By John Lyon
Arkansas News Bureau

LITTLE ROCK — The chief judge of the Arkansas Court of Appeals on Wednesday strongly criticized the Pulaski County Prosecutor’s Office and a Pulaski County circuit judge in connection with a deal that prosecutors made with a witness in exchange for testimony.

Chief Judge Larry Vaught wrote that Pulaski County prosecutors “conspired to subvert the system” and that the judge who approved the deal “abdicated a measure of responsibility and accountability.” He also said the state Supreme Court may need to look into the case.

Pulaski County Prosecuting Attorney Larry Jegley acknowledged Wednesday that the deal should not have happened but said he did not believe anything “manipulative or sinister” occurred.
Circuit Judge Barry Sims said he could not comment on the case.

Vaught made his remarks in connection with Hutson Burks’ appeal of his conviction of aggravated robbery and theft of property. Burks was sentenced to 27 years in prison for robbing two bank employees at gunpoint as the employees were loading an ATM in Little Rock on Nov. 24, 2006.

On appeal, Burks, now 38, argued that a witness for the state, Emma Mickles, should not have been allowed to testify at his trial because prosecutors obtained her testimony by agreeing to reduce her sentence on previous convictions from 20 years to eight years.

The sentence reduction was achieved through a writ of error coram nobis, which was not appropriate in Mickles’ case, Burks argued. A writ of error coram nobis is a writ alleging an error by the court.

In the majority opinion written by Judge Waymond Brown, the Court of Appeals said Wednesday that Burks had no standing to challenge Mickles’ sentence reduction.

In a concurring opinion, Judge Larry Vaught agreed that Burks had no standing to challenge Mickles’ sentence reduction but said he was compelled to write separately to express concern about the “apparent manipulation of our criminal justice system.”

Vaught said no error was ever alleged in Mickles’ case to justify a writ of error coram nobis, and the writ appeared to be simply part of a bartered deal between prosecutors and Mickles to obtain her testimony. Vaught also said he was concerned about Sims’ “cavalier rubber-stamping” of the deal.

“This case is one of the most troubling that I have considered in my time on this court,” Vaught wrote.

Vaught also wrote that that the Court of Appeals is limited in what it can do to respond to the situation, but “our supreme court — through its review and committee powers — may not be so constrained. It is my sincere hope that this case does not end here.”

Jegley said Mickles’ attorney first proposed the deal, and “my office didn’t do enough research on it.” He said he did not personally sign off on the deal, but he accepted responsibility for it.

Apparently, no mechanism exists for reducing a sentence that has already been imposed in exchange for a witness’ testimony, Jegley said.

“It won’t happen again,” he said.