Devil's Knot_ The True Story of the West Memphis Three - Mara Leveritt [171]
Now, six years later, Fogleman shied away from questions about why he’d pursued the occult theory of motive. Rather than showing motive, Fogleman now said, the testimony of Dale Griffis had been introduced to explain Damien’s state of mind. Noting that some of the writers Damien “admired” had “advocated human sacrifice and that kind of thing,” Fogleman said he’d introduced the evidence of Damien’s interest in the occult simply to show the jury that Damien was not a “typical teenager.”
Nonetheless, Judge Burnett had ruled that he would allow introduction of testimony pertaining to the occult only if it “went to motive,” and the prosecutors, in announcing their decision to introduce it, had told the judge that it did. Now Fogleman sought to distance himself from that decision. He explained that at Damien and Jason’s trial, he, Davis, and Griffis had avoided using the term “satanic ritual.” What they had argued, he said, was simply that the crime had born “the trappings of occultism,” a term that Fogleman now said “was relevant to show the mind-set, particularly of Damien.” Despite his latter-day squeamishness on the subject of motive, Fogleman remained confident that Damien was the killer.393
For Fogleman, the case was history. “Obviously,” he said, “if I prosecuted somebody who got the death penalty, and I was wrong, I would feel bad about it. Very bad. I’d feel terrible. If that’s the case I hope new evidence comes forward.” But now that he was a judge, Fogleman was no longer legally involved. The same was not true for Brent Davis. He remained the district’s chief prosecuting attorney, and was still in a position to oppose all challenges to the verdicts.
Defense Lawyers
By the late 1990s, those challenges were coming from several directions. And with the exception of Stidham, who was still defending Jessie, the new efforts were being led by lawyers with no ties to the judicial district. Spurred by publicity and calls from supporters, some of the nation’s most prominent defense attorneys—lawyers from outside Arkansas—had taken an interest in the case.
But it was growing late in the game. Damien, Jason, and Jessie’s appeals to the state Supreme Court had failed. The avenues of appeal left in the state were growing narrower. The main one still available was called, in Arkansas, a Rule 37 petition: a procedure that allowed convicted persons to argue that their trials had been unfair. A Rule 37 petition is not heard by the state Supreme Court but by the same judge who tried the case. Not surprisingly, judges do not frequently find fault with their own rulings, so most are summarily denied. But in cases where an inmate has been sentenced to death, the judge is held to stricter standards than for other denials. When a judge denies a Rule 37 petition from someone on death row, he must carefully state his legal reasoning for every point raised by the defense. An inmate can make several claims to attack his trial’s unfairness, but the most common one is that the lawyer who represented him outrageously botched the job; that is, in legal terms, that he received “ineffective assistance of counsel.” The question facing Damien and his codefendants now was how they would find lawyers to file their Rule 37 petitions, considering that they remained just as poor as they’d been at the time of their trials.394
Unbeknownst to them, the lay interest that had been building in support of their claim of innocence sparked the interest of some leading criminal defense attorneys. One of those was Barry Scheck,