ARKANSAS

The study of criminal appeals from 1970 to the present revealed 54 Arkansas cases in which defendants alleged prosecutorial error or misconduct. In seven, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In four, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Of the seven convictions reversed on appeal, four involved a prosecutor withholding exculpatory evidence. The rest involved improper prosecutorial arguments at trial.

Former Crittenden County deputy prosecuting attorney John Fogleman took part in at least three of the 54 cases. In one, the court found his conduct to be so prejudicial as to require a new trial. In another, a dissenting judge would have reversed a murder conviction because of Fogleman’s tactics.

Fogleman and another Crittenden County prosecutor, Scott Hunter, tried David Strobbe for the 1986 murder of Marian Mullins. Mullins was beaten and run over by a vehicle. The only eyewitness to the murder was Michael Phillips, whom the state had also arrested for the murder.

Before the trial, Phillips gave prosecutors and police three different versions of how the murder occurred. At first, he denied seeing anything at all. But in a statement later the same day, he said he watched Strobbe rape and beat Mullins before running her over with his vehicle.

“When this case started, we didn’t view it as two people being involved,” Fogleman told the Center. “To be honest, I’m not sure to this day that he [Phillips] was actually involved in the murder.”

In another statement—his fourth—Phillips provided his third version of events. He told Fogleman and a sheriff’s deputy that he had helped place Mullins in front of the vehicle so Strobbe could run her over.

“At that point, I was thinking this is different, but it doesn’t exculpate [Strobbe],” Fogleman said. “I didn’t view that as exculpatory evidence, and I didn’t feel like I had to disclose it.”

Fogleman and Hunter did not disclose to the defense how the state’s main witness changed his testimony. The state Supreme Court reversed Strobbe’s conviction because of their conduct.

“The State knew its case rested primarily on this one witness, and they represented that he was merely there—that he only saw the crime,” wrote state Supreme Court Chief Justice Jack Holt Jr. “The officers of the state led the judge and the jury to believe that they did not know Phillips had changed his story. This was simply not true. The record speaks for itself on the actions of the officials.”

Fogleman said the appellate opinion was embarrassing, especially because the judges published his name.

“I learned a very, very valuable lesson,” he said. “From that point on, if there was anything, just about anything, I provided it to the defense.”

In 1990, Fogleman prosecuted Clarence Gillie for capital murder. On the first day of the trial, without defense counsel’s knowledge, Fogleman filed an additional charge—aggravated robbery, for which Gillie was later sentenced to 50 years. On appeal, the state Supreme Court’s majority ruled the addition of this surprise charge did not prejudice Gillie.

“As I prepared for trial, I concluded that we should file that charge,” he said. “That is done routinely and approved by the Supreme Court routinely.”

Justice Robert Brown dissented because he thought the late addition of charges prejudiced Gillie. “Not knowing with certainty whether the client will be charged with a second felony until the date of the trial places the defense counsel under a horrendous burden,” Brown wrote. “The majority wears blinders when it says no prejudice resulted.”

Fogleman said he has a great deal of respect for Justice Brown, but he doesn’t always agree with his opinions.

Fogleman’s most well-known case involves the gruesome murders of three children in West Memphis and the three teenagers whom Fogleman prosecuted for the crimes. In May 1993, searchers discovered the bodies of three missing eight-year-old boys in a water-filled ditch. All three were naked with their hands bound to their feet, and they had been mutilated, one more severely than the others.

Four days later, with no solid leads in the case, a detective interviewed a neighborhood teenager, Damien Echols. In his subsequent description of the interview, the detective said Echols “stated that the boys probably died of mutilation” and “he said at least one was cut up more than the others.”

When police interviewed Echols, details of the victims’ mutilation had not been released to the public. Detectives subsequently interviewed Echols’ friends, Jessie Misskelley and Charles Baldwin.

Without a parent or lawyer present, Misskelley gave police a tape recorded statement, in which he implicated Echols, Baldwin and himself in the murders. Misskelley was a special education student with a history of behavior problems and an IQ of 72.

“It’s not like LA Law on T.V.,” Fogleman said. “If he had asked for a lawyer, the first thing a lawyer would have done is go in there and tell him not to say another word.”

Fogleman said Misskelley’s father knew they were interviewing him and had even consented for him to take a polygraph test.

Portions of Misskelley’s statement matched forensic evidence, including which boy died first and the types of wounds inflicted on the victims. The statement, however, contained numerous inconsistencies. Misskelley initially said the murders took place at 9 a.m. on a school day. This could not have been the case. In a second interview an hour and a half later, he said it must have been 5 p.m. After “prompting by the officer, he changed that to 7:00 or 8:00 p.m.” He also said the boys’ hands were tied with brown rope, while their hands and feet were actually tied together with black and white shoelaces from their own shoes.

“When I first saw the interview, there were things in there that were very convincing that Misskelley was there and a participant,” Fogleman said. “There were other things in there that made you wonder if he was there at all.”

Fogleman said he had doubts but eventually felt it was in the interest of justice to prosecute all three. “[Misskelley] was able to point to a school picture and say, this was the boy who was castrated, this was the boy who was stabbed in the face,” he said. “The only way he could have known was to be there or have the officers tell him.”

Fogleman prosecuted all three for the murders. He tried Misskelley first. After a jury convicted Misskelley, Fogleman tried Echols and Baldwin together.

At their trial, Fogleman presented evidence of their involvement in satanic and occult activities. Fogleman defined occult activity in part as “an obsession with heavy metal music, change in forms of dress, wearing all black…and I believe the proof will show that [Baldwin] had fifteen shirts with the heavy metal thing.”

“That’s not my definition,” Fogleman told the Center. “I’ve got children who listen to heavy metal music; that doesn’t mean they’re Satanist—it was a combination of everything we had and those things were blown way out of proportion.”

The jury convicted them, sentencing Echols to death and Baldwin to life in prison.

According to the state Supreme Court, there was “substantial” evidence of Echols guilt. But since their convictions, many have come to doubt it. A campaign to free the “West Memphis Three” has captured the attention of journalists, musicians, authors and producers.

“People who are raising questions are not basing it on knowledge,” Fogleman said. “They’re basing it on what they saw in a movie—the second movie was a ‘Free the West Memphis Three’ infomercial.”

In a 1996 appeal to the state Supreme Court, Echols and Baldwin alleged, among other things, that Fogleman abused his subpoena power, failed to disclose evidence, conducted improper communications with the judge and made an improper display by cutting a grapefruit with a knife during closing arguments. The court held all of these allegations were without merit and upheld the convictions.

In September 2002, the state Supreme Court granted Echols a stay to conduct more sophisticated DNA testing of forensic evidence. Echols, Baldwin and Misskelley remain behind bars.

After twelve years as a deputy prosecuting attorney, Fogleman left the office for a judgeship. He is currently in his ninth year as a Second Judicial Circuit judge.



  ¶ 8:14 PM