A letter from Jason Baldwin, as he contemplates heading back to court

Note: Jason sent me the following letter with a request that it be published in the Arkansas Times. It appears there this week.

Hi, my name is Charles Jason Baldwin and 16 years ago I was convicted for a crime I did not commit. I was a 16-year-old boy then, today I am a 32-year-old man and next month I’ll be leaving prison for the Craighead County Jail for two weeks worth of Rule 37 hearings.

Every day life offers us choices—most are mundane, like whether or not I’ll take sugar in my coffee, or tuning into KSSN 96 vs. The Edge 100.3—these are easy choices based simply on personal preference, neither right or wrong, nor life changing, simply life affirming. When I was just 16 I was forced to make a choice the results of which wouldn’t be so innocuous.

On my last day of school for the 10th grade I was taken into custody. For the next 289 days I would not be allowed to hug my mom or my little brothers. The only people I came into contact with seemed powerless to help me as I told them the truth of my innocence. To say I was under pressure would be an understatement.

One day I was offered a choice. I was told the only hope in the world I had was to turn “state” against Damien Echols and testify under oath that he murdered those three boys. The problem with this choice was the fact that I did not know who murdered those boys. For the life of me I did not believe Damien did—and even if I had a “belief” as to who could have done the murders, the simple fact remained that I did not know who committed them. Many people have found themselves in similar situations and chose a different path than the one I did, but 16 years later I do not regret my choice. The one time my choice counted for something real I made the right one—I chose to protect innocent life.

Our worldly and wise forefathers knew very well the dangers and imperfections in any justice system—even and especially ours. Innocent people can fall victim to the fell clutch of circumstance, so safeguards were put into place. Next month I pray those safeguards will perform their duty and that I’ll at last be freed. Tonight I rest easy knowing that when I was confronted with the choice to protect innocent life, I made the right one.

Charles Jason Baldwin
July 10, 2009

Student interviews Judge Burnett; he says of Echols, “My court is through with him.”

Last November, Lindsey Fry, a student at Lyon College in Batesville, AR, interviewed Judge David Burnett, (shown above during the trial of Jessie Misskelley, Jr.,) for a class assignment. At my request, Fry, who is currently working at television station KATV in Little Rock, sent me her report on that interview, which I am happy to publish here.

The Real Story Behind the Controversy

By Lindsey Fry

With nervous smiles and floor-locked eyes, the 250 people packed into the Craighead County circuit courtroom waited to hear the verdict on Damien Echols, 19, and Jason Baldwin, 16. The room stirred with anticipation as the eight-woman, four-man jury entered to reveal their judgment on the boys accused of murdering three eight-year-old victims, Stevie Branch, Michael Moore, and Christopher Byers.
As the jury prepared to release its decision, Judge David Burnett warned against any outburst from the audience. The silenced courtroom sat anxiously as Burnett announced the jury’s verdict finding the boys “guilty of capital murder.” Echols would later be sentenced to death and Baldwin to life without parole.
The decision on Saturday, March 19, 1994, would continue to be a debated topic years after the West Memphis case ended. The Jonesboro courtroom, overwhelmed with different emotions, exited the building where dozens of reporters waited to question family members and attorneys about the court’s decision.
Making headlines in 1993, the ongoing case continues to attract interest across the country. Family members, attorneys, investigators, and defendants have been interviewed numerous times for newspapers, books, and documentaries; however, a key character, Judge David Burnett, who gained national recognition and suffered a great deal of turmoil from the 1994 case, has yet to become fully known by the public.
During the November 2008 interview, Burnett commented on his personal experience, his legal career, as well as his position in the West Memphis case, explaining why the case has become the “controversy” it has evolved into.

He believes the public and the media have taken the 15-year-old case to an “extreme and unnecessary” level of importance, stating that there were no objections to the decision in March 1994, because the majority of people believed the boys were guilty.

However, after journalists such as Mara Leveritt, and pop stars such as Natalie Maines from the Dixie Chicks, have begun speaking against the case, the pubic has protested for a new trial.

“If I would have known then what the case would become today,” said Burnett, “I probably wouldn’t have agreed to take it.”

