Judging Burnett 

Since 1994, when he officiated at the trials of Jessie Misskelley Jr., Damien Echols and Jason Baldwin, Judge David Burnett has had several opportunities to make further rulings in their cases.

Some of the petitions he heard concerned new DNA test results, others focused on the inmates' arguments that they had inadequate counsel at their trials.

Burnett, of Osceola, denied them all. He handed down some of his rulings even after retiring from the bench.

Now, as Burnett campaigns for a seat in the Arkansas Senate, from District 15, he too faces tough questions about his conduct in that long, strung-out case.

One exhibit submitted to Burnett last year may prove particularly potent. That is an affidavit by Little Rock attorney Lloyd

Warford in which Warford states that Kent Arnold, the jury foreman at the Echols-Baldwin trials, disobeyed Burnett's order not to discuss the case outside of court.

Warford also claims that the foreman told him that he persuaded the jury to consider information that the prosecutors were not allowed to introduce.

Burnett sealed Warford's affidavit and took no action on it. It remained sealed until recently, when I was allowed to view it at the Arkansas Supreme Court.

In the affidavit, Warford said he had been hired by Kent Arnold to represent Arnold's brother, who stood accused of raping his 4-year-old daughter. At about the same time, Kent Arnold was called as a potential juror for the trial of Echols and Baldwin.

Warford wrote that he doubted Arnold would be selected as a juror because Arnold had a relative facing prosecution, he clearly “knew way too much about the case,” and “he seemed to have made up his mind the defendants were guilty.” According to Warford, Arnold once told him, “All you had to do to know that Echols was a devil worshiper was to look in his eyes and you knew he was evil.”

Warford said he was stunned, therefore, to hear that Arnold had been selected as a juror and later, foreman of the jury. When he expressed his surprise, he said, Arnold “laughed ... and made a joke about the stupid lawyers and judges not asking specific questions.”

Warford said he told Arnold that “we could not talk about the case until it was over, and he agreed,” but that Arnold continued to talk about the case. Warford said Arnold was particularly upset that prosecutors had not introduced Jessie Misskelley's confession as evidence against Echols and Baldwin. (As explained in the main article, they were constitutionally barred from doing so.)

“Eventually,” Warford wrote, “Kent said this prosecutor has not done his job and that if the prosecution didn't come up with something powerful the next day, there was probably going to be an acquittal. At one point, I distinctly remember him saying, ‘If anyone is going to convince this jury to convict, it is going to have to be me.' ”

During the trial, a police officer did, in fact, allude to “the statement of Jessie Misskelley.” Defense lawyers immediately moved for a mistrial, but Burnett denied the motion. The judge cautioned the jurors to disregard the police officer's statement.

“Kent told me if the confession had not been mentioned in court, then he might not have been able to convince the swing jurors to convict,” Warford said in his affidavit. “He said several times that he could not believe how many jurors had not been aware of Misskelley's confession until it was mentioned in court.”

Echols' final state appeal is now before the Arkansas Supreme Court. Among its exhibits are notes and other records jurors made during their deliberations. All contain reference to Jessie Misskelley's inadmissable confession.

Burnett also dismissed as unimportant results of new laboratory tests on evidence from the crime scene that found no DNA from any of the defendants. He was unimpressed by evidence that a hair from the stepfather of one of the victims was found in the bindings on one of the other boys.

And he was not troubled by the testimony of prominent forensic pathologists who concluded that marks attributed to a knife attack, which prosecutors claimed was part of a satanic ritual, were actually inflicted after death, by turtles and other animals in the stream where the bodies were found.

If the high court refuses to grant Echols a new trial, because he was sentenced to death, he will be allowed to appeal to a U.S. district court. Warford's affidavit and the jurors' notes showing that they improperly considered Misskelley's confession will rank high among the issues presented.

Ordinarily, if the state Supreme Court denied their final appeals, Baldwin and Misskelley would not be eligible to press their case in federal court. But Judge Burnett may have given them a rare opportunity to do so.

That is because Burnett ruled on their appeals after he had retired from the bench (which is accepted) and after he'd
announced his intention to run for the state legislature, the propriety of which is questionable.

