Maybe Burnett couldn't grant Jason a retrial without doing the same for Damien...but Jessie's case is different?
Who knows what this clown is thinking?
Obviously, no one is is shocked or amazed at this ruling.
Bright sides:
(a) it's Burnett's last ruling on the case .... finally,
and
(b) we're a couple of months having a whole bunch more transcripts to post, which (from what I saw for a couple days in Jonesboro last November) will (if the laughing gas lady did her job and they're accurate) create a whole bunch of new supporter.
What's next for J&J? It doesn't go directly to the ASSC. Damien's appeals of trial court rulings do because his is a death penalty case. Jason and Jessie will proceed through the Arkansas Appellate Division (average 18 months - 2 years). After the App Div rules, they can apply to certification (or certiorari , not sure which in AR, but no difference), which means they request that the ASSC hear it. ASSC doesn't have to do so (and rejects most requests for cert, usually granting about 5% of requests).
(Jason could also request direct certification - to skip the Appellate Division - but I don't think he will. Going through App Div gives him yet another chance for reversal)
Barring any additional trial level proceedings (seeking a writ of coram nobis, etc), then Jessie and Jason would proceed to federal court, having a year from the date of the denial of their request for cert to file their writ.
Whole thing with J&J having separate appellate tracks from Damien is really just two bites at the apple.
Real world ... if Damien's habeas is successful (e.g., if the ASSC doesn't reverse on Burnett's denial of his DNA motion ... which is a closer call than the one made today), then the State can't maintain Jason's conviction, since they were the same case (retrial for one = retrial for all).
If, conversely, Jason wins in the Appellate Division, ASSC, or on his habeas, that would also invalidate Damien's conviction (unless they found some grounds applicable only to him, like insufficiency of the evidence, but odds are low on that).
I'm a little bothered by the news report that Jason and Jessie don't want Burnett to rule for a retrial. They would rather move on to Federal Court.
Why would this be the case? Is there evidence that can't be presented in Burnett's retrial that could be presented if Judge Miller ruled for one?
.....Or can Miller's decision influence the prosecution to drop all charges and exonerate the Three completely?...Whereas Burnett's decision would leave a cloud of suspicion over them forever?
Good question, Paid.
And you're right that it's a strange thing for the anyone connected with the case to say. Not sure what the source is.
The reason it's strange is that it is very unlikely and very unusual for a federal court to declare someone "actually innocent" and to end a case, especially with the statutory changes to habeas and the case law over the last 20 years.
In other words - the most realistic (and most probable) result of the habeas is that Judge Miller will grant the writ and issue an order for the State to "retry or dismiss within 90 days."
In other words, a retrial is pretty much what we're looking for from the courts (of course, the State will then have to make the decision whether they will retry it or just dismiss, but that'll be a decision for the State to make, most probably not an order from a court).
