Motion & Ruling I

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AL	Motion & Ruling I	Lead	[-]
Posts: 3441 (12/08/2005 2:05 AM) Administrator Reply Quote More My Recent Posts Message Me Connection Blocking Invite Ignore User's Posts	Tags : None (WITNESS EXCUSED) THE COURT: Does anyone else have anything to say on this issue? MR. ROGERS: Yes, your Honor. I'd like to respond to the legal argument. THE COURT: All right. Y'all be brief because I'm going to ask you to each file a detailed brief, and I recognize the imposition of the new law of the last legislature might be a thorny issue for all of you to deal with. MR. ROGERS: Your Honor, I'll be brief. The Court is more aware than probably any of us here the status of the law prior to the enactment of Act 1193. There are a series of cases that made their way through the lower courts into the State Supreme Court. There's the State versus Post case. Dillon versus State, State versus Independence County. THE COURT: I'm familiar with that one. MR. ROGERS: You're familiar with all those cases. Your Honor, basically as the Court is very well aware, there was a void created in the law because of the ruling that the fee cap was unconstitutional, and it is my understanding that [000838] under these series of cases we've talked about the responsibility was primarily on the State in view of the void that had been created. I think it has been established by statements of counsel, but I do want to make it clear that the appointment date of these gentlemen who were appointed to represent these various defendants was June 4th. Am I correct about that? MR. PRICE: Correct. So stipulated. MR. FORD: I was appointed on 6-4. I think the other attorneys were not appointed until the following Monday morning, June 7th. MR. PRICE: That's correct. MR. FORD: I was the only attorney still on board that was appointed at the municipal court hearing. MR. STIDHAM: I believe that's correct. MR. ROGERS: Is there any objection to that stipulation for the record? MS. HARBERG: No objection. MR. ROGERS: In view of that stipulation there's no dispute but that all of these attorneys were appointed prior to the effective date of Act 1193 which I am advised was July the first of this year since it did have an emergency clause. Your Honor, the Court is well aware that the law [000839] does not apply retroactively unless it specifically so states and if it does so state, there may be some constitutional implications to that. I have a series of cases that I will cite in my brief, but I would want to bring them to the attention of the Court. There's a Court of Appeals case, 777 Southwest 2d 620; Arkansas State Police versus Welch. Reading from the headnotes, "Changes in statutes relating to vested rights are characterized as substantive and require application of the law as it existed at the time" -- this was a comp case -- "at the time the individual sustained a compensable injury." Union National Bank versus Barnhart, 823 Southwest 2d 878. "All statutes are to be construed as having only a prospective operation unless it is the purpose and intent of the legislation is to give them a retroactive effect and it is expressly declared or necessarily implied by the language used." Your Honor, I would make that point because under the act obviously these gentlemen had already been appointed prior to the effective date of the act, and the act itself they have cited -- from the two sections that I hurriedly looking through it -- there's one in Section Six, Subparagraph (f) it says, "Appointed" -- I emphasize appointed -- "private [000840] attorneys shall be paid reasonable fees and compensation for expenses by the County where the crime was committed." Section Eight, "When private attorneys from another area are appointed to represent an indigent person, the attorney or trial public defender shall be paid by the County where the crime was committed." The emphasis is on appointed, your Honor. These gentlemen were all appointed prior to the effective date of this act. It is just like the legislature passing a law July first, '93. Therefore, the county was not responsible. That was not the state of the law at that time. It was the responsibility of the State, and we will make that point in our brief. THE COURT: Do you want to respond? MS. HARBERG: Short reply, your Honor. First of all, the State is not asking that the law be applied retroactively at all. We're only asking that the statute be applied at its effective date which was [000841] July first. The emergency clause is very clear. The General Assembly of this state said in its emergency clause that State versus Post has created a great uncertainty regarding the payment of legal fees and expenses, and delay -- that delay -- that uncertainty should not go on, basically is what they are saying. It is true that the sections say "appoint" but I believe that this act is mandatory in that this Circuit Court needs to reappoint these attorneys pursuant to Act 1193 in order for them to be official, and at that time they would be appointed under the new act and the Eighth Circuit Court of Appeals case that I cited in my memorandum specifically states that the Court did this nunc pro tunc. Justice Arnold reappointed them under the new act so they would benefit from everything it has to offer which is resources from the Public Defender Commission. There's benefits that go with this new act also. THE COURT: Again, tell me the status of those extraordinary funds. You say there's still fifty-five thousand dollars available? MS. HARBERG: No, your Honor. The extraordinary funds have been spent. That extra two hundred thousand dollars that the legislature appropriated this last session. It's gone. [000842] THE COURT: That was used to pay the Independence County bill. MS. HARBERG: That and some other counties, your Honor, but it is gone. THE COURT: There's no state funds available to cases of extreme expense to individual counties. MS. HARBERG: The legislature would have to go back into session -- THE COURT: Is the act still -- MS. HARBERG: The act -- THE COURT: That portion of the act was not repealed by the new act? MS. HARBERG: It was. THE COURT: It was repealed. MS. HARBERG: There was a portion of the act dealing with trial expense assistance other than attorneys fees. That portion from the way it looks like it is interpreted in the repeal clause -- that fund is still available. THE COURT: Is there anything in that fund? MS. HARBERG: It's the -- it's -- no. It is the fifty thousand dollars. It is all lumped together. THE COURT: The counties still have to apply for that after the conclusion of the case by certifying their expenses and so forth. [000843] MS. HARBERG: Act 1193 does allow for interim attorney's fees. I don't know about interim expenses. I don't know about that. THE COURT: Mr. Rogers, you want to file a brief and would the A.G.'s Office or any of the involved attorneys be interested in filing a brief on this matter because I'm going to take it under advisement. Obviously, the attorneys are going to be paid reasonable fees. I'm not prepared at this time and may not be prepared until the end of the case to decide how it should be divided. But I would like detailed briefs, particularly on if there is any corollary position from other states where this might have come up. The Simmons case that you mentioned on that drug fund is kind of a close parallel. Mr. Rogers, you have not done your brief? MR. ROGERS: No, your Honor. THE COURT: I'll give you thirty days to brief it, and if y'all want to file briefs, you can, too. I'll reserve any ruling on that at this time. You're free to go. MR. ROGERS: Thank you, your Honor. MS. HARBERG: Thank you, your Honor. MR. FOGLEMAN: The State had two motions that it [000844] filed -- THE COURT: Let me make one other point on that. I'm going to direct the appointed attorneys to prepare their expense records, their statement for services rendered including detailed explanation of your hours from the day of your appointment through today with specific emphasis on the date of appointment through July one, and you can attach that to your brief or file that with the Court just as soon as possible. MS. HARBERG: Your Honor, if the State is going to be made responsible for the entire amount, we request that time sheets be submitted weekly. THE COURT: I'm asking them to submit time sheets through today and if I -- I don't want to dwell on how the lawyers are going to be paid until the case is over with. If I decide that earlier and I put the burden totally on the State, I will require weekly time sheets. MR. STIDHAM: Your Honor, you're asking us to file time sheets up to -- THE COURT: Up until today with the Court. MR. STIDHAM: In the court file? THE COURT: With the Court. With the Court. That's me. MR. FOGLEMAN: The first was a motion by the [000845] State. One additional motion for discovery with regard to Damien Echols, asking for specimens of his handwriting. We did not have that in our original motion for discovery. MR. DAVIDSON: We have talked to Mr. Fogleman about this, and if he wants to prepare a stipulation, I think I know the writings that he's talking about. We won't have any problems with stipulating that those are Mr. Echols' writing, and I see no reason to get a handwriting sample if it's those specific things that we talked about. THE COURT: I have no idea. I don't know what you're talking about. MR. DAVIDSON: That would save the State time and money with a handwriting expert. MR. FOGLEMAN: If we are talking about the same thing, that will be fine. THE COURT: I don't know whether y'all are or not. MR. DAVIDSON: We will get together on that. MR. FOGLEMAN: If for some reason we're not talking