NOT-SO-COLD OLD CASES
by Leigh Lundin
Before I wrote mysteries, my interest focused on the puzzle, figuring out the whodunit or howdunit. Classics where the puzzle reigns paramount are still my favorites.
As I turned from reading to writing and my drive for verism and verisimilitude, I grew interested in true crime, which I once associated with garish True Detective tabloids. While I can’t say I’ve read Ann Rule, I discovered that while most crime is sordid and dull to the extreme, some cases make fiction pale.
The other thing I learned is that overturning wrongful convictions borders on the impossibly difficult. A federal act, the 1996 AEDPA, severely restricts judges’ options regarding appeals. A few months ago, a split Supreme Court ruled that after conviction, prosecutors are not required to turn over DNA evidence to the defense.
Considered a rebuke of the Innocence Project, court observers noted DNA evidence has exonerated condemned prisoners around the nation. Still, some old cases in which DNA testing wasn’t available still show signs of life.
A Witch Trial (literally)
Seventeen years ago, three Arkansas teens were sentenced in a capital case about the deaths of three 8-year-olds. Although none of the physical evidence tied the teens to the boys’ deaths, authorities obtained an emotional conviction based upon (a) a possibly coerced confession from mentally handicapped Jessie Misskelley Jr following 12-14 hours of interrogation (only 45 minutes supposedly recorded) after falsely telling him he’d failed a polygraph exam and (b) a claim by an accused embezzler, Vicki Hutcheson, that she attended an ‘esbat’ (a Wiccan holiday described by the prosecution as a satanic ritual) with Echols and Misskelley, where they confessed to murder.
Apparently, the so-called esbat did not take place. She later recanted her story, saying she fabricated it to avoid larceny charges. What prosecutors claimed was satanic mutilation later turned out to be rents from scavenging animals. With a lack of evidence, prosecutors raised the spectre that Echols listened to Metallica and read Stephen King.
There has been an outcry about attention and financial support going to the accused instead of the victims. The stepfather of one victim once felt that way, but he’s since gone on record saying he believes the stepfather of another victim and an associate are guilty of the crime, as later hair DNA evidence found at the scene suggests.
Arkansas’ governor refused to take action and the original judge repeatedly rejected new evidence. A former prosecutor admitted having repeated conversations with the jury foreman, knowing of "blatant misconduct" in which the foreman wrongly used Jessie Misskelley’s initial false confession (rejected by a judge) during deliberations in order to convince his fellow jurors to convict.
Damien Echols remains on death row and the other two accused are fighting life sentences. The foreman’s misconduct and new DNA evidence are presently being considered by the Arkansas Supreme Court.
On Christmas Eve thirty-five years ago, five people were found in a suburban furniture store, four dead and the fifth barely alive. The fifth, store owner Tommy Zeigler, was accused and convicted of killing his in-laws, his wife, and Charles Mays, characterized by state attorneys as merely a customer and bystander. Prosecutors contended Zeigler gripped his father-in-law in a headlock and bludgeoned him, accounting for blood around the armpit of Zeigler’s shirt.
Much of the evidence collection was botched and the timeline severely strained to make events fit. However, Sheriff’s Detective Donald Frye deduced, probably correctly, that whatever took place in that store occurred in episodes, not one horrific event. Although a tooth (found and subsequently lost) could not be matched to any person present and a shell casing found that matched no gun, the jury accepted prosecutors’ convoluted theory, but some small doubt kept them from recommending the death penalty. The judge, accused of a conflict of interest, had no such compunctions and sentenced Zeigler to death.
After DNA testing became available, Zeigler applied to have the shirt tested and the court finally granted testing of the armpit a few years ago. Analysis of the bloodstain supported Zeigler’s story, that Charles Mays was part of a gang who attacked Zeigler and massacred his family. As a side note, Zeigler had worked to expose a loan-shark operation, arousing the resentment of criminals including some local police, the ‘enforcers’, and some believe Mays may have been involved.
Prosecutors ridiculed the result and subsequent petitions for blood testing. Although blood evidence agreed with Zeigler’s assertions, the judge decided the results did not vindicate Zeigler. However, six years later and still opposed by prosecutors, Circuit Judge Reginald Whitehead has granted further testing.
Former Chief Deputy Leigh MacEachern stated much evidence wasn’t processed because the Orange County Sheriff’s detectives considered Zeigler guilty but MacEachern now feels that Zeigler is innocent. It’s not clear what or how much it would take for a judge to declare the evidence exculpatory, but one way or another, a man has spent nearly three and a half decades on death row.