everyone's great surprise the WM3 were freed. How did this deal come about?

Dan Stidham: I wasn’t in the room when the plea deal was reached, however, Mara Leveritt reported the exact details of how it happened in the Arkansas Times recently. I defer to her on this issue. I will say that the State of Arkansas, obviously, really wanted this case to go away, and the WM3 wanted to be out of prison for something that they did not do, especially Damien Echols who had been on death row and solitary confinement for over ten years. A rarely used legal doctrine allowed both sides to accomplish their goals, thus ending a case that could have gone on for even more years.

Morehead's Musings: I watched the press conference with Prosecutor Scott Ellington after the announcement that the WM3 were being released, and the deal seemed curious if not contradictory to an outside observer. On the one hand the state had the WM3 admit guilt yet allowed them to maintain their innocence. They also had to agree not to bring civil suit against the State. And when reporters asked in follow up about whether the State still thought the WM3 were guilty, the response was yes, but that the hope was that the three had been rehabilitated. As someone who is familiar with this case, but with no legal background, it seems to me that the State wanted to cover itself legally and politically, while also getting out of an increasingly difficult case from a public relations perspective. Is this view off base? What are your thoughts?

Dan Stidham: There should be no politics in justice, no where, no how, but your view and the reports in the media seem to indicate that “this view” could possibly be on base. I will say that I was proud of the courage the Arkansas Supreme Court displayed for remanding the case back to the trial Court because former Judge, now State Senator, David Burnett earlier had refused to even consider the new and overwhelming evidence in the case in earlier hearings. This was about a two year process as I recall do conduct this appeal.

I also think that despite the allegations of “politics” being invoked by some people in the case, issues I cannot address personally, Prosecutor Scott Ellington has shown considerable courage in agreeing to the “Alford” plea. He deserves great credit for this decision, demonstrated an ability to make tough decisions, and has taken considerable heat over this which I believe is quite unfair. He simply doesn’t deserve it. After all, this case is a case he inherited just last year and he made none of the original decisions that were made in the case back in 1993 and 1994.

Mr. Ellington announced on Thursday that despite the fact that he considers the case “closed” he would consider any new evidence brought to him and would prosecute the real killers if adequate proof was presented to him. Again, quite a courageous move on his part. Also, Governor Beebe recently publicly stated that he would pardon the WM3 if the real killers were discovered. I applaud the Governor’s position in this regard, as it is the right thing to do.

Judge David Laser also deserves credit for his leadership in taking on the issues in this case and accepting the plea that freed the WM3. It was clear to me that he took considerable time and in reviewing the overwhelming amount of evidence in the case. Had the “Alford Plea” not been entered, I truly believe he would have taken the courageous step of granting new trials for the WM3. But this would have meant more time for the Defendants behind bars and perhaps more countless appeals, etc.

These victim’s families deserve better than they got from the WMPD and they deserve closure. I will personally continue to work on this case and others have also pledged their continued support to find the real killers as well. This “Alford Plea” was by no means perfect justice, but it is justice, nonetheless. A man is off death row and three innocent persons who have spent half their lives in prison for something they didn’t do are free at last.

Morehead's Musings: For me this case was a reminder that legal evidence is never interpreted in a vacuum. Some have recently written on this case in connection with "cognitive bias." What part might negative stereotypes of heavy metal music, the Goth subculture, minority religions like Wicca, and fears over the occult have played in how evidence and the defendants were interpreted?

Dan Stidham: Negative stereotypes played a huge role in the case. In fact, I was invited yesterday to write a law review article on that very subject. We in the criminal justice system must be very careful not to let fear, prejudice, bias, and culture, or sub-culture issues interfere with our ability to interpret facts and evidence. Just as there should be no politics injected into our criminal justice system, there is no room for stereotypes of any kind there as well. It can lead to injustice, something that I personally cannot tolerate in any form or fashion. The goal of our criminal justice system is truth and justice and to allow fear and panic to rule the day is wrong and it erodes public confidence in our criminal justice system. There is a reason that the statue, and icon of justice, “Lady Justice” has a blindfold on.

Morehead's Musings: What lessons would you like people to take away from the tragic experiences of the WM3 in this case?

Dan Stidham: Wow. There are so many. First of all, that sometimes things are not always as they first appear. That we should never let anything like this happen again to anybody and that there are a myriad of things that we can do to prevent them from happening, and we should be doing them all right now.

Let’s not let fear and prejudice be invoked into any criminal trial. Let us demand that our Courts and legislatures mandate that all interrogations be recorded from beginning to end so that we can see what really happens in the interrogation room. This protects the police as well as the defendant.

