Thanks to Girlene for transcribing.

(<a href=http://pub158.ezboard.com/fwestmemphisthreediscussionfrm31.showMessage?topicID=71.topic>GRIFFIS VOIR DIRE</a> PRECEDES)

PRICE: Your Honor, at this time Id like to object. If the juvenile department of Crittenden County has got anything from my client when he was with the juvenile authorities, if thats confidential, and if that material has been turned over to the prosecuting attorneys office, which has been turned on over to Dr. Griffis, we object to that. My clients entitled to confidentiality. Any confidentiality of the juvenile department has been breached, and we object to that being used as a basis for this doctors opinion.

THE COURT: Okay.

FOGLEMAN: Your Honor, the items that were referred to were taken by a Crittenden County deputy sheriff who transferred them to a juvenile officer who transferred them to the prosecutor to the West Memphis Police Department.

THE COURT: I dont know what yall are talkin about. (laughter)

FORD: Well, your Honor, we, until we get a ruling, we, we need a ruling on Mr. Prices motion.

THE COURT: Well, hes objecting to something thats completely and totally foreign to the Court. I dont even know what hes talking about. I dont know what the witness was getting ready to say something about a goats head. Now

FORD: Until we get to the bottom of that, we need to stop, your Honor.

THE COURT: Well, I mean weve been going for two hours out of the presence of the jury. Lets get to the bottom of it. I agree with that.

FOGLEMAN: Your Honor, those were a few of the items that was taken.

UNKNOWN: Which ones this?

FORD: I dunno, I guess its Damiens. But I dont know.

GRIFFIS: want me to explain what that is?

THE COURT: Not, wait just a minute (unintelligible) Mr. Fogleman, Ive reviewed whats marked States Exhibit 110. Its, uh, it hasnt been introduced at this point.

FOGLEMAN: Now, thats a copy, thats a picture of a book that was taken in execution of a search warrant, so that really doesnt apply to this particular

THE COURT: I know what that is, that came out of the

FOGLEMAN: Other trial.

THE COURT: What is this, a cows head or a goats head?

FOGLEMAN: Its a dogs

THE COURT: A dogs head. Okay.

FORD: Whos gonna, whos gonna establish that, your Honor? That its

THE COURT: I dont know!

FOGLEMAN: Cause its gonna get established that its a head of some animal. I dont care what kind of head it is.

FORD: Whered it come from?

FOGLEMAN: Damiens room.

THE COURT: Okay, 115 shows a, I guess this manual. Its also marked Exhibit 110 with a, is that what you call a pentagram on the top of it?

UNKNOWN: Yes, sir.

THE COURT: All right. You see that?

UNKNOWN: Mm-hmm. (I think thats Ford, but its hard to tell.)

THE COURT: I dont know what this is. This is Exhibit 114. It shows a graveyard or something.

FOGLEMAN: No, thats a

THE COURT: Master Puppet.

FOGLEMAN: Some kind of a heavy metal poster.

FORD: Where was this, what was this, looks like

THE COURT: I dont know what 113 is. Youll have to tell me what that is, too. Looks like, I dont know what it is, afraid to comment.

FORD: Looks like a rock poster. Is that what that is?

THE COURT: Okay, Exhibit 112, where does this come from? It shows a

FOGLEMAN: Damiens.

THE COURT: All right, and Exhibit 111, what does that come from?

FOGLEMAN: Damiens.

THE COURT: Those all procured in the course of the search?

FOGLEMAN: Those were all procured in a consensual search at Damiens trailer in, I wanna say May of 92.

DAVIDSON: Your Honor, wed object, for not only relevance, but also that consensual search was when he was a juvenile and, that, uh, these were turned over to the juvenile officers, and they had them in his file, and as we ruled in, as you ruled, I should say, in Michael Carsons case, juvenile files cant be delved into, and thats the reason that we were unable to delve into his past, and we say that the same thing ought to happen here.

PRICE: We also object

THE COURT: I made no such ruling. I allowed you to cross-examine him with respect to any criminal activity.

UNKNOWN: This is not criminal activity.

PRICE: We also object to the relevancy, Judge. Anything my client had a year before the murders have absolutely nothing to do with these murders. If it took place a year before, thats obviously irrelevant.

FOGLEMAN: It has to do with, your Honor, his, his belief system, his state of mind.

PRICE: Judge, we have the 1st Amendment in the United States, and a person is entitled to believe, to, they can practice their freedom of religion. Anything that he believed, particularly, he, a lot of these he may have had

THE COURT: I dont have any problem with him practicing whatever belief he wants to. That doesnt mean that belief is not a part of, of relevant evidence in a proceeding against him, however.