The case began to develop May 6, 1993, after three missing second graders were found beaten, naked, and drowned at “Robin Hood Hills” in West Memphis Arkansas. According to Mara Leveritt’s Devil’s Knot, the three eight-year-old boys had been reported missing at 9:24 pm on May 5.
As the grieving town waited impatiently for the murderers to be caught, the West Memphis police searched for suspects, and on June 4, 1993, the town awoke to hear that three minors had been arrested during the night for the murders of Branch, Moore, and Byers. The three teenagers, Echols, Baldwin, and Jessie Misskelley, were given the unforgettable name “West Memphis Three.”
After being tried separately from Echols and Baldwin, Misskelley was ultimately found guilty, and Burnett sentenced him to life in prison plus forty years.
Burnett has practiced law for 26 years as the circuit judge of the third division in Jonesboro Arkansas. He presently hears cases from Clay, Greene, Craighead, Crittenden,
Mississippi, and Poinsett County, involving family and criminal law, as well as personal injury.
Growing up in West Memphis, he decided at an early age that he wanted to practice law because he “liked to talk and deal with people.” Although neither of his parents attended college, they always encouraged him to gain further education. After graduating from Blytheville High School in 1959, Burnett attended University of Arkansas (U of A) where he studied history and political science; afterwards, he continued at U of A law school and graduated in August 1966.
After taking multiple legal courses, he later studied psychology at National Judicial College in Reno, Nevada, where in 1992 he received his Masters Degree. While presiding over the West Memphis Three case, he continued to study psychology, researching “violent behavior.” Burnett said he chose this topic because of his interest in criminal behavior and because his sister, having received her Ph.D. in psychology, could be a vital source in his paper.
However, because his topic was “Can psychologists and psychiatrists predict violent behavior,” and his goal was to prove that violent behavior cannot be predicted, some assumed he was “testing his theory” in the trial. Yet his research topic was actually chosen a year before he took the case, and “it had no effect on the final verdict for the three boys.”
Wanting to join the army before beginning his career, Burnett took an early bar exam, and then, after receiving his license to practice law, joined the military and served one year as a captain in Vietnam. Upon his return to the U.S. he was awarded the Bronze Star, the Vietnam Campaign Ribbon, the Vietnam Service Ribbon, and the Vietnamese Government Staff Medal First Class, for his service in Vietnam.
Burnett returned to northeast Arkansas to begin a private practice with then congressman Bill Alexander. Having practiced law for six years and attended Northwestern School of Law’s attorney courses, Burnett ran for Prosecuting Attorney in 1974, and was elected in 1975 at age 32 to be youngest Prosecuting Attorney for the Second Judicial District in Arkansas.
After joining the California District Attorney Association in 1977, he continued to practice law until January 1982 when he decided to run for judgeship. Burnett was appointed to the bench in 1983 after gaining political support and graduating from the National Judicial College of Civil and Criminal Evidence. Because his new position required him to continue different legal studies, he joined the Cambridge Studies Program in 1986 at Cambridge University in England.
At age 52, after a telephone conference with five other judges, he found himself presiding over the West Memphis case. The decision was based on county, previous cases, and experience. Burnett had presided over criminal and civil cases throughout his career and had experienced “all sides of people,” but despite all of his legal training and preparation he felt “overwhelmed at the recent public response to the 1994 case.”
“I didn’t seek or want the case,” said Burnett. “If I could have passed it I would have, but it was my responsibility to take it. At the time no one had any idea it would become the storm it has evolved into.”
Claiming to have had “more difficult cases” than the West Memphis Three case, Burnett doesn’t deny this case has been the most eminent one. He stated that the legal issues were “quite simple,” whereas the controversy was harder to deal with.
During his career, he has sentenced three criminals under the age of 16 to the death penalty and two minors to life sentences without parole. But in every circumstance he was “merely doing what I felt was right.”
“I think the most challenging part of the West Memphis Three controversy,” said Burnett, “is that I, as well as the prosecutors cannot comment publicly on the case, whereas the defense is using public sympathy to win over the public’s support.”
Burnett explained that using public sympathy is something common for the defense to do, especially in criminal cases involving murder; nevertheless, he predicted the West Memphis case would be an “open and close case” never expecting it would become a future case of dispute.
The escalation of the case has caused such division among the public that in order to hold the hearings for Misskelley and Baldwin in November 2008, Burnett had to issue a gag order preventing anyone in the court room from releasing information to the public or the media. However, the gag order does not apply to the global supporters who continue to protest for the freedom of the West Memphis Three.
“I entered a gag order on the case in 1993 as I have again for the hearings of Baldwin and Misskelley in order to prevent the media and the public from completely dominating the case” said Burnett. “I believe these matters should be handled in the court and by the court.”
The demand of new trials for the West Memphis Three has progressed since July 2007 when new DNA tests were filed showing that “none of the genetic material recovered at the scene of the crimes was attributable to Echols, Echols co-defendant, Jason Baldwin, or defendant Jessie Misskelley.”
Recent hearings were held in Burnett’s courtroom throughout November 17, 18, and 19 in 2008. After failing to get a hearing based on Rule 17-60, proving actual innocence of their clients, the attorneys for Misskelley and Baldwin have been working to arrange a Rule 37 hearing since 2006, proving that their clients were inadequately represented due to a lack of time, money, evidence, and inexperienced representation.
