As Tim Howard trial nears, defense team claims prosecutor abusing power

Jury selection will start Thursday in Ashdown (Little River County) in the re-trial of Tim Howard, whose 1999 conviction and death sentence for murdering two friends was vacated in 2013 due to prosecutor misconduct.

Circuit Judge Charles Yeargan is also expected to rule that day on a second defense motion that alleges further prosecutor misconduct in the run-up to this new trial, as well as on my motion to be relieved of a prosecutor’s subpoena that could prevent me from reporting on the trial.

In the first motion alleging misconduct, Howard’s attorneys claimed that Prosecuting Attorney Bryan Chesshir had not provided them with required evidence, such as a coroner’s report, crime scene photos and police interviews. That motion also argued that subjecting Howard to a second trial after the state had engaged in misconduct at his first trial amounted to double jeopardy. Yeargan denied that motion.

In a motion filed last week, defense attorneys charged that Chesshir was engaging in additional misconduct.

Bryan Chesshir

Tim Howard Trial Prosecuting Attorney Bryan Chesshir

They asked the judge to dismiss the charges against Howard due to claims that Chesshir has abused his official powers by subpoenaing defense witnesses “to determine what their testimony will be at trial,” by “subjecting some of these witnesses to numerous prosecutor subpoenas to elicit information from them regarding their conversations with the defense team,” and by using the prosecutor subpoena to put witnesses in a room together, with an investigator and a prosecutor, to compare their testimony and to cajole answers from witnesses.”

According to the latest motion, one defense witness whom Chesshir subpoenaed subsequently told Howard’s attorneys “that he was unaware of many of the facts in the case until he heard it from the other witness who was being asked questions right in front of him.”

Another defense witness questioned by Chesshir reportedly “indicated that she felt as though the prosecutor was attempting to get her to adopt the version of events” that was outlined by her ex-husband, who was questioned with her.

Little Rock attorney Patrick Benca argued in the motion to dismiss that Howard “is being denied equal protection of the law by the state asserting a power to coerce defense witnesses to testify before trial and under oath, and the defendant not having this equal power.”

Benca also argued that Chesshir’s practice of subpoenaing defense witnesses as he has “runs a serious risk of witness intimidation” and of violating of laws that require prosecutors to disclose to the defense information learned in interviews conducted by state officials.

Chesshir reportedly has not provided such information to the defense. Nor has he filed a written response to Benca’s recent motion.

Similarly, Chesshir has not filed a written response to the motion I filed on March 16, asking the court to relieve me of a subpoena by Chesshir to appear as a witness for the state at Howard’s trial and and to bring with me all “notes and recordings” of interviews I’ve conducted with Howard.

As before, Chesshir asked the court to hold a hearing on this motion, and Yeargan agreed. That hearing is scheduled for Thursday, at which time I expect to learn whether I will be allowed to attend and report on the trial.

Chesshir’s subpoena to appear at Howard’s trial was the second I’ve received from him. The first commanded that I appear to be interviewed by him the last week of February. I complied and for an hour answered questions about my reporting as a state police investigator listened and Chesshir’s secretary took notes.

I told Chesshir I knew nothing about Howard or the victims at the time of the crime and had no knowledge of the case beyond what I had written or what had already been presented in court. Yet, as I was leaving the courthouse, deputies served me with the subpoena to appear at the trial starting later this week.

That subpoena means that, as a potential witness, I could be excluded from the courtroom during the trial of a case on which I’ve reported for 13 years. During my questioning, Chesshir told me he did not intend to bar me from the courtroom, but while under subpoena, I have no assurance that I will be allowed in.

In my motion to quash the subpoena, my attorney, Matt Campbell, wrote that, “Given that the trial in this case is a re-trial, for which a conviction was already previously obtained, logic dictates that nothing in Ms. Leveritt’s notes is essential to Mr. Chesshir’s ability to present the State’s case, and there is no ‘clear and imminent threat to the fair administration of justice’ that would support Mr. Chesshir’s infringement of the freedom of the press.”

He also wrote that the subpoena was “at best, a fishing expedition by the prosecuting attorney, which has been expressly disallowed by the Arkansas Supreme Court.”

Update: Max Brantley has witten about this at the Arkansas Times.

