The "Other" West Memphis Three (part 4): Attorney Scott Ellington and the New Doomed Generation

Today in Arkansas, Pam Hicks (once Pam Hobbs) is to receive a Crittenden County court hearing before Circuit Judge Victor Hill, ¹ regarding Hicks’s efforts to view records and evidence related to the murder of her child, Stevie Branch, nearly 20 years ago — one of three children murdered in a case made famous by Arkansas’ wrongful conviction of the so-called West Memphis Three – a case that remains, as a result of Arkansas’ botched investigation and prosecution, unsolved.

Via Attorney Ken Swindle, Hicks filed suit in June, after West Memphis authorities denied her initial requests [see also: The “Other” West Memphis Three: Ain’t No Thing]. Hicks as well as John Mark Byers, father of murdered Christopher Byers, so far have met with stonewalling from the authorities now being sued in a third, amended version of the original suit: West Memphis Police Chief Donald Oakes; Mayor of West Memphis, William H. Johnson; and Congressional hopeful and current Prosecuting Attorney for the Second Judicial District of Arkansas, Scott Ellington.

Readers might assume, in light of a string of internationally known documentaries and books about the WM3 case, that Arkansas and West Memphis prosecutors and authorities would have, by now, even the slightest little clue how to avoid appearing incompetent, if they remain unable to avoid being incompetent. For two decades now, even under the glare of journalistic and filmic scrutiny, key players in the WM3 prosecution—namely the predecessors to those being sued, above – have attempted to protect themselves from fallout regarding malicious prosecution, wrongful convictions, gross official misconduct, and widespread corruption. But, although readers and viewers of WM3 books and films have come to expect this sort of head-scratching ignorance from the likes of the original players involved – the now infamous Chief Detective Gary Gitchell, Prosecuting Attorney John Fogleman, Judge David Burnett, et al – after a new generation came on board as investigators and attorneys for West Memphis and for Arkansas, there was, for a moment, some hope that things might proceed a little differently.

Most notably, of course, on 19 August 2011, the West Memphis Three were released from prison with time served—18 years—via the imperfect but effective Alford Plea. From there, we could only hope, a new investigation would result apprehension of the actual murderer(s) of three children. Exoneration would also follow, of course, for the three men who lost half their lives to prison for crimes they didn’t commit.

Slight hitches remained for the State, of course. Fogleman and Burnett had climbed some big political ladders on the heels of the success of their satanic kangaroo-trial of three teens. Nor were they the only ones to make a career off the travesty [see also: The “Other” West Memphis Three: Loser Occult].

Another problem, of course, was that pesky Arkansas law that says Damien, Jason, and Jesse are owed a whole lot of money for their eighteen years of wrongful imprisonment.

Rather than getting out ahead of the inevitable reckoning, however, the new generation of Arkansas and West Memphis authorities—most of whom have little or nothing to do with the original disaster—have inexplicably chosen to imitate their predecessors and dig in their heels, as if they will somehow, perhaps miraculously, survive the Hollywood-heavy shitstorm that looms above their heads.

THE NEW DOOMED GENERATION

…Being the sorry tale of future WM3 documentary stars West Memphis Police Chief Donald Oakes; Mayor of West Memphis William H. Johnson; and current Prosecuting Attorney for the Second Judicial District of Arkansas, Scott Ellington.

On the very day that the WM3 were released from prison, Arkansas Attorney General Dustin McDaniel made the career gaffe of a lifetime by declaring for all media that his office had no interest in justice but rather “Since the day of their original convictions, the Attorney General’s Office has been committed to defending the guilty verdicts in this case.”²

That said, however, McDaniel—against whom Mara Leveritt (Arksansas Times journalist and author of The Devil’s Knot) also sought official discipline “for not taking affirmative action in response to evidence of juror misconduct” in one of the WM3 trials; the same McDaniel whom Leveritt would later sue³—also made clear that whatever came of the plea agreement: it’s Prosecutor Scott Ellington’s doing.

“As Attorney General,” McDaniel further explained, “I always respect the discretion and judgment of elected prosecutors. Prosecutors know their cases better than anyone.”⁴

Indeed, at least on that fateful day, 19 August 2011, Democratic congressional hopeful and current Arkansas Second Judicial District Prosecuting Attorney Scott Ellington originally appeared to stand apart from the new generation of government employees looking to ruin their careers via the WM3 case.

Ellington not only agreed to the Alford Plea arrangement, but at least while news teams from around the country still milled about West Memphis, Ellington made very clear that he was willing to look at any new evidence in the case.

It may have seemed an odd statement, considering that the State had also just declared that the WM3 were still guilty, even if they were free now on parole for a triple child homicide allegedly in service to Satan himself —but in the interest of not confusing everyone with legalities, let alone theology, and with the hopeful note of being open to new evidence, major media more or less let it all slide.

