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.

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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.”

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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.

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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.”