Aug 30, 2011

Warren Jeffs Gravely Ill

The punchline on Warren Jeffs's life sentence is that his life may be cut short by illness. Word broke yesterday that he was in a coma. It was a medically induced coma so that they could force nutrition to the "fasting" Jeffs. He has since regained consciousness but is still listed as critical. His fast or hunger strike (???) had only been going on for three days but that was enough to imperil the life of a man who is suffering from unnamed medical issues. According to officials, even without the fast, he is sick enough to require hospitalization.

I didn't think he looked well during the trial but he's always had a kind of gaunt, ill-formed, almost larval look about him, so who could say?

This is also not the first time he has starved himself in prison, having done so in both Arizona and Utah prisons. He is given to expressions of asceticism, having previously been treated for ulcerated knees from his hours of prayer.

The larger concern is that these demonstrations of piety will be read as martyrdom by followers.

"I think that's what he's trying to do, is become a martyr in their eyes and further exalt himself as far as they're concerned. Not necessarily with a bang, but this is precisely what he wants and this is how he wants it to end," said Sherie Jeffs, who is Jeffs' sister-in-law.

Two of Jeffs' children testified against their uncle in Texas that they had been sexually abused as children by the FLDS leader. She said Texas officials should force feed Warren Jeffs, if necessary, to keep him alive.

"I think he needs to stay alive and be able to ponder in that cell for many many years what he's done to people's lives, and children's lives, how many families he's destroyed," she told Fox 13.

Amen to that.

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Aug 27, 2011

WM3 Panel Discussion in Little Rock

A West Memphis Three panel discussion held at the Clinton School of Public Service in Little Rock Arkansas was filled to capacity with over 1,200 people. Both the panel and the audience seemed to be heavily tilted in the direction of WM3 supporters, but that's probably a reflection of public perception more generally. There are a lot more people who think the three are innocent than think they are guilty. Prosecutor Scott Ellington was the lone representative from the guilty camp, on a panel that was filled out by the three defense attorneys, Devil's Knot author Mara Leveritt, and Capi Peck of Arkansas Take Action.

The reflections of moderator Max Brantley can be found here. I watched the entire 1:42:02 program last night and I think it's well worth the time investment.

The take-away from the program is Scott Ellington's promise to test the DNA when the lab hired by the defense is done with it. He said they would run it through the data-base and cross-check it for contamination by police and lab techs. That could be important as DNA from three unidentified men has been detected.

"Once Bode labs gets their reports done, the state crime lab has agreed to run those through CODIS," Ellington said, referring to a database of known criminals as well as crime lab employees. "If there are any hits, then that evidence can be brought to the defense attorneys."

Ellington later told The Associated Press in an interview: "If the defendants have evidence they didn't commit the crime, let them prove it. That's why the crime lab is willing to test DNA results provided by the defense."

Prosecutors have contended that the absence of the three men's DNA at the crime scene does not prove their innocence, pointing out that jurors convicted the three on other evidence. Ellington said that although the DNA does not match the three men's, it may not be traceable to other suspects.

"The DNA they keep talking about has never been cross-checked with DNA from the law enforcement officers on the scene and has never been cross-checked with lab employees. ... We believe the right results are there, but we would be willing to run those and see if there are any matches," Ellington told reporters.

In other highlights, Mara Leveritt, who has a positively angelic voice and manner, fielded an audience question about the racial implications. Would there be so much interest in the West Memphis Three if they had been men of color? It's a good question and it's one I've pondered for years. Leveritt makes the point that the primary divide in this country is economic and with that and I heartily agree. It's not for nothing that advocacy for the poor of all races was Martin Luther King's primary focus shortly before he was assassinated. There is no question that if Damien Echols, Jason Baldwin, and Jessie Misskelley, had come from wealth and social stature, this case would never have gone to trial. And not just because of better legal representation. I still have to wonder, though, if this case would have gotten so much traction had they had been three black men.

I was very impressed by Jessie Misskelley's attorney Jeff Rosenzweig. I don't know what it is but for some reason, since their release, it's Jessie Misskelley who is tearing at my heartstrings. I looked at closeups of his face during their initial press conference and just burst into tears. He just seems so vulnerable. Rosenzweig spoke at length about his deficiencies, surmising that saying his IQ is 72 seems generous. He reads at third to fourth grade level and was most likely "socially" promoted through school until he dropped out after the ninth grade. And now that we know so much more about false confessions and their high correlation with low IQ it's incredibly clear how this happened.

Rozenzweig also had a lot to offer on the question of whether or not the West Memphis Three will be able to profit from writing or other art regarding their ordeal with the justice system. He questioned the Son of Sam law on First Amendment issues. More to the point, he said the law pertains to profiting from the crime not other observations about the overall experience of trial, incarceration, etc. They may be able to tell their stories about this Kafkaesque journey and earn income. I would hope so, considering that having lost out years of education and employment in prison, they can't even sue under their plea deal.

Also discussed was the disturbing issue of the blood evidence, um, misplaced (???) by the West Memphis PD immediately following the crime. That would be the blood recovered from the restroom of the Bojangles' [sic] near the crime scene left by a bloody, disheveled man. It sure would have been helpful to have that particular DNA?

Jason Baldwin's attorney Blake Hendrix had this to say:

To me the Bojangles' is a perfect exemplification in this case that this is one of those cases that it's a, an entire systemic failure. The system entirely failed. The system failed from the law enforcement ground up. The system failed in how the prosecution treated the case. The system failed in how the state forensic people treated this case. The system failed from the defense lawyers' standpoint. It is a total systemic failure…. There are a lot of people in my business who go around thumpin' their chest that this is the greatest system of justice on the planet earth. I don't necessarily agree with them. I think it is a flawed system and just like this case there are failures across the board…. Being a criminal defense lawyer is one of the greatest jobs on the planet. I am shocked that I lucked into this job. Because my function is to balance power -- prosecutorial power over here. My job is to get up every morning and make sure, just like in our constitutional system of government, checks and balances. We balance power.

These are defense attorneys at their absolute best, speaking as champions, not just of civil liberties, but of justice. After months of seeing defense attorneys at their most unholy during the James Ray trial, such genuine idealism gladdens my heart.

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Aug 25, 2011

Can the WM3 Clear Their Names?

In an interview with Amy Goodman, filmmaker Joe Berlinger expressed his dismay that the plea bargain that got the West Memphis Three out of prison after eighteen years failed to bring justice in the case. Under the rare Alford Plea, they are still guilty as a matter law, even though they are able to claim their innocence. The fight to completely clear the names of Damien Echols, Jason Baldwin, and Jessie Misskelley will go on.

Governor Mike Beebe was asked if he would pardon the three but he refused explaining that he only considers pardons after people have served their sentences. So, note to anyone on death row seeking a pardon in Arkansas. Your current governor won't consider it until after you're dead. Helpful.

Beebe said he had no plans to pardon the recently freed West Memphis Three. He cited his policy of not considering pardon cases until sentences were completed. He said it was his understanding that the West Memphis Three still would serve up to 10 years of suspended sentences.

Beebe also said if new evidence were presented that pointed to a different killer, then he would reconsider the case.

Governor Beebe says he will consider it if there is evidence pointing to a new suspect. This could be tricky as District Attorney Scott Ellington has made it clear he considers the matter closed. There are no plans in West Memphis to actually seek justice for Christopher Byers, Stevie Branch, or Michael Moore, whose brutal murder remains effectively unsolved.

Peter Jackson and his partner Fran Walsh intend to continue to fund an investigation. Having previously funded the DNA testing and other forensic research that debunked much of the prosecution's original case, they intend to now fund a wider investigation. So if a murderer is indeed to be found, West Memphis will again have Hollywood to thank.