As I have essayed in detail, elsewhere [see The “Other” West Memphis Three: The Chosen Few] , Todd and Dana Moore, parents of the murdered eight-year-old Michael Moore, who for 18 years had nothing to hold onto but the State’s official story of the crime, were horrified and nauseated by the release of the WM3, as anyone can understand. Pam Hicks and Mark Byers knew the State’s case was a fraud, but held out hope, like the rest of the world, that West Memphis and Arkansas authorities were slowly coming to their senses, and that a proper investigation could not be far behind.

Less media attention, however, was paid to a 2012 lawsuit, when the parents of the murdered Cub Scouts discovered that they were, once again, being mislead by authorities. Pam Hicks’s lawsuit asked to see records and evidence in the case. She also asked to see her son’s possessions at the time of the murder, which were seized as evidence and which remain locked away by West Memphis Police.

“I just want to know that the things that are precious to me are still where they should be,” Pam told reporters.⁵

Pam’s attorney made clear that Pam does want to have to sue, but is “frustrated at repeated failed attempts” to view her son’s belongings.⁶

Nor was it difficult to see why, I noted in my prior article on Pam’s lawsuit:

West Memphis authorities–as if they were not in the national spotlight and had learned nothing about public perception of their department–responded to Pam’s lawsuit, by the close of business that day, with a flat “No.”

West Memphis City Attorney David C. Peeples, with all the finesse of a lawschool freshman, promptly denied Pam’s request with the rote recitation that physical evidence, following convictions for any violent offense, is required to be “permanently impounded and securely retained” by law enforcement.⁷

For his part, West Memphis Police Chief Donald Oakes made it clear that his hands were tied, and that Pam “would need a court order for the department to hand over the evidence.”⁸

“There is no nefarious motive” for keeping evidence from parents of the victims, Police Chief Oakes clarified for reporters on June 22, well aware of his department’s struggling image—a department that had, under Gary Gitchell’s watch, been under investigation itself, along with the Crittenden County Sheriff’s Office, for corruption, drugs, even murder, at the time of the child killings.⁹

But just when it seemed West Memphis was hopelessly mired in the mentality and mistakes of 1993, Prosecuting Attorney Ellington again played the role of new-generation open-minded prosecutor. In June of this year, Action News reported that Attorney Ellington had announced that he would indeed allow the parents of the murdered children to view the evidence in the case that all the world but Ellington’s office knows is an unsolved case. It seemed a kindly move on Ellington’s part, if a political move nonetheless.¹⁰

Ellington’s well-publicized compassion arrived “after the mother of one of the victims sued police,” noted Action News, but Ellington was at pains to explain that it wasn’t the lawsuit that motivated him—and certainly not the bad press in an election year–but that he had been motivated by the suffering of the parents of the murdered children.

“It’s been an ongoing time of grief for them,” said Ellington. “We’re trying to just reach out, show compassion…. With these particular families, the loss of their children has been brought back to the surface over and over and over. It’s been a re-injury every time.¹¹

Once the microphones and cameras stopped recording, however, Ellington had a very different response to the victims’ families. Or so an amended lawsuit alleges. After no less than nine requests by the Pam’s and Mark’s attorney, Ellington has proven unable or unwilling to make any time for the parents to view records or evidence.¹² According to the parents’ attorney, Ellington has “never offered to meet” him, or the parents, or any combination of the aggrieved.

Ellington’s response to the parents’ concerns was to file a motion to dismiss. Baffling, at best, in its entirety, the motion to dismiss (MTD) also fails by its individual arguments.

Ellington appends emails from the victims’ parents’ attorney, emails spanning these two months of requests, ostensibly as “proof” that Ellington was attempting to comply with the Freedom of Information Act. What the emails prove, of course, is that the victims’ parents have yet to gain access to the records and evidence they seek.

Nor is Ellington’s apparent lack of concern for the victim and their families the only issue. According to the Hicks’ and Byers’ attorney, Ellington is in violation of the law, which allows him precisely three days to make arrangements for the viewing of the evidence.

Par for course in West Memphis, however, it only gets worse. While sidestepping any actual arrangements to meet with the victims’ parents, Ellington’s MTD takes the extra step of declaring the parents’ request a futile one. Ellington alleges that most of the evidence sought by the victims’ families cannot be revealed at all, as the case is an “an open and ongoing law enforcement investigation.”¹³

Logic and sense be damned.

In other words: the State declares that the case is closed, and that they convicted the right “men,” so as to avoid paying Baldwin, Echols, and Misskelley what they are rightfully owed after 18 years wrongful incarceration, while the State also avoids admitting that it has allowed a killer or killers to remain free — but, at the same time, the State says the case is “open” so as to dismiss requests such as those of the victims’ families.

It’s a not-uncommon ploy among prosecutors and authorities looking to cover themselves after a botched investigation and wrongful conviction (particularly when such travesties arise not from incompetence alone, but from gross official misconduct), but for all its sad regularity, the ploy is a repugnant one—especially when we consider that the State already has the unsolved murders of three children on its hands, along with the wrongful convictions of three men. As if unaware that their every move will end up in the next documentary or book, the State is content to add ignoring the victims’ families or lying to them outright.