PRICE: Judge, if its, if its something, if its a writing he had a year before the murders, its obviously not relevant to this proceeding.

THE COURT: Why not?

DAVIDSON: Your Honor, we would

FORD: Your Honor, there is a specific rule of evidence that says ones religious beliefs cannot be used to say that they did or did not believe something or

THE COURT: Well, would you like to point that out to me? What rule of evidence is it?

FORD: I read it last night, your Honor.

THE COURT: Well, Id be happy to see it.

(mumbling)

THE COURT: Were all of these, all of this stuff, was it obtained prior to the murder?

PRICE: Yes. A year.

FOGLEMAN: Well, your Honor, after the murders, hes gonna get rid of everything.

THE COURT: What is your theory of admissibility on this?

FOGLEMAN: Your Honor, that its relevant once its established that its a cult-related killing. This is relevant to show his involvement and what hes participating in and whether this is, this is, the proof will show this is not Wicca. Neither is this, Wicca.

PRICE: What is that, Mr. Fogleman?

FOGLEMAN: That is satanic.

PRICE: And how are you gonna, whos gonna testify to that?

FOGLEMAN: Mr. Griffis.

DAVIDSON: Your Honor, thewhat are you shaking your head at me for?

GRIFFIS: Im just, gimme a drink, counselor.

DAVIDSON: Your Honor, we

THE COURT: I dunno, Ive been shaking my head a bunch too. I couldnt tell you what about. All right, have you found that rule of evidence?

FORD: No, no. I will.

THE COURT: Im reminded of a rule on habit in practice, too, that, that, uh, if youre talking about Rule 610, Mr. Ford, if, if religious beliefs or opinions.

FORD: Thats the specific rule. Thats what were talking about. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the credibility is impaired or enhanced. And thats what theyre trying to do.

FOGLEMAN: Were not trying to impair or enhance anybodys credibility. Were showing motivation.

FORD: Certainly they are!

PRICE: The fact that my client has a picture a year before the murders is a motivation?

DAVIDSON: From a skateboard magazine?

FORD: Does this Rule 404 say this is, that, that right there is motive?

DAVIS: Well, your Honor, its certainly not, Rule 610 prohibits it for purposes of showing that, as to credibility is impaired or enhanced, and certainly what were doing is in no way designed to show whether his credibility is impaired or enhanced. What were showing is a belief system, and Mr. Price says that its a year before and it has no relevance. Your Honor, a belief system, somebodys beliefs in things that they may act on, which is what the State is doing to try to show a motive, is something that the fact that they believed in a year is clearly, year before is clearly relevant. Uh, its not something that, that happened one day and goes away the next. Somebodys beliefs that may be a motive for causing him to act on something that continue over a course of time.

PRICE: Judge, just because my client has writings in his room doesnt necessarily mean these are all his beliefs. A, a statement out of one of this, Incense is used in all witchcraft ceremonies, theres no evidence that any kind of incense was used at the murder scene. Obviously, its not relevant. The state is not alleging that its a witchcraft murder anyway. You can gotheres reference to a 9 ft. circle. Theres absolutely no evidence. I asked the officer earlier last week if there was any kind of evidence of a 9 ft. circle. He said no. So none of this stuff is relevant, your Honor.

DAVIS: Your Honor, one thing we might point out in regard to the book, is thats not a printed book. Thats handwritten.

FOGLEMAN: And, its handwritten, basically, some sort of ritual activity.

FORD: Your Honor, if I could (unintelligible) the opinion of Jason Baldwin, that, if theyre going to be able to use a juvenile file of Damien Echols to show that he had a belief and that he acted in conformity with that belief, then we should have been able to inquire as to the LSD dependence of Michael Carson, which is contained in his juvenile file to question his credibility because he had a drug dependence on hallucinogenics. (Crunching sounds of somebody eating something) If theyre gonna be allowed to use that, the evidence file, the juvenile file of this defendant, we should be able to use the juvenile file of that witness.

THE COURT: Cant find what Im looking for. You also might wanna look at Rule 505 if youre claiming some kind of religious privilege, but, uh, what is habit practice of routine? Is that 500something?

FORD: Im not sure.

THE COURT: Is that what youre offering if, uh, its under?

FOGLEMAN: Your Honor, were offering, if the witness is allowed to testify that its occult related or occult overtones to it, then were offering this as evidence of his involvement in the occult.

FORD: Is this character evidence? Is that what youre bringing it under?

FOGLEMAN: No. Motive. Goes to motive.

