[thanks to sea for transcribing]

(SUDBURY EXCUSED)

(OUTSIDE OF THE PRESENCE OF THE JURY)

THE COURT: Alright, let's uh - let's call the jury back in and finish with -

FOGLEMAN: Bill Durham.

THE COURT: He's back here -

FORD: Your Honor, did he find that list of ten witnesses - ten -

THE COURT: I don't know. Uh - before the jury gets in here, let's resolve that question. Have you got the list of ten witnesses?

FOGLEMAN: Your Honor, they weren't able to find the list, I don't know if the list exists or not.

THE COURT: Ok.

FOGLEMAN: And your Honor, we would submit whether the list exists or not is not relevant to any issue before the jury.

THE COURT: I'm having a hard time with the relevancy on it as well Mr. Price. What - how would ten possible suspects, if they did exist and if he did show a photo lineup of ten suspects, how would that be relevant to the issue before the Court?

PRICE: Judge, these were the two individuals working the Blue Beacon um - truck wash and there's been testimony used by the State that my client was seen walking near the Blue Beacon about 9:30, I'm certainly -

THE COURT: Well, the - I understand that these two witnesses -

FOGLEMAN: - Your Honor, they said they got off work at 4:00.

THE COURT: - That these two witnesses testified in that statement or at least in the statement that they didn't see anybody.

PRICE: If - if -

DAVIDSON: - We're not asking what these witnesses said, your Honor, 'cause that would be hearsay, we wouldn't do that. What we're doing is we're asking -

THE COURT: (LAUGHS) Go ahead, alright.

(COURTROOM LAUGHTER)

DAVIDSON: What we're asking for is to show his investigation to find out what this officer did, to show how he handled this, and uh -

THE COURT: - Well, the police report and his investigation -

(TAPE FLIPPED)

PRICE: I know Judge, it's never been in any of the 5,000 pages discovery that we've received.

THE COURT: Well, what, do you have it? Was it in there?

FOGLEMAN: Your Honor, I can't say whether it ex - whether it's there, or if it ever existed.

THE COURT: Did you have the - go through the boxes of files with them?

PRICE: I've gone through everything they've sent me, Judge and -

THE COURT: Did you find it?

PRICE: No sir. That's my point and I'm entitled to bring that out to the jury.

THE COURT: No.

PRICE: Yes sir, that they were doing photographic lineups to witnesses and they don't have reports, they don't know which photographs they showed any witnesses.

DAVIDSON: There's other possible witnesses that they have showed the ten people to and we don't know who the ten people are and haven't gotten it through discovery, this is the only way we can -

THE COURT: - Have any of those supposed witnesses ever identified anybody out of that photographic lineup?

FOGLEMAN: No.

PRICE: Yes sir.

FOGLEMAN: Who? Now this is gonna be another confession?

THE COURT: That wasn't a confession, I did look at some of it.

(COURTROOM LAUGHTER)

PRICE: Judge, in the Aaron Hutcheson statement, Aaron Hutcheson is asked on two occasions to look at photographs and identify somebody, the one that we have a copy of says, "It's not one of the photographs you're showing me Detective Ridge, it's the one I showed Officer Bray yesterday." We know of two - those two other photographic lineups, they've never shown us a list of who the ten photographs were.

DAVIDSON: They - they have a cutout, your Honor, with - they've shown us this much, there's a cutout and it has ten squares in there or maybe more squares, and they've got that in the evidence, the ten cutouts, but we never know which pictures are in there.

FOGLEMAN: Your Honor, I don't know which pictures are in there either, but these witnesses - the witness are questioned about the statement didn't identify anybody, said that they had never seen anybody in the picture, said they had not seen anybody in the woods and they got off work at 4:00.

PRICE: Judge, if they showed - if they showed this witness, this alleged eyewitness, my client's picture and he doesn't pick out my client that exculpatory and we're entitled to know who the ten pictures are.

FOGLEMAN: He's not an alleged eyewitness, he said he didn't see anybody.

PRICE: Judge, has the State read the 8 statements that Aaron Hutcheson has given because several of them indicate he was an eyewitness. Others of them indicate he just watched, some of them he was there, some of them he wasn't.

FOGLEMAN: And he identified your client.

PRICE: But I'm entitled to ask about the photographic lineup, Judge.

FOGLEMAN: Aaron Hutcheson is not on the stand.

THE COURT: Well -

PRICE: You had asked earlier about other photographic lineups, Judge. The fact that they showed a witness ten possible suspects, we're entitled to know who the ten photographs are. And it's not in this report, that's not in any of the material that we've gotten. Period.

THE COURT: If he knows, I'm gonna let him say who they were.

PRICE: Alright.

FOGLEMAN: Your Honor, we still submit that it's irrelevant, nobody - he didn't identify anybody, he said he saw nobody. Not that he didn't see anybody in the lineup, that he didn't see anybody.

