Arkansas Blog: Supreme Court race is on

Circuit Judge John Fogleman of Marion had a press event today to formalize his previously announced candidacy for a vacancy on the state Supreme Court, a race for which Appeals Court Judge Courtney Henry earlier had announced.

This one could be interesting.

Several are already grumbling about Henry's name-dropping -- David Pryor, etc. -- in her announcement.

But that's nothing like having West Memphis Three protesters turn up to ambush your news conference, as Fogleman, a prosecutor in the case, experienced today. Blogger Jason Tolbert has some video. And Rod Bryan films the walkout here. On down in the jump is a release from a group attacking Fogleman's record, primarily on account of the WM3 case.

Mara Leveritt has written about Fogleman's role as a key deputy prosecutor in the WM3 case. And he could find himself, if he wins, on a Supreme Court hearing the ongoing appeals. He says he wouldn't take part.

But a lesser, if stil important, controversy may be brewing more immediately at the court. Leveritt says the full record of the current appeal of the WM3 convictions is under seal at the Supreme Court, the sealing done by the court clerk on account of a seal order placed on a limited number of the documents in the case. (These apparently are two affidavits, one of which went missing in the Jonesboro judge's office for a time, including one by a lawyer who's testified to improper jury conduct in the case.)

Secrecy for any part of this world-infamous case would seem to be a bad idea, but the Northeast Arkansas legal network, represented now by Jonesboro native Dustin McDaniel, attorney general, has never taken kindly to criticism of the rush to judgment on the slimmest of evidence against weird teens. More to come on this.

UPDATE: I spoke with Judge Fogleman who said the ethical canons placed limits on what he could say about the case. Asked if he still believed the WM3 was fairly prosecuted and correctly decided, he responded: "Based on the case that was presented and that I prosecuted, the answer is yes."

But he said his role ended 15 years ago and he had no knowledge of current controversies, including potential new evidence about jury tampering and Mara's complaint about sealing of records. "In general," he said, "courts should be free and open."

As to today's protesters, he said, "They have a constitutional right to free expression and I respect that right. It didn't excite me, but they did it."

CRITICS' NEWS RELEASE

Little Rock, AR, June 9, 2009) Judge John Fogelman, the lead prosecutor in the conviction of Damien Echols, Jason Baldwin and Jessie Misskelley, who today announced his intention to seek a seat on the Arkansas Supreme Court, is unfit for that position, according to Arkansas Take Action, a group seeking to overturn their wrongful convictions. Many believe the actions of Fogelman, as lead prosecutor, were a blatant abuse of power that led to the wrongful convictions of the three teens, including Damien Echols’s death sentence.

The Center for Public Integrity, a D.C. based investigative journalism think tank, conducted a national study of criminal appeals from 1970 to the present, in which they identified 54 Arkansas cases where the defendants made prosecutorial error or misconduct accusations. Out of those 54 cases, prosecutor Fogelman was involved in at least three. See http://projects.publicintegrity.org/PM/states.aspx?st=AR

According to the 2003 report, “Former Crittenden County deputy prosecuting attorney John Fogelman took part in at least three of the 54 cases. In one, the court found his conduct to be so prejudicial as to require a new trial. In another, a dissenting judge would have reversed a murder conviction because of Fogelman's tactics.”

The WM3 case is Fogelman’s most well known. Fogelman’s actions during the trials, as well as highly questionable tactics in a failed effort to manipulate Jessie Misskelley into testifying against Damien Echols and Jason Baldwin, were outlined in motions to overturn their convictions. “Echols and Baldwin alleged, among other things, that Fogelman abused his subpoena power, failed to disclose evidence, conducted improper communications with the judge and made an improper display by cutting a grapefruit with a knife during closing arguments,” the Center for Public Integrity report noted.

During the closing arguments for the Echols/Baldwin trial, Fogelman engaged in outrageous actions in front of the jury. He brandished a knife that could not be linked forensically to either the victims or the accused, and made crude cuts into a grapefruit he held in his hands. The experiment was supposed to show the jury that the cuts made by that knife on the grapefruit were consistent with the cuts on the victims. Not only was this false, but leading forensic experts have now confirmed that the injuries Fogelman attributed to knife marks were actually post-mortem injuries caused by animal predation.

Fogelman also engaged in prosecutorial misconduct in a failed effort to convince Jessie Misskelley to testify against Damien Echols and Jason Baldwin, whose trial followed Misskelley’s. Fogelman and other officers of the court repeatedly tried to convince Misskelley to testify in the Echols/Baldwin trial and introduce the confession that he had previously repudiated. Numerous attempts were made over a period of weeks prior to the second trial to secure incriminating statements from Misskelley. The discussions with Misskelley were held without the consent of his lawyer and without any legal representation. “This impropriety represents a conscious, calculated and ongoing attempt by the Prosecution to interfere with the attorney/client relationship between Jessie Lloyd Misskelley, Jr. and his court appointed attorneys and to circumvent Jessie Lloyd Misskelley, Jr's. Fifth and Sixth Amendment rights as guaranteed him by the U.S. Constitution,” stated Misskelley’s attorney Dan Stidham in a motion to suppress.