Entertainment Weekly has learned that director Peter Jackson and his partner Fran Walsh will continue to fund the West Memphis Three investigation, even now that the men have been released from prison — free, but technically still considered guilty in the eyes of the law. “The ongoing work will focus on proving the convicted men’s innocence, as it always has,” says Jackson’s manager, Ken Kamins. He adds that the investigation will include “evidence testing and further investigation which will hopefully lead to the unmasking of the actual killer.”

The Lord of the Rings director has spent the past several years quietly funding private investigations and forensic experts to help clear the West Memphis Three. Jackson has been a longtime advocate of Jason Baldwin, Jessie Misskelley Jr., and Damien Echols — the trio of men many believe were wrongly convicted in 1994 of murdering three 8-year-old boys in West Memphis, Ark., and whose nightmare odyssey in the legal system became the subject of the award-winning 1996 HBO documentary Paradise Lost: The Child Murders at Robin Hood Hills. Eddie Vedder, Johnny Depp, Natalie Maines, and Henry Rollins were among the others who rallied to support the West Memphis Three.

“When Peter and Fran got involved, they had to decide how to best serve the case,” Kamins says. “Damien, Jason, and Jessie had great public advocates in Eddie, Johnny, Natalie, Henry, Paradise Lost, and everyone else who was raising money and bringing public attention to the case. Peter and Fran, therefore, decided to put their attention into funding and spearheading DNA work, hiring forensic and other experts, plus extensive private investigations into all aspects of the case.”

More detail on how the information provided by the Echols extensive defense machine was used to leverage the Alford Plea that got all three released is provided in an article by Devil's Knot author Mara Leveritt. In this thoroughly detailed piece she gives a blow by blow on how they narrowed it down to the juror misconduct issue and the fact that both sides were motivated to keep this from going through a lengthy new trial that looked inevitable. Some of this I've posted previously but it's as galling to read it a second time. Nothing quite makes the blood pressure spike like reading that the judge who oversaw the original trial took credible information of juror misconduct, sealed it, and declined the defense's motion.

The stunning information that the jury foreman at their trial had violated court instructions had come to light three years earlier. Little Rock restaurateurs Capi Peck and Brent Peterson, who had become supporters of the three defendants, hosted a gathering at Trio's restaurant in early 2008 for several local attorneys, hoping to enlist further support. At that event, one attorney mentioned knowing that another attorney had received phone calls from the foreman throughout the Echols-Baldwin trial.

The Echols team contacted that attorney and in May 2008, Lloyd Warford, of Little Rock, signed an affidavit stating that, at the time of the trial, he was working for the jury foreman, Jonesboro real estate broker Kent Arnold, on an unrelated matter. Warford said Arnold called him repeatedly during the trial, purportedly about the other work, but that during the conversations, Arnold spoke passionately about the trial.

. . .

Evidence from other jurors supported Warford's affidavit — and his belief that "Kent Arnold saw himself as the real hero of this trial," because he had informed fellow jurors of Misskelley's confession. A flip-chart used in the jury room, listing reasons for and against convicting Echols and Baldwin, referenced Misskelley's confession in the "pro" column. Notes kept during the trial by another juror also mentioned Misskelley's statement.

Judge David Burnett, who officiated at the trials and throughout subsequent circuit court appeals, ordered Warford's affidavit to be sealed, and for the next couple of years, it remained unknown to all, except the judge, the defendants and a small circle of lawyers. By 2010, however, defense attorneys were able to argue before the state Supreme Court that the juror misconduct issue, along with the new DNA findings, warranted new trials.

This is the judge whose professional dispassion was on full display recently when he referred to the recently released men as "murderers." He sealed evidence of juror misconduct in his court. I still can't get over that. When I first read about that last year, I just paced around the house muttering for twenty minutes.

The punchline on so much of this is that "justice" comes with a heavy price tag. I repeat, were it not for an all-star line-up of defenders who raised funds and donated money, three innocent men would still be sitting in prison. Meanwhile an obviously guilty man, James Arthur Ray, remains free on bond while his high priced legal team leverages every possible technicality to get him off. It pays to be rich in this country.

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More Earthquakes and Weirdness

Someone George Ure refers to as "Deep Source" did some unusual calculations on the Virginia and Colorado earthquakes. Ure describes the dialogue:

Did you notice the Colorado quake was 111-miles from the border of Mineral County, Colorado? he began.

No, I hadn’t.

Notice it…it’s important…”


And what was the first Virginia landmark referenced in the USGS report?”

“Well, the quake was 5 miles from Mineral, Virginia. So what?”

And how far is it between the quakes?” he continued.

Uh…1,460 miles, or so, I guess, just eyeballing it on Streets & Trips.

“Add up all those numbers.”

Hold that.  And how far from the Colorado quake to Mineral Well, Mississippi?”
“841 miles.”

“And from Mineral Wells, Mississippi to Mineral, Virginia?”

“About 700.”

“So here’s something to think about then:  Doesn’t it strike you as a synch-wink that the quakes happened approximately equally spaced from Mineral Wells?”
“Hadn’t really thought about it.”

“Then look 111 miles North and slightly East of Mineral Wells, Tennessee.  Tell me the name you see up there…”
New Madrid.

“Must I do all your work for you, George?”  Click.

I really have no idea if the calculations are significant or if this is just someone torturing mathematics to cosmically tie Tuesday's quakes to the all-important New Madrid fault line. It caught my eye primarily because I have been seeing 111 and 11:11 coming up constantly now for weeks. So has my husband and we always seem to experience these upticks at the same time. I don't really know what to ascribe the 11:11 phenomenon to. I read Solara's book years ago and I'm very aware that the sequence of numbers has taken on a range of meanings in new age circles. I'm agnostic on the various explanations for it but I've been observing and enjoying the phenomenon for years. I don't really need to know exactly what it means.

Likewise, I don't read a lot into synchronicities except in as much as they are a reminder that we are not really separate from what we observe. I don't think they're God or the angels pointing at anything or that they're necessarily significant in and of themselves. But like the 11:11 phenomenon, they seem to increase in periods of high weirdness. Periods like now, which was feeling very surreal for a week or two before the quake. They're happening constantly.

I did find it interesting that a quake affected DC just as I'm reading The Lost Symbol; a book that's been on my list for a while. I'm reading it now because I enjoy a light read when I'm sitting by the pool. Hours after reading that the National Cathedral in DC was damaged in the quake, I opened to the chapter that begins:

Washington National Cathedral is the sixth-largest cathedral in the world and soars higher than a thirty-story skyscraper.

The damage to the cathedral is a bitter pill for a lot of reasons, not the least of which is my Episcopalian upbringing. But there was a lot of damage to DC landmarks and I read this morning that the Washington Monument was more seriously affected than they'd previously thought. It's a deeply significant piece of architecture, owing more to the ancient obelisks of Egypt than George Washington the man. For more on the significance of DC and the Capitol Building specifically, I'd point you to earlier posts on some William Henry's research here and here. But to appreciate the Washington Monument, you have to consider the pyramidion, or benben, sitting on the top.

I continue to be amazed that we, personally, had no damage. A few things fell off of shelves. The Capitol, which is farther from the epicenter, really took some hits. Of course so did the Target near our house. I went there Tuesday night to pick up a box of Chai and a lot of the ceiling tiles had fallen out and taken the metal slats with them. Big areas were roped off. Pier One was closed. I wonder what that looked like with all that glass and pottery.

We're also still feeling aftershocks. My daughter was awakened last night by the rattling of the mirror on her vanity. It was a 4.5.