Jason Baldwin Speaks Out

Jason Baldwin speaks out about the justice system since his escape from Arkansas. He got pretty personal in these recent posts on his FB page.

Here is the first one:

To the murderer of Steve Branch, Michael Moore and Christopher Byers:

In a sense you murdered me too. You murdered my mother, my father and step-father, all my grandparents, uncles, aunts and cousins. You murdered my brothers.You murdered all my friends. My classmates. My teachers and girlfriend. You murdered my neighbor. You murdered everyone I ever knew and loved. You murdered the dreams we had. Murdered the dreams I had. You murdered me. No, you didn’t use whatever you used against Steve Branch, Christopher Byers or Michael Moore but in a sense you did it to me the same. I’m still coming to terms with all that I have lost and continue to suffer for your actions but I am healing.

Whoever you are I advocate for you to be brought to justice. At the age of sixteen I did not choose this path for myself. It is one you put me on when you murdered those boys. It is a heavy and humbling burden. One in which I haven’t the slightest idea of how to carry but I do with all the grace I can muster. That is why I forgive you. I have to in order to have some measure of peace. I will never cease the pursuit of justice for you. I promise you that and this, whomever you are, that whenever you finally are brought to justice I will personally advocate for mercy and that your life be spared. In spite of everything. Be forgiven and begin your own journey of healing by accepting responsibility for your actions. God knows you need it.

Sincerely,

Charles Jason Baldwin

One of many surviving victims of the murderer of Steve Branch, Michael Moore and Christopher Byers.

And the second:

When prosecutors enable snitches to work the system by fabricating stories about innocents in order to get out of jail free and win a conviction what happens is society is attacked on two fronts. On one, criminals murder and hurt us. On another, those who vowed to protect and serve us do the same, catching us in a gauntlet. Innocence doesn’t stand a chance in such an arena. I know this for a fact. Prosecutor Brent Davis enabled career criminal Michael Carson to prey upon me in exchange for carte blanche to continue his criminal activities. After his debut into this career Prosecutor Davis set him up in various places including California where Michael fabricated many more stories all while given free reign to break any and all laws of the land.

What many do not know is that Michael Carson was following in his father’s footsteps as he too was a professional snitch and career criminal. Innocence doesn’t stand a chance in such an uneven arena. Prosecutors like this don’t protect us. They prey upon us. They only serve and protect their own interests. I say let’s boycott the profession of prosecutors and replace them with Seekers of Truth. Under such a label their purpose becomes clear. Rather than seeking to prosecute at all costs they will instead seek the truth wherever it leads, eliminating the false premise that a conviction won with such tactics as utilizing jailhouse liars against the innocent populace as justice.

People tend to live up to their labels. Let’s give the profession a title that lives up to the vow of protecting and serving rather than preying upon and persecuting us.

Sincerely,

Charles Jason Baldwin

One of many surviving victims of the murderer of Steve Branch, Michael Moore and Christopher Byers.

Quiz for Dustin McDaniel

Attorney General Dustin McDanielIn light of the state attorney general’s recent, successful arguments against paying Gyronne Buckley the $460,000 that the Arkansas State Claims Commission said Buckley deserved because he’d spent more than 11 years in prison due to a conviction obtained by bad behavior on the part of state officials, we think an exercise parsing Dustin McDaniel’s logic may help him think a bit straighter.

1. As you have never been convicted of a crime, when you get out of bed in the morning, are you guilty?

Careful. We know you’re our state’s top prosecutor and that “could be” jumps right to mind. But remember you represent the law and this is a legal question. We suggest “no” for the right answer.

2. If a police officer looks at you but concludes you’ve done nothing wrong, did you get off on a “technicality”?

Slippery question, we know. Hint: the answer is “no.”

Ford ‘Failed’ Old Woman

Paul Ford Dark SpellDARK SPELL raises significant questions about what Jason Baldwin’s attorney, Paul Ford, did—and did not do—at Jason’s trial. Why, for instance, did Ford fail to call ANY of Jason’s alibi witnesses? Yesterday I found this:

Last year, the Arkansas Supreme Court Committee on Professional Conduct, issued Ford a caution, its mildest form of rebuke, for failing to investigate a client’s claim of medical malpractice. Because of Ford’s inaction, the statute of limitations on the client’s claim expired and she was left unable to pursue her intended lawsuit.

