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| "Injustice anywhere is a threat to justice everywhere." -Martin Luther King, Jr |
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| Harmful Error |
The Center's study of criminal appeals from 1970 to the present revealed 54 Arkansas cases in which
defendants
alleged prosecutorial error or misconduct. In seven, judges ruled a prosecutor's conduct prejudiced
the
defendant and reversed or remanded the conviction, sentence or indictment. In four, a dissenting
judge or
judges thought the prosecutor's conduct prejudiced the defendant.
Of the seven convictions reversed on appeal, four involved a prosecutor withholding exculpatory
evidence.
The rest involved improper prosecutorial arguments at trial.
Former Crittenden County deputy prosecuting attorney John Fogleman took part in at least three of
the 54
cases. In one, the court found his conduct to be so prejudicial as to require a new trial. In another, a
dissenting
judge would have reversed a murder conviction because of Fogleman's tactics.
Fogleman and another Crittenden County prosecutor, Scott Hunter, tried David Strobbe for the 1986
murder of
Marian Mullins. Mullins was beaten and run over by a vehicle. The only eyewitness to the murder
was Michael
Phillips, whom the state had also arrested for the murder.
Before the trial, Phillips gave prosecutors and police three different versions of how the murder
occurred. At
first, he denied seeing anything at all. But in a statement later the same day, he said he watched
Strobbe rape
and beat Mullins before running her over with his vehicle.
"When this case started, we didn't view it as two people being involved," Fogleman told the Center.
"To be
honest, I'm not sure to this day that he [Phillips] was actually involved in the murder."
In another statement—his fourth—Phillips provided his third version of events. He told Fogleman
and a
sheriff's deputy that he had helped place Mullins in front of the vehicle so Strobbe could run her over.
"At that point, I was thinking this is different, but it doesn't exculpate [Strobbe]," Fogleman said. "I
didn't view
that as exculpatory evidence, and I didn't feel like I had to disclose it."
Fogleman and Hunter did not disclose to the defense how the state's main witness changed his
testimony. The
state Supreme Court reversed Strobbe's conviction because of their conduct.
"The State knew its case rested primarily on this one witness, and they represented that he was
merely there—
that he only saw the crime," wrote state Supreme Court Chief Justice Jack Holt Jr. "The officers of the
state led
the judge and the jury to believe that they did not know Phillips had changed his story. This was
simply not
true. The record speaks for itself on the actions of the officials."
Fogleman said the appellate opinion was embarrassing, especially because the judges published his
name.
"I learned a very, very valuable lesson," he said. "From that point on, if there was anything, just
about anything,
I provided it to the defense."
In 1990, Fogleman prosecuted Clarence Gillie for capital murder. On the first day of the trial, without
defense
counsel's knowledge, Fogleman filed an additional charge—aggravated robbery, for which Gillie was
later
sentenced to 50 years. On appeal, the state Supreme Court's majority ruled the addition of this
surprise charge
did not prejudice Gillie.
"As I prepared for trial, I concluded that we should file that charge," he said. "That is done routinely
and
approved by the Supreme Court routinely."
Justice Robert Brown dissented because he thought the late addition of charges prejudiced Gillie.
"Not
knowing with certainty whether the client will be charged with a second felony until the date of the
trial places
the defense counsel under a horrendous burden," Brown wrote. "The majority wears blinders when
it says no
prejudice resulted."
Fogleman said he has a great deal of respect for Justice Brown, but he doesn't always agree with his
opinions.
Fogleman's most well-known case involves the gruesome murders of three children in West Memphis
and the
three teenagers whom Fogleman prosecuted for the crimes. In May 1993, searchers discovered the
bodies of
three missing eight-year-old boys in a water-filled ditch. All three were naked with their hands
bound to their
feet, and they had been mutilated, one more severely than the others.
Four days later, with no solid leads in the case, a detective interviewed a neighborhood teenager,
Damien
Echols. In his subsequent description of the interview, the detective said Echols "stated that the boys
probably
died of mutilation" and "he said at least one was cut up more than the others."
When police interviewed Echols, details of the victims' mutilation had not been released to the public.
Detectives subsequently interviewed Echols' friends, Jessie Misskelley and Charles Baldwin.
Without a parent or lawyer present, Misskelley gave police a tape recorded statement, in which he
implicated
Echols, Baldwin and himself in the murders. Misskelley was a special education student with a
history of
behavior problems and an IQ of 72.
"It's not like LA Law on T.V.," Fogleman said. "If he had asked for a lawyer, the first thing a lawyer
would have
done is go in there and tell him not to say another word."
Fogleman said Misskelley's father knew they were interviewing him and had even consented for him
to take a
polygraph test.
Portions of Misskelley's statement matched forensic evidence, including which boy died first and the
types of
wounds inflicted on the victims. The statement, however, contained numerous inconsistencies.
