TruTV posts my commentary on the ‘all-wrong’ case of the West Memphis Three

See it here. And, if you read it, let TruTV know what you think about the case too. (Above, victims Stevie Branch, Michael Moore and Christopher Byers.)

Above the law, Part 2

While America and the world look on, we here in Arkansas are struggling with a capricious state supreme court that increasingly has come to symbolize our tattered legal system. Here’s my latest attempt in the Arkansas Times to explain just a little bit of what the WM3—and the rest of us—are up against.

The cozy courts of Arkansas

David Perry Davis, a New Jersey lawyer and active supporter of the WM3, wrote today saying he was “trying to understand why a state with elected officials is acting so blindly to justice.” He cited the West Memphis case, and that of Tim Howard and asked my view on why such travesties happen. How is justice so terribly thwarted, he wondered, in a state that elects its judges?

I’ll tell you what I think is the biggest part of the problem.

Yes, Arkansas elects its judges, both for circuit courts, such as the one presided over by Judge David Burnett, and for the state supreme court. But it would be a mistake to think that the voters get to make an informed decision.

Arkansas lawyers, the people who know most about what goes on in our courts, are not free to express their opinions in public. They are effectively gagged by rules set down for them by the Arkansas Supreme Court.

Has anyone ever wondered why we haven’t seen Arkansas lawyers joining the chorus of criticism for the abuses that have occurred in the West Memphis case? People—including lawyers—from around the world have objected to a long list of decisions, procedures and rulings that would not have passed muster elsewhere but that have been found acceptable here in Arkansas—all without so much as a murmur from members of the Arkansas bar.

Dan Stidham, above, has been the most outspoken lawyer in this case, yet he has never felt free to speak in public as forcefully as he did in this week’s hearings in Jonesboro. Other lawyers who’ve taken the stand in the past two weeks have criticized the lack of money that was available for the defense of Damien Echols, Jason Baldwin and Jessie Misskelley, Jr., but they have been silent on that topic until their recent appearance in court.

The unspoken rule here is that lawyers can voice their objections to what happens in court in pleadings and through other official actions, but they cannot voice their objections in public without risking the loss of their license to practice law in this state.

Of course, the public might find such a rule offensive if it were written down and formally inacted. So the rule is imposed through interpretation.

The Arkansas Supreme Court has formulated its “Rules of Professional Conduct” for lawyers. Part of Rule 5 reads: “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”

In Arkansas, public criticism of judges by an attorney has been deemed a show of disrspect “for the legal system and for those who serve it,” whether the criticism was warranted or not. The state’s Committee on Professional Conduct has sanctioned lawyers who have criticized a judge’s action, regarding the criticism as a failure of the lawyer’s duty “to uphold the legal process.”

As a result, the First Amendment to the Constitution does not apply to lawyers in Arkansas who might wish to express an opinion about the worthiness of a candidate who is running for judge or a judge who is seeking re-election. Judges here are elected blindly, as their records can never be publicly attacked during campaigns by any of the lawyers who have practiced before them.

This situation does not exist in every state. Its effect in Arkansas has been to create a closed society, carefully controlled from within and not subject to the usual freedom of debate that informs other types of elections.

Theoretically, the Supreme Court weeds out bad judges itself, through its Judicial Discipline and Disability Commission. But in recent years, that commission has lost whatever credibility it might have deserved by persecuting a good judge who expressed his personal opinion in matters not before his court (an unconstitutional action from which it eventually had to back down) and by failing, on the other hand, to sanction a judge who has been shown to have accepted money from a therapeutic program to which he assigned almost every offender he ordered placed on probation.

Even non-lawyer citizens who complain about a judge to the Judicial Discipline commission are warned that they must not speak publicly about the complaint they have filed. Complaints are investigated in secret, and hearings are held in secret. The public never knows about complaints unless a judge is reprimanded or removed from the bench.

One judge who disapproves of all this secrecy and repression within the legal profession described the situation as “cozy,” and I’m afraid that’s a good word for it. In my view, judges here have created a closed, cozy, and self-protective system that places them above the law, in that they believe the First Amendment does not apply to them.

‘No reasonable jury…’

The honest-to-God, simple question that looms in the case of the WM3 is whether anyone truly believes at this point that if Damien Echols, Jason Baldwin and Jessie Misskelley Jr. were placed on trial today, a reasonable jury would find them guilty. It is a moral question that now confronts the Arkansas Supreme Court, similar, in my mind, to the moral question that confronted Gov. Orval Faubus just over 50 years ago, when he closed Little Rock’s Central High School (above) rather than allow it to be desegregated. Faubus used his authority to perform a shameful act, and Arkansas was tarred with that decision for decades to come. At the time of Little Rock’s desegregation crisis, there were many in the community urging not only decency but reason. Faubus allowed his political ambitions to drown out those reasonable voices. So far, the case of the WM3 has followed a similar course. In their trials, just as in Little Rock 51 years ago, hysteria was harnessed to political purposes, and mean impulses prevailed. Now is the time for this state’s high court to put an end to the misuse of law that this case represents. Now is the time for one court in this state to finally require local officials to give Echols, Baldwin and Misskelley the fair trials the never received or set them free. Now is the time to address the injustice that has been done to Christopher Byers, Michael Moore and Stevie Branch by conducting a real investigation into their murders.


