Where did Exhibit 500 come from?

Damien Echols told an especially bizarre and preposterous lie in a recent interview with some dimwit named Brian Tallerico at Hollywood Chicago.

This particular lie deals with the origin of Exhibit 500, a compendium of Echols’ psychiatric records from the period leading up to the murders. Here is Echols’ version of events:

ECHOLS: When you have to fight against the other lawyers as hard or harder as you do against the state. Jason [Baldwin]’s lawyers. Their entire agenda was to make me look as guilty as possible, thinking somehow it was going to help him. The number one thing that people quote is Exhibit 500, a mental health report, that comes from the fact that, one day, Jason’s attorneys contacted me and said they had this idea that would be really helpful and great. I was naive. It was years ago. OK, sure, let’s do it. This woman comes and writes up this report that diagnoses me with every single mental illness known to mankind. She can’t even file it herself because she’s already perjured herself and so she takes it to another doctor to file. The number one piece of evidence that people use to try and hurt me wasn’t even filed by the state. It was filed by Jason Baldwin’s attorneys.

HOLLYWOODCHICAGO.COM: You’re fighting people who you think should be on your side.

Like most journalists covering this case, Brian Tallerico displays no skepticism whatsoever even when faced with ridiculous stream-of-bullshit statements like this. So here’s a little free fact-checking.

The dossier which came to be known as Exhibit 500 was compiled by Inquisitor, Inc., a private investigation company owned by Ron Lax. In June 1993, soon after the arrests, Ron Lax volunteered his company’s services for the Echols defense pro bono. Lax also worked with the Misskelley defense team over the next nine months, but had little contact with the Baldwin defense team.

Preparing for the original trial (which took place from February 28 to March 19, 1994), Echols’ defense lawyers had to consider the likelihood of a guilty verdict and to make preparations for the penalty phase. If it reached that point, the defense lawyers hoped to spare their client the death penalty by showing mitigating factors. This is standard practice for a death penalty case.

One of Inquisitor, Inc.’s projects was to compile Echols’ psychiatric records in one big file. Inquisitor employee Glori Shettles did much of this work. She acquired documents from Echols’ three 1992 court-ordered institutionalizations, his 1993 counseling sessions and his Social Security disability application. This file was then provided to psychologist James Moneypenny, who examined Echols before trial and reviewed his psychiatric records.

The jury found Echols guilty on March 18. The penalty phase took place on March 19, and the defense called Moneypenny to testify about Echols’ troubled childhood and recent psychiatric problems. It was not an “insanity defense”, just an attempt to evoke enough pity to keep Echols off death row.

The complete trial transcript is online, including James Moneypenny’s testimony. Moneypenny carried a copy of the Inquisitor-compiled dossier to the witness stand and consulted it during his testimony. During cross-examination, prosecutor John Fogleman asked Moneypenny about specific documents and eventually requested that the full dossier be submitted into evidence.

