What next for WM3?
Key ruling will require much more time.by Gerard Matthews
But a new trial, let alone a favorable verdict for Echols, Baldwin and Misskelley, will likely take a considerable amount of time. Echols has been sentenced to death. Baldwin and Misskelley are serving life sentences.
Lorri Davis, Damien Echols' wife, was so encouraged by the recent decision she suggested the evidentiary hearing be skipped in favor of going directly to trial to save time and money. That's unlikely to happen. But the ruling does serve as a bright spot for those who have supported the cause over the years.
Brent Peterson is a founding member of Arkansas Take Action (ATA), a group set up in 2007 to advocate on behalf of the West Memphis Three. He's hopeful things will happen quickly.
"I'm really hoping to get them out by some time next summer. That might be a little much, but I would like to see them out of there by then," Peterson says.
Things may not move that quickly. Lonnie Soury, a consultant for ATA who runs a public relations/public advocacy firm in New York and who started the blog FalseConfessions.org, says it's going to take time to get all the sides together.
"There's a long way to go," Soury says. "And I don't want to be negative, this is a huge decision. I think Lorri said this was the best news Damien has had in 17 years on Death Row. I think this is essentially the end, but the battle to free them is just heating up."
There are a number of important issues that must be determined. First, who will be the judge? Circuit Judge David Burnett, a newly-elected state senator, will no longer hold that position. The administrative judge of the Second Judicial Circuit, Ralph Wilson Jr., will select one of the 11 judges from the district to hear the case as soon as the order for a new hearing becomes final on Nov. 25. Three judges will likely recuse themselves: John Fogleman, Brent Davis and Randy Philhours. Fogleman and Davis served as prosecutors during the original trial. Philhours served as deputy prosecutor under Davis at a time when he was handling the matter for the state.
Wilson could not mention specifics but said the process was underway.
"I sent an e-mail out to all the judges the day the opinion came down," Wilson says. "All the judges here have a pretty heavy and extensive docket. That judge will just have to work it in. The others will have to pick up any slack that they could. I imagine the Arkansas Supreme Court, or the chief justice, will assign a special judge or two to take up the slack of the judge that is assigned that case."
Once a judge is selected, he or she will talk with legal counsel from each side about the best time to schedule an evidentiary hearing, which is no small task given the attorneys' busy schedules.
Jeff Rosenzweig is an attorney for Jessie Misskelley. He doesn't expect a hearing to begin until the second quarter of next year.
"All the lawyers have schedules that have a significant amount of trials that are already set for the first quarter of 2011, so I don't anticipate anything of substance happening before the second quarter or the summer ... Just looking at my schedule, I'm set to be in court basically the entire months of January, February and March, so I would not be able to do anything before April or May," Rosenzweig says.
Another issue is whether the three hearings will be held at once or separately. Rosenzweig says the hearings will likely be held together given the level of "commonality" between them. The Supreme Court ordered new hearings in each case so that new DNA evidence could be considered. Financially, that makes sense too, says Soury.
"We have forensic experts and they don't come free. So we're going to pay them, and then the state will have its defense. It just doesn't make sense to bring all these people back three times," he says.
As for where the hearing will take place, that's up to the judge, but Rosenzweig says the hearing will likely be held in Jonesboro.
"Since there's no jury, he can hold court, as a practical matter, anywhere there's an available courtroom in that district. Jonesboro, between the courthouse and the courthouse annex, has sufficient extra courtrooms. So I would expect we would hear it there," he says.
And that's just the evidentiary hearing. If successful, Echols, Baldwin and Misskelley would then go on to new trials, unless the state made the decision not to prosecute them again. Or they could appeal an unsuccessful outcome. So any real completion of this controversial case is some time away.
Soury says time is on Echols' side.
"Time could be Damien's best friend. One of the important things is we know there are witnesses out there. We're still asking people to come forward, to call our tip line. There's still an issue of who did this. From our perspective, we think other people did it. In every wrongful conviction, the perpetrator is in the community. If one believes that Damien, Jesse and Jason did not commit this crime then who did? More evidence and witnesses don't only help [these three], they help the community solve a crime."