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WEST OF MEMPHIS: Injustice, Cont’d

Overlooked by the Academy but deeply appreciated by those in the know, WEST OF MEMPHIS, the fourth nonfiction film in the case of the so-called ‘West Memphis Three,’ builds a rich, new picture of judicial misconduct.

WEST OF MEMPHIS

‘West of Memphis’ tells the disturbing story of the so-called West Memphis Three and the travesty of justice that transpired in the early-1990s.

Not quite a year ago, much ado was made of changes in the way that the Academy of Motion Picture Arts and Sciences would select the contenders for “Best Documentary Feature. This new process was greeted by many as a long overdue solution that would be fairer to all and lead to better results. How, exactly, requiring a one-week release in Los Angeles and New York and requiring a review in either the Los Angeles Times or the New York Times to qualify is “fairer” is arguably disingenuous. But this would presume that the goal of the process was to select the greatest of all choices in any given year. As long as Frederick Wiseman remains un-nominated, it seems the results are relatively self-evident. Since the introduction of this category in 1942, there are more questionable decisions and overlooked masterpieces than there are great awardees. That could be said of nearly every category, of course.

Which isn’t to suggest that the Academy isn’t a remarkable organization. The Academy Film Archive, in particular, is one of the finest institutions in the Americas. But the Academy Awards are a form of entertainment unto themselves. To ask anything more from them is folly.

Nor is it to say that the fifteen documentary features that were short-listed are unworthy. Some are among the best documentaries of the year. Some are not. The accompanying list consists of another fifteen worthy qualifiers that, under more ideal circumstances, should also be considered. Surely, the funnel narrowing down the list to an arbitrary five could widen to more than a mere fifteen?*

In any event, both the “short-list” and, with the additional fifteen, the speculative “long-list” include several favorites and a handful of misfires. One of the “final five” from last year, Paradise Lost: Purgatory (the third film in the series which, ultimately, was defeated by Undefeated), covers similar ground to the final non-short-listed film on the alphabetical list. In one-hundred-and-fifty minutes, West of Memphis tells the disturbing story of the so-called West Memphis Three and the travesty of justice that transpired in the early-1990s. Damien Echols, Jason Baldwin and Jessie Misskelley Jr. were wrongfully imprisoned for nearly two decades. Echols, the supposed “ring leader” of the group, spent the entirety of his incarceration on death row.

Fifteen qualifying-yet-not-‘short-listed’ documentaries (in alphabetical order)

The Ambassador
The Artist is Present
The Ballad of Genesis and Lady Jaye
Beauty Is Embarrassing
The Central Park Five
Gerhard Richter Painting
Girl Model
Head Games
Kumare
Last Call at the Oasis
A Liar’s Autobiography
The Queen of Versailles
Samsara
Tchoupitoulas
West of Memphis

For those among us that like to celebrate the holidays in a dark theater getting angry at courtroom malfeasance and efforts to right past wrongs, West of Memphis opens on Christmas. Thanks to the able efforts of Karen Larsen and her team (Corey Tong, in particular), I spoke with the director of the film and one of its subjects (and producer) and his wife (and also producer) by telephone in the midst of an expedition to introduce a film at the Pickford Film Center in Bellingham, Washington. These may seem like unnecessary details. They are not. I have not approached this subject without some previous experience. Along with Craig Phillips, I spoke with Joe Berlinger and Bruce Sinofsky about the first two Paradise Lost films back in 2003. In the midst of a speaking engagement in Boston a few years ago, I ran into Jené O’Keefe Trigg, a dear friend from much earlier in my life, and she mentioned sometime thereafter about her connection to the WM3 (in part as a passionate advocate for the ending of capital punishment, a view that I entirely share; in part as a friend of Damien Echols). In August last year, as the possibility of an Alford plea began to take shape, Jené was a remarkable yet indirect (by way of Facebook) source of news about the case; much better than the traditional newsgathering sources. But the fundamental attraction to this case for me isn’t any different than the reason that many others find the story of the West Memphis Three compelling. As Henry Rollins mentions in the film (to paraphrase), this could’ve been me. I was an outsider. If there had been a similar murder in the small town where I grew up, how likely would it have been for me—an obvious “outsider” at the time, referred to as “king of the misfits” by fellow classmates in high school—to be considered a suspect? Considering the efforts to which the prosecutors went to create a narrative that would convict three innocent men, I suspect that the distance from “not guilty” to “guilty” in a trial is rather narrow and all too often has little to do with the truth.