“I don’t trust a man who uses the word evil eighteen times in ten minutes. If you’re half evil, nothing soothes you more than to think the person you are opposed to is totally evil.” —Norman Mailer, author (1923-2007)

Reason prevails–but not in Arkansas

The cases bear remarkable similarities: A man who was a teenager at the time, convicted of a murder and sexual mutilation, without a piece of physical evidence tying him to the crime. The defendant’s drawings used against him at trial. Allegations that a public official lied under oath and failed to turn over to the defense crucial evidence that could have changed the verdict. Years spent in prison. Tireless supporters who believed that justice had not been served. New DNA tests. And, finally, evidence that pointed, not to the convicted man, but to someone else who was close to the victim.

Supporters of Damien Echols, Jason Baldwin and Jessie Misskelley will recognize those aspects of the case that has kept them in prison for the past 15 years. The other case is that of a Colorado man, Tim Masters, shown here with one of his lawyers. Fortunately for Masters, this is where the similarity between his case and that of the WM3 ends. That is because when prosecutors in Colorado were faced with the highly problematic conviction that had been won against Masters plus the new DNA evidence that pointed to someone else, they took the decent and logical step of asking a judge to release Masters from prison.

The judge agreed, and last January, Masters left the prison where he had been held for the past nine years. Prosecutors said they would then turn their attention to the suspect whose DNA was found on the victim. An investigation was also begun into allegations of official misconduct by the lead police investigator in the case and two former prosecutors who won the conviction against Masters. (Read more about the Masters case here)

What a shame that Arkansas officials have not seen fit to take similar reasonable action in the case of the WM3. Prosecuting Attorney Brent Davis, who won the convictions of Echols, Baldwin, and Misskelley, still insists that those convictions were fair, despite innumerable flaws in the case—and now, even despite DNA evidence that points to different suspects. Arkansas’s attorney general, Dustin McDaniel, is equally dug-in.

Recent laboratory results from evidence collected at crime scene where three West Memphis children were found murdered failed to tie any of the three convicted men to the murders. Instead, two hairs that were collected at the scene were found to belong to the stepfather of one of the victims and a friend of that stepfather, who was with him on the night the children disappeared.

It would not have taken much beyond a quotient of courage for Davis and McDaniel to do what the prosecutors in Colorado did: admit that their case had fallen apart and ask a judge to allow the convicted men to be freed from prison. Instead, they bowed up and responded by claiming that Echols, whose case was at bar, must prove his “actual innocence.”

Never mind that there is still no evidence linking the WM3 to the murders, while there is DNA that links someone else to the very knots that bound the boys. “Those unremarkable results do not (and cannot) demonstrate [the convicted men’s] actual innocence,” state and local prosecutors argued in court documents earlier this month.

The American historian James Harvey Robinson wrote: “Most of our so-called reasoning consists in finding arguments for going on believing as we already do.” That appears not to be the case in Colorado, but sadly, it could be the motto of a number of Arkansas officials.

Crittenden County’s history of injustice examined in Arkansas Times

Check out the cover story in this week’s Arkansas Times. It arises from the anguish and controversy surrounding the shooting of 12-year-old DeAunta Farrow (above) by a West Memphis policeman last June. The officer, who is white, claimed that DeAunta, who was black, had a toy gun, which the policeman mistook for a real one. Whether such a gun actually existed remains in dispute. What is not disputable, however, is how clearly the tragedy has revealed the depth of the divide that separates most blacks and whites in Crittenden County.

The article in the Times traces the county’s saga of racial injustice back a century and a half. For the most part, it’s an ugly story. One episode involves Julian Fogleman, a relative of John Fogelman, who in more recent times served as an assistant prosecutor at the trials of the West Memphis Three. In 1963, Julian Fogelman was an assistant prosecuting attorney, when Arthur Lee Anderson, an unarmed, black, 16-year-old boy, was shot in the back by a man who believed the boy had raped his daughter. According to the article by Grif Stockley:

“A coroner’s jury composed of 19 white men took testimony the next day and concluded that the shooting had been justified under Arkansas law. Julian Fogleman … closed the investigation and stated, “We think we have brought all the witnesses before the coroner’s jury and exposed all the facts. We don’t think the decision was wrong and don’t plan to go further with it.” Stockley also noted that, “according to the coroner’s report, Anderson did not rape or physically injure the girl.” And he added, “One would have to be from another planet to believe that if Anderson had been white he would have been chased down and shot from behind.” I would add that it defies the imagination to think that, if Anderson had been white, a prosecutor would have opted “not to go further” with an investigation.

Sadly, it is part of our heritage in this state—and in this country—that race and class converge. My own view is that color is often a diversion from the real issue, which is power—and the desire to maintain it at all costs. In east Arkansas, power has been in the hands of wealthy white people for a long time. Blacks and poor white people have been the powerless. This is where I believe this week’s story in the Arkansas Times informs the case of the West Memphis Three. Damien, Jason and Jessie are white, but more importantly, they were also poor, and they came up against a power establishment that needed a solution to an unsolved triple-murder case, and needed one quick, lest its authority in any way be weakened. By now, all levels of state government have joined in on the perceived need to support the verdicts. But, as this nation’s civil rights struggle has taught us, just because officials dig in their heels does not make their stance correct.