Part of the Misskelley defense’s trial strategy was to portray Jessie Misskelley as a highly suggestible person who would falsely confess to anything an authority figure proposed.
Before trial, defense psychologist William Wilkins tested Misskelley’s suggestibility using techniques developed by Icelandic psychologist Gisli Gudjonsson. Wilkins found that Misskelley scored high on the Gudjonsson Suggestibility Scale. The defense hoped to introduce this finding at trial, but judge Burnett ruled that the Gudjonsson Suggestibility Scale “does not meet a scientific standard upon which the profession generally relies [and] that Doctor Wilkins’ absence of experience, training and education in the utilization of the test would fatally flaw any results that he might conclude from such test.” (The Arkansas Supreme Court upheld Burnett’s ruling.)
As part of this suggestibility testing, lead defense lawyer Dan Stidham and defense psychologist William Wilkins conducted an experiment on Jessie Misskelley in a videotaped December 10, 1993, meeting. Stidham and Wilkins told Misskelley they had proof that he had robbed a local convenience store at gunpoint. This robbery never occurred; Stidham and Wilkins invented the story in hopes of convincing Misskelley to “confess” to the non-existent crime.
Stidham and Wilkins both later claimed that this experiment had worked. Wilkins slipped this claim into his trial testimony, even though the judge had ruled it inadmissible just minutes earlier.
DAVIS: Any significant changes that we should be aware of in your nine-page report that you made based on those first eleven hours?
WILKINS: Um, one of the sessions with Jessie was, uh, I made up a false story; in about a half an hour got Jessie to confess to a robbery that didn’t occur—
DAVIS: Your Honor, Excuse me, your Honor we’re going to have to approach the bench on that one.
DAVIS: I had never heard this story before, but I think what he’s getting ready—he, it’s some sort of creative test that he came up with where he created a false story and then, as I understand it he’s gonna say that in ten minutes he had Jessie confessing to something in his office regarding some made-up story about—
THE COURT: Well, I’m not gonna allow that.
FOGLEMAN: I think he already testified to it, your Honor, and we’d ask that it be stricken—
(speaking over each other)
RETURN TO OPEN COURT
THE COURT: All right, ladies and gentlemen, the last answer was not responsive to the question asked by the prosecutor; you’re instructed to disregard the last answer of the witness as unresponsive to the question directed to him.
Dan Stidham’s Case Synopsis at wm3.org includes the same claim.
As part of an experiment, Dr. Wilkins and myself were able to get Jessie to confess to committing a robbery that never occurred. This was ruled inadmissible by the Court, and the jury never knew this. I often bragged that I could get Jessie to confess to killing JFK, although he wasn’t even born in 1963. I am still convinced I could get him to confess to almost anything.
Stidham kept the videotape of the December 10, 1993, meeting at which this fake robbery mindfuck experiment occurred. As far as I can tell, he did not make the videotape or a transcript available to prosecutors or outside researchers. Nonetheless, “Free the WM3″ partisans took Stidham’s and Wilkins’ account at face value and frequently cited this supposed evidence of Misskelley’s highly suggestible nature.
The Baldwin/Misskelley Rule 37 hearings in 2008-2009 made the 12/10/93 videotape public for the first time. (In the Rule 37 appeal, Misskelley and Baldwin were basically arguing that they deserved new trials because their original lawyers had been incompetent. Stidham and the other original defense lawyers were required to turn over their case files. This revealed a great deal of previously confidential information to prosecutors, and much of that information ended up in the trial record.) The Callahan WM3 case archive posted full Baldwin/Misskelley Rule 37 hearings transcripts in April 2012, which included a 70-page transcript of the December 10, 1993, meeting (PDF).
So let’s hear it! How did Stidham and Wilkins convince Misskelley to confess to the fake robbery?
WILKINS: You ever robbed a store, Jessie?
MISSKELLEY: Robbed a store?
MISSKELLEY: I ain’t never robbed nobody.
WILKINS: Strange. Because there’s a report that said you did.
