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.

Sincerely,

Mara Leveritt[/private]

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