Attorneys for Baldwin and Misskelley complained to the Supreme Court that Burnett's actions constituted an improper mixing of roles, but the high court did not intervene to stop him. And more appeals lie ahead.

As a result, whether Burnett wins election to the state Senate or not, his conduct as a judge will be scrutinized for years to come. Indeed, that scrutiny has already begun.

In a December 2009 article in the Arkansas Law Review, David S. Miller examined Burnett's denial of Echols' appeal for a new trial, under a statute passed by the legislature in 2001. That law provided a way for persons convicted of a crime to bring before a court new evidence produced by testing methods that were not available at the time of his trial.

Mitchell wrote that Burnett's interpretation of the statute “eviscerated its purpose” and thereby “failed to meet the Arkansas Legislature's goal of accounting for the ability of new technology to accomplish the mission of criminal law — to punish the guilty and exonerate the innocent.”


From the ArkTimes store


Showing 1-1 of 1

Add a comment

Subscribe to this thread:
Showing 1-1 of 1

Add a comment

More by Mara Leveritt

  • Illustrating the governor's message

    Our prisons burst with disparities. Eliminating them will take courage. Let's see if the Arkansas Parole Board can heed the governor's message with one matter currently before it.
    • Dec 3, 2015
  • Mara Leveritt offers governor a symbol for sentencing reform

    Gov. Asa Hutchinson said the state needs to get serious about sentencing reform if it is to cope with its exploding prison population.
    • Dec 1, 2015
  • Parole board hears arguments on parole for Tim Howard

    The hard-fought battle over the fate of former death-row inmate Tim Howard intensified on Thursday when John Felts, chairman of the Arkansas Parole Board, held a hearing at Cummins prison to consider Howard’s eligibility for parole.
    • Oct 9, 2015
  • More »

Most Shared

  • Executionpalooza

    Appearances count. I was struck by a single sentence over the weekend in a full page of coverage in The New York Times devoted to the killing spree in Arkansas, beginning with a front-page account of the recent flurry of legal filings on pending executions and continuing inside with an interview with Damien Echols, the former death row inmate.
  • Art bull

    "God, I hate art," my late friend The Doctor used to say.
  • Not justice

    The strongest, most enduring calls for the death penalty come from those who feel deeply the moral righteousness of "eye-for-an-eye" justice, or retribution. From the depths of pain and the heights of moral offense comes the cry, "The suffering you cause is the suffering you shall receive!" From the true moral insight that punishment should fit the crime, cool logic concludes, "Killers should be killed." Yet I say: retribution yes; death penalty no.
  • Judge Griffen writes about morality, Christian values and executions

    Pulaski County Circuit Judge Wendell Griffen, who blogs at Justice is a verb!, sends along a new post this morning.
  • The Ledell Lee execution thread

    Arkansas Times contributor Jacob Rosenberg is at the Cummins Unit in Grady filing dispatches tonight in advance of the expected execution of Ledell Lee, who was sentenced to death for the Feb. 9, 1993, murder of Debra Reese, 26, who was beaten to death in the bedroom of her home in Jacksonville.

Latest in Top Stories

  • Good for the soul

    The return of Say McIntosh, restaurateur
    • Jun 1, 2010
  • Robocalls are illegal

    Robocalls -- recorded messages sent to thousands of phone numbers -- are a fact of life in political campaigns. The public doesn't like them much, judging by the gripes about them, but campaign managers and politicians still believe in their utility.
    • May 31, 2010
  • Riverfest winds down

    With Cedric Burnside and Lightnin' Malcolm, Steve Miller Band, Robert Cray, Ludacris and more performing.
    • May 30, 2010
  • More »

Visit Arkansas

Haralson, Smith named to Arkansas Tourism Hall of Fame

Haralson, Smith named to Arkansas Tourism Hall of Fame

Chuck Haralson and Ken Smith were inducted into the Arkansas Tourism Hall of Fame during the 43rd annual Governor’s Conference on Tourism

Event Calendar

« »


2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29

© 2017 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation