Mike Fleming

EXCLUSIVE: Peter Jackson and Fran Walsh last came to the Sundance Film Festival in 1993 to debut their splatter film Dead/Alive at a midnight premiere. It was that same year that three boys were murdered in Arkansas, and teens Damien Echols, Jason Baldwin and Jessie Misskelley were convicted in a sensationalized trial in which prosecutors portrayed them as satanic ritualistic killers. Despite the lack of any physical evidence, the West Memphis 3 were sent to prison for life, with Echols given the death penalty. Jackson and Walsh return to Park City this week to introduce West of Memphis, an Amy Berg-directed documentary. Not only did Jackson and Walsh finance the film (which they produced with Echols and his wife Lorri Davis); much of the docu is based on evidence that came to light after Jackson and Walsh began quietly paying bills for DNA testing, forensic experts and investigators to force a retrial. In the face of overwhelming evidence, the defendants were finally freed after 18 years, forced a accept a plea agreement where the trio maintained innocence, but also pleaded guilty to perhaps the most notorious murders in Arkansas history.

Jackson and Walsh, who are on sabbatical from shooting the two-film adaptation of JRR Tolkien’s The Hobbit, began paying legal bills just after they wrapped King Kong in 2005. Last Sunday, as Berg hurried to finish the documentary that premieres Friday at the MARC Theatre, Jackson and Walsh took Deadline through a seven-year legal odyssey that grew from a desire to help into one of the high profile Sundance docus, a film Jackson and Walsh hope will help get the West Memphis 3 exonerated. And get a heinous murder case reopened.

DEADLINE: In the documentary, singer Henry Rollins said he related to Damien because he too was a loner and often depressed as a teen. What about Damien Echols or his co-defendants personalized the case for you?
JACKSON: I’ve got a very different background than Damien.  We share a sense of humor and a love of Stephen King and horror.  I wasn’t into black t-shirts and all that, I was much too mild. What I related to came from seeing the original Paradise Lost film, which did a brilliant job at just making you feel angry.  Something very wrong unfolded, not overt, almost insidious.  Institutionalized injustice, where a system decided to convict these guys before they’d even begun a trial, which wasn’t a fair trial anyway.  I just felt that they were ganged up on and didn’t have the means to defend themselves.  When we got involved, the thing that became apparent very quickly was, the best thing we could do to help was bring in what they never had. Funding to get adequate experts.  Expert forensics, expert pathology, expert investigation. At the original trial in ’94, the state could throw anything it wanted at these guys, and they didn’t have the means to defend themselves. There isn’t really anything presented in this movie about the case that couldn’t have been presented in court back then. DNA science certainly wasn’t as advanced, but a lot of these forensic experts would have testified in the trial if they had the means to get them there.  We were not really interested in funding a legal fight; there were thousands of people already contributing money for that. We would focus our funding on paying bills for experts, and to get science involved.

DEADLINE: Had either of you ever taken on a justice crusade like this before?
WALSH: No. We’re not crusaders, at all.

DEADLINE: How much did you spend on the case?
JACKSON: We honestly don’t know.  We’ve been paying our bills on the case since 2005, right along. It’s not like we gave them lump sums of money.  It was more a matter of doing what we needed to get the momentum in the investigation. If there was a piece of evidence that need to be tested, we’d say okay, send that to the lab and we’ll pay the bill.  If there was somebody we wanted to talk to, we’d send the investigator down to get the statement, and we’d pay that bill. I haven’t a clue how much we spent.

WALSH: The hard thing about Damien’s situation was, he was on death row and it’s extremely hard to reverse those convictions.  The only thing that really does it is DNA findings. The state wasn’t contributing to any DNA testing, even though they were supposed to. It’s very, very expensive.
JACKSON: The trouble was that all the evidence was under the control of the state. If we wanted to test a hair or a fiber, we had to get permission from Brett Davis, the prosecutor.  It would take months. Normally, the state has to contribute to the cost of these things. We said don’t worry; we’ll pay the bills.

WALSH: They said that they would cover half the cost and never have.
JACKSON: We should bill them.

DEADLINE: The film makes clear that DNA evidence and other investigative findings disproved the prosecution’s case in the original trial. The DNA discovery of a hair found in a knot in the shoelaces used to hog-tie the murder victims that matched Terry Hobbs, the stepfather of one of the victims. Witnesses recanting their testimony from the original trial. A demonstration that turtles indigenous to the creek where the victims were found caused bite marks the prosecution claimed was ritualistic mutilation done with a serrated blade. Why wasn’t the West Memphis 3 released as soon as you found all this?
WALSH: Because you had the original trial judge, who did not want to overturn the verdict.
JACKSON: It’s not rocket science; it’s human nature. You get to this point because you have people down there and it’s because of the type of people they are, not because of the job they’re in, and not because of the law.  It’s just simply the type of people they are.  They’re so invested in their own skin and their own self-preservation.  They want to run for senate, or district attorney, or a judgeship. They have their own skin to look after and they get to a point that they aren’t morally strong enough to be able to admit a mistake.  As for the state itself, it’s on the screen in the movie. The state says that they’d kept these guys in jail so long that they literally couldn’t afford to compensate them for their wrongful incarceration.  It’s unbelievable.
WALSH: The Alford plea was the out for the state. They’d get the case to go away and they didn’t have to pay a cent.