According to an interview conducted by Jonesboro’s KAIT, Misskelley’s former attorney, now Judge Dan Stidham, stated that he expected the 1993 case to “plea out” never assuming it would go to trial. He referred to himself as “inexperienced” at the time, never having served as a leading lawyer in a capital murder trail.
On the second day of the hearing, after conducting multiple tests on Misskelley’s mental ability, Dr. Timothy Derning concluded that Misskelley is mentally retarded. After three days, their attorneys announced that the hearings could last another ten days; however, it was later announced that the hearings were postponed until January 28, 2009, causing outrage from many supporters. However, in regards to Damien Echols, Burnett claims “my court is through with him; if he wants to appeal he will have to take it to the Supreme Court, which I’m quite certain he will.”
After stating in September that he would not allow any new evidence to be admitted into the case, Burnett’s assumption that Echols would take his case to the Arkansas Supreme Court proved correct. In 2007, after being denied multiple times by the Supreme Court, Echols made another petition for a new trial in regards to the new DNA samples. He, his attorneys, as well as global supporters, are still waiting for the Supreme Court’s decision.
Although the West Memphis Three case brought attention to Burnett’s career, he received a great deal of public recognition prior to the case. In 1980, he taught at the Mississippi County Community College as a part time professor, and in 1981 he served as a faculty advisor at the University of California in San Francisco, both of which he taught classes concerning law.
He was later voted “Trial Judge of the Year” in 1988, which is based on courtroom conduct, types of cases the judge has previously tried, and decisions the judge has made on appeals. Then, after running for Judicial Council President in 2001, he was elected by his peers to serve for a one year term in 2002.
“The 2002 election was a big deal for me,” said Burnett. “Being recognized by my peers was an extraordinary compliment. But overall I feel very accomplished; it’s hard to choose which one would be my ‘most important’ achievement, because in my opinion getting through any difficult case is an accomplishment.”
However, Burnett stipulates that being a legal professional is not always “glamorous” or “easily earned,” but requires a lot of hard work and patience. As a lawyer, he recalled spending six days a week preparing for cases, most of which brought little compensation.
He advised those interested in the legal field to “take as many
English composition classes as possible” and to study a lot of history. Although he warned about lack of sleep and excessive research, Burnett claimed working in the law is “the most rewarding job.”
Burnett also confessed that he has recently been “toying with the idea” of running for state Senator in two years, stating that he felt confident that ten years as an attorney and twenty years as a judge are enough background and experience to make him a good candidate.
“I’ve learned to deal with all kinds of people in this business,” he said. “It’s been fun, sad, and difficult, but all in all I have really enjoyed my position, and I feel I am ready for the next opportunity.”
Preparing to work on special assignments in January 2009 as a retired judge, Burnett recalled his experience as “successful with no regrets.” Regarding the 1994 outcome of the West Memphis Three case, he claimed to have “followed the structure of the law” in his ultimate decision.
“Despite all of the controversy the case has brought, I don’t doubt or regret my decision” said Burnett. “As a judge you have to be ready to make difficult decisions, even if it risks being hated by the public.”
Burnett explained that his verdict did not come easy when it came to sentencing two minors to serve life sentences and one young man to be on death row; however, it was neither an impulsive nor a careless decision.
Aware that the public continues to mock his name and position, through “hate blogs,” books, and news reports, Burnett claims to “sleep well at night.” In an attempt to prove that he was judicious and disinterested, Burnett stated that he “excluded a lot of damming evidence” found on the boys, including blood stains found on Echols clothes and possessions, which were later analyzed and proved to match the blood type of one of the victims.
“It’s frustrating when I know many people out there protesting haven’t fully researched the case before taking a definite side” said Burnett. “But I really don’t care what the media says about me; my job is to do what is right as a judge.”
Previous news headlines have quoted Burnett as being “less than thrilled” about having to reopen the case, stating “let’s just get this over with.” However, Burnett explained that his frustration is more with the public’s desire to “take this case to Hollywood” than it is with the boys, who are now in their 30’s.
Reports state that Burnett’s tolerance with the case is “growing low,” telling attorneys “I want this wrapped up one way or another.”
“If a retrial is required based on adequate evidence, then I don’t mind having one, but I don’t think it’s a good enough reason to reopen the case just to please the public.”
Because Burnett is retiring in January 2009, the continuation of the hearings for Baldwin and Misskelley will be handled by whoever is appointed to fill his position.
Over the past 15 years, Burnett has become a public figure throughout Arkansas. His roles as an active citizen and an honorable judge have given him a memorable name in history. Although the public may forever refer to him as the “Judge over the West Memphis Three case,” he says family and friends will always know him as a “country boy who loves to hunt and fish.”
However, he is not ready to hunt and fish full time, saying he is still looking for “new opportunities in the future.” Keeping in mind his goal of running for state senator in 2010, he plans on continuing to work in the legal field until his “next adventure” comes along.
“I love what I do,” said Burnett. “Even though at times it may not make me the most popular person, I have always believed in my ability to make good decisions as a judge.”

