Columns » John Brummett

Judge Burnett’s blunders



It says so in the state Constitution. A sitting judge who seeks a non-judicial political office automatically vacates the judgeship when he files for the other office.

Surely you see the wisdom.

Let's say a circuit judge was running for governor. You wouldn't want him weighing matters of justice in the context of personal campaign considerations. At the very least, you'd have a glaring appearance of a conflict.

Let's say you were a defendant in his court. You might wonder if it would be a good idea to contribute to his gubernatorial campaign.

The only reason retired Circuit Judge David Burnett of Osceola may sit as a specially assigned judge for post-conviction issues arising in the famous case of the so-called West Memphis Three is that the filing period for the state Senate won't open until March 1. So Burnett has merely declared his intention to run next year for a term-limited vacancy arising in the state Senate. He keeps right on judging.

There's a rule of judicial conduct that requires a judge to avoid even any appearance of impropriety. But Burnett has disregarded that and the Arkansas Supreme Court has dismissed perfunctorily a request from a lawyer for one of the West Memphis Three to remand the issue for Burnett to reconsider his decision to stay on the case.

Burnett retired this year after a long career that found him, in 1994, presiding over the original trials in which Damien Echols was convicted of capital murder and given the death penalty while Jason Baldwin and Jessie Misskelley were sentenced to life in prison. 

They were found guilty in the mutilation and slayings of three young boys in West Memphis in 1993. The strongest evidence was that Misskelley, with an IQ of 72, had made contradictory confessions to police. The community was horrified and the three defendants, then in their late teens, were weird and seemed to have an interest in the occult.

After retiring in January, Burnett agreed to appointment as a special judge solely for post-conviction issues that are still percolating from these highly publicized West Memphis cases. The reasoning was that the files were so thick that a new judge would have faced a mountainous learning curve.

Burnett should have had the good grace to decline this appointment if he knew he was running for the state Senate. And he certainly should not have whined to the Jonesboro Sun in tones perhaps suggesting prejudice.

But there it was Sunday — Burnett telling a Sun reporter that, yes, he was intending to run for the Senate; that he was sick and tired of this West Memphis case, and that he regretted letting documentary filmmakers into the courtroom in 1994 because their “Paradise Lost” turned out to be biased for the defendants.

An appellant might feel better if the judge did not tell the newspaper he was sick of the case.

Burnett admitted his misjudgment in a phone conversation Monday. “I shouldn't have said that, and I'm sorry,” he said.

Surely you see the problem with a declared state Senate candidate serving as a judge. Is Burnett getting quoted as a judge or as a man trying to defend himself in the context of his candidacy for the state Senate?

If Burnett rules against these defendants in their latest pleading, will they have reason to be satisfied that they got full and fair consideration?

I shouldn't think so.

Already there is an article in the University of Arkansas Law Review saying Burnett erred in denying Echols a new trial on new evidence that there was no DNA evidence putting him at the scene. Burnett said the absence of evidence was not innocence. It might not have served a state Senate candidacy well to side with a Death Row inmate.

Burnett told me Monday the political vulnerabilities work both ways. I told him he was thus in a fix of his own making. He said he guessed so.

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