DEADLINE: You couldn’t have known these guys would be free when Amy Berg started filming. What tactical purpose were you thinking the film would serve when you started?
JACKSON:  We’d never intended to do a film while we worked on the case the first four years. HBO had the film part covered. We were just trying to save Damien, who’d become a friend. You get to know the people and before too long you have an emotional connection and it becomes a very personal fight. We presented all of our findings, the new science, the experts, the forensics, the redefining of the case the state presented in the original trial, all that went before the original trial judge, David Burnett, in September, 2008. We all expected this would be the moment when the case would end. We thought the judge might be morally strong enough to do that, but as it turned out, he wasn’t.  He threw it all out and said –
WALSH: He said it was not compelling.
JACKSON: In a way, his words “not compelling” inspired us to do this film. We had very, very compelling evidence, and a state refusing to let it be heard or seen. We always thought if any sensible intelligent person took two or three hours to look at the basic facts of the case, they would always come to the same conclusion. That this was a complete farce and a sham.  We needed a way to get the evidence that the judge was blocking from the courtroom, in front of people.  And then the thought became a documentary film. It’s what we do. We thought, after spending four years investigating the case, maybe we should resort to what we do. Make a movie as a vehicle by which you could present the evidence. Fran and I were in no position to do it; we had our other project going, thousands of miles away in New Zealand. We needed a brave good filmmaker who’d be in for the long haul. When we started with Amy, we had no schedule, no completion date. We were funding the movie and we found ourselves in the middle.

DEADLINE: What do you mean?
JACKSON: We were closely aligned to the defense team and the lawyers. We were privy to a lot of very confidential information. At the same time we had Amy making the movie.  So we were funding actions of the defense and we were entirely funding the film. It was prudent to keep Amy at a distance; the lawyers didn’t want her privy to some of the information that we were.  We respected that because the case always came first, before the film.  But it was a strange dynamic. Amy has incredible courage and she also has an ability to talk to people in a way that I think many people had never been spoken to in the case before.  She was talking to people who had refused to speak to investigators or lawyers. Some of that information was then going to the defense team. Amy was almost conducting her own investigation. She spent years in Arkansas.

DEADLINE: The film plays like a procedural, as the case is re-investigated and DNA evidence pointed to Terry Hobbs, the stepfather of victim Steven Branch. Was that by design?
JACKSON: We needed to present the evidence to the public. We thought at some point in the future there would be a moment in time when this movie could help Damien’s chances to stay alive.  We were trying to save him by making this film. I know it sounds really dramatic to say that, but we literally felt the state was willfully blocking us at every turn. They didn’t want any of this stuff to come out; they didn’t want to admit to any wrongdoing back in 1994. We had no script or structure; we just set out to shoot stuff.  Amy was filming for 18 months before we even thought about what shape the film would take.  We knew it was going to take a long time, because this case didn’t move fast. But at some point, there would be an appeal; there would be some moment when this movie could help them enormously by presenting the stuff to the public in a way that you could understand.

DEADLINE: That changed when they were offered the Alford plea, a deal where they could maintain their innocence, while pleading guilty and being released for time served.
JACKSON: The events overtook us. We were all surprised last August when the offer of the Alford plea came on the table. The film was not complete. We assumed that there would be an evidential hearing, which would have come last month, in December.  We thought that would result in the judge ordering a retrial. David Burnett was off the case and we had a judge on board who was actually a decent guy, who was prepared to actually look at the facts.  But the state could have appealed an order for retrial and delayed it a year. The state can do a lot to delay these things and they would have done it here. We thought the moment for this film would be the retrial, a year from now. Then the plea happened, but it not the end of the story. They were not exonerated. The state has no interest in trying to find out who killed these boys, which is the other enormous injustice in this case.

DEADLINE: Did the state paint itself into a corner, unable to find the killer because they would have to admit they were wrong?
JACKSON: It’s like there is a price on the head of those three boys that were killed. It’s $20 million bucks each. That’s what the state has put the price at, and deemed it too much.  They’re not prepared to find out who killed those boys, because if they exonerated these guys, they’d have to pay them that compensation and have to reopen the case. They’re not prepared to do that. So if you want to know how much justice in Arkansas costs, it is $20 million per victim.

DEADLINE: You were shooting The Hobbit when the plea agreement came up. Since you’d been integral to causing this, did they consult you before accepting? And did advise them to accept that plea?
WALSH: They were in touch with us when it was unfolding.  But for us, as it was for Damien, it was simple. If he had the opportunity to get out of prison, he had to take it. Because there was no guarantee that even if he had the opportunity to be retried that it would be a fair trial.
JACKSON: We were embedded in a justice system in Arkansas we didn’t feel was fair.  It’s all very well to say, well, why didn’t the guy stick it out in jail and fight this thing? But they had never been treated fairly. When the new judge came on board it was a sign of hope that now this may lead to a retrial, which was certainly going to free these guys.  There was no question of that because the state’s prior case had been dismantled, destroyed.  Then we started to worry about their safety, staying in jail.  We’re not saying the state kills people—well, they do on death row, of course–but we thought that at some point this issue of compensation was going to become a danger to these guys. It could have gotten them killed. In prison, it costs five bucks to get someone killed. There might have been paranoia on our part, but it just didn’t feel like a good idea at all to have Damien in jail for a second longer than he had to be there.  It was a very emotional time.