FOGLEMAN: And in regard — back to the East Arkansas Mental Health Center — you’re familiar with Doctor Irby’s report where he visited with Damien Echols on January 5, 1993?
MONEYPENNY: I can’t recall the specific content of that.
FOGLEMAN: Let me show it to you. And if you would, read the part that I have highlighted in pink. This page has the date. It is on the next page.
And I need you to speak up if you could.
MONEYPENNY: (READING) Reports that he thinks a lot about life after death. Quote, I want to where the monsters go, end quote. Describes himself as, quote, pretty much hate the human race, end quote. Relates that he feels people are in two classes, sheep and wolves. Wolves eat the sheep.
FOGLEMAN: Thank you, Doctor. That would be he thinks a lot about life after death and he wants to go where the monsters go?
MONEYPENNY: That’s what it says.
FOGLEMAN: And then are you familiar with the report from January 25th, 1993?
MONEYPENNY: Do you want me to read this?
FOGLEMAN: Yes, sir, if you would read the part in pink.
MONEYPENNY: (READING) Damien explains that he obtains his powers by drinking blood of others. He typically drinks the blood of a sexual partner or of a ruling partner. This is achieved by biting or cutting. He said, quote, it makes me feel like a god, end quote.
FOGLEMAN: It makes him feel like what?
MONEYPENNY: A god.
FOGLEMAN: A god. Okay. Go ahead.
MONEYPENNY: (READING) Damien describes drinking blood as giving him more power and strength.
Then later on the page — (READING) He has also agreed to continue to discuss his issues with power and control as related to his practice of rituals.
FOGLEMAN: And then, finally Doctor, are you familiar with the report where he was seen on January 19th, 1993?
MONEYPENNY: Not the specific content.
FOGLEMAN: You reviewed these reports?
MONEYPENNY: Yes.
FOGLEMAN: If you would read this part?
MONEYPENNY: (READING) Quote, I just put it all inside, end quote.
(READING) Describes this as more than just anger like rage. Sometimes he does, quote, blow up, end quote.
(READING) Relates that when this happens, the only solution is to hurt someone. That’s in quotes.
(READING) Damien reports being told in the hospital that he could be another Charles Manson or Ted Bundy. When questioned on his feelings he states, quote I know I’m going to influence the world. People will remember me, end quote.
FOGLEMAN: We would offer State’s Exhibit 500, these medical records.
[Echols defense lawyer Val] PRICE: We have no objection, your Honor.
THE COURT: All right, without objection, they may be received.

And that’s why we have access to Damien Echols’ psychiatric records for the year before the murders.

Jason Baldwin’s lawyers played absolutely no role in compiling this dossier or in making it part of the trial record.

The notion that one person “wrote up” Exhibit 500 is beyond preposterous. The dossier includes records written by several doctors, nurses, psychologists and social workers in Arkansas and Oregon. It includes Social Security application forms filled out by Echols himself. Is Echols claiming that Glori Shettles forged all these documents?

Anyone with an interest in this case should be familiar with Exhibit 500, not every document but at least a general sense of what’s in it and how it became public. This site’s Damien Echols profile page summarizes the contents. For a journalist interviewing Echols to not know this stuff and to accept Echols’ bullshit at face value is unreal.

Jennifer Bearden in West of Memphis

The Paradise Lost films never dealt with Echols, Baldwin and Misskelley’s alleged alibis in any detail. The new film West of Memphis fills that gap with lots of alibi claims. Our case history section has a page devoted to the murderers’ failed alibis. This post looks at one particular alibi witness whose name has popped up repeatedly over the years and who shows up in West of Memphis: Jennifer Bearden.

Timeline background: many locals reported seeing the three murdered boys between 5:30 pm and 6:30 pm within a block or two of the entrance to Robin Hood Hills. They were last seen heading into Robin Hood Hills around 6:30 pm. Police, family members and friends started searching in and around Robin Hood around 8:15 pm. All the evidence indicates that the murders took place sometime between 6:30 and 8:00 pm near the ditch where the children’s bodies were found.

Echols changed his alibi several times. At trial, he claimed that his parents and sister picked him up around 4:00 pm on May 5 and drove him home. Aside from a family visit to the Sanders home between 7:00 and 7:30 pm, he was home all afternoon and night with his parents and grandmother. Echols stated on the witness stand that he talked to four different girls on the phone that night: “Holly George, Jennifer Bearden, Domini Teer, Heather Cliett”.

However, the Echols defense did not call any of George, Bearden, Teer or Cliett as alibi witnesses. There was a good reason for this. The police had interviewed all four girls, and none of them supported Echols’ alibi. They all claimed to have talked to Echols by phone on May 5, but none of those calls took place between 5:30 pm and 9:20 pm. Obviously phone calls before 5:30 pm or after 9:20 pm are irrelevant to Echols’ whereabouts between 6:30 and 8:00 pm. And on key points, all four girls’ earlier statements to police contradicted the story that Echols told on the witness stand.

Filmmakers don’t have to worry about cross-examination or explaining contradictions, of course.