According to court records, Dorotha Finnie contacted Ford in January 2011, claiming that treatment for an earache by an emergency room doctor had left her deaf in one ear. Ford agreed to investigate and to take her case if he believed it was viable. If he chose not take her case, he was to notify her.

Finnie reportedly heard nothing more from Ford for the next two years. As the supreme court’s office noted: “After her initial consultation with Ford, Finnie called and visited his office numerous times but was told by a secretary that Ford was not available to speak with her. Ford also failed to return Finnie’s phone calls.”

Finnie filed a grievance with the court’s Office of Professional Conduct on Jan. 7, 2013. When that office contacted Ford, he responded that he had decided not to proceed with Finnie’s case. Ford responded in writing:

“It is my recollection that I discussed this decision with Ms. Finnie by phone. However, I cannot confirm this. It is my usual practice to discuss these matters with the client by phone, or in person, and then confirm the decision in writing. Sadly, there is no letter in my file to confirm the recollection of the phone call.”

Ford also acknowledged that, when he looked into the matter, he realized that the two-year statute of limitations had run on Finnie’s claim. He said that he had intended to inform her of this. “It was also my intention,” he wrote, “to advise her that I had malpractice coverage and that she should seek independent legal counsel on this matter.”

A supreme court committee found that, in his handling of Finnie’s case, Ford had violated three of the court’s Rules of Professional Conduct; failing to competently represent her, failing to act with reasonable diligence, and failing to inform her that he would not file suit on her behalf, with the result that, “the statute of limitations expired on Finnie’s potential claim.”

For this, on Sept. 25, 2013, the Committee on Professional Conduct ordered that Ford be “cautioned for his conduct in this matter and assessed $50 in costs.”

Reached by phone, Finnie, who is now 78, said she could not understand why Ford would never talk to her. She said that when she’d gone to his office, his staff told her “that everything looked good, everything was going fine.”

She said she’d filed her complaint with the supreme court because it was all she knew to do and that last year she received a phone call reporting the committee’s decision. “They said it had gone to the supreme court and it would cost him $50 and it was over.”

Asked how she felt about the fine, Finnie, a retired Walmart employee, laughed. “Isn’t that something?” she said. “I don’t feel like he even missed that $50.”

Bring A Prosecutor To Justice

lying 200If there is one thing I’ve learned reporting on our criminal justice system it is that we have too many prosecutors playing fast and loose with the law. As a result, I am proud to serve on the Board of Advisors for the Center for Prosecutor Integrity.

We have undertaken a huge, fascinating, and very important task, as our executive director, Ed Bartlett, explains below. Imagine what a difference this Registry will make! Please support us if you can.

Here’s Ed’s letter:

How many times have you heard about a rogue prosecutor who was let off the hook after a wrongful conviction caused by prosecutorial misconduct?

How often have you heard about a win-at-all costs prosecutor who was later feted as “Prosecutor of the Year,” elevated to the bench, or even elected to high political office?

According to the CPI report, “An Epidemic of Prosecutor Misconduct,” prosecutors who engage in misconduct are punished in fewer than 2% of cases. But now, there’s a way to bring a measure of justice to these cases – the Registry of Prosecutorial Misconduct.

Every prosecutor who is added to the Registry now finds himself or herself subject to public accountability. In fact we’ve been told that prosecutors in some states have already begun to think twice before withholding exculpatory evidence, knowing that they may end up being listed in our Registry!

There have been an estimated 16,000 cases of prosecutorial misconduct since 1970. Right now, the great majority of these cases are buried in appellate court opinions and dusty bar disciplinary records. We need to change that deplorable state of affairs.

The Center for Prosecutor Integrity is now launching a two-week campaign called “Bring a Prosecutor to Justice.” We plan to add 400 new cases to the Registry. Each case costs $50 to locate, research, verify, and enter the information into the database. So we need to raise $20,000 to accomplish the goal of 400 new cases.

While most malfeasant prosecutors will never face official sanctions, now we can shine the light of accountability on their behavior. And that will help turn the tide.