MISSKELLEY: A report?
MISSKELLEY: I ain’t never robbed no store.
MISSKELLEY: I’m positive.
STIDHAM: There’s a Flash Market by your house?
STIDHAM: There’s a Flash Market by your house?
MISSKELLEY: Flash Market? That’s down the road, by the court- house.
STIDHAM: Yeah, is that the one?
MISSKELLEY: Saying I robbed it?
MISSKELLEY: They’re lying. I ain’t never robbed nobody.
WILKINS: Have you ever been in there?
MISSKELLEY: Have I been in the Flash Market?
WILKINS: Uh-huh. (Affirmatively indicating.)
MISSKELLEY: Yeah, I’ve been in the Flash Market a bunch of times.
MISSKELLEY: Been in to get cigarettes, put gas in the car.
WILKINS: Ever been in there with somebody else?
WILKINS: Ever been in there with somebody else?
MISSKELLEY: Yeah, with my dad.
WILKINS: Your dad? Anybody else?
MISSKELLEY: My cousin.
STIDHAM: What’s his name?
MISSKELLEY: His name is Charles Ashley.
WILKINS: Bubba is — – yeah, yeah, he’s the other one I was talking about.
STIDHAM: He’s the one that told the police that you did it.
MISSKELLEY: Huh? Huh—uh. (Negatively indicating.)
STIDHAM: He’s the one that told the police you went in there with a gun.
MISSKELLEY: I ain’t got no gun. I don’t even own one.
STIDHAM: Why would he say that?
MISSKELLEY: I don’t know. Ridge and Gitchell told ‘em that he was in on it, too.
WILKINS: He’s “in on” what?
MISSKELLEY: Huh? This stuff, killing and stuff.
WILKINS: He said that Bubba was in on it, too?
MISSKELLEY: They asked me was he on it, in on it, and I don’t know.
WILKINS: They said he was?
MISSKELLEY: Uh-huh. (Affirmatively indicating.) They asked me, “Are you sure?” I said, “I’m positive.” I only been to one store, and we was down the street when somebody was stealing something.
WILKINS: Who was that?
MISSKELLEY: It was me, Richard Lovelace, William Jones and, uh, Scott something.
WILKINS: What’d you steal?
MISSKELLEY: I didn’t steal nothing. We was down the street waiting for them. It was William and Scott is the ones that stole.
STIDHAM: What day was this?
MISSKELLEY: It’s been a while back.
STIDHAM: Did they have a gun?
MISSKELLEY: Huh—uh. (Negatively indicating.) All they did was went in the store, grabbed some – - grabbed a beer.
STIDHAM: Was it the Flash Market?
MISSKELLEY: It was in West Memphis.
STIDHAM: Was it the Flash Market, though?
MISSKELLEY: Huh—uh. (Negatively indicating.)
STIDHAM: Bubba says that you and him went in with a gun and stole some stuff and got some money out of the cash register.
MISSKELLEY: No, I don’t even know about it.
STIDHAM: Why would he say something like that?
MISSKELLEY: I don’t know.
WILKINS: Ever held a gun?
MISSKELLEY: Yeah, I held a gun.
MISSKELLEY: I held a gun before.
MISSKELLEY: My dad’s.
WILKINS: What is it?
MISSKELLEY: Well, it was my grandfather’s gun. Somebody sold it for some drugs. And my dad had a .25 when I was little, and I held it. I had a .22 and then I carried it back where I bought it from.
WILKINS: Why did you do that?
MISSKELLEY: It tore up. It wouldn’t eject the shells.
WILKINS: But you didn’t rob anybody?
MISSKELLEY: I would never pull a gun on nobody.
WILKINS: You’ve pulled a knife on people, don’t you?
WILKINS: And you’ve pulled a knife on people?
MISSKELLEY: Pulled a knife on people?
MISSKELLEY: (Not answering.)
WILKINS: And a ball bat (inaudible)?
MISSKELLEY: Yeah. If they make me mad enough, I would. Just like Dino, he got me mad one night ‘cause he was drinking. He got me mad. And I pulled a gun on him.
