EASTERN DISTRICT OF ARKANSAS
JAY CAMPBELL and KIRK LANE
CITIZENS FOR AN HONEST GOVERNMENT, INC.
MATERIAL FACTS IN SUPPORT OF DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION
TO PLAINTIFFS' STATEMENT OF MATERIAL FACT
For Defendants' Local Rule 56.1 Statement of Material Facts in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Statement of Material Facts, the defendants state that the following are uncontested material facts:1
1. Defendant Pat Matrisciana is the shareholder, president, and director of Defendant Jeremiah Films, a for-profit documentary film corporation. Matrisciana is the founder and chairman of Defendant Citizens For Honest Government, a non-profit organization.
2. Obstruction of Justice: The Mena Connection (Obstruction of Justice) was produced under the label of Defendant, Integrity Films. Obstruction of Justice was produced and distributed by Jeremiah Films, was released in April of 1996, and has sold approximately 300,000 copies. Integrity Films is an entity created solely for its production label.
3. Obstruction of Justice, the subject of this lawsuit, chronicles events following the August 23, 1987, Saline County murders of Kevin Ives, 17, and Don Henry, 16, whose bodies were laid on railroad tracks and mutilated by a passing train. Obstruction of Justice portrays the failure of seven separate local, state, and federal investigations to have the killers prosecuted. Troubling facts surrounding each thwarted investigation are reported in the film and serious questions of cover-ups and obstruction of justice are raised.
4. The initial investigation of the Ives-Henry murders was conducted by the Saline County Sheriff's office. It was so badly done that Kevin Ives' foot was left in plain sight at the scene, the back of the train was used as a reference point (useless when the train moved), evidence disappeared, and deputies were caught in lies.
5. The 1988 Saline County Grand Jury investigation was led by Special Prosecuting Attorney Dan Harmon.
6. The Special Grand Jury issued a report on December 28, 1988:
8. The two-year-long federal grand jury investigation was closed in June of 1991 by U.S. Attorney Chuck Banks. According to Agent Phyllis Cournan, who told Duffey and others, the FBI recommended that Chuck Banks be charged with obstruction of justice for doing so.
9. Saline County Detective John Brown's 1993 investigation ended when he was taken off the case by the sheriff. The FBI had taken over his case file.
10. The FBI investigation began with a promise to Linda Ives that the murders would be solved by the end of 1994 and ended with an announcement that "no crime has been committed."
11. Pat Matrisciana relied on Jean Duffey, Linda Ives, and John Brown as sources for the content of Obstruction of Justice.
12. Pat Matrisciana relied on the expertise of John Brown who he knew was a law enforcement officer with fifteen years experience who has been awarded the Medal of Honor in Law Enforcement. He had a reputation as a valorous, yet modest, man. Brown was hired as a Saline County Deputy Sheriff in September of 1992, and was assigned to work the Ives-Henry murder case in February of 1993. He resigned from the Sheriff's office after being ordered off the Ives-Henry murder investigation in August of 1994.
13. Matrisciana also relied on the experience of Jean Duffey who had been Saline County Deputy Prosecuting, appointed in January of 1989. In March of 1990, Duffey was appointed to head the Seventh Judicial District Drug Task Force. Dan Harmon's illegal drug activities were identified very early by Duffey's task force, causing Harmon to launch a public smear campaign against her. Duffey was fired in November of 1990, amidst a barrage of public attacks from Prosecutor-elect Harmon. Professionally destroyed, Duffey moved to Texas, changed careers, and was not involved again until March of 1994, when FBI Agent Phyllis Cournan persuaded her to assist the FBI's investigation of the Ives-Henry murders.
14. Matrisciana also relied on the knowledge of Kevin Ives' mother, Linda Ives, who has been struggling for years to uncover the truth of her son's murder, combating what she sees is government intransigence at every level.
15. With the support of the media, Ives first worked to expose the incompetence of State Medical Examiner Fahmy Malak. Malak had ruled that her son's death an accident: the two young men were sleeping on the railroad tracks in a marijuana-induced stupor and were run over by a freight train. In September of 1988, the Saline County Special Grand Jury, using independent pathologist Dr. Joseph Burton from metropolitan Atlanta, found instead that the deaths were homicides. The media also helped Ives cause the long-running sheriff of Saline County to lose a 1988 bid for re-election by exposing his mishandling of the murder investigation. Ives continues her search for the truth, collecting pertinent documents from every source made available to her. She has collected hundreds of news articles related to the deaths and corruption of Saline County public officials.
