Last November, Lindsey Fry, a student at Lyon College in Batesville, AR, interviewed Judge David Burnett, (shown above during the trial of Jessie Misskelley, Jr.,) for a class assignment. At my request, Fry, who is currently working at television station KATV in Little Rock, sent me her report on that interview, which I am happy to publish here.
The Real Story Behind the Controversy
By Lindsey Fry
With nervous smiles and floor-locked eyes, the 250 people packed into the Craighead County circuit courtroom waited to hear the verdict on Damien Echols, 19, and Jason Baldwin, 16. The room stirred with anticipation as the eight-woman, four-man jury entered to reveal their judgment on the boys accused of murdering three eight-year-old victims, Stevie Branch, Michael Moore, and Christopher Byers.
As the jury prepared to release its decision, Judge David Burnett warned against any outburst from the audience. The silenced courtroom sat anxiously as Burnett announced the jury’s verdict finding the boys “guilty of capital murder.” Echols would later be sentenced to death and Baldwin to life without parole.
The decision on Saturday, March 19, 1994, would continue to be a debated topic years after the West Memphis case ended. The Jonesboro courtroom, overwhelmed with different emotions, exited the building where dozens of reporters waited to question family members and attorneys about the court’s decision.
Making headlines in 1993, the ongoing case continues to attract interest across the country. Family members, attorneys, investigators, and defendants have been interviewed numerous times for newspapers, books, and documentaries; however, a key character, Judge David Burnett, who gained national recognition and suffered a great deal of turmoil from the 1994 case, has yet to become fully known by the public.
During the November 2008 interview, Burnett commented on his personal experience, his legal career, as well as his position in the West Memphis case, explaining why the case has become the “controversy” it has evolved into.
He believes the public and the media have taken the 15-year-old case to an “extreme and unnecessary” level of importance, stating that there were no objections to the decision in March 1994, because the majority of people believed the boys were guilty.
However, after journalists such as Mara Leveritt, and pop stars such as Natalie Maines from the Dixie Chicks, have begun speaking against the case, the pubic has protested for a new trial.
“If I would have known then what the case would become today,” said Burnett, “I probably wouldn’t have agreed to take it.”
The case began to develop May 6, 1993, after three missing second graders were found beaten, naked, and drowned at “Robin Hood Hills” in West Memphis Arkansas. According to Mara Leveritt’s Devil’s Knot, the three eight-year-old boys had been reported missing at 9:24 pm on May 5.
As the grieving town waited impatiently for the murderers to be caught, the West Memphis police searched for suspects, and on June 4, 1993, the town awoke to hear that three minors had been arrested during the night for the murders of Branch, Moore, and Byers. The three teenagers, Echols, Baldwin, and Jessie Misskelley, were given the unforgettable name “West Memphis Three.”
After being tried separately from Echols and Baldwin, Misskelley was ultimately found guilty, and Burnett sentenced him to life in prison plus forty years.
Burnett has practiced law for 26 years as the circuit judge of the third division in Jonesboro Arkansas. He presently hears cases from Clay, Greene, Craighead, Crittenden,
Mississippi, and Poinsett County, involving family and criminal law, as well as personal injury.
Growing up in West Memphis, he decided at an early age that he wanted to practice law because he “liked to talk and deal with people.” Although neither of his parents attended college, they always encouraged him to gain further education. After graduating from Blytheville High School in 1959, Burnett attended University of Arkansas (U of A) where he studied history and political science; afterwards, he continued at U of A law school and graduated in August 1966.
After taking multiple legal courses, he later studied psychology at National Judicial College in Reno, Nevada, where in 1992 he received his Masters Degree. While presiding over the West Memphis Three case, he continued to study psychology, researching “violent behavior.” Burnett said he chose this topic because of his interest in criminal behavior and because his sister, having received her Ph.D. in psychology, could be a vital source in his paper.
However, because his topic was “Can psychologists and psychiatrists predict violent behavior,” and his goal was to prove that violent behavior cannot be predicted, some assumed he was “testing his theory” in the trial. Yet his research topic was actually chosen a year before he took the case, and “it had no effect on the final verdict for the three boys.”
