(DR. OFSHE EXCUSED)

THE COURT: Do you have any other witnesses?

STIDHAM: Your Honor, we -- we --

THE COURT: I'm not asking for it right now, I mean we --

CROW: Your Honor, we -- we are debating recalling one witness for about one question and we'll --

STIDHAM: Your Honor, if I could have a few minutes with Mr. Crow, then we can make a decision on that.

THE COURT: You're talking about recalling a witness?

CROW: Yeah. someone who's not here today, so it couldn't be today anyway. But uh --

THE COURT: All right, we're gonna pack up. All right ladies and gentlemen, we worked past three o'clock for a change, uh -- (LIGHT LAUGHTER). With the usual admonition not to discuss the case among yourselves or with anyone -- I'm going to make that an additional, uh, admonition to you, that you are -- are -- are not to discuss the case at home with your spouse or family. And you should make every effort, uh, that your spouses and your family don't discuss the case in the community. I have that problem with an 18-year-old daughter and a wife that are curious, but it's -- it's also important that -- that -- that you -- you give the appearance of impartiality as well as being impartial. So that little extra caution you might mention to 'em 'cause they're gonna try to talk to you. Tell 'em the Judge said I can't talk to you about the case and you're not supposed to talk about it either. Okay? All right, you're free to go until 9:30 in the morning.

(ADJOURNMENT)


DEFENSE RESTS OFF AUDIO

REBUTTAL WITNESSES BEGIN

THURSDAY, FEBRUARY 3, 1994


STIDHAM: Your Honor, may I approach the bench?

THE COURT: Yeah.

STIDHAM: Your Honor, I think it kinda confuses the jury when we rest back there and they don't know --

THE COURT: I - I'll tell 'em, I'll announce.

STIDHAM: Okay.

THE COURT: Okay. Are we ready? All right, ladies and gentlemen, good morning, and court will be in session and for your information and everyone else's information, the defense has rested their case, uh, the Court's heard motions and we're now ready to proceed with rebuttal.

FOGLEMAN: Your Honor, the State would call Gary Gitchell.

STIDHAM: Your Honor, may counsel approach the bench again?

THE COURT: Yes.

STIDHAM: Your Honor, I'd like to tell the Court that Officer Gitchell was in the courtroom yesterday during the testimony and I understand that he watched some of the testimony in --

THE COURT: I observed him in the courtroom during some of Doctor Ofshe's testimony. I don't know about him being here prior to that, but uh --

STIDHAM: (INAUDIBLE)

THE COURT: He is -- he is a rebuttal witness. He had been released from the Rule by the Court and by agreement with both parties and therefore I'm gonna allow him to -- to testify.


BY FOGLEMAN:

Q: For the record, you are Inspector Gitchell who's previously testified in this case?

A: Yes sir, I am.

Q: Inspector Gitchell, I believe that you were in the courtroom yesterday during some of Mr. Ofshe's testimony, is that correct?

A: Yes.

Q: Mr. Ofshe testified that the fact that this incident happened at night was not mentioned until page eighteen when Detective Ridge said, "The night you were in these woods." Was the fact that this happened at night mentioned prior to page eighteen in the transcript?

A: Yes, sir. Mr. Ofshe's remark was incorrect, in so much as on page twelve of the transcript, ah, Jessie states: "Well, after all this stuff happened that night." That's the first time that 'night' is mentioned by Jessie himself.

Q: All right. Had -- had you or Detective Ridge mentioned 'night' prior to that?

A: No, sir.

Q: Mr. ofshe also testified in regard to the follow-up tape, that nowhere in the record does Jessie say seven or eight until you mentioned seven or eight. Where did you get seven or eight?

A: I -- I derived that from uh, there again, back on page twelve of the transcript. Uh, Jessie states: "Then they called me at nine o'clock that night."

Q: All right.

A: And then you refer to page twenty-four of that same transcript, and then there's a mention of "How long after you got home you received the phone call?" And Jessie responds: "An hour."

Q: All right.

A: So that's where I deducted the -- the time frame.

Q: Okay. Now, if you would refer to page three of the transcript, where the transcript shows that Detective Ridge said: "Nine o'clock in the morning."
Mr. Ofshe testified that Jessie said, that *Jessie* said that, not Detective Ridge and that the transcript was wrong. Who said that?