about the same thing, we would ask for an order just in case we are not. THE COURT: Show him what you want to stipulate to. If it's what you agreed to stipulate to as being [000846] Mr. Echols' writings, then it will be stipulated. If it is something in addition to that or greater than that, you're going to have to bring it up to me again. I probably would be inclined to grant that order because that is in the nature of discoverable information so I probably would grant it anyway. MR. DAVIDSON: Your Honor, we are certainly not agreeing or stipulating that these items could be introduced. We are just saying we will stipulate to the fact that these are his handwritings. THE COURT: I understand that. MR. DAVIDSON: Those things will come up -- THE COURT: Subject to a suppression hearing or something. You are just stipulating that they are his writings, not their admissibility. MR. FOGLEMAN: I hate to delay it. If the issue is before the Court -- and I think we'll be able to agree to it -- but if there's some reason we're not able to, I hate to have to come back again. THE COURT: I grant the motion. MR. FOGLEMAN: Do you have any problem with him granting the motion in case we can't agree? MR. PRICE: No. We don't have any objection. MR. DAVIDSON: I don't have any problems with it. I just think it's a waste of time and money. [000847] MR. FOGLEMAN: I have the paper signed -- well, not signed -- THE COURT: The motion will be granted. Whether or not you actually employ someone to compare handwriting will depend upon your stipulation. MR. PRICE: That's fine. MR. FOGLEMAN: Your Honor, the second motion that I don't think will take any time is the motion for joinder of offenses as opposed to a motion for joinder of defendants. As the Court is aware, it's got the three case files before him. Each victim is in a separate case file and we are asking that all three victims' cases be tried in one trial, whether it is one trial for one defendant or one trial for each defendant or one trial for all defendants, we are asking that all the offenses be joined. MR. FORD: We have no objection. MR. STIDHAM: No objection. MR. PRICE: No objection. THE COURT: All right. It will be granted without objection. (RECESS) THE COURT: All right, what do you want to take up next -- the change of venue? [000848] MR. PRICE: Your Honor, if the Court grants our motion to sever the cases, then whichever case is tried first, the second or third attorneys may be requesting a change of venue maybe to some other place other than where the first trial is held. THE COURT: Well, I don't think there's -- even though the statute seems to imply that you can only have one change of venue, I don't think that is the law. I think you can have more than one. So if the issue arose and was necessary, I would be inclined to change the venue the second time -- if it's necessary and if I change it the first time. Let's take it up first. I'm ready. MR. PRICE: One preliminary matter I'd like to bring up at this time. On behalf of Mr. Echols we would ask that any arguments made by the attorneys for Mr. Baldwin or the attorneys for Mr. Misskelley that we adopt those by reference so that we don't have to stand up every time co-counsel make an argument and agree with that. Obviously, if there's anything specific we object to what they say -- I think that way it might cut down on the record. THE COURT: You have all three filed motions for change of venue. MR. PRICE: I mean as far as every issue that [000849] will be taken up today, Judge. THE COURT: Yes. That makes sense to me. Who wants to go first? MR. CROW: May it please the Court, I'm the counsel for Jessie Lloyd Misskelley, Junior. As the Court is well aware, Mr. Misskelley has been charged with three counts of capital murder. We have filed a motion for change of venue and an amended motion for change of venue. In our original motion we simply asked for it to be changed outside of Crittenden County, and in our amended motion we asked for it to not only be outside of Crittenden County but also outside the judicial district. In that motion we also asked the Court to rule the Arkansas change of venue law unconstitutional. First, your Honor, I will address simply moving out of Crittenden County. First and foremost, this is absolutely necessary due to the mass attention being paid by the media to this case. Crittenden County is extremely close to Memphis, Tennessee. The Memphis media market is pervasive in this area. In the attachments to our brief we have coverage areas from two TV stations and also the Memphis Commercial Appeal and in every one of those Crittenden County is in the [000850] -- is either in the metro section -- considered metro to Memphis, Tennessee, or is in the area of dominant influence. Some of the maps include Crittenden County as metro Memphis. The amount of coverage produced by the TV stations the Court is aware of, and we also have attached a sample of the newspaper articles to our motion. The Memphis Commercial Appeal has gone as far as to print the alleged confession -- alleged statement -- of Mr. Misskelley. That was published out all through Crittenden County, and we will later argue was also published all through the Second Judicial District. The amount of coverage by all accounts is the most of any of the parties in this case has ever seen. It is also very similar to the amount of coverage in the type of coverage that was in the Swindler case. That case dealt with not only moving the change of venue but changing outside the judicial district, and I'll refer back to these arguments when I get to that point, your Honor. In the Swindler case alone the type of coverage that was discussed was almost -- it could have been coming from this case. Headline news from the [000851] beginning covered the victim's family's history, the victims' history, the defendants' families, the defendants' family history. There were -- reading from the Chief Justice who wrote the concurring opinion in Swindler 1 opinion it almost felt like I was reading an opinion that was going to be held down in this case, your Honor. There's also extensive coverage by radio. As the Court can see this morning when it walked into Court there was the issue of whether or not to let the press in. TV stations were here from all the Memphis stations. The radio stations are here. Newspapers are here. In addition to the Memphis Commercial Appeal there is the local West Memphis paper which has given extensive, extensive, extensive coverage to this case. There's absolutely, I would venture to say, there's not a person in Crittenden County who hasn't heard about this case and not a person in Crittenden County who hasn't formed an opinion on this case. In addition we attached affidavits from several individuals from Crittenden County who stated there was no way that the defendant could receive a fair trial in Crittenden County. THE COURT: I have read your brief in detail. MR. CROW: I won't repeat, your Honor. Next I [000852] would turn to moving outside the district itself. I would point out to the Court again the similarities in the Swindler case and this case. The concurring opinion by the Chief Justice struck the nail on the head exactly. In lieu of repeating that, your Honor, I would point out some of his statements that are so similar to this case. THE COURT: I think that was a two county judicial district, Crawford County and Sebastian County, and they moved it to an adjoining county. I don't remember. Was it -- MR. CROW: In Swindler 1 they moved it outside. THE COURT: I think it was Stone County. MR. PRICE: Scott County. MR. CROW: It is Scott County. Certainly that district is a two county district. I used to practice there. The connection between Memphis and all of the Second Judicial District and Fort Smith and Van Buren is very similar. The TV stations are the only stations the people receive. THE COURT: I have read all the affidavits that were submitted with your brief including your brief on both points. MR. CROW: Thank you, your Honor. As far as the judicial district is concerned, in addition to what [000853] we've already talked about in Crittenden County there's also coverage from Channel Eight in Jonesboro. The Jonesboro Sun has given extensive play to this. The Paragould Daily Press -- all the other papers in this district have given this extensive press. As we were searching the county trying to obtain signatures for people on the affidavits, we were constantly confronted with people stating, "They can't get a fair trial but I'm not going to sign them because I want the blankety-blank to fry." That's the kind of attitude we have in this district, your Honor. Even people who didn't think they couldn't get a fair trial would not sign the affidavits. Again, I would defer mostly to the brief and not add anything there. Finally, as the change of venue being held unconstitutional -- one more point, your Honor. I believe in Swindler 1 the Court not only gave implicit authority for the Court to move it outside the judicial district, it ordered the Court to do so. The Arkansas Supreme Court gave explicit instructions that it could be moved outside the district. I don't feel after Swindler 1 -- I don't feel there can be any issue as to whether this Court has authority to do so. Finally, as to the change of venue statute being held unconstitutional, first we would argue that the [000854] difference between Swindler 1 and the exact wording of the statute -- there's no choice but to go unconstitutional. Swindler 1 said, "Judge, move it outside." The Court ordered moved it outside. Found it reversible error not to remove it outside. Yet, the statute remains. Two, we only get one move. The Court has already