PRICE: I could certainly follow up that question, Judge.

THE COURT: With what?

PRICE: I could follow it, did he ask - talk to the individuals that were working at the Blue Beacon past 4 p.m.

DAVIDSON: Your Honor, we're not even gonna ask the question, did he identify anybody, that's not - that's hearsay.

FOGLEMAN: No, you don't want 'em to know that they didn't - couldn't - didn't see anybody.

THE COURT: Well, if all you're wanting to do is bring out like similar to that uh - medical record where you wanted to bring out almost 40 names, I didn't count 'em so I'm not sure the exact number, but between 20 and 40. Of people that had been, in a course of an investigation, identified as somebody that might be a suspect, at least that they needed to question, if that's your sole intent and purpose then it's not relevant.

PRICE: Judge, this was less than a week before my client was arrested, May 29th.

THE COURT: Alright.

PRICE: The report says they were each shown the ten photo spread of possible suspects and I'm entitled to know who those ten photographs were.

FORD: Your Honor, we're also enti - on behalf of Mr. Baldwin, I'm interested to know if they even - if they even included Jason in the ten. Based on the letter that Mr. Gitchell wrote that he was blindfolded, they may not even have had Jason in that list. That would be relevant too, your Honor.

THE COURT: I'm gonna rule based upon the statement that you're asking this officer about the two witnesses that weren't able to identify anyone, that the pictures they shown 'em are not relevant.

PRICE: Judge, how can you say the pictures aren't relevant if you don't know what the pictures are? And that's my point, we need to know what the pictures are.

THE COURT: They didn't identify anybody, they're not relevant.

PRICE: If they've got ten suspects, they are relevant Judge. And we're entitled to know who they are.

THE COURT: The fact that they have ten suspects?

PRICE: Yes sir.

DAVIDSON: Yes.

PRICE: And if, Judge, the day after the murders, my client, they went out and took his picture. So they've had his picture all this time.

FOGLEMAN: That is not true. That is not true.

PRICE: That's not true?

FOGLEMAN: That is not true.

DAVIDSON: Hadn't that already been testified to? That the guy -

FOGLEMAN: Not the day after the murders.

DAVIDSON: When was that?

PRICE: Two days after the murders.

FOGLEMAN: Uh, 6, 7, - probably the 8th or the 9th.

PRICE: That's not the statement of Steve Jones that the day after the bodies were found, we went out and -

THE COURT: - If you need to question the witness to make a record, fine.

PRICE: Yes sir, I do.

(PAUSE)

FOGLEMAN: Detective Durham is out there.

THE COURT: No, don't bring the jury back in, just the witness - just Durham - just Durham, he's right out there. No, not right now. Here he is.

(COURTROOM NOISES)

THE COURT: Alright, let's proceed. Let the record reflect that this is a hearing out of the presence of the jury.

PRICE: Alright Officer Durham, now that we've have the break, were you able to go back through the records and find the ten photograph spread of possible suspects?

DURHAM: No.

PRICE: Alright.

THE COURT: Not if it existed. Did you show ten pictures?

DURHAM: According to my notes, I did, I have no personal recollection of it.

THE COURT: Ok.

PRICE: Do you have any personal recollection if Damien Echols was one of the photographs?

DURHAM: I don't recall of my own personal recollection what photos were in there.

PRICE: Alright, well, is it your policy with the West Memphis Police Department, when you give a photographic lineup to write down which photographs are shown to a possible witness?

DURHAM: If I get identification. Of course these men said they had not seen anyone - period, regardless of who they were in there. I showed the photographs to see if they had seen anyone hanging around between the hours of 8 a.m. and 4 p.m., when they worked, and they had not.

PRICE: Alright, let me back up here - it's your testimony, if you get an identification you write down who they picked out. So if they don't identify anybody, you don't write a report?

DURHAM: I - I didn't say that Mr. Counselor, you trying to put words in my mouth.

PRICE: Well, no sir, I'm asking - I'm asking you if - you said, "When - If I get an identification, I'll write a report." My question is, if you don't get identification do you write a report? Do you write down, I showed 'em these 10 people and he didn't pick out anybody, that's what I'm asking for - where's that report?

DURHAM: I can't locate it in these tons of files. Yes, in the course of a criminal investigation, normally if I show a photo spread and a suspect in it is identified, I'll list the entire thing. If the particular witness of a crime does not identify anyone, I'll make a note of that. These men said they didn't see anyone - period.

PRICE: Alright, but you - you did ask them - you did have ten photographs, correct?

DURHAM: According to my notes, I did.

PRICE: Ok. And y'all have a - there's a board that y'all have that, with cutouts and you put 5 pictures on top and 5 pictures on the bottom, correct?

