STATE OF ARKANSAS ) Copy of original from Supreme Court Clerk's Office
) §§ Clerk's Office
COUNTY OF PULASKI )
Before the undersigned Notary Public, duly qualified and acting in and for said county and state, appeared Lloyd Warford, to me well known to be the affiant herein, who stated the following under oath:
1. I am an attorney licensed to practice law in the state of Arkansas.
2. I was admitted to the Bar in January 1988 and went to work as a Deputy Prosecuting Attorney in Pulaski County.
3. I was a Deputy Prosecutor for the next four and one half years.
4. In June of 1993, I left the Prosecuting Attorney's office to establish a private practice.
5. In February 1994, Kent Arnold retained me to represent his brother Gerald Arnold who was being accused by his former spouse of raping their four—year-old daughter during a custody visit on Saturday, February 19, 1994.
6. In the beginning, I was hired only to represent Gerald Arnold on what we expected would be a rape charge; but, at some point thereafter, Kent Arnold also retained
me to represent him in matters related to his real estate business.
7. This affidavit relates statements made by Mr. Kent Arnold concerning his jury service in the trial of State v. Echols and Baldwin. I was not retained to represent Kent Arnold in anyway related to his jury service.
8. I have requested that this affidavit be filed under seal because of concerns I have had regarding the perception of Kent Arnold that his communications to me as stated herein are shielded from disclosure by the attorney-client privilege. As a result of my concerns, I have consulted legal counsel, Stephen Engstrom, ABA No. 74047, of the firm of Wilson, Engstrom, Corum & Coulter, Post Office Box 71, Little Rock, Arkansas 72203, regarding the scope of the privilege. After consultation with legal counsel, I have concluded that the communications related herein by Kent Arnold are not privileged because the communications were unrelated to the matter for which Kent Arnold sought representation by me. In this regard, I have reviewed Arkansas Rule of Evidence 502 and Arkansas case law interpreting the privilege including, but not limited to, Parkman v. State, 294 Ark. 339, 342, 742 S.W.2d 927, 928-929 (1988) (not privileged because communications involved matters other than rendition of legal services). See also, Nance v. Arkansas Dept. 0f Human Services, 316 Ark. 43, 51, 870 S.W.2d 721 (1994) (former attorney's unfavorable observation about condition of home during visit not privileged). Factors which have a bearing on my conclusions are that Kent Arnold did not retain me to advise him on his jury service in the Echols—Baldwin trial and that the statements he made concerning his selection and service as a juror did not relate to the matters for which I represented him.
9. I have recently spoken with Kent Arnold, and he has indicated he believed then and believes now that all of our conversations were privileged and has requested I not disclose them unless I am compelled to.
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10. In weighing all of this, I have concluded that the best thing for me to do is to make the court aware of the dilemma I find myself in and trust the court to decide if, when, and how the information contained herein may be used by the parties.
11. I was hired by Kent Arnold between February 21, 1994, and whatever date the record shows he was selected for jury duty. The exact date is no longer known to me. I do not know what date I stopped representing Kent Arnold, but it was after Gerald Arnold pled to Sexual Abuse in September 1994.
12. For reasons I cannot fully explain because of matters that are covered by attorney-client privilege, the fact that Kent Arnold had been summoned for jury duty was
a problem for Gerald's defense.
13. Because of the pending investigation of his brother, I told Kent that he would not likely be chosen to serve. Kent said he wanted to do his civic duty and was not
going to try to avoid jury duty. I assured him that he was not going to have to do anything inappropriate to avoid jury duty, that his brother's situation would come out when he was questioned, and he would be struck from the jury by the prosecutors.
14. Kent didn‘t understand why the situation with his brother would make the prosecutors strike him. He seemed to want to prove he was a good guy and would be a good juror no matter what his brother had done.
15. I tried to explain that the defense would not want him either because he knew way too much about the case. Kent was upset at the idea he could be struck because he knew too much about the case. He thought that it was crazy that informed
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people like him who read the paper every day should be excluded from jury duty in favor of "stupid people who couldn't or didn't read."
16. Aside from Kent's knowledge of the news reporting concerning the case, and his brother's situation, I also thought Kent would be struck because he seemed to have made up his mind the defendants were guilty and he had a disdain for our justice system and the due process rights of defendants which he could hardly contain.
17. Shortly thereafter, Kent informed me he had been selected for jury duty.
18. When Kent told me he was on the jury, I could not believe it. He laughed when I was surprised and made a joke about the stupid lawyers and judges not asking specific questions. I told him I wanted to know everything after the trial, but we could not talk about the case until it was over and he agreed.
19. During the trial, I had several telephone conversations with Kent Arnold primarily in regard to Gerald's case. In spite of our agreement not to talk about the case
until after the trial was over, Kent made constant offhand comments or statements about the trial and his jury service.
20. All of these comments were principally expressions of Kent's frustration with how slow the trial was progressing.
21. Soon after the trial started, Kent Arnold began complaining about how slow things were going. At one point, I remember him saying something to the effect that at
least nine of us are ready to vote right now and asked why don't the prosecutors just play the confession and get this over with.
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22. I had not followed the West Memphis case closely. I was vaguely aware there was a confession of some sort but was not aware who made it or that it had been the reason the defendant's trials were severed. I learned that from my law clerk Gina Reynolds. Gina is now a lawyer in Bryant. Gina was following the case and informed me that Misskelley had confessed and that is why he had been severed.
23. Gina was very concerned that Kent knew of the confession, but I assumed that virtually everyone in the state did. After all, I had heard there was a confession, and I don't believe I had read a single article on the case. Kent had clearly followed the reporting on the trial in detail, but I just assumed he had acknowledged this on voir dire and promised he could set it aside and be fair. It did not seem right, but my feeling was it is just what happens in very high-visibility trials.
