When Prosecutions Go Wrong

It's one of those news stories you don't really expect to hear: That three men, convicted of the gruesome murder of three children during the satanic panic of the late 1980's and early 1990's, have been freed - the so-called "West Memphis Three".  Serious doubts were raised about the case before the defendants were convicted, but it appeared that they were destined to spend their lives behind bars.

The case stands in many ways as an exercise in contrasts with Casey Anthony - instead of a reasonably attractive woman, the defendants were three teenage boys at the margins of society, easily cast by the prosecutor as having killed the children as part of a fantasized satanic ritual. One defendant, whose IQ is reported to be 72, confessed and retracted, pretty much sealing his fate. The others, implicated in the confession, were apparently convicted in no small part due to the misconduct of the jury foreman. But the evidence, including the confession, was thin - what you really had were three scary teens crossed with a popular culture that was remarkably receptive to theories of hideous crimes being committed against children by the many satanists they imagined were living among us. The prosecutor is puffing his chest and pretending that the deal that freed the three defendants is somehow made necessary by the passage of time. I'm not going to repeat the facts of the crime, but I don't believe that for a moment. If the prosecutor believed he had a strong chance of again convicting the three he would be refusing deals and insisting upon a new trial.

The problem for the prosecution is not that evidence has been lost - it's that evidence has been found. Specifically, DNA evidence implicating the stepfather of one of the boys, who just happens to be the last person to see the boys alive. If the prosecutor announced that he believed the three were innocent, he would have to explain why he was not prosecuting the most likely suspect (at this point, more likely than the three his deal just released), the answer being "Because the trial and the decades of defense of a terrible investigation and problematic prosecution have created an environment in which a conviction of anybody else would be all-but-impossible". And let's not forget, the deal the prosecutor cut pretty much eliminates the possibility of a civil lawsuit.

The case reminds me of the prosecution of Randall Adams, publicized in The Thin Blue Line. The prosecution in that case, after slipshod investigation, pursued an innocent adult with no criminal record and overlooked overwhelming evidence that the then-juvenile who committed the crime was the perpetrator. Cynics have suggested that the choice to prosecute Adams was motivated in part by the fact that, in a killing of police officers, the prosecutor wanted to secure a death sentence. I think it's simpler than that: Having focused on a particular narrative, the police and prosecutor turned a blind eye toward anything that interfered with their narrative. Was there evidence that should have caused them to reconsider? Yes - and a lot of it. But they weren't interested.

In the "West Memphis Three" case, having quickly secured a confession from one of what we might call "the usual suspects" - kids who didn't look quite right and certainly didn't behave within the expected norms of the community - there was no need to look at the rest of the evidence. Three kids disappear somewhere, the last person to see them alive is a stepparent of questionable character? That's the sort of scenario that should have the police taking a long and hard look at stepdad. But no, they were already fixated on the "evil teenage satanists".

Once you fall under the shadow of suspicion it's difficult to find your way out. In relation to the Casey Anthony case, some argued that the prosecution hadn't shown where or how a crime occurred so she shouldn't be convicted. My response remains, the evidence was legally sufficient for a conviction and for upholding the conviction on appeal. Yes, it was circumstantial, but there was sufficient evidence to support an inference by the jury of first degree murder. Casey Anthony didn't have any satanists to point at when she suggested that she had no idea how her child ended up in a shallow swampy grave, so she was the obvious suspect. What's amazing is how little of a hand wave it can sometimes take to distract your audience from what's actually happening.