Posted on 29 December 2009
By John Brummett
It says so in the state constitution. A sitting judge who seeks a
non-judicial political office vacates the judgeship automatically 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
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
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
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.