addressed that issue. I understand the Court's position on that and I'm happy to hear that. If the statute were to be read on its face, you only get one move. If this Court should move venue to, say Greene County, and at then some later point it became unable to get a fair trial, we would not be able to ask to move it again. I realize that the Court from its previous comments takes a different position on that, and I'm happy to hear that, but the statute on its face is unconstitutional in that factor. THE COURT: The Court held in the Swindler case that the statute and the unconstitutional provision on its face was not unconstitutional. MR. CROW: Yes, your Honor. MR. PRICE: Judge, I'd like to make two points. I would ask that anyone connected with the news media please stand up just so the Court can take judicial notice of the amount of coverage. The Court can take [000855] a look and see the amount of people that are here. (MEMBERS OF THE MEDIA STANDING) THE COURT: You think they'd be in Little Rock, Fort Smith or Texarkana? MR. PRICE: I think it's certainly more in Critt -- THE COURT: I think the same people would probably be there. MR. PRICE: That's probably true, Judge. THE COURT: Or Los Angeles or New York City. MR. PRICE: Judge, the only other -- I join in the arguments made by Mr. Crow and besides the matters put forth in the attorneys' briefs I would like to remind the Court I think we do have the additional factor since the State of Arkansas -- not the prosecuting attorney's office -- but the State has made the argument that Crittenden County should pay the attorney's fees in this matter, I think that is one other factor that would weigh in the minds of the prospective jurors if this case is held here in Crittenden County and I think that's one other factor that should be considered in changing the venue. THE COURT: I think that's a good one. Anybody else? MR. FORD: I just want to make sure that it's [000856] argued specifically on behalf of the defendant in addition to the motion and brief which stands on its face and I assume the Court has read the attached affidavits as required by statute have been submitted on behalf of Mr. Baldwin. It is of a concern to me what was filed in an accompanying motion and that is the concern I had initially about changing it more than one time and changing -- if you changed it now and you moved us to County "X" and then we were all three to be tried there. We know we are going to have two trials, conceivably three trials. That second trial may be so prejudiced by the first trial that it makes it more difficult for who goes second. I know that's been a concern of Mr. Price and Mr. Davidson. I want to state on the record that the Court has ruled that he will allow more than one change of venue in the event the first one is granted and in the event circumstances were to allow -- we would be allowed to present additional evidence. By doing that, your Honor, arguing for a change of venue outside of Crittenden County -- I want to specifically reserve the opportunity on behalf of Mr. Baldwin as trial approaches and even up and through the voir dire process as is contemplated by the [000857] statute -- reserve the opportunity to move for an additional change of venue. I'm assuming at this time the Court will grant out motion. If the Court moves it to Craighead County and then we were to for one reason or another find that that would be unavailable as a fair forum, that we would also be able to reserve our argument to challenge the constitutionality of a move only within side the district and to argue for a move outside the district. So I by only at this time requesting a change outside of Crittenden County do not want to waive an opportunity to argue for a second change of venue within the district or for a second, third or fourth change outside the district. THE COURT: I understand what you're saying. The State? MR. DAVIS: Yes, your Honor. If I may just stand here and address the Court? THE COURT: That's fine. MR. DAVIS: Your Honor, what has been argued by defense counsel is that there has been a great deal of media coverage and that people in the Crittenden County area are aware of this case. Certainly, we would not dispute that, and I think their affidavits correctly state that. [000858] However, what is required for this case is to be changed -- and I think the law -- sixteen eighty-eight two oh one is entitled to removal for prejudice, and they have to establish through affidavits that their clients have been prejudiced to the point that they cannot have a fair trial. The affidavits presented in behalf of Mr. Misskelley are conclusionary in nature in that they state this is the opinion of the individual. They do not list anything as far as the background of the person to know or have a basis for a county-wide opinion as to the state of mind of various individuals. We have with us affidavits from nineteen individuals in Crittenden County, and it states specifically what their backgrounds are, their employment and in each of those instances although they are aware of the charges against these three defendants, aware that the murders did take place, that they are in a position to know that county wide the state of mind of people of Crittenden County is such that they can give the defendants a fair trial. It is also the State's position that media coverage alone -- extensive media coverage -- does not prevent the defendants from having a fair trial nor does it [000859] give them a right to a change of venue. I think the Court is aware of the Ward case which was tried in Crittenden County; in fact, tried twice and in both instances this Court presided over those cases, and there was no difficulty whatsoever in picking a jury for either of those two cases. And those were cases which Mr. Fogleman advises me received press from coast to coast because of the age of the defendant. It is a situation where there has been a great deal of publicity but strictly for that reason is no reason to change the venue. It's going to be -- there has been nothing listed nor stated in the affidavits presented by the defendants or filed with this Court to indicate that these defendants cannot receive a fair trial in Crittenden County. In fact the affidavits we submit are quite to the contrary. It is the State's position -- and frankly the State doesn't want to argue changing this matter outside the district because it's the State's position at this point that the proper place for this trial is Crittenden County, and there's been no showing that the venue should be changed elsewhere. MR. FOGLEMAN: Your Honor, I have one case I want to submit, MacArthur versus State, about burden of proof is on the defendants, and they must be able to [000860] show that the witnesses have general knowledge as to the state of mind of the entire county. MR. STIDHAM: Your Honor, I would like to point out to the Court that in the attachments to our motion and our brief there's been numerous articles that have been reported in newspapers, and I would also point out to the Court that there have been numerous TV reports from some members of the media who have basically preyed upon my client and his family and went out and dug up stuff that is completely and totally irrelevant to the case and that in and of itself would seem to me to point out to the Court that this matter cannot be tried to Crittenden County. I think it probably would be appropriate for the Court to rule specifically on each aspect of our motion in that we are asking the Court to declare the statute unconstitutional because it only allows for a change of venue within the district and that it only allows for one change of venue. If the Court would address that issue and then give counsel the right to ask for a change of venue. If we end up in Greene County, Clay County, Mississippi County -- wherever -- if we get over there and during voir dire or during any process we discover that it is going to be impossible for a fair trial to [000861] be granted there, we'd like to reserve that right to ask that again. For the prosecutor to stand up and say, well, we've got nineteen affidavits -- THE COURT: Gentlemen, I'm not going to count affidavits. I understand the motion the State made, and I understand your motion, and counting affidavits is not going to be something I'm going to do so there's no need to dwell on that. MR. CROW: For the record, too, I'd like to -- Mr. Misskelley would join in the motions of the other defendants and any affidavits they have filed will stand for our case, too. MR. DAVIS: If I might point out one other thing I forgot to mention. It's my understanding -- and I haven't seen the affidavits filed by Mr. Baldwin's attorneys -- but those affidavits are all from the Marion, West Memphis vicinity, and part of the proof -- it is their motion, it is their burden of proof to show that their client can't get a fair trial -- THE COURT: I think Mr. Crow and Mr. Stidham and Mr. Price's motions also included affidavits of at least one person from all nine courthouse areas, all six counties. One or two of them were defense lawyers. MR. DAVIS: We certainly have affidavits in [000862] regard to that. I wasn't going to address outside of the Second Judicial District until a later time, but I don't think their affidavits cover a true cross section or cover the total communities located in Crittenden County which is something that may not be required under statute but if they're going to meet their burden of showing that the defendant is prejudiced, then just Marion and West Memphis aren't representative of what the entire community or the minds of the people are in Crittenden County, Arkansas. THE COURT: All right. I