Victim pleads for Rolf Kaestel release; Beebe still says no

Rolf Kaestel

Rolf Kaestel in an ADC file photo

Gov. Mike Beebe will not issue a last-minute pardon for Rolf Kaestel, who has served 33 years of a life for a $264 robbery, despite two parole boards’ recommendations that Kaestel be released and pleas on Kaestel’s behalf from the man he robbed.

Kaestel robbed Senor Bob’s Taco Hut in Fort Smith in 1981, armed with a toy water pistol. Dennis Schluterman, who was manning the place, handed over the cash. He said Kaestel never threatened him.

In short order, a Fort Smith jury sentenced Kaestel to life in prison. Last year Kaestel petitioned Beebe for a pardon.

Schluterman, who said he’d been “shocked” to learn that Kaestel was still in prison decades after the robbery, made an emotional video on his behalf. That went to the governor with Kaestel’s appeal.

Also before the governor were recommendations for Kaestel’s release from parole boards in Arkansas and Utah, where Kaestel has been imprisoned for the past 15 years. But Beebe took no action on Kaestel’s petition in 2013 and his office reiterated this week that he will not reconsider that decision.

Referring to pardons, deputy spokesman Stacey Hall wrote in an email, “When we have issued them, most of them have been to address sentencing actions that seemed excessive… The governor felt that Rolf’s situation did not warrant taking action.”

Schluterman, who had held out hope, took news of the governor’s response “with a heavy heart.” He wrote: “Rolf Kaestel made a big mistake and he’s paid for it with his life.  A fundamental principle to our justice system is that the punishment should fit the crime.  Here that has not been the case.”

Schluterman is familiar with Kaestel’s criminal record before the Fort Smith robbery. By age 30, Kaestel had racked up a string of thefts, though none violent. Last August, Colby Frazier of the Salt Lake City Weekly, outlined that background well in an article titled “Invisible Man”.

The paper had taken an interest in why Arkansas officials were paying $28,000 a year to imprison Kaestel in Utah, where he has been held since 1999. Frazier wrote that Kaestel, who’s now 63, had been moved under an interstate agreement because of “noncompliance with the Arkansas system.” Yet, Frazier reported, “Explanations of what this means, and what Kaestel may have done to earn his noncompliance status, do not exist.”

Kelly Duda, a Little Rock filmmaker, believes that part of Arkansas’s problem with Kaestel—and part of the reason he won’t be released—stems from Kaestel’s willingness to speak on-camera for Duda’s documentary Factor 8: The Arkansas Prison Blood Scandal, about the practice that existed from 1967 to 1994 of selling prisoners’ plasma. The film explores the spread of hepatitis C through that much-criticized but long-running program.

Duda, who filmed Schluterman’s appeal, also supports Kaestel’s release. Contacted for this article, he wrote: “You’ve got to ask yourself at this point is it retributive justice that’s taking place here or revenge?  And at a certain point has an injustice occurred? I believe that it has.

“If Mr. Kaestel had pulled out his water pistol and squirted Mr. Shluterman in the face with it, he still wouldn’t have deserved a life without parole sentence. Looking back on it from a 2014 perspective, that’s just ridiculous.  The man has given up more than 33 years of his life behind bars for $264.”

I share the concern that Kaestel is being punished because of his contacts with media about episodes embarrassing to the Arkansas Department of Correction. My own correspondence with Kaestel dates back to 1992, when he was describing perceived security risks in the prisons.

On Oct. 3, 1999, inmate Kenneth Williams escaped from the Cummins Unit and, later that day, killed a man who lived in Grady, 16 miles away. Five days later, on Oct. 8, Kaestel sent me a letter in which he outlined explanations for the escape that contradicted those offered by prison department officials. Before that year was out, Kaestel was moved to Utah.

In a recent letter to Gov. Beebe, I too supported Kaestel’s bid for parole. We see now that he is determined to let Kaestel’s $264-life-sentence stand, though he has not said why.

Personal request: If you’re an Arkansan, hurry! Write to the state supreme court!

