James Aaron Miller is led into the Sebastian County Courthouse by bailiffs Donnie Sweeten, left and Victoria Hardy in April 2008. Miller was convicted in the December 2006 deaths of his girlfriend and her two children and sentenced to death. (Times Record file photo)

By John Lyon
Arkansas News Bureau

LITTLE ROCK — An attorney for a man sentenced to die for killing his girlfriend and her two children in Fort Smith argued today that the victims’ decomposing bodies were discovered during an illegal search.

The state Supreme Court heard oral arguments in an appeal by James Aaron Miller, who has been convicted of three counts of capital murder and sentenced to death for killing Bridgette Barr, 26, and her daughter and son, Sydney Barr, 5, and Garrett Barr, 2. The justices did not immediately issue a ruling.

Fort Smith police discovered the victims’ bodies in the apartment Miller and his girlfriend shared on Dec. 26, 2006, after Miller’s father called from Colorado to report he was afraid his son might harm himself. Miller had been living in the apartment with the bodies for several days, authorities said.

Jim Wyatt, an attorney representing Miller in his appeal, told the justices today that police and emergency medical personnel who went to Miller’s apartment determined Miller was physically OK but decided he should go to a hospital.

Miller asked the officers to lock his apartment, but the officers entered the apartment without a warrant and found the bodies, Wyatt said.

“If they believed there was something going on, they could have gone and gotten a warrant,” he said.

Assistant Attorney General Brad Newman argued that the officers had a reasonable suspicion to support entering the apartment because they saw blood on the door, noticed a bad smell and saw a photo of a woman and children, leading them to suspect other people could be in the apartment and could be in danger.

Newman added that if the officers had not entered the apartment, the bodies would have been discovered eventually anyway.

Wyatt also argued that the victims’ family members should not have been allowed to tell jurors that Miller deserved the death penalty.

Newman said the state agreed that the testimony should not have been allowed, but it did not affect the outcome of the trial.

“Our position is that the error was harmless,” he said.

Wyatt also argued that some potential jurors were improperly removed from the jury pool because they wrote on a questionnaire that they did not believe in the death penalty. The defense should have had an opportunity to ask those people if they would follow the law despite their beliefs, he said.

In answer to justices’ questions, Wyatt acknowledged that Miller’s trial lawyers did not object to the jury that was seated, though they did object to the questionnaire.

Medical examiners determined that Bridgette Barr and her daughter died Dec. 22 or 23. Bridgette Barr was strangled and her daughter was stabbed in the neck and suffocated.

The boy’s time of death was unknown because his body had been placed in a hot kitchen oven after his death from suffocation. His body was found in a bathtub.

The children lived with their father in Muldrow, Okla., but were with their mother for a Christmas holiday visit, authorities said at the time.

Miller’s trial lawyers were unsuccessful in seeking to have him declared mentally retarded before the trial, but they were allowed to present evidence of retardation during the sentencing phase of the trial. If jurors had agreed that Miller was retarded, they would have had to recommend a sentence of life without parole.