Devil's Knot_ The True Story of the West Memphis Three - Mara Leveritt [95]
“Generally, it’s been found that individuals who are lacking in self-confidence, who have low self-esteem, are more persuadable, and also more likely to respond to coercive tactics,” Ofshe answered. “Individuals who are mentally handicapped are also at risk to responding to coercive and overly persuasive tactics.”
After Ofshe had explained a bit more, Stidham asked him if he had formed an opinion about the voluntariness of Jessie’s confession. But before Ofshe could respond, Judge Burnett interrupted. Again he dismissed the jury.
“Are we going to start calling sociologists and psychologists to second-guess a court?” he stormed. “I’ve already ruled it was voluntary. Now, am I going to let a witness get up here and contradict my ruling?”229
Davis agreed. He pointed out that while Burnett had ruled that Jessie’s confession had been voluntary, which was why it could be admitted as evidence, the prosecution was not allowed to report the judge’s finding to the jury. Since the prosecution could not present the judge’s “expert opinion” with regard to the willingness of Jessie’s statement, Davis argued, nobody else’s expert opinion should be admitted either. Burnett said that it was up to the jury to decide whether or not the confession had been voluntary, and that he would not allow any witness to give an opinion that would “supplant the jury’s function.”
Stidham explained that he wanted Of she’s point to be “crystal clear” to the jury. He asked the judge if he would be allowed to question Ofshe whether the tactics used by police in their interrogation of Jessie had been coercive or psychologically overbearing.
Burnett said he would allow that question. So with the jury back in the courtroom, Stidham said, “Dr. Of she, I need to rephrase the question for you. Do you have an opinion as to whether or not some of the interrogation tactics employed by the police against Mr. Misskelley were coercive in nature?”
“Yes, I do.”
“Could you tell the jury what that opinion is?”
Again, prosecutor Davis was on his feet. “Your Honor, I—wait—wait—wait,” he sputtered. “We—I hate to object, and I apologize for this, but the court just told Mr. Stidham…”
“That I could ask that question,” Stidham said.
But Burnett turned to the jury. “All right, ladies and gentlemen,” he said. “You’re going to be instructed to disregard the last question and the last answer.”
In desperation, Stidham asked Burnett if he could write down a question and get the judge’s approval for it before he asked it of Of she. Burnett agreed and Stidham wrote down a question. When he handed it to the judge, Burnett read it and said, “I think I’ll go along with that.” But Fogleman objected, and Burnett called the court into recess.
Stidham faced the same situation he had encountered with Holmes. The testimony he wanted his witness to give would not be allowed to be heard by the jury. As before, Stidham asked Burnett to let him present Of she’s testimony as a proffer of proof, to at least get it into the record for consideration by a higher court upon appeal. Burnett agreed. “Let’s be sure that I know what I’m excluding and that I know what you’re attempting to put in,” he said, “and then maybe I’ll change my opinion.”
Finally, with the jury still out of the courtroom, Stidham was able to ask Ofshe his opinion, and the witness was allowed to express it. That opinion was “that the statement made by Jessie Misskelley was a product of the influence tactics brought to bear on him, and that it overbore his initial stated intention to maintain that he had nothing to do with this crime and was not there.” Ofshe cited what he regarded as an escalating process that had begun with Durham’s inaccurate report that Jessie had been “lying his ass off” in the polygraph exam. Ofshe said the circle diagram, in which Jessie was told he could be either “with the killers” or “with the police,” intensified