Devil's Knot, page 21
So I talked to Mr. Misskelley, and he asked me when we were going to come and check out the alibi. And I kept putting him off, because in my mind the kid was guilty. Then we went to the first hearing, and Fogleman told me we had a DNA match—that there was a T-shirt found in Misskelley’s trailer that had a speck of blood on it, and the prosecutor claimed that that speck of blood matched Michael Moore’s. To me, that cinched it. He was guilty. There was no doubt about it.
But then two things happened simultaneously. When I confronted Jessie about the blood on the T-shirt, he said, “That’s my blood.” He said he busted a Coke bottle with his hand—that was one of his favorite pastimes to show how tough he was: he’d throw a Coke bottle up in the air and bust it with his fist. A day or two later, Fogleman called me and said, “We were wrong. That blood wasn’t Michael Moore’s.” And Mr. Misskelley Sr. was getting hot because we weren’t questioning these alibi witnesses. So when Fogleman told us the blood didn’t match, I decided I’d go to West Memphis and question these people. And it became obvious that Jessie had an alibi for up to midnight the night the boys disappeared.
Most of the time, alibis are successful. But in this case, all of the witnesses had been interviewed by police, because Jessie Misskelley Sr. had been holding these press conferences. The police wouldn’t have gone to interview them, but when they did, the witnesses were afraid of getting involved, and basically, they couldn’t remember the exact night. When we sat down and started going through the tedious process, they said, “Yeah, that was that night….” But when we got to trial, and called these witnesses to testify, the state was able to stand up and say, “Well, you told Officer So-and-So that you couldn’t remember, so how are you so sure now?” And they’d say, “Well, because Mr. Stidham talked to us.” And of course, it looked to the jury like we were cooking this up. I know Mr. Misskelley Sr. was frustrated that nobody—not even I—believed him. But those press conferences came back to haunt us. In fact, they may have made the difference in the case.
Fogleman saw the development in exactly the same light. “Alibis are real tough,” he said. “It would be tough for anyone to say, ‘Well, I was with so-and-so a month ago.’ They’re real tough. But if you try to put on an alibi defense that’s not good, then the jury’s going to sit up there and say, ‘Well, they’re lying.’ And it hurts the credibility of the entire defense case.”
Stidham had tried to present Jessie’s alibi, but the net result was probably a loss. Under other circumstances, he might have put his client on the stand so the jury could see him speak up for himself. But as Stidham saw it, with Jessie, that approach was out of the question. On one hand, Jessie would not be able to articulate much on his own behalf, and on the other…Well, Stidham cringed at the thought of Jessie being cross-examined by Fogleman or Davis. To call Jessie as a witness, Stidham thought, would be to hand him to his prosecutors on a silver platter.
No, what Stidham had to do, he figured, was to raise doubts for the jurors, as to both Jessie’s abilities and the conduct of the police. First he tried to show that by the time Jessie was questioned, the police were desperate, and that that was partly due to the shoddy work on the case. As illustrations, he introduced testimony from the crime lab analyst of the “Negroid” hair that was found in the sheet wrapped around Christopher Byers—the hair whose presence there was never explained. Then he called Marty King, the manager of the Bojangles restaurant, to testify about the bloody man whom he’d reported to the police, and about the officers’ lack of follow-up. When Stidham questioned Detective Ridge, the detective admitted that the blood scrapings that had been taken from the restaurant the following day had been lost and that, as a result, DNA that would have been recovered from them could not be tested against DNA from the hair. Stidham felt that all of this made an important point, but he also realized that it was an abstract one. Abstractions, he knew, could be hard to convey to a jury who sat looking, day after day, at two bicycles bearing evidence tags and a defendant accused of killing their owners.
Along with suggesting deficiencies in the police investigation, Stidham wanted the jury to know about Jessie’s deficiencies, too. But now it was the prosecution’s turn to score a behind-the-scenes coup.
