Improper rullings by Burnett regarding witnesses?

Discussion in 'West Memphis III' started by kyleb, Oct 4, 2013.

  1. kyleb

    kyleb New Member

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    Over in the Terry Hobbs - My Story thread Compassionate Reader suggested:

    So, if anyone can anyone provide any actual examples of Burnett making improper rulings regarding witness testimony, including any legal grounds which by which Burnett could've rightly disallowed Griffis from testifying, please do so here.
     
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  3. reedus23

    reedus23 New Member

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    Are you kidding me? Or are you really being serious?
     
  4. reedus23

    reedus23 New Member

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    This will probably create a whole new ball of wax and no, I'm not doing legal research on every single ruling. My general proviso that I'm not familiar with Arkansas law and that it may have differences. Also, I tried to cull the major arguments/motions/objections but there may have been other "arguments" made by counsel that I missed. Finally, it has to be understood that some rulings are clear cut, some could correctly go either way, some could be error and some could rise to the level of reversible error. I would suggest that the only reversible error (at least according to the Arkansas Supreme Court) was the error with regard to the hearing/evidence on the motion for new trial that led to the Alford Pleas. But giving it a go. I tried to list the nature of the issue, the result, soundness and who the ruling favored.

    8/4/93

    State's objection to cameras
    Sustained
    PRO-STATE
    Court's discretion.

    Defendant's Objections to Discovery
    Overruled
    PRO-STATE
    Court's discretion.

    Defendant's Motion to Sever Jessie's Case
    Consent
    None Favored
    sound

    9/27/93

    Defendant's Motion for Attorney Fees
    Under Advisement/Continued

    State's Motion for Handwriting Sample
    Granted
    PRO-STATE
    Unnecessary but Court's discretion.

    State's Motion for Joinder of Offenses
    Consent
    None Favored
    sound

    Defendant's Motion for Change of Venue
    Granted in part/Denied in part
    None Favored
    Court's discretion.

    Defendant's Motion to Sever
    Denied
    PRO-STATE
    Questionable if error, just not reversible error. Of interest, Burnett commented on the record that if one defendant testified but not the other, he would grant a mistrial or a new trial.

    Motion to Suppress
    Denied
    PRO-STATE
    This relates to the search warrants and are routinely denied absent exigent circumstances. Probably a sound ruling within the Court's discretion.

    Motion for Individual/Sequestered Voir Dire
    Granted in Part/Denied in Part
    None Favored
    Agreement, over one defendant's objection, to question small groups.

    Motion for Discovery Depositions
    Denied
    PRO-STATE
    Sound ruling apparently under Arkansas law.

    Motion for Independent Testing/Experts
    No ruling at this time.

    Defendant's Motion to Remove Media
    Denied
    PRO-STATE
    Questionable ruling given the matters at issue concerned juvenile records.

    Defendant's Motion to Squash Baldwin Subpoenas
    Denied
    PRO-STATE
    Court's Discretion.

    Motion for Aggravating Circumstances Relied On
    Consent
    None Favored.

    Motion to Prohibit Rainey's Testimony
    Denied
    PRO-STATE
    Court's Discretion.

    10/19/93

    Defendant's Motion to Exclude Media
    Granted
    PRO-DEFENSE
    Sound ruling as involved juvenile records.

    Defendant's Motion to Transfer to Juvenile Court
    Denied
    PRO-STATE
    Court's Discretion.

    Defendant's Discovery Motions
    Consent
    None Favored

    11/16/93

    Defendant's Motion to Remove Shackles
    Denied
    PRO-STATE
    Court's Discretion but cuts against the presumption of innocence.

    Motion to Exclude Media
    Denied
    PRO-STATE
    Court's discretion but involved juvenile records and was inconsistent with earlier rulings.

    Motion to Transfer to Juvenile Court
    Denied
    PRO-STATE
    Court's Discretion

    12/21/93

    Defendant's Motion to Eliminate Death Penalty
    Denied
    PRO-STATE
    Court's discretion but IMO a questionable call that wouldn't arise to reversible error.

    Defendant's Objection to Production of Expert's Notes
    Overruled
    PRO-STATE
    Sound ruling.

    Motion to Exclude Shirt
    Denied(though State consented if he made a misrepresentation earlier)
    PRO-STATE
    Court's Discretion

    1/13/93

    Motion to Depose/Interview WMPD
    Denied
    PRO-STATE
    Apparently sound according to Arkansas Law.

    Motion to Suppress Statements
    Taken under advisement.

    1/19/94

    Motion for Continuance
    Denied
    PRO-STATE
    Court's discretion but could have bordered on abuse of discretion as the reason for the Motion was newly found exculpatory evidence(The HBO/JMB knife). IMO a risky decision by the Judge.