WILKINS: You pulled a gun on him? You don’t have a gun, you said.
MISSKELLEY: I know I don’t, but I pulled one on him.
WILKINS: Where’d you get it?
MISSKELLEY: I took it from my dad.
WILKINS: Is that the same one you robbed the store with?
MISSKELLEY: Hmm. I didn’t rob no store.
WILKINS: Look, Jess, I just, I mean, you said you’d never pulled a gun on anybody, you wouldn’t do that…
MISSKELLEY: …not unless they got me mad enough.
WILKINS: Got you mad. People try to get you mad, it’s all right to pull a gun on them?
WILKINS: Who first started? What got you mad?
MISSKELLEY: Dino’s got me mad before; I pulled a gun on him.
WILKINS: But, but, but people started it, too, then?
MISSKELLEY: Yeah, they start it.
MISSKELLEY: Yeah, they start stuff. That’s why people’s lying now, saying I robbed the store. I hadn’t got a gun to rob a store. See, people lie ‘cause they don’t like me, that’s what it is.
WILKINS: Better than that, let’s step back Jessie. Now you said, okay, you’ve never pulled a gun on anybody; right?
WILKINS: Then you said, “I pulled one on Dino one night because he got – - he pissed me off”?
MISSKELLEY: ‘Cause I won’t — — peop — — people make me mad. I’ll pull a ball bat and I’ll pull a knife on them if they make me mad.
WILKINS: And then you said, “I don’t own a gun”?
MISSKELLEY: I don’t.
WILKINS: Then you said, “I got a gun and pulled it on Dino.” Now you know, this ain’t making sense, Jessie; okay?
MISSKELLEY: You asked me did I pull a gun, uh, pull a knife and a baseball bat on people?
WILKINS: Uh-huh. (Affirmatively indicating.)
MISSKELLEY: Yes, if they make me mad enough. So I, I pulled a gun on Dino, when me made me mad.
STIDHAM: Well, Jessie, did it make you mad when that lady that you robbed at the store, and she called you a little faggot, did that make you mad?
MISSKELLEY: Little lady?
STIDHAM: While you was working at the store at the Flash Market?
MISSKELLEY: I don’t know nobody…
STIDHAM: …she said she called you a little faggot, and you got mad and pulled a gun and you took the money.
MISSKELLEY: No. I don’t know no woman at the Flash Market that’s short; my dad does, but I don’t. I don’t know her. He knows everybody works at the Flash Market. I don’t.
WILKINS: Well, you’ve been in there, haven’t you?
MISSKELLEY: Yeah, I’ve been in there with him.
WILKINS: And so, and so essentially, they know what you look like now, don’t they, in there?
WILKINS: And they know who you are?
WILKINS: Okay. She says…
STIDHAM: …I’m going to get a drink of water.
WILKINS: She says you came in there and was shoplifting shit. And she caught you and called you a little faggot and you got mad at her and pulled out a gun.
MISSKELLEY: People lie.
WILKINS: I’ll be back in a second.
STIDHAM: Well, I’m going to go down the hall and make that phone call again and see if they’ve got that tape.
[Stidham leaves the room; tape still running. Phone rings and Wilkins answers: “Yes. Okay, so it’ll be here when? Okay. Good. Thanks.”]
WILKINS: That tape’s on its way, Jessie. So here we are. Let’s talk about the robbery, Jessie.
MISSKELLEY: Who are you talking to?
MISSKELLEY: You ain’t talking to me.
WILKINS: Yes, I’m talking to you.
MISSKELLEY: No, you ain’t, either.
WILKINS: Why not?
MISSKELLEY: Talk to yourself. I’m not talking.
WILKINS: You’re not talking?
MISSKELLEY: Huh—uh. (Negatively indicating.)
WILKINS: You damn well are now.
WILKINS: Look, Jess, okay? Let’s quit this shit. You lied to the police; Jess? [Door opens, closes. Telephone rings. Very long pause. Footsteps into the room.]
