Devil's Knot_ The True Story of the West Memphis Three - Mara Leveritt [93]
“Absolutely,” Holmes replied. “That’s one of the things that disturbs me about the defendant’s confession in this case. There’s nothing you can hang your hat on.”
“Does it bother you that they didn’t take him to the crime scene?”
“That’s the first thing you do. When you get a guy to, so to speak, verbally crap out what he did, you take him right to that crime scene. In this case, there was some dispute as to what side of the creek he was on, where he was standing, where the bikes were. That could have been resolved if he had been taken to the crime scene.”
Judge Burnett listened to the testimony but was not persuaded by Stidham’s arguments that the jury should hear it. After hours of negotiation, Burnett allowed Holmes to take the stand in the presence of the jury. But Stidham was warned to ask him only a few, very general questions. The closest Holmes was able to come to addressing the issue at hand was to observe that Jessie Misskelley “certainly knows the difference between shoelaces and a rope.” That was essentially all the jury heard from Warren Holmes.
“The thing that concerned me most,” Stidham said later, “was that the judge would not permit us to tell the jury about the polygraph, and the fact that Jessie had passed instead of flunked. But the jury never knew that Jessie had passed. So the issue becomes, if the police can use this as a tool to beat up on retarded kids and scare them into confessing, why can’t the jury know about this tool?”226
Dr. Richard Ofshe
Stidham’s last hope was to present a witness with expertise on the subject of coerced confessions—and that too was all but shot down. Richard Ofshe was a social psychologist with a doctorate from Stanford University. He specialized in interpersonal dynamics, particularly in police interrogations.227Stidham believed Of she’s testimony was so critical to his defense that he talked Jessie’s family into releasing the $5,000 they were to receive from their contract with HBO to pay Ofshe to come to Arkansas.228
As the trial neared its conclusion, the professor took the stand. He had barely recited his credentials in order to be qualified by Judge Burnett as an expert witness when the prosecutors again objected. After sending the jury out of the room one more time, Judge Burnett held anotherin camera hearing. “Well,” Burnett began, “I’m going to be honest, gentlemen. I’m real interested in knowing what a sociologist is going to testify to that would aid and benefit the jury and what is the scientific basis of that testimony. It seems to me that you’ve called this witness to give an opinion that the confession was coerced and that it was involuntary.”
“That’s exactly right, Your Honor,” Stidham said.
“And I think that’s a question for the jury to decide,” Burnett reiterated, “and I’m not sure I’m going to allow him to testify in that narrow framework. I can see him having value testifying that these are common techniques employed by the police to override one’s free will, and that I found such-and-such conditions prevailing here, and things of that nature—or maybe group dynamics of a cult. But I’m not sure I’m prepared to allow him to testify that in his opinion it’s coerced and therefore invalid. I mean, what the hell do we need a jury for?”
“He’s not going to testify whether or not the confession is false or true or whether the defendant is guilty or innocent,” Stidham said. “He’s going to testify to the voluntary nature of the confession—the statement to the police—whether or not it was coerced. That’s an issue that the jury has to decide, and that’s what an expert witness is for, to help the jury decide these issues.”
“No. No, Judge,” Davis interrupted. “That’s the real crux of the matter. Whether the confession was coerced or not doesn’t make—whether it was the truth. It’s whether it was the truth—and they’re trying to get through the back door what they can’t get through the front door.”
Stidham begged. “Your Honor, that’s not the correct statement of the law.”
“No. I mean, of course, I’ve ruled that it was voluntary,” Burnett