Misskelley
initially said the murders took place at 9 a.m. on a school day. This could not have been the case. In a
second
interview an hour and a half later, he said it must have been 5 p.m. After "prompting by the officer,
he changed
that to 7:00 or 8:00 p.m." He also said the boys' hands were tied with brown rope, while their hands
and feet
were actually tied together with black and white shoelaces from their own shoes.
"When I first saw the interview, there were things in there that were very convincing that Misskelley
was there
and a participant," Fogleman said. "There were other things in there that made you wonder if he was
there at
all."
Fogleman said he had doubts but eventually felt it was in the interest of justice to prosecute all three.
"[Misskelley] was able to point to a school picture and say, this was the boy who was castrated, this
was the
boy who was stabbed in the face," he said. "The only way he could have known was to be there or
have the
officers tell him."
Fogleman prosecuted all three for the murders. He tried Misskelley first. After a jury convicted
Misskelley,
Fogleman tried Echols and Baldwin together.
At their trial, Fogleman presented evidence of their involvement in satanic and occult activities.
Fogleman
defined occult activity in part as "an obsession with heavy metal music, change in forms of dress,
wearing all
black…and I believe the proof will show that [Baldwin] had fifteen shirts with the heavy metal
thing."
"That's not my definition," Fogleman told the Center. "I've got children who listen to heavy metal
music; that
doesn't mean they're Satanist—it was a combination of everything we had and those things were
blown way out
of proportion."
The jury convicted them, sentencing Echols to death and Baldwin to life in prison.
According to the state Supreme Court, there was "substantial" evidence of Echols guilt. But since their
convictions, many have come to doubt it. A campaign to free the "West Memphis Three" has captured
the
attention of journalists, musicians, authors and producers.
"People who are raising questions are not basing it on knowledge," Fogleman said. "They're basing it
on what
they saw in a movie—the second movie was a ‘Free the West Memphis Three' infomercial."
In a 1996 appeal to the state Supreme Court, Echols and Baldwin alleged, among other things, that
Fogleman
abused his subpoena power, failed to disclose evidence, conducted improper communications with
the judge
and made an improper display by cutting a grapefruit with a knife during closing arguments. The
court held
all of these allegations were without merit and upheld the convictions.
In September 2002, the state Supreme Court granted Echols a stay to conduct more sophisticated
DNA testing
of forensic evidence. Echols, Baldwin and Misskelley remain behind bars.
After twelve years as a deputy prosecuting attorney, Fogleman left the office for a judgeship. He is
currently in
his ninth year as a Second Judicial Circuit judge.
defendants
alleged prosecutorial error or misconduct. In seven, judges ruled a prosecutor's conduct prejudiced
the
defendant and reversed or remanded the conviction, sentence or indictment. In four, a dissenting
judge or
judges thought the prosecutor's conduct prejudiced the defendant.
Of the seven convictions reversed on appeal, four involved a prosecutor withholding exculpatory
evidence.
The rest involved improper prosecutorial arguments at trial.
Former Crittenden County deputy prosecuting attorney John Fogleman took part in at least three of
the 54
cases. In one, the court found his conduct to be so prejudicial as to require a new trial. In another, a
dissenting
judge would have reversed a murder conviction because of Fogleman's tactics.
Fogleman and another Crittenden County prosecutor, Scott Hunter, tried David Strobbe for the 1986
murder of
Marian Mullins. Mullins was beaten and run over by a vehicle. The only eyewitness to the murder
was Michael
Phillips, whom the state had also arrested for the murder.
Before the trial, Phillips gave prosecutors and police three different versions of how the murder
occurred. At
first, he denied seeing anything at all. But in a statement later the same day, he said he watched
Strobbe rape
and beat Mullins before running her over with his vehicle.
"When this case started, we didn't view it as two people being involved," Fogleman told the Center.
"To be
honest, I'm not sure to this day that he [Phillips] was actually involved in the murder."
In another statement—his fourth—Phillips provided his third version of events. He told Fogleman
and a
sheriff's deputy that he had helped place Mullins in front of the vehicle so Strobbe could run her over.
"At that point, I was thinking this is different, but it doesn't exculpate [Strobbe]," Fogleman said. "I
didn't view
that as exculpatory evidence, and I didn't feel like I had to disclose it."
Fogleman and Hunter did not disclose to the defense how the state's main witness changed his
testimony. The
state Supreme Court reversed Strobbe's conviction because of their conduct.
"The State knew its case rested primarily on this one witness, and they represented that he was
merely there—
that he only saw the crime," wrote state Supreme Court Chief Justice Jack Holt Jr. "The officers of the
state led
the judge and the jury to believe that they did not know Phillips had changed his story. This was
simply not
true. The record speaks for itself on the actions of the officials."
Fogleman said the appellate opinion was embarrassing, especially because the judges published his
name.