16. Matrisciana gave Ives and Duffey editorial control over Obstruction to assure its accuracy. The film's editor was given orders "to make sure that John Brown, Linda Ives, and Jean Duffey would be satisfied with the final results of the video." They had the final word on what went in and what did not, and each saw the final cut of the film before it went to duplication.
17. The film lists "SUSPECTS IMPLICATED IN IVES/HENRY MURDERS AND COVER-UPS" and includes Plaintiffs Jay Campbell and Plaintiff Kirk Lane. It states as follows:
A graphic on the screen at that point states:
MURDERS AND COVER-UPS
DAN HARMON, Prosecutor
RICHARD GARRETT, Deputy Prosecutor
JIM STEED, Sheriff
JAY CAMPBELL, Officer
KIRK LANE, Officer
DANNY ALLEN, Officer
18. John Brown initially supplied the information about Campbell and Lane's involvement in the murders to Matrisciana's agents, and their names were added to the script.
19. Linda Ives changed the wording of the script to read what she and Jean Duffey knew had been documented.
20. After this suit was filed, John Brown signed a sworn affidavit on March 19, 1998, saying that he told Matrisciana there was no documented justification for implying Campbell and Lane were involved in the murders, and that he disapproved of the film.
21. Brown's affidavit was a shock to those who worked with Brown while making Obstruction of Justice as well as to others who communicated with Brown about his investigation of the murders and knowledge of the case.
22. John Brown talked openly about Jay Campbell and Kirk Lane being suspects in the murders as early as July of 1994, during a meeting which was videotaped by David Minasian while working for Matrisciana. At a meeting on July 18, 1994, almost two years before the release of Obstruction of Justice, Brown said:
Parks: You mentioned Jay Campbell earlier.
Brown: Yep. ... Watch what you say to Jay Campbell -- be real careful.
Nichols: Who is Jay Campbell?
Parks: I've known him about eight years.
Brown: I don't care. You be r-e-a-l careful.
Brown: The problem I have with it, he and Kirk Lane both, are very early on in the Henry and Ives homicide, the two boys on the tracks, their name appears as possible suspects along with a third name. And again they're listed as possible suspects, which was Larry Dill.
23. Brown talked to friends and business associates about Campbell and Lane being the murderers. Brown promoted the sales of Obstruction of Justice on numerous talk-radio programs and in interviews for publications. Brown never expressed displeasure with it. In fact, he said in one interview "the video is 100% accurate."
24. Brown obtained at least 300 copies of Obstruction of Justice and used them to promote his failed campaign for Saline County Sheriff in 1996.
25. After seeing a copy of Brown's affidavit, Pat Matrisciana taped a telephone conversation with Brown in which Brown admits he told Matrisciana that Campbell and Lane are "suspects" but he quibbles over the definition of "prime suspect." He told Matrisciana what questions he should pass on to his lawyer to ask Brown in a deposition to establish that he, in fact, was a source of the statement that Campbell and Lane were "suspects" in the murders and cover-up. Brown sent a list of questions he wished to be asked in the deposition. (They were faxed by Brown and are attached to the transcript of the telephone call.) Brown had no objective reason to believe that the contents of his telephone call would not be passed on to others; indeed, he expected it to be shared with Matrisciana's lawyer and others.
26. One of the questions Brown wanted Matrisciana's lawyer to ask was:
27. Brown quibbled over who could "designate them [Campbell and Lane] as a suspect," or as a "prime suspect."
28. Then, Brown said that Matrisciana's lawyer is to ask him in the deposition whether they were eliminated as suspects:
29. Brown said that his affidavit is incomplete because the plaintiffs did not want to hear all that he had to say.
30. Brown says that Campbell and Lane were told they were suspects when they were sitting outside the grand jury room.
31. He also told Mr. Matrisciana that he met Campbell and Lane once and they admitted to him that their names had come up early in the investigation. Later, Campbell indicated " 'I have been involved in some shit, okay, and I'm not proud of it.' But he said, 'I, myself, was not involved in killing those kids.' "
32. He also reportedly told Mr. Matrisciana that Campbell had told him that Harmon had told the grand jurors that the killers would be appearing that day, and Campbell ended up being called in that day.
33. He said that FBI Agent Cournan was supposed to interview Campbell and Lane during her investigation of the murders, but she did not.
34. He said that "I.C. [Smith, then Special Agent in Charge of the FBI in Arkansas] was real interested to see what Phyllis had to say, and that -- he didn't say they have exposure, but he knew they had been named," but it has not been followed up on.
35. He said that Cournan, however, did not deny that they had anything to do with it. He also said that the FBI has not cleared them.
36. He said that Cournan "says officially now that they have nothing to do with it. And at that point -- you and I and Linda can discuss all we want to anything prior to that that was used to develop the video."
