Last week’s post told the story of two New York rappers whose separate traffic stops demonstrate how officers rely on the automobile exception to the Fourth Amendment’s search warrant requirement. Today we shift gears—and Amendments—to enter the interrogation room in order to discuss how the internationally-known story of the West Memphis Three makes for an incredibly powerful tool for teaching students the Fourteenth Amendment’s voluntariness doctrine.
A primer on voluntariness
Since 1884, the Supreme Court has recognized that “[a] confession, if freely and voluntarily made, is evidence of the most satisfactory character.” Accordingly, voluntary confessions, as you may guess, are admissible as evidence in court. Involuntary confessions, by contrast, are unreliable and, as such, inadmissible as evidence against the accused. At first, the requirement that a confession be made voluntarily was construed narrowly as a mere common-law evidentiary requirement that had no relationship to the Constitution. Thirteen years later, in Bram v. United States, the Court merged its common law voluntariness rule into the Fifth Amendment privilege against self-incrimination. The “generic” language of the Fifth Amendment, the Court reasoned, “was but a crystallization of the doctrine as to confessions.”
After Bram, involuntary confessions were inadmissible in federal criminal trials as a matter of constitutional law, but the Fifth Amendment was not yet considered a fundamental right applicable to the states. Accordingly, states were therefore free to ignore the Bram voluntariness requirement—until 1936. In Brown v. Mississippi, officers (with the aid of an angry mob) hanged one and severely whipped three “ignorant negroes” until the trio confessed to committing a murder. After analogizing the state’s conduct to “the rack and torture chamber,” the Court had little trouble concluding that “[i]t would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.” Accordingly, the Supreme Court—adhering to principles of federalism—held that due process mandated invalidating a confession obtained by “officers of the State [using] brutality and violence.”
What remained missing after Brown, however, was any meaningful insight into how to distinguish a voluntary confession from an involuntary one. Indeed, given that the facts in Brown so clearly mandated discarding the defendants’ confessions, the Court had no occasion to offer any guidance to future courts in closer cases.
In many ways, decades later, the due process voluntariness doctrine remains an elusive one; every fact is relevant to the inquiry, but none is dispositive. At its core, though, the voluntariness doctrine seeks to determine whether a suspect’s confession was the product of an essentially free and unconstrained choice (voluntary) or an interrogation that overbore the suspect’s will (involuntary). In assessing the voluntariness doctrine, courts must consider all of the circumstances leading to a suspect’s confession. Courts might, for example, evaluate the character of accused, such as his or her familiarity with the justice system, educational background, emotional stability, and age—among other characteristics. Courts also consider the nature of the interrogation itself, including the timing (day versus night) and duration of questioning; the number of interrogators; and whether those interrogators used torture, employed trickery, made false promises or threats, or deprived the suspect of food or sleep. The fact that so many factors are relevant to the voluntariness analysis has produced dramatically different and inconsistent results.
The West Memphis Three
On May 5th, 1993, three eight-year-old boys set out for a bike ride around their hometown of West Memphis, Arkansas—never to be seen alive again. The following day, the mutilated bodies of Steve Branch, Michael Moore, and Christopher Byers were pulled from a wooded drainage ditch just outside of the community where the boys lived. Over the next month, rumors and allegations of satanic murder rituals and human sacrifice consumed both local and national media headlines. Those headlines only added to the pressure felt by the West Memphis Police Department to make an arrest.
The state would eventually charge Damien Echols, Jason Baldwin, and Jesse Misskelley Jr.—“the West Memphis Three”—each with three counts of capital murder. At the time of their arrests, Jessie Misskelley Jr. was seventeen years old, Jason Baldwin was sixteen, and Damien Echols was eighteen. Neither Misskelley nor Echols had a high school diploma.
West Memphis
To set the scene, West Memphis is located in the Northeast corner of Arkansas and sits as the County Seat of Crittenden County. The city is located on Interstate 40, just eight miles west of downtown Memphis. In 1993, West Memphis was an economically challenged community that saw property and violent crime rates well above the state average. According to the 1990 census, the West Memphis population was 28,259. The median household income was only $22,052, and the per capita income was only $10,009, which put 22.9% of its residents below the national poverty level. Additionally, just 62.5% of individuals over the age of twenty-five had a high school degree. Manufacturing, transportation and retail trade made up nearly 43% of the town’s work force.