understand. Anybody else? MR. STIDHAM: Judge, I would like to point out that my client and his family have received death threats in Crittenden County, and some of the people I have met on the street in other counties say, "We don't need to have a trial. We just need a lynching." Those are the types of attitudes that are so pervasive throughout the entire district. MR. DAVIS: That's why you put on proof and evidence of those attitudes, not an attorney's statements. THE COURT: All right, gentlemen, this is an classic balancing of the public's right to know and [000862-A] the freedom of the press under the First Amendment and the defendant's right to a fair trial and due process. Certainly a defendant is not entitled to have a jury that is totally ignorant and unaware of things that are happening in the community. However, the defendant is entitled to a fair trial by a jury that is unbiased. While I agree with certain statements made by the State and particularly the MacArthur case that you've cited me that the burden is on the defendants to show that a jury within the county where the alleged event took place is biased and prejudiced against the defendant, I think from the record and from my personal knowledge of this area and the circumstances that a change of venue is appropriate. I'm going to grant a change of venue to Craighead County. I'm going to set the date of the first trial to be February 21st and for three weeks continuing. That courthouse will be made available. I have made arrangements to utilize the federal courthouse in Jonesboro. It is an excellent facility, very good accommodations and security arrangements, and it is an ample size courtroom. In changing the venue to Craighead County, I'm specifically ruling that the Arkansas Constitution, Article Two, Section Ten is constitutional. That the [000863] provision that provides for change of venue within the judicial circuit or outside the judicial circuit is constitutional and that in any event the individual's rights to a just and fair trial would supersede or prevail over any statutory or constitutional provision to the contrary. There is case law within Arkansas that justifies and supports the moving of a case outside the judicial circuit should it be necessary. Y'all failed to cite Cockrell versus Dobbs, 238 Arkansas 348; 381 Southwest 2d 756, a 1964 case. Perry versus State, 277 Arkansas 357, a 1982 case and there's one additional, Anderson versus State, 278 Arkansas 171, a 1983 case. All three of these cases held that changes of venue outside the judicial circuit were constitutional in an effort to provide the defendant a just and fair forum. One or more of those cases also held that Arkansas Statute sixteen eighty-eight two oh three where it specifically by statute indicates that only one change of venue may be granted, that that statute on its face is in fact constitutional. However, it also implied -- or stated rather than implied -- that where additional changes of venue might be necessary in order to provide a person with a just, fair forum without bias, that additional changes [000864] of venue beyond the one could occur and that would be my holding, specifically. If we are unable for some reason to find an unbiased and unprejudiced jury in Craighead County, the largest county in this judicial circuit, then I would be inclined to grant a change of venue to wherever might be necessary. I would suggest to each of you that we've got Corning, Piggott, Paragould, Jonesboro, Blytheville, Harrisburg, Osceola that are certainly available for trials if necessary so I'm going to reserve any ruling on a second change of venue and will determine whether or not we can find a jury, which I am absolutely confident that we could do, and I am also confident that we probably could have found a jury here in Crittenden County. But in view of the mass media coverage and the prospect for additional coverage, I am going to change the venue to Craighead County. And I have also given you the date for trial, gentlemen. MR. FOGLEMAN: Your Honor, two things. First about the date for the trial. If there is more than one trial, the nine months will expire prior to completing the first trial. THE COURT: I'm willing to give you a date prior to that if you want one. [000865] MR. FOGLEMAN: I think we are going to need one. If there are multiple trials, we need to be able to complete them by March the fourth. THE COURT: Unless they waive the time issue, I'll be prepared to give you another trial date right now. You gentlemen want to talk that over real quick? MR. PRICE: Could we take up the argument about severance of the defendants? THE COURT: That might solve the problem. MR. FOGLEMAN: The second thing I want to ask, is it my understanding -- or my understanding of the Court's ruling at this point is that the defendants have not carried their burden to show that they could not get a fair trial anywhere except form Crittenden County as far as in this judicial district. THE COURT: Yes. That's correct. I'm saying in view of the circumstances and the magnitude of this case and the magnitude of the press coverage and all the affidavits and everything I know about having lived in this area for twenty years or more, that it's appropriate that the venue be changed. MR. FOGLEMAN: But you're specifically ruling that as far as their motion to move it outside the district, is they have not carried their burden. THE COURT: That's correct, but I'm also ruling [000866] that the Court has the power and the jurisdiction to do just exactly that if it becomes necessary. MR. FOGLEMAN: I understand that. MR. WADLEY: Your Honor, I just want the record to reflect on behalf of Jason Baldwin that we've not asked at this time for a change of venue outside the district as explained by Mr. Ford -- we are reserving it. THE COURT: I think it already reflects that. You indicated that earlier. MR. STIDHAM: Your Honor is saying if it became necessary, the Court would consider moving it outside the district, but it is not appropriate to do it right now. THE COURT: I guess that's the way you could sum it up. I'm saying I have the power and authority and there is precedent to justify it other than the Swindler case and in addition to the Swindler case, and I am also ruling that a single change of venue, even though the statute says only one, doesn't necessarily hold in the interest of due process and a fair and just forum. MR. STIDHAM: I think what confused me the Court indicated that the statute wasn't unconstitutional -- THE COURT: I'm saying it is not unconstitutional [000867] on its face, but the defendant's rights to a fair forum would supersede any provisions of the constitution or any statute to the contrary, and that is what the cases have ruled. MR. DAVIS: Judge, you kind of jumped to addressing the issue of whether the case was going to be moved outside the district or not. THE COURT: I'm not planning on doing that at this time. That is what I just said. But if it was necessary, I would be prepared to do so. MR. DAVIS: We had a number of affidavits from not only Craighead County but also the rest of the district which we would like to include as a part of the record for purposes of whenever this issue may be appealed. THE COURT: Sure. You can file them in the case. Do you want a minute or two to confer or do you want to take up the motion on severance first? I'll give another trial date in December. MR. STIDHAM: I'd ask for a brief recess. THE COURT: All right. About five minutes. (RECESS) MR. STIDHAM: I believe the motion to sever might be heard before we address the trial date issue. (THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH) [000869] Based on discussions with Mr. Ford, I expect his defense may be antagonistic to our client's defense. THE COURT: Y'all are not giving me any reason -- just making that bare assertion -- what is the antagonistic defense? MR. FORD: Your Honor, there's a witness who has been interviewed by the police department whose statement, if they testify similar to their statement, was that they saw Mr. Echols on the service road near the Blue Beacon truck wash at or near the times of the alleged homicides. That witness also said that he was with Domini Teer. Domini Teer is Mr. Echols' girlfriend. There has been a dyed hair found by the Crime Lab that is consistent with the color of Mrs. Teer's hair. I do not want to state into the press that I may be trying to allege and defend my client on the basis that there was someone else there and it was not him because those people if they're -- if they're -- if I'm correct, then I feel at risk. MR. FOGLEMAN: The only thing I can say in response to that is the report about the dyed hairs is dyed brown hair. Domini -- every time I have seen her she's got red as red can be hair. Now whether it is dyed or what I don't know, but I have never seen her [000870] with brown hair, and it said, "dyed brown hair." THE COURT: I'm going to deny the motion to hear it in-camera. (RETURN TO OPEN COURT) THE COURT: The motion for an in-camera hearing has been denied and I feel like that would be a semi-gag order if I did so I'm going to proceed in an open forum. MR. FORD: On behalf of Mr. Baldwin, we would move for a severance of the defendants pursuant to Rule twenty-two point three and Rule twenty-two point two of the Arkansas Rules of Criminal Procedure. Your Honor, the case before this Court obviously is one of very serious magnitude. The rules set out a number of criteria that the Court can look at in determining whether or not a motion for severance should be granted. Initially, the matter against Mr. Misskelley was severed by virtue of an out-of-court statement that he made which would be