24. As to Kent's comments which indicated nine of the jurors were ready to vote, it was not clear to me whether Kent had actually somehow polled the jury or whether he was just opining that he thought nine members had made up their mind. What was clear was that he thought the majority of the jury was ready to convict from virtually the beginning of the trial.
25. Nevertheless, as the trial progressed, Kent Arnold‘s comments were increasingly critical of the prosecution. Eventually, 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.
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26. 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."
27. He then asked me how I would have convinced a jury on a case like this one when I was a prosecutor. I told him I could not help him with that, and he said what if I pay you to tell what I need to say to get this guy.
28. Kent was laughing and joking when he said this but his clear message was he was determined to convince the other jurors to convict.
29. At some point, I believe in the same conversation, he asked how do I get to be the foreman of the jury.
30. Kent’s attitude late in the trial could best be described as almost angry with the prosecutor and the lack of proof, but he nevertheless was convinced that the
defendants were guilty.
3l. He complained during and after the trial about defense attorneys being allowed to clean up the defendants. He said it didn't matter, 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.
32. I never told Kent Arnold that he was not going to hear the confession as he initially expected, but, at some point late in the trial or possibly during deliberations, he commented that the jury was not going to get to hear the confession. That they were told about it but then told not to consider it. Although he did not say much at that time, it was clear that this made Kent furious.
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33. When the trial was over, Kent and I discussed the matter. I was interested in what happened during voir dire that lead to someone like Kent being allowed to sit on
the jury.
34. After the trial, Kent Arnold was somewhat obsessed with how bad our system of justice was. He talked of writing a book about how the criminal justice system really worked. He wanted to expose the corrupt voir dire process that resulted in juries being filled with “stupid, uninformed people" and kept off "smart, well—informed people" like him. He was outraged that juries did not get all the evidence and went on and on about the jury in this case being denied the chance to hear the confession. 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.
35. I specifically questioned Kent about the voir dire and how he got on the jury. Kent stated he wanted to be on the jury, and he was not going to say anything that
would get him struck from the jury unless he had to.
36. Kent's strategy was not to answer a question that was not specific and addressed directly to him, at least not a question he thought would get him struck.
37. I remember these statements by Kent about his conduct in voir dire clearly because they made a great impression on me. I was very interested in learning as much as
possible about Kent's jury experience in order to assist me in my own practice, and Kent's comments led me to refrain thereafter from asking general questions of a jury venire, but rather to address each juror individually to the greatest extent possible. Without
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attributing it specifically to Kent, or any particular case, I have made reference to this valuable lesson many times over the years since in talking about voir dire with younger attorneys and on at least one occasion when teaching a Continuing Legal Education Course.
38. I was informed by counsel for Damien Echols in May of 2008 that Kent had in fact been asked "whether a family member of his had ever been accused of serious
wrongdoing."
39. I have not seen the transcript of the voir dire nor have I made any effort to verify whether the question was placed to Kent Arnold in a sufficiently specific manner as to require him to reveal the situation with his brother Gerald Arnold.
40. What I do know with absolute certainty is that during the voir dire, Kent Arnold was acutely aware that his brother had been accused of raping his own four-year-
old daughter and that Gerald Arnold was facing almost certain arrest.
4l. Even though I wanted to know everything about the trial, including how the voir dire was done, I did not get much other than Kent ranting about how judges should
not be allowed to keep critical information from juries. Kent would go on and on about how in business he always wants as much information before he makes a decision and he was offended that judges could keep jurors from getting all the information.
42. From our discussions after the trial, Kent clearly did not believe there was any such thing as a false confession. As far as he was concerned, the confession settled it.
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He implied that if he had not been there to save the day justice would not have been done. Kent Arnold saw himself as the real hero of this trial.
43. On one occasion, I told Kent that, while they were rare, I knew for a fact that there were false confessions. I told him about a client I was appointed to represent, David Baldwin. David was charged in a capital murder case in August 1993. Baldwin had given a statement admitting his culpability in a gay bashing murder that later proved to be false. Baldwin was exonerated when the authorities later arrested those actually responsible for the crime and convicted them in a prosecution supported by their own true confessions and DNA.
44. Even when confronted with the fact that people did sometimes make false confessions, Kent Arnold steadfastly refused to believe that there was any possibility that
the Misskelley confession was anything other than true.
45. At one point, Kent said your client must have been retarded. David Baldwin was actually reported to be borderline intellectual functioning as is often the case with people police get to give false confessions.
46. As part of Kent’s continued ranting about the jury not being allowed to hear the confession, he said several times that he could not believe how many jurors had not been aware of the Misskelley's confession until it was mentioned in court.
47. I had at least a dozen conversations about the trial with Kent Arnold and not one time do I remember him ever mentioning any evidence of the defendants‘ guilt other
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than the inadmissible confession and the fact that Echols looked like he worshiped the devil.
48. I have read the foregoing statements and state that they are true and accurate to the best of my knowledge and belief.
49. This affidavit is submitted under seal for the court to determine whether the information contained herein is subject to attorney—client privilege as well as whether it is otherwise relevant and admissible in the matters pending before the Court. Should the Court determine it contains privileged statements, or be inadmissible for other reasons, I would ask the court to honor the confidential nature of communication between attorneys and clients and keep this document sealed. If the statements herein are found not to be privileged, and are relevant and admissible in the matter before the court, I will appear and testify as directed by the Court.
IN WITNESS WHEREOF, I hereunto set my hand this 30 day of May, 2008.
