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.