Despite the minimal damage, there's a weird, war-zone feeling in the air. There are cops everywhere. I've never seen them out in such force. People are being pulled over left and right and not just on the main arteries. They're being very proactive; about what I have no idea.

There's just a strange charge to the air lately. It's been like that for a while and it seems to be building. I mentioned a while ago that our atomic clock lost its mind. We're still using it until we find a suitable replacement. It keeps accurate minutes even if the hour is, um, not. And it still gives the temperature inside and out. But it tells time in another dimension. It's barfing up things that aren't even numbers. It's just weird.

What I didn't mention is that shortly after the clock went off the deep end, my credit card terminal started acting strangely. I went to ring up a SALE and the L was backwards. I cleared it and hit SALE again. It came up normal and then the L flipped again right before my eyes. The next day it was destroyed when lightning hit the phone line. When I was setting up the new machine I asked the tech if he was familiar with such problems. I don't think he even believed me.

These things come to mind, in part, because in reading through Ure's blog, I'm seeing other people have written in about clocks and the like acting in a completely aberrant fashion. How much of this is that everything is made in sweat shops in the third world these days (I'm tired of returning malfunctioning electronics), how much of it is electromagnetic interference from all the solar flares, and how much of it is that we're crossing over into greater... surreality, I can't say. But things feel incredibly strange.

Meanwhile, I just keep dreaming about trees. The other night I dreamt that I ran into Bloomingdales to pick up a gift. (I don't really shop at Bloomies, ever.) The store was just so strange. Most of it was big, wide hallways made of wood, with wood sculptures of nothing but shapes; one was just a kind of curl. Barely visible from the halls were small showrooms of merchandise. It seemed like an odd way to design a retail establishment. At a certain point, I realized that the whole store was in a giant tree and the halls went through the branches. Then I woke up.

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Aug 24, 2011

James Ray Trial Jury Foreman Speaks

The foreman of the James Arthur Ray trial jury has spoken to the press. Val Ripley shares the sense of agita of so many who are awaiting Judge Darrow's decision on new trial. But that's not all he shares with the friends of family of people who lost their lives in 2009. He was among the eight jurors who wanted to see Ray convicted for reckless manslaughter rather than the lesser charge of negligent homicide.

Ripley said he was at a loss as to why the defense would want to risk another trial, feeling that the negligent homicide verdict was more than fair, even as it leaves Ray liable for as long as nine years in prison.

"We were very close to the manslaughter conviction," Ripley said. "Eight of us wanted manslaughter, and the other four felt that he wasn't aware of all that those people were going through."

Mark Duncan makes the point that because Ray was acquitted of manslaughter, it's unlikely he'll be retried on that charge in the event that this goes to a new trial. As with the conditions of the recent release of the West Memphis Three, it's a sobering reminder of what a pale reflection of justice our court system is.

As is so often the case with jurors once they are free from the restrictions on media, he is annoyed at how much information was kept from them.

"There were a lot of things the jury should have known that were kept from us," he said, specifically mentioning the incidents that occurred at prior sweat lodges and the death of a seminar participant in San Diego in July 2009, just three months before the ill-fated sweat lodge ceremony.

Ripley is, of course, referring to Colleen Conaway whose suicide during Ray's Creating Absolute Wealth seminar remains unexplained. There is no doubt that getting complete information on just how many people were sickened at prior sweat lodges and that there was a previous hospitalization would have likely changed the minds of the four jurors who wanted the lesser charge. That's why Ray's attorneys worked so hard to keep out his history of reckless disregard for the safety of people who paid him thousands of dollars. The truth was not the defense team's friend in this case.

Like the other juror who spoke out after the trial, he found the pesticide poisoning theory risible. He also found Sheila Polk's case to be "outstanding"... as did I. He also found Truc Do impressive. I did not. In fact, it is my solemn prayer that I never have to hear her say "correct" again. Like nails on a chalkboard that woman's voice. But control freaks always rub me the wrong way. So maybe it's just me.

Most interesting, Ripley actually went to Angel Valley, met with Michael Hamilton, and visited the memorial circle.

"That was very helpful," he said. "It helped me to put it all in perspective."

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Yes, I Felt It Here ~ UPDATED

Well, that was a little scary. No major damage to report here. A couple of small things fell. But I've never experienced vibration like that in my life. How's that for irony? Several years in Southern California and the worst quake I've ever experienced was in Virginia. I thought it must be at least a 4 but it turns it was close to 6 at the epicenter; it was downgraded to 5.8 from 5.9 over the course of the afternoon. This was a fairly shallow quake and it was close to a minute before the rattling completely stopped. I grabbed my hysterical 9 year old daughter and stood in the doorway until the house completely stopped jerking around.

But this isn't about me. I just find it a little odd that there were two quakes in the US of over 5 point magnitude almost exactly 12 hours apart. Late last night Colorado had experienced a 5.3 -- also very unusual for the region. The quake there centered in Trinidad was clocked at 11:46pm MT on 8/22. Ours, about 50 miles from here in Mineral VA was at 1:51pm ET on 8/23. That's a little too close for comfort in every sense.

The one in Colorado was the strongest in over forty years. As near as I can tell, this was the first quake in Virginia of such magnitude in over a hundred years. There was another 5.8 in 1897.

There've been a few of aftershocks in Virginia but I haven't felt them. The strongest was a 4.2 around 8:00 pm but I think they initially thought it was in the Charlottesville area because of the original posting which has been removed and replaced with one that puts it in Mineral. The other two were under 3.0. Trinidad, Colorado has had multiple aftershocks and there was a foreshock the day before of 4.6. As of this writing, I count 5 aftershocks above 3.0 in Colorado.

Over the past couple of days I've been picking my way through the most recent interview with Time Monk Clif High. I still haven't listened to all of it because I just haven't had the time, but I'm going to post it now because this really jumps out. Last night I noted that there was mention of high potential for earthquakes. I just went back and listened to some of the earlier parts of the interview et voila. In the fourth video a little before the 5:00 minute mark, someone asks Clif if he still predicts two quakes for North America. The interview is from August 12 and he says he's still looking at a timespan from Aug 17 - 19, so as he typically is, he's a few days off.

My ears had pricked up when I listened to that last night because I've been on earthquake alert myself for the past week or so. I just thought it would be in a more predictable location. I'm still concerned about California and noting Baja on my earthquake feed about daily; sometimes a couple of times a day. I had a fleeting thought a day or two ago that what I was sensing could be here but dismissed it.  I've experienced quakes here before but they've been of the momentary jolt that feels like a truck hit the building variety. Again, with history as my guide, I did not expect a major quake in this area. Joke's on me.

As ever, I offer up the Time Monk material without opinion on High's world view. He says things I agree with and things I don't... at all. In general, he's far more pessimistic than I am but I continue to be impressed with the technology he's developed for collating the collective unconscious. Turns out we humans, as a group, are fairly prescient.

I noticed this on Time Monk George Ure's blog the other day, for interest. A helpful reader noticed that the webbot data pretty clearly predicted the "global rev" eruption in Great Britain.

George, your comments and link Tuesday to the UK riots spreading and other stuff is right out of Clif’s Web-bot . He talks about the GlobalPop exhibiting “maniacal behaviour patterns”, and also for a really direct hit on his part – under the heading Tea Crazy – he writes:…”data sets have celtic isles point…of global revolution…British experience..provide emotional springboard…new subsets geographically tied to British Isles…long struggle against oppression/repression…challenges of mass national contention…fighting..displays as emotion…uncharacteristic of the national British character.

So the webbots predictions continue to be impressive on the global revolution.

While I was looking for that, though, I noticed something else from Ure that made me do a double-take.

