Briefs say new DNA testing should be allowed in Damien Echols’ case

Damien Echols talks with reporters outside the West Memphis District Courthouse following a hearing on whether to retest evidence from the 1993 trial for new DNA on Thursday, June 23, 2022. See more photos at Democrat-Gazette/Stephen Swofford)
Damien Echols talks with reporters outside the West Memphis District Courthouse following a hearing on whether to retest evidence from the 1993 trial for new DNA on Thursday, June 23, 2022. See more photos at Democrat-Gazette/Stephen Swofford)

Three groups have filed amicus curiae briefs in support of Damien Echols in his case before the Arkansas Supreme Court.

Amicus curiae is Latin for "friend of the court."

Amicus curiae briefs are filed by a person or group that, while not a party in the case, intends to influence the court's decision, according to the Legal Information Institute at Cornell Law School.

Echols, a member of the West Memphis Three, has The Center for Wrongful Convictions and a group of 69 "wrongfully convicted" people known as the "exonorees" on his side, according to court filings.

The Innocence Project has also tendered an amicus curiae brief in support of Echols, along with a motion asking for permission to file such a brief.

Echols wants new DNA testing technology to be performed on sneaker laces from the 1993 slaying of three 8-year-old boys -- Christopher Byers, Steve Branch and Michael Moore -- in Crittenden County.

Echols, Jason Baldwin and Jessie Misskelley were convicted of those murders, and Echols was sentenced to death.

But in 2011, with the possibility of new trials looming, the West Memphis Three were released from prison after taking Alford pleas.

An Alford plea is a guilty plea entered by a criminal defendant who doesn't admit guilt but pleads guilty as part of a plea bargain.

While maintaining their innocence, Echols and Baldwin each pleaded guilty to three counts of first-degree murder, a lesser crime than the three counts of capital murder for which each man was convicted at trial.

Also maintaining his innocence, Misskelley pleaded guilty to one count of first-degree murder and two counts of second-degree murder. Those are the same charges that a trial jury found Misskelley guilty of in 1994.

The three were sentenced to the time they'd already served in prison and were given additional 10-year suspended sentences.

Since taking the Alford pleas, the West Memphis Three have been trying to clear their names.

No DNA evidence ever linked the defendants to the deaths. But Echols believes new M-Vac wet-vacuum DNA testing could exonerate them. That technology wasn't available when the previous DNA testing was done.

Echols' attorneys petitioned Crittenden County Circuit Court on Jan. 24, 2022, to permit M-Vac wet-vacuum DNA testing on sneaker laces that were used to hogtie the three boys.

Former Prosecuting Attorney Keith L. Chrestman argued against the new DNA testing, saying among other things that the M-Vac wet-vacuum collection method could damage evidence from the case.

Crittenden County Circuit Judge Tonya Alexander denied Echols' request in June 2022, stating that he wasn't entitled to the evidence examination, even if it could clear him, because state law only allows incarcerated people the opportunity to seek new evidence testing.

Echols appealed to the state Supreme Court.

Assistant Attorney General Brooke Jackson Gasaway filed a motion to dismiss Echols' appeal, but it was denied by the Supreme Court.

Since then, there have been a flurry of filings from lawyers who aren't parties in the case but want the court to hear what they or their clients have to say.

"Wrongful convictions have long plagued the criminal justice system," according to the brief from the 69 exonorees. "The National Registry of Exonerations estimates that, in just the past three decades, at least 3,319 men and women have been wrongfully convicted of crimes they did not commit. Last year alone, 239 wrongful convictions were discovered."

The proposed amicus curiae counsel for the exonorees is Martin H. Tankleff of Garden City, N.Y.

In 1990, Tankleff was convicted of murdering his parents.

"When he was only seventeen years old, Tankleff was convicted based on a coerced confession written by a detective after hours of interrogation and sentenced to fifty years to life in prison," according to the brief, which was signed by Tankleff and included the names of four other people beneath his. "Tankleff spent nearly two decades behind bars before he was exculpated by newly discovered evidence."

Tankleff is now a lawyer who teaches at Georgetown University. He also served as an attorney for Richard "Bigo" Barnett of Gravette during his Capitol riot case. Tankleff withdrew from Barnett's case in June 2022 because he no longer worked for the law firm that was handling it.

"Appellant Damien Echols' liberty and right to obtain DNA testing is imperative, but liberty does not cure the stigma of conviction or give crime victims and their families a substitute for truth," according to the exonorees brief. "Those who are wrongfully convicted and exonerated suffer great difficulties after release. The group of amici [the plural of amicus] have each walked different paths, however, none of them have walked out of prison without some form of trauma or suffering."

In its amicus curiae brief, The Center for Wrongful Convictions called Echols' appeal to the state Supreme Court a "monumental criminal justice case."

"Appellant Damien Echols' liberty -- after a death sentence and 18 years of wrongful imprisonment -- is important. But liberty does not cure the stigma of conviction or give crime victims and their families a substitute for truth," according to the brief.

"Amicus has worked on hundreds of cases involving wrongly convicted individuals, and its experience teaches that the problems caused by wrongful conviction -- from the collateral consequences of a conviction itself to the broader lingering uncertainty from unsolved crimes -- do not end when a wrongly convicted individual wins freedom," according to the Center's brief. "The state's attempt to deny access to new forensic technology here threatens to short circuit processes that could mitigate those problems."

Echols sought the new DNA testing under Arkansas Act 1780 of 2001, which is codified under the habeas corpus chapter of state law -- Arkansas Code Annotated 16-112-201.

Habeas corpus is Latin for "that you have the body." According to the Legal Information Institute, a writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if that person's imprisonment or detention is lawful.

"Damien Echols sought, under Act 1780, new M-Vac DNA testing of the ligatures used to bind the children he was convicted of murdering," according to The Innocence Project brief. "The circuit court denied the petition, holding that Echols had to be incarcerated. But the Act contains no such requirement -- imposing one would deny wrongfully convicted individuals access to DNA testing that could conclusively establish their innocence. ...

"The circuit court denied relief because the Act was codified in the habeas portion of the Code but assumed that Act 1780 offers only habeas-type relief. Not so -- it provides several protections that are not traditional habeas relief.

"Affording the procedural protections of the Act to wrongfully-convicted-but-no-longer-incarcerated-innocent-people like Echols is consistent with other states' laws. Act 1780 is modeled after an Illinois law that courts have interpreted to not require incarceration. The court should continue to follow Illinois caselaw as an interpretive framework."

Arkansas Supreme Court Chief Justice Dan Kemp and Associate Justice Cody Hiland have recused from Echols' case. Gov. Sarah Huckabee Sanders appointed Mary Carole Young and Marcia Hearnsberger to replace them as special justices for the case.

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