inadmissible as to Mr. Baldwin and Mr. Echols. Your Honor, at this time we are merely addressing the issue of a severance from Mr. Echols in an effort to obtain a separate trial from Mr. Baldwin in and of himself. Your Honor, I feel the Court took into account the ability to fairly select an impartial jury in the [000871] Court's decision to grant a change of venue. At this time if we were to proceed jointly with a trial with Mr. Echols, the two defendants would be given twelve peremptory challenges in a capital case. Having twelve peremptory challenges to be divided between two defendants and four lawyers -- it is very difficult to exercise those peremptory challenges effectively. The interest of Mr. Baldwin and the interest of Mr. Echols are not identical. Although they are charged with identical crimes and are charged with being accomplices, one to the other, their interests are not the same in the selection of impartial jurors. A juror that Mr. Price may feel is fair for Mr. Echols may not be a juror which would be appropriate for Mr. Baldwin. Likewise, vice versa. The only fair way, if the Court were to put us into that box, would be to allow them to have six and us to have six. I don't think they are going to let us have eight and only take four. If this is such a case that the pretrial publicity and the notoriety of this case is such that warrants a change of venue and the Court has held open the right to hear again change of venues, having six peremptory challenges defeats the entire purpose of that. If you're going to limit Mr. Baldwin and Mr. Echols to six peremptory [000872] challenges, we feel that would be unfair. There's also concern regarding the pre-trial publicity received by Mr. Echols versus the pre-trial publicity received by Mr. Baldwin. The Rules of Criminal Procedure allow for severance when pre-trial publicity unfairly prejudices the other defendant. There has been considerable media coverage of Mr. Echols and particularly his taken nickname of Damien. I say these things without having discussed these things with Mr. Echols. From what I have read in the paper, Damien is a nickname and that nickname has been associated overwhelmingly with a movie by the name of "The Omen" where the main character in that movie, Damien, is the antichrist. There has been an awful lot of publicity and speculation as to occult activities and whether or not this was a killing that was associated with an occult type ritual. I believe the publicity as to that occultic type activity has been predominantly centered around Mr. Echols as opposed to Mr. Baldwin. In addition, your Honor, based on the discovery that has been provided to Mr. Baldwin and Mr. Wadley and myself as his attorneys, there's an absence of statements by anyone establishing that Mr. Baldwin is involved in these occultic type activities. However [000873] there are several statements as to witnesses indicating that Mr. Echols is involved in occultic type activities. I feel that that type of an issue, being associated with occultic type activities versus not, is prejudicial. If you are associated with them and another person is not associated with them, the fact that they may be alleged to have been associated with this crime -- that is very different. People's view on that thing is very sensitive. If the evidence is that one is associated and one is not, due to that sensitive issue and the fact that there may be evidence presented on that, to put those two together necessarily places Mr. Baldwin into activities which there is no evidence he ever participated in. I feel that that is the type of pre-trial publicity which is envisioned by the drafters in drafting Rule twenty-two of the Arkansas Rules of Criminal Procedure. The last argument that would be raised by Mr. Baldwin as to that would be antagonistic defenses. Clearly, if the defense of Mr. Baldwin is, "I didn't do it. I wasn't there." And Mr. Echols has the defense, "I didn't do it. I wasn't there." Those are not necessarily antagonistic. [000874] However, Mr. Baldwin making that defense and Mr. Echols maintaining that defense -- they do not necessarily imply the same witnesses and the same strategies. Mr. Baldwin's whereabouts versus Mr. Echols' whereabouts may be totally different. I can't speak for him. I have never spoken with him and never discussed it with his attorneys so I don't know about his whereabouts. I only know about my client's whereabouts. The strategy that I may lay in order to effectively present that versus their efforts to present that same defense could be different, result in different strategies, different approaches that could be antagonistic. It's very difficult for me, your Honor, to argue to this Court that my defense is antagonistic when I don't know what theirs is. That is the reason we have separate attorneys. Your Honor, there has been evidence provided to the defendant, Mr. Baldwin, that a witness saw Mr. Echols and saw him with his girlfriend, Domini Teer, walking down the service road near the Blue Beacon truck wash on this evening in question. The exact time I can't recall, nor do I know the exact time alleged by the State of Arkansas as the time of these homicides, but it was within that window of time. [000875] To have a witness identify him as present and to have them also be identified with a third person, Domini Teer, when that person is not mentioned by Mr. Misskelley in his statement which impugns Mr. Baldwin makes it antagonistic. To me, I need to make a very large emphasis of that witness that places Mr. Echols and Miss Teer at the site at or near the scene of the crime at or near the time alleged. To do that is clearly antagonistic to his interests. He doesn't want me bolstering this lady's credibility, doing all the things that can be done to make this witness be believable because that makes it -- that places him there. He does not -- that is antagonistic to his best interest. But it is definitely in the best interest of my client to place that witness in the best light possible because, number one, it leaves someone else out there who could have been the perpetrator but more importantly it casts considerable doubt upon the reliability of Mr. Misskelley's statement, which is a huge piece of evidence against Mr. Baldwin, if Mr. Misskelley has made a statement implicating Mr. Baldwin. That statement seems to be a very foundational aspect of the prosecution's case. Anything that can be done to establish a witness in [000876] that foundation is appropriate for my client. To cast doubt on the credibility of Mr. Misskelley, I have to place someone else -- THE COURT: What is your defense? MR. FORD: My defense will be that, "I did not do it. I was not there." But I don't know what their defense is. THE COURT: What is your defense? Is it antagonistic to, "I wasn't there. I didn't do it"? MR. PRICE: I anticipate a part of Mr. Ford's defense is going to be alleging that our client was there, and I think that does make it antagonistic. Our defense at the present time is that our client is not guilty and was not present at the time of the murder. Obviously, there are other potential defenses that may arise. But if Mr. Ford is going to be zealously representing his client and his position will be Mr. Baldwin wasn't there but Mr. Echols was, then we have -- THE COURT: Is that what you are alleging? MR. FORD: Based upon that witness, I do have to allege that. MR. PRICE: Then I think it would end up in a case between Mr. Baldwin and Mr. Echols. Obviously the State is the one that has the burden of proof. [000877] Mr. Echols does not have to disprove Mr. Ford's theory about Mr. Baldwin's involvement or disprove -- or Mr. Ford doesn't have to prove or disprove our theory, but obviously that's a key issue here. The fact that that would be an antagonistic defense, and I think we would be entitled to a severance, and we are requesting such. MR. FORD: Your Honor, although I'm indicating what our defense would be, obviously I don't have to prove anything, but I do intend to offer that witness as a defense which places Mr. Echols and a third party uncharged at the scene of the crime as opposed to my client. MR. DAVIS: Judge, it is the State's position that what Mr. Ford has just outlined is not an antagonistic situation. It doesn't represent antagonistic defenses. His defense apparently for his client will be his client did not do it which is identical to what Mr. Price indicated their defense would be. What he's saying is, "If we can try to increase a jury's view that one defendant was there and if we can heap more evidence on one defendant, then maybe that will improve our defense." Your Honor, that is not a defense. It is a trial strategy on their part, and that is something they [000878] have the option to pursue either way. The defense as to whether or not his client did it is every bit as feasible, and it can be pursued, and they can present whatever evidence they have in their defense or make whatever strategic options are available to them whether -- if they are tried with this defendant or separately. THE COURT: An antagonistic defense would be where one defendant says, "He did it. I didn't." Is that what you're trying to tell me, Mr. Ford? Or are you just trying to say that a witness placed one defendant near the scene of the crime sometime after the crime? MR. FORD: Your Honor, I know that there will be that witness whose statement indicates that Mr. Echols was there along with his girlfriend. THE COURT: Was where? MR. FORD: At or near walking down the service road of the Blue Beacon truck wash which is adjacent to the woods where the crime was -- THE COURT: At what time? MR. FORD: In that evening. The time that comes to mind is the nine o'clock hour. MR. FOGLEMAN: It has been a long time since I looked at the statement, but it is something like [000879] that. THE COURT: All right. MR. FORD: That is after these boys disappeared, after the search has been initiated. That places him at or near the crime scene. THE COURT: How is that antagonistic to Mr. Baldwin? MR. FORD: My defense will be that I may believe that he did it and that he's there -- THE COURT: Do you anticipate putting on testimony that this defendant did it? MR. FORD: I anticipate allowing the State's evidence that he did it to never be checked but to allow that to be believable and that he was there with some third party and that Mr. Misskelley and Mr. Echols are covering up this third person. MR. STIDHAM: Judge, I feel like I need to object to him making any allegations about my client. THE COURT: Your client has been severed. You're out of this case. Your objection will be noted. MR. FORD: I base that on the statement which has been provided to me. MR. DAVIS: Exactly what he says indicates his defense is not antagonistic. His strategy may be somewhat different from the other defendant, but [000880]