What Clif and I are both worried about it how these events (or eventlets to coin a term for them) may presage that yet-to-be-noted reports about people “staring blankly’ ‘going into standing stupors’ and needing ‘help of others to survive’ which would seem to fit with that could happen to someone whose mental constructs are not ‘light enough’ to accept that the world is sinking back into what in previous ages was called “magick”.

They've been talking for a while about predictions of people just losing it and staring blankly into space. Here, Ure is putting that into context with a reader's experience of something I can only call a "reality glitch." It jumped out at me for a couple of reasons. One is that I've been noticing these "eventlets" or, to use my term, "reality glitches" for a while. I keep thinking I must be misperceiving but I'm less and less willing to say that. The other reason this statement caught my eye is that it echoes something I've been saying for a couple of years now -- that I see us entering a time of magic. I've been very reluctant to give details because what I see and sense... is just too weird. But I've mentioned it a couple of times; a quick search shows here and here but there are probably more. I don't know how George Ure means. I'm not even sure how I mean it but the future looks... surreal.

I think I just felt another minor tremor around 12:45am here. I'm going to keep checking the USGS site but nothing is showing yet. Weird day, anyway. But things are gonna get stranger. Just sayin.'

UPDATE: I did feel another quake last night. It took quite a while for it to show up in the reports -- and some of the smaller quakes seem to have disappeared from the site -- but it was a 3.4 and it occurred 12:45:26 this morning. I have to say it was very subtle. If I'd been doing anything other than sitting in a quite room typing I expect I would have missed it... as clearly I did the 4.2 last evening.

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Aug 20, 2011

Thank God for Hollywood

And, um, Montclair, New Jersey. I say that because Bruce Sinofsky, one of the filmmakers responsible for putting the West Memphis Three in the spotlight, is from the lovely town I used to call home.

Montclair filmmaker Bruce Sinofsky was home in New Jersey when he heard about a surprise hearing today for three convicted killers in Arkansas, whose story he’s been chronicling since 1993.

Sinofsky and co-director, Joe Berlinger have made three documentaries about the crime. Their Emmy-winning first film, "Paradise Lost: the Child Murders at Robin Hood Hills" examined the initial 1994 trial, in which the prosecution built a case around the theory that teenagers killed three 8-year-old boys in a supposed Satanic ritual.

. . .

The movie did spark a grassroots movement called "Free the West Memphis Three." Celebrities including Johnny Depp, Natalie Maines and Metallica took up the cause. Eddie Vedder of Pearl Jam was in Arkansas for the release today.

In the trailer for their upcoming third documentary in the Paradise Lost series, Damien Echols tells the filmmakers that he would be dead were it not for their involvement. Sadly, he's right. Had the strange case not been preserved in film and broadcast on HBO, the West Memphis Three would be just three more inadequately represented poor people run over by the wheels of an aggressive justice system. And Damien Echols would have been executed years ago for a crime he didn't commit. That's a hard and painful truth and it reflects poorly on American jurisprudence.

Last night on CNN David Mattingly described Damien Echols to Anderson Cooper:

Well he is very intellectual. He seems very smart, very articulate. And a lot of people argue that he has a certain charisma that's really elevated the profile of this case. If he was just a typical poor kid from Arkansas with no personality, he might have disappeared on death row and so would these two, other two young men. But instead there was something about him that fascinated people. They kept coming back, kept talking to him. This case stayed alive and now he and those other two are free men.

It's an irony I've considered before. The very uniqueness that put Echols in the sights of the West Memphis police, after the gruesome discovery of three dead children, has saved him from the executioner. There's no arguing that he has a larger than life quality. He wasn't the kind of kid who could disappear in a crowd, even if he wanted to. For many of us who grew up feeling like fish out of water in small towns, Echols's persecution struck a chord. As did his youthful hostility to the town in which he was always destined to be an outsider.

Having lived a large chunk of my life in the aforementioned Montclair and having worked for years in Manhattan, it's been easy to forget how damaging that small town mindset can be. Shortly after moving to Montclair, someone I met at a party said to me, "You don't seem like someone from Ohio."

"They've been telling me that all my life," I said.

Now that I'm living amidst Southern religiosity, thanks to my darling husband's Marine Corps career, I've been forced to consider the small town phenomenon once again and not in an entirely academic sense. I was even accused of witchery in a court of law, recently. Fortunately, I wasn't the one on trial, but it was a stunning reminder that such ignorance and insanity still exists. (True story. Maybe I'll tell it some time.)

I know when I first became aware of the West Memphis Three -- I saw the second documentary first -- I was very affected by Damien Echols. The piercing, intelligent eyes, the intense spirituality and interest in non-traditional religions, the struggle to figure out who he was amongst people he couldn't relate to at all... It all just felt so familiar. "There but for the grace of God..." thought I. 

There's no question that some of us belong in big cities, preferably on coasts. So it's not that surprising that it was actors, writers, musicians, and filmmakers who championed the West Memphis Three. Many of them have no doubt been marginalized at various points in their lives for the very sense of difference that gives them their star quality. Creative types, you know... They're always a little strange.

Johnny Depp said as much. When the usually reclusive star spearheaded coverage of the case on CBS, he explained that he was also "a freak" in small-town Kentucky.

That people with the money and star power to actually do something found so much to relate to in the brooding teenager who made his dark debut in Paradise Lost - The Child Murders at Robin Hood Hills, has made all the difference. The sad truth is that innocent, poor people without proper legal representation are convicted, jailed, and even executed, all the time. The West Memphis Three would undoubtedly be among those statistics but for the cameras of Bruce Sinofsky and Joe Berlinger and the fans their documentaries found among people who also have millions of fans.

Among the "Hollywood Elite" who've put their money and their mojo behind the West Memphis Three, are filmmaker Peter Jackson and Fran Walsh, it was revealed Thursday.

The Lord Of The Rings trilogy helmer with Walsh have "played a leading role" financially and legally behind seven years of efforts to get justice for Damien Echols, Jason Baldwin, and Jessie Misskelley Jr.... This has included financing extensive private investigators over a number of years and the uncovering of crucial new DNA evidence. Jackson and Walsh also have been instrumental in hiring some of the country’s leading forensic experts to reevaluate the case and uncover new witnesses, all of which contributed to the Arkansas Supreme Court’s decision to reopen the case.

Jackson also wrote an impassioned statement on his Facebook page. In it he fleshes out some of the background on the tortured deal that finally set the three men free.

The last two weeks have been very tense, because the State told the three defense teams that they would consider an "Alford Plea" - but it had to be "all or nothing". All three men had to accept the conditions of the plea - if one refused, they would all stay in prison, probably for another 2 to 3 years, until their inevitable retrial, which would have almost certainly found them innocent. When he received the plea offer, Jason Baldwin refused to accept it. And why the hell should he? He's an innocent man, who has had the last 18 years - half his life - robbed by the State of Arkansas. This was a brave and noble stand by Jason, but it created a very tough time for Damien, and his loved ones.

You see, Damien Echols had to get out of prison, Alford Plea or not. Unlike Jason, Damien has spent the full 18 years on death row. He has not seen sky for over 10 years. He has not had sun on his skin for over 10 years. He is shackled hand and foot whenever he leaves his cell. His eyesight has deteriorated. Look at this morning's press conference - see how Damien has his hand over his mouth? It's because he has severe continual dental pain, and has had for years. On Arkansas death row, the only serious dental care they offer is extraction. No point killing men with nice new crowns. Everyone who knows Damien, has been fearful for his health. He's very weak, and frail - and has limited ability to fight off any infection. Up there in the Varner Unit death row, they don't tend to be as interested in basic medical care as your family doctor.

