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Above the law 

Add another cynical twist to the farce masquerading as justice in the case of the West Memphis Three. And jot up another reason to distrust Arkansas's Supreme Court.

As those who've followed the West Memphis case are aware, the high court ruled unanimously that there was nothing legally amiss in the two 1994 trials that led to the convictions of Damien Echols, Jessie Misskelley Jr., and Jason Baldwin, who were 18, 17, and 16 years old at the time.

Echols was sentenced to death, Misskelley and Baldwin to life in prison. All are now middle-aged men.

The justices were willing to accept Misskelley's so-called confession, in which almost every detail he offered police was something they knew to be wrong. The court was not troubled by the fact that a minor had been questioned for hours and allowed to make a statement without a parent or lawyer present.

They also had no problem swallowing the testimony of a self-proclaimed “expert in the occult,” whose testimony supported the state's theory that the murders were part of a satanic ritual, despite his admission that his Ph.D. came from a mail-order university.

On the other hand, the justices dismissed defense arguments that the state had produced no weapon, no eyewitness, no sign of a satanic ritual, and no credible physical evidence linking the three to the murders.

Because of his death sentence, appeals for Echols have proceeded faster than for the other two. Affidavits filed earlier this year allege that serious juror misconduct occurred during the trial of Echols and Baldwin; specifically, that the foreman discussed the case outside of court, in violation of the judge's orders.

Judge David Burnett ordered the affidavits to be sealed. The documents were supposed to have been sent to the Arkansas Supreme Court as part of Echols' final state appeal. But, to the surprise of Echols' lawyers, they were not.

When the lawyers complained, the Supreme Court ordered Burnett to forward the affidavits. In June, a clerk for Burnett told me, “We searched for them and eventually found them. We didn't realize we had them.”

In July, I contacted Leslie Steen, the clerk for the Supreme Court, and asked to see all the documents recently filed on behalf of Echols, Baldwin and Misskelley. It was a reasonable request. With few exceptions, court records are supposed to be public.

Steen told me that I could see none of them. He explained that, because some of the documents for Echols had been sealed by Burnett, he had taken it upon himself to seal the filings of all three men in their entirety.

I was under the impression that only courts have the power to seal records. I asked Steen to cite the statute that granted that power to a clerk.

“There is none,” he said. “This is just one of our internal procedures.”

I asked if there was a written policy or even a memo from the Supreme Court to that effect. “No,” he said. “It's not in writing.”

Steen continued: “The court understands how we do things down here, and it seems to meet with their approval.” He said that in the 29 years he'd worked for the court he had been sealing records as he saw fit, that the justices were aware that he was, “could have stopped me but they haven't.”

I then filed a written Freedom of Information request with Steen for the records. He called me the next day to say my request was denied “because the records are sealed.”

In February 2007, the Arkansas Supreme Court issued an administrative order addressing public access to court records. It says that, “Public access shall be granted to court records,” subject to certain limitations, such as for records that have been “rendered confidential by protective order, by this order, or otherwise by law.”

Nowhere does the order mention that records may be sealed and barred to public access by a clerk. To the contrary, the Supreme Court's Administrative Order Number 19 declares:

“This order recognizes there are strong societal reasons for allowing public access to court records, and denial of access could compromise the judiciary's role in society, inhibit accountability, and endanger public safety.

“Open access allows the public to monitor the performance of the judiciary, furthers the goal of providing public education about the results in cases, and, if properly implemented, reduces court staff time needed to provide public access.”

I believe that the Arkansas Supreme Court is in violation of this state's Freedom of Information Act and that its own clerk is violating an administrative order that every other court clerk is obliged to obey.

Like so much about this case, it's a shame.

 

Mara Leveritt, senior editor of the Arkansas Times, has written extensively on the West Memphis Three, including the book, “Devil's Knot: The True Story of the West Memphis Three.”

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