Attorneys list 11 points in appeal to state supreme court for a new Rule 37 hearing.
[private]Jeff Rosenzweig, an attorney for Jessie Misskelley, Jr., filed an appeal on Friday with the Arkansas Supreme Court in which he argued that Judge David Burnett violated the U.S. Constitution, the Arkansas Constitution and the Arkansas Code of Judicial Conduct by continuing to rule on Misskelley’s case, even though Burnett was an announced candidate for a political office and had filed a professional complaint against one of Misskelley’s witnesses.
“For this court to hold that a judge has no requirement to recuse when he or she has declared himself (or herself) to be a candidate for a partisan office would be an awful precedent,” Rosenzweig wrote. “This would repoliticize the judicial system in a way that the Code of Judicial Conduct and Amendment 80 [to the state constitution] have striven to avoid.”
The appeal asks the state’s high court to order a new Rule 37 hearing for Misskelley because Burnett’s announced intention to run for a seat in the Arkansas Senate, which he later won, was “contrary to due process guarantees” of the nation’s 14th Amendment as well as “the spirit, if not the letter” of Arkansas’s Amendment 80, which abolished partisan judicial elections.
“Judge Burnett had the right to politick and run for partisan legislative office;” the appeal notes, “what he did not have was the right to sit on this case, over the objections of a party, while politicking and running.” Rosenzweig specifically asked the court to clarify “the impact of Amendment 80’s ban on partisan judicial activity” as it relates to judicial recusal.
He also argued that Burnett should have recused from Misskelley’s case because the judge had filed a complaint against Dan Stidham, who had represented Misskelley at trial. Stidham was later elected a circuit judge and when Misskelley filed his Rule 37 Petition, alleging that his trial lawyer had been ineffective, Stidham testified that he agreed with that assessment.
It is now known, however, that at some point, Burnett filed a judicial misconduct complaint against Stidham with the state’s Judicial Discipline and Disability Commission. Because such complaints are not open to the public, lawyers for Misskelley filed a motion to obtain a copy, but Burnett denied that motion.
The judicial discipline commission dismissed Burnett’s complaint, but, according to the recent appeal, the commission’s dismissal “indicates that the thrust of Judge Burnett’s complaint focused on Stidham’s July 2003 comments to the press regarding the 1993-94 Misskelley trial,” specifically an article in which “Stidham maintained his client’s innocence and reiterated a number of facts from the trial that were a matter of public record.”
The current appeal notes that “Judge Burnett’s unsubstantiated complaint against Stidham creates the appearance of bias such that a reasonable person might question his ability to impartially hear and weigh Stidham’s testimony.” It continued: “The judicial proceedings in this case are particularly susceptible to creating an appearance of impropriety given the public’s intense exposure to the case.”
In addition, the appeal argues, Burnett was Stidham’s “immediate supervisor” in the district where the two judges practice. Rosenzweig wrote that, although Burnett also should have disqualified himself from Misskelley’s case, “because of the supervisory relationship” between himself and Stidham, Burnett instead heard the petition and issued an opinion that “rejected Stidham’s confessions of error essentially in toto and accused him of dissembling.”
Rosenzweig cited several instances when attorneys for Misskelley asked Burnett to recuse, all of which were denied. Attached to two of the motions were newspaper articles—an interview in the Arkansas Democrat-Gazette, an interview in the Jonesboro Sun, and a column by John Brummett—in which Burnett was quoted discussing the West Memphis case, criticizing media coverage of it, and stating that he was “definitely” running for the Senate.
The appeal notes that the comments by Judge Burnett “evinced a bias and/or the appearance of bias, as well as unseemliness when defense counsel were under Judge Burnett’s gag order.”
Included in the appeal is part of the transcript from a hearing before Burnett at which one of the newspaper articles mentioning Burnett’s candidacy was discussed. Rosenzweig asked Burnett to recuse. When Burnett asked for the state’s position, David Raupp, of the attorney general’s office, said, “We chose recusal to rest on the conscience of the court.”
Burnett then observed: “I guess you’ve got a legal argument, but I certainly don’t feel any compulsion to recuse the case. I mean, frankly, I’d love to drop it in somebody’s lap, but I feel like it’s my burden to bear. I’m the one that tried the case originally; I’m the one that has the familiarity with a case that’s been going on for 15 or 16 years, and I think it’s appropriate that I finish it.”
When Rosenzweig again stated his concerns relating to Misskelley’s “constitutional rights of due process” due to the judge’s candidacy “for a partisan political office,” Burnett asked: “And what would that have to do with it?”
Rosenzweig replied: “Because, because, you are, as any candidate would be who is wanting to appeal to the votes of at least the majority of his electorate, which is a totally different motivation from attempting to apply the law. And that’s why certain matters are regarded as implied or structural bias … just as in the same way you can’t sit on your first cousin’s case, because even though you may not have talked to your first cousin for a hundred years, you can’t do it because the law says there are certain structures (sic). And it’s our position this would be one of those strictures.”
Burnett responded: Well, I don’t have any biases, and your motion is denied. I’m going to hear it through to the end.”
Misskelley’s latest appeal raises 10 other points for the supreme court to consider. One is that Stidham, his trial lawyer, failed to “properly raise and preserve” Arkansas’s rule that “when a law enforcement officer requests someone to accompany him to the police station, he shall make it clear that there is no legal obligation to comply with such a request.” Had Stidham properly raised Rule 2.3, as it is known, the action, according to the appeal, “would have resulted in automatic suppression of Misskelley’s statements to police.”
Other points include criticisms that Stidham: “failed to properly handle the false confession issue;” failed to “utilize a forensic pathologist;” failed to properly challenge the fiber, serology and DNA evidence; failed “to object to improper argument and/or prosecutorial misconduct during closing argument;” failed to investigate; and “failed to impeach Victoria Hutcheson.”