For several nerve-wracking days, Jason was saying no to the "Alford Plea", but he has been confined in a different, much less severe prison environment and had no contact with Damien. Damien's lawyer wrote to Jason, several friends talked with him. They explained Damien's situation to Jason, and he immediately agreed to change his mind. Jason is a decent guy, and did the right thing for his friend, just as he did many years ago when he was offered a much reduced sentence if he testified against Damien. He refused then - because he knows Damien is innocent, as he is - and he wasn't going to take the bait and sell out his friend. He's been in prison ever since as a result.

The people of West Memphis bridled from the beginning against outsider interest and the continuing media attention that put them under a microscope. After the 48 Hours Mystery devoted to the case aired, Police Chief Bob Paudert decried the lack of exonerating evidence that Hollywood provided. It seemed an ironic statement considering that West Memphis police had never produced a single stick of physical evidence in the original case that put three teenagers behind bars. But more than that, it has been thanks to Hollywood figures like Peter Jackson that extensive DNA testing and forensic research was made available to so thoroughly discredit the convictions -- something Judge Laser acknowledged in yesterday's hearing.

There is always a dynamic tension between the communal desire for safety and stability and the need for change and growth. And those who work against the status quo, whether it's through conscious action or just being their own strange selves, push communities out of their comfort zone. There are inevitable social penalties for going against the grain.

Art at its finest challenges assumptions, reflects the foibles of society, and can even change the path of history. And sometimes it saves lives. Bruce Sinofsky and Joe Berlinger have arguably saved at least one life with their documentaries. But their work should serve as a wake-up call to an even greater social transformation.

"This case is about the power of film and a main protagonist,” says Nancy Snow, professor of communications at California State University in Fullerton. “Without the 'Paradise Lost' series, you simply would not have the same level of celebrity cheerleading for justice. The main wrongly accused character, Damien Echols [the one defendant who had received a death sentence], has himself become a celebrity author and poet.”

Other observers say there’s a lesson here for investigative writers and broadcasters.

“I think this is actually the media at their best, shining a light on a situation in which the machinery of government apparently failed to do its job,” says Fordham University communications professor Paul Levinson, author of “New New Media.” “It asks the question – 'What other failures of the criminal system are out there?' – and provides the impetus that journalists should get on those cases and investigate them more fully.”

I uploaded the movie trailer to YouTube because I couldn't get the original to play properly but it can be viewed here.

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Aug 19, 2011

West Memphis Three Are Free

Damien Echols, Jessie Misskelley, and Jason Baldwin Talk to Press

In a deal described by Damien Echols as "not perfect" and by Jason Baldwin as "not justice," the three men known as the West Memphis Three, who've now spent roughly half their lives in prison, went home to their loved ones. Using a rare legal maneuver called an Alford Plea, they have entered guilty pleas without admitting guilt.

In an Alford Plea, the criminal defendant does not admit the act, but admits that the prosecution could likely prove the charge. The court will pronounce the defendant guilty. The defendant may plead guilty yet not admit all the facts that comprise the crime. An Alford plea allows defendant to plead guilty even while unable or unwilling to admit guilt.

As proof that the law and the truth can be miles apart, Prosecutor Scott Ellington admitted in the press conference posted below that it was extremely unlikely that they could prove the charges in a new trial. He also conceded that a new trial was pretty much inevitable.

I believe that the allegations of misconduct on behalf of a juror in the Echols and Baldwin trial could have led to a new trial being ordered by the Circuit Court or the Federal Court. I believe it would be practically impossible after eighteen years to put on a proper case against the defendants in this case after such extended litigation. Even if the State were to prevail in a new trial, sentences would be different and appeals would then ensue... Since the original convictions two of the victims families have joined forces with the defense and publicly proclaimed the innocence of the defendants. The mother of one of the witnesses who testified against Damien Echols has now publicly questioned her daughter's truthfulness. The State crime lab employee who gathered fiber evidence at the homes of Echols and Baldwin has died since the trial, the original trial. In light of these circumstances I decided to entertain plea offers that were being proposed by the defense.

Ellington admitted that the fear of civil suits from the defendants was a motivating factor.

I mean with their entry of a plea of guilty we have, uh, removed the question of uh, um, of, uh, uh, uh, them filing a civil lawsuit against the state that could result in many millions of dollars...

Those are really the money quotes. The State knows full well that they won't be able to get a new conviction and they're scared of millions of dollars in damages being awarded to the wrongfully convicted men. Ellington is doing a valiant job of saving face for the State, though, insisting that he believes they are guilty and hopes that they have been rehabilitated.

The juror misconduct issue to which he repeatedly refers I covered here some months ago. The Arkansas Supreme Court determined that both new DNA results and the allegations that jury foreman Kent Arnold had acted improperly merited reconsideration of the case. An evidentiary hearing scheduled for this coming December would almost certainly have resulted in new trials. The deal reached today saves the State from suffering that indignity.

Post-Hearing Press Conference

Today's hearing, which was attended by Natalie Maines, Eddie Vedder, and throngs of less famous supporters of the West Memphis Tree was bittersweet. Three men are finally free and with their loved ones. Damien Echols is now free to be with his wife Lorri Davis whom he met after he was convicted and who has worked tirelessly for his freedom. But it's hard to call it justice. They've spent their youths inside prison cells for a crime they didn't commit and they still stand convicted of that crime. Worse, they can't sue so they have no recourse.

Easily the greatest injustice to come out of today's proceedings is that the State considers the matter closed and will not be pursuing any further investigation into the deaths of the three eight year old boys, Christopher Byers, Stevie Branch, and Michael Moore.

Jason Baldwin was vocal in his condemnation of the deal. He said today at the press conference also posted below that he had initially rejected it. He reconsidered and took the deal because Damien Echols was on death row and still stood a chance of being executed. He took the deal to save a life. In one of the most moving moments of today's proceedings Damien thanked him publicly and the two men embraced.

John Mark Byers Vents His Spleen

Mark Byers, stepfather of the deceased Christopher Byers, also vigorously criticized the deal earlier today as he waited outside the court building for the hearing to start. Byer's said to a cheering crowd:

This is not right and the people of Arkansas need to stand up and raise hell 'cause three innocent men are gonna have to claim today that they're guilty for a crime they didn't know and that's BULLSHIT!

Byers is a real character and his theatricality made him a suspect in the eyes of many viewers of the two documentaries that brought this case to the attention of the public. He said today that embarrassed as he was by his own on-screen behavior, he's happy to have been the foil if it meant keeping the pressure on to get these men released.

Because I've been under the gun for fourteen years because of my actions in two movies. And I stand right here today and say if my actions in those two movies kept this alive for those men to get their freedom then praise God that I acted like a fool and HBO got it on camera and it kept it alive. I'd do it again.

Steven Branch, the father of the late Stevie Branch, also had harsh words for the deal but for a different reason. He remains convinced that the three are guilty. His reasons? Well, for one thing, he claims that Damien Echols wants to go to Salem, Massachusetts for Halloween. To Branch's way of thinking this flies directly in the face of his claims of not practicing Satanism. I don't know if Echols is planning to go to Salem. I couldn't find any media reporting of it. But I can't think of a more obvious choice. Many people, including myself, have reasonably compared the case of the WM3 to the witch trials. My question to Steven Branch would be, does he really think the people who were hanged in Salem were devil worshippers? I mean does anyone still think that in this day and age?

In a truly bizarre turn, Branch accused family members of the dead boys (including his ex-wife Pam Hobbs) who'd gone to "the other side," of forsaking him as God did Jesus on the cross. More strangely, he describes Jesus as having had "parents," plural. So, while he's pretty clear on the witchery thing, he may not be so up on his Bible.