DEADLINE: The film shows the judge who set them free speaking gracefully in describing the whole affair a tragedy, but then the Arkansas state prosecutor gave a press conference, reasserting the guilt of the West Memphis 3 and saying, at least we got 54 years out of them.  How much of a slap was that?
JACKSON: I think you described it well.  If justice is supposed to be fair, than any justice system you would hope is based on fairness. This has been one of the most flamboyant displays of injustice you could imagine. It’s one thing to have these people locked up, say it’s an injustice, they didn’t do it, and free them.  The manner in which they were released was almost a more potent form of injustice.  You’ve the prosecutor saying he hasn’t had a chance to study the evidence, because he had only come on board a year before and wasn’t involved in the original case.  But he says on camera, I know they’re guilty.  Now that’s unfair, isn’t it?  I should add though that prosecutor, Scott Ellington, later reached out to the defense and Amy Berg, inviting them to submit any new evidence, and offering to fast track any further testing. He is actually the very first Arkansas state official to engage in a helpful friendly dialogue with the defense in the 18 year history of the case

DEADLINE: It is easy to be cynical when celebrities get involved in trying to free people convicted of violent crimes. There is a remarkable moment in your film when Terry Hobbs sued WM3 supporter and Dixie Chicks singer Natalie Maines. It provided the first venue where all the DNA and background checks you funded on him were brought out, and he was interrogated about allegations of wife beating and that he had abused the victim and his sister, among other things. Hobbs’ possible involvement is a major component of this film. Do you think he was the killer?
JACKSON: That’s up to the state to decide. You have to fight a case like this on many fronts.  We had to find evidence on the innocence of these guys, we had to dismantle the state’s original case, and the whole bit of theater about satanic worship and ritualistic sexual torture and killing they fed to the jury.  While you’re finding evidence of innocence, you also find evidence that points to other people. We found compelling evidence that could point to a possible person and the state has no interest in this. So you’ve got to present it. This is a triple child killing and we’re presenting whatever evidence we discovered. That lawsuit against the Dixie Chicks was a major turning point, though. When the DNA against Terry Hobbs came out, he’d never ever been questioned by the police. It’s unbelievable. So we got the DNA result out and we thought, well, at least now he’ll be investigated, or interrogated. But he wasn’t interrogated; he just had a chat with the local cop.  They brought him into the station in 2007, realized he hadn’t been interviewed and they thought, oh dear, this is political trouble. So they asked him to come in and they had a chat. The guy asking him the questions didn’t have a clue about the case. And that was it. We couldn’t put him on the stand. But then he sued the Dixie Chicks. We got in touch with them and we said this is an opportunity to actually have him answer questions no one’s ever asked him.  They said, great. And so we handed over our entire file.

DEADLINE: Why was Sundance the place to introduce West of Memphis?
JACKSON: The timing was very important to us because it would be after Paradise Lost 3 came out. We didn’t want to intrude on their film and when we realized they were screening at the Toronto and New York festivals, we kept our movie quiet.   We even waited until after the HBO broadcast before the trailer came out.  But we didn’t want to hold our film back any longer. This is a murder case that needs to be investigated. We talked a bit about holding it until Berlin or Cannes, but it is an American story, only the American justice system can do right with this case and an American festival is the place to premiere the film.  Sundance is the ideal venue.

DEADLINE: Your manager and the film’s exec producer, Ken Kamins, will seek to get a distribution deal here. What would make this film a success for you?
JACKSON: I’m sure Ken will probably kill me for saying this.  We’re not really interested in the financial part.  We just want the film to be seen as widely as possible. We’d even had discussions about sticking it on the net for free, because we thought it might get to a wider audience. The Alford plea cannot be the end result.  In our minds, in Damien’s mind, this cannot be the end of the story. Damien came down here to New Zealand to help out work on the film in the final couple of months that we were doing the cut.  We had to ask the government for a waiver to allow him in, because he’s a convicted child killer and New Zealand doesn’t allow that type of person into the country.  We sent the government a file about the case, and they understood the injustice and had no concern about allowing him in.  But that’s the sort of thing those guys have to live with. Damien, Jason and Jessie have triple child murder on their record and that will affect them for the rest of their lives. And the state is getting away with that.
WALSH: They were not only wrongly incarcerated for eighteen years and uncompensated for that.  They are bearing the stigma of a triple child murder conviction. That’s the hard truth of it.
JACKSON: At what point is there a call for the state to investigate who actually killed these kids? The state is hiding behind the Alford plea and the fact that these guys had to plead guilty to get out of jail.  So they have this attitude, we can shut the book on this. If people truly believe that somebody else killed those three kids then surely that’s got to be investigated.