Dr. William Wilkins
In an attempt to establish Jessie Misskelley’s intellectual vulnerability, Stidham wanted to have him evaluated by a psychologist. “But,” as he later recalled, “we didn’t have money to go out and hire a psychologist. We had no budget at all for experts. We filed a motion to ask for experts, but for the state to approve anything, we would have had to spell out everything we wanted to do. We would have had to lay our cards on the table. Later the state created a public defender’s office with a budget just for that. But in 1993, essentially all we had was my gold card and the ability to beg people to come in.” The expert Stidham begged was William E. Wilkins, Ph.D., a local psychologist whom Stidham had met in a child custody case. Wilkins was interested in examining Jessie and agreed to work without pay.
The report Wilkins prepared depicted Jessie as a teenager who bordered on being mentally retarded, whose maximum scores for academic achievement were in the third and fourth grade levels, and who had never passed any of the Arkansas minimum performance tests.223
Stidham expected that Wilkins’s testimony would be crucial to his case. “But on the eve of his testimony,” the lawyer would later recall, “[Prosecutor] Davis dropped the bombshell that Wilkins was about to lose his license. There were allegations that he had made some little boy drop his pants to look for a birthmark, when there were no witnesses in the room.” To Stidham’s great dismay, he learned that Davis’s information was correct. (Wilkins did, in fact, have his license revoked a few weeks after Jessie’s trial, when the Arkansas Board of Examiners in Psychology found that he had engaged in “serious professional misconduct.”) But even knowing that Davis would roundly discredit his witness, Stidham put Wilkins on the stand. He felt that he had no choice; he needed someone to let the jury know about Jessie’s intellectual limitations, and there was no time to find a new examiner. “It’s hard to find a psychologist who will work for free,” Stidham explained, “and it’s even harder the night before he’s supposed to testify. It became a very embarrassing and horrible thing for us. He hurt us, no doubt about it.”
Wilkins had been one of three main witnesses on whom Stidham planned to base his defense. The other two were Warren Holmes, a nationally recognized expert on polygraph techniques, and Dr. Richard Ofshe, a nationally recognized expert on coerced confessions. But as it turned out, the jury would never hear much of what Holmes and Ofshe had come to say. Fogleman and Davis vigorously objected when each of the men started to talk, prompting Judge Burnett to hold lengthy sessions between the witnesses and the lawyers without the jury present. These in camera hearings, where lawyers debated before Judge Burnett what testimony should and should not be allowed to be presented in front of the jury, constituted a significant part of Jessie’s trial. For Stidham, they were also among the most disappointing.
Warren Holmes
As part of his attack on the police, Stidham wanted to persuade the jury that, whether deliberately or not, Detective Bill Durham had played a dirty trick on Jessie. Stidham believed that a turning point in Jessie’s interrogation had come when Durham told Jessie that he had failed the polygraph test. Stidham believed Jessie had been telling the truth, but that when confronted with Durham’s technological “proof” that he was lying, he’d felt trapped and overwhelmed. Once again needing an expert, Stidham got on the phone, and as before, he went begging. The expert he wanted was Holmes, a veteran homicide detective and polygraph examiner. Holmes had served as a consultant to the FBI, the Texas Rangers, and the Royal Canadian Mounted Police, and he’d conducted polygraph examinations in some of the nation’s best-known cases, the Watergate break-ins and the Kennedy and King assassinations among them.
“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 an in 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 was not 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’t relate it in narrative form, you have to be suspicious.” Valid confessions, on the other hand, are marked by what Holmes called “an emotional release.”
You don’t have to question him because he wants to get it off his chest…. They relive some of the sensations at the time of the crime…. And if the confession is really valid, they will offer some incidental detail which lends credibility to their story. Maybe they’ll say, “At the time we were doing this, some man was walking his dog off in the distance.” Or, “Just at the precise moment I was doing this there was an automobile accident,” and later you will find out that actually occurred. You look for those incidental details they can offer. If it is a valid confession, and you make a supposition and you’re wrong, they will tell you you’re wrong. They’ll answer every question directly. You don’t have to correct them…. You don’t have to lead them in any way….
When asked specifically about Jessie’s confession, Holmes replied, “What I don’t like about his confession is he doesn’t attribute any conversation during the crime to the boys. I don’t like it that he doesn’t express any feelings about the crime, how he felt at the time, how he feels now. I don’t like the fact that he’s giving wrong information about the ligature which should absolutely stand out in his mind, and I don’t like the time factor. It would seem to me that despite his IQ level, he should know the difference between 9 A.M. and 5 P.M. And he somehow should know the difference between a rope and shoelaces. Those things bother me a lot.”
