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Judging Burnett

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Since 1994, when he officiated at the trials of Jessie Misskelley Jr., Damien Echols and Jason Baldwin, Judge David Burnett has had several opportunities to make further rulings in their cases.

Some of the petitions he heard concerned new DNA test results, others focused on the inmates' arguments that they had inadequate counsel at their trials.

Burnett, of Osceola, denied them all. He handed down some of his rulings even after retiring from the bench.

Now, as Burnett campaigns for a seat in the Arkansas Senate, from District 15, he too faces tough questions about his conduct in that long, strung-out case.

One exhibit submitted to Burnett last year may prove particularly potent. That is an affidavit by Little Rock attorney Lloyd

Warford in which Warford states that Kent Arnold, the jury foreman at the Echols-Baldwin trials, disobeyed Burnett's order not to discuss the case outside of court.

Warford also claims that the foreman told him that he persuaded the jury to consider information that the prosecutors were not allowed to introduce.

Burnett sealed Warford's affidavit and took no action on it. It remained sealed until recently, when I was allowed to view it at the Arkansas Supreme Court.

In the affidavit, Warford said he had been hired by Kent Arnold to represent Arnold's brother, who stood accused of raping his 4-year-old daughter. At about the same time, Kent Arnold was called as a potential juror for the trial of Echols and Baldwin.

Warford wrote that he doubted Arnold would be selected as a juror because Arnold had a relative facing prosecution, he clearly “knew way too much about the case,” and “he seemed to have made up his mind the defendants were guilty.” According to Warford, Arnold once told him, “All you had to do to know that Echols was a devil worshiper was to look in his eyes and you knew he was evil.”

Warford said he was stunned, therefore, to hear that Arnold had been selected as a juror and later, foreman of the jury. When he expressed his surprise, he said, Arnold “laughed ... and made a joke about the stupid lawyers and judges not asking specific questions.”

Warford said he told Arnold that “we could not talk about the case until it was over, and he agreed,” but that Arnold continued to talk about the case. Warford said Arnold was particularly upset that prosecutors had not introduced Jessie Misskelley's confession as evidence against Echols and Baldwin. (As explained in the main article, they were constitutionally barred from doing so.)

“Eventually,” Warford wrote, “Kent said this prosecutor has not done his job and that if the prosecution didn't come up with something powerful the next day, there was probably going to be an acquittal. At one point, I distinctly remember him saying, ‘If anyone is going to convince this jury to convict, it is going to have to be me.' ”

During the trial, a police officer did, in fact, allude to “the statement of Jessie Misskelley.” Defense lawyers immediately moved for a mistrial, but Burnett denied the motion. The judge cautioned the jurors to disregard the police officer's statement.

“Kent told me if the confession had not been mentioned in court, then he might not have been able to convince the swing jurors to convict,” Warford said in his affidavit. “He said several times that he could not believe how many jurors had not been aware of Misskelley's confession until it was mentioned in court.”

Echols' final state appeal is now before the Arkansas Supreme Court. Among its exhibits are notes and other records jurors made during their deliberations. All contain reference to Jessie Misskelley's inadmissable confession.

Burnett also dismissed as unimportant results of new laboratory tests on evidence from the crime scene that found no DNA from any of the defendants. He was unimpressed by evidence that a hair from the stepfather of one of the victims was found in the bindings on one of the other boys.

And he was not troubled by the testimony of prominent forensic pathologists who concluded that marks attributed to a knife attack, which prosecutors claimed was part of a satanic ritual, were actually inflicted after death, by turtles and other animals in the stream where the bodies were found.

If the high court refuses to grant Echols a new trial, because he was sentenced to death, he will be allowed to appeal to a U.S. district court. Warford's affidavit and the jurors' notes showing that they improperly considered Misskelley's confession will rank high among the issues presented.

Ordinarily, if the state Supreme Court denied their final appeals, Baldwin and Misskelley would not be eligible to press their case in federal court. But Judge Burnett may have given them a rare opportunity to do so.

That is because Burnett ruled on their appeals after he had retired from the bench (which is accepted) and after he'd
announced his intention to run for the state legislature, the propriety of which is questionable.

Attorneys for Baldwin and Misskelley complained to the Supreme Court that Burnett's actions constituted an improper mixing of roles, but the high court did not intervene to stop him. And more appeals lie ahead.

As a result, whether Burnett wins election to the state Senate or not, his conduct as a judge will be scrutinized for years to come. Indeed, that scrutiny has already begun.

In a December 2009 article in the Arkansas Law Review, David S. Miller examined Burnett's denial of Echols' appeal for a new trial, under a statute passed by the legislature in 2001. That law provided a way for persons convicted of a crime to bring before a court new evidence produced by testing methods that were not available at the time of his trial.

Mitchell wrote that Burnett's interpretation of the statute “eviscerated its purpose” and thereby “failed to meet the Arkansas Legislature's goal of accounting for the ability of new technology to accomplish the mission of criminal law — to punish the guilty and exonerate the innocent.”

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