The cozy courts of Arkansas

David Perry Davis, a New Jersey lawyer and active supporter of the WM3, wrote today saying he was “trying to understand why a state with elected officials is acting so blindly to justice.” He cited the West Memphis case, and that of Tim Howard and asked my view on why such travesties happen. How is justice so terribly thwarted, he wondered, in a state that elects its judges?

I’ll tell you what I think is the biggest part of the problem.

Yes, Arkansas elects its judges, both for circuit courts, such as the one presided over by Judge David Burnett, and for the state supreme court. But it would be a mistake to think that the voters get to make an informed decision.

Arkansas lawyers, the people who know most about what goes on in our courts, are not free to express their opinions in public. They are effectively gagged by rules set down for them by the Arkansas Supreme Court.

Has anyone ever wondered why we haven’t seen Arkansas lawyers joining the chorus of criticism for the abuses that have occurred in the West Memphis case? People—including lawyers—from around the world have objected to a long list of decisions, procedures and rulings that would not have passed muster elsewhere but that have been found acceptable here in Arkansas—all without so much as a murmur from members of the Arkansas bar.

Dan Stidham, above, has been the most outspoken lawyer in this case, yet he has never felt free to speak in public as forcefully as he did in this week’s hearings in Jonesboro. Other lawyers who’ve taken the stand in the past two weeks have criticized the lack of money that was available for the defense of Damien Echols, Jason Baldwin and Jessie Misskelley, Jr., but they have been silent on that topic until their recent appearance in court.

The unspoken rule here is that lawyers can voice their objections to what happens in court in pleadings and through other official actions, but they cannot voice their objections in public without risking the loss of their license to practice law in this state.

Of course, the public might find such a rule offensive if it were written down and formally inacted. So the rule is imposed through interpretation.

The Arkansas Supreme Court has formulated its “Rules of Professional Conduct” for lawyers. Part of Rule 5 reads: “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”

In Arkansas, public criticism of judges by an attorney has been deemed a show of disrspect “for the legal system and for those who serve it,” whether the criticism was warranted or not. The state’s Committee on Professional Conduct has sanctioned lawyers who have criticized a judge’s action, regarding the criticism as a failure of the lawyer’s duty “to uphold the legal process.”

As a result, the First Amendment to the Constitution does not apply to lawyers in Arkansas who might wish to express an opinion about the worthiness of a candidate who is running for judge or a judge who is seeking re-election. Judges here are elected blindly, as their records can never be publicly attacked during campaigns by any of the lawyers who have practiced before them.