37. Prior to the production of the film, Ives and Duffey knew Campbell and Lane had bad reputations and a propensity for violence. Ives had copies of several affidavits filed in a 1988 federal criminal case, United States v. Troy Warner, in which witnesses attest they were harassed, intimidated, and threatened by Campbell or Lane. One witness said drugs were planted on him by Lane. Another said he was beaten by Campbell. The defense attorney in that case, R. David Lewis, took the affidavits to the Pulaski County Sheriff, the State Police, and the FBI, but requests for protection were ignored and no investigation was conducted. (Larry Dill, head of the Pulaski County Sheriff's Criminal Investigation Division back then, was mentioned by Brown as being involved in the murders.) It didn't help that Saline County Deputy Prosecutor Richard Garrett wrote an affidavit affirming belief in the veracity of the witnesses, and stating "I was not surprised by allegations that dope had been planted" by Kirk Lane. Also a confidential informant claimed he could buy drugs off of Jay Campbell and offering to do so for the FBI. Lewis was frustrated and bewildered. "[A]ll these people were victims of terrorism" and he could find nowhere to turn for help.
38. Linda Ives and Jean Duffey believe Jay Campbell and Kirk Lane killed the boys but are being protected. Their belief is based on a methodical and thorough study of the facts and documents. There are two eyewitnesses to the murders with a significant amount of corroborating and circumstantial evidence pointing to Jay Campbell and Kirk Lane, yet Ives and Duffey believe the evidence has been ignored, discounted, or falsely discredited.
39. There are two Arkansas State Police reports of interviews in the Jefferson County Jail with Ronnie Godwin. The first report was June 20, 1988, at 2:43 p.m.
42. No attempt was made by the State Police to verify or corroborate Godwin's statements, but a great deal of time and effort were spent to refute them. There are three separate State Police reports of purported interviews, conducted on June 22 and 23, with Ronnie Godwin's mother, sister, and girlfriend. Each report says essentially the same thing, which is Ronnie lies when he drinks. The reports fail, though, to point out Godwin's two interviews were conducted while he was in jail. Even if Godwin does lie when he drinks, he could not have been drinking when he gave his statements. The most troubling discovery about the reports, however, is that the women were not interviewed by the State Police. Ives and Duffey spoke with Ronnie Godwin's mother who said she was not interviewed at her residence or anywhere else, and she is willing to testify to that under oath. The mother also told Ives and Duffey that neither the sister nor the girlfriend were interviewed either.
43. Another State Police report submitted by Investigator Dale Swesey attempts to impeach Godwin by obtaining his employment records.
Once again, information is referred to that is not previously in the State Police file. There is no reference to any kind of time frame given by Godwin in either report of his two interviews. If Godwin did say something about being off during the time of the incident, as Swesey indicates, Godwin's employment records show he worked only 8 hours during the week ending August 22. The murders occurred late the night of August 22 or early morning of August 23.
44. There is a State Police report corroborating Godwin, but it is arbitrarily discounted with no explanation. The report is of a February 21, 1990 interview of Mike Crook, the owner of Gigi's Nightclub.
47. There is nothing in the report of Mike Crook's interview to indicate he did not know Ronnie Godwin. Sgt. Phillips either failed to refer back to the State Police report, which indicates Crook knew Godwin, or Phillips chose to ignore the report. In an interview on June 23, 1988 with Sammie Smith, a Gigi's employee, Smith stated: "I know Ronnie Godwin and have known him for several years. He is a member here at Gigi's."
48. Another State Police report would have corroborated Crook's statement about a third boy if pursued, but it wasn't. A December 8, 1988 interview is of Joseph Clark Farmer, a friend of Eugene and Keith Coney. Farmer said he was talking to Eugene Coney about the two boys not long after they were killed, and Eugene said "Keith said the cops killed the boys."
49. Phyllis Cournan told Linda Ives she had confirmed that Keith Coney was with the boys just before they were murdered. Coney's mother, Betty Alexander, said she believes her son was murdered because he knew too much about the Ives-Henry case. She made these statements during a television news interview, but the State Police never interviewed her. Obstruction of Justice includes news footage clip of Alexander's interview, which was obtained from the television station.
KEITH CONEY'S MOTHER
KEITH CONEY'S MOTHER
The attached paper is handwritten and in part reads: "Kirk Lane - killed the Bryant Children being investigation" and "Jay Campbell - told Donna he would rape her and her mother and keal (kill?) her dog." An asterisk beside the names of Campbell and Lane refers to a footnote which says "Most Dangerous." . There is no State Police interview of Cindy Lewis or Donna Morrissey.