THE COURT: Well the rule, theres rule 404B, Evidence of a persons character or trait of his character is not admissible for the purpose of proving he had acted with conformity therewith on a particular occasion except evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Here, all of this stuff were going through, it doesnt go to whether or not either of the defendants committed the crime. It goes to that, uh, element of motivation, intent, scheme, uh, that sometimes the state can prove and sometimes they cant prove. Theyre not even required to prove motive, uh, however, and if, if they wanna attempt to do so they have a right to do so. The, I wanna deal first with the issue on how these items of evidence were originally obtained, and, and, and secondly whether or not theres any prohibition of their use as a result of any violation of any juvenile code. Im more concerned about those two issues than I am up on the, the, the use ultimately in trial of these exhibits. Uh, cuz I think under Rule 404, theyre entitled to use them with the cautionary instruction to the jury that theyre considered only, uh, should be considered only for the purposes of going to prove motivation of opportunity, intent, preparation, planning, knowledge, identity or absence of mistake or accident, and Ill give that cautionary direction if I allow them. Now lets deal with the first proposition. How were these items of evidence obtained?

(TAPE FLIPPED)

FOGLEMAN: As a result of his conversations he went to the residence of Mr. Echols of Lakeshore Trailer Park, uh, asked for permission to search Damiens room, searched his room, took these items, and, uh, turned them over to Jerry Driver of the juvenile office.

DAVIDSON: Your Honor, wed also point out that he was a juvenile then, and a juvenile cannot consent to a search.

FOGLEMAN: He was a juvenile at that time, your Honor, but it was his mother who consented to the search, and I believe if my recollection is correct, there were charges, juvenile charges, arising out of what he was originally questioned about. But not related to the pictures.

DAVIDSON: And, your Honor, those were held in his juvenile file, and turned over to Jerry Driver from there, and Jerry Driver then turned these over to the prosecutor when he started on his trek.

FOGLEMAN: Your Honor, that was after the murders, and there was an order entered by the court, uh, authorizing the release of the juvenile file to the West Memphis Police Department.

PRICE: It was an ex parte order that we were representing Mr. Echols at the time and we did not have a chance to object to the order

THE COURT: Who entered it?

FOGLEMAN: I dont remember.

PRICE: I think one of the juvenile

FOGLEMAN: Probably, same, same order yall got.

PRICE: Im not blaming juvenile, Judge.

DAVIDSON: The same order we got that was approved by Mr., Mr. Davis, right?

FORD: And you couldnt, uh, and you wouldnt let us use it.

THE COURT: Now, wait a minute. One at a time, one at a time.

FOGLEMAN: No, that related to medical privilege and you know that.

THE COURT: If youre talking about the stuff in the other case, that clearly didnt have anything to do with the issue before the court right now. That had to do with medical treatment. It had to do with privileged information, medical treatment that was required to be given by the physician.

PRICE: But thats not true.

THE COURT: Welltake it up on appeal.

PRICE: We may do that, your Honor.

THE COURT: Well, if you do be sure to put that point in, because Ive ruled on that and Im not gonna rule again.

(mumbling)

THE COURT: All right, yall wanna say anything about how they acquired this?

PRICE: Well, you gave a copy of the juvenile code, your Honor, that contains the section about confidentiality.

THE COURT: Well, hes telling me theres an order from the juvenile judge giving possession of these items to, uh, law enforcement. In this case.

PRICE: At this time, we want to object to that order because we didnt, we havent had a chance to object to it until this point.

FOGLEMAN: Well, your Honor, all I can say is that they were given a copy of it.

PRICE: Thats true.

THE COURT: In fact, I believe you used the same order to, to, uh, uh, receive the evidence.

PRICE: Thats correct, your Honor.

DAVIDSON: It wasnt the same order.

THE COURT: Are there two different orders?

DAVIDSON: Yes.

THE COURT: Well, who signed them?

DAVIDSON: Youuh

THE COURT: You wanna call Judge Wilson or, uh, Judge Goodson in here? I know I didnt sign em. If I did I dont remember anything about it.

DAVIDSON: No, you did not.

FOGLEMAN: I, I think it may have been Judge Goodson.

THE COURT: I think it was Judge Goodson, the one yall showed me the other day, and he also indicated to me that he didnt intend to turn over any medical files, or he just happened to get em. What do you wanna do? Do you wanna spend the rest of the day hashing this out? Its all right with me.

PRICE: Yes, sir. Sure.

THE COURT: Well, its five minutes to twelve. The court will be in recess until 1:00.

(Gavel pounds, random court noise, tape cuts off.)

(Tape cuts back on, random noise still present.)

THE COURT: Nobodys even asked him about the missing parts.

FORD: I havent got there yet!

