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Authors: Mara Leveritt
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wondered how the attorney had come to be so certain. What “sources” had given the lawyer his misinformation? The exchange suggested to Lax how deeply rumors had taken root in the town. And it made him wonder if some of them had originated with the police.
Since Fogleman was questioning potential defense witnesses under oath before the trials, the defense lawyers wanted a similar opportunity to question Gitchell, Allen, and Ridge. “I am asking it in the interest of a fundamentally fair trial,” Ford said, “the right to due process, that if Jason Baldwin’s mother can be questioned under oath by Mr. Fogleman, the least I can do is to be able to question under oath Inspector Gitchell.” But Fogleman argued that the defense had already been given the officers’ reports, and he again assured Judge Burnett that the defense would receive everything the state had produced. Noting that the state faced the greater burden of proving the defendants guilty, Burnett again denied the defense lawyers’ motion. He ruled that the police would be made available to answer questions for the defense, but that he would not order the detectives to submit to questioning under oath.
Some of the defense motions were long shots, such as those asking Burnett to rule Arkansas’s death penalty statute unconstitutional, 176 to prohibit so-called death-qualified juries, 177 and to instruct the juries that they could return a finding of first-degree, rather than capital, murder. 178 Others, such as attorney Stidham’s attempt to suppress Jessie’s confession due to tactics the police had employed, were thought to at least have a chance. But they failed nonetheless. Stidham took the defeat hard. He felt that the West Memphis police had “scared Jessie Misskelley to death” by showing him the photograph of a corpse and then playing him the eerie recording of Aaron Hutcheson’s disembodied voice. Stidham considered it a tragedy that the court was willing to admit a confession made by a minor under such circumstances.
Jason’s lawyers were just as dismayed by Burnett’s unwillingness to separate Jason’s trial from Damien’s. They did not want Jason’s case to be affected in any way by evidence or perceptions that might apply to Damien alone. “There has been considerable media coverage of Mr. Echols and particularly his having taken the nickname of Damien,” Ford told the court, “and that nickname has been associated overwhelmingly with a movie by the name of The Omen, where the main character in that movie, Damien, is the Antichrist.” Pointing out that “there has been an awful lot of publicity and speculation as to occult activities and whether or not this was a killing that was associated with an occult type ritual,” Jason’s lawyer argued that “the publicity as to that occultic type activity has been predominantly centered around Mr. Echols, as opposed to Mr. Baldwin.” He added, “If the two cases are tried together, Baldwin could be associated with activity that there is no evidence he ever participated in.” He did not want Jason to be painted with the same broad brush as Damien.
Though Burnett refused to sever, or separate, the trials, Ford continued to raise additional issues to support that contention. At another pretrial hearing, he raised the subject of Narlene Hollingsworth’s expected testimony that she had seen Damien, not with Jason but with Domini, on the service road on the night of the murders. Noting that Arkansas law required that cases be severed when their defenses were antagonistic, Ford explained that Hollingsworth’s testimony “places Mr. Echols at or near the crime scene” and that because of that, Jason’s trial strategy was at odds with Damien’s. The lawyers representing Damien asked that the trials be severed, as well. But Burnett was not persuaded. Citing the need for “judicial economy” and stating that he could find “no reason that either defendant would be unduly jeopardized
Since Fogleman was questioning potential defense witnesses under oath before the trials, the defense lawyers wanted a similar opportunity to question Gitchell, Allen, and Ridge. “I am asking it in the interest of a fundamentally fair trial,” Ford said, “the right to due process, that if Jason Baldwin’s mother can be questioned under oath by Mr. Fogleman, the least I can do is to be able to question under oath Inspector Gitchell.” But Fogleman argued that the defense had already been given the officers’ reports, and he again assured Judge Burnett that the defense would receive everything the state had produced. Noting that the state faced the greater burden of proving the defendants guilty, Burnett again denied the defense lawyers’ motion. He ruled that the police would be made available to answer questions for the defense, but that he would not order the detectives to submit to questioning under oath.
Some of the defense motions were long shots, such as those asking Burnett to rule Arkansas’s death penalty statute unconstitutional, 176 to prohibit so-called death-qualified juries, 177 and to instruct the juries that they could return a finding of first-degree, rather than capital, murder. 178 Others, such as attorney Stidham’s attempt to suppress Jessie’s confession due to tactics the police had employed, were thought to at least have a chance. But they failed nonetheless. Stidham took the defeat hard. He felt that the West Memphis police had “scared Jessie Misskelley to death” by showing him the photograph of a corpse and then playing him the eerie recording of Aaron Hutcheson’s disembodied voice. Stidham considered it a tragedy that the court was willing to admit a confession made by a minor under such circumstances.
Jason’s lawyers were just as dismayed by Burnett’s unwillingness to separate Jason’s trial from Damien’s. They did not want Jason’s case to be affected in any way by evidence or perceptions that might apply to Damien alone. “There has been considerable media coverage of Mr. Echols and particularly his having taken the nickname of Damien,” Ford told the court, “and that nickname has been associated overwhelmingly with a movie by the name of The Omen, where the main character in that movie, Damien, is the Antichrist.” Pointing out that “there has been an awful lot of publicity and speculation as to occult activities and whether or not this was a killing that was associated with an occult type ritual,” Jason’s lawyer argued that “the publicity as to that occultic type activity has been predominantly centered around Mr. Echols, as opposed to Mr. Baldwin.” He added, “If the two cases are tried together, Baldwin could be associated with activity that there is no evidence he ever participated in.” He did not want Jason to be painted with the same broad brush as Damien.
Though Burnett refused to sever, or separate, the trials, Ford continued to raise additional issues to support that contention. At another pretrial hearing, he raised the subject of Narlene Hollingsworth’s expected testimony that she had seen Damien, not with Jason but with Domini, on the service road on the night of the murders. Noting that Arkansas law required that cases be severed when their defenses were antagonistic, Ford explained that Hollingsworth’s testimony “places Mr. Echols at or near the crime scene” and that because of that, Jason’s trial strategy was at odds with Damien’s. The lawyers representing Damien asked that the trials be severed, as well. But Burnett was not persuaded. Citing the need for “judicial economy” and stating that he could find “no reason that either defendant would be unduly jeopardized
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