Your tax-deductible gift, large or small, will make a difference in the lives of millions of innocent Americans. You may donate here.

Thank you.

E. Everett Bartlett, PhD, Director

Center for Prosecutor Integrity
Working to end wrongful convictions through the enhancement of prosecutor ethics

P.O. Box 1221
Rockville, MD 20849
Office: 301-801-0608
Cell: 301-670-1964

Email | Website | Facebook

A Theme Of Schemes

Thumbnail for 611Someone asked me today if any theme connected all my books. “Prosecutors and politics,” I blurted. Then: “And maybe a subtext of drugs.”

My first book, The Boys on the Tracks, is about a corrupt prosecutor who manipulated his position to derail the investigation of two teenagers whose bodies were found run over by a train. The mother of one of the murdered boys trusted him, as did everyone–but he betrayed them all.

Of course, Devil’s Knot examines one of the sleaziest prosecutions in American history, though no official in Arkansas has yet been willing to admit that. I hoped that by writing the book, readers would see how slyly the prosecutors (pictured) and the judge worked together to get juries to send each of the West Memphis Three to death.

Dark Spell focuses on Jason, partly because I simply find his story heroic. But there would have been no story if not for a couple of kill-’em prosecutors (shown) and a likeminded judge. Unlike Jessie, Jason had never confessed, and unlike Damien, he’d never speculated about the murders with the police, or even “dabbled in the occult.” When he was arrested, he was a pretty ordinary kid at the end of his junior year in high school, who had a job lined up at a grocery story that he was to start on the following Monday.

Then, after the convictions, prosecutors fought even the DNA tests that state law allowed and all three of the convicted men requested. The state resisted those tests even though supporters were willing to pay for them! That’s part of the reason the men’s “dark spell” in prison lasted so long.

I’ll end this post with three quotes that I placed at the front of Dark Spell:

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, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.

~ American Bar Association

A prosecuting attorney “may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

~ Berger v. United States

A lawyer should avoid even the appearance of impropriety.

~ Arkansas Supreme Court Rules of Professional Conduct

What’s remarkable about the West Memphis case is how people around the world have noticed “the appearance of impropriety” while the state supreme court has seen none.

‘Start talking about the devil’

Burnett 200On March 3, 1994, John Fogleman, then a deputy prosecuting attorney, was preparing to call Damien’s probation officer, Jerry Driver, to the stand to question him about Damien’s alleged involvement in “the occult.” Damien’s and Jason’s defense attorneys were fighting hard to block that testimony. As I write in Dark Spell, the official transcript of that discussion reflects only that Burnett said he would allow Fogleman to question Driver about having seen “Damien, Jason and Jessie walking in Lakeshore wearing black coats and carrying staffs.” But we now know, thanks to a recording of the exchange that was picked up by HBO’s microphones, that that was not all the judge said.

HBO’s audio file of the trial was released to an archive of the West Memphis case a few years ago. An astute listener later caught a comment that the court reporter did not record. On the audio, Burnett can be heard chortling, apparently to the prosecutors, “If y’all want to spice it up a little bit and start talking about the devil, I’ll listen.”

That was the turning point, an opening that, as the case developed, would prove critical for the state. When Damien and Jason appealed their convictions to the Arkansas Supreme Court, the court cited the “testimony of Dr. Dale Griffis,” whom they described as “an expert on ritual killings,” and unanimously found that there was sufficient evidence “by which a jury could find that the crimes were a ritual killing.”

Though the Ph.D. Griffis claimed was discredited even at trial for having come from a mail-order college, Burnett allowed him to testify as an “expert.” And so the die was cast. I had not known of HBO’s recording of Burnett’s “spice it up” comment until this year. But I’m glad it’s in Dark Spell, because I find it the most revealing piece of this entire tawdry case. Listen here.

The big disconnect: official versus public perceptions of the West Memphis case

 

The case of the West Memphis Three is a landmine for Arkansas’s judiciary. When people anywhere learn what has happened to the three Arkansas men, their confidence in the courts—at least in Arkansas—tends to explode. The damage already has been vast, and it’s likely to spread.

Not that any member of the judiciary has ever publicly acknowledged that. Arkansas elects its judges, its prosecutors and its attorney general. Everyone’s wary of shrapnel.

