A Connecticut attorney today faxed a complaint to the Arkansas Supreme Court’s Office on Professional Conduct claiming that Little Rock attorneys Lloyd Warford and Gina Reynolds had an ethical obligation to report allegations of juror misconduct in the trial of Damien Echols and Jason Baldwin.
Bruce Matzkin, who practices civil law in Branford, Conn., complained that Warford signed an affidavit in May 2008 in which he stated that he had learned that Kent Arnold, who became foreman of the Echols-Baldwin jury, planned, in Matzkin’s words, “to infect the trial with his pre-determined conclusion of guilt, even, if necessary, bringing up the confession of the third defendant, Jessie Misskelley.” Mention of Misskelley’s confession was not permitted at the Echols-Baldwin trial.
Matzkin argued that Warford and Reynolds should have reported the juror misconduct in 1994, when they became aware of it during the Echols-Baldwin trial, rather than 14 years later, when contacted by defense attorneys, or even later, when interviewed by HBO filmmakers for the newly released documentary “Paradise Lost: Purgatory.”
Matzkin’s complaint states that in the documentary about the West Memphis Three now showing on HBO, Warford and Reynolds both “emphaticfally assert that they were aware beforehand of the juror’s plans and intentions.” Yet, Matzkin wrote, “Mr. Warford waited 14 years to say anything … and Ms. Reynolds never said anything publicly until appearing in a movie.”
Warford explained in his 2008 affidavit that he was representing Arnold’s brother in an unrelated case at the time of the Echols-Baldwin trial, that Kent Arnold was paying for his brother’s defense, and that Warford believed he was bound by attorney-client privilege not to reveal Kent Arnold’s remarks to him, including remarks he made about his role as a juror. Warford reported that he filed his affidavit outlining those remarks only after he was contacted by Echols’ attorneys, and after another lawyer from whom he sought counsel advised that he would not be violating his client’s right to confidentiality by filing the affidavit.
Matzkin took a different view of Warford’s role. Noting that Arkansas’s Rules of Professional Conduct require lawyers not to “engage in conduct that is prejudicial to the administration of justice,” the Connecticut lawyer wrote:
“I submit that when a lawyer omits to take action on knowledge that a juror in a capital case plans to railroad the defendants and waits 14 years to brint this up—especially in light of all that transpired in those 14 years in the WM3 cae—that lawyer is engaging on [sic] conduct prejudicial to the administration of justice. It would not matter if the person was the lawyer’s client or not.”
Matzkin wrote that Warford and Reynolds were were “professionally, and morally, obligated to speak up” about what they had heard from Arnold. Citing Arkansas’s Rules of Professional Conduct, Matzkin asked the supreme court’s Committee on Professional Conduct to find that Warford and Reynolds engaged in “serious misconduct” by not coming forward at a time when they were “in a position to prevent a travesty of justice.” Such a finding by the committee could result in the restriction or revocation of Warford’s and Reynolds’ licenses to practice law.
Matzkin has encountered a similar issue in his own career. According to Ethics Scoreboard, a website that assesses ethical issues in several professions:
“In 2005, Connecticut attorney Bruce Matzkin was fired from his law firm because he insisted on reporting another lawyer, an
adversary in a case Matzkin was defending, to the Bar disciplinary committee for unethical conduct. He sued for wrongful discharge, despite the fact that lawyers are usually unable to make that claim: an employer or client can hire or fire a lawyer at will, for any purpose at all…
The article continued: “But in a reversal of the usual logic, the Connecticut court backed Matzkin. The ethics rules governing lawyers in Connecticut ( and most other jurisdictions) make it mandatory for attorneys to report serious ethical misconduct by colleagues. Matzkin’s firm had a non-reporting “policy,” essentially to avoid retaliatory reporting of their own lawyers….
“But the policy was invalid, said Superior Court Judge Carmen Lopez. ‘Because the legal profession is self-regulated and relies upon its members to police itself, no lawyer’s employment should be conditioned upon turning a blind eye to violations of the Rules which are applicable to all lawyers,’ she wrote in her decision.”
(I must note that I have filed a federal lawsuit against the Arkansas Supreme Court’s Office of Professional Conduct regarding its policy of insisting that persons filing complaints with it may not speak about them–a requirement that Matzkin has violated by releasing his complaint (Ethics Complaint vs. Warford & Reynolds) to me.
(Persons who file complaints are warned, as I have been, that they “may be found to bin in comtempt of the court and punished by fine or jail.” That warning is not limited to attorneys, as I am not one, nor does its wording appear to limit it to Arkansans. Today, trial in my federal lawsuit was set for Dec. 9, 2013.)