Branch also had a melt down during the hearing and had to be forcibly removed from the courtroom. As Judge Laser was going over the fine points of sentencing with the defendants, he started screaming, "Your honor, if you go through with this you're gonna open Pandora's box... You're gonna give 'em the key to it." As he was dragged out of the court he could still be heard screaming, "This is wrong, y'all."

Judge David Laser

In the hearing which was not aired live but was streamed later by CNN, the judge conditionally set a new trial on the basis of new evidence. The prosecutors entered new, modified charges of three counts first degree murder for both Echols and Baldwin and one charge of first degree murder and two charges of second degree murder for Misskelley. They took capitol murder off the table.

In accordance with the plea agreement, all three waived their right to a jury trial and plead guilty but simultaneously avowed their innocence.

Laser: Having heard those statements, uh, Mr. Echols, what, how do wish to plead in this case?

Echols: Your honor I am innocent of these charges but I'm entering an Alford guilty plea today based on the advice of my counsel and my understanding that it's in my best interest to do so given the entire record of the case.

. . .

Laser: Mr., uh, Baldwin, uh, having heard the statement made by the State as to a portion of the proof that's expected in this case, how do you choose to plead in this case?

Baldwin: Your Honor, first of all, I'm innocent of murdering Christopher Byers, Michael Moore, and Stevie Branch. However, after serving eighteen years in the penitentiary for such, I agree that it's in the State's best interest as well as my own that based upon North Carolina vs. Alford that I plead guilty to first degree murder [unintelligible].

. . .

Laser: The same as relates to you Mr. Misskelley, how do you wish to plead in response to the provable charges in this case?

Misskelley: I am pleading guilty under North Carolina vs. Alford [unintelligible] so ruled, although I'm innocent, this plea is in my best interest.

The whole thing had the feeling of a sort of mock trial with Judge Laser stammering and pausing as if he were reading lines in a dress rehearsal he'd just gotten the script for. It all felt like a sham... because it was. They even have a kind of pretend probation called suspended imposition of sentence, in which they don't have to report to a parole officer or anything but they do have to keep their noses clean for the next ten years.

Judge Laser spoke at length to the chamber and explained that he knew there were strong emotions on both sides and that this solution would not "make the pain go away." In a break from the typical hostility to celebrities and other "outsiders" who've stuck their noses into West Memphis business expressed by so many public officials through the years, Judge Laser openly thanked supporters for their interest in justice. He thanked attorneys who'd worked pro bono and people who'd raised funds for DNA research and other testing that was beyond the means of the State. It was a rather unsubtle nod to Natalie Maines and Eddie Vedder who were in the courtroom.

Nothing can make the pain go away for anyone involved in this case. Nothing will bring back the lives of those three children and nothing will restore eighteen years lost to three innocent men. But this strange, cockeyed plea agreement is a place to start.

All information on the trial comes from news articles with provided links or CNN's live feed. All quotes and paraphrased statements that are not linked to a source document are my best attempt to transcribe material from live broadcasts.

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Aug 18, 2011

BREAKING: Will the WM3 Finally Be Free?

Just posted to the WM3 Twitter page: Damien Echols, Jason Baldwin, and Jessie Misskelley have left the prison with all their belongings and are not expected to return to prison.

I read earlier this evening that they would be attending a hastily called meeting tomorrow with the judge assigned to their upcoming evidentiary hearing.

The evidentiary hearing was scheduled for December. The surprise hearing tomorrow alone suggests a major development is at hand. The buzz in the defense bar community is that the news is beyond major. Until now, Attorney General Dustin McDaniel's office has fought vigorously against new proceedings for the defendants and in support of their convictions. A development tomorrow in which he joined in a defense suggestion would be momentous, indeed. Freedom for the WM3? The speculation today includes that possibility, though questions are numerous about how you'd reach such an outcome and, if it were to happen, whether it would include pronouncements on guilt or innocence or state liability.

The judge's office released this statement about Friday's hearing:

The court will take up certain matters pertaining to the cases of defendants Baldwin, Echols and Misskelley on Friday, August 19. One session will be conducted out of public presence with all defendants present and another session will be conducted in open court. The session conducted in chambers will likely begin at 10 a.m. followed by a public session which will begin about 11 a.m. Space will be limited for the public session — first to the parties, counsel and court personnel, then to family members of the victims and family members of defendants with remaining seating to be occupied by media representatives and the public. There will be approximately 15 minutes between the chamber session and open session for media and public to be seated. Miss Stephanie Harris, Arkansas Supreme Court communication counsel, will be present on Friday to assist with implementation and will be the court's intermediary with public and press.

A local station reported a few hours ago that a deal has been reached to release two of two of the three.

If you want to see what can happen when charges of witchery and "Satanic Panic" really take hold, look no further than the West Memphis Three. It makes the Christine O'Donnell saga look a lot less funny. These three young men have spent half their lives in prison for wearing black and listening to Metallica.

Dare we hope that this will be the end of that very long nightmare?

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Christine "Not a Witch" O'Donnell Back in the News

The former Senate candidate from Delaware whose campaign imploded on charges of witchery is making headlines again. And, once again, it's for trying to run from her own public statements. I guess it's somewhat understandable that Christine O'Donnell would be wary of reporters after the tempest in tea pot the Tea Party candidate inspired with inordinately silly comments she'd made to Bill Maher. But seeing O'Donnell walk out of a CNN interview makes me a cringe for a whole host of reasons.

I winced the other day when I noticed that her new book Troublemaker was published by my former employer St. Martin's Press. Well... it would hardly be the first completely crappy book the very prolific publisher threw out into the marketplace. Today I just find myself feeling bad for the publicist who has to handle an author who's sandbagging her media appearances. She'll get some mileage out of the last night's Piers Morgan debacle but the message that she will only do media appearances on her own terms won't go down well. She's just not that powerful. High profile celebrities have some leverage when it comes to picking and choosing between interviews and avoiding troublesome subjects. Michael Jackson, for instance, eschewed interviewers who would dare ask about his possible pedophilia and magazine editors who wanted his face on the cover complied. But O'Donnell is not the King of Pop and her refusal to answer questions about things in the very book she's promoting just makes her sound petulant and foolish.

The thing I found most interesting about her temper tantrum, though, was that the final straw was not questions about her bizarre references to witchcraft but about her current religious beliefs. Is opposition to gay marriage becoming the third rail of American politics? O'Donnell dodged all inquiry into her views on the issue. She would say only that it's "in the book" but she wouldn't talk about it what she says on the issue in the book. She then berates Morgan for not discussing the book. O'Donnell would only answer that she discusses her religious beliefs in the book which would seem to imply that her views on gay marriage are part of her religious construct. I have discussed at length what I think of the Biblical argument against homosexuality and gay marriage. It's just so much ludicrous cherry-picking. But no matter how you slice it, a former Senate candidate promoting a political book is in no position to refuse questions about a key issue in the current public policy debate.

It wasn't on the gay marriage question that Piers Morgan was rude or offensive. It was when he drudged up the debate over O'Donnell's comments on witchcraft. Like so much of the media, Morgan was far more insulting to Wiccans than to O'Donnell. And O'Donnell only indulged his ignorance.

Morgan played the now famous clip from Maher's Politically Incorrect:

A witch with a Satanic altar... The stupid. It hurts.

Next Morgan played the ad that arguably tanked her candidacy:

From there the interview degenerated.

MORGAN: You see, the weird thing to me watching those two clips is on the first clip, you seem like a fairly naive -- you don't me mind saying -- slightly silly young woman who is having a bit of fun about witchcraft.