The Academy Shortlist, Documentary

Ai Weiwei: Never Sorry
Bully
Chasing Ice
Detropia
Ethel
5 Broken Cameras
The Gatekeepers
The House I Live In
How to Survive a Plague
The Imposter
The Invisible War
Mea Maxima Culpa: Silence in the House of God
Searching for Sugar Man
This is Not a Film
The Waiting Room

*It could be argued that they were considered and then rejected in the course of narrowing everything down to fifteen. It could also be argued that some process is necessary to whittle the list down to five and that this is as good as any. The notion of a short-list of any sort is largely suspect. Is the proposed “long-list” any better as far as arbitrary notions go? Probably not.

The first telephone call…

Jonathan Marlow: It wasn’t obvious from the film that the initial notion behind Fran Walsh and Peter Jackson reaching out to you was their inability to get the courts to consider the DNA evidence. The documentary was an opportunity to get this information out to the public.

Amy Berg:  They had spent two years investigating the aspects of the case and had a very strong case that they brought to the circuit judge, Judge [David] Burnett. That was where they were at in their appeals and it was just immediately denied without even any questions. There was no hearing, really. And so they stewed around about the idea of a documentary for about a year, I guess, and then they contacted me.

Jonathan Marlow: At what point did you decide that this was a project that you really wanted to get involved in?

Amy Berg: I spent about six months doing research.

Jonathan Marlow: Had you seen Paradise Lost at this point? Or at any point before you started?

Amy Berg: I saw Paradise Lost very shortly after they contacted me. I read Devil’s Knot at the same time and started looking at the trial. There was just so much that had happened [since the films were made and the book was written] so it was all extremely dated. It had been ten years since Paradise Lost and the book. There was new information coming out that gave me probably a different perspective than anybody who had done the films earlier. I had the gift, I would say, of time and breathing room and all of that.

Jonathan Marlow: I know that you had worked with Billy McMillan prior to West of Memphis. I believe that we met when he was working on Iraq in Fragments.

Amy Berg:  He’s amazing. He is just amazing.

Jonathan Marlow: At what point did you decide to share writing credit on the film? Obviously, things changed very radically in the course of making the documentary.

Amy Berg: With documentaries, I think that the editors are the unsung heroes. I actually really look at Billy as a partner and creative collaborator. We had spent a long time working on Bhutto together and really had a great collaboration. It just was something that we discussed over the course of our friendship and working relationship. He definitely earned his credit!

Jonathan Marlow: I know Pam Hicks was an early participant as an interview subject. Has either Amanda Hobbs or Terry Hobbs seen the film? Have they said anything to or reached out to Sony Picture Classics about the film?

Amy Berg: Amanda came to a couple of our screenings. We stayed in touch.

Jonathan Marlow: She’s a fairly devastating presence in the film.

Amy Berg: She is a victim of such confusion and… I feel so much for her. Very sad. Her life is very cyclical, unfortunately. I hope the best for her, really.

Jonathan Marlow: And Terry Hobbs? You have the impression that he has seen it?

Amy Berg: I heard that he saw it. I don’t know what he thought of it.

Jonathan Marlow: When you mentioned that you saw Paradise Lost, you’d seen the second film as well?

Amy Berg: I saw both of them.

Jonathan Marlow: Did you feel (to a certain extent) that their focus on Mark Byers in Paradise Lost: Revelations did more harm than good?

Amy Berg: From Mark Byers’ perspective, yes! He said that he had to spend ten or twelve years trying to defend his name. There is something to the fact that the film kind of did the same thing that was done to Damien in the initial trials. Just focusing on his personality and his antics; it wasn’t really based on a lot of factual information. But the problem is that things are so confusing down there that everything seems like a conspiracy. The blame lies with the police department because they allowed this frenzy to take over the town. So it’s really hard to sift through emotions and find logic.

WEST OF MEMPHIS

Does Damien Echols want a pardon? ‘No. Not even remotely. A pardon means basically that you committed the crime but you’ve been forgiven for it. We never did any crimes so we don’t want a pardon.’

Jonathan Marlow: Obviously there is much more substance to the idea that Terry Hobbs was involved in what happened to the three boys. I mention this since the construction of the film gravitates toward the entering the Alford plea (which wasn’t something that you could’ve even known was going to happen when you started this project). The documentary makes it clear that the so-called West Memphis Three were not responsible for this crime, something that seems rather obvious in retrospect. But West of Memphis also makes the case that the killer is still free. And that person might be Terry Hobbs.