Wanting to join the army before beginning his career, Burnett took an early bar exam, and then, after receiving his license to practice law, joined the military and served one year as a captain in Vietnam. Upon his return to the U.S. he was awarded the Bronze Star, the Vietnam Campaign Ribbon, the Vietnam Service Ribbon, and the Vietnamese Government Staff Medal First Class, for his service in Vietnam.
Burnett returned to northeast Arkansas to begin a private practice with then congressman Bill Alexander. Having practiced law for six years and attended Northwestern School of Law’s attorney courses, Burnett ran for Prosecuting Attorney in 1974, and was elected in 1975 at age 32 to be youngest Prosecuting Attorney for the Second Judicial District in Arkansas.
After joining the California District Attorney Association in 1977, he continued to practice law until January 1982 when he decided to run for judgeship. Burnett was appointed to the bench in 1983 after gaining political support and graduating from the National Judicial College of Civil and Criminal Evidence. Because his new position required him to continue different legal studies, he joined the Cambridge Studies Program in 1986 at Cambridge University in England.
At age 52, after a telephone conference with five other judges, he found himself presiding over the West Memphis case. The decision was based on county, previous cases, and experience. Burnett had presided over criminal and civil cases throughout his career and had experienced “all sides of people,” but despite all of his legal training and preparation he felt “overwhelmed at the recent public response to the 1994 case.”
“I didn’t seek or want the case,” said Burnett. “If I could have passed it I would have, but it was my responsibility to take it. At the time no one had any idea it would become the storm it has evolved into.”
Claiming to have had “more difficult cases” than the West Memphis Three case, Burnett doesn’t deny this case has been the most eminent one. He stated that the legal issues were “quite simple,” whereas the controversy was harder to deal with.
During his career, he has sentenced three criminals under the age of 16 to the death penalty and two minors to life sentences without parole. But in every circumstance he was “merely doing what I felt was right.”
“I think the most challenging part of the West Memphis Three controversy,” said Burnett, “is that I, as well as the prosecutors cannot comment publicly on the case, whereas the defense is using public sympathy to win over the public’s support.”
Burnett explained that using public sympathy is something common for the defense to do, especially in criminal cases involving murder; nevertheless, he predicted the West Memphis case would be an “open and close case” never expecting it would become a future case of dispute.
The escalation of the case has caused such division among the public that in order to hold the hearings for Misskelley and Baldwin in November 2008, Burnett had to issue a gag order preventing anyone in the court room from releasing information to the public or the media. However, the gag order does not apply to the global supporters who continue to protest for the freedom of the West Memphis Three.
“I entered a gag order on the case in 1993 as I have again for the hearings of Baldwin and Misskelley in order to prevent the media and the public from completely dominating the case” said Burnett. “I believe these matters should be handled in the court and by the court.”
The demand of new trials for the West Memphis Three has progressed since July 2007 when new DNA tests were filed showing that “none of the genetic material recovered at the scene of the crimes was attributable to Echols, Echols co-defendant, Jason Baldwin, or defendant Jessie Misskelley.”
Recent hearings were held in Burnett’s courtroom throughout November 17, 18, and 19 in 2008. After failing to get a hearing based on Rule 17-60, proving actual innocence of their clients, the attorneys for Misskelley and Baldwin have been working to arrange a Rule 37 hearing since 2006, proving that their clients were inadequately represented due to a lack of time, money, evidence, and inexperienced representation.
According to an interview conducted by Jonesboro’s KAIT, Misskelley’s former attorney, now Judge Dan Stidham, stated that he expected the 1993 case to “plea out” never assuming it would go to trial. He referred to himself as “inexperienced” at the time, never having served as a leading lawyer in a capital murder trail.
On the second day of the hearing, after conducting multiple tests on Misskelley’s mental ability, Dr. Timothy Derning concluded that Misskelley is mentally retarded. After three days, their attorneys announced that the hearings could last another ten days; however, it was later announced that the hearings were postponed until January 28, 2009, causing outrage from many supporters. However, in regards to Damien Echols, Burnett claims “my court is through with him; if he wants to appeal he will have to take it to the Supreme Court, which I’m quite certain he will.”