AL	Re: Motion & Ruling I	#1	[-]
Posts: 3441 (12/08/2005 2:05 AM) Administrator Reply Quote More My Recent Posts Message Me Connection Blocking Invite Ignore User's Posts	that's a whole different ball game. MR. FORD: If you place defense and strategy as opposites to one another for the purpose of this motion, then that is no defense at all because it's not an affirmative defense and does not require us to prove it. If that is what a defense is, if there are affirmative defenses as opposed to antagonistic strategies, I think antagonistic strategies are within the terms of that rule, otherwise they would have used the term affirmative defenses which has a specific connotation under the law which requires the defendant to prove something. We are not required to prove anything. MR. PRICE: Judge, it is important in looking at this issue not just simply as Mr. Baldwin claiming he's not guilty and Mr. Echols claiming he's not guilty, but the theory of the defense of both sides is certainly wrapped up in this issue. The key case, McDaniel versus State, 648 S.W.2d 57, an '83 case, talked about the seven factors to be considered in severing cases and in dealing with specifically the issue of antagonistic defenses, they discuss that, "If there was an evident strategy by the prosecution to permit the two defendants to try each other which in the end tainted the result by leaving the ultimate [000881] issue unanswered." In that particular case both of the defendants were claiming that they were not guilty, but there was a key issue on who owned the murder weapon and what happened to the murder weapon after the time of the crime, and the facts in that case both the -- the one defendant tried to allege facts dealing with the other defendant and vice versa. The other factors listed in the McDaniel case, number one, "If the defenses are antagonistic." Number two, "If it is difficult to segregate the evidence." I think in this case there is. The State is provided with some physical evidence relating to the defendants. Whether that evidence is reliable, whether that evidence is admissible is another story. But as far as right now, there is some evidence possibly linking each of the different defendants. "Where there is a lack of substantial evidence implicating one defendant except for the accusation of the defendant," is factor number three. THE COURT: Let me ask you that -- well, go ahead. I'm reading the same thing you are. MR. PRICE: Number four, "Where one defendant could have deprived the other of all peremptory [000882] challenges," and that is certainly permissible, and Mr. Ford made that argument correctly earlier, and we certainly adopt that. Number five, "If one defendant chooses to testify, the other is compelled or chooses to testify." I think that certainly is a factor right here. If one defendant does get up and testify, then it may force the other one to get up and testify even though -- obviously we -- both defendants do have the constitutional right not to testify. THE COURT: Mr. Price, if that occurred, there's case law on that, and the other defendant would be entitled to an immediate mistrial. MR. PRICE: Just thinking about judicial economy, your Honor. Number six, "Where one defendant has no prior criminal record and the other one has." In this case obviously the -- I think not only do you actually look at whether prior convictions could be admissible for impeaching a particular defendant -- THE COURT: Neither of these have any prior convictions, do they? MR. PRICE: Judge, we also have to look at the mitigating circumstances and the factor in there about no prior significant criminal history would apply and [000883] whether juvenile problems apply to that or not apply to that. I think that's a whole 'nother ball game, and we are not prepared to take up that specific issue at this time although it will be raised prior to trial. Number seven, "The circumstantial evidence against one defendant appears stronger than against the other defendant." I think for all these reasons the Court should go ahead and sever our trial from Mr. Baldwin's trial. MR. DAVIS: Your Honor, the very reason that he outlined, number one, "where defenses are antagonistic." It is the State's contention they aren't. "Where it is difficult to segregate the evidence." The State anticipates that the same evidence will be used against both these defendants. The evidence is appropriate in both cases, and there are no cross -- there are no statements of either defendant that would unduly prejudice them or give them a right to an automatic severance. Like the Court says, if one defendant chooses to testify, then at that point one of the defendants can be tried at a later date which is no different than what we are doing now. We'd be making that decision [000884] at a later time. It is the State's position that under what the defense has outlined, there is no basis or reason or under the rule any cause to sever these two defendants and have an additional trial which will require additional expense when there's no jeopardy to either defendant as to their right to a fair trial. THE COURT: I'm going to deny the motion for severance and specifically find that there's no reason that either defendant would be unduly jeopardized by a joint trial and that is not necessary to sever them to achieve a fair determination of one or both of the defendants. The jury, of course, will be instructed that they are to treat each defendant separately in viewing and evaluating the evidence, and their verdicts must be individual as to each of the defendants, and any evidence that might be adduced against one that would not apply to the other, the Court will on request give a cautionary instruction that that evidence is being received as to one defendant and not the other, but apparently you're telling me there's no evidence of that nature, that the evidence basically is so -- well, I'm finding at least at this time there's no reason to sever the cases. [000885] Also, from what you outlined, Mr. Ford, I suppose in every joint case where there are multiple defendants there may be a witness that could place one or multiple defendants at or near the scene and not others. That is not necessarily an antagonistic defense or even antagonistic trial strategy. I just don't find that is antagonistic enough to the point that it would justify two separate trials, and I am ruling in favor of judicial economy in that regard. However, I would be the first to rule and sever one of the two remaining joint defendants in the event it became necessary at or during the trial. So I'm going to reserve my right under the rules to grant a severance at any time I think it might be appropriate or justice and fair play dictate it. At this point in time I'm simply not going to find that that is even necessary. MR. FORD: Will the Court address how the defendants' attorneys are to exercise our peremptory challenges? THE COURT: The same way they have done it for hundreds of years. You're going to share those strikes, and you will have to confer and make that decision, and that is the way it has always been. [000886] If you exercise all your peremptory challenges, you can always request additional challenges from the Court. I think I have been fairly liberal in allowing additional challenges in the event of dual or multiple defendants where it was necessary. So when you exercise all your peremptory challenges by conferring and discussing it, if you feel it is necessary, then I would -- I'm not saying I will do it. I'm saying I would certainly consider it -- giving you additional peremptories. MR. PRICE: Based on the Court's ruling, does the State know at this time which defendants they intend to try first? THE COURT: I don't know what the State knows. MR. DAVIS: We have not made that decision. We were waiting to find out what happens on this motion for severance. THE COURT: Now you know. MR. PRICE: Would the Court give the State a particular time limit -- THE COURT: I'd like to know today because if I'm going to have to set another trial date, I may have to find another location. I have approval for use of the federal courtroom on the dates listed. Beyond that I don't have any approval. [000887] Are you all prepared to make that decision now? MR. DAVIS: I think we've decided that we'd like to have a few more days to make that decision. MR. FOGLEMAN: There are a lot of factors that will go in for us to decide whether we try Mr. Misskelley first or whether we try Damien and Mr. Baldwin first. A lot of considerations that we have to