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.