THE COURT: You havent asked him about whether the severed penis has anything to do with it or whether the phallic symbol means anything, whether or not the missing testicles mean anything. Im gonna go back here and take a recess.

GRIFFIS: Is this

THE COURT: Oh, you can stand down.

GRIFFIS: Thanks. Okay. This place doesnt have any air.

(Tape cuts off and back on again.)

THE COURT: proffered testimony of occult expert and other occult activities to prove motive, is more prejudicial than probative, or vice versa. All right, you may proceed. Wheres my witness? Did we forget to tell him to come back? (laughter) Uh, Mr., ahGriffith? Was that his name? Griffis?

(Mumbling)

THE COURT: Well, I dont really know that we need him. Werent yall through questioning him anyway?

WADLEY: Mr. Griffis? No. We had broken up over this juvenile file, which he indicated was the basis of (unintelligible)

THE COURT: I think what he indicated that that was some additional information that hed been (tape cuts out)

WADLEY: foundation for the (unintelligible).

THE COURT: Well, I think he can. I think he can use evidence thats either admissible or non-admissible for the basis for his opinion.

WADLEY: Well, Ill agree thats the rule. I just--

THE COURT: It doesnt have to be necessarily be admissible for him to utilize it for his opinion. In fact, they can actually consider hearsay and matters that are not admissible in order to formulate an opinion.

WADLEY: But your Honor, he cant consider that, Judge. If that is the situation, that he, like that other situation, if it was gathered in a way that it you should not have been able to gather it, then he shouldnt be able to consider it.

FORD: Your Honor, there needs to be, there needs to be extreme caution used here about whether he starts to formulate any opinions based on the statement of Jessie Misskelley.

THE COURT: I dont know if he has. Has he?

FOGLEMAN: What about Jessie Misskelley? I havent shown him anything on Misskelley, so he might wanna

WADLEY: So, we dont have him, we dont have to worry about him saying, Well I took into account the statements of Jessie Misskelley.

FOGLEMAN: Nah, I wish Id thought of it. Judge, hes in the restroom. Hell

THE COURT: Okay. Well, gentlemen, just, Ill point out to you Rule 703come on up, please. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Like I said, there are two issues I wanted to take up. One is how those items that you just asked about, Mr. Ford, were acquired, and I cant remember what the second one was now. It seemed important at the time. What was it?

FOGLEMAN: How they were acquired

WADLEY: Relevancy. Whether or not it was

THE COURT: Well, relevancy, relevancy of all of it is the issue.

WADLEY: I thought, I thought the courts inquiry, your Honor, was firstly, what was acquired and secondly, how was it acquired? The manner in which it was acacquired. Those same issues that we dealt with earlier concerning

(mumbling)

FOGLEMAN: Your Honor, theres no dispute, I dont believe, as to how we acquired it.

WADLEY: I dont know. I dont know.

DAVIS: In the statements Mr. Fogleman made earlier before lunch (unintelligible) that they were turned over to the juvenile authorities, we agree with all that.

(Mumbling)

THE COURT: All right, Ive reviewed, uh, an order in that regard

PRICE: Yeah, but you dont

THE COURT: what filed of the 19th day of July1993, signed by Judge David Goodson, where, um, um, all of these records were ordered turned over to the Crittenden County Deputy Prosecuting Attorneys office and the West Memphis Police Department to assist in a criminal investigation.

UNKNOWN: Your Honor, that

THE COURT: (clears throat)subject to a Arkansas Code Annotated 9-27-309, which is the statute on confidentiality, and that provides that all records may be closed and confidential within the discretion of the court. Here clearly the court exercised its discretion and made those files available not only to the state and the law enforcement but to the defendants as well. Some mention was made as to, um, what was the young mans name?

FORD: Michael Carson.

THE COURT: Carson? You all wanted to utilize medical evidence that had been turned over, uh, as well, and that evidence had, was compulsory evidence obtained by action of the court that bore the doctor-patient privilege, and I ruled that that evidence, even though it might have been turned over under court order to defense counsel by the juvenile court, that the physician-patient privileged communications still pertained, not withstanding the order. Now, that deals with part of it. Now, the next issue is whether or not those four or five itemswhere are they? They were up here. Whether or not theyre one, too remote to be considered as relevant in this case, number two, whether or not theyre even relevant to any issue in this case, number three, whether or not its an attempt on part of the State to prove, to prove character, testicharacter, produce character evidence and suggest by that production, that the defendant acted in conformity with that, uh, evidence. And of course I point out Rule 404B, that an exception to that rule is where the evidence is offered to prove motive, intent, scheme or design. The only relevancy in this case for this type of testimony is to prove the possibility of a motive.