After the very long pause, the conversation turned to the events of June 3, 1993. The fake robbery store never came back up.
After this videotape was played in court at the Rule 37 hearing on November 19, 2008, the lawyers discussed its contents.
THE COURT: Was that the end of it? Is that kind of like the Nixon tapes? Is that it?
[Prosecutor Brent] DAVIS: Since I have never seen the original and I just saw this, part of this just last night and never got that far, I don’t know it ended prematurely or if that is the end.
STIDHAM: Your Honor, if I may elaborate for purposes of the record, I, I think that somehow during the transmission from VHS to digital format, that there may be some parts of the interview that, that are missing.
THE COURT: Where is the VHS tape?
[Misskelley's appeals lawyer Jeff] ROSENZWEIG: We have the original, Your Honor.
THE COURT: Is it the same?
ROSENZWEIG: I’ve not compared it, but we have the original.
STIDHAM: There are gaps in this one, and then there wasn’t any gaps in the original VHS tape, as I recall.
THE COURT: Well, you better take a look at it.
STIDHAM: Since it appears that I will be making an appearance again in the morning, Your Honor, I will be happy to, uh, uh, review the VHS tape this evening and report, uh, back to the lawyers.
THE COURT: I’m going to let the lawyers do it.
DAVIS: Dan, you’ve had an opportunity to listen to the video of December 10, ’93, uh, made between yourself and Dr. Wilkins and also Jessie Misskelley?
DAVIS: Okay. And you heard him, you heard the description of Jessie Misskelley as to the circumstances that surrounded the taking of his statement and the polygraph exam, where it occurred, the details of that; you heard him describe that?
STIDHAM: I did.
DAVIS: Okay. Was it, I mean, did you find that lacking in details and lacking in description of what had occurred?
STIDHAM: I found it to be dramatically different than all of the other times that I had talked to him and didn’t bother to record the, uh, interviews. Each time that I would talk to him, it would be different. And that’s why I stated earlier that a lot of times it was almost as if I didn’t have a client, because — – I made some notes, uh, there were a couple of times when I would say, “was it Ridge, or was it Gitchell that told you about the circle?” And he would say, “Ridge.” And I would say, “Are you sure?” And when he realized that that wasn’t the answer that I was ask- ing for, he would quickly change his answer to an attempt to, uh, uh, comply with what he thought was the correct answer. And, and that goes to, uh, Mr. Misskelley’s suggestibility, which we tried without success in introducing it in trial.
DAVIS: And all of this stuff of the tape about the Flash Market and everything, that was a little ploy that Dr. Wilkins and yourself were using to try to concoct some sort of fabricated criminal act and accuse him of having done it, and to see what his reactions would be?
STIDHAM: It was an experiment based on, uh, Dr. Gudjonsson’s suggestibility scale that again, we attempted to try to introduce at the time of trial, and when it got to the point to where Mr. Misskelley got angry and walked out, there was a gap, uh, so that’s why I suspect that there may be a difference between the digital format and the VHS format, because my recollection of the events is that Mr- Misskelley came back in the room and, uh, uh, Dr. Wilkins and I, uh, proceeded to tell him that there was a video tape of the armed robbery, uh, that was taken by the security cameras. And, uh, he said, “0kay, I did it.” And that’s not on the DVD that we just watched.
DAVIS: So that would have been the gap of the whole purpose of you being there, and that part of it is off the tape?
STIDHAM: It appears to be. And sometimes when you — — these machines that they make that transfer tapes to digital, some- times they, they make skips and jumps and, uh, also this tape that I discovered last night in my vault, I noticed that when I put it in the tape recorder, the first part of the tape had deteriorated, uh, I guess just because of age, uh, it’s been nfifteen years, and uh, after it got past a certain part then you could understand it better and it wasn’t near as staticy, so that’s why I think that there is a discrepancy. Also, I clearly. remember, and I was looking through the trial transcripts, uh, while the DVD was playing, uh, we attempted to introduce that, uh, experiment into evidence which, uh, I believe, uh, John Fogleman objected to and the Court sustained the motion, uh, stating that since Mr. Misskelley has not, hadn’t testified, that it was hearsay, I believe was the Court’s ruling. Uh, I haven’t had a chance to finish reading the transcript, but we did attempt to offer that as part of the suggestibility scale. Uh, but it’s clear that Mr. Misskelley, as you, as everyone in the courtroom saw, uh, is, you can pretty much lead him anywhere you want to lead him as far as asking him questions and putting pressure on him.