"I learned a very, very valuable lesson," he said. "From that point on, if there was anything, just
about anything,
I provided it to the defense."
In 1990, Fogleman prosecuted Clarence Gillie for capital murder. On the first day of the trial, without
defense
counsel's knowledge, Fogleman filed an additional charge—aggravated robbery, for which Gillie was
later
sentenced to 50 years. On appeal, the state Supreme Court's majority ruled the addition of this
surprise charge
did not prejudice Gillie.
"As I prepared for trial, I concluded that we should file that charge," he said. "That is done routinely
and
approved by the Supreme Court routinely."
Justice Robert Brown dissented because he thought the late addition of charges prejudiced Gillie.
"Not
knowing with certainty whether the client will be charged with a second felony until the date of the
trial places
the defense counsel under a horrendous burden," Brown wrote. "The majority wears blinders when
it says no
prejudice resulted."
Fogleman said he has a great deal of respect for Justice Brown, but he doesn't always agree with his
opinions.
Fogleman's most well-known case involves the gruesome murders of three children in West Memphis
and the
three teenagers whom Fogleman prosecuted for the crimes. In May 1993, searchers discovered the
bodies of
three missing eight-year-old boys in a water-filled ditch. All three were naked with their hands
bound to their
feet, and they had been mutilated, one more severely than the others.
Four days later, with no solid leads in the case, a detective interviewed a neighborhood teenager,
Damien
Echols. In his subsequent description of the interview, the detective said Echols "stated that the boys
probably
died of mutilation" and "he said at least one was cut up more than the others."
When police interviewed Echols, details of the victims' mutilation had not been released to the public.
Detectives subsequently interviewed Echols' friends, Jessie Misskelley and Charles Baldwin.
Without a parent or lawyer present, Misskelley gave police a tape recorded statement, in which he
implicated
Echols, Baldwin and himself in the murders. Misskelley was a special education student with a
history of
behavior problems and an IQ of 72.
"It's not like LA Law on T.V.," Fogleman said. "If he had asked for a lawyer, the first thing a lawyer
would have
done is go in there and tell him not to say another word."
Fogleman said Misskelley's father knew they were interviewing him and had even consented for him
to take a
polygraph test.
Portions of Misskelley's statement matched forensic evidence, including which boy died first and the
types of
wounds inflicted on the victims. The statement, however, contained numerous inconsistencies.
Misskelley
initially said the murders took place at 9 a.m. on a school day. This could not have been the case. In a
second
interview an hour and a half later, he said it must have been 5 p.m. After "prompting by the officer,
he changed
that to 7:00 or 8:00 p.m." He also said the boys' hands were tied with brown rope, while their hands
and feet
were actually tied together with black and white shoelaces from their own shoes.
"When I first saw the interview, there were things in there that were very convincing that Misskelley
was there
and a participant," Fogleman said. "There were other things in there that made you wonder if he was
there at
all."
Fogleman said he had doubts but eventually felt it was in the interest of justice to prosecute all three.
"[Misskelley] was able to point to a school picture and say, this was the boy who was castrated, this
was the
boy who was stabbed in the face," he said. "The only way he could have known was to be there or
have the
officers tell him."
Fogleman prosecuted all three for the murders. He tried Misskelley first. After a jury convicted
Misskelley,
Fogleman tried Echols and Baldwin together.
At their trial, Fogleman presented evidence of their involvement in satanic and occult activities.
Fogleman
defined occult activity in part as "an obsession with heavy metal music, change in forms of dress,
wearing all
black…and I believe the proof will show that [Baldwin] had fifteen shirts with the heavy metal
thing."
"That's not my definition," Fogleman told the Center. "I've got children who listen to heavy metal
music; that
doesn't mean they're Satanist—it was a combination of everything we had and those things were
blown way out
of proportion."
The jury convicted them, sentencing Echols to death and Baldwin to life in prison.
According to the state Supreme Court, there was "substantial" evidence of Echols guilt. But since their
convictions, many have come to doubt it. A campaign to free the "West Memphis Three" has captured
the
attention of journalists, musicians, authors and producers.
"People who are raising questions are not basing it on knowledge," Fogleman said. "They're basing it
on what
they saw in a movie—the second movie was a ‘Free the West Memphis Three' infomercial."
In a 1996 appeal to the state Supreme Court, Echols and Baldwin alleged, among other things, that
Fogleman
abused his subpoena power, failed to disclose evidence, conducted improper communications with
the judge
and made an improper display by cutting a grapefruit with a knife during closing arguments. The
court held
all of these allegations were without merit and upheld the convictions.
In September 2002, the state Supreme Court granted Echols a stay to conduct more sophisticated
DNA testing
of forensic evidence. Echols, Baldwin and Misskelley remain behind bars.
After twelve years as a deputy prosecuting attorney, Fogleman left the office for a judgeship. He is
currently in
his ninth year as a Second Judicial Circuit judge.