MORGAN: In the second one, you look like a witch. You look really creepy.

O'DONNELL: I know.

MORGAN: And so ugly. I even started to believe you might be a witch when I saw this creepy commercial.

O'DONNELL: It was -- you know, as I write in the book, as soon as I saw that line, I said I don't want to do this. This is the wrong direction. What our campaign ads should be doing instead is highlighting who I am now, what my platform and position is, the reason why Democrats, independents and Republicans are getting behind my campaign, and we didn't go that route.

And we should have gone on the offensive and started to expose the many lies that my opponent was saying about his own record. But instead -- you know, I didn't listen to my gut. I tell that story and I relive it as embarrassing as it is to watch it.

But I do so, so that perhaps the reader can relate and might have confidence in their own gut because the mistake that I made was that, you know, it was my gut and the instincts of many disenfranchised voters in Delaware who got us through such a tremendous victory in the primary and then what did I do after we won the primary? I listened to the so-called experts who had been losing election after election.

So, again I try to tell that story so that the reader might have confidence going forward propelling the second American Revolution to listen to your gut and the experts aren't always experts.

Yes, that's right, Piers. Witches are "ugly." He went straight for the buffoonery that characterized most of the media during the initial controversy. If O'Donnell had just once stood up for the many practitioners of Wicca and other pagan and magickal traditions, I would have given her her props. But the poor thing is so ignorant she doesn't know the difference between witchcraft and the almost entirely fictitious construct of "Satanism." Instead she grudgingly did a commercial that completely marginalized practitioners of alternative faiths. What? It never occurred to O'Donnell or her campaign that some of the "yous" out there in TV land might just be practicing witches?

Practitioners of various forms of Wicca and other earth-based traditions are in every walk of life. Some of them even fight and die for this country.

Instead, with a few notable exceptions, the majority of the coverage of O'Donnell's strange admission fed into the stereotypes and misinformation about earth religions. O'Donnell is a remarkably poor spokesperson on the issue, even by dabbler standards. But if her performance on Piers Morgan's show last night is any indication she's not someone who should be speaking to the media on much of anything?

O'DONNELL: Well, don't you think as a host, if I say this is what I want to talk about, that's what we should address?

MORGAN: Not really, no. You're a politician.

That one Piers got absolutely right.

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Aug 17, 2011

Will James Arthur Ray Get Off on a Technicality?

Prosecutor Sheila Polk

Yesterday Judge Darrow heard arguments over a motion for a new trial for James Arthur Ray. He has taken the motion under advisement and as of this writing, his decision is still pending. Over the course of the trial, he also heard and denied numerous mistrial motions. Most of the grounds put forward by the defense in this motion are repetitions from those previously rejected mistrial arguments.

Needless to say, CNN was not broadcasting the trial so I'm relying on accounts from reporters who were privy to court proceedings. I expect that the arguments hewed closely to their written motions, thus the defense's argument has been described as brief. (It also appears that Tom Kelly argued for the defense's motion. Had it been Luis Li, it would probably still be going on... and on... and on.) I've posted these previously but here again are pdfs of the relevant motions: the defense's motion for new trial, the State's reponse, and the defense's reply to the State.

The State's response is thorough and lengthy and points to the previously addressed and settled nature of many of the defense's arguments. The defense continues to take the position that prosecutorial misconduct is self-evident and that it's the State's burden to prove that their errors were inadvertent and not prejudicial. I did find the conclusion to the defense's motion a little confusing.

The state's persistent and pronounced misconduct demands a new trial. And the knowing and willful nature of the misconduct warrants sanctions and will bar re-prosecution.

How can there be a new trial if re-prosecution is barred? Well... I'm not a lawyer.

The State admits to making several errors during the trial but argues that they were inadvertent, did not rise to the level of misconduct, and did not impact the jury's verdict.

County Attorney Sheila Polk took hours to explain what she understood were 31 allegations, adding to an already extensive record in a case that's bound for appeal.

She acknowledged that prosecutors committed a trio of errors during the trial, but she said those errors were harmless because they were unintentional; the information was cumulative; they did not influence the jury; prejudice Ray or rise to the level of prosecutorial misconduct.

"Clearly prosecutors are ministers of justice, clearly it is our obligation to make sure the defendant has a fair trial and clearly that is what we tried to do throughout the trial," Polk said.

The other 28 allegations "are not even errors" and were unsupported by the record, Polk said.

As I've said before, the only really new piece of business has to do with an improperly played audio clip.

Defense attorney Tom Kelly, who kept his argument brief and deferred to Darrow's experience and judgment in deciding the motion, pointed out that the defense was kept constantly on edge due to the 17 supplemental disclosures the state filed during the trial itself.

"You stated that this is not going to be a trial by surprise," he told Darrow, and reminded the judge of what he said after Polk played the unadmitted clip.

"You cautioned the state by saying, 'If it's admitted at trial, it's admitted. If it's not admitted, then it's right into mistrial.'"

I can offer little regarding the dispute over the recording as the aggravation phase was not broadcast but Mark Duncan reported a bit on the issue at the time.

In her closing argument for the aggravation phase on Wednesday, Polk played an audio clip the defense maintains was never admitted into evidence. The clip features Ray speaking to seminar participants about their reasons for coming to Sedona for the event and suffering through sleeping in tents and sharing bathrooms after making a $10,000 investment, and the defense alleged at the time that they didn't believe it had ever been played at trial.

That lack would make it inadmissible in the aggravation phase, but Darrow allowed Polk to continue on Wednesday after she insisted she had used it in her March 1 opening statement and had it properly admitted into evidence.

On Thursday, though, after reviewing a video of Polk's opening, the defense resumed its objection and motion for mistrial. Darrow said he would allow Polk time to reply to the allegation, and would review the record himself, before ruling on the motion.

Darrow appeared visibly displeased with the turn of events and agreed with defense attorney Tom Kelly that the allegation, if true, would have "serious implications," especially considering that jurors had the clip, among others, available on CD while they deliberated on Ray's guilt or innocence last week.

I'm still unclear as to whether or not the recording was, in fact, available to the jury when they deliberated over the verdict, because that certainly could be a problem. The State did find and disclose, after a lengthy examination of the evidence, that approximately one minute of unadmitted tape was played during the aggravation phase. They have argued that the information in it was cumulative and was only played to prove the aggravating factor of pecuniary gain which the jury did not find. They claim the error was both inadvertent and harmless as it did not prejudice the verdict or lead to a finding of that aggravator. We will have to wait and see whether or not Judge Darrow thinks it's irreparably damaged the trial.

I always read Mark Duncan's reporting with a jaundiced eye. In the article in question, for instance, Duncan wrote that the defense had won a victory after Ray was found guilty of three counts of the aggravating factor of emotional harm to the families of the victims. His point? Ray can only get a maximum of nine years as opposed to the eleven and a quarter that he would have had the jury agreed on a second aggravating factor. Now, I can't fault Duncan for the completely incorrect nature of the headline. Reporters rarely write their own headlines. That said, Ray's possible sentence didn't "shrink" after the aggravation hearing. It grew. The prosecution proved one of the aggravating factors which means a higher maximum sentence than if they'd proved none. So Ray was actually in a worse position after the aggravation hearing than before it. How is that a victory for the defense?