A: Detective Ridge is the person that said "Nine o'clock in the morning" --

Q: All right --

A: -- and I even have a -- the tape which shows that Detective Ridge said that.

Q: All right. Would you play that portion of the tape?

A: (COMPLIES, TAPE PLAYS)

MISSKELLEY: ...and I went with them.
RIDGE: Alright, when?
MISSKELLEY: Wednesday.
RIDGE: Alright, when did you go with them?
MISSKELLEY: That morning.
RIDGE: At 9 o'clock in the morning?
MISSKELLEY: Yes, I did.

(TAPE STOPPED)

BY FOGLEMAN:

Q: All right. And who just said "Nine o'clock in the morning"?

A: That's Detective Ridge that said that.

Q: All right. If you would, Inspector Gitchell, describe for the jury the room that this interview took place in.

A: The room which we used to interview Jessie in was uh, Detective Lieutenant Hester's -- she's a female police officer at the police department. Her room is probably the nicest room that we have in the detectives' division. She has pictures of her children, colorings that they've done in school saying 'Mother, I love you,' things of that nature. So it's probably the most relaxed atmosphere that we have in the police department.

Q: All right. And describe for the jury the, the atmosphere during the interviews themselves, both on tape and off tape.

A: Uh well, during that time, uh, we were probably nervous, but the atmosphere itself was a very laid-back and, and subdued nature.

Q: Okay. During either interview -- on tape, off, uh, first interview, follow-up interview -- was any pressure or intimidation used by either yourself or Detective Ridge?

A: No sir, none whatsoever. We knew this case, due to the type of coverage it had received, that whomever would be picked up, we would have to use -- we would have to talk with this person and use the utmost care and treat them truly with kid gloves, as if we were talking with one of our own children.

Q: All right. And was there anything in, in either of the tape recorded portions, uh, that indicate, uh, anything on the defendant's part that you observed or heard that, uh, would indicate a lack of pressure or intimidation?

A: Ah, yes sir, on the second tape that I did with Jessie Misskelley, uh, there are three places in there which he's yawning. And uh --

Q: He's yawning?

A: Yes sir, he's -- he -- you can hear him going (MAKES YAWNING NOISE), it's yawning. So it's not any pressure there.

Q: All right, you can hear this on the tape?

A: Yes sir, you can.

Q: Did you or Detective Ridge ever feed any information to the defendant?

A: No, sir.

Q: All right. Did you or Detective Ridge --


CROW: I object to leading, your Honor.

THE COURT: Avoid leading.

FOGLEMAN: Okay.


BY FOGLEMAN:

Q: What -- if any -- manipulation did you or Detective Ridge do to the defendant?

A: None whatsoever.

Q: Okay. Would you ever try to get a person to confess to a crime that they did not commit?

A: Absolutely not.

FOGLEMAN: I don't have any further questions.

STIDHAM: Your Honor, can we have a moment please?

THE COURT: Yes, sir.

STIDHAM: (mumble) review the transcript.

FOGLEMAN: Your Honor, I do have one more question. In regards to State's Exhibit 105, is that the -- excuse me -- I think that's the photograph or the series of photographs that were shown uh, to the defendant?

A: Yes, sir.

Q: When the defendant identified which boy had been sexually mutilated, did you or Detective Ridge use any suggestion to suggest who he should pick?

A: No sir, not whatsoever. He picked out this young man right here, the Byers boy.

Q: Okay.

A: He mentions Michael Moore simply because in the caption, Michael Moore comes underneath this picture. And that's why Detective Ridge read the caption underneath to straighten that out.

Q: Okay.

A: He did pick the right boy who was castrated.

Q: All right. When this -- when he identified as far as when the, the uh -- when he identified who was castrated, where was the picture?

A: Uh, the picture was sitting on the desk.

Q: All right. Was it laying on a desk?

A: Ah, yes sir.

Q: All right. And uh, was anybody pointing to any of the pictures?

A: No sir, not at all.

Q: Okay. I don't have any further questions.



BY STIDHAM:

Q: Inspector Gitchell, this statement wasn't videotaped, was it?