    Motion to Admit Polygraph
    Denied
    PRO-STATE
    Sound ruling

    Motion in Limine Regarding Ethic Charge of Expert
    Consent not to inquire
    None Favored

    1/20/94

    Motion Not To Mention JMB Investigation
    Consent not to
    None Favored

    1/26/94

    Motion to Exclude Attorneys
    Denied in Part/Granted in Part
    PRO-STATE
    Court's Discretion but effectively prohibited Counsel from conferring.

    Motion In Limine Re: Juvenile Offenses
    Denied in Part/Granted in Part
    PRO-STATE
    Court's discretion allowed State to enter them to show read rights before but didn't allow them to discuss actual charges. Still allows evidence of prior bad acts into evidence that probably shouldn't be in.

    Motion in Limine Re: Photographs
    Denied
    PRO-STATE
    Court's Discretion but such photographs tend to inflame a jury.

    Motion Attacking Statute Re: Corroboration of Confession
    Denied
    PRO-STATE
    Sound ruling. Interesting argument, particularly on equal protection grounds, but trial court's leave striking down statutes as unconstitutional to higher Court's when there's already cases on it.

    Motion to Limit Court's Commenting on Evidence
    Denied
    PRO-STATE
    Court's Discretion and Court indicated it will insert itself whenever it deems fit.

    Motion in Limine Re: Mention Court's Finding of Voluntary Confession
    Granted
    PRO-DEFENSE
    Pretty much consented to by all parties.


    These were a majority of the rulings that occurred prior to the trial starting. While there isn't much, if anything, that would apparently rise to the level of reversible error in Arkansas, you can absolutely get a Judge's slant by reviewing these rulings. When so many decisions that are within the Court's discretion are slanted in favor of the prosecution, it speaks for itself. Many of the rulings above could have gone the other way and still been appropriate and with more neutral judges, you will see the rulings more evenly split. The Defense attorneys were fighting an uphill battle from day one.

    The rulings that seemed to border the closest to abuse of discretion IMO were denying the Motion to Sever Echols/Baldwin, the Motion to remove the shackles, the Motion for Continuance and the Motion to Eliminate the Death Penalty in Jessie's case. Abuse of Discretion, however, is a very difficult standard to meet on appeal.

    All of that is just my opinion and thoughts as a law person. There are obviously more learned people that have their thoughts. Personally, I think the bigger picture of generally, which way is the Judge ruling when decisions are within his discretion, is the most important thing gleaned from these pre-trial rulings.
     
  5. kyleb

    kyleb New Member

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    So, does nobody have any actual examples of improper rullings by Burnett regarding witnesses?
     
  6. reedus23

    reedus23 New Member

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    I got through all of the pre-trial ruling. Do you want to go through Jessie's trial and give a brief synopsis of each and every ruling and I'd be happy to give you my own thoughts and opinion on each of them.
     
  7. kyleb

    kyleb New Member

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    Well if you care to start a thread to talk about Burnett's ruling in general, I'd be happy to participate. However, the purpose of this thread is to determine if the claim of Burnett making improper rulings regarding witness testimony has any basis in reality, and the fact that nobody has proven capable of providing any actual examples to demonstrate as much doesn't rightly justify changing the subject.
     
  8. Compassionate Reader

    Compassionate Reader New Member

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    There was at least one motion in the list that pertained to a witness, the motion to suppress Rainey's testimony. I'm rather intrigued with the list of rulings as it does go to the point that Burnett was a blatantly State-leaning judge, at least in this case. Some of his rulings weren't really motions but merely rulings on the admissibility or inadmissibility of certain witnesses or the limiting of their testimony so as to favor the State. Examples would include but not be limited to Holmes (the polygraph expert) and Ofshe (the false confessions expert). Burnett limited their testimonies so as to benefit the State and to hamstring the defense. I don't believe I need to quote the portions of testimony to which I refer, but I can, if you wish.
     
  9. reedus23

    reedus23 New Member

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    Trying to be patient with you kyleb and ignoring the attitude. You are looking at it in a vacuum. A vast majority of pre-trial rulings shape and impact in a very real way how witnesses are questioned, what testimony they can or cannot present, trial strategy. Winning and losing a trial starts with the pre-trial motions and it is short sighted to ignore them.

    Now, I also included as many as I could because if I didn't I surely would have heard about that from you as well. So your concerns truly cause me no lack of sleep.
     
  10. missy_g

    missy_g New Member

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    This is my opinion...

    After reading many threads over a long period of time (give or take a few years) I have come to the realization that nons will ask for evidence then ignore said evidence once produced. They then will criticize and offer no input whatsoever (or evidence of their own) and will fail to answer simple questions.