Dear Friends of Justice in Arkansas:

I took a load of scrap paper to a recycler this morning to be shredded. A sign at the office door read: “All activities in this office are audio-visually recorded.” Many businesses have cameras running 24/7. But did you know that in this age, when just about anything can be recorded and posted on the Internet, something as important as police interrogations are generally not recorded in their entirety? Yet the notes taken by police and partially recorded statements are presented as evidence in courts of law, where people’s lives and liberty hang in the balance.

The Arkansas Supreme Court recently proposed a rule to change that, but the rule the court offered is weak. It only suggests that Arkansas law enforcement agencies electronically record interrogations. Many people, including me, believe that we need a stronger rule. We want the court to require police to record interrogations from beginning to end. We want a rule that will give everyone in the courtroom an accurate understanding of what was said in the interrogation.  

As you know, Damien Echols, Jason Baldwin and Jessie Misskelley, Jr. were arrested after police questioned Misskelley, who was just 17 at the time, for close to eight hours without a parent or attorney present. Less than two hours of that session were recorded. Much of what he said, even in the recorded part, was wrong—his account did not conform to what police knew about the crime. Nevertheless, all three were arrested and convicted based on that bit of recording, and have spent the past 18 years in prison.

States where recording is required report that it works for police and defendants. Jurors also appreciate being able to base their decisions on reliable information.

The Arkansas Supreme Court is accepting public comments on its proposed recording rule. Please write to the court today. Ask that they adopt a rule saying that statements from police interrogations will not be admitted in court unless the interrogation was electronically recorded from beginning to end. Letters will be accepted until July 1. It’s too late to spare Damien, Jason and Jessie the abuses they’ve endured. But what we do in the next two weeks could spare others—and improve the quality of justice in Arkansas for years to come.

Address letters to:

Clerk to the Arkansas Supreme Court
Justice Building
625 Marshall Street
Little Rock, AR 72201
The salutation of your letter should read, “Dear Justices of the Arkansas Supreme Court:”

Thank you. And please ask everyone you know in Arkansas who cares to write a letter too! 


The politics of death

Arkansas requires more training for drivers, cosmetologists and mold investigators than it does for coroners. In fact, the state requires nothing—no training, no testing, not even a background check—for county officials who investigate deaths.

I raise this topic now because, presumably, according to Circuit Judge David Laser’s order, certain evidence from the case of the West Memphis Three is now being tested. Court filings in the next few weeks are likely to focus attention on the work of the crime scene investigators and the state crime lab.

This lull, as we await results from the laboratory analyses now underway, is a good time to revisit the earliest moments at the drainage ditch where the bodies of Christopher Byers, Michael Moore and Stevie Branch were found. This is what records tell us about the coroner who pronounced them dead.

[private]Crittenden County’s coroner, Kent Hale, was called to the scene at 3:20 p.m. on May 6, 1993, an hour and 50 minutes after the boys’ bodies were discovered. Hale, who worked for Roller-Citizens Funeral Home in West Memphis in addition to his job as county coroner, was accompanied to the scene by another of the funeral home’s employees.  

Hale noted in his report that when he arrived, he found all three bodies out of the water and lying on the bank covered in black plastic. The air temperature was approaching the high eighties. Fly larvae were starting to appear in the victims’ eyes and nostrils.

Hale pronounced the boys dead at 3:58 p.m., by which time the bodies had been lying in the open for more than two and a half hours. In his brief report, part of which was on a form, Hale noted the position of the bodies as he found them, the temperature of the water in which they’d been found, and that they were tied hands-to-ankles “by shoelaces.”

Hale also noted what appeared to be injuries to the boys, including bruising, cuts, abrasions, a “stab wound” to the head of Christopher, and signs that the boys ‘may have been sexually assaulted.” He wrote that the bodies were sent to the office of the Arkansas Medical Examiner in Little Rock. (Hale’s report.)

Hale left many parts of the form blank, including one for “Causes of Death.” He would leave that determination to the state crime lab, which is permissible under Arkansas’s dual coroner/medical-examiner system. The criminal investigation was already in the hands of the West Memphis Police Department.

