Few, if any, candidates for the Arkansas Supreme Court have faced public opposition for their prosecution of accused killers. John Fogleman, who as a deputy prosecuting attorney sought the death penalty for three teen-agers, may be the first.
Along with that opposition, he has plenty of support. Almost every lawyer I know who has appeared in Fogleman's court since he was elected a circuit judge 15 years ago holds him in high regard. In 2008, the Arkansas Trial Lawyers Association honored him as its Outstanding Trial Judge.
But for those Arkansans who oppose him ? and I am one ? the ugliness of the trials that launched his judicial career cannot be forgotten.
In 1993, three West Memphis children ? Christopher Byers, Michael Moore and Stevie Branch ? were murdered. The following year, three Crittenden County teen-agers ? Jessie Misskelley Jr., Damien Echols and Jason Baldwin ? were put on trial for the crime.
Fogleman and prosecuting attorney Brent Davis sought the death penalty for all three. Juries convicted the teen-agers, though only Echols was sentenced to death. Baldwin and Misskelley received terms of life plus 40 years in prison.
But since those trials, many Arkansans, including the parents of two of the victims, have come to believe that justice was not served ? not for the accused and not for the victims.
Fogleman prosecuted the teen-agers using circumstantial evidence that he knew, even then, was thin at best. In the years since those convictions, even the threads of evidence he was able to weave have frayed and fallen apart.
But Fogleman has no regrets. He recently told the Times, “I completely stand by every step I took in that case,”
Within weeks after winning it, the young deputy prosecutor announced his candidacy for judge in Arkansas's Second Judicial District. He erected a billboard near where the bodies of the three 8-year-old children were found. It advertised that he could “make tough decisions in tough cases.”
Now, in his race for the state Supreme Court, Fogleman relies on a website. There he says that our justice system only functions “if the people have a measure of confidence that those of us involved in the system are fair and unbiased.”
I agree with that. And that is the very reason I don't want Fogleman on our high court.
The tactics he used to win convictions of the men now known as the West Memphis Three have spawned widespread mistrust ? not just of Fogleman, but also of Judge David Burnett who allowed them (see page 13), and of our state Supreme Court, which, so far, has supported everything that has transpired in this now infamous case.
That is a harsh judgment, and I don't like making it. But history will probably judge this episode of our state's legal history even more harshly than I. Eventually, I believe, Fogleman and Burnett will be blamed for having brought a great shame on Arkansas.
Before I go further, however, I should admit that I have been mistaken about Fogleman in the past. In “Devil's Knot,” my book about the West Memphis trials, I wrote that Fogleman's father had served on the state Supreme Court, when in fact, it was his uncle. To make matters worse, I also erred in stating which of his relatives had served on the local school board.
Fogleman beat me up pretty good about those mistakes a few years ago, when he spoke about the case at the University of Arkansas at Little Rock's Bowen School of Law. And that was fair enough.
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