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Defense presents new evidence in West Memphis 3 case

by ArkansasOnline Press Services | October 30, 2007 at 1:44 a.m.

Lawyers for a death-row inmate found guilty of killing three 8-year-old boys in Arkansas in 1993 filed a motion in federal court to overturn his conviction based on new evidence, including DNA test results that found no genetic material on the victims' bodies from his client or two others convicted with him.

Dennis P. Riordan, a San Francisco attorney representing Damien Echols, said the findings should exonerate the three men known by sympathizers as the "West Memphis Three."

Echols, now 32, is on death row. Jason Baldwin received life without parole , and Jessie Misskelley, who told prosecutors he saw Echols and Baldwin beat and assault the boys, got life with parole.

Riordan's filings in federal court claim Bode Technology, a private laboratory in Virginia, tested evidence collected on swabs, under fingernails and clothing from 8-year-old victims Stevie Branch, Christopher Byers and Michael Moore. The company handled DNA testing on bone fragments found in rubble at the World Trade Center after the Sept. 11 terror attacks.

A report from the lab included in the filing shows much of the evidence failed to yield reportable results. However, on evidence able to be tested, the lab found no traces of Echols or co-defendants Baldwin or Misskelly.

"That is an exculpatory fact of great importance," according to the brief submitted by five attorneys led by Riordan and Donald M. Horgan of San Francisco.

They said it undercut the confession of Misskelley, who claimed that he saw Echols and Baldwin beat and sexually attack the three boys.

In addition, there was genetic material found on one of the victims that came from an unidentified person.

Tests also revealed that a hair containing DNA consistent with that of Terry Hobbs, the stepfather of one of the victims, was found on a ligature -- black and white shoelaces -- used to hog-tie another of the victims. Another hair found on a tree root at the crime scene contained the DNA of David Jacoby, "who was with Hobbs," according to court documents, in the hours before and after the victims disappeared.

The brief acknowledges that this evidence "does not establish guilt of Hobbs or Jacoby."

Hobbs has said the hair on the shoelaces must have been innocently transferred from himself to one of the victims, who "played with our little boy regularly."

The new petition includes analyses done by seven forensic scientists -- including Dr. Richard Souviron, chief forensic odontologist at Miami Dade Medical Examiners Department, who played a significant role in Florida's successful 1979 prosecution of serial killer Ted Bundy. All of them challenge prosecutors' claims that Christopher Byers had been sexually mutilated with a knife.

The forensic pathologists and odontologists, who separately reviewed autopsy tests, photos and trial testimony, state that the evidence strongly indicates that after Byers was killed by blunt force blows, animals later ate parts of his body.

The brief also states that some of the key testimony asserting that the teenagers were part of a satanic cult -- something they have denied -- was presented by a "witchcraft expert" with "a fraudulent Ph.D." from a school in California that was put out of business by state authorities.

Echols' lawyers maintain that members of the jury that convicted and sentenced him to death in Jonesboro in 1994 made misleading statements about what they knew about the case when questioned during voir dire and considered Misskelley's confession during their deliberations -- something that they were specifically told not to by the trial judge.

Misskelley was tried first. His lawyers maintained that he was borderline mentally retarded and that he had made a statement to prosecutors only in hopes of being rewarded. At the time he made his statement there was a $30,000 reward.

He was convicted, but it was established in court that he had changed key aspects of his story more than once after being questioned by prosecutors. He initially told prosecutors that he saw the crimes occur at a time at which it was established that the three victims and Baldwin were in school, Misskelley was at work on a roofing job and Echols was at the doctor.

During voir dire for the separate trial of Echols and Baldwin, the judge learned that virtually all of the jurors had heard a lot about the case, from newspaper and television accounts. The judge specifically told the jury not to consider anything they might have heard about Misskelley's statement to the police. But in recent interviews, three jurors, including the foreman, said the statement definitely was a factor they considered.

"How could you not?" the foreman said, according to court documents. "It was a primary and deciding factor."

The jury's consideration of the statement alone violated Echols' right to a fair trial, according to his attorneys.

Chief prosecutor Brent Davis did not respond to a call and an e-mail seeking comment.

Skeptics have long doubted the guilt of the three. The case also has drawn the attention of documentary filmmakers and rock stars: Eddie Vedder, the lead singer of Pearl Jam, performed at a benefit concert that helped finance the DNA tests and appellate work.

Another was Lorri Davis, a New York landscape architect who saw a film about the case in 1996 and became so interested that she moved to Little Rock, married Echols and took a key role in organizing post-trial investigations and appeals.

The state Supreme Court authorized further DNA testing in the case in 2002.

In 2005, the high court rejected an effort by Echols to reopen the case so he could argue that his trial lawyers mishandled his defense. In that ruling, the Supreme Court also urged those involved in the case to wrap up the genetic testing authorized three years earlier.

Riordan said the state will file a response and a federal judge will decide whether to hold a hearing over their claims.

"They tend to rise and fall together," Riordan said of three. "Anything that erodes the case against any one of them" erodes it against all of them.

Information for this article was contributed by Henry Weinstein of the Los Angeles Times, Shaila Dewan of The New York Times and Jon Gambrell of The Associated Press.

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