But jurists throughout the United States recognize that public perception of America’s courts is already suffering. In a 1999 national survey, 23 percent of those surveyed reported that they had a “great deal” of trust in their states’ courts, while 7 percent said they had “hardly any trust.”

In Arkansas, the figures are skewed more dramatically. A 2010 survey in Little Rock in 2010 reported that, while 38 percent of those surveyed said they had a “great deal” of trust in the judicial system, a stunning 54 percent said they held “hardly any.”

In a speech last summer to the Arkansas Bar Association, Supreme Court Chief Justice Jim Hannah noted what he called those “troubling” figures. “In every speech I have given since becoming chief justice,” he said, “I have made the statement that the success and viability of our court system is totally dependent upon the trust and confidence of the public.”

Hannah told his audience: “We must take seriously the public’s perception and do all that we can to create and sustain a system which both is fair and impartial in fact and in appearance.” (The stresses are his.)

Unfortunately, as thousands are by now aware, the fact and the appearance of injustice permeate the West Memphis case. The totality of injustice extends from the police who investigated the crime and came up with no evidence; to the prosecutors who nonetheless tried to send three teenagers to death for it; to the judge who mocked his own court by qualifying an uncredentialed witness as an  “expert” in the occult; to the Arkansas Supreme Court, which found not a single flaw in either of the men’s two trials; to the state’s attorney general who insists that it’s his job to support the 18-year-long farce and press for an execution.

In the past few months, I have conducted my own informal survey regarding this case. I contacted several people who have worked for years to see the men’s sentences reversed and asked what, if anything, about the case they found “intellectually offensive.”

Here are some of their emailed responses:

Mark Cowart

“I found the West Memphis Police Department’s tactics, the prosecution’s tactics, the public reaction, Judge [David] Burnett’s actions, and the juries’ verdicts offensive.” –Mark Cowart, DDS., Chattanooga, TN

“[The case] was based on hearsay. If there had been a jury composed of critical-thinking individuals instead of a jury swayed by mass hysteria, the outcome would have been much different.” –Dr. Lanette Grate, Conway, AR

[private]“The so-called defense effort for Jason was intellectually offensive. I’m sorry, but it was. Not a single witness was placed on the stand to help that man and that was morally, ethically, and legally wrong. There were certainly people who could have testified to his alibi and to his character. … No one is ever going to convince me that it was fair, just or acceptable that he received counsel that felt a fly-under-the-radar strategy was reasonable. He was a teenager being tried for the murders of three small children. His life was on the line.” —Anonymous

“It was offensive intellectually in every possible way, from the presumption of guilt (which I’m ashamed to say I initially shared) to the shoddy investigation to the coerced ‘confession’ to the inane testimony of ‘Dr.’ Dale Griffis to the argument that reading horror novels and wearing black are evidence of a lack of a soul to the juror misconduct to the idiotic law that requires that appeals be heard by the very judge who presided over the original trial to—well, you name it. If there was anything that wasn’t offensive about the case, I don’t know what it was.” —Dr. David Jauss, Little Rock, AR

“After viewing the documentary (“Paradise Lost”), I remember having a  discussion with family and friends about how scary the prosecution seemed. It seemed like a witch hut. The crowds outside of the courtroom seemed as though they wanted to lynch the teenagers. They appeared to be in a frenzy of hate. I thought the prosecution and detectives and judge seemed to be a bunch of good old boys attempting to convince the jury of the guilt of the three teenagers because they were easy targets. It reminded me of the Salem village witch trials sent in modern-day Arkansas.” —Capi Peck, Little Rock, AR

“I was with some friends in Hawaii who wanted to visit Arkansas until we watched the film together. Then they changed their minds and never came. The salient intellectual objection at the time, for me and those Hawaii residents, was the prosecutor’s closing arguments.” —Brent Peterson, Little Rock, AR

“The state’s use of Dale Griffis as an expert witness. I find it hard to believe that [Deputy Prosecuting Attorney John] Fogleman and [Prosecutor Brent] Davis weren’t smart enough to realize how ridiculous Griffis was, but they called him anyway to testify about the occult because, in my opinion, they knew they didn’t have enough without playing some “occult” card to the jury. I think Fogleman’s comment in closing about looking into Damien [Echols’]eyes and not seeing a soul is a disgusting parlor trick/game, as well.” –Diana Paulson, Chesapeake, VA