The Crime
At around 8:00 p.m. on May 5th, 1993, the West Memphis Police Department received a call from John Mark Byers reporting that his son, Christopher Byers, was missing. Within the next twenty minutes, both Dana Moore and Pamela Hobbs reported that their sons, Michael Moore and Steve Branch, were also missing. A preliminary investigation revealed that the boys were last seen riding off on their bikes together around 6:00 p.m.
The next morning, May 6th, Chief Inspector Gary Gitchell announced that a search for the missing boys was underway. In the early afternoon, juvenile officer Steve Jones observed a black children’s tennis shoe floating in the water of a wooded drainage stream located in Robin Hood Hills, a four-acre neighborhood near where the children lived and played. Within the hour, the bodies of Chris Byers, Steven Branch, and Michael Moore, were pulled out of the thick muddy water of the drainage stream, along with their bikes.
Each of the three boys had been stripped naked and hogtied with their own shoelaces. The boys’ autopsies revealed that Byers died of “multiple injuries,” and Moore and Branch both died of “multiple injuries with drowning.” Disturbingly, Byers’s penis, scrotal sac and testicles were missing, leading detectives to believe the boys’ murders were part of a satanic ritual. Although no visible injuries existed to suggest sexual contact, each of the boys’ autopsy reports found dilation of the anus. Further, a small concentration of semen was found on one of the boys’ underwear located at the scene.
Based on the boys’ autopsy reports, West Memphis Detectives believed that the crime had “cult overtones.” Officers also believed that the boys were sodomized during the murder because of their anal dilation and the trace amount of semen found at the crime scene.
The Investigation
The same day the victims’ bodies were found, a woman named Vicki Hutcheson, a suspect in an unrelated theft investigation, was coincidentally taking a polygraph exam in the neighboring town of Marion. Present at the polygraph exam was Hutcheson’s young son, a friend and playmate of the victims. During the examination, Hutcheson’s son told officers that the boys were killed at “the playhouse.” When the bodies of the boys were discovered, detectives questioned Hutcheson's son, who told them that he had witnessed Spanish speaking Satanists murder the three boys. Although the child’s statements were wholly inconsistent, an officer leaked his statements to the local press, thereby perpetuating rumors that the victims were murdered as a part of a satanic ritual.
After a month passed without an arrest, Hutcheson agreed to place microphones in her home in order to record a staged interaction between Echols and Misskelley. When the recordings turned up inaudible, Hutcheson told police that she, Echols, and Misskelley had attended a Wiccan (i.e., pagan) meeting in a nearby town about two weeks after the victims’ murders, where Echols openly bragged about killing the three boys. Hutcheson would later recant her story, stating that she implicated Echols and Misskelley in order to avoid her pending theft charges and receive a reward for helping solve the murders.
The Interrogation
Based on Hutcheson’s story, West Memphis Detectives interrogated Jessie Misskelley Jr. on June 3, 1993. At the time of his interrogation, Misskelley was only seventeen years old with a reported IQ of 72—categorizing his intellectual functioning as “borderline.” Although investigators questioned Misskelley for nearly twelve hours, they only recorded two segments of the interrogation, totaling forty-six minutes.
During the taped portion of the interrogation, Misskelley admitted to being present while Echols and Baldwin tied up and murdered the three boys. After prompting and suggestion by detectives, Misskelley confessed that one victim, Michael Moore, had attempted to escape, but he chased Moore down and brought him back. In all, Misskelley stated that the victims were choked, hogtied, sodomized, and thrown into the drainage ditch—all as part of a satanic ritual. But Misskelley would later recant his confession, citing police coercion, fatigue, and intimidation.
