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.”

Eddie Vedder sings ‘Satellite’ for West Memphis prisoner’s wife

Eddie Vedder, photo by Danny Clinch

Eddie Vedder recently released a new album called Ukulele Songs, and that’s just what it is. Most fans will probably not realize that one of the songs, “Satellite,” was written for and from the perspective of Lorri Davis, wife of Damien Echols. One reviewer who did catch the reference wrote that among several love songs: “Satellite stands clear as the most captivatingly majestic, a heartwrenching testament to unwavering devotion in the face of nearly insurmountable odds.”

Here are the lyrics:

it’s no shame that
love’s a game that
i can only play with you
what i’m saying
is i’ve been saving
my love for you
i’ve seen the light, i’m
satisfied that
the brightest star is you
satellite, i’m
holding tight
beaming back to you

days turn into
nights turn into
days turn into today
don’t think i’m out playing
cause i’m inside waiting
for you

i’ve felt the light, i’m
satisfied that
the highest star is you
satellite, i’m
holding tight
beaming back to you

don’t you worry
i believe your story
you were put away
for something you didn’t do
what i’m saying
is i’m saving
my love

Arkansas attorney calls for justice in a Jonesboro paper

The following letter appeared on Mar. 21 in the Jonesboro Sun, the newspaper published in the town where Damien Echols and Jason Baldwin were convicted and where the hearing for them and Jessie Misskelley, Jr. will be held in December. The letter to the editor was written by Ken Swindle, who is from Jonesboro but who now practices law in Rogers, Arkansas.

Aside from Dan Stidham, who represented Misskelley at trial, Swindle is the first Arkansas attorney to speak publicly about the case outside of court. Swindle has also begun assembling a group of other Arkansas attorneys who are concerned about the case.

You probably recall the atmosphere surrounding the trial of Jason Baldwin and Damien Echols. I remember after finishing my first year of law school returning to Jonesboro the month after the trials had completed. We all believed that Jason and Damien were guilty. We knew that the murders of the children were unspeakably horrible, and we had heard that Jason and Damien were involved in an occult ritual sacrifice. 

I also recall that, even then, there were whispers in the community about the complete lack of evidence. Like most people in the community, I quickly brushed those doubts aside. These defendants must be the “other,” the outsider.

It was not until the case was in front of the Arkansas Supreme Court last year that I began to look more critically at the evidence. Maybe like many of you, those tough questions kept coming back. I began to re-examine the trial from a new perspective. The Arkansas Supreme Court sent the case back to the trial court for new findings. Jason and Damien’s attorneys are asking for a new trial based upon review of new evidence as well as a request for new scientific examination of evidence at their own expense. This testing was scientifically unavailable in 1994. However, there is one piece of evidence already before the court that should make the granting of a new trial automatic: juror misconduct. 

 The right to a jury trial is a fundamental protection to our communities. To create a fair and impartial jury, judges make all potential jurors take an oath to follow four safety rules: (1) to answer the questions truthfully when being chosen to sit on a jury, (2) not to discuss the case with anyone until the case is over, (3) not to make up one’s mind before the jury deliberates, and (4) not to interject into the jury deliberations evidence not presented at trial.

 We now know that the jury foreman in Jason and Damien’s trial violated all four of these safety rules. This fact alone should be sufficient for a new trial. The right to a new trial protects our communities by enforcing the right to a fair and impartial jury that follows the safety rules given to it by the judge. If a new trial with a fair and impartial jury is allowed, especially if a jury is allowed to consider all of the DNA evidence, then maybe, just maybe, those lingering doubts that many of us had in 1994 may finally be put to rest.

 Ken Swindle, J.D.

Rogers, Arkansas

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

Lorri Davis and I to speak about media and the WM3 at The University of Memphis on Mar. 24

Lorri Davis and I will be part of a panel to be held at The University of Memphis on the evening of March 24. Chelsea Leigh Boozer, president of the university’s Society of Professional Journalists, posted the following announcement and poster on Facebook. (The comments are getting interesting.)
 “The Media’s Role in the West Memphis Three Case” is the 2011 Freedom of Information Congress hosted annually by The Society of Professional Journalists at The University of Memphis.

The West Memphis Three is the name given to three men (Damien Echols, Jessie Misskelly and Jason Baldwin) who were tried and convicted of the murders of three eight-year-old boys in West Memphis, Arkansas in 1993 when they were teenagers.

The prosecution suggested their motive for the slayings was that it was part of a Satanic ritual. Much evidence has come forth since then that would suggest that the three men in jail were in fact not the murders. The case is currently up for appeal.

The case has grown national attention and several celebrities such as Johnny Depp and Natalie Maines from The Dixie Chicks have become advocates for the three men in jail.

Guest speakers and panelists of the 2011 FOI Congress include Mara Leveritt, author of Devil’s Knot (a detailed book about the WM3 Case), Lorri Davis, wife of Damien Echols, and other local journalists who have covered the case then and now.

Some topics to be discussed are the access of public information during research of the case and the difficulties surrounding that, the media’s coverage of the case and the ethical issue of journalists serving as advocates for their stories.

Our keynote speaker Mara Leveritt will give an introductory speech and afterwards she and our panelists will discuss topics surrounding media coverage of the case.

This event is scheduled for Mar. 24, 2011. There will be a light reception at 6 p.m. and we will start at 7 p.m. on The University of Memphis campus in the University Center Theater.

It is free and open to the public. Seats are limited to 300 and are available on a first come first serve basis. A limited amount of standing room is available in the chance of over-attendance.