“I thought the satanic panic was most unfortunate because no one cared to delve more deeply into it.” –Marie South, Jonesboro, AR

“I never, for a second, believed those three little boys were killed at the ditch-bank scene where their bodies were recovered. The mere sight of their bodies on the ditch-bank at the beginning of ‘Paradise Lost’ has haunted me ever since. I simply could not, even after repeated viewings, reconcile the way they were discovered—hog-tied and naked—with the idea that this was a satanic killing, with a completely clean ‘crime scene.’” –Bob Tankersley, Atlantic Beach, FL

“I lived in Memphis when this happened, and I was offended at the bungling by police. My own son was a police officer in Kentucky at the time, so I found it offensive to see how West Memphis police were handling the case, losing evidence, doing anything to convict—in the easiest way the could—persons who couldn’t defend themselves.” –Pat White, Fairfield, IL

Though I am glad that it ordered a review of this case, however belatedly, my own prize for “most offensive” would go to the Arkansas Supreme Court. It sets the standard for how law is conducted in Arkansas. It permitted this case’s atrocities, not only to occur, but to drag on for 18 years. As the court’s own rules for professional conduct observe:

“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.”

Public confidence in Arkansas’s courts is low and getting lower—and the public’s mistrust extends well beyond the West Memphis case. Whatever happens with that in December, confidence in Arkansas’s courts has suffered. Responsibility for the injury—and the “ultimate authority” to heal it—rests with the supreme court.[/private]

Threatened again: Can the Arkansas Supreme Court hold me in contempt for complaining about shabby justice?

Last week I wrote a letter to the Arkansas Supreme Court’s Committee of Professional Conduct, the body that is supposed to make sure that Arkansas attorneys are practicing law as they should. I asked the committee to investigate whether it was proper for Arkansas Attorney General Dustin McDaniel to advocate on behalf of convictions that were improperly obtained.

I specifically cited evidence of serious juror misconduct in the trial of Damien Echols and Jason Baldwin. In the three years that that evidence has been before Arkansas courts, it has not been refuted. So I asked the committee to investigate the propriety of pressing for an execution, and the continuation of two life sentences, in the face of such important evidence.

Yesterday, I received a form-letter response from the committee acknowledging receipt of my “grievance.” The letter’s second paragraph advised me that “all information” I had submitted to the committee was “confidential.”

The letter further warned, in capitalized, bold-face type: “ANYONE VIOLATING THIS CONFIDENTIALITY MAY BE FOUND TO BE IN CONTEMPT OF THE COURT AND PUNISHED BY FINE OR JAIL. SPECIFICALLY THIS MEANS YOU ARE PROHIBITED FROM RELEASING ANY INFORMATION OR DOCUMENTS ABOUT YOUR COMPLAINT FILED WITH THIS OFFICE TO ANYONE, INCLUDING THE NEWS MEDIA.”

This means that I was in contempt of the Arkansas Supreme Court when I published my letter on this site last week. I supposed that Arkansas Times editor Max Brantley became complicit in my alleged crime when he posted a link to my letter on the paper’s Arkansas Blog.

Last evening, I guess my misdeed rose to the level of a veritable crime spree when I spoke to a reporter for the Arkansas Democrat-Gazette about my complaint. In willful violation of the letter’s warning, I did indeed speak with a member of the news media about information I had submitted to the committee.

This morning, the paper carried an article by reporter Alison Sider about my complaint. She reported that McDaniel declined to comment on it and that the committee’s executive director, Stark Ligon, said that “Leveritt could be held in contempt of court for publicizing the letter.”

As to the warning I’d received from the committee, Sider wrote: “Leveritt said the contempt notice was a ‘threat,’ and said she would assert her constitutional right to freedom of speech.”

[private]So far, I have not been charged with a crime. However, this morning one supporter of the West Memphis Three did email me his opinion that my complaint against McDaniel was “frivolous” and “damaging” to serious attempts to have these wrongful convictions overturned.” Tony Kelpine suggested I wage my battles “with the pen…not with legal filings.”