This situation does not exist in every state. Its effect in Arkansas has been to create a closed society, carefully controlled from within and not subject to the usual freedom of debate that informs other types of elections.

Theoretically, the Supreme Court weeds out bad judges itself, through its Judicial Discipline and Disability Commission. But in recent years, that commission has lost whatever credibility it might have deserved by persecuting a good judge who expressed his personal opinion in matters not before his court (an unconstitutional action from which it eventually had to back down) and by failing, on the other hand, to sanction a judge who has been shown to have accepted money from a therapeutic program to which he assigned almost every offender he ordered placed on probation.

Even non-lawyer citizens who complain about a judge to the Judicial Discipline commission are warned that they must not speak publicly about the complaint they have filed. Complaints are investigated in secret, and hearings are held in secret. The public never knows about complaints unless a judge is reprimanded or removed from the bench.

One judge who disapproves of all this secrecy and repression within the legal profession described the situation as “cozy,” and I’m afraid that’s a good word for it. In my view, judges here have created a closed, cozy, and self-protective system that places them above the law, in that they believe the First Amendment does not apply to them.

‘No reasonable jury…’

The honest-to-God, simple question that looms in the case of the WM3 is whether anyone truly believes at this point that if Damien Echols, Jason Baldwin and Jessie Misskelley Jr. were placed on trial today, a reasonable jury would find them guilty. It is a moral question that now confronts the Arkansas Supreme Court, similar, in my mind, to the moral question that confronted Gov. Orval Faubus just over 50 years ago, when he closed Little Rock’s Central High School (above) rather than allow it to be desegregated. Faubus used his authority to perform a shameful act, and Arkansas was tarred with that decision for decades to come. At the time of Little Rock’s desegregation crisis, there were many in the community urging not only decency but reason. Faubus allowed his political ambitions to drown out those reasonable voices. So far, the case of the WM3 has followed a similar course. In their trials, just as in Little Rock 51 years ago, hysteria was harnessed to political purposes, and mean impulses prevailed. Now is the time for this state’s high court to put an end to the misuse of law that this case represents. Now is the time for one court in this state to finally require local officials to give Echols, Baldwin and Misskelley the fair trials the never received or set them free. Now is the time to address the injustice that has been done to Christopher Byers, Michael Moore and Stevie Branch by conducting a real investigation into their murders.

Hmmm….

“I don’t trust a man who uses the word evil eighteen times in ten minutes. If you’re half evil, nothing soothes you more than to think the person you are opposed to is totally evil.” —Norman Mailer, author (1923-2007)

‘Negative evidence’ should cut both ways

In the case of Damien Echols, at least, the Arkansas judiciary is facing its last opportunity to do something right. If history is any guide, we should expect that it will fail.

Judge David Burnett above stayed true to form, and now the Arkansas Supreme Court will be asked to consider whether, when considered with the other evidence brought against Echols, new DNA findings would likely be compelling enough to result in an acquittal if he were granted a new trial.

First, one has to ask: What other evidence? What evidence was ever presented against Echols that even connected him to the murders, let alone warranted a sentence of death?

The new DNA findings are more nothing, more absence of evidence linking him to the crime. Yet the state argues that that very absence, rather than eliminate him as a suspect, as it should have in the first place, does not prove his actual innocence.

Lawyers for Echols will do battle, as they must, using the technicalities of the law. But a larger question faces us Arkansans. How flimsy a case are we willing to accept in support of an execution?

The state’s argument for why Echols should be executed reads like an academic debate: all practiced and punctuated, yet as cold-blooded as Pontius Pilate, doing his bureaucratic best. It takes a smooth operator, and maybe one with with ice in his veins, to apply the principles of law to the case of the WM3 and conclude that the evidence against them was sound. It takes an employee, a cog in the machinery of death, to argue that inconclusive DNA evidence in a case that was spurious at best should do nothing but hurry the date when the state can put Echols to death.