DURHAM: Mr. Counselor, I don't recall whose photos I had.

PRICE: Alright.

DURHAM: I have no personal recollection of this, I don't know if I can answer these questions.

PRICE: Ok, my question is, do y'all have a board with ten holes in it to put pictures in? Yes or no?

DURHAM: We do.

PRICE: You do. And underneath the - where the holes are, there's 1, 2, 3, 4, 5, 6, 7, 8, 9, 10. Correct?

DURHAM: We don't always use that.

PRICE: Alright.

DURHAM: I could have had ten photos in an envelope.

PRICE: Alright.

DURHAM: In a random order.

PRICE: Ok.

DURHAM: I have no personal recollection of it, Mr. Counselor.

PRICE: Alright. But each photograph has - there's a number assigned to each photograph?

DURHAM: On our photographs, the person's name is generally on there and we cover it up with a piece of white cardboard.

PRICE: Ok. Alright. And since we're on the proffer, these individuals indicated that they had never seen any of the subects in the photos, is that correct?

DURHAM: They said that in addition to, they said they had not seen anyone go into the woods on that date.

PRICE: Ok. Now, they worked at the Blue Beacon between 8 a.m. and 4 p.m., correct?

DURHAM: 8 a.m. and 4 p.m., that's correct.

PRICE: Ok. Did you ever talk to anybody that worked at the Blue Beacon past 4 p.m.?

DURHAM: I do not recall.

(BACKGROUND MUMBLING)

PRICE: Ok now - it's your testimony that on this particular date, you don't remember if you used the board or just spread the photographs out?

DURHAM: Mr. Counselor, I'll say it again, I don't recall this particular incident.

PRICE: Ok. And you don't recall if Damien Echols was one of the pictures that you showed these two gentlemen?

DURHAM: Mr. Counselor --

PRICE: Yes?

DURHAM: -- I do not personally recall this incident.

PRICE: Alright. After you di -- after you showed the photographic lineup to them and they didn't identify anybody, where did you write down the notes?

FOGLEMAN: Your Honor, he just said for about four times that he didn't recall the incident, so I don't know how he can correctly answer the question.

PRICE: I wanna know if he wrote notes down and lost 'em or if he just didn't bother to write notes down, Judge. And I'm entitled to ask him that question.

DURHAM: For the fifth time, Mr. Counselor, I do not personally recall that incident. I don't know how to answer your question.

PRICE: Ok. Do you recall after you showed the photographic lineup to the two individuals, if you went back and told Inspector Gitchell what the results of that photo lineup were?

DURHAM: With the exception of my notes right here, I have no personal recollection of this incident.

PRICE: Ok. Officer Durham, excluding this particular photographic lineup, in other photographic lineups, is it your common practice to write down the names of the photographs that you show to a possible witness, even if they don't identify anyone out of the group?

DURHAM: Yes.

PRICE: Ok. Do you recall specifically if you conducted any other photographic lineups in this particular case?

DURHAM: Mr. Counselor, I probably talked to at least 200 people if not more personally, during the course of this investigation. I have no idea how many people we talked to during this four weeks.

PRICE: Ok. My question is, out of those 200, how many of them did you show the -- THE -- ten photo spread of possible suspects?

DURHAM: Mr. Counselor, I don't recall.

PRICE: Thank you. One more question, in the - the way that y'all classified the evidence and the reports and material that was coming in, did y'all have a separate file on photographic lineups?

DURHAM: I didn't set up that file, I can't answer that question.

PRICE: Alright, who did? Who set up the filing system in this case?

DURHAM: I believe Detective Ridge and Inspector Gitchell were in charge of the files.

PRICE: Alright. Anything else? That concludes my proffer, your Honor.

FORD: Your Honor, we have one question.

THE COURT: Alright.

FORD: To be included. Detective Durham, based on your questions, is it fair for me to assume you can't recall whether Jason Baldwin was one of these ten people, can you?

DURHAM: No sir, I do not.

FORD: So you're not able to even tell me now whether on May the 29th, the ten suspects included Jason. You can't say yes or no to that question, can you? If you don't know if he was in that ten, then you don't know whether he was even listed as one of the top ten suspects, four days before his arrest, is that true?

DURHAM: I don't know that we had a top ten suspect list on that occasion, Mr. Counselor and no, I don't recall who was in that lineup.

FORD: Thank you.

FOGLEMAN: Just to clarify, I want to show you this subject description form and ask you what date it was when you talked to those people, just to clarify that. Look at the subject description form.

DURHAM: This was on May the 26th, 1993.

FOGLEMAN: I don't have any --

PRICE: Judge, I do have something further. Officer Durham, on the -- on this page here, what is -- what's the date here? I can't tell if that's a comma in there or --

DURHAM: May the 26th, 1993.