We ended up having a good exchange. I told him that the only way my action could be seen as damaging to the men’s cases would be if we presume that judges and the attorney general will react out of spite; that is, take out their anger at me on the West Memphis Three. If that’s the level of jurisprudence we expect, I wrote, we’re in deeper trouble here than we imagined.

I also explained that I intended to press for clarification about the role of the attorney general because I want to know, as I told the reporter: “Is it his duty to support a verdict in a trial even if it’s illegally obtained, just because the state won? Or is his obligation higher than that?”

Imagine. If McDaniel viewed his job as trying to assure a high quality of justice in this state, he could have dropped his opposition to new trials as soon as the juror misconduct evidence was presented—and he saw he could not dispute it. That single act could have spared the West Memphis Three at least three years of their prison ordeal.

 I also think my complaint is worth pursuing because, it appears, the supreme court attempts to stifle the speech, not only of attorneys in Arkansas, but even of the state’s non-lawyer citizens. There is a reason that until recently, no Arkansas attorney who was not involved in the defense of the West Memphis Three voiced a critical word about the men’s cases. The attorneys know they could be punished—just as the supreme court’s committee advised me I may be.

It’s one thing for the court to threaten the attorneys it licenses. It’s another for the court to threaten an individual citizen merely because she has the audacity to write out a complaint to a public agency and then to speak of that complaint in public. I don’t think it’s frivolous to challenge that.

Arkansas’s legal system has nurtured a culture of secrecy and intimidation—with, of all institutions, the supreme court as its enforcer. This deeply rooted culture is, I believe, why people in Arkansas have been so shy about raising their voices regarding the West Memphis case, while people everywhere else have been hollering.

But what is the court’s basis for its bold-faced threat? What law requires me—a lay person—to be silent? What law forbids me to say out loud what I have written to a public office in a letter? What law bars any ordinary citizen from talking to the news media?

And most important: Does the Arkansas Supreme Court believe the Bill of Rights applies to Arkansas citizens?

The prosecutors of the West Memphis Three exploited the defendants’ right to free expression when they were tried for murder. Books, clothing, music, personal writings—all were used in court to convince juries to convict the men.

For years, the state has insisted that the trials were sound and that Echols, Baldwin and Misskelley all should die in prison. So far, no Arkansas court has found a single thing wrong with what occurred at their trials. The state has acted with impunity.

But let one ordinary citizen write a letter questioning a public official’s role—and dare to write or speak about it—and the judicial hammer is raised. I am warned that I may be held in contempt of court “and punished by fine or jail.”

That is a bluff. It is baloney. And it is a shame. Any court that so disregards the rights of citizens—both  to justice and to free speech—can itself be held in contempt.[/private]

Moral twilight zone: Complaint of ‘impropriety’ filed against Arkansas Attorney General Dustin McDaniel

Today, I sent the following letter to the Arkansas Supreme Court’s Committee on Professional Conduct. It asks the committee to investigate whether Arkansas Attorney General Dustin McDaniel and his deputy attorney general, David Raupp, have violated their constitutional duties and the court’s rules of professional conduct for attorneys by continuing to support the jury verdicts in the trial of Damien and Echols and Jason Baldwin, despite unrefuted evidence that those verdicts were tainted by gross juror misconduct—evidence that has been before Arkansas courts for more than three years.

I write this not to be petty, but in the belief that the culture of legal practice in Arkansas needs changing. If state officials reach the point that they believe it’s okay–or even their duty—to press for the imprisonment—and even the execution—of a citizen whose conviction was obtained under illegal circumstances, we have entered a moral twilight zone. It’s time for someone to tell the attorney general that he’s parading around in it without clothes.

Mr. Stark Ligon

Committee/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 impropriety, in violation of the state’s Rules of Professional Conduct, by Arkansas Attorney General Dustin McDaniel and David R. Raupp of the attorney general’s office.

I further ask the Committee to investigate whether, by supporting jury verdicts that were obtained by processes that violated the defendants’ constitutional rights, Messrs. McDaniel and Raupp are also violating their constitutional duty to “maintain and defend the interests of the state.”