“Can a polygraph examination contribute to a false confession?” Stidham asked.
“Unfortunately it can.”
“How is that?”
“Because with some people, it is a last hope,” Holmes explained. “They think, ‘Okay, if I take this test and I pass it, you’re going to get off my back,’ and then when they are told that the test indicates they are lying, that’s the straw that breaks the camel’s back, and then their will is beaten to a pulp, and then they just give up.”
“Mr. Holmes, you have had an opportunity to examine the polygraph test that was performed on Jessie Lloyd Misskelley on June 3?”
“Yes.”
“Can you tell us what your findings were?”
“Well, they were different from the other examiner,” Holmes replied. “He indicated he thought there was deception at the points in the graphs where the pertinent test questions were asked. I evaluated the charts, and I have come up with just the contrary opinion. I didn’t feel that at the point where the pertinent test questions were asked that the defendant was deceptive in nature.”
“In your report you list some factors that trouble you,” Stidham said. “Could you explain those to the court?”
Well, this was an ideal case for what we call a peak attention test, where you set up a series of questions, where one is the key detail, and in this case there should have been a peak attention test regarding whether or not the boys were tied up with plastic tape or wire or shoelaces. And the theory being, of the items listed, if the examinee reacts to the key one, he definitely has pertinent information with regard to the crime in question. So you keep taking that key detail and you shift it around in a series of different tests, and statistically, if he reacts each and every time to the key detail, there’s a large probability that he has intimate knowledge of the crime. Also, a peak attention test could have been conducted regarding the location of the clothes.225
“Is it true,” Stidham continued, “that if an examiner didn’t interpret the test results properly, that that might cause the interrogator to become more assertive and produce a false confession?”
“It’s a catalyst. If the examiner goes out and says this guy is deceptive, he’s involved, that’s all those interrogators have to hear. That gives them the enthusiasm to be more assertive in their accusatory format. Sure. It is a catalyst.”
“Is it important,” Stidham asked, “when you’re trying to corroborate a confession, that you find things independent of the confession linking the suspect to the crime?”
“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.227 Stidham 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
But then two things happened simultaneously. When I confronted Jessie about the blood on the T-shirt, he said, “That’s my blood.” He said he busted a Coke bottle with his hand—that was one of his favorite pastimes to show how tough he was: he’d throw a Coke bottle up in the air and bust it with his fist. A day or two later, Fogleman called me and said, “We were wrong. That blood wasn’t Michael Moore’s.” And Mr. Misskelley Sr. was getting hot because we weren’t questioning these alibi witnesses. So when Fogleman told us the blood didn’t match, I decided I’d go to West Memphis and question these people. And it became obvious that Jessie had an alibi for up to midnight the night the boys disappeared.
Most of the time, alibis are successful. But in this case, all of the witnesses had been interviewed by police, because Jessie Misskelley Sr. had been holding these press conferences. The police wouldn’t have gone to interview them, but when they did, the witnesses were afraid of getting involved, and basically, they couldn’t remember the exact night. When we sat down and started going through the tedious process, they said, “Yeah, that was that night….” But when we got to trial, and called these witnesses to testify, the state was able to stand up and say, “Well, you told Officer So-and-So that you couldn’t remember, so how are you so sure now?” And they’d say, “Well, because Mr. Stidham talked to us.” And of course, it looked to the jury like we were cooking this up. I know Mr. Misskelley Sr. was frustrated that nobody—not even I—believed him. But those press conferences came back to haunt us. In fact, they may have made the difference in the case.
Fogleman saw the development in exactly the same light. “Alibis are real tough,” he said. “It would be tough for anyone to say, ‘Well, I was with so-and-so a month ago.’ They’re real tough. But if you try to put on an alibi defense that’s not good, then the jury’s going to sit up there and say, ‘Well, they’re lying.’ And it hurts the credibility of the entire defense case.”