take into consideration, a lot of factors, and we are just not prepared at this time to say. THE COURT: When will you be ready? MR. FOGLEMAN: I would say probably a -- MR. DAVIS: Probably a week to ten days. THE COURT: That's all right with me. The problem is if you're going to want another trial date prior to the date I have indicated, then I have got to make some arrangements because I'm not particularly going to tell y'all where it will be or when. MR. PRICE: Judge, the Court made reference earlier that it might set a December trial date. We object to any trial prior to the first of the year. That's approximately sixty days from now. We certainly couldn't be ready for trial. MR. STIDHAM: Your Honor, we're still getting discovery in this matter. We have a file that is this thick -- [000888] MR. FOGLEMAN: Are they moving for a continuance? THE COURT: Gentlemen, we have a nine month and a twelve month rule and if you're asking for a continuance, then I will set a date beyond that. Are you asking for a continuance? MR. STIDHAM: Judge, February 21st is fine with us but if the Court is telling us we have to be ready by December, then that is going to pose a problem. THE COURT: That's what I'm telling you. If I have to set another trial date, you're going to have to be ready by the first part of December -- early December. MR. STIDHAM: I'd like to wait and hear what they plan to do before I make any motion to the Court in that regard. THE COURT: You have got ten days from today's date to pick which one you want to try first. MR. FOGLEMAN: Are you going to hold us to a more serious deadline than you did the defense on motions? THE COURT: Well, I mean I'm holding everybody to the deadline as much as I can. Discovery is an ongoing thing, and I understand that if discovery carries on, that discovery may generate an additional motion or two. MR. FOGLEMAN: Your Honor, I was referring to the [000889] 17th deadline for all these motions, and we got about forty motions Friday. THE COURT: The 17th fell on a Friday, I believe, and I did -- I was consulted and I did tell them they could have until the following Monday to file them. MR. FOGLEMAN: Right. I had no problem with the fact that -- at least two or three of the attorneys contacted me -- I didn't have any problem with that. I was referring to all the -- MR. PRICE: Judge, I think you ruled we had to file motions for change of venue by the 17th, but today is the date for the filing of all motions. THE COURT: That's the way I understood it. MR. FOGLEMAN: Judge, we asked for a deadline before that so we would have a chance to respond to these hundreds of motions. THE COURT: All right. I'll give everybody ten days. I don't want any more motions after ten days. So file any motion you're going to file within ten days from this date, or I'm not going to consider it. MR. PRICE: What about continuing discovery? THE COURT: Continuing discovery is something new. If some new constitutional issue or something that would be necessary to file because of new found evidence, discovery, I certainly don't bar those right [000890] up to the time of trial. MR. FORD: That does not include limine motions. Previously you said we could do that up to -- THE COURT: Yes. If you're talking about motions in limine, I have decided those the day of the trial many times. I'm talking about substantial motions like venue motions, which we've already heard, severance motions. I'm going to give you an additional ten days after the State has made their announcement of who is to be tried first. I'm going to immediately when I hear from them -- I'm going to set a time, date and place for the first trial. It may be Craighead County. It may be some other location. And then you have ten days to file a motion for a continuance if you want it. MR. STIDHAM: So we don't know whether we're going to Craighead County? THE COURT: You are on the 21st of February. You're going to Craighead County. MR. STIDHAM: As of today, are we going to Craighead County? THE COURT: If that's the first case tried, that's where it's going to be. But if I have to set another date earlier than that in order to comply with [000891] the speedy trial provisions, then I might set an additional location because I don't have approval to use the federal courtroom at any time other than the dates I indicated. So it may be necessary for me to set a new date, time and location. All right. Let's take our noon recess. We'll be in recess until 1:00 P.M. (RECESS) MR. FORD: Mr. Wadley and I have a motion to present that would be individualistic to our client -- a motion to suppress evidence that was obtained pursuant to a search warrant. MR. FOGLEMAN: Your Honor, Mr. Davidson and Mr. Price have a similar motion pending -- the same affidavit -- basically the same affidavit except for the names being changed. The same reported testimony, and I think they need to be heard together in order to save time. THE COURT: All right, I'm ready to hear the motion to suppress. MR. FORD: We have filed a motion, but it is my understanding the State bears the burden of proof. MR. FOGLEMAN: Your Honor, not when you have got a search warrant. THE COURT: I'm going to allow you to go ahead [000892] and introduce the affidavit and go through that portion of it, and then the burden will fall to them. Mr. Price and Mr. Davidson, I understand you have a similar motion and that the affidavit is essentially the same? MR. PRICE: Yes, sir, we did file on Friday our motion to suppress. We'd be requesting that we be able to argue ours at a later date, your Honor. THE COURT: I was planning on doing it today. What is the reason for doing it later? MR. PRICE: We are ready to take up any of the other twenty-five motions that we have filed if the State wants to take those up. THE COURT: Well, we'll get to some of those, too. MR. FOGLEMAN: It is going to require the same affidavit, same search warrant -- THE COURT: I'm ready to proceed. MR. FOGLEMAN: Are we going to do theirs, too? THE COURT: As much of it was we can do today, yeah, or all of it. MR. FOGLEMAN: Your Honor, may we approach the bench? (THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH) MR. FOGLEMAN: Judge, it was our understanding -- [000893] we've got a search warrant. It's their burden to prove that there's something wrong with it. We don't have the people here to present the affidavit. THE COURT: Normally, the way I have done those in the past is if it is a search warrant, the State calls the officers that made the affidavit. You introduce the affidavit and then you introduce the search warrant. Normally you call the judge that granted the search warrant, and then that's it. MR. FOGLEMAN: I haven't ever done it that way. THE COURT: That's the way I have always done it. MR. FOGLEMAN: I will call the municipal clerk's office and see if we can get her here with what was filed down there. THE COURT: Who made the affidavit? MR. FOGLEMAN: Bryn Ridge. I have to have the affidavit, Judge, and that's in municipal court. THE COURT: Yes. I have to have the affidavit. Really, the Court only considers the four corners of the Affidavit anyway. MR. FOGLEMAN: And recorded testimony supporting the Affidavit. THE COURT: You have got to introduce the Affidavit, the Search Warrant, and any supporting testimony that was taken and then the burden shifts to [000894] them. MR. DAVIS: I thought that was the way it was when you had a statement to be suppressed. In a search warrant situation I thought it -- THE COURT: You show me a case. I have done search warrants the same way. Maybe I have done something wrong. I don't know. MR. FOGLEMAN: I'll go call the municipal court. THE COURT: You would have had to have them here anyway. MR. FOGLEMAN: If it is from the four corners of the Affidavit -- MR. FORD: You have got to introduce it, John. MR. FOGLEMAN: You can subpoena them just like I can. MR. FORD: It is your burden to introduce the Affidavit. MR. FOGLEMAN: No, I -- THE COURT: Have you got a case? I think the burden is always on the State. MR. DAVIS: I think there is one. MR. STIDHAM: If they are going to start talking about the alleged statement as the basis for the Affidavit, on behalf of Mr. Misskelley we ask that that be done in-camera. [000895] THE COURT: I don't see any reason to do any of this in-camera. MR. STIDHAM: It's prejudicial, your Honor. We've got to pick jurors at some point in the future and if they all revamp this alleged confession again -- THE COURT: I'm not going to enter a gag order. That's what that would amount to. MR. STIDHAM: Not for this one particular issue, your Honor. THE COURT: I assume objection is made a Search Warrant has already been filed, and there is a pleading that is public record. MR. STIDHAM: You know how the press are. They are going to rehash all that. THE COURT: I cannot muzzle them. MR. DAVIS: Judge, I'm going to call the Prosecutor Coordinator's office real quick -- THE COURT: If you've got one, this is the way I've always done it even when there was a search warrant. I could have been wrong. I don't even remember doing it differently as a prosecutor. MR. WADLEY: Judge, I haven't done that many, but in every case I've had, I've had an opportunity to cross examine the affiant after he introduces the [000896] Affidavit. THE COURT: Yes. MR. FOGLEMAN: Well, we've got them coming up if we can take up something else in the meantime. THE COURT: Let's take up something else then while we're waiting on that. (RETURN TO OPEN COURT) MR. STIDHAM: Your Honor, I think everyone has filed a motion asking for individual questioning of the jurors for voir dire purposes. I don't know if the Court wants to rule on that or wait until a little closer to the trial date. THE COURT: