Devil's Knot_ The True Story of the West Memphis Three - Mara Leveritt [91]
“When I called Mr. Holmes, I explained to him that I had been appointed to represent an indigent kid in Arkansas charged with killing three boys,” Stidham later wrote.224“I explained to him that I had no money to pay him, but that I really needed his help because I felt my client was innocent.” Holmes agreed to look over the polygraph charts from Jessie’s examination by Durham. “About a week later, Mr. Holmes phoned me and told me that Jessie had only showed signs of deception on one question—the drug question. Jessie had passed all the questions about the homicides, showing no signs of deception on the charts. It was clear that Officer Durham had lied to Jessie.”
Holmes paid his own expenses, which were later reimbursed by the court, to travel to Arkansas to testify. He contributed his time free of charge. But even before the trial began, Fogleman and Davis lodged strenuous objections to the prospect of letting the jury hear Holmes. When the time came, Burnett held anin camera hearing on whether Holmes’s testimony should be suppressed—that is, withheld from the jury. With the jury gone from the room, Burnett began the discussion by noting that results of polygraph tests, though frequently used by police, have long been considered too unreliable to be introduced as evidence in trials. Burnett announced that the results of Jessie’s polygraph exam were, therefore, “not admissible under any circumstances” in court. Because of that prohibition, Burnett said he would sharply define what testimony from Holmes would and would not be allowed. He would not allow “speculation” as to “the machine’s results,” he said, “or whether or not the results apply to guilt or innocence, or whether or not the person [who interpreted the results] was truthful or deceitful.” He would, however, “allow testimony about whether or not the polygraph could have induced a person to make a statement that they would not have otherwise made.”
The pronouncement put Stidham in a bind. It meant that he had an expert witness who was not going to be allowed to offer his expert opinion. Holmes could not tell the jury that, as he read Durham’s test results, Jessie was telling the truth. Stidham argued that the testimony should be allowed. “We are talking about the voluntariness of the confession,” he began. He told Burnett that Holmes should be allowed to testify “so the court can determine the totality of the circumstances regarding this confession.” And he cited case law to show that other courts had held “that any evidence tending to show the innocence of the accused is admissible.”
“In other words,” Burnett asked, “you want him [Holmes] to testify in his opinion that the accused wasnot showing deception? That’s totally and completely irrelevant and inadmissible…. My ruling is that the results of the polygraph test are not admissible evidence and, therefore, no expert—state or defense—is going to be able to testify to the veracity of the polygraph machine, because it’s not accepted in this state as credible evidence. I won’t accept it one way or the other. I don’t care whether he says he was telling the truth or whether he says he was lying.”
Stidham asked the judge to let Holmes “proffer” his testimony in the hearing, that is, to state for the record what he would have told the jury, had that been allowed. If Jessie was convicted, Stidham would use the record of Holmes’s proffer as part of his appeal. Burnett agreed, and with the jury still gone, Holmes was sworn in. Stidham asked Holmes about factors that might indicate to him that a suspect was giving a false confession. Holmes cited three.
“Number one,” he said, “they don’t tell you anything you don’t already know. Number two, what they do say doesn’t jibe with the crime scene analysis or the physical evidence or any investigation that has been done up to that point. And number three, if they don