[The April 3, 2009 proceedings concluded until August 10, 2009. BMHR
1709. The transcript of the beginning of the session on that day appears in full
below, as Misskelley and Baldwin renewed their motions to recuse.]

RENEWAL OF MOTION TO RECUSE

THE COURT: All right, I can’t remember where we left off. Who
was our last witness?
MR. ROSENZWEIG: Good morning, Judge.
THE COURT: Good morning.
MR. ROSENZWEIG: Your Honor, the last time we were here, was to
finish the Stidham cross-examination.
THE COURT: Did we finish that?
MR. ROSENZWEIG: I believe so.
MR. HOLT: Almost, but for purposes of that false confession issues
ABSTRACT 143

and his connection to the professionals.
MR. ROSENZWEIG: Yes. The last time we were here, Your Honor,
uh, Mr. Baldwin was not here at all. We did two days with Mr. Stidham, but
the Baldwin team was not here at all.
Before we start, Your Honor, I think it’s appropriate at the beginning
of these proceedings. A year ago, we had moved for Your Honor’s recusal
on several grounds, and of course, were denied it.
We need to, uh, I think it would be appropriate to renew that, and
largely because of the, well, at least from the reports in the newspaper that
Your Honor is running for the Arkansas state senate next year.
And so I would renew that motion. I assume the reports are accurate,
that you are running? And if they are accurate, it would be our position...
THE COURT: ... well, that would be the reason for recusal? You’re
talking about something that will happen in the future.
MR. ROSENZWEIG: Yes, sir.
THE COURT: I’m still a judge.
MR. ROSENZWEIG: That’s correct, Your Honor. It is not, as I read
the rules in the Canons of Judicial Conduct, because you’re sitting as a
special judge, it would not be, it’s not a violation of the Code of Judicial
ABSTRACT 144

Conduct; however, that doesn’t resolve the problem, because as we perceive
it that Your Honor is a candidate for a partisan political office and it would
be our position that it would violate the spirit, if not the letter, of
Amendment 80.
You have every right to run for office, there’s no question about that,
uh, as a retired judge, as would be the right of any citizen, including
yourself.
But the issue is whether or not it is appropriate under the violation of
due process of the federal and state constitution.
THE COURT: How would it violate due process?
MR. ROSENZWEIG: Because, uh, you would be sitting concurrently
as a judge, but also as a candidate for a partisan political office; not a
nonpartisan office such as the Supreme Court or circuit court, or something
like that.
And that’s the basis for it, because it is a partisan political office and it
is our position that those two roles are inconsistent.
Amendment 80 basically holds that, uh, Amendment 80 which says
that if a person files, which you can’t do until...
THE COURT: ... you can’t do it until next year.
ABSTRACT 145

MR. ROSENZWEIG: That’s right.
THE COURT: If I do.
MR. ROSENZWEIG: But at least the newspaper is indicating you
have announced for that position.
THE COURT: I announced that I am looking at it and intend to, yes. I
have done that.
MR. ROSENZWEIG: And so although it’s not a violation,
technically, of Amendment 80, it would be, our submission is it would be a
violation of the spirit of the Amendment, under the circumstances.
THE COURT: Well, I don’t follow it. What’s the state’s position on
that?
MR. RAUPP: Well, Your Honor, our position is the same as briefed in
the Arkansas Supreme Court. The parties, uh, have briefed this in the
Arkansas Supreme Court, uh, you may know that there is a pending motion
to have this case remanded for fact-finding on whether or not you should
recuse, uh, the bottom line is, we chose recusal to rest on the conscious of
the Court.
THE COURT: Well, I’m having a hard time finding where it would - I
mean, I guess you’ve got a legal argument, but I certainly don’t feel any
ABSTRACT 146

compulsion to recuse the case.
I mean, frankly, I’d love to drop it in somebody’s lap, but I feel like
it’s my burden to bear. I’m the one that tried the case originally; I’m the one
that has the familiarity with a case that’s been going on for fifteen or sixteen
years, and I think it’s appropriate that I finish it.
MR. RAUPP: Certainly, case authority is that the trial judge can sit in
a Rule 37, ordinarily, the Court rules they can. A matter of bias or recusal in
case of discretion can be reviewed on direct appeal.
THE COURT: I think if I were a filed candidate for office, your
motion would be well-taken. I am not, and there are several months before
that occurs, if it does occur. So I’m going to deny the motion.
MR. ROSENZWEIG: Well, we’ve made our record, and for the
record, it would be our position that this would violate the spirit of
Amendment 80, and federal and state constitutional rights of due process.
THE COURT: How does it violate due process?
MR. ROSENZWEIG: Tumey vs. Ohio; Ward vs. Monroeville , and
there are a number of other cases like that, that specifically talk about the
circumstances in which a, uh, that bias, uh, that bias, either explicit, or even
implied bias, uh, could...
ABSTRACT 147

THE COURT: ... well, where would bias be implied?
MR. ROSENZWEIG: Because, Your Honor, is a candidate for a
partisan political office.
THE COURT: And what would that have to do with it?
MR. ROSENZWEIG: Because, because, uh, you are, as any candidate
would be who is wanting to appeal to the votes of at least the majority of his
electorate, which is a totally different motivation from attempting to apply
the law.
And that’s why certain matters are regarded as implied or structural
bias, and do not need to look into the head or the character of the particular,
uh, of the particular judge, just as in the same way you can’t sit on your first
cousin’s case, uh, because even though you may not have talked to your first
cousin for a hundred years, you can’t do it because the law says there are
certain structures.
And it’s our position this would be one of those structures.
THE COURT: Well, I don’t have any biases, and your motion is
denied. I’m going to hear it through to the end.
MR. PHILIPSBORN: Your Honor, on behalf of Mr. Baldwin, we
have made a similar argument, uh, before the Supreme Court.
ABSTRACT 148

We’ve joined in the Misskelley motion before and we respectfully ask
the Court to show us as having joined in the motion.
THE COURT: Sure. No problem.
MR. PHILIPSBORN: Thank you.
MR. RAUPP: Your Honor, if I could make a brief point to the due
process argument. The state’s position is pleaded both in this court and the
Arkansas Supreme Court, but it would be, uh, among other reasons that the
due process claim, I think, is founded on a concern that a party have a factfinder
who is not interested in the outcome.
And the parties are the financial interests or personal lives in the
outcome, and the suggestion that a candidate for office at this stage of the
game, whether it’s a judicial candidate or a house or senate candidate, has an
interest in the outcome to sway voters, and I think it’s speculative, at best.
Certainly, that’s the state’s position, and it certainly wouldn’t - it would
certainly undermine the notion that elected circuit judges at all could sit in
cases because they’re going to come up for election.
And at least taken to the extreme, a due-process argument suggests
that all judicial candidates have an interest in the outcome of the case.
MR. ROSENZWEIG: If I can respond briefly to that, uh, there is a
ABSTRACT 149

difference between a nonpartisan election as circuit judgeships are, and a
partisan election.
And a judge for a judicial candidate has certain restrictions, uh, some
of which may or may not be constitutional, but has certain strictures on what
they can and cannot say and do in a way that a candidate for a partisan
political office does not.
THE COURT: Is that it?
MR. ROSENZWEIG: Yes, sir.
THE COURT: All right. Call your next witness.