DAVIDSON: Your Honor, along those lines, we could certainly argue that the, ah, obtaining of this material was too remote from the alleged crimes to make it relevant in any manner.

THE COURT: All right, anybody else wanna have anything to say?

DAVIDSON: In that it was in, when, 1991?

THE COURT: 92.

DAVIDSON: 1992? And also, your Honor, that, uh, we still maintain that this was part of a juvenile record and that, uh, uh

THE COURT: Well, juvenile court dealt with it, not me.

DAVIDSON: Those are confidential items in that, uh, and that that order was obtained, uh, without us ever being, ever being there or apprised of it, uh, an ex parte order.

FORD (maybe Fogleman): It was an ex parte order, your Honor.

PRICE: Because furthermore, if you actually look at these items, theres nothing in here thats relevant to this murder. Nothing in here relevant to, to any type of motive, or any evidence at the crime scene or anything of that nature.

DAVIDSON. And because of that, the nature of that would be so highly inflammatory that its prejudicial effect would outweigh any probative value that it would have.

DAVIS: Your Honor, the States basis for believing that the probativeness outweighs the prejudicial effect is that in this case, because of the bizarre nature of the type murders that were talking about, we feel its very important and probably is going to be a prerequisite for the State to show some type of motive for these type killings. Otherwise, I think, people on the jury may very well, it may be beyond their comprehension how something or why something like this could take place, and I think its going to be very important for the State to establish a motive as to why it occurred. Weve brought forth an expert that has an opinion that these motives, that these killings were cult-related. Other evidence that reflects that directly ties these defendants in this particular case, these items directly tie Mr. Echols to a, and I think the expert can indicate that these items show a, a practice and a set of cult-related beliefs and practices of Mr. Echols, then that becomes highly probative for the State to put on in order to establish that motive, which although not required to be proven by the State, in a case of this nature, its nearly incumbent on the State to present evidence in that nature. And here you have evidence that is relevant and probative as to that particular matter, and, uh, any evidence that is detrimental to the defendant, they can allege is prejudicial, but obviously, uh, the Court does not keep out evidence just because its prejudicial. Its if that prejudice substantially outweighs the probative value. In this case, because of the need to establish motive, that probative value is important.

PRICE: Judge, one of the items in here is a cure for worms. Worms has absolutely nothing to do with this case whatsoever. Thats not one of the factors that could be a basis of a cult or a occult related killing. A cure for worms is just simply not relevant. Another thinga cure for cramps. A cure for cramps is not relevant to any issue whatsoever in this case. A formula for a love spell is not related to any issue in this case. To improve the chances of success is not related to any issues in this case. And I, I, there are other examples in here as well. And just the fact that my client has some writings, I mentioned earlier that the rites are performed within a nine-foot circle. Theres no testimony, I even asked Officer Allen and Ridge if theres any evidence of a nine-foot circle being at the crime scene. He said no. So obviously that cant have any relevance. Incense is used at all witchcraft ceremonies. Theres no evidence whatsoever that the State has produced that there was any kind of incense at the crime scene. This is simply, its just not relevant, and its more the States, um, the State is doing this to, to, to, to, I dont know what theyre doing this for, Judge. But its certainly damaging to my client. Its not, it is not relevant to any--

THE COURT: Its not relative, relevant, how is it damaging to your client? You can make all those arguments to the jury.

PRICE: Okay, if its not relevant, then, thats, its not, its not

DAVIDSON: Your Honor, I would also like to point out the time. This was over a year ago.

THE COURT: Ive already, Im the one that raised that issue for you, when I said, uh
       
PRICE: Judge, if this had anything to do with killing people, sacrificing children, sexual crimes, anything of that nature, perhaps it might be relevant.

THE COURT: I dont know, I havent heard what this gentleman has to say about whats written in there, whether it has any relevancy or not to witchcraft or devil worship or occultism or whatever were characterizing it as.

PRICE: But even, even these pictures cant be relevant for any

THE COURT: I dont know.

PRICE: any issue in this case.

(Whispering)

THE COURT: (In hushed tones) On the courtyard, or tell the rest of them to get rid of them. Take care of it. (Normal voice) Its nothing.

DAVIS: Your Honor, Mr. Price seems to be arguing that if there is no statements in here of murder or whatever that that indicates that this item is not relevant. What we intend, that, what we believe the relevance is, that there will be testimony induced that these crimes had the trappings of an occult related homicide, and evidence that connects and shows a belief system of this defendant and, and shows writings of this defendant, which this expert can say are occult in nature, then become important as a factor in establishing that motive which we intend to prove and put evidence on by the (unintelligible)

Stopped at 16:51