Amy Berg: I don’t think it’s circumstantial. Some of it is really damning and I think it’s so important that the police need to take a look at that. If you look at what he says in the deposition, he says he never saw the kids that day. The witnesses were very trustworthy and they all remembered the same thing… If he’s the last person who was with them and he said he had an alibi and his alibi has fallen off, it is very questionable.

Jonathan Marlow: One of the most troubling aspects of the third Paradise Lost and West of Memphis is the comments of Scott Ellington. He claims that because Damien [Echols] and Jason [Baldwin] and Jessie [Misskelley Jr.] have pleaded guilty, the responsibilities of the prosecutors in Arkansas are over. They don’t actually need to look for anyone else because they know that the West Memphis Three actually did it (even though they’re now free). Which seems to me and to any logical person to be entirely absurd. Does there seem to be some idea that public pressure as a result of this films and Damien’s book [Life After Death] will finally either get them a pardon or a new trial that finally exonerates them.

Amy Berg: Because of the financial stakes, it would be very difficult to get them to reopen the case. But we hope for the best (as do a lot of people, obviously).

Jonathan Marlow: How have audiences reacted to West of Memphis at festival screenings?

Amy Berg: The reception has been great. The people who were very familiar with the other documentaries about the case went into it thinking, ‘Why does this film exist? I don’t need to see anymore. I know everything.’ And they came out saying, ‘Wow, I didn’t know all of the intricacies.’ I was able to talk to Michael Carson, Vicki Hutchinson, David Jacoby; people that nobody had spoken to. And then there are the people that have heard of the case on CNN or somewhere else and they felt more educated by the film. Then there are the people who didn’t know much about the case but were definitely just shocked of the severity of it. I think that we’re covering all the bases there.

Jonathan Marlow: Why do you think Gary Gitchell, John Fogleman and juror Sharon French are determined to stick by their original preoccupation of guilt in this case?

Amy Berg: I think it is their own self‑preservation. Can you imagine if you had made a decision that sent three innocent men to prison for eighteen years? How hard it would be to say, ‘Oops, I made a mistake.’ That, I think, is playing into their psyche, for sure.

Jonathan Marlow: Damien makes the astute observation in West of Memphis that the fact there were cameras in the courtroom allowed word of this travesty of justice to get out. He likely would not be alive today if it weren’t for the video documentation from the original trial. It seems clear that this is not an isolated event. The general impression is that the justice system works for most people. For the underprivileged, the justice system often doesn’t work for them.

Amy Berg: Right.

Jonathan Marlow: That seems to have been a pretty significant focus of your work from your first film to the present. What is your particular attraction to these topics?

Amy Berg: As a filmmaker, there are lots of different aspects of these types of stories that attract me. But, as a human being, it angers me so much that a system could just victimize a community of people. I feel like it is so daunting to be a Pam Hobbs or any of these people that have been victimized by the system. If there is something that I can do to bridge that gap that makes their story more important and actually makes it more of an outcry, then I will continue to do that. I do like to explore the gray areas of something that we think we know but we don’t really know. That will continue to be part of my career path, for sure.

WEST OF MEMPHIS

Amy Berg winnowed eight hundred hours of footage down to one hundred fifty minutes to tell the complete ‘West of Memphis’ story.

Jonathan Marlow: It’s often said in situations like the original trial for Damien and Jason that these are best considered as a media circus. There are a number of these high profile criminal trials that are treated more as entertainment and disregard the lives of actual participants. The great thing about West of Memphis is that it makes an attempt to humanize the tragedy experienced by the parents of the victims and the families of the three teenagers who were unjustly persecuted and prosecuted. It was a tragic situation the impacted nearly everyone on both sides (except, largely, for the people in positions of power).

Amy Berg: I appreciate that. That’s a huge compliment.

Jonathan Marlow: I know that there are still people who vehemently believe that they’re guilty and that the real injustice is that they’re free. With Pam Hicks and Mark Byers, they’ve done the journey from presumed guilt to assured innocence.

Amy Berg: It’s such a tangled web, isn’t it?

 

The second telephone call…

Jonathan Marlow: At this point, I am certain that you’re weary of talking about this. But we’re here to do something and we’re going to do it. To what extent did ‘Free the West Memphis Three’ [wm3.org] and other assorted groups play in keeping you determined while you were wrongfully imprisoned? You discuss this to some extent in “Life After Death,” of course.