All this reminds me of what John Fogelman, the deputy prosecuting attorney at the Echols-Baldwin trial, said in his opening statement to the jury: “I want to tell you in advance, there’s going to be some—there’s going to be a lot of testimony from the Arkansas Crime Laboratory. And some of this evidence is going to be what we call, I guess you call it ‘negative evidence.’ It doesn’t really show a connection to anybody. … For instance, there will be proof, like on the bicycles, there aren’t any fingerprints; on some things in the kids’ pockets, no fingerprints. Things like that. And you may wonder why we’re putting on evidence of a negative, but we’ll explain that to you later.”

Neither Fogelman nor Brent Davis, the other prosecutor, ever did explain why most of the evidence they presented against Damien Echols and Jason Baldwin was “negative.” And since that trial, many reasonable people have indeed wondered why prosecutors would bring a case at all, let alone one seeking the death penalty, in which most of the evidence they had to present was what Fogelman himself termed “negative. ”

If negative or inconclusive DNA evidence is not enough to exonerate on appeal, a trial that, by the prosecutor’s own admission, relied heavily on “negative evidence” should not have been enough to convict.

But, for a jury, it was. And so far, that “negative evidence” has been enough for the Arkansas Supreme Court. Now, faced with even more “negative evidence” linking Baldwin, Echols, and Misskelley to the murders, Arkansas prosecutors remain hell bent on making something—an execution—out of nothing.

Secret affidavit in Echols/Baldwin case hides a bombshell

It would be big news if a former Arkansas prosecuting attorney were to publicly admit that he has known for the past 14 years of serious misconduct by jury foreman Kent Arnold (shown here) that tainted the trial of Damien Echols and Jason Baldwin—a trial that ended with Echols being sentenced to death and Baldwin to life in prison.

Such an acknowledgement would almost certainly compel Circuit Judge David Burnett, who officiated at the trial, to order that the two be retried. It would also call into question the ethics of an attorney who would allow such a travesty to occur—and to continue for 14 years—without notifying proper officials.

Yet, in a brief filed in Burnett’s court this month, attorneys for Echols claimed that eight weeks ago, “a prominent Arkansas attorney” made exactly such an admission, and that it was filed in Burnett’s court on May 30 in the form of a sworn affidavit. Burnett ordered the affidavit sealed, making it unavailable to reporters and to the general public, which explains why hardly anyone has heard of it.

The seal was purportedly to protect the identity of Arnold, the juror named in the affidavit. When Echols and Baldwin were tried, Burnett ordered the jurors’ identities kept secret. When the Memphis Commercial Appeal challenged that ruling before the Arkansas Supreme Court, the state’s high court issued an “emphatic” ruling that Burnett’s order hiding jurors’ identities was not “valid.”

Nevertheless, because of Burnett’s secrecy ruling, attorneys for Echols were careful in their latest filing to avoid naming either Arnold or the attorney who allegedly discussed the trial while it was in progress. In a further measure of secrecy, Burnett has placed a gag order on all attorneys representing Echols, Baldwin, and Jessie Misskelley, Jr., their co-defendant in the case.

Despite Burnett’s effort to hide the identity of jurors, the name of the juror who figures in the Echols’s latest appeal is known, and it was Arnold himself who brought to light his contact with the attorney in question. In an interview with the Arkansas Democrat-Gazette
published on June 11, 2008, Arnold was quoted as saying that he may have called an attorney and “asked questions about procedures during the trial.”

Such discussions by jurors are expressly forbidden, as Arnold and the other jurors had been warned by Burnett in court, and as any lawyer—especially a former prosecutor—should have known.

In their brief, Echols’s attorneys said they had not seen the sealed affidavit, but had “received information” as to its contents.

According to Echols’s attorneys:

> Arnold, who is identified only as “Juror Number Four,” was in contact with the attorney over matters pertaining to a relative and to Arnold’s real estate business.

> Arnold “informed the attorney that he wanted to be selected as a juror” and that he “did not wish to answer any questions by the court or counsel that might reveal nformation or attitudes on his part that might lead to his being struck from the jury pool.”

> While evidence was still being presented, Arnold “expressed to the attorney the opinion that most jurors were prepared to convict before the trial was over, but that a few jurors still had to be convinced.”

> Arnold “was surprised that some of the jurors had been unaware of the Misskelley confession, but there had been some reference to the confession during courtoom proceedings, and that reference had helped the majority who had known of the confession in its effort to convince the others of the inadmissible confession’s existence.”