Misskelley’s interrogation occurred in three stages: (1) a pre-polygraph test, where detectives asked about Misskelley’s involvement with Satanism, drugs, and whether he was involved or suspected anyone in the murders; (2) a ten-question polygraph examination; and (3) an intensive post-polygraph interrogation, which lasted approximately eight hours. During his pre-polygraph and polygraph examinations, Misskelley denied having any involvement with Satanism or the victims’ deaths. Still, detectives told Misskelley that the polygraph results showed that he was “lying his ass off.” According to Misskelley, detectives told him that the polygraph machine could read people’s minds. He would later comment, “I didn’t know what was going on . . . [b]ecause how could my brain be telling him that I was sitting there lying? It got me confused.”
Once the polygraph concluded, detectives moved Misskelley to a separate interrogation room and began to question him about his alleged deception. During this portion of the interrogation, detectives drew a diagram of a circle surrounded by “Xs” with three dots in the center. According to the detectives’ handwritten notes, not contained in their final report, investigators told Misskelley that the Xs were police officers and that the dots were Echols and Baldwin. The detectives then gave Misskelley an ultimatum: He could either be inside the circle with Echols and Baldwin or outside the circle with the officers. Misskelley told detectives he wanted to be on the side of police, but the interrogators persisted. If Misskelley gave a statement that failed to match facts known to police, the detectives would interrupt and accuse Misskelley of lying. If Misskelley remained silent without responding to their questions, detectives would present Misskelley with a picture of the murdered boys. The interrogation caused Misskelley to cry and say that he wanted to get out. Misskelley later described the circumstances leading to his confession as follows:
Gitchell came and got me and took me to another room, and that’s when he started talking to me. The whole time, the same questions that they’d already asked me, they kept asking over and over again . . . . They kept saying they knew I had something to do with it, because other people done told ’em. After I told ’em what the boys were wearing, Gary Gitchell told me, was any of them tied up? That’s when I went along with him. I repeated what he told me. I said, yes, they was tied up. He asked, “what was they tied up with.” I told ’em rope. He got mad. He told me, “God damn it, Jessie, don’t mess with me.” He said, “No. They was tied up with shoestrings.” I had to go all through the story again until I got it right. They hollered at me until I got it right.
Misskelley’s defense expert, a veteran homicide detective and FBI polygraph consultant, would later testify that Misskelley’s polygraph results showed no deception in all of his answers except one—whether he had previously used illegal drugs.
Motion to suppress
Before trial, Misskelley’s public defender, Dan Stidham, moved to suppress Misskelley’s confession, arguing that Misskelley’s statements were involuntarily made. The motion was denied. At trial, Stidham called Dr. Richard Ofshe, a social psychologist from Stanford University, who specializes in interpersonal dynamics in police interrogations. Dr. Ofshe testified that the investigators’ inaccurate polygraph report began an escalating process that caused “[Misskelley’s] statement [to be] the product of influence tactics . . . .” Specifically, Dr. Ofshe testified that the circle diagram, repeated refusals to believe his statements, and presentation of the deceased victims’ photograph, intensified Misskelley’s “sense of helplessness” and that such tactics could lead someone with a similar IQ as Misskelley to falsely confess. Dr. Ofshe concluded, “these statements are far more likely to be the product of influence than they are based on any memory that Mr. Misskelley has of the crime.”
Nevertheless, Misskelley was convicted of first-degree murder for the death of Michael Moore, and second-degree murder in the deaths of Christopher Byers and Stevie Branch. The jury sentenced Misskelley to life in prison without parole for the murder of Moore, and two twenty-year sentences, set to run consecutively, for the murders of Byers and Branch. In 1996, the Arkansas Supreme Court reviewed each tactic used by West Memphis Detectives. Arkansas’s highest court held that Misskelley’s statements were voluntarily made.
How does the Misskelley conviction benefit students in the classroom?
Misskelley’s interrogation provides students with an excellent starting point to understand the basic voluntariness framework. It also allows students to dive into some of the doctrine’s nuances. In order to get the conversation started, I provide my students with an audio copy of Misskelley’s confession alongside a written transcript—both of which I ask students to review before our class on the voluntariness doctrine. Doing so, in my opinion, is the only way to capture the true essence of Misskelley’s confession.