Jennifer Bearden was 12 years old at the time of the murders. In a 2004 affidavit, she described her relationship with Echols:

It was in either late February or March of 1993 that Holly [George] and I met Jason and Damien. […] From the time that I met them to [the day prior to their arrest], I talked to Damien almost every day on the phone. […] I also saw Jason and Damien at Skateworld almost every weekend after we first met them. […] Damien and I had been an item, meaning that Damien and I had a teenager’s boy-girl relationship.

Bearden talked to WMPD detectives in September 1993. (The film shows Bearden reading from a transcript of this interview.) She told them that on May 5 she (a) called Baldwin’s house and spoke to both Jason and Damien sometime between 4:15 and 5:30 pm; (b) tried calling Echols at home at 8:00 PM, at which time Damien’s grandmother said Damien was not home; then (c) “I called back around 9:20, 9:30 and I talk to [Damien] for a little bit”. In this later call, she said Damien told her that he had been out with Jason Baldwin that evening. In her 2004 affidavit, Bearden repeated this account with slight variation: the phone call in which Damien’s grandmother told her Damien wasn’t home was a little after 9:00 pm, and her phone call with Damien “began at around 9:30 pm and ended around 10:00 pm”. Bearden again repeated this account at the Baldwin/Misskelley Rule 37 hearings in 2009, with the grandmother call sometime between 8:30 and 9:00 pm.

The problems for Echols’ alibi should be obvious. By her own account, Bearden had no knowledge of Echols’ whereabouts between 5:30 and 9:20 pm. Her statement that Echols was at Baldwin’s house around 4:30-5:00 pm directly contradicted Echols’ claim that he was at his own home (several miles away) then. Her statement that Echols was not home at 8:00 pm (or 9:00 pm or 8:30 pm) directly contradicted Echols’ claim to have been home all night. Echols claimed he did not spend any time with Baldwin on the afternoon or evening of May 5 — but Bearden told detectives that Echols told her at 9:30 pm that he had been out that evening with Baldwin.

In West of Memphis, Bearden complains that she was “never given a chance” to testify at the Echols/Baldwin trial. Never given a chance by whom? Echols’ defense lawyers had the opportunity to call Jennifer Bearden as a witness in 1994. They chose not to. The prosecution actually obtained an “Order for Attendance of Witness From Without the State” requiring Bearden to be available to testify. Repeat: the prosecution made sure she was on hand to testify, and the defense chose not to call her.

Despite all this, Echols’ appellate lawyers have continued to cite Bearden as an important alibi witness. One 2008 petition for a new trial included this bald-faced lie: “the declaration of Jennifer Bearden, who has absolutely no reason to perjure herself to assist Echols, puts him on the phone with her at the time the boys disappeared miles away.” Speculation about Bearden’s motives or honesty aside, the fact remains that the boys disappeared at 6:30 pm, while Bearden’s declaration puts Echols on the phone at 9:30 pm.

Echols’ lawyer Dennis Riordan used the same ploy in 2010 oral arguments before the Arkansas Supreme Court.

ASSC (Justice Robert Brown): I’m talking about consideration as to whether a new trial should be granted under the standard of compelling evidence. What evidence would be considered?

Riordan: Your Honor, we would submit that — that the answer to that question lies in section 208(e)(3) which says that the court is to consider the DNA evidence along with all other evidence whether or not admitted at the first trial. There’s certainly nothing in the term “all” that would suggest all means only some and some means only evidence of guilt. But let me give you an example. We submitted to the court a declaration from a witness who at the time of these offenses or soon thereafter in 1993 was interviewed by the police and stated that she was on the phone with Mr. Echols at 9:00 which would have made his participation in these crimes impossible.

The ASSC justices apparently did not know what time the three murdered boys went missing, because no one challenged Riordan’s claim.

An adversarial system of justice permits defense lawyers to play fast and loose with the facts. But what about documentary filmmakers? Should audiences expect more honesty?

The filmmakers behind West of Memphis have been immersed in this case longer than I have. They know what Jennifer Bearden said in 1993 and 2004 and 2009. They know that her account never supported Echols’ alibi. They know that Echols’ defense lawyers chose not to call Bearden as a witness in 1994. There’s no ambiguity here. For them to include Bearden in the movie as supporting Echols’ alibi is flatout intentional deception.