Supreme Court race is on | Arkansas Blog

Tuesday, June 9, 2009

Supreme Court race is on

Posted By on Tue, Jun 9, 2009 at 1:17 PM

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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."


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
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 and


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.


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