Damien Echols: The good thing about the websites, the ‘Free the West Memphis Three’ and everything else, that started in Arkansas as a really small grassroots movement. It was Lorri Davis and a few friends of ours who decided they were going to try to get more people involved in the case. In the end, that’s what really matters. It is how much attention people in the outside world are paying to the case.

Jonathan Marlow: Were there many organizations involved in the case?

Damien Echols: Everything done in the case was just on-the-ground people involved with these efforts.

Lorri Davis: There was the Northwestern [Center on Wrongful Convictions of Youth].

Damien Echols: The Northwestern filed one brief in our case. For the most part, we didn’t really have much contact with them. Everything done in the case was just on the ground people involved with the efforts.

Lorri Davis: Except for Jené [O’Keefe Trigg], of course. She was working, always helping us through whatever organization she was working for.

Damien Echols: With her, it was always just Jené herself. It never really was anybody she was working for. It was just her helping us out.

Jonathan Marlow: You’ve mentioned elsewhere that if cameras had not been in the courtroom the outcome would’ve been much different. This is obviously not an isolated incident. It’s merely a very public instance of injustice. This footage and the subsequent documentaries allowed people like myself to know about what was going on. People knew about what was happening, knew about you and Jason and Jessie. They knew how wrong this was and they wanted to get involved.

Damien Echols: That’s what saved our lives. You can have all the evidence in the world that’s pointing towards your innocence and they will still kill you and sweep it under the rug if the outside world isn’t paying attention. The evidence itself is only fifty percent of the fight. The other fifty percent is getting people to care, getting people to be emotionally invested. Before that can happen, you’ve got to get word out to them of what’s going on. That’s what all that was for, whether it was the websites people were putting together or Johnny Depp appearing on an episode of “48 Hours” or the documentaries. Whatever it was, that’s what kept us going. That’s what we had faith in. We had no faith in the system whatsoever. We saw how corrupt it was from the beginning. What we didn’t lose faith in was exactly what you’re describing, the people out in the world who cared and were involved and kept everything going over the years.

Jonathan Marlow: Despite the broad support for your innocence, the initial reaction is immediate anger that there are still these people in positions of power that, for their own delusions or efforts at self-preservation, continue to insist that you are responsible for these vile murders.

Damien Echols: People keep asking us what it would take to change the system to make sure cases like this don’t happen anymore. What it all comes down to is that you would have to take politics out of it. All the people involved in this case—the judge, the attorney general, the prosecutor—they were all elected officials. Their number one priority will always be winning the next election, making sure that they don’t lose their job. They’re going to try to spin everything and cover everything up and do anything else they can do to make sure that happens in order to make sure that they win that next election. Justice will always take a backseat to that until something is done about it. Right now, every single part of the judicial system has been corrupted by politics.

Jonathan Marlow: And money. Reading your book, the film doesn’t really make the same case against, for instance, Jerry Driver that clarifies the complexity of the situation. Your book makes very clear that this fellow was obsessed with you.

Damien Echols: It was hard in the movie because when she [Amy Berg] was shooting the documentary, she initially had eight hundred hours of footage. Then you have to cut it down as much as you possibly can. It’s still almost two-and-a-half hours long and that’s really long for a movie. Even then, at two-and-a-half hours, there was so much stuff we couldn’t get into it. Plus, when you’re making a movie, you’re pretty confined to what you can catch on camera. There was nobody there. Jerry Driver and his little crew of cronies, they were harassing me and tormenting me for two years before we were ever even arrested for these murders. Back then, there were no cameras or anything else around. They completely and absolutely got away with it. There’s almost no way to get something like that into the film.

Jonathan Marlow: I just finished talking with Amy and the thing that is difficult for me with West of Memphis, narrative-wise, is that much of the story is your story, with Jason and Jessie on the periphery. Not only were they prepared to put you in jail but they wanted to put you to death. That they were comfortable with the idea that you could die for something for which even a modest examination of the evidence indicates that you had nothing whatsoever to do with. The inclination is to want to expect that these folks were well‑meaning in some way, whether it is Gary Gitchell or John Fogleman or any of these other folks. Yet, it’s clear even that everything they’ve done, as you said, is self‑serving. They’re really more interested in their own careers than they are in truth or justice.