51. The State Police attempted to discredit Ronnie Godwin and to discount Mike Crook. They disregarded the note from Cindy Lewis, and they ignored leads.
52. Retired State Police Officer Lendol Holcomb reviewed the file, and he thinks it is incomplete because Jay Campbell and Kirk Lane were not interviewed. He states: "Not only do I think they should have been interviewed, but also investigated." There is no doubt in the minds of Linda Ives and Jean Duffey that the State Police is protecting Jay Campbell and Kirk Lane. This did not become evident to them, however, until they began their own thorough study of the entire State Police file obtained under FOIA after "the FBI slammed the door" on Ives.
53. Jay Campbell and Kirk Lane were named to Linda Ives as suspects as early as mid 1988 by Dan Harmon. Numerous other names of suspects have been brought up over the years, but Campbell and Lane are the ones who have been bought up consistently, each time corroborating the other times.
54. Michael Maholy, an inmate at Leavenworth wrote a letter to Pat Matrisciana in 1995 about the "Death of two boys on the Railroad tracks...." The information came from Todd Cornwell, an "advanced drug dealer" in Arkansas. The letter links Jay Campbell, Kirk Lane (spelled Lange by Maholy), and Dan Harmon to extortion of drug dealers. The letter also says Campbell and Lane were involved in murdering the boys. Harmon was convicted on extortion and drug distribution charges in June of 1997. The FBI investigation of Harmon, which led to his indictment, did not even begin until early 1997, almost two years after Maholy wrote the letter.
55. A few weeks after FBI Agent Bill Temple told Linda and Larry Ives "no crime has been committed," Jean Duffey recorded a conversation with Agent Phyllis Cournan in which Cournan said Temple made that statement "almost verbatim." Cournan was nervous and reluctant to talk throughout the entire conversation, but suggested that the FBI protected Dan Harmon. Duffey reminded Cournan of the informant who "reported information about the [Harmon's] drug task force operating a drug ring...." Duffey added, "but if Floyd Hayes was put in charge of that investigation, it died right then and there on the vine...." Cournan replied, "Look, Jean, okay, for one thing, they've been running wide open for years. . . . and I don't know what else in involved or what else is going on." Duffey believes Floyd Hayes is "a dirty FBI agent," and when Hayes was assigned to work with Cournan on the Ives-Henry case, Duffey predicted, "this is the beginning of the end."
56. In March of 1994, Phyllis Cournan had persuaded Jean Duffey to get involved in the case again by telling her the FBI recommended U.S. Attorney Chuck Banks be charged with obstruction of justice for shutting down the 1990 federal grand jury investigation of Saline County corruption. During her recorded telephone conversation with Cournan, Duffey asked, "Did anything at all ever come of the obstructing justice charge on Chuck Banks?" Phyllis replied, "You know what, you're gonna get me in trouble.... I cannot talk about that. [inaudible] file civil, subpoena me, I'll be there."
57. From March to November of that year, Cournan spent hours on the phone several times a week talking with Duffey about Saline County corruption and the Ives-Henry murders. Cournan frequently sought Duffey's advice and direction. She confided in Duffey that she feared for her own safety, and that she was sleeping with a gun. She called in a panic one evening to tell Duffey an informant heard Joe Kelly Hardin and Robert Shepherd talking about Harmon having Duffey killed. Cournan minimized the significance of her communications with Duffey. She says, "I interviewed all past investigators on the case, to include Jean Duffey, yes." FBI Attorney Steve Frazier disallowed her from making any further comment.
58. Questions about conversations with John Brown and Linda Ives were similarly disallowed. Ives took contemporaneous notes of a conversation she had with Cournan in which Ives expressed her belief that Jay Campbell and Kirk Lane were involved in the murders. Cournan denies talking to Ives about Campbell and Lane. Duffey also had a conversation with Cournan about Campbell and Lane being suspects, and Duffey reminded Cournan she had Duffey's drug task force note summaries frequently alleging Jay Campbell and Kirk Lane were linked to illegal activity.
59. Cournan's comments to Ives and Duffey eventually became contradictory. Cournan told Duffey she was not going to be able to investigate or polygraph Campbell and Lane because they were police officers. Cournan told Ives "the only people failing polygraphs were cops."
60. Cournan also told Ives she was keeping copies of records at her house out of fear she would be ordered to shut down the investigation and the records would disappear. Cournan told Duffey in late 1995 that her superiors were watching her and trying to catch her doing something wrong. However, in the November, 1995 meeting with Agent Bill Temple and the Ives' Cournan said the FBI and her superiors had been very supportive of her investigation. Cournan offered to give the documents to Ives for a civil suit, but she never did.
