Echols files appeal to allow for advanced DNA testing to be done in WM3 case

by George Jared ([email protected]) 1,884 views 

Damien Echols has filed an appeal to have advanced DNA testing done on ligatures that were collected in the murders of three 8-year-old boys in West Memphis on May 5, 1993. Echols had petitioned the Crittenden County Circuit Court in June to order M-Vac DNA, or touch DNA testing, be done on the shoelaces that bound the victims, Stevie Branch, Michael Moore, and Christopher Byers.

That petition was denied by Judge Tonya Alexander. A timetable for the appeal to be heard was not released.

Echols and his co-defendants in the case, Jason Baldwin and Jessie Misskelley Jr., agreed to Alford pleas on Aug. 19, 2011 in the killings. The three men, known as The West Memphis Three or WM3, were released after spending more than 18 years in prison. All three have steadfastly maintained their innocence for decades. An Alford plea is a no contest plea where the accused claim their innocence, but plead guilty anyway to get a deal offered by prosecutors instead of risk trial. In 2011, facing a retrial with weakened evidence, prosecutors accepted the Alford plea in exchange for time served by the WM3.

Alexander told Echols during the June hearing that since he was not in prison, he could not seek relief in the form of DNA testing. In the appeal, Echols attorneys argue that the judge’s interpretation of the law was false and that there are other consequences that come as a result of a criminal conviction that go beyond simple incarceration.

“Judge Alexander’s ruling as an erroneous exercise in statutory interpretation. The clear intention of the legislature here, as stated by the legislature itself in the Title of Act 1780, was ‘to provide methods for preserving DNA and other scientific evidence and to provide a remedy for innocent persons who may be exonerated by this evidence,’” the appeal states. “The legislature, thus, intended to create a pathway to exoneration for individuals whose wrongful convictions might be established by newly available scientific evidence, like more advanced DNA testing. Such a restriction limits the effectiveness of the legislative intention by removing an entire category of individuals – those who have been wrongfully convicted and completed their sentence.”

His attorneys pointed to the language in the statute to support their arguments.

“Except when direct appeal is available, a person convicted of a crime may make a motion for the performance of . . . DNA testing, or other tests which may become available through advances in technology to demonstrate the person’s actual innocence,” the statue reads.

Prosecutors had argued that the M-Vac system has been vetted, but the FBI has released data touting its effectiveness. M-Vac CEO Jared Bradley told Talk Business & Politics that hundreds of labs around the country use the method to retrieve DNA. It was noted in the appeal that M-Vac testing is used by the Craighead County Sheriff’s Department and the Marion Police Department, both of which are in the same judicial district.

Echols has been active on social media excoriating prosecutors and the Arkansas judicial system for stopping testing on the evidence in the case. He has accused state officials of “giving cover” to the real killer or killers in this case.

“We are extremely disappointed in the judge’s decision which was based upon a narrow interpretation of the law and one that failed to allow justice to be served. All I asked for was the right to seek to identify the DNA of the real killer (s). We are appealing that decision and are confident that the Arkansas Supreme Court will see it differently. The sad fact is that those responsible for the murders of three children in 1993 have breathed a sigh of relief now that the state of Arkansas is once again in their corner,” Echols said.

Echols asked prosecutors to test the ligatures two years ago, and at first the state seemed ready to allow the testing to move forward. But after Prosecutor Scott Ellington was elected to a judicial post, newly appointed Prosecuting Attorney Keith Crestman told Talk Business & Politics in April 2021 he would seek a judge’s order to destroy the evidence.

Soon after, prosecutors claimed the evidence had been lost or destroyed in a fire, but these claims proved untrue when in December 2021 the evidence was found intact inside the West Memphis Police Department’s evidence locker room. Why it was claimed that the evidence was destroyed or lost has never been explained.

Repeated attempts by Talk Business & Politics to get comments from Crestman have gone unanswered.

Swabbing with a cotton tip has been the gold standard for collecting DNA in criminal cases for many years, according to the FBI. The agency conducted an extensive research probe into M-Vac testing and found in 2020 that it’s on average 12 times more accurate than swabbing and it recommends using the method if it’s available.

M-Vac uses a wet vacuum system. An item is ‘vacuumed” and the material collected is placed into a solution. The solution is removed and all the material, including any DNA, is collected by a filter that is then transferred to a lab for analysis.