Assessing Fogleman’s defeat

Going into the election on May 18, most pundits expected Judge John Fogleman to defeat his opponent, Judge Courtney Henry, for Position 3 on the Arkansas Supreme Court. I too was braced for Fogleman’s win.

After all, the Arkansas Democrat-Gazette, the statewide daily paper, had endorsed him, as had my own paper, the Arkansas Times, despite a cover story I’d written a couple of weeks before on his role in prosecuting the West Memphis Three.

On top of that, Fogleman had won endorsements from every past president of the Arkansas Bar Association. And, as I’d mentioned in my article, the Arkansas Trial Lawyers Association had named him its Outstanding Trial Judge in 2008. It was quite a lineup of support.

Fogleman campaigned on his experience on the bench. He’s been a circuit judge for 16 years—the entire time that Damien Echols, Jason Baldwin and Jessie Misskelley have been in prison. His opponent, by contrast, had almost no such experience, though she currently sits on the state court of appeals.

So what are we to make of Fogleman’s defeat?

First, there is no doubt that Henry campaigned hard—and with a lot of money. Her critics complained, for instance, about the sizeable financial support she’d accepted from the nursing home industry.

Second, she is personable and conservative, qualities that help most candidates in this state. But most observers now think there was more: that many of the votes for Henry were primarily votes against Fogleman.

We’ll never know how many of Henry’s winning votes came from people like me—voters who simply could not mark their ballots for Fogleman because of his decision 16 years ago, as a young prosecuting attorney, to seek death for the West Memphis Three. What we do know is that any politician who looks at that race will conclude that those votes had an impact.

The counties that Fogleman won tell part of the story. His strength was limiited entirely to the eastern part of the state and a few southern counties—essentially the delta, above and below West Memphis; the part of the state once ruled by its plantations.

(See for yourself on an Arkansas county map. The counties Fogleman won are: Ashley, Bradley, Calhoun, Clay, Columbia, Craighed, Crittenden, Cross, Dallas, Drew, Greene, Lawrence, Mississippi, Nevada, Poinsett, Randolph, and St. Francis.)

Henry lives in the northwest corner of the state, and she was very strong there. But Little Rock and all of central Arkansas were up for grabs. Both candidates knew that to win, they would have to win the state’s center.

It looked like Fogleman might have an edge here because so many courts are centered in the capital. But this is also a media center, and in the past several years, the media have reported heavily on the erosion of Fogleman’s case against the West Memphis Three—a case that was weak from the outset.

I doubt there is a politician anywhere in Arkansas who has looked at Fogleman’s loss and not seen the hand of angry voters. I think every supporter who has ever worked to spread the word about the West Memphis injustice can count that as a victory.

Let’s hope it’s also a turning point.