PRICE: May the 26th. Alright. May the 26th. Ok. No further questions of this witness, your Honor.

THE COURT: Alright, I'm gonna stick with my ruling, this is simply not relevant, who the suspects were, if any. And apparently the witness can't recall who they were in any event. And uh -- it could be misleading and confusing to the jury and I'm not gonna allow it.

PRICE: If this witness shows a photographic lineup of ten pictures --

THE COURT: To two witnesses --

PRICE: -- to two witnesses.

THE COURT: -- that say "I don't know anybody."

PRICE: And he says he can't tell -- he has no idea who the photographs were --

THE COURT: What is the relevancy?

DAVIDSON: Judge, this is the same as the fingerprint testimony that was just on there, they put someone on there and say, "Well, no fingerprints."

THE COURT: And if they hadn't done that, the first question you'd said to the jury was "Where's the fingerprints?" I mean, that's the reason they did that and you know it as well as I do, it's done all the time.

DAVIDSON: Same thing here, I think we're entitled to ask him what he did in his investigation and what he didn't do.

THE COURT: Their investigation is not the subject matter of the trial. The results of it may be.

FORD: And if you don't know -- if the results are relevant, they mean nothing unless you know what led them to those results. It's like saying --

THE COURT: I'm not gonna let -- I'm not gonna let y'all drag in a bunch of names as potential suspects and bat them around.

PRICE: Judge, I just want to know what number was assigned to Damien Echols' photograph.

THE COURT: Do you know?

PRICE: You know that, Mr. Durham?

DURHAM: Your Honor, I don't know that his photograph was in that group of ten.

THE COURT: Ok.

FORD: Are we entitled to ask him if our -- if Jason Baldwin was even in that ten suspect list.

THE COURT: I don't think he knows whether he showed the - a list of ten photographs from what I gather from his testimony.

DAVIDSON: Can't we ask him, according to his report, and let him say, "No, I don't remember."

PRICE: Sir, and I take -

DAVIDSON: That's good enough for us, Judge.

FOGLEMAN: What is the relevance of the fact? Let's say that he was or was not, either one, either way you wanna look at it. What possible relevance is there that a person's picture was in a lineup?

PRICE: The relevance is Judge, they did a photographic lineup and they don't have a record of who the photographs were.

THE COURT: So what.

PRICE: So -

THE COURT: If it were relevant and if there was identification, I'd allow it.

PRICE: Judge, if they're showing anybody my client's photograph, it's relevant.

THE COURT: Well, if they were showing a photograph of your client or either defendant and didn't do anything with it and they had a witness that came up and said it was #3, which was one of the defendants, then I'd throw that lineup up out.

PRICE: But if they showed -

THE COURT: It would be relevant, extremely relevant at that point because they did nothing to preserve their records.

PRICE: If they showed the witness ten photographs and they didn't identify anybody and my client's one of those ten photographs -

THE COURT: He didn't identify anybody, so what's the difference?

FORD: It's exculpatory, your Honor.

THE COURT: How can it be exculpatory if it doesn't identify anyone?

FORD: Because he's - because the suspect - if the suspect's in the lineup --

THE COURT: -- but the --

FORD: -- and they say "Did you see any of those people?" and they say "No", that's exculpatory because as an eyewitness, I can't pick one of those guys out as a poss - perpetrator.

THE COURT: The testimony was is that they didn't see anyone, big difference. I'm not going to change my mind on it. Alright, call the jury back.

(COURTROOM NOISES)

THE COURT: You don't have any other questions of this witness?

PRICE: No sir.

THE COURT: Alright, you may sta - do you have any more?

DAVIDSON: No, but he may.

FORD: Your Honor, is it your ruling that it's not relevant whether Jason was a suspect five days before his arrest? That that's not relevant?

THE COURT: Well, it could be, but I'm not - I mean, it could be, yeah --

FORD: Well, you know, if he's not a suspect five days before his arrest, I think that's relevant. That's all I wanted to ask this guy. That's all, that's what I'm driving at, not what --

THE COURT: Did you want to ask him, does he know or he doesn't remember is the problem.

FORD: Well, I realize that, but that's the reason I'd like for the Court to inquire as to his whereabouts of those ten photographs.

THE COURT: I've already asked them and they say they don't know and don't know if they ever existed.

FORD: Ok. Can I have one of those?

THE COURT: Yeah.

FORD: But you do think that is relevant, don't you? That whether he was a suspect five days before?

THE COURT: Not necessarily. Not that fact taken alone. I mean, he could have been developed as a suspect the day he was arrested.

FORD: I think that's what happened.

THE COURT: I do too.

(RETURN TO OPEN COURT)

THE COURT: Alright, you may stand down. Call your next witness.

FOGLEMAN: We call Bryn Ridge.