> During one conversation, Arnold “told the attorney the evidence was to close the next day; that the prosecution had presented a weak case; and that the prosecution had better present something powerful the next day or it would be up to [him] to secure a conviction.”

> Following the verdicts, when Judge Burnett asked the jurors if they could give him their assurances “that there has been no contacts from outside, the family, media, or anyone else, that would in any influence your findings,” Arnold “falsely assured the court that he had not engaged in misconduct.”

According to the recent filing by Echols, the attorney who engaged in these discussions with Arnold did not disclose them, purportedly because he believed they were protected by attorney-client privilege. However, around the time that Arnold gave his interview to the Democrat-Gazette, in which he mentioned that he may have spoken with an attorney during the trial, the attorney sought counsel for himself in the matter. The attorney he contacted advised him that the information was not subject to a claim of attorney-client privilege, whereupon the attorney who had been in contact with Arnold filed his affidavit in Burnett’s court.

What Burnett will do with this information is anybody’s guess. He has said that he may rule in early September on whether to grant Echols and Baldwin a new trial. He also left open the possibility that he would rule later, after three weeks of hearings that have been scheduled for September.

Whenever Burnett’s ruling comes, and whatever it is, the allegations made by Echols’s lawyers remain grave. The name of the lawyer in question should be disclosed. It is time for the cloak of secrecy that has shrouded this case to be lifted.

Reason prevails–but not in Arkansas

The cases bear remarkable similarities: A man who was a teenager at the time, convicted of a murder and sexual mutilation, without a piece of physical evidence tying him to the crime. The defendant’s drawings used against him at trial. Allegations that a public official lied under oath and failed to turn over to the defense crucial evidence that could have changed the verdict. Years spent in prison. Tireless supporters who believed that justice had not been served. New DNA tests. And, finally, evidence that pointed, not to the convicted man, but to someone else who was close to the victim.

Supporters of Damien Echols, Jason Baldwin and Jessie Misskelley will recognize those aspects of the case that has kept them in prison for the past 15 years. The other case is that of a Colorado man, Tim Masters, shown here with one of his lawyers. Fortunately for Masters, this is where the similarity between his case and that of the WM3 ends. That is because when prosecutors in Colorado were faced with the highly problematic conviction that had been won against Masters plus the new DNA evidence that pointed to someone else, they took the decent and logical step of asking a judge to release Masters from prison.

The judge agreed, and last January, Masters left the prison where he had been held for the past nine years. Prosecutors said they would then turn their attention to the suspect whose DNA was found on the victim. An investigation was also begun into allegations of official misconduct by the lead police investigator in the case and two former prosecutors who won the conviction against Masters. (Read more about the Masters case here)

What a shame that Arkansas officials have not seen fit to take similar reasonable action in the case of the WM3. Prosecuting Attorney Brent Davis, who won the convictions of Echols, Baldwin, and Misskelley, still insists that those convictions were fair, despite innumerable flaws in the case—and now, even despite DNA evidence that points to different suspects. Arkansas’s attorney general, Dustin McDaniel, is equally dug-in.

Recent laboratory results from evidence collected at crime scene where three West Memphis children were found murdered failed to tie any of the three convicted men to the murders. Instead, two hairs that were collected at the scene were found to belong to the stepfather of one of the victims and a friend of that stepfather, who was with him on the night the children disappeared.

It would not have taken much beyond a quotient of courage for Davis and McDaniel to do what the prosecutors in Colorado did: admit that their case had fallen apart and ask a judge to allow the convicted men to be freed from prison. Instead, they bowed up and responded by claiming that Echols, whose case was at bar, must prove his “actual innocence.”

Never mind that there is still no evidence linking the WM3 to the murders, while there is DNA that links someone else to the very knots that bound the boys. “Those unremarkable results do not (and cannot) demonstrate [the convicted men’s] actual innocence,” state and local prosecutors argued in court documents earlier this month.

The American historian James Harvey Robinson wrote: “Most of our so-called reasoning consists in finding arguments for going on believing as we already do.” That appears not to be the case in Colorado, but sadly, it could be the motto of a number of Arkansas officials.