Attendees will be enlightened about the case and how media coverage has been handeld over the years. There will be an opportunity to propose questions or comments to the panelists at the end of the event. 

Michale Graves to bring ‘angels’ and ‘the blackness’ to Little Rock

If you’re anywhere near Little Rock, come join me at Juanita’s at 8:30 on Friday, March 18 to hear—and thank—punk rocker Michale Graves. As many of you know, Graves is a longtime supporter of the WM3. He recently put together a short film entitled “The Blackness and the Forest” that told the story of his “Almost Home Campaign” to raise awareness about the case. He has collaborated with Damien Echols on several songs and will perform them at this concert.

Jason Baldwin on being free: Arkansas Times video interview, Jan. 14, 2011

The Arkansas Times is the only publication that has consistently voiced concern about the trials of Damien Echols, Jason Baldwin and Jessie Misskelley, Jr.—and called for a court review of their cases.  Now that the Arkansas Supreme Court has ordered that review, the Times editors, foreseeing a critical year ahead, sought interviews and photographs of the men. They were denied interview with Echols and Misskelley, as explained below, but recorded a great talk with Jason Baldwin, in which he talks about his faith that he’ll freed, his family, and his feelings about Echols and Misskelley, who are also briefly shown. (I’ve also posted a further recent interview with  Baldwin on the DK2 section of this site.)

From the Arkansas Times blog: “On January 14, 2011 Arkansas Times Reporter David Koon and Photographer Brian Chilson arrived at the Varner “Super Max” Unit of the Arkansas Department of Corrections where Damien Echols and Jessie Misskelley are housed. We had an appointment made weeks in advance for an interview and photographs of the both prisoners. Upon our arrival in the visitation room, however, we were informed that we were only approved for photos, despite prior and specific approval for an interview. Both prisoners expressed surprise upon learning that we were not allowed to interview them as they had both signed consent forms that specified an interview would be done. We were allowed our interview with Jason Baldwin later in the day at the Tucker Unit. The interview took place in a conference room, video of Damien and Jessie taken during the few minutes we were allowed to see but not talk to them is from the morning.”  Arkansas Times interview with Jason Baldwin.

Look at some of the artists who’ve supported the WM3

For years, Anje Vela, at Skeleton Key Auctions, has been raising money for the WM3 with the help of many, many artists who’ve contributed valuable autographed items. Anje has now put together an awesome video recounting some of that history.

The very cool background music is “West Memphis Moon” by Chuck Prophet.

Judge imposes new gag order, in case of possible new trial for WM3.

At a scheduling conference today in circuit court in Jonesboro, Judge David Laser ordered attorneys representing Damien Echols, Jason Baldwin and Jessie Misskelley Jr. to file briefs with him by Feb. 18 regarding issues to be addressed at the evidentiary hearing that was ordered last September by the Arkansas Supreme Court.

Laser said he was “giving this case priority” and that he wanted to “get this done as soon as possible.” Laser was appointed to hear the case because the previous judge, David Burnett, was elected to the state Senate.

The conference took place with some attorneys appearing in person and others by speaker phone. Ten lawyers participated in all — four for the state and two each for the three men, known as the West Memphis Three.

As issues to be considered were discussed, Laser said, “As I look at it, they [justices of the Supreme Court] basically want this case pre-tried through the court.” He added, “I’m certainly not limiting what can be presented. If there are additional issues or evidence that needs to come in, they will come in.”

Little Rock attorneys Jeff Rosenzweig, representing Misskelley, and Blake Hendrix, representing Baldwin, noted that unlike Echols, their clients still have appeals pending regarding their Rule 37 hearings to examine the adequacy of their counsel at their 1994 trials for the slayings of three West Memphis children.

Stephen Braga of Washington, D.C., the newly appointed lead attorney for Echols, agreed that while those appeals need to proceed, “No matter what happens to them, this hearing needs to go forward with regard to Echols.” Only Echols faces the death penalty. The other two are serving life sentences.

Laser responded, “Yes, that seems the way it ought to be.”

He told the attorneys, “Let’s operate on the assumption we’re going to move forward on all three cases to the extent we can.”

Attorneys for the three men noted that there was still some hair and fiber evidence that needs to be tested. They said the “intermingled” hairs were of human and other animal origin.

Attorney John Philipsborn of San Francisco, representing Baldwin, told the judge that at one point, after state and defense attorneys had agreed on evidence to be tested for DNA, “The state did some testing of its own.” Philipsborn asked that no party undertake potentially destructive testing of evidence without mutual knowledge and agreement.

Laser ordered that all testing will be “above the table.” The judge also put all attorneys under a gag order. “If a new trial is ordered, we will need to impanel a jury, so a gag order seems reasonable.” He then said he would prefer to “schedule the hearing more or less like an actual trial” and that he dates open in July, August and October.

All attorneys now have 45 days to submit briefs outlining issues they want to present and a schedule for the hearing.

New evidence, including allegations of juror misconduct and DNA findings, prompted the Supreme Court to order a new hearing for the men, whose convictions had previously been upheld. The hearing will decide whether they men deserve new trials.

Philipsborn’s reference to other DNA testing, marked the first time that there’d been an official court reference to the fact that the attorney general did secret, additional DNA testing after no trace of the defendants turned up in the initial round of agreed-upon DNA testing. News of this leaked out inadvertently to the defense and it’s expected to be a subject of discussion in the Feb. 18 briefs. In the meanwhile, lawyers are gagged and attorney general working papers are not open to inspection. Three employees of the attorney general and Prosecuting Attorney Scott Ellington would not comment on the secret testing.

Arkansas Times Blog Article