But how does one explain this continued travesty of justice, given that Attorney Ellington had nothing to do with the debacle that let a child-killer go free while imprisoning three local teens.

Perhaps the new generation is a little smarter, after all.

Perhaps the election season is to blame, given that Attorney Ellington is running for Congress and would hate to be seen as soft on crime, even in wrongful cases—although it is difficult to believe that Ellington’s Democratic base could be pleased with the attorney’s dismissal of the victims’ parents.

Perhaps Ellington is hoping that voters are too ignorant to notice that the State’s narratives—the case is open; the case is closed—are mutually exclusive, and thus the State is, one way or another, lying through its collective teeth.

Full disclosure: the author of this essay is a Democrat.

And, that said, it pains this author to no end, that Ellington is yet another Democratic prosecuting attorney for whom this author refuses to elevate politics over a sense of what is morally right — especially where murdered children and their families are concerned.

LEGAL DOCUMENTS FOLLOW–LAWSUIT & RESPONSE TO MOTION TO DISMISS.

AFTER DOCS, CONTINUE READING FOR COPIES OF THE LAWSUIT, AN UPDATE, A PRESS RELEASE FROM ADVOCATES FOR THE WM3, AND ALL FOOTNOTES

UPDATE #2:

See Mara Leveritt Update on “Other” West Memphis Three Hearing

UPDATE#1:

Just as I was finishing this essay, I read a press release from advocates for the exoneration of the WM3. One of them, Laird Williams, is also suing for access to records and evidence, via the Freedom of Information Act, in this case that is closed but is open, and open but closed.

Perhaps the money and media now behind Damien and his team might help to persuade West Memphis authorities, given that justice appears no motive.

What follows is the press release:

Defense attorneys for Damien Echols have requested any potential new evidence in the form of confidential phone calls placed to the West Memphis Police Department’s tip line recorded since August 19, 2011, regarding the involvement of Terry Hobbs or anyone else in the murder of the three children. The West Memphis Police Department currently operates a Crime Stoppers Confidential Tip Line at (870) 732-4444.

According to a sworn statement from Laird Williams, who was visiting the West Memphis Police Department on August 14, 2012, he was told that the WMPD had received numerous confidential calls over the past year, many concerning the possible involvement of Terry Hobbs, stepfather of victim, Stevie Branch. See www.blog.freewestmemphis3.org.

“On August 14, 2012, I met an associate from the University of Memphis School of Law at the offices of the West Memphis Police Department located at 626 East Broadway, West Memphis, AR, to review materials germane to the 1993 murders of Christopher Byers, Stevie Branch and Michael Moore. While in the WPMD offices, I was informed that the West Memphis Police Department is constantly receiving calls via their tip line regarding Terry Hobbs’s potential involvement in the murders of these three young boys, one of which was his stepson, Steve Branch. I was told one caller, a man who worked with Terry Hobbs when the murders occurred, had called repeatedly. I requested the procedures for dealing with these tips and was informed that the calls are recorded and delivered to the Criminal Investigation Division, headed by Captain Ken Mitchell. What CID does with this information is unknown.”

Based upon this information, which was corroborated by others who were present with Williams on August 14, Little Rock attorney Patrick Benca, who represents Damien Echols, filed a Freedom of Information Act (FOIA) request for “All documents, recordings, logs regarding phone calls or ‘tips’ made to the West Memphis Police Department tip line from August 19, 2011 until the present date regarding what has been described as the ‘West Memphis 3 case.”

The City Attorney for West Memphis, Arkansas, David C. Peeples, rejected Benca’s request for information in two separate letters. In one letter dated September 19, 2012, Peeples denies that the WPMD has any information, “Please be advised that the West Memphis Police Department does not have any existing records that specifically set out the information sought in your request.”

Patrick Benca said, “We have reason to believe that the West Memphis Police Department has received information in the form of confidential calls to their tip line which has the potential to be very important to Damien Echols’s case, and that information should be made available to the defense team or those legal authorities responsible for reviewing such evidence. If the WMPD continues to refuse to turn over any and all information received that bears on the conviction of Damien Echols, Jason Baldwin and Jesse Misskelley, we would respectfully ask them to turn that information over to District Prosecutor Scott Ellington for proper review.”

Prosecutor Ellington, who agreed to the Alford plea that allowed the three men to go free, has publicly stated numerous times that he would review any credible information regarding the case of the West Memphis 3.

Benca also suggests that anyone who has called the West Memphis Police Department with information about the WM3 case, please contact the WM3 Confidential Tip Line at (501) 256-1775. “There still remains a $200,000 reward for any information that leads to the arrest and conviction of the person(s) responsible for the murders of Stevie Branch, Michael Moore and Christopher Byers.” ¹⁴

The “Other” West Memphis Three (part 4): Attorney Scott Ellington and the New Doomed Generation

The “Other” West Memphis Three (part 4): Attorney Scott Ellington and the New Doomed Generation

See also: