A question of discretion

Last year, after the Arkansas Supreme Court ordered an evidentiary hearing in the case of the West Memphis Three, state Attorney General Dustin McDaniel responded that his office “intends to fulfill its constitutional responsibility to defend the jury verdicts in this case.”

At a panel discussion shortly after that, a professor of law seemed to agree that this is the AG’s role. However, I believe that, just as prosecuting attorneys Brent Davis and John Fogleman could have opted not to prosecute Jessie Misskelley based on his convoluted confession—or the other two without stronger evidence—McDaniel at any time could have stopped challenging efforts by the WM3 defense teams to bring the men’s cases back into court. Negotiation with the defense teams has been a possibility.

I asked Ken Swindle, an Arkansas attorney who supports retrying the three, if that view was correct. He examined the question in a lawyerly fashion, and I am posting what he wrote. Swindle’s article is more technical than most that appear here, but in light of all the money and effort the state has expended to preserve the WM3 convictions—and how much of both remain to be spent—I think the question he addresses warrants serious discussion.


Determining what’s in ‘the interests of the state’

By Ken Swindle

In my opinion, the Attorney General does have discretion in the position that s/he chooses to take in any case. The office of the attorney general is created by the Arkansas Constitution.  Art. 6, Sec. 22.  However, it is left to the Legislature to specifically set out the duties of the Attorney General.  It is true that the Attorney General is a law enforcement agency.  Ark. Code Ann. Sec. 25-16-713.  However, from any minor traffic stop all the way to prosecuting a capital punishment case, we all know that law enforcement agencies have, and use, discretion on how to prosecute cases, or whether to prosecute cases at all. That discretion is used by law enforcement agencies all across this State every single day.

We also know that the Attorney General is required to appear before the state Supreme Court and “maintain and defend the interests of the state in all matters before that tribunal.”  Ark. Code Ann. Sec. 25-16-704(a).  I think that it is significant that the Legislature directs the Attorney General to “maintain and defend the interests of the state”.  What are the interests of the state?  Answering that question necessarily requires the use of discretion. 

The Legislature could have stated that it is the responsibility of the Attorney General to adopt the position of the prosecutor on every appeal, or to maintain the criminal conviction of every criminal defendant on appeal.  The Legislature did not so choose.  Instead, the Legislature chose to direct the Attorney General to “maintain and defend the interests of the state.” 

Everyone should agree that the State has an interest in enforcing the jury verdicts of guilty defendants.  Everyone would also agree that the State has an interest (morally, legally, and financially) in not enforcing jury verdicts against defendants who are not, in fact, guilty, or against whom guilty verdicts were obtained by processes that violate our constitutional rights.  Adopting or advocating enforcement of jury verdicts against defendants who are not guilty or against whom guilty verdicts were obtained by processes that violate our constitutional rights endangers everyone in this State, and therefore, the State would have a very keen interest in correcting such a situation. Determining which side is mandated in order to “maintain and defend the interests of the state” requires discretion.

We also know that the Attorney General “shall be the attorney for all state officials, departments, institutions, and agencies.”  Ark. Code Ann. 25-16-702(a).  However, this only means that the state officials are clients of the Attorney General.  As all attorneys learn in their first semester of law school, an attorney is not bound to follow any directive of a client.  On the contrary, a lawyer “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”  Ark. R. P. C. 3.1. 

Similarly, the “signature of an attorney . . . [on a pleading] constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”  Ark. R. Civ. P. 11(a). 

Any position taken by any attorney in signing a pleading by a client takes some degree of discretion, and the Attorney General is no exception to the code of conduct required by Rule 11.  Indeed, as the Attorney for the State, s/he should be held to a higher standard, not a lower standard. 

The Arkansas Supreme Court has recognized that prosecutors do, in fact, have an even higher role in use of their discretion than other attorneys, as they have passed a special rule just for prosecutors. The Rule states:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and

(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this rule.

Compliance with this Rule requires discretion, and the Rule (with the necessary discretion to conform with the Rule) applies equally to the Attorney General. Ark. R. P. C. 3.8, Official Comment [6].  To drive home the point of the heightened standard of conduct to be applied to a prosecutor (and the Attorney General), the Official Comment emphasizes that a “prosecutor has the responsibility of a minister of justice and not simply that of an advocate.  This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”  Ark. R. P. C. 3.8, Official Comment [1].

Some argue that the Attorney General cannot use discretion, but struggle to find any law to support such a position. Others argue that they do not want the Attorney General to use discretion, but, instead only want the Attorney General to “enforce the law”, meaning to blindly adopt the position taken by the State prior to the appeal. 

The law cited above clearly shows that the Attorney General is not required to blindly adopt the position taken by the State prior to the appeal—and there is wisdom in allowing the Attorney General to use his/her discretion. If a prosecutor in one small corner of the State makes a blunder, that blunder should not be magnified by forcing the Attorney General to adopt the position as the position of the entire State.

 If the Attorney General were simply the rubber-stamp for any position previously taken by any prosecutor in any little jurisdiction of the State, there would be no point in electing an Attorney General at all.  Of course, the entire reason for electing an Attorney General is that s/he may use her/his discretion in maintaining the interests of the State.

Recognizing the room for discussion here, I invite any Arkansas attorney who disagrees with this article to submit an argument to the contrary—one supporting the idea that the attorney general has an obligation to defend a jury’s verdict. ~ML

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