The matter stemmed from a Freedom of Information request I submitted to Leslie Steen, the clerk of the supreme court, for access to those appeals. In responding to my request, Steen told me that, because parts of the record were sealed, he himself had ordered the entire file to be sealed, thus my request was denied.
Steen also said that, “in an excess of caution,” he had taken the liberty of sealing the records of Jason Baldwin and Jessie Misskelley as well.
When I questioned Steen’s authority for sealing records, he replied that the members of the supreme court were aware that he did it and had never stopped him.
I wrote a column for the Arkansas Times describing the situation and my outlining my belief that Steen and the high court were flaunting Arkansas law, which grants the authority to seal records only to judges.
Following that column, on Oct. 1, 2009, the supreme court took the unusual step of ordering Burnett to “settle the record” as to which parts of the three men’s appeals were sealed and which were not. In an unsigned opinion, the justices wrote that they had been “unable to determine” this matter for themselves.
Only one judge dissented. Justice Paul Danielson pointed out that asking a circuit judge to explain what had been sealed and what hadn’t “vastly deviates from the typical procedures of this court.”
“Either the records, or portions thereof, were filed under seal at the circuit level, or they were not,” hDanielson wrote. “If the record does not indicate that certain exhibits or pleadings were filed under seal, then it seems clear they were not and are public record.”
There the matter stood until last week, when I renewed my FOI request to Steen for the records. I also asked Steen to let me know what Judge Burnett had ruled and when he’d made his ruling.
The next day, Feb. 5, Steen sent me an email that said: “We received Judge Burnett’s order today settling the records in Echols, Misskelley, and Baldwin.” He told me I could come to his office and see the records, along with Burnett’s ruling.