Stidham had tried to present Jessie’s alibi, but the net result was probably a loss. Under other circumstances, he might have put his client on the stand so the jury could see him speak up for himself. But as Stidham saw it, with Jessie, that approach was out of the question. On one hand, Jessie would not be able to articulate much on his own behalf, and on the other…Well, Stidham cringed at the thought of Jessie being cross-examined by Fogleman or Davis. To call Jessie as a witness, Stidham thought, would be to hand him to his prosecutors on a silver platter.
No, what Stidham had to do, he figured, was to raise doubts for the jurors, as to both Jessie’s abilities and the conduct of the police. First he tried to show that by the time Jessie was questioned, the police were desperate, and that that was partly due to the shoddy work on the case. As illustrations, he introduced testimony from the crime lab analyst of the “Negroid” hair that was found in the sheet wrapped around Christopher Byers—the hair whose presence there was never explained. Then he called Marty King, the manager of the Bojangles restaurant, to testify about the bloody man whom he’d reported to the police, and about the officers’ lack of follow-up. When Stidham questioned Detective Ridge, the detective admitted that the blood scrapings that had been taken from the restaurant the following day had been lost and that, as a result, DNA that would have been recovered from them could not be tested against DNA from the hair. Stidham felt that all of this made an important point, but he also realized that it was an abstract one. Abstractions, he knew, could be hard to convey to a jury who sat looking, day after day, at two bicycles bearing evidence tags and a defendant accused of killing their owners.
Along with suggesting deficiencies in the police investigation, Stidham wanted the jury to know about Jessie’s deficiencies, too. But now it was the prosecution’s turn to score a behind-the-scenes coup.
Dr. William Wilkins
In an attempt to establish Jessie Misskelley’s intellectual vulnerability, Stidham wanted to have him evaluated by a psychologist. “But,” as he later recalled, “we didn’t have money to go out and hire a psychologist. We had no budget at all for experts. We filed a motion to ask for experts, but for the state to approve anything, we would have had to spell out everything we wanted to do. We would have had to lay our cards on the table. Later the state created a public defender’s office with a budget just for that. But in 1993, essentially all we had was my gold card and the ability to beg people to come in.” The expert Stidham begged was William E. Wilkins, Ph.D., a local psychologist whom Stidham had met in a child custody case. Wilkins was interested in examining Jessie and agreed to work without pay.
The report Wilkins prepared depicted Jessie as a teenager who bordered on being mentally retarded, whose maximum scores for academic achievement were in the third and fourth grade levels, and who had never passed any of the Arkansas minimum performance tests.223
Stidham expected that Wilkins’s testimony would be crucial to his case. “But on the eve of his testimony,” the lawyer would later recall, “[Prosecutor] Davis dropped the bombshell that Wilkins was about to lose his license. There were allegations that he had made some little boy drop his pants to look for a birthmark, when there were no witnesses in the room.” To Stidham’s great dismay, he learned that Davis’s information was correct. (Wilkins did, in fact, have his license revoked a few weeks after Jessie’s trial, when the Arkansas Board of Examiners in Psychology found that he had engaged in “serious professional misconduct.”) But even knowing that Davis would roundly discredit his witness, Stidham put Wilkins on the stand. He felt that he had no choice; he needed someone to let the jury know about Jessie’s intellectual limitations, and there was no time to find a new examiner. “It’s hard to find a psychologist who will work for free,” Stidham explained, “and it’s even harder the night before he’s supposed to testify. It became a very embarrassing and horrible thing for us. He hurt us, no doubt about it.”
Wilkins had been one of three main witnesses on whom Stidham planned to base his defense. The other two were Warren Holmes, a nationally recognized expert on polygraph techniques, and Dr. Richard Ofshe, a nationally recognized expert on coerced confessions. But as it turned out, the jury would never hear much of what Holmes and Ofshe had come to say. Fogleman and Davis vigorously objected when each of the men started to talk, prompting Judge Burnett to hold lengthy sessions between the witnesses and the lawyers without the jury present. These in camera hearings, where lawyers debated before Judge Burnett what testimony should and should not be allowed to be presented in front of the jury, constituted a significant part of Jessie’s trial. For Stidham, they were also among the most disappointing.