After stating in September that he would not allow any new evidence to be admitted into the case, Burnett’s assumption that Echols would take his case to the Arkansas Supreme Court proved correct. In 2007, after being denied multiple times by the Supreme Court, Echols made another petition for a new trial in regards to the new DNA samples. He, his attorneys, as well as global supporters, are still waiting for the Supreme Court’s decision.
Although the West Memphis Three case brought attention to Burnett’s career, he received a great deal of public recognition prior to the case. In 1980, he taught at the Mississippi County Community College as a part time professor, and in 1981 he served as a faculty advisor at the University of California in San Francisco, both of which he taught classes concerning law.
He was later voted “Trial Judge of the Year” in 1988, which is based on courtroom conduct, types of cases the judge has previously tried, and decisions the judge has made on appeals. Then, after running for Judicial Council President in 2001, he was elected by his peers to serve for a one year term in 2002.
“The 2002 election was a big deal for me,” said Burnett. “Being recognized by my peers was an extraordinary compliment. But overall I feel very accomplished; it’s hard to choose which one would be my ‘most important’ achievement, because in my opinion getting through any difficult case is an accomplishment.”
However, Burnett stipulates that being a legal professional is not always “glamorous” or “easily earned,” but requires a lot of hard work and patience. As a lawyer, he recalled spending six days a week preparing for cases, most of which brought little compensation.
He advised those interested in the legal field to “take as many
English composition classes as possible” and to study a lot of history. Although he warned about lack of sleep and excessive research, Burnett claimed working in the law is “the most rewarding job.”
Burnett also confessed that he has recently been “toying with the idea” of running for state Senator in two years, stating that he felt confident that ten years as an attorney and twenty years as a judge are enough background and experience to make him a good candidate.
“I’ve learned to deal with all kinds of people in this business,” he said. “It’s been fun, sad, and difficult, but all in all I have really enjoyed my position, and I feel I am ready for the next opportunity.”
Preparing to work on special assignments in January 2009 as a retired judge, Burnett recalled his experience as “successful with no regrets.” Regarding the 1994 outcome of the West Memphis Three case, he claimed to have “followed the structure of the law” in his ultimate decision.
“Despite all of the controversy the case has brought, I don’t doubt or regret my decision” said Burnett. “As a judge you have to be ready to make difficult decisions, even if it risks being hated by the public.”
Burnett explained that his verdict did not come easy when it came to sentencing two minors to serve life sentences and one young man to be on death row; however, it was neither an impulsive nor a careless decision.
Aware that the public continues to mock his name and position, through “hate blogs,” books, and news reports, Burnett claims to “sleep well at night.” In an attempt to prove that he was judicious and disinterested, Burnett stated that he “excluded a lot of damming evidence” found on the boys, including blood stains found on Echols clothes and possessions, which were later analyzed and proved to match the blood type of one of the victims.
“It’s frustrating when I know many people out there protesting haven’t fully researched the case before taking a definite side” said Burnett. “But I really don’t care what the media says about me; my job is to do what is right as a judge.”
Previous news headlines have quoted Burnett as being “less than thrilled” about having to reopen the case, stating “let’s just get this over with.” However, Burnett explained that his frustration is more with the public’s desire to “take this case to Hollywood” than it is with the boys, who are now in their 30’s.
Reports state that Burnett’s tolerance with the case is “growing low,” telling attorneys “I want this wrapped up one way or another.”
“If a retrial is required based on adequate evidence, then I don’t mind having one, but I don’t think it’s a good enough reason to reopen the case just to please the public.”
Because Burnett is retiring in January 2009, the continuation of the hearings for Baldwin and Misskelley will be handled by whoever is appointed to fill his position.
Over the past 15 years, Burnett has become a public figure throughout Arkansas. His roles as an active citizen and an honorable judge have given him a memorable name in history. Although the public may forever refer to him as the “Judge over the West Memphis Three case,” he says family and friends will always know him as a “country boy who loves to hunt and fish.”
However, he is not ready to hunt and fish full time, saying he is still looking for “new opportunities in the future.” Keeping in mind his goal of running for state senator in 2010, he plans on continuing to work in the legal field until his “next adventure” comes along.
“I love what I do,” said Burnett. “Even though at times it may not make me the most popular person, I have always believed in my ability to make good decisions as a judge.”