The role of coroner originated in England before the signing of the Magna Carta. The word itself comes from “crown,” as the coroner was supposed to represent the interests of the king at a subject’s death. Today, expectations of coroners vary greatly.

In England, coroners must be either a physician or a lawyer with at least five years of practice. They are expected to investigate any deaths that are unnatural, violent, sudden with unknown cause, or that occur in police or prison custody.

In the U.S., coroners may be either elected or appointed, or the coroner’s job may be part of another job, such as that of prosecuting attorney. In some states, the titles of coroner and medical examiner are used interchangeably.

Requirements for both positions are established locally. A coroner’s duties, however, always include determining the cause, time, and manner of death.

The Arkansas County Coroner’s Procedures Manual states that, “The county coroner is charged with the responsibility of determining the cause of death for those deaths properly the responsibility of the coroner.” It adds, however, that if the medical examiner accepts the case, the coroner is relieved of that responsibility.

Friction can develop between police working a crime scene and a coroner, who is required to conduct “a good, thorough investigation” and file a report on the death within five days. As a result, Arkansas officials have interpreted the state’s law as providing that “law enforcement officials must give the county coroner access to all scenes of deaths…” because “… the coroner must satisfy himself as to whether the death was the result of a crime.”

That is a heavy responsibility. As noted in the “Coroner’s Creed,” published on the website of the Arkansas Coroner’s Association, “Death is the most important legal event for all human beings. … Both the deceased and the survivors may be greatly affected legally by how death occurred, what actually happened, why it occurred, and precisely when it occurred. … Only when these questions have been answered correctly can all the proper legal issues arising at death be effectively handled for the proper administration of justice.”

Consider: If a corner concludes, correctly or not, that someone slipped and fell, the death may never be investigated as a crime. If the coroner concludes that a death was an accident, insurance may be collected, even if the death was actually a suicide. A coroner has the power to determine whether a baby’s death in the crib was a tragic accident or a criminal act.

Yet, in Arkansas, the requirements for someone to hold the job of coroner are less than minimal. According to the Coroner’s Procedures Manual, “The coroner is elected for a two-year term of office with the requirements that he/she be a qualified elector and resident of the county.” That’s it. To be a county coroner in Arkansas, all a person must do is register to vote and win election.

By contrast, to drive a car in Arkansas, a person must pass a vision, written and driving test. Auctioneers must sit for a written exam and conduct a mock auction for an oral exam. To be licensed as a cosmetologist, a person must have completed the 10th grade and successfully completed a 1,500-hour course of instruction at an approved school of cosmetology.

Massage therapists must pass a background check by the state police and the FBI, in addition to completing 500 hours of massage therapy classes with test grades of at least 75 percent. And to be licensed as a mold inspector, a person will have to be certified as an industrial hygienist by the American Board of Industrial Hygiene; as a microbial consultant or indoor environmental consultant by the American Indoor Air Quality Council; or have successfully completed at least 20 hours of college-level microbiology.

It could be argued that, after existing for a thousand years, the coroner’s job has become obsolete. But in the poor state of Arkansas, at least, where a government job is a job, and an elected post is a job with status, discussion of eliminating coroners is a non-starter.

The alternative is to improve requirements for the job, in hope of improving its standards. A state representative attempted that in the legislative session this spring. His bill, titled “An Act to Modernize the Office of Coroner,” did not pass.[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.”


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.


Mara Leveritt[/private]

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

Fight to the death

Should we kill on technicalities?

(This commentary appears as a sidebar to my article in this week’s Arkansas Times about state Death Row prisoner Tim Howard. Damien Echols believes that Howard is innocent, and three justices of the Arkansas Supreme Court have expressed concern that there was not enough evidence to convict Howard, let alone sentence him to death. Like Echols, Howard has asked the state supreme court to grant an evidentiary hearing. That plea is still before the court. Read the full story about Howard.)