High-level application of the voluntariness doctrine
I open our initial discussion by asking simply how the voluntariness doctrine applies to Misskelley’s case. I remind students that the due process test requires considering the totality of the circumstances surrounding a suspect’s statement—i.e., the character of the suspect and the character of his or her interrogation. With that in mind, I ask students three questions. First, does Misskelley have any character traits that are relevant to the voluntariness analysis? Second, are there characteristics of the interrogation in which Misskelley confessed that play into the analysis? Third, and most importantly, which of Misskelley’s statements merit suppression?
In my experience, students do not hesitate to offer answers to these questions. Considering the fact that I teach at the University of Arkansas School of Law, many students have prior knowledge (or remember) the arrest and conviction of the West Memphis Three. But more to the point, here’s my take on the three above questions. First, as it relates to circumstances of the offender, Misskelley is a juvenile with limited intelligence. He has no guardian present during the interview. Moreover, he has only a basic understanding of the circumstances. For instance, and as you’ll read in a moment, police had to explain to Misskelley what a “penis” is.
As for the characteristics of interrogation, the two officers talk to Misskelley in isolation and fail to record the vast majority of their conversion. Additionally, the officers do not provide Misskelley with his Miranda rights for the first hour of his interrogation. I wonder what the three of them talked about during that time. Other troubling facets of the interrogation include the use of a polygraph exam, which officers tell Misskelley he fails (though expert testimony suggests otherwise). Also concerning is officers’ use of the “circle diagram.” Although there’s more to it—including that officers played the tape of a young boy saying, “nobody knows what happened but me”—students are typically not hard pressed to find the characteristics of Misskelley and his interview questionable.
As for the third question about the appropriate remedy, Misskelley’s confession was unreliable, involuntary, and therefore inadmissible at his murder trial.
Nuances not captured by voluntariness
There are several concerning nuances about Misskelley’s interrogation that are seemingly outside the purview of the voluntariness doctrine—but should not be. In this regard, I am arguably most concerned about the credibility of Misskelley’s story, particularly because the voluntariness doctrine seems unconcerned with that issue. Let me add a few additional facts about Misskelley’s confession to illustrate the point.
First, consider how often Misskelley stumbles in answering the officers’ questions. On a fundamental level, he is unable to correctly identify one of the victims. At one point, officers ask him questions about anal sex, but at another point feel the need to ask, “do you know what a penis is?” Misskelley also states that the victims skipped school on the day they of their murder. That turned out to be false. He also changes his recollection of what he and Baldwin were wearing on the day the victims were killed.
Second, consider Misskelley’s ability perceive time. Misskelley provides differing answers about when he, Echols, and Baldwin arrived at the scene. He first says he arrived at 9 a.m., but then says that Echols and Baldwin called him at 9 p.m. Officers are confused—so much so that they stop the interrogation and return to try to clarify Misskelley’s timeframe. That makes matters worse. Misskelley tells officers that the victims came to the woods between 5–6 p.m. He then changes the victims’ arrival time to 7 p.m.
Misskelley also cannot remember when he left the murder scene. Early in the interrogation, he says he left right after Echols and Baldwin tied the boys up. As the interrogation progressed, though, Misskelley says he left after Echols and Baldwin cut the boys. He then changes his answer back to leaving once the boys were tied up. Ultimately, Misskelley says he witnessed Echols and Baldwin sexually assault and beat the victims. Beyond that timeframe, Misskelley is unsure about when Echols and Baldwin called him later in the day.
If Misskelley cannot remember all of these basic details, how credible should his confession be? I ask students whether there is there a way to capture that concern in the voluntariness analysis? The answer to the first question speaks for itself. Answering the second question is harder, but Misskelley’s questionable credibility provides a few possible answers. Specifically, Misskelley’s story has several attributes that modern social science commonly attributes to false confessions. For instance, Misskelley’s interrogation appears to include contamination error (i.e., the police shaping of the suspect’s answers). It also includes the use of coercive police techniques, which are particularly problematic when used on juvenile offenders. Lastly, Misskelley has a cognitive or intellectual disability (remember, he has an IQ of 72).
Taking a step back, class discussion on the voluntariness doctrine is typically one that elicits a particularly robust discussion amongst students. Through it, though, I hope students begin to see the dangers of unlawful police interrogation.
Looking ahead
We have just one post left so I hope you’ll come back next week for my final discussion—teaching the basics of Miranda via the interrogation of James Holmes.
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