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Above the law, Part II 

Every now and then, the phonies in power tip their hand. That happened, for instance, when Richard Nixon tape-recorded his private conversations, a decision that later allowed the world to learn how far Nixon was from the statesman he pretended to be.

As Seymour Hersh wrote after hearing the tapes: “Pejorative words and phrases dominated... Jews were ‘kikes,' blacks were ‘niggers,' and reporters were ‘press pricks.' ”

What the Arkansas Supreme Court did last week was not nearly so outrageous. Nevertheless, the high court did tip its hand as to its character when it issued an order — that no one had requested — for no higher or necessary purpose than covering its own ass.

Here was the court's dilemma: Its own policies require that records that have not been sealed by a court order are open to the public. Yet, when I asked to see unsealed records relating to the appeals of Damien Echols, Jason Baldwin and Jessie Misskelley Jr., the men popularly known as the West Memphis Three, the court's clerk, Leslie Steen, told me that they were not available because he himself had sealed them.

Steen explained that some parts of Baldwin's appeal had been sealed by retired Circuit Judge David Burnett, and so Steen had taken it upon himself to seal the appeals of all three men in their entirety. When I objected that only courts are authorized to seal records, the clerk replied that he had been sealing records on his own volition for years, that the justices knew he did so, and that they had never objected.

I wrote a column following that conversation in which I criticized the Supreme Court for sanctioning an illegal activity. I also charged that the court was violating the Arkansas Freedom of Information Act, as well as its own administrative order regarding the availability of public records.

For a day or two after that, I allowed myself the slim hope that someone from the court would call and say, “We were sorry to read that your request was denied. That was obviously improper. You are welcome to see any records this court has that have not been sealed.”

Silly me. Not only did no call come, but the Arkansas Supreme Court has not publicly acknowledged at all the misuse of authority by its clerk. The body that is charged with the proper operation of this state's courts appears unwilling even to admit error when it occurs within its own walls.

But the court did take a kind of side-winding action. On Oct. 1, it issued an order requiring that Burnett “settle the record” as to which parts of the three men's appeals were sealed and which were not. In an unsigned opinion, the justices wrote that they had been “unable to determine” this matter for themselves.

That, my friends, is bunk, as Justice Paul Danielson — the only justice to dissent from the spurious opinion — politely pointed out. Danielson noted that asking a circuit judge to explain what had been sealed and what hadn't “vastly deviates from the typical procedures of this court.”

“Either the records, or portions thereof, were filed under seal at the circuit level, or they were not,” he wrote. “If the record does not indicate that certain exhibits or pleadings were filed under seal, then it seems clear they were not and are public record.

“It is the duty of the parties involved in a case, not this court, to ensure that certain documents are sealed if that is their intention. To this date, no motion to seal has been filed in our court in any of these cases.”

 Danielson even delicately broached the subject of Steen's presumption that he could seal records at will. “After a case is filed with this court, our clerk is then to determine if that record, or portions therein, were originally sealed by the circuit court. If so, the same will be filed under seal here. The remainder is public record unless subsequently sealed by this court pursuant to a motion.” [Italics mine.]

This is no arcane debate about angels on a pin. Misuse of authority and disingenuous court orders are matters that strike at the very rule of law.  They erode confidence in our courts.

The West Memphis case has become a symbol of that eroding confidence. But it represents only one of the hundreds of serious issues that come before the Arkansas Supreme Court every year. We citizens have a right to expect that our courts will address all of them with integrity — not cynical, self-serving, legalistic legerdemain when, for whatever reason, a court would rather not hold itself to the law. 

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