A: No sir, it wasn't.

Q: And you didn't take notes during the first statement, did you?

A: No, sir.

Q: And, um, since you didn't take notes prior to the tape recorder coming on, we really don't know exactly what questions were asked and what questions were answered, do we?

A: Just from recollection.

Q: But if we had a videotape we would know for sure, wouldn't we?

A: Yes, sir.

Q: Now, at an earlier hearing, on January 13th in Marion, I asked you about going on the second tape and immediately you're telling Jessie: "You told me earlier it was seven or eight."

A: Yes, sir. I recall.

Q: And I asked you, when did you talk to him about that. And your response was you didn't remember.

A: My first response, if you'll look in the transcript, was 'I believe it was during the very first taping.' Is that not correct, counselor?

(FLIPPING PAGES)

DAVIS: You know what page you're referring to?

STIDHAM: That's the only copy I have.

FOGLEMAN: I've got a copy. But what page is it?

STIDHAM: (INAUDIBLE)

FOGLEMAN: Inspector Gitchell, what page is that on?

GITCHELL: Um, 146 is what page was shown me.

FOGLEMAN: Okay.

(FLIPPING PAGES, MUMBLING)


BY STIDHAM:

Q: I believe your response, Detective Gitchell, was that you weren't sure.

A: I -- I did make that response later, but my first response was: "I believe it was during the first tape." And then subsequently, after several more questions from you, I told you I really wasn't sure. But I -- I first do -- do recall making the statement "I believe it was during the first tape." Is -- was that not correct?

Q: I believe that's correct, when you said you weren't sure. And you thought it was the first tape.

A: Thought it was the first tape.

Q: And now you're more certain of that?

A: It was during the first tape, yes sir.

STIDHAM: Pass the witness.


BY FOGLEMAN:

Q: How did that come up in that other hearing about the -- what was the whole --

A: It -- it was in the same gist as now, about the mentioning of the times. Um, Mr. Stidham asked me if -- what -- at what time did we -- did that statement come up. I stated at first I thought it was during the taped interview, which this is what the transcript is of --

Q: Mmm hmm.

A: -- which I just testified to.

Q: All right. Were you given an opportunity -- um, uh -- did you go through and look through every page of the transcript during that hearing to see if you could find where it was?

A: Uh, no sir, I have not had an opportunity to do that.

Q: All right. Is that until after the hearing?

A: Right. On this, that I've looked through it, yes sir.

Q: All right. In fact, referring to page 136 of that hearing, Mr. Stidham asked you: "Why does the tape we just heard -- the second tape -- say 'You told me earlier this happened about seven'?" And what was your answer?

A: Um, my answer to him was: "You didn't hear all of the first tape. You've got transcripts of it." And if he had played the whole tape he would have heard what I was referring to.

FOGLEMAN: Okay. I don't have any further questions.


BY STIDHAM:

Q: On the second taped statement, you don't even know what time that was, do you?

A: Uh, it was approximately five o'clock.

Q: Why didn't you announce what time it was on the tape?

A: I didn't think to do that.

Q: And there are several gaps on the tape, is there not?

A: Yes sir, that's accounted for from me leaving the room and going back and talking with Mr. Fogleman. Because he had some questions for me to ask Jessie.

Q: The prosecutor was sending you back in the room to ask Jessie more questions?

A: That's correct.

Q: Isn't it customary, Inspector Gitchell, to -- when you get on a tape -- to announce what date it is, what time it is --

A: (INTERRUPTS) That -- that would be customary --

Q: Let me finish my question, please.

A: Well I was gonna answer the first part.

Q: Isn't it customary that when you stop the tape you announce what time it is and when you go back on tape you announce what time you begin again?

A: That's customary in this type of statement, which we did do that. However, this -- only reason I did this tape is to verify -- because I bel -- I was sure nobody would believe what I would be saying. So that's why I carried the tape in with me.

STIDHAM: Nothing further.

FOGLEMAN: I don't have any further questions.

THE COURT: All right, you may stand down. You're excused (mumble) .

GITCHELL: Thank you.

(WITNESS EXCUSED)

THE COURT: Call your next witness.

DAVIS: Your Honor, the State would call Doctor Vaughn Rickert.