PENALTY

and law enforcement authorities. In West of Memphis, Steve Jones, an
Arkansas State Criminal Justice official who searched for and found
the victims’ bodies, recalled a pretrial conversation with prosecutor
Fogelman in which, in response to Jones’s inquiry, Fogelman told him
that the case was not satanic and was “just a murder.” Unfortunately,
Jones told no one at the time about this.
“TERRIBLE
TRAGEDIES
INVOLVING
SENSATIONAL
CRIMES TOO OFTEN
MAKE BAD LAW.”
—Stephen L. Braga
During the subsequent trials, the
prosecutors used the satanic characterization
of the case whenever
and wherever they could. Such
appeals to jurors’ “passions and
prejudices” have long been outlawed
precisely because of their
power to distract the jury from
an impartial evaluation of the evidence
and encourage an emotional
response to what they have heard. Yet those arguments were allowed
to be made in this case and proved damning.
Many other errors were committed during the trial. But on the basis
of the errors relating to motive alone, the defendants never had a
chance. In the juror’s minds, the weird kid with the bad attitude,
dressed in black, listening to violent metal music and reading counterculture
books, simply had to be the ringleader of these horrible
crimes—because it could not possibly have been a regular member
of the community. Or could it?
A FRESH LOOK AT MOTIVE
As part of the post-trial efforts to free the West Memphis Three,
the Echols defence team retained forensic profiling expert John
Douglas, the former head of the FBI’s Behavioral Science Unit.
Douglas reviewed the crime without meeting any of the defendants
because he did not want personal relationships to play a
role in his analysis. Douglas could not have been more emphatic
in rejecting the prosecution’s theory that the crimes fit a satanic-murder
pattern. As Douglas explained, in the early 1990s, the
FBI was flooded with claims of satanic crimes due to fears and
rumours running rampant at the time. According to Douglas, the
FBI examined all of them and found that none of them constituted
satanic crimes. Rather, they were all attributable to more
traditional motives for criminal activity.
As Douglas saw it, the murders of which the West Memphis Three
were accused were also explainable by a far more typical motive and
were likely committed by someone who had a personal relationship
with one or more of the victims and whose actions were triggered
by some cause arising from that relationship. Yet in their rush to
judgment to solve this crime under the mistaken notion of a satanic
motive, the West Memphis police ignored a number of leads and suspects
which would have more naturally fit into Douglas’s profile for
the killer or killers.
CONCLUSION
An old adage tells us that “hard cases make bad law.” Terrible tragedies
involving sensational crimes too often make bad law as well. One
need look no further than this case, or that of the Central Park Five,
to see evidence of this, although there are many other examples as
well. When authorities use aggressive tactics to rush to judgment to
quell community fear in such notorious cases, and when those fearful
community members wind up serving as jurors reviewing evidence
of unspeakable horror, mistakes happen and wrongful convictions
result. Fortunately for the Central Park Five, New York had no death
penalty at the time of their wrongful convictions. Arkansas did have
the death penalty, and Damien Echols came within weeks of being
executed for a crime he did not commit.
The finality of the death penalty is its strongest point for those who
believe in it—and its weakest point for those who oppose it. After
watching a documentary on the Central Park Five, commentator
George Will summarized the conservative case against the death penalty:
“Its finality leaves no room for rectifying mistakes.” 5 This is not
just a liberal Democratic issue. It is a social justice issue.
5 George Will, “‘Central Park Five’ tells of a gross miscarriage of justice”, Washington Post,
12 April 2013.
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