As the Jason Baldwin and Jessie Misskelley Rule 37 hearings resume later this month, our attention will again be focused on the concept of justice as applied - or not - in the fifteen-year-old case of the West Memphis Three. Using the power of the law, the two men convicted of the first-degree murders of three eight-year-old boys in 1993 will continue in their attempt to obtain new trials, despite having found that the two - justice and the law - don’t always coincide. Justice relates to righteousness, fairness, and impartiality. The law, on the other hand, defines a set of rules, codified rules of conduct that society has agreed to live by (government by consent of the people.) The objective of any civilized society is to attain the former via the latter. The law is an impersonal construct, while justice is very personal indeed. Where they come together - the battlefield - is in the criminal court, in this case the Craighead County Circuit Court in Jonesboro, Arkansas.

A criminal case is a contest between the state and the accused, both represented by attorneys, with the proceedings presided over by the judge. The lawyers are advocates, one representing the accused, the other ostensibly representing the people (us.) The judge is a referee, assuring that both sides play by the rules. Justice is the expected outcome, but in practice, neither side is particularly interested in justice; they want to win. This is how their performance is measured, and how they advance their careers. In his 2003 book The Wrong Men, a study of 102 wrongful death row convictions, Stanley Cohen said, "The ideal of justice that once favored our best instincts has been turned against itself. The great fear of a politician or prosecutor is not that an innocent man may be convicted, but that a guilty one might walk free. For which candidate seeking public office today will be ready to chance the prospect of being called soft on crime?" In order to give a defendant a fighting chance against the power of the court and the prosecutor, the Sixth Amendment levels the field by guaranteeing the accused the right to a trial by an impartial jury of his peers. The job of the jury is to decide the relative merit of each side’s arguments, tempered by the admonishments and instructions given by the judge, decide whether or not the state made its case beyond a reasonable doubt, and if so, what punishment is to be meted out in accordance with the law. If any one of these critical components - the attorneys, the judge, or the jury - are compromised, the result will be injustice. In the overwhelming majority of cases, the system works. Were this not so, we would have ceased to exist as a nation long ago.

When Alexander Hamilton wrote Federalist #78 - the second most quoted of the Federalist Papers (Madison’s #42 is the first) - in 1788, he was attempting to assuage anti-federalist fears over the power the judiciary would wield in the new republic (eventually defined in Article III of the Constitution.) Hamilton believed that the judiciary should exist as a "barrier to the encroachments and oppressions of the representative body." In other words, the judicial branch was designed to protect the citizenry from the legislative branch. But who protects us from the judiciary? Hamilton (as "Publius") wrote, "All judges who may be appointed by the United States are to hold their offices during good behavior." [Original emphasis from Clinton Rossiter’s edition.] Judges can be impeached, as can all elected officials. It just isn’t done often enough. The Constitution was designed to afford the judiciary with the least power; Hamilton himself believed that it was the "least dangerous" of the three branches of government. To Damien Echols, Jason Baldwin, and Jesse Misskelley, Jr., those concepts are like hollow platitudes. Indeed, James Madison and George Mason - author and "father" of the Bill of Rights respectively - would have cringed at the flagellation of the Sixth Amendment - the heart of a Rule 37 petition - that took place in the Craighead County Circuit Courthouse in 1994. On November 19^th, Misskelley and Baldwin are getting another bite at the apple in the continuation of their Rule 37 hearings. (Echols had his denied in 2001.) Their former attorneys - as well as presiding Judge David Burnett - will be on the hot seat as the appellants’ new attorneys take center stage for round two.

The questions being raised by the Arkansas legal procedure known as a Rule 37 petition all relate to the ineffective assistance of counsel, in this case by Daniel Stidham (Misskelley) and Paul Ford (Baldwin.) Misskelley’s case has been perhaps the most troubling, due to the fact that he confessed to the crimes, and further implicated Damien Echols and Jason Baldwin, who were tried separately. The problems with Misskelley’s confession - which the Arkansas State Supreme Court (ASSC) called a "confusing amalgam of events", despite affirming the convictions - form the core of his petition for a number of reasons, including a list of "inconsistencies":

Perhaps central to the petition - indeed, to the entire case - is the question of Jessie’s alleged mental impairment at the time he gave his statement, and Dan Stidham’s alleged failure in bringing it out in court. At trial, Stidham tried to bring that information to the jury through the testimony of discredited psychologist William Wilkins. Wilkins testified that Misskelley’s "full scale" IQ was 72, putting Jessie in the "borderline retarded" range (normal being 84-116.) The fact that Wilkins was currently on probation and prohibited from practicing in cases of child sexual abuse, led Misskelley’s new attorney to conclude that Stidham was negligent in allowing Wilkins to testify to what was a key element to the Misskelley confession, i.e., that his mental state caused him to be especially susceptible to coercion. Wilkins was also barred from testifying to the results of a so-called "suggestibility" test given to Misskelley - the Gunderson test - on the grounds that not only was it an unscientific exam, according to Judge Burnett, but that Wilkins was not qualified to administer the exam or interpret the results. Misskelley’s new attorney, Michael Burt, questioned why Stidham would put someone of Wilkins’s credentials on the stand without properly vetting him. In a gross understatement, the petition cites Stidham’s failure to "prepare for and object to Wilkins’s unreliable opinion."

These hearings are about ineffective assistance of counsel. The issue Misskelley brings before the court is a direct attack on Dan Stidham’s competence. As the only attorney to have stuck by his former client over the years - he hasn’t officially represented him since his 1996 direct appeal to the ASSC - Stidham should have been stung by the allegations. Instead, he took the stand in September and repeatedly stated his lack of readiness to defend a capital case, that he had, in fact, never tried a major felony as lead attorney. He admitted to being inadequately funded, and being unaware that there was actually a provision in the law to provide him with funding for Misskelley’s defense. Co-counsel Greg Crow testified, "We prefaced everything [when asking experts to testify] that ‘we can’t promise we’ll get you travel expenses.’ " Stidham was accused of having erred in his failure to prevent the introduction of damning testimony, including that of Vicki Hutcheson, his failure to timely raise a motion to suppress Misskelley’s statement, and a general failure in investigating Jessie’s mental health history, resulting in an ineffective trial strategy. Stidham took it on the chin. Paul Ford was more defiant, insisting that he did the best he could, laying everything else off on the court (he may, of course, be right.)

Summing up their allegations of ineffective counsel, the petition states, "Every facet of counsel’s performance in this case violated then-existing national norms as expressed by the American bar Association guidelines for the appointment and performance of counsel in death penalty cases." But that’s not the standard. In Strickland v Washington, the court held that, "the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." That’s a tough standard, one that most ineffective assistance of counsel claims can’t meet.