Trial by convenience

Damien Echols (left) and Jason Baldwin (right) stood trial together in 1994

In cases where two or more people are charged with the crime of homicide, the question about whether or not to try the accused together is almost always raised. Theoretically, trying two people for a single crime appears to make sense because it decreases the costs and time associated with multiple trials. This also reduces the trauma experienced by families and friends of the victim when exposed to these trials.

However, the truth of the matter is that combined trials usually contribute to an atmosphere of prejudice against at least one of the defendants. When deciding if this approach is truly responsible, one might ask if it is appropriate to favor efficiency over a defendant’s right to a fair trial. If you are undecided on this issue, perhaps the following cases will help demonstrate why combining trials is an unjust practice.

West Memphis, Arkansas

In the summer of 1993, three teenagers in West Memphis, Arkansas were arrested and charged with the murders of three 8-year-old boys. Two of the defendants – Jason Baldwin and Damien Echols – faced trial together. The defense attorneys argued against a combined trial for several reasons. For starters, Jason’s attorney, Paul Ford, was concerned about the impact negative media coverage of Damien would have on his client. In Mara Levitt’s book, Devil’s Knot, she wrote the attorney “did not want Jason to be painted with the same broad brush as Damien”.

Ford also raised issues pertaining to the contradictory nature of some of the evidence. For example, one of the witnesses for the prosecution stated she had observed Damien on a service road in the general area where the three boys were found. However, her eyewitness account did not include Jason. This was problematic because the prosecution based their case on the claim that Jason, Damien, and another teen by the name of Jessie Misskelley, were together when the three boys were murdered.

The presiding judge, David Burnett, decided against two separate trials for Jason and Damien. His reasoning was that combining the trials was a matter of “judicial economy“. He also added that he did not feel that a joint trial would jeopardize either of the teenagers’ right to a fair trial.

The jury on that particular trial was advised to consider Jason and Damien separately in terms of their alleged involvement in the murders, but we will never know if the jury was truly able to do that. Based on the case files made publicly available, a number of people provided information to the police that directly contradicted the prosecution’s contention that Jason and Damien were together the evening the murders occurred. Providing proof in the form of alibi or eyewitness accounts that the two were separated would have significantly damaged the state’s case against all three teens. However, in a joint trial this can create confusion and hinder each of the defendants’ defenses.

An unfortunate aspect of Jason’s defense was that witnesses could have provided an alibi for Jason throughout the evening of May 5th, but they were never called to the stand. Jason’s defense rested after calling a single witness: Charles Linch. It is fair to conclude that a separate trial, combined with a more zealous defense on Jason’s behalf, might have resulted in a completely different outcome for Jason.

With that said, the three teens accused of the murders were subsequently convicted in two trials. Jessie received his trial first. Jason and Damien’s trial came second. Over the course of 18 years, a time-consuming and expensive legal battle has taken place in the appellate courts to acquire freedom for the three convicted. DNA testing has helped to support Jason, Jessie, and Damien’s claim of innocence.

In August of 2011, the three who had became known as the “West Memphis Three” were released from prison after entering an Alford Plea. Such a plea does not require an admission of guilt. Instead, it depends upon the person’s willingness to acknowledge the prosecution’s ability to meet its burden of proof in court. The precedent for this plea arrangement stems from the Supreme Court case North Carolina v. Alford.

The West Memphis Three are now free, but at what cost?

Louisville, Kentucky

Josh Young (far left) could receive a joint trial with his former accuser, Josh Gouker (far right)

Josh Young is now 17-years-old. He was only 15 when his stepbrother, Trey Zwicker, was murdered in May of 2011. The police arrested Josh in connection with the crime after his father fled the state with the teen. At the time it appeared as though detectives considered Josh’s father, Josh Gouker, a suspect in the case.

Gouker and his son were arrested in Alabama in June of 2011 on gun charges. Gouker was also held on a kidnapping charge in relation to a woman who claimed he forced her to drive at gunpoint. He was released from jail in the state of Alabama during the month of September, but was remanded back into custody by October.

During this time period, Gouker contacted the detectives investigating Trey’s murder. He told them that his son had committed the crime and that he had not known about Josh’s involvement until after. His claims contradicted statements he made previously. In an attempt to prove he was telling the truth to police, Gouker orchestrated phone calls to several family members and friends. Though he tried to get various people to corroborate his claim that Josh was the perpetrator, some of conversations that took place presented clear red flags that Gouker was trying to divert suspicion off of himself by casting it onto his own son.

Eventually Gouker admitted that he had murdered Trey on his own, but by then the damage was done. Now the younger and elder Josh both stand accused of the murder. Moreover, the prosecution wants to try the two together. This, despite Josh’s defense attorney’s claim that he “plans to introduce 20 new factual items that will show the teen did not kill Zwicker, 14, by beating him with a baseball bat.”

Josh Young’s defense attorneys want him tried separately from his father. Trying Josh beside his father presents a number of hurdles for the defense, including the potential for Gouker to influence or attempt to manipulate witnesses for Josh’s defense. Discovery evidence demonstrates he has done this in the past and so there is reasonable concern he may do it again.

A combined trial would also force Josh to stand trial next to his accuser. Instead of having the opportunity to challenge his accuser in court in the traditional sense, he runs the risk of being perceived negatively when the jury learns more about Gouker. This is a similar dilemma to the one mentioned previously in which Jason Baldwin’s defense attorneys worried that he would be impacted by the evidence presented against Damien – even though much of it had nothing to do with Jason.

Gouker’s defense wants a separate trial as well.

Judge Barry Willett is expected to make a decision about trying Josh and his father separately or together on March 22. Hopefully the judge will preserve each defendants’ right to a fair trial. Only time will tell.