Brent Peterson, spokesman for ATA, stated, “During the 1986 murder case of Marian Mullins, Fogelman did not disclose to the defense that the state’s main witness changed his testimony more than once. Fogelman would decide what was important to his cases and ignore or neglect the rest of the information, even if it was exculpatory. To elect
such a man, who tailors the law and its procedures to his own advantage for a State Supreme Court Judge position, would be like his grapefruit experiment - ridiculous and completely untrustworthy.”

For more information, see www.WM3.org and www.Freewestmemphis3.org

FOGLEMAN NEWS RELEASE

Surrounded by family, friends and colleagues Circuit Judge John Fogleman announced his candidacy for the Arkansas Supreme Court Tuesday. The judge began his campaign kick off in his hometown of Marion before departing on a two day tour throughout Arkansas, visiting Jonesboro, Little Rock, and Fayetteville, where he talked to voters about how his experience best qualifies him to sit on the state's highest court.

"I grew up around the law," said Fogleman. "I remember people coming to our house when I was a child to see my father because he was an attorney and they needed help. I saw first hand the good the law could do. I worked on my uncle's campaign for the Arkansas Supreme Court, which taught me how important the work of the court was to people in our community. I have worked my entire career to uphold the law. I have sought out positions that would teach me all aspects of law and give me the well-rounded experience necessary to take on the diverse types of cases heard by the Supreme Court."

Fogleman has served as Circuit Judge in Arkansas's Second Judicial District for 14 years. Prior to that, he served as a deputy prosecutor, private practice attorney and city attorney. He tried more than 120 cases before a jury as an attorney and has presided over hundreds more as a judge. This wealth of experience has earned him the reputation as a fair jurist whose balanced background allows him to make strong legal decisions.

"I worked with Judge Fogleman when we were both Circuit Judges, and I can say he truly understands all sides of the law," said W.H. 'Dub' Arnold, retired Chief Justice of the Arkansas Supreme Court. "You can see how his many years of practicing law as well as his many years on the bench make him an evenhanded, respected judge. Judge Fogleman is who we need on the Arkansas Supreme Court."

The Arkansas Trial Lawyers Association named Fogleman the 2008 Outstanding Trial Judge. He is on the Board of Directors of the Arkansas Judicial Council and active with the Arkansas Bar Association.

"I know that every case I hear and judgment I make will have significant consequences," said Fogleman. "I make it a point to treat everyone who comes into my courtroom with respect and apply the law fairly in every situation. Arkansans should expect no less from a Supreme Court jurist than his or her very best work on every case. That's the devoted work ethic and tested legal experience I will bring to this position."

Fogleman graduated with honors from the University of Arkansas School of Law at Fayetteville in 1981. He lives in Marion with his wife Nancy. They have two adult sons: John Jr. and Adam.

Comments

'Look into my eyes. Do you believe in the power.'

Think I will stay away from NE Ark.

Posted by: eLwood | June 9, 2009 01:40 PM

The NEA political mafia better teach Fogelman how to fire a bullet or two. Henry has shown she is a tough, no holds barred candidate. Knowing that judge races are typically blah snoozers, I predict this campaign will become heated and testy. Will make for good news copy. May be the only state race with political spice.

Posted by: mouthinfreely | June 9, 2009 01:56 PM

Courtney has mucho experienced help mouthin. She married well. Anyone running for anything should be so fortunate. She will have some clever frames and I hope she is seated. Asset to the bench. However, regarding name dropping, she doesn't have an uncle who was on the big bench.

Posted by: eLwood | June 9, 2009 02:11 PM

Mara (who has been on this travesty like white on rice) writes "key deputy prosecutor", while the 'critics' (who deserve all our gratitude for protesting against this shameful, hate filled episode) write "lead prosecutor". So, which is it?

Fogelman, the corrupt PoS, will never get more than a mouthful of expectorant from me, but I'd like to know which role he played in this abomination of justice.

Posted by: 70%er | June 9, 2009 02:38 PM

I'd rather vote for Satan himself than vote for John Fogleman.

Posted by: mypeaceofmind | June 9, 2009 03:29 PM

I am going to everything I can to defeat Fogleman. To read what he did in the WM3 case is disgusting; our only consolation is that he'll have to face God with that on his hands.

Posted by: Country Boy | June 9, 2009 03:56 PM

I don't know Courtney Henry and therefore have no opinion about her.

I do know and have known John Fogleman for a long time. In my opinion, John will be an excellent Supreme Court Justice. He has the experience, fair-mindedness, and judicial temperateness we should expect from a judge.

