Misskelley’s attorney publicly opposes ‘confession’ bill introduced by former judge, now senator, Burnett


Sen. David Burnett

In his first term as a state senator, former circuit judge David Burnett, who presided at the trials of the West Memphis Three, has introduced a bill in the Arkansas Legislature titled: “An Act Regarding Evidence and a Defendant’s Confession.”

[private]The bill would change existing Arkansas law which now states simply that a confession made by a defendant outside of court “will not warrant a conviction” unless it is “accompanied with other proof that the offense was committed.”

Burnett’s Senate Bill 684 would provide an alternative way that a confession not made in open court could result in a conviction. The proposed law would allow a conviction if the “other proof” was presented “or” the confession was “supported by substantial independent evidence which would tend to establish the trustworthiness of the confession.”

Since its introduction, Arkansas attorneys have expressed confusion about both the bill’s intent and potential impact. However, in an appearance at the capitol this week, attorney Jeff Rosenzweig, who represents Jessie Misskelley, Jr., spoke unequivocally against it.

(Though there is no evident relationship between Burnett’s bill and the West Memphis case, the Arkansas Supreme Court observed that Misskelley was convicted and sentenced to life in prison based entirely on a confession he made outside of court. That confession also served as the basis for arresting Damien Echols and Jason Baldwin and charging them with the 1993 murders of three West Memphis children.)

When asked about his testimony, Rosenzweig replied by email:

“Yes I spoke against it. I pointed out that it would remove the requirement that the prosecution prove that a crime had been committed and that the corroboration in his proposal did not even have to go to the crime. (Even they admitted that.) 

“I also pointed out  several problems with his claim that the statute was a vestige of the days of coerced confessions.  One is that although he says coercion  no longer happens, it does. This, of course, was the same week that a Chicago police officer went to prison for torturing people into confessions.

“The other is that there is  no requirement that the ‘confession’ be in writing or recorded, that one lying policeman could just claim a defendant said something and that would be enough under the statute.   If they were serious about the reliability of statements, they would require that all statements be recorded.  (Of course, this is something that law enforcement and prosecutors have resisted.)” 

Rosenzweig, one of the state’s most prominent criminal defense lawyers, added that Burnett had earlier told another defense attorney that he was not going to pursue the bill. “He reneged,” Rosenzweig wrote.

Another criminal defense attorney, who asked not to be identified, wrote that Burnett’s proposal was a “bad bill.” He elaborated that the “language ‘substantial independent evidence’ is too ambiguous and could mean the interrogator’s testimony that the confession was good.”

The Arkansas Association of Criminal Defense Lawyers opposes the bill. One of its members wrote: It “allows a conviction based solely on a ‘trustworthy’ confession, whatever the hell that is. Doing away with the need or requirement for independent corroboration. Nothing else needed to connect the defendant to the crime.”[/private]

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