Dan Stidham did return to testify the following day, November 20, 2008. Neither Stidham nor Misskelley’s appeals lawyers brought the alleged missing portions of the December 10, 1993, videotape to court.
The subject never came up. (See ADDENDUM below; this matter came up during Tim Derning’s testimony on 11/20/2008.)
So there are two possibilities: (1) the fake robbery mindfuck experiment worked, Misskelley false-confessed to the fake robbery, Stidham got it on tape; but that portion of the tape accidentally got deleted in the VHS->DVD transfer, and no one caught this mistake before court; Misskelley’s appeals lawyers had the missing portion on VHS, the judge offered to let them bring the missing portion to court and play it, but the appeals lawyers didn’t bother … or (2) the fake robbery mindfuck experiment failed, Misskelley continually denied committing the fake robbery despite Stidham and Wilkins’ efforts, Stidham got it on tape; Stidham and Wilkins then lied and claimed that the experiment did work; the Rule 37 hearing required Stidham to make the videotape public, which revealed that Stidham and Wilkins had been lying all along; Stidham chose to brazen it out and pull the legal equivalent of “the dog ate my homework” and keep lying.
The existing transcript shows Misskelley resisting the fake robbery scenario consistently and firmly. If the Gudjonsson Suggestibility Scale is legitimate science (of which I’m not convinced) and the fake robbery scenario is a legitimate way to evaluate suggestibility, then Misskelley comes across as highly NON-suggestible and non-submissive to authority figures. If anything, he gets downright surly and combative toward Stidham and Wilkins as they push the fake robbery story. Misskelley frequently lies of his own accord in these 1993-94 interviews, but there’s no evidence of him being easily manipulated into repeating lies suggested by others.
JULY 20 ADDENDUM: Reading further in the Rule 37 hearing transcript, I found this exchange between Brent Davis (prosecutor) and Tim Derning (psychologist hired by Misskelley legal team to evaluate Misskelley around 2004) on the day after the 12/10/93 videotape was played in court.
DAVIS: Okay. Did you ever see anything on that DVD, because there was some testimony to it, on what you were provided, did you see anything on there where a, uh, the defendant was presented with a scenario of a, of being falsely accused of robbing the Flash Market and that he broke down and confessed to it on video?
DERNING: Uh, no, I was told that that was missing, uh, from the video that I was watching. There was forty minutes…
DAVIS: …did you later learn that forty minutes…
DERNING: …forty minutes: that’s correct, that’s missing from that. Elt was described as like the Nixon’s Rosemary Woods where the tape’s deleted. So I couldn’t see it; it wasn’t there.
DAVIS: Did they inform you that after they went back and actually checked the original, it’s not on the original either?
DERNING: Uh, no, I didn’t know that.
DERNING: I didn’t think that it was chicanery; it would have been something probably helpful to the defense, but it just wasn’t there. I don*t know why not or what happened to it or anything like that.
DAVIS: The part you observed is when they’re telling about there is a false charge of the deal at the Flash Market, and he’s looking at them like that are crazy: right?
DERNING: Uh-huh. Yes.
DAVIS: Okay. Looking at Dr. Wilkins kind of like “what in the world are you talking about — — I ain’t done nothing”?
DAVIS: And that would be consistent with somebody who when presented with false information, holds his own; right?
DERNING: For that moment; yes.
So they did check the original videotape overnight, and the alleged missing portion where Misskelley confessed to the fake robbery was not there. It never happened. Wilkins and Stidham both lied under oath.