I oppose the death penalty. But I know that even people who support it want to believe that those we execute are actually guilty of the crime for which they’re being killed.

Since 1973, 138 prisoners have been released from death rows in 26 states because new evidence—often based on DNA—proved they were innocent. So far, no Arkansas inmate has walked from Death Row to freedom. But a few cases may be moving in that direction.

By now, most Arkansans have heard of Damien Echols, the member of the trio known as the West Memphis Three who was sentenced to die for a triple murder in 1993. Last August, 17 years after their trials, the Arkansas Supreme Court ordered an evidentiary hearing to determine whether Echols and the two other men deserve new trials.

Their case and the case of Tim Howard bear uncomfortable similarities. In both, lawyers argue that new evidence related to DNA might have changed the jury’s verdict, had it been known at the time. Howard’s lawyers contend that state officials knew about flaws in the testing of DNA that was used to convict Howard but withheld that information.

In the West Memphis case, bloody paper towels recovered after an unidentified man cleaned up in a public restroom on the night the victims disappeared and near where their bodies were found were never sent for analysis. Police said they were “lost.”

With regard to Echols, Arkansas Attorney General Dustin McDaniel recently said: “Our office knows that there are concerns about this case, but be assured that we take the utmost care in handling the appeals of death sentences handed down by Arkansas jurors.”

The question that arises, however, in that case, Howard’s, and others, is: How hard must the attorney general fight to resist a reexamination of cases where flaws are evident? Negotiation is an alternative.

Last August, when the Supreme Court’s hearing in Echols’ case was broadcast on the Internet, I received e-mails from around the country asking if I could translate into plain English what the assistant attorney general had said. His arguments against allowing a court review were that technical.

In Howard’s case, that same assistant AG argued that Howard had taken too long to present evidence that even he did not dispute had been improperly “withheld.”

Timeliness is, indeed, important to courts. But it is also important to men like Howard and Echols, who together have now spent decades in solitary cells on Death Row.

If we are going to execute, the reasons ought to be clear enough for citizens to understand. And, where there is reason to suspect that a verdict was not based on honest or complete evidence, decency should compel us to encourage—rather than resist—a second look.

MLK: ‘I am in Birmingham because injustice is here.’

If you have not read (or recently re-read) Dr. Martin Luther King’s 1963 “Letter from a Birmingham Jail,” this holiday in his honor might be a good time to do it. King later wrote that he composed his famous letter “under somewhat constricting circumstances,” after his arrest during a civil rights demonstration.

The letter was in response to a letter from a group of local clergymen, who asked King to be patient in his efforts to end racial injustice. They also complained that he was an “outsider” causing trouble in Birmingham. To that he replied:

“… I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

I think of this in light of what so many of you have done to help end an injustice in Arkansas.  We are, as King wrote, “caught in an inescapable network of mutuality, tied in a single garment of destiny.” As you have helped us here, you have also helped “all indirectly,” for we know that injustice such as that faced by the “brothers and sisters” for whom King fought and that experienced by the WM3 is also felt by many, many others—black, white and poor.

Here’s Dr. King’s great letter.

At last! A ruling in the WM case that makes sense!

This is a day we’ve been waiting for, and I want to tell everyone how proud I am of the effort that has resulted in this first, critical step toward justice. The Arkansas Supreme Court could not have been more clear in its repudiation of the reasons Judge David Burnett and the office of Attorney General Dustin McDaniel put forth in trying to deny Damien, Jason and Jessie new trials.

The evidentiary hearing that has now been ordered will be quite something. Imagine: good lawyers, a new judge, all the evidence, and a mandate from the state supreme court that, this time, the three don’t have to prove their innocence! All they’ll have to prove is the likelihood that, under these new-to-this-case conditions, a jury would find them not guilty.

Happy Haunting

Just a reminder to always check out what’s new at Anje Vela’s Skeleton Key Auctions. She collects gifts from fine artists to raise money for the WM3. Here’s Robert Englund (Freddy Krueger, from a nightmare that, amazingly, did not originate in an Arkansas courtroom).