61. Cournan was not just being paranoid when she said she was being watched. Sometime in 1996, an internal investigation was opened on her. The focus of the investigation was Cournan's statement to several people that the FBI recommended Chuck Banks be charged with obstruction of justice for shutting down the 1991 grand jury investigation. Duffey's brother, David Keesee, was interviewed by an FBI agent from Washington D.C. Duffey was interviewed at her Houston area residence by two FBI agents from the Houston office. After the interview of Duffey, the Houston investigators told Duffey and her husband they saw nothing wrong with Cournan telling Duffey about Banks if that's what persuaded Duffey to get involved in the case again.
62. When the FBI effectively shut down its investigation, Linda Ives and Jean Duffey decided to push the Obstruction of Justice project ahead. It had finally become clear to Ives and Duffey that the government was covering up the Ives-Henry murders, and there was nowhere else to turn.
63. Sharline Wilson signed a confession stating that she participated in the murders of Kevin Ives and Don Henry. Jean Duffey knew Wilson and had used her as an informant for her drug task force, but the confession was signed in 1993, after Duffey left the state. Phyllis Cournan told Duffey about the confession and asked Duffey her opinion. Duffey told Cournan she did not know why Wilson would sign a confession, but Duffey did not believe Wilson killed the boys. Duffey and Ives believe Wilson was at the tracks with Dan Harmon the night of the murders, but neither believe Wilson is the killer.
64. Jean Duffey visited Sharline Wilson at Tucker Prison for Women in 1995. Wilson told Duffey she signed the confession after being badgered and spending the night in a padded cell. Wilson said she "just decided to tell them what they wanted to hear." Wilson told Duffey they put her on a polygraph machine after she signed the confession, but she failed.
65. Sharline Wilson told Duffey she drove Dan Harmon to the tracks the night the boys were murdered, but she sat in the car and waited for him. Wilson told Duffey that while she was sitting in the car, she saw a young teenage boy run out of the woods. Wilson did not know anything about Tommy Niehaus, who had come forward in 1993 to the FBI. Niehaus passed a polygraph test placing Harmon on the tracks. He said that he saw Harmon on the tracks with two boys, heard a gun shot, and went running out of the woods. This corroborates Wilson's alibi; she was sitting in the car and not on the tracks with Harmon.
66. Two eyewitnesses have come forward placing Dan Harmon on the tracks the night Kevin Ives and Don Henry were murdered. There is significant evidence that Jay Campbell and Kirk Lane apprehended and beat up the boys that night. Dan Harmon's recent racketeering conviction under RICO could have included his involvement in the murders and coverups, but the indictment did not go that far back. The FBI recommended Chuck Banks be charged with obstruction of justice for protecting Harmon in 1991, but he was not. There was enough evidence for Phyllis Cournan to investigate Jay Campbell and Kirk Lane in the murders, but she was not allowed. One could conclude that the Arkansas State Police investigation is an obstruction of justice. Ives and Duffey wanted all of this exposed in Obstruction of Justice, and did so as carefully and accurately as they could.
67. All of the above information was known prior to the production and distribution of Obstruction of Justice by Ives, Duffey and/or Brown. They are responsible for its contents. Duffey and Ives stand by their statements.
68. Brown has told several people prior to and after the making of Obstruction of Justice that Campbell and Lane were the killers. Linda Ives specifically toned down the reference to the six men alleged to be involved in the murders and cover-up to read as is now in the script.
69. Dan Harmon and Roger Walls ran the Seventh Judicial District Drug Task Force after Duffey was fired. Both were convicted of extorting drug dealers as law enforcement officers. Harmon was sentenced to eight years imprisonment on May 20, 1998 by Judge Reasoner." 'Maximum' merited, judge says in giving Harmon 8-year term," Arkansas Democrat-Gazette, May 21, 1998.
70. Campbell and Lane remain Pulaski County deputies sheriffs.
71. Mara Leveritt is writing a book about the Ives-Henry murders to be published in late 1998.
JOHN WESLEY HALL, JR.
Ark. Bar No. 73047
NV 005012; TN 13129; DC 222315; NY 2752400
523 West Third Street
Little Rock, Arkansas 72201-2228
(501) 371-9131 / fax (501) 378-0888
Attorney for Defendants
CERTIFICATE OF SERVICE
I, John Wesley Hall, Jr., certify that I have served a copy of this pleading on Darren O'Ouinn, Dover & Dixon, 425 West Capitol, Suite 3700, Little Rock, Arkansas 72201 by personal service on May 29, 1998.
John Wesley Hall, Jr.