IMO: It’s a matter of trust

Arkansas’s legal profession is allowed to be self-governing. But who’s minding the store?

[private]If the West Memphis Three are ever freed from prison, the Arkansas judiciary will have to face serious questions as to how such a travesty was allowed to happen in the first place and how it was allowed to continue for so long. Almost since the men’s trials in 1994, concerns have been raised regarding actions by the police, prosecutors and judges in their case. Until late last year, those concerns were routinely dismissed.

As in many states, the legal profession in Arkansas is supposed to be self-governing. This is a tremendous privilege. It also places a grave responsibility on members of the bar, not only to practice law with integrity, but to call attention to those instances when they observe other attorneys or judges who are not a credit to their profession.

As the state supreme court explains: “The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.”

Thus, the Arkansas Supreme Court manages two offices charged with overseeing the conduct of its lawyers and judges.  If the West Memphis Three are eventually freed, one of the questions that will have to be answered is: what were those offices doing while the wheels of Arkansas justice ground the lives of three men to pieces? And already at hand is this, closely related question: how many cases that didn’t attract publicity have been similarly mishandled?

The Arkansas Judicial Discipline and Disability Commission is supposed to watch over judges, holding them to the standards outlined in Arkansas’s Code of Judicial Conduct. That code’s preamble explains that “inherent” in all its rules “are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.”

That need for “confidence in the legal system” also underpins Arkansas’s Rules of Professional Conduct for attorneys. The state supreme court’s Committee on Professional Conduct is charged with seeing that Arkansas attorneys meet standards of “honesty, trustworthiness and fitness.”

Two weeks ago, I wrote a cover story in the Arkansas Times titled “Forensic façade.” It tells the story of Tim Howard, a man on Arkansas’s Death Row whom Damien Echols—and I—believe is innocent. Howard is seeking an evidentiary hearing in his case, similar to what the state supreme court ordered last September for the West Memphis Three.

Arkansas’s attorney general, Dustin McDaniel, however, is strenuously opposing that review, as he did the one sought by the West Memphis Three. But there’s an interesting twist in Howard’s case. It appears that the prosecuting attorney withheld important DNA evidence.

David Raupp, the assistant attorney general who argued against Echols at his supreme court hearing last August, also wrote the AG’s response to Howard’s petition to the court, which was based in part on the discovery that evidence was withheld. In that response, Raupp told the supreme court that the attorney general’s office was “assuming without conceding” that Howard was “correct” on his “withheld evidence claims.” Nevertheless, Raupp argued that the supreme court should deny Howard’s petition for a new hearing because he had not filed it soon enough and his lawyers had not demonstrated that Howard’s conviction and death sentence “would have been prevented, had the information been disclosed at trial.”

The Arkansas Supreme Court has not handed down its ruling in Howard’s case. But I am troubled  that, although information about the “withheld evidence” has been presented to courts for at least three years, neither of the judiciary’s self-governing offices seems to have found any problem with a prosecutor withholding evidence—even in a case that resulted in a sentence of death.  To the contrary, the prosecutor is now a judge, McDaniel was recently re-elected, and Raupp is preparing to represent the attorney general in the yet-to-be scheduled hearing for the West Memphis Three.

Since my article about Howard appeared, I have been thinking about what could have happened in his case and in the West Memphis case that would have supported—rather than diminished—“confidence in the legal system.” That process led me to the two judicial committees charged with governing the state’s legal profession. Today I sent a letter to each.

Both bodies work in secret. I may never be told what action, if any, they take in response to my letters, which contained essentially the same information. I am publishing one of them here to provide a bit of insight into how the legal system is supposed to operate—and into a culture that, when things run afoul, often appears not to notice. If either letter produces a response, I will let you know.

My letter:

February 16, 2010

Mr. Stark Ligon

Office on Professional Conduct

625 Marshall Street

Justice Building, Room 110

Little Rock, Arkansas 72201-1022

Dear Mr. Ligon:

This is a formal complaint to the Arkansas Supreme Court’s Committee on Professional Conduct. As an Arkansas citizen I ask the Committee to investigate breaches of the state’s Rules of Professional Conduct by former Prosecuting Attorney Tom Cooper of Little River County, who is now a circuit judge, and by Arkansas Attorney General Dustin McDaniel and David R. Raupp of the attorney general’s office.

In October 2010, attorneys for the United States Public Defender’s Office filed a petition with the Arkansas Supreme Court on behalf of Timothy Lamont Howard, a prisoner on Arkansas’s Death Row. The petition claims that as Mr. Howard was preparing for trial, state officials “withheld” important DNA evidence from his defense attorney.

At Mr. Howard’s 1999 trial, Mr. Cooper relied on reports from Bode Technology Group and on testimony by the laboratory’s analyst that purportedly linked DNA from Mr. Howard to an incriminating pair of boots. Mr. Howard’s attorneys were handicapped in challenging the Bode testimony because they were not provided the lab’s complete reports. This failure occurred despite a pretrial court order, issued in response to a motion by the defense, that all evidence available to the state be provided to Mr. Howard’s attorneys.

I write to you in the belief that the prosecuting attorney not only defied a court order, but violated the “due process” clause of the U.S. Constitution, as articulated in Brady v. Maryland. It further appears that at least two state officials, having knowledge of these violations, have failed to report them.

In 2006, Howard’s federal public defenders discovered that reports from Bode were withheld. Specifically, they found that, although the analyst from Bode testified unequivocally that DNA from Howard “matched” DNA found on the boots, the testing had been seriously flawed. Handwritten notes from the technician who conducted the tests and who testified at Howard’s trial included the following admissions:

  1. “Cap had flipped open while spinning, resulting in sample loss.”
  2. “Note: Lane data for 2098-064 from this gel was inadvertently erased from the sequencer hard drive. Therefore, it was not able to be analyzed. Samples were re-run on 4-29-99.”
  3. “As evidenced by the right ladder, the right side of the gel did not run properly. Therefore, PS IV samples will be re-run.”
  4. “All negative controls gave a positive result. An experiment will be done to find the source of the problems.”
  5. “All negatives are clean, indicating the previous results were most likely a result of a random, spurious contaminants (sic).”

Mr. Raupp and the Arkansas Attorney General do not contest that these notes were withheld from the defense. To the contrary, in response to Mr. Howard’s current petition, Mr. Raupp told the supreme court that the attorney general’s office was “assuming without conceding that [Mr. Howard] is correct” on his “withheld evidence claims.” But, rather than investigate those claims—or call them to your Committee’s attention, Mr. Raupp and the Attorney General have argued that the claims were neither “meritorious” nor timely filed.[/private]

Those matters of merit and timing now rest before the court. However they are decided, I ask that the Committee on Professional Conduct examine whether its Rules allow a prosecuting attorney to withhold evidence in any case, but especially one in which the judge has ordered full disclosure. I also ask that the Committee review the conduct of Mr. McDaniel and Mr. Raupp, in light of the provisions that:

  1. “Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.”
  2. “A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”

I am copying this letter to the supreme court’s Judicial Discipline and Disability Commission with a request that it too consider Judge Cooper’s conduct, both in the prosecution of Mr. Howard and in the years since. To my knowledge, Judge Cooper has never addressed the fact that evidence he called “monumental” at trial was not fully released to Mr. Howard’s defense. Unless I am mistaken, that neglect—both at and after the trial—raises what the Code of Judicial Conduct calls “a substantial question as to the judge’s fitness for office.”


Mara Leveritt[/private]

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