MARION — A Crittenden County Circuit Court judge will decide early next week whether to allow the mother of one of three 8-year-old West Memphis boys killed in 1993 to see evidence pertaining to the case.
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Judge Victor Hill said in a Wednesday hearing that he will also decide whether to dismiss Pamela Hicks’ Arkansas Freedom of Information Act lawsuit against the city of West Memphis.
Hicks, the mother of Stevie Branch, filed a civil lawsuit in June, requesting to view evidence in the May 5, 1993, slaying of her son and his friends, Michael Moore and Christopher Byers.
The three boys were found in a water-filled ditch near Interstate 40 in West Memphis. Police said the three were beaten and hogtied.
Three men were convicted in the deaths in two trials in 1994. Damien Echols was convicted of capital murder and sentenced to death. Jason Baldwin received life in prison without parole and Jessie Misskelley was sentenced to life in prison plus 40 years.
All three were released from prison in August 2011 after entering Alford pleas — a legal maneuver in which they pleaded guilty but maintained their innocence.
“I’m concerned about my son’s stuff,” Hicks said Wednesday during a break in the fourhour hearing. “Why are they saying no to me?”
She didn’t testify in court Wednesday.
During the hearing, West Memphis City Attorney David Peeples said Hicks and John Mark Byers, the stepfather of Christopher Byers, were allowed to inspect 13 boxes of records and documents from the case.
He said they did not let the pair see physical evidence, including the boys’ clothing, shoes and the ligatures used to tie the victims.
Peeples argued that the physical evidence is exempted from the state’s Freedom of Information Act and asked Hill to dismiss Hicks’ lawsuit. He said under the law, physical evidence collected in a violent crime is to be “impounded and kept permanently.”
“The FOI is for public information, for written and recorded evidence,” Peeples said.
He added that some of the evidence has been sealed. To open it, he said, would contaminate the evidence and render it useless if it was ever needed in any future hearings.
“My client is not asking to touch the evidence, but simply view it,” said Ken Swindle, a Rogers attorney representing Hicks.
“[Hicks] is not asking for the return of property. We are just seeking physical evidence that was presented to two separate juries in 1994.
Peeples also argued that three affidavits filed in December and January and sought by Hicks are also exempt from the Freedom of Information Act.
Deputy Prosecuting Attorney Curt Huckaby, testifying on behalf of 2nd Judicial District prosecutor Scott Ellington on Wednesday, said the affidavits are part of an ongoing investigation into the case. Ellington was not in court Wednesday and did not testify.
The contents of the affidavits were not disclosed Wednesday.
Hill said he would look at the affidavits and issue a written ruling next week on whether Hicks can inspect them.
However, West Memphis Police Chief Donald Oakes said he considered the homicide case closed.
“Currently, we have no investigation into the three who were convicted in the case. We are always open to any new information,” Oakes said.
Swindle emphasized in his arguments that “there’s no ongoing investigation.”
“They provided no evidence to contradict that,” he added.
Attorneys for Echols, Baldwin and Misskelley — who are seeking to exonerate the three — have requested information from the West Memphis Police Department about confidential calls the department received in the case, but nothing has been released.
Patrick Benca, a Little Rock attorney representing Echols, has asked that any calls made to the Police Department’s tip line be turned over to Ellington for review.
The judge will also rule on a complaint Hicks filed against Ellington, requesting he turn over evidence. Ellington has said anyone is welcome to see his files pertaining to the case.
Also Wednesday, Hill dismissed Oakes and West Memphis Mayor William Johnson from Hicks’ lawsuit.
Arkansas, Pages 10 on 10/25/2012