Damien Echols: Not only that but they were just bad people. I won’t say any names but one of them was originally forced to offer his resignation after he was caught molesting a teenage boy. Another one eventually went to prison in Florida when he was caught stealing from the police department. I don’t by any stretch of the imagination think that they were well‑meaning people or that they just made a mistake. From the outset, from what I experienced, they knew from the very beginning we didn’t do this and they didn’t care. In the documentary, you see Steve Jones talking to Amy, he used to be a juvenile cop. He was the one who says he found the bodies. The minute they pulled the bodies out of the water, right there on the crime scene, the first words out of his mouth were, ‘Damien Echols finally killed someone.’ This is before the investigation ever even begins. Why would he immediately call my name up right there?

Jonathan Marlow: Was Steve Jones another crony of Jerry Driver? It seems like Jerry Driver laid a foundation for all of this nonsense.

Damien Echols: Steve Jones was one. There was another one named [John L.] Murray. There were quite a few of them and pretty much all of them, in one way or another, eventually came to a not‑so‑glorious end.

Jonathan Marlow: There was one you mentioned in the book that ended up on the wrong end of a shotgun, for instance.

Damien Echols: Yeah.

Jonathan Marlow: One of the things that is really troubling about West of Memphis and Paradise Lost: Purgatory are the comments of Scott Ellington who seems to continually try to justify the premise of the Alford plea and therein says, ‘Well, we don’t really need to look for the guilty parties when the guilty parties have already confessed to their guilt, even though they’re free.’ That must be infuriating for you.

WEST OF MEMPHIS

‘People keep asking us what it would take to change the system to make sure cases like this don’t happen anymore,’ says Echols. ‘What it all comes down to is that you would have to take politics out of it.’

Lorri Davis: Particularly when you hear the smugness of his voice. Over the last year when we’ve brought up evidence and he’s actually promised to look at anything new that has come up and it’s clear that they have no intention of doing anything. We’re going to have to put the pressure that we had to bring on them to release them in the first place. It is the only thing that’s going to get them to open up a new investigation. I think it’s just going to be a long haul. It’s extremely frustrating.

Jonathan Marlow: It seems on some level that these individuals are still hoping that you will finally just give up on this. Something, I suppose, that they’ve been hoping for all along. It doesn’t seem like that’s part of your character whatsoever.

Damien Echols: No. [Laughter.] It’s not a choice. We have to keep doing this. We don’t have a choice. We’re never going to have a sense of closure. We’re never going to be exonerated. The people who belong in prison are never going to be in prison and the people who did this to us will never be held responsible. This is misery, having to talk about this over and over, day after day.

Jonathan Marlow: I’m sure.

Damien Echols: I would rather spend all day at the dentist than have to talk about the case for another day. But, at the same time, if we don’t then we’re never going to have that sense of closure.

Jonathan Marlow: This journey from Sundance to Toronto with the film and now with it opening on Christmas day in New York and Los Angeles (and elsewhere thereafter), ideally this will be the thing that finally gets people to realize that your freedom is not sufficient. It is a great thing, obviously, and it’s great to have you out after eighteen years. The fact that you’ve put up with this for so long is ridiculous. I presume it would not be sufficient to be pardoned? That just doesn’t seem enough.

Damien Echols: No. Not even remotely. A pardon means basically that you committed the crime but you’ve been forgiven for it. We never did any crimes so we don’t want a pardon. If they were to ask me right now, ‘Do you want a pardon?’ I would tell them no, absolutely not.

Jonathan Marlow: It’s a real conundrum. Scott Ellington brings up rather cavalierly in West of Memphis how he wanted to avoid the state being sued, as if that’s somehow all the justification he needs for his actions. It basically made me aggravated all over again hearing his explanation for why the offered plea made sense primarily as a strategic decision that will save the taxpayers of Arkansas money. Yet, at the same time, having you off of death row and out of prison obviously must have been a welcome relief for both of you.

Lorri Davis: It didn’t feel like anything that I could ever express, really.

Jonathan Marlow: After the book and the documentary and the move to a new city [Salem, Massachusetts], what do you want to do next? Besides [having] some semblance of normalcy…

Damien Echols: I want to keep writing. One of the things I hope is that with Life After Death people would like the voice of it enough that they would want to read about something other than the case. I’m already working on the next book. Lorri and I may even do one together in the near future. But also, once everything is calmed down and we don’t have to talk about the case anymore, the thing that I’ve been passionate about for a long time is energy work and meditation. What I would like to do is have a small meditation center somewhere in Salem where I could share the things that I had to learn in prison (or that both of us had to learn) to help us through really difficult times and situations. I would like to share that with other people who are in bad places and bad times in their lives and feel like they need something to help them through. That’s what I am really passionate about.

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