A rare court ruling; but the perp’s still working in the courthouse

Dan Harmon, the former prosecuting attorney whose deceit lurks at the heart of my book, “The Boys on the Tracks,” has spent his time in prison for racketeering and conspiracy. When he first returned to his home in Benton, Arkansas, he got a job working an early shift as a cook at a local Waffle House. But then some of his cronies from the old days, when his was the biggest swagger in the county, apparently took pity on him. Harmon was given a less hectic job in-putting data at the county clerk’s office in the courthouse.

A few weeks ago he was called to testify in an appeal brought by Raymond Sanders, a man whom Harmon had prosecuted for murder and who’d been sentenced to die for the crime. The attorney who represneted Sanders at the time of his trial was William Murphy, a lawyer who was later convicted with Harmon of running a local drug racket.

In Sanders’s recent petition, he told the court that, prior to his trial, Harmon had made a deal with a key witness—a deal that was not disclosed at his trial. Sure enough, when Harmon was called to testify, he acknowledged that the deal had been made and had been kept secret.

Last week, the Arkansas Supreme Court issued a highly unusual ruling allowing Sanders to proceed with a petition for a writ of error coram nobis on the claim that he was denied due process at his trial. A lower court will now have to decide whether he will get a new trial.

And Harmon? Yes, he served his time on the federal charges of conspiracy and racketeering, and that should be the end of that. But what about crimes like this that he committed while in office? Harmon was a very persuasive prosecutor. He put many people in prison, some of whom are still there for drug crimes that were less severe than the ones for which he was prosecuted.

How many other guilty verdicts did he win with the help of undisclosed deals? And why is this person who has so disgraced the law being allowed to work in the courthouse?

It is rare for states to prosecute prosecutors, when cases of prosecutorial misconduct are proven. That needs to change.

In Saline County, Arkansas, the change needs to start at an even more basic point. The prosecutor who engaged in rampant misconduct should not be rewarded with a job in the very institution he so corrupted.

So long as he is there, residents of Saline County, and indeed the state of Arkansas, can rightly feel that court officials feel no need to attempt even the appearance of propriety.

Crittenden County’s history of injustice examined in Arkansas Times

Check out the cover story in this week’s Arkansas Times. It arises from the anguish and controversy surrounding the shooting of 12-year-old DeAunta Farrow (above) by a West Memphis policeman last June. The officer, who is white, claimed that DeAunta, who was black, had a toy gun, which the policeman mistook for a real one. Whether such a gun actually existed remains in dispute. What is not disputable, however, is how clearly the tragedy has revealed the depth of the divide that separates most blacks and whites in Crittenden County.

The article in the Times traces the county’s saga of racial injustice back a century and a half. For the most part, it’s an ugly story. One episode involves Julian Fogleman, a relative of John Fogelman, who in more recent times served as an assistant prosecutor at the trials of the West Memphis Three. In 1963, Julian Fogelman was an assistant prosecuting attorney, when Arthur Lee Anderson, an unarmed, black, 16-year-old boy, was shot in the back by a man who believed the boy had raped his daughter. According to the article by Grif Stockley:

“A coroner’s jury composed of 19 white men took testimony the next day and concluded that the shooting had been justified under Arkansas law. Julian Fogleman … closed the investigation and stated, “We think we have brought all the witnesses before the coroner’s jury and exposed all the facts. We don’t think the decision was wrong and don’t plan to go further with it.” Stockley also noted that, “according to the coroner’s report, Anderson did not rape or physically injure the girl.” And he added, “One would have to be from another planet to believe that if Anderson had been white he would have been chased down and shot from behind.” I would add that it defies the imagination to think that, if Anderson had been white, a prosecutor would have opted “not to go further” with an investigation.

Sadly, it is part of our heritage in this state—and in this country—that race and class converge. My own view is that color is often a diversion from the real issue, which is power—and the desire to maintain it at all costs. In east Arkansas, power has been in the hands of wealthy white people for a long time. Blacks and poor white people have been the powerless. This is where I believe this week’s story in the Arkansas Times informs the case of the West Memphis Three. Damien, Jason and Jessie are white, but more importantly, they were also poor, and they came up against a power establishment that needed a solution to an unsolved triple-murder case, and needed one quick, lest its authority in any way be weakened. By now, all levels of state government have joined in on the perceived need to support the verdicts. But, as this nation’s civil rights struggle has taught us, just because officials dig in their heels does not make their stance correct.