Judge: Physical evidence not public record in Arkansas case

Posted: Wednesday, October 31, 2012 8:00 pm

LITTLE ROCK, Ark. (AP) — Evidence collected in the high-profile 1993 murders of three Cub Scouts in northeast Arkansas cannot be released to their parents under the state’s open records law, though they may be able to pursue other legal avenues, a judge ruled this week.
The ruling came in a lawsuit that seeks access to evidence in the slayings of 8-year-old friends Stevie Branch, Michael Moore and Christopher Byers. Three men, known as the West Memphis Three, were convicted as teenagers for the murders in 1994 but released last year following years of questions about the case.
Branch’s mother, Pam Hicks, and Byers’ father, John Mark Byers, argued in the lawsuit that police and prosecutors violated Arkansas’ Freedom of Information Act by not allowing them to examine items, including a bicycle and clothing.
In a ruling filed late Monday in Crittenden County, Judge Victor Hill said neither West Memphis police nor prosecutor Scott Ellington violated the open records law. But the judge added: “These items might be available for viewing under some other provision of the statutory or common law, which plaintiffs are free to argue at a later hearing.”
Hicks’ lawyer, Ken Swindle, said late Tuesday that he respectfully disagreed with Hill’s decision but noted that the judge didn’t close the door on the case.
“We’re not going to appeal right now because we still have to have another hearing on the common law rights, so the case is not over,” Swindle said.
David Peeples, the West Memphis city attorney, said the judge’s decision shows that FOIA applies to public records and is not a vehicle for someone to view physical evidence.
“Whether or not the police department at some point finds that they want to make arrangements to do something different, that’ll be a discussion for another day, but not under the Freedom of Information law,” Peeples said.
Swindle has said that Hicks and Byers simply want to see the evidence, not keep it, and argued the evidence was public since it was presented during trial. Although the judge wasn’t swayed by the argument, he praised the reasoning.
“The plaintiffs offer an ingenious argument for why these articles should be deemed ‘public records,’ in that they were presented to members of a jury to transmit relevant information to them,” the judge wrote. “However, given a plain reading of the Act, and the holdings of the Supreme Court, it is clear that the court may not accept plaintiffs’s interpretation.”
The case of the West Memphis Three has long haunted residents in West Memphis, which is just across the Mississippi River from Memphis, Tenn. The boys were found naked and tied up, and rumors of Satanism emerged during the initial investigation.
Three teenagers — Damien Echols, Jason Baldwin and Jessie Misskelley — were convicted of killing the boys in 1994, after Misskelley confessed and implicated himself, Echols and Baldwin. Misskelley later recanted, but he and Baldwin were still sentenced to life in prison and Echols received a death sentence.
Now grown men, the three entered Alford pleas last year that allowed them to be released from prison and maintain their claims of innocence.
Ellington, the original prosecutor who is now running for a congressional seat in eastern Arkansas, has said he was willing to allow Hicks to view the bicycle and clothing but wouldn’t release all investigative materials, including three affidavits filed in December and January.
An assistant attorney general said the affidavits are part of an ongoing criminal investigation and are exempt from disclosure laws.
The judge agreed.
“The prosecutor has the right and the obligation to ascertain whether a miscarriage of justice might have occurred, or whether there were others who might have acted in concert with those who pled guilty, but who have, as yet, not been brought to justice,” Hill wrote. “That is his prerogative, and he might even be said to be derelict in that duty if he failed to conduct such an investigation.”
Ellington said Tuesday that the investigation into the affidavits is still ongoing.
“Once we complete our review of the materials provided by defense attorneys and conduct the interviews, then if we find nothing, we’ll close the file and it will be subject to Freedom of Information,” Ellington said. “If we find something, we will continue following that information.”
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Published in The Messenger 10.31.12