Warren Holmes
As part of his attack on the police, Stidham wanted to persuade the jury that, whether deliberately or not, Detective Bill Durham had played a dirty trick on Jessie. Stidham believed that a turning point in Jessie’s interrogation had come when Durham told Jessie that he had failed the polygraph test. Stidham believed Jessie had been telling the truth, but that when confronted with Durham’s technological “proof” that he was lying, he’d felt trapped and overwhelmed. Once again needing an expert, Stidham got on the phone, and as before, he went begging. The expert he wanted was Holmes, a veteran homicide detective and polygraph examiner. Holmes had served as a consultant to the FBI, the Texas Rangers, and the Royal Canadian Mounted Police, and he’d conducted polygraph examinations in some of the nation’s best-known cases, the Watergate break-ins and the Kennedy and King assassinations among them.
“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 an in 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 was not 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’t relate it in narrative form, you have to be suspicious.” Valid confessions, on the other hand, are marked by what Holmes called “an emotional release.”
You don’t have to question him because he wants to get it off his chest…. They relive some of the sensations at the time of the crime…. And if the confession is really valid, they will offer some incidental detail which lends credibility to their story. Maybe they’ll say, “At the time we were doing this, some man was walking his dog off in the distance.” Or, “Just at the precise moment I was doing this there was an automobile accident,” and later you will find out that actually occurred. You look for those incidental details they can offer. If it is a valid confession, and you make a supposition and you’re wrong, they will tell you you’re wrong. They’ll answer every question directly. You don’t have to correct them…. You don’t have to lead them in any way….
When asked specifically about Jessie’s confession, Holmes replied, “What I don’t like about his confession is he doesn’t attribute any conversation during the crime to the boys. I don’t like it that he doesn’t express any feelings about the crime, how he felt at the time, how he feels now. I don’t like the fact that he’s giving wrong information about the ligature which should absolutely stand out in his mind, and I don’t like the time factor. It would seem to me that despite his IQ level, he should know the difference between 9 A.M. and 5 P.M. And he somehow should know the difference between a rope and shoelaces. Those things bother me a lot.”
“Can a polygraph examination contribute to a false confession?” Stidham asked.
“Unfortunately it can.”
“How is that?”
“Because with some people, it is a last hope,” Holmes explained. “They think, ‘Okay, if I take this test and I pass it, you’re going to get off my back,’ and then when they are told that the test indicates they are lying, that’s the straw that breaks the camel’s back, and then their will is beaten to a pulp, and then they just give up.”
“Mr. Holmes, you have had an opportunity to examine the polygraph test that was performed on Jessie Lloyd Misskelley on June 3?”
“Yes.”
“Can you tell us what your findings were?”
“Well, they were different from the other examiner,” Holmes replied. “He indicated he thought there was deception at the points in the graphs where the pertinent test questions were asked. I evaluated the charts, and I have come up with just the contrary opinion. I didn’t feel that at the point where the pertinent test questions were asked that the defendant was deceptive in nature.”
“In your report you list some factors that trouble you,” Stidham said. “Could you explain those to the court?”
Well, this was an ideal case for what we call a peak attention test, where you set up a series of questions, where one is the key detail, and in this case there should have been a peak attention test regarding whether or not the boys were tied up with plastic tape or wire or shoelaces. And the theory being, of the items listed, if the examinee reacts to the key one, he definitely has pertinent information with regard to the crime in question. So you keep taking that key detail and you shift it around in a series of different tests, and statistically, if he reacts each and every time to the key detail, there’s a large probability that he has intimate knowledge of the crime. Also, a peak attention test could have been conducted regarding the location of the clothes.225
“Is it true,” Stidham continued, “that if an examiner didn’t interpret the test results properly, that that might cause the interrogator to become more assertive and produce a false confession?”
“It’s a catalyst. If the examiner goes out and says this guy is deceptive, he’s involved, that’s all those interrogators have to hear. That gives them the enthusiasm to be more assertive in their accusatory format. Sure. It is a catalyst.”
“Is it important,” Stidham asked, “when you’re trying to corroborate a confession, that you find things independent of the confession linking the suspect to the crime?”
“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.227 Stidham 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