After reading Duncan's reporting throughout this trial, I'm fairly convinced that he was acting more as Tom Kelly's stenographer than as a reporter. I say that in part because Tom Kelly may have violated the court's gag order during the trial when he gave an on the record statement to none other than Duncan. In that article, Duncan notes that Sheila Polk refused to comment. I bring it up because if there's one thing I know as a former publicist, it's that reporters will sell their souls for access to valuable sources. The source that gives it up to the media can wield disproportionate power over reporting. I think there were a lot of reasons for the media bias towards James Ray and I've discussed a few of them but the issue of access also deserves mentioning. In retrospect I think In Session's total whoredom for the defense in this case may have been due in no small part to the fact that they will be far more likely to need access to the very powerful California firm that represented James Ray -- Munger, Tolles, & Olson --  than the Yavapai County DA's office.

The best reporting on yesterday's proceedings was from photojournalist Andrew R. Patterson on Twitter. One bit of business he posted that I'm truly sorry I did not get to see was the State's enumeration of errors made by the defense team during trial. The burden of a fair trial always lies with the prosecution and that's a very good thing for this defense team. The State made mistakes but they did manage to get through months of trial without, for instance, publicly posting the addresses and phone numbers of every person who ever attended Spiritual Warrior since 2003.  I don't know what defense errors photojournalist Patterson is referring to in his tweet but there were some doozies. So if a pattern of error truly equals misconduct, the defense team should be appearing before the bar.

Patterson also described the defense as looking "somber" as the State rebutted all 31 points of the new trial motion. His surmise is that the new trial motion is really about laying the groundwork for the appeal process; something he reports they admitted yesterday.

If he's not granted a new trial, Ray will undoubtedly appeal his conviction and most likely over the Richard Haddow email which resulted in a Brady violation. Judge Darrow did not rule for a mistrial and attempted to cure the error by allowing the defense team time to bring in either Haddow himself or another expert to testify. The defense elected not to do so, which the State argues convincingly negates any arguments of prejudice. Background on the Haddow email fiasco can be found in multiple blog entries on the subject.

As ever, I think the defense is relying on strident rhetoric as they cast a handful of procedural errors and disagreements over interpretation of law as a pattern of misconduct. The State characterized the defense's argument as a logical fallacy of "proof by repeated assertion" which is a fancy way of saying that saying the same thing over and over again doesn't make it true.

I like Judge Darrow and I think that when it comes down to it, he'll base his decision not on the defense's inflammatory rhetoric but on whether or not that one minute clip caused prejudice. Throughout the trial I think he did an admirable job of separating the law from the bombast in the defense's arguments. And if he does grant a new trial, all I can say is be careful what you wish for, James Ray. Because if the State retries this case they won't make the same mistakes twice and the defense never had anything but a mistrial strategy.

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Aug 12, 2011

The Stepford President?

Days after the incarceration of polygamist Warren Jeffs, the Biblical view of marriage is in the news again. Michele Bachmann has put the issue front and center and not even because of her well-known opposition to gay marriage. During last night's debate in Iowa, columnist Byron York attempted to hold her feet to the fire over anti-feminist views that would seem to disqualify her for the presidency. Bachmann is on record as being a "submissive" wife.

At issue is a speech she gave in 2006 when she explained God's handiwork in her life path.

In a speech at a mega-church in the Minneapolis area back in 2006, Michele Bachmann explained her decision to pursue tax law. It wasn't her choice, exactly. God had already told her to go to law school; God had also told her to marry a fellow named Marcus Bachmann. Now Marcus told her "to go and get a post-doctorate degree in tax law." This was not a particular desire of Michele's ("Tax law? I hate taxes!"), but she was certain God was speaking through her husband.

"Why should I go and do something like that?" she recalled thinking. "But the Lord says, 'Be submissive wives; you are to be submissive to your husbands.'"

The audience booed York's bold act of journalism as he attempted to address the incongruency between being a submissive wife and the leader of the free world.

Bachmann obfuscated.

"Thank you for that question, Byron," Bachmann responded with a wry smile. "Marcus and I will be married for 33 years this September 10. I'm in love with him. I'm so proud of him. What submission means to us, it means respect. I respect my husband. He's a wonderful godly man and great father.

"He respects me as his wife; that's how we operate our marriage," she continued. "We respect each other; we love each other. I've been so grateful we've been able to build a home together. We have wonderful children and 20 foster children. We've built a business and life together, and I'm very proud of him."

And fundamentalist leaders parsed.

"She answered it the most appropriate way in the context it was being asked. She was being asked a deeply theological question in front of millions of Americans," said Gary Marx, the executive director of the Faith and Freedom Coalition. "That's why there was such a strong and visceral booing over the very premise of the question."

. . .

"Most evangelicals know it's not easy to teach in a 30-minute sermon on Sunday. It's impossible to answer in a minute sound bite. Her answer about respect is the only one that can be given," he said.

I can think of another reason why the audience may have booed; because it's an incredibly uncomfortable question that forces modern-day fundamentalists to deal with the cognitive dissonance between what scripture actually says and what they'd like it to say.

CNN's interview with Dr. Alduan Tartt is quite telling. He begins by explaining that "all women" have to answer that question because they have to wear "two hats": wife and career woman. He doesn't  mention how many hats working husbands have to wear. Tartt then misstates the relevant scripture as describing mutual submission between husbands and wives. It says nothing of the kind. It says only that husbands must love their wives; not submit to them. From there he battles a straw man argument about the scripture being misinterpreted as meaning wives must submit to abusive husbands who aren't appropriately expressing God-like love.

The scriptural passage in question is one of those that I stumbled on during my born-again phase and said, what the...

"Submitting yourselves one to another in the fear of God. Wives, submit yourselves unto your own husbands, as unto the Lord. For the husband is the head of the wife, even as Christ is the head of the church: and he is the saviour of the body. Therefore as the church is subject unto Christ, so let the wives be to their own husbands in every thing. Husbands, love your wives, even as Christ also loved the church, and gave himself for it; That he might sanctify and cleanse it with the washing of water by the word, " ~ Ephesians 5:21-26

The first phrase about submitting to each other is part of a long list of exhortations to all the Ephesians on how to behave in faith. It doesn't pertain to the husband-wife relationship. The rest is fairly clear. The husband is God's representative in the household, the wife should submit to him as she does to God, and husbands should be loving and protective. There is no gender equality in that scenario. It's entirely hierarchical (patriarchal) with God at the top and women at the bottom. To claim otherwise is sad and desperate.

Marcus Bachmann's brother laid it out fairly clearly in a recent Washington Post article.

Dr. Bachmann’s influence on his wife is an article of faith within the family.

“He is her godly husband,” said Peter Bachmann, Dr. Bachmann’s oldest brother, who lives on the family dairy farm across the eastern border in Wisconsin. “The husband is to be the head of the wife, according to God.”

He's right in the sense that if you believe the Bible is the word of God, it's pretty darn clear who's where in the pecking order.

This whole discussion puts me in mind of a discussion I had with my born-again friends in high school as to how there can be female pastors if women have to silent in the church.

"Let your women keep silence in the churches: for it is not permitted unto them to speak; but they are commanded to be under obedience, as also saith the law." ~ 1 Corinthians 14:34

My friends argued that it was one of those scriptures that was appropriate to a particular time but no longer really apply. This always seemed to fly in the face of the literal Biblical reading that fundamentalism calls for. It's either the irrefutable word of God or it isn't.

That scripture also came to mind when I noted that Bachmann had made her speech about being submissive to Marcus in a mega-church. Silent in the church she is not. But that's far from unusual amongst female fundamentalists.

The more frightening thought is that Bachmann wasn't being a hypocrite when she claimed to be submissive to her husband as the Bible demands. Although I sincerely doubt she's in serious contention for the presidency, how would that work? Would Marcus be sitting in on all the meetings with other heads of state or the Joint Chiefs? People won't be voting for her husband. They'll be voting for her. I don't think anyone wants the first First Husband in US history to be the one calling the shots.

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