[private]This letter assumes that few interests of the Arkansas Supreme Court supersede that of due process. It further assumes that willful violations of due process by an attorney constitute impropriety, and that actions that knowingly deprive a citizen of “life, liberty or property without due process of law” are also against the Rules. If those assumptions are incorrect, please let me know.

Like most Arkansans, I am not an attorney. However, I can assure you that for many of us who do not belong to the profession, the position taken by the attorney general in support of tainted verdicts presents, not just the appearance of impropriety, but impropriety itself.

This is what concerns me: In 1994, Damien Echols and Jason Baldwin were convicted of a triple murder. Echols was sentenced to death, Baldwin to life in prison. Since then, evidence has been discovered that their jury considered evidence that was constitutionally barred from introduction into that trial.

This evidence concerned incriminating statements made to police by Jessie Misskelley, Jr. about himself, Echols and Baldwin. Because Misskelley would not repeat those statements in court, and because Echols and Baldwin never incriminated themselves, Misskelley was tried separately. He was convicted.

Misskelley refused to testify against Echols and Baldwin at their trial, which immediately followed his own. Because Misskelley’s hearsay statements were inadmissible under state and federal law, no mention of them was to be allowed in that second trial.

In 2008, attorneys for Echols and Baldwin filed a motion in circuit court for a new trial. They included in that motion voluminous documentary evidence supporting their contention that the men’s trial in 1994 was marred by gross misconduct on the part of the jury foreman. You will find a thorough explanation of that evidence in a brief filed by Echols in the Circuit Court of Craighead County on April 29, 2011.

McDaniel and Raupp have never disputed that evidence. Instead, they have sought to nullify it by arguing, in circuit court and before the state supreme court, that the evidence was inadmissible under the law of the case doctrine.

The recent brief by Echols asks, among other things, that the state be ordered to submit in documentary form any evidence that would contradict the evidence of juror misconduct that Echols and Baldwin have submitted. It has until May 15, 2011 to file response. I write to you in advance of that response to alert the committee that other Arkansans and I will be watching to see if the attorney general changes the position he has held for three years and decides to acknowledge the seriousness of and the harm done by the juror misconduct in this case.

If, in his response, Messrs. McDaniel and Raupp continue to insist that the matter of jury contamination is for any reason inadmissible or of no importance, I will see no way of interpreting their position other than that they support verdicts that favor the state, whether properly obtained or not. I believe that public confidence in Arkansas justice is weakened by such a perception.

I call the Committee’s particular attention to the fact that this complaint is not about ordinary attorneys. As a constitutional officer, the attorney general bears an added responsibility to represent the legal profession, and that responsibility extends to his staff. They are charged with defending “the interests of the state.”

I assume that justice is the state’s paramount interest with regard to its legal system. (Again, please let me know if that’s wrong.) If the attorney general and his staff interpret their “client” only as the state’s prosecutors, courts or judges, I believe that they are abandoning their larger responsibility to the citizenry to its collective interest in justice.  

The Arkansas Legislature could have charged the attorney general with the responsibility 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, in Ark. Code Ann. Sec. 25-16-704(a), the legislature gave the attorney general the higher and broader mission of defending “the interests of the state.” 

The Arkansas Supreme Court requires prosecutors to refrain from prosecuting a charge that they know is not supported by probable cause. By the same logic, prosecutors—and especially attorneys general—must also refrain from defending a conviction that they know was not fairly obtained.

To drive home the point that a heightened standard of conduct applies to a prosecutor (and attorneys general), the Court has emphasized 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].)

This comment requires the attorney general to rise above provincial politics or error. It requires that the attorney general recognize that, if a blunder has occurred, that blunder should not be magnified by an attorney general who adopts and defends the error as the position of the entire state.

For a state attorney general to support jury verdicts that were obtained by processes that violate our constitutional rights endangers everyone in this state. I hope, therefore, that the Committee on Professional Conduct will take a keen interest this situation.

If the committee finds that Messrs. McDaniel and Raupp do, in fact, owe a higher duty to the cause of justice in Arkansas than they do to supporting state actions, even—and especially—when those are shown to have been wrong, I hope that it will make that finding public. Our current and future attorneys general would be served, and so would the Arkansas public.

Sincerely,

Mara Leveritt[/private]