Posted by: Arkdude | June 9, 2009 04:25 PM

I caution people to think before they rush to judgment to support one candidate because they disagree with how the opposing candidate prosecuted one particular case. First of all, there is still time for others to join the race. Second, while I have reservations about the guilt of the WM3, I recognize that Fogleman, as the prosecutor, had a job to do, namely to secure convictions on behalf of the state. If the WM3 have been wrongly convicted, the majority of the blame lies with the authorities responsible for investigating the crime, who found their suspects and then failed to investigate the case any further.

I do not know either candidate. I have heard positives and negatives about both. I am certainly hesitant to vote for a candidate who has experience that is as limited as Judge Henry's. A few years of clerking for the court of appeals and one year as a court of appeals judge seeems to be an inadequate basis for claiming experience to sit on the state's highest court. As a lawyer, I know there is a huge difference between the types of cases the two courts decide. Judge Henry claims to have this expansive experience in appellate law - citing thousands of cases she has worked on and promoting herself as "having worked with" several judges. I think there is a difference in working with someone than working for someone.

All this to say, I hope someone else will join the race and give us a better option for our next supreme court judge.

Posted by: urbanmom | June 9, 2009 05:19 PM

Posted by: urbanmom | June 9, 2009 05:20 PM

Nope urbanmom, you think his job was to secure a conviction for the state, I and others think his job was to ensure justice was done. A conviction at all costs does not constitute justice. If Fogelman thought there was something wrong with the investigation he should have spoke up and called a halt to the travesty. Now, it's only through the actions of dedicated individuals like the 'critics' above that all of our hands aren't drenched in the blood of the 'weird' teen.

A filthy business and everybody associated with it is covered in filth, the judge, the jury, the prosecutor, the witnesses, the defense - hell the whole goddamned town of West Memphis and the gawdfersaken state of Arkansas are covered in shame.

Posted by: 70%er | June 9, 2009 05:38 PM

It's disappointing to me that someone who is a lawyer, as urbanmom says she is, would say something like this:

"I recognize that Fogleman, as the prosecutor, had a job to do, namely to secure convictions on behalf of the state. If the WM3 have been wrongly convicted, the majority of the blame lies with the authorities responsible for investigating the crime, who found their suspects and then failed to investigate the case any further."

Prosecutors have a duty, both ethical and constitutional, not to suppress evidence. I don't really know much of anything about the WM3, mostly because of lack of interest. But if it's true that Fogleman suppressed evidence, he violated the defendants' constitutional rights, as well as the ethics of our profession. The fact that a prosecutor "had a job to do" does not excuse the prosecutor from following the law. If that indeed was Prosecutor Fogleman's motivation, it reflects quite poorly on him as a lawyer and as a judge.

Posted by: Gaddis | June 9, 2009 05:42 PM

Oh, he was just following orders and doing his job. That makes it OK.

Experience and judicial temperament take a back seat to abuse of power and turning a blind eye to truth in order to secure convictions for political ends.

I'm glad he's running, because that means he'll be unemployed after the election, minimizing the further damage he'll be able to do to society.

Posted by: Country Boy | June 9, 2009 06:58 PM

Wouldn't "doing his job" as a prosecutor mean he is also required to carefully handle evidence and turn over anything exculpatory?

What happened to the man who walked into the Mr. Bojangles covered with blood and the trashbag full of soaked toilet paper they collected from the restroom? Why did they not do DNA testing on the evidence? Why not test step dad's teeth impressions before he pulled the teeth out of his head? So much went wrong here, and likely the WM30 who prosecuted the 3 won't ever admit that "mistakes were made," much less any burying of evidence. Happens every day in every state in America, and yes, it happens in AR, too.

Posted by: InLivingColor | June 9, 2009 08:37 PM

Hindsight sure is great, isn't it?

Wonder what would have happened if we had the same forensic ability in 1993 as we do today.

Posted by: Veritas Arkansas | June 9, 2009 10:18 PM

Without taking sides, let me note the duty of a defense lawyer is to defend. The duty of a prosecutor is to do justice:

"The United States wins its case whenever justice is done one of its citizens in the courts."
Inscription
US Department of Justice Building
Washington, DC

It doesn't say, "The United States is best served by prosecutors who care only about bringing every case they can and winning every case they bring" or "The United States is served whenever there is a conviction".

Posted by: John A Arkansawyer | June 9, 2009 11:17 PM

You don't need hindsight when you know you are lying and manipulating a courtroom. And that is what Fogleman has done in more than one case (http://projects.publicintegrity.org/PM/states.aspx?st=AR). When the WM3 case finally gets out of the hands of this corrupt, myopic, inbred,and embarrassing state system, and into the federal courts, do you really think it will hold water? Fogleman represents the worst of the legal profession. All the good manners and condescending remarks in the world do not make up for putting an innocent man on death row. He knew exactly what he was doing; he just wanted to win. As a result, Arkansas lost.

Posted by: Farley | June 10, 2009 10:55 AM

Arkansas Blog

Supreme Court race is on

Comments

Post a comment