    Like I said, this is my opinion only.
     
  11. Compassionate Reader

    Compassionate Reader New Member

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    I feel the very same way. Not only do nons ignore evidence, they quote as "evidence" either their own opinion or the opinion of other nons. When frustrated, they always resort to ad hominem attacks.
     
  12. missy_g

    missy_g New Member

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    There have been some very constructive debates and whatnot that have come from nons and fence sitters however, those types of nons are far and few between. There are the people who are open minded and do their own research, then there are the type that visit a non forum and spout whatever garbage and nonsense that is produced on those forums.
     
  13. kyleb

    kyleb New Member

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    Yes I'd like to see quotations of the rulings you allude to, also an explanation of how you've determined that those rulings were made "to benefit the State and to hamstring the defense" rather than in adherence to established standards of admissibility. Of course you've no obligation to provide anything of the sort, but that's what is needed to substantiate your claim of bias in Burnett's rulings regarding witness testimony.
     
  14. UdbCrzy2

    UdbCrzy2 New Member

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    You have it spot on Kyleb. I doubt that you'll get any supporting evidence from those opposing your view though, well that has been my experience on this board.
     
  15. Compassionate Reader

    Compassionate Reader New Member

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    Read Ofshe's testimony in the Misskelley trial. If you pay special attention to the bench conferences, you will see that the judge eventually bases his opinion to not allow Ofshe to testify as to the coerced and involuntary nature of Misskelley's statement on the fact that Ofshe's testimony will contradict the judge's own opinion. That is not basing a ruling on law but on a feeling that his (the judge's) opinion is not being accepted without questioning. This is only one example.

    You may disagree, but that's the trouble with this case. Those who have followed it for years disagree on what the trial proved or didn't prove. Simply saying that "the jury found them guilty" is unacceptable. Juries make mistakes. Judges make mistakes and get petty - usually when their opinion is questioned, which is what happened here.

    Since Stidham stated, initially, that the defense would be that Jessie wasn't there and that his initial statement was "coerced and involuntary," Burnett's rulings on Ofshe's testimony did hamstring the defense. (See the October 19, 1993 pre-trial hearing for Stidham's statement of initial defense.) By not allowing Ofshe to testify as to the nature of the "confession," Jessie was denied his Constitutional right, under the Sixth Amendment, to a fair trial.

    Reading the pre-trial hearings on both trials leads me to believe that Burnett, Davis, Fogleman, (and probably most of the State of Arkansas back in 1994) had the preconceived idea that the three were guilty, which is totally out of keeping with their right to be presumed innocent guaranteed under the Fifth Amendment. When The Commercial Appeal printed Jessie's statement before the trial had begun, his right (and, by association, the rights of the other two) to both a fair trial and the presumption of innocence were seriously infringed.

    Now, one might opine that the attorneys should have complained at the time. However, they were all so inexperienced that they simply didn't know how to proceed. Also, in some cases, they did complain, but Burnett simply overruled their objections and continued to lean toward the State, thus ensuring the convictions.

    IMO, one of the main reasons that the three were found guilty was the inexperience of their initial attorneys. Then, this was exacerbated by Burnett's refusal to recuse himself at the Rule 37 hearings. I believe it is very interesting that the first time a judge (other than Burnett) heard evidence in a Circuit court the judge (Laser) was much more sympathetic to the three. IMO, had Burnett been on the bench on August 19, 2011, the three would still be imprisoned, albeit falsely. I seriously doubt that Burnett would have allowed the Alford pleas at all!
     
  16. missy_g

    missy_g New Member

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    What do YOU think happened that day/night then. How were the boys murdered?
     
  17. UdbCrzy2

    UdbCrzy2 New Member

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    I've been on this board for a very long time and you should just take a look through all of these threads. This particular thread isn't for that, but please help yourself and take a look at the other threads. Why should I do the work for you???
     
  18. missy_g

    missy_g New Member

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    Oh wow. I didn't ask you to do any work for me, just give a quick summary of what you think happened. I guess my earlier statement is correct.


    Sent from my iPhone using Tapatalk - now Free
     
  19. kyleb

    kyleb New Member

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    I've read the transcript and will reacquaint myself with it now. But again, I'd I'm still hopping you might actually quote rulings you keep alluding to demonstrate the basis for your contentions, as that's the first step in what's needed substantiate your claim of bias in Burnett's rulings regarding witness testimony.
     
  20. reedus23

    reedus23 New Member

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    You must have missed this above so I will provide it again. It clearly shows a slant, a bias, a tilt or whatever other word you want to describe it:

     
  21. UdbCrzy2

    UdbCrzy2 New Member

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    huh?

    Sounds like you are wanting me to.
     

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