If we are not going to let polygraph evidence to be introduced into evidence in Court, then let’s stop letting the police use it as a “tool” to extract false confessions from people, especially the mentally handicapped. The first vote from the jury in the Misskelley trial was 7-5. Mr. Crow and I had convinced 5 of 12 jurors that there was “reasonable doubt” in the case. Imagine what the turnout might have been had the jury been allowed to hear Dr. Richard Ofshe (who has a real PhD and a Pulitzer Prize) testify about the nature of the false confession….and hear Warren Holmes testify that Misskelley had actually passed the polygraph test that the WMPD told him that he had “flunked” and that he was “lying his ass off.” It might have saved him, Mr. Echols and Mr. Baldwin, from 18 years and 78 days that can never be restored back to them.

Interestingly, in 1993 only Minnesota and Alaska required full recording of all confessions in felony cases. Today, 17 States require it either through Court mandate or legislative mandate. We must all work together to get this number up to all 50 States. We are making progress. We must continue to find ways to improve our criminal justice system that is already the best the world has to offer. But we make mistakes sometimes and we must never let our ego keep us from correcting these mistakes.

We must also not forget all the other wrongfully convicted defendants, some of which who are now on death row and who didn’t have the luxury of HBO documentaries and major donors to assist them with their appeals. Even the most casual observer can look at the Innocence Project’s website and see that the number of exonerations due to DNA evidence is skyrocketing. Faulty eye witness testimony, false confessions, prosecutorial misconduct, and junk science like hair and fiber comparisons which can mislead juries are at blame. With the number of these cases, we know there are other innocents out there some of which who are death row and some of which who have already been executed for crimes that they did not commit.

Lastly, a lesson I would like people to take away from this case is the power of prayer and the power of never giving up. Winston Churchill once said: “Never, never, never, give up.” We didn’t and we prevailed. There were many dark days over the course of the past 18 years and every time I got down or depressed, I would get and email or a letter from someone on, or the other side of the planet thanking me for standing by my client and not giving up. I would like to thank each and every one of these folks who contacted me, encouraged me and sustained me in those darkest days. They truly inspired me and kept me going forward.

Morehead's Musings: Since your work with the WM3 you have developed a speaking program where you touch on things like false confessions and satanic panics. Can you tell readers a little about your seminar work and how they might get in touch to schedule you for their event?

Dan Stidham: I have been speaking about the case on college campuses and at professional seminars around the country for the past 18 years talking about this particular injustice and the ways that we can prevent cases like this from happening again. Fortunately, I get to add a few more slides and a happy ending to my power point presentation. I hope to keep getting invited to speak about the case even though the case is now over so that the next generation of lawyers, judges, prosecutors and police officers can learn from the mistakes of the West Memphis case and what we can do to improve our system of justice. The WM3 case has already become an icon for injustice in America and hopefully the invitations will keep coming my way. I really enjoy speaking about the case.

Information about my public speaking program, which I am in the process of up-dating can be found at www.danstidham.com.

I have also decided to write a book about my experiences in the case. I have been kicking around the idea for years but until now I could never decide if I really wanted to re-live the pain of the past. Now that this pain has been strongly mitigated by the freedom of the WM3 it made my decision both easier and obvious. I plan to get started this weekend. The truth of what happened and why it happened must be told. I also think it might be therapeutic for me personally to write this book.

Morehead's Musings: Mr. Stidham, thank you so much for your ongoing work on behalf of the WM3.

Dan Stidham: Thank you for your kind and generous words and the opportunity to follow up with our earlier discussion for your readers. I would be remiss if I didn’t take the opportunity to thank a couple of people without which the freedom of the WM3 would not have been possible. If I tried to name everyone, there is always the danger of leaving someone out as there are so many folks who worked for so many years on this case. Despite the danger, let me acknowledge a few folks like John Phillipsborn, who is without a doubt the best lawyer I have ever encountered. Bruce Sinofsky and Joe Berlinger who first brought this case to the attention of the world through their HBO documentaries and to the attention of people like Eddie Vedder, Natalie Maines, and Johnny Depp who along with countless others donated money to fund the defense and particularly the DNA testing. Eddie Vedder is perhaps the most incredible and generous individual that I have ever met.

Of course, Lori Davis and Mara Leveritt’s work was instrumental. Peter Jackson and his partner Fran Walsh also donated funding for the case. Obviously, their generosity helped tremendously to bring about justice in this case. My many thanks, and best wishes to them for their support.

Old friends like Grove Pashley, Burk Sauls, Kathy Bakken and Lisa Fancher also had a huge impact on this case along with new friends like Amy Berg who is working on a documentary on the case.

I would also like to take time to thank my children who let their Dad miss a few ballgames and other things while they were young so I could keep this case alive long enough for help to arrive. And when the cavalry arrived, did they ever! Also my parents deserve credit for instilling in me the qualities I needed to do my work on this case and live my life. My family was as proud of what happened on Friday as I was. Thanks.