You're asking for individual voir dire? MR. PRICE: Sequestered voir dire, yes, sir. THE COURT: Now wait a minute. Individual or sequestered? MR. PRICE: Our motion is both, your Honor. Our motion is both. Part of that is based on the Court's ruling earlier today that our client's trial be joined with Mr. Baldwin. We are concerned that something a particular juror may know about this particular case or -- THE COURT: I will grant your motion allowing for an individual -- one-on-one voir dire -- but I don't [000897] see any need to sequester them or have an in-camera hearing. MR. PRICE: Judge, in this particular case you have several factors. You have the ages of the victims. You have the allegation of the State that this is some kind of a satanic killing, the issue of pre-trial publicity, you have the fact that the State is seeking the death penalty. Obviously death penalty issues are very important. In addition you have the age and background of the defendants. Of course, the Court has ruled that my client, an 18-year-old, plus the 16-year-old will be tried at the same time. I think that damage is certainly possible if one potential juror knows of something, that that might taint the entire panel. The whole reason that we're moving the trial to Jonesboro is to have a fair and impartial trial, and I think the Court should grant an individual sequestered voir dire. THE COURT: On every question you wish to ask you want to have -- MR. PRICE: That's correct. The State is seeking the death penalty against my client on three different murder cases, your Honor. Of course, your Honor knows the age of the victims, and I think in the interest of [000898] justice we're requesting that. Certainly, the federal court has the facilities to do that. THE COURT: I will grant the individual voir dire, and I will take under advisement whether it should be sequestered. MR. PRICE: In the event the Court denies that even at a later time, we want the Court to consider even possibly sequestered voir dire of a smaller number of jurors, two or three or four. THE COURT: I might be inclined to allow it if you want to take them at about three at a time. MR. FORD: In my past experience with capital cases three at a time has been sufficient in order to get a decent response if you take them to a separate room from the rest of the remaining pool. One at a time we would be there forever. I would have to agree with the Court that that would be -- but I feel that three at a time is sufficient, and I would ask for them to be sequestered in groups of three. THE COURT: I'm not going to ask all the questions the Court asks in groups of three. I'm going to take them twelve or more. MR. FORD: I have no objection to the Court questioning the entire panel and then allowing us as defense attorneys to question them three at a time. [000899] THE COURT: What is the State's position? Do you have any preference? MR. FOGLEMAN: No, sir. THE COURT: I'll allow -- MR. PRICE: Judge, if I could make one more argument. THE COURT: All right. MR. PRICE: Judge, this is again another reason why we previously asked for our trial to be severed from Mr. Baldwin's trial. Mr. Baldwin's attorney is requesting three jurors at a time be questioned. We are suggesting one juror at a time be questioned. I think that's one other factor that the Court -- THE COURT: I think that's purely discretionary with the Court. MR. PRICE: But it is one other reason why the Court should grant the severance. THE COURT: I don't think that touches the issue one way or the other. Now, if you were asking questions that were cross implicating or if you were asking questions that indicated you had an antagonistic defense, I would agree with you. But what y'all told me was not an antagonistic defense. There's been no reason shown this Court for judicial economy and otherwise why it shouldn't be [000900] tried together, and I can see absolutely no reason whatsoever that would jeopardize their having a fair trial by having a joint trial. I simply don't agree on that issue. As far as the three at a time on a sequestered basis, I will allow that. MR. FORD: We have filed last week a motion to take discovery depositions. MR. FOGLEMAN: I have never seen that motion, your Honor. MR. FORD: I filed it Friday and placed it in the mail. The State has presented us literally mounds of evidence -- paper document, after paper document, after paper document. The greatest confusion that it creates with me has been the fact that despite the fact that it is in the most organized fashion I have seen in Gary Gitchell's office, it comes to me in the most disorganized fashion. It comes to me just divided all around. There's no heads or tails of it. There's no consistent order to it. It's like they were going through their organized files and putting them together one at a time and just taking them and copying them. That confusion has created with us the desire to file two motions. One, your Honor, is to take the discovery [000901] deposition of Gary Gitchell, Bryn Ridge and Mike Allen. Those were the chief investigative individuals in this case. Gary Gitchell is the head of the investigative division of the West Memphis Police Department. Officer Ridge was the affiant in the case and was clearly involved as was Mike Allen. In addition we have also filed a request for specific response discovery. I know the State has taken the position that they have an open file. They'll copy everything they have got. Nonetheless, I feel under the rules of discovery we are entitled to both of those things. The State of Arkansas has the right through their subpoena power to force my witnesses, my people that I have information relating to, and force them to come to their offices under threat of being held -- THE COURT: Now wait a minute. There are cases in Arkansas -- and you all ought to be aware of them -- that the State can't abuse its subpoena power to call in and question witnesses that have been designated as "defense witnesses" merely for harassment purposes or for any purpose. What occurred here two weeks ago was totally and completely different. Those were not so-called "defense witnesses." [000902] MR. FORD: Your Honor, we've had those arguments -- discussions -- I shouldn't say arguments -- previously, but if the State can call under subpoena power the parents of my client and make them be questioned under oath, I'd like to be able to have -- what is good for the goose is good for the gander. I'd like to be able to depose Mr. Gitchell and Mr. Ridge and Mr. Allen. THE COURT: Well, take it up with the legislature. MR. FORD: I'm asking the Court to give me the authority to do that under the rules of discovery. THE COURT: Do you have any objection to having a formal discovery deposition taken of those officers? MR. FOGLEMAN: Your Honor, Mr. Ford wants to argue that somehow there's some disparate treatment because the State has subpoena power. At the same time the defense is entitled to and has gotten every document that we have. We are not entitled to every document or everything they find out through their investigation. So you're not on the same footing. They are not required to give us what they develop, but we're required to give them everything. And there's no authority -- not any -- none cited -- for what Mr. Ford is asking for, and we object to it. [000903] THE COURT: I don't think he's saying there is any authority for it. You're just asking that you be given that permission. MR. FORD: I'm asking for that not pursuant to the rules of discovery, which do not preclude it, but I'm asking it in the interest of a fundamentally fair trial, the right to due process, that if Jason Baldwin's mother can be questioned under oath by Mr. Fogleman, the least I can do is to be able to question under oath Inspector Gitchell. Now, I can have a conversation with Inspector Gitchell, but nothing about the conversation is under oath or recorded, and he can lead me astray if he chooses. And I'd like to be able to question him under oath so I can use it for cross examination purposes which is exactly what Mr. Fogleman wants to question my client's mother so if she were to testify differently, he can use that to cross examine her. I'd like to have that same opportunity. That is equal footing and that's what I feel due process and a fundamentally fair trial dictate. THE COURT: I understand your motion. Of course, the State has burden of proving the case, and that's why the State is given investigative tools that are not normally given to the defendants. You don't have [000904] any burden. You don't have to prove anything. The State has to prove its case. For that reason it is given investigative power. It is given the power to question potential witnesses. It doesn't matter whether it's somebody's mother. If that person could potentially develop evidence that would be necessary in the State's effort to prove its case, then they are given that authority. I don't mind entering an order that all the witnesses make themselves available to you for questioning. I think that's fair. I think you have the right to talk to those witnesses and that they should be made available to you, and I'll do that, but I'm not prepared to change the law of the state to allow formal discovery of the State's witnesses in a criminal case. MR. STIDHAM: We'd like to adopt and join in on that motion as well. MR. PRICE: We would, too. MR. FORD: Your Honor, likewise, I would like for the Court to order the State to comply with specific response discovery pursuant to the Rules of Criminal Procedure that govern discovery. I know Mr. Fogleman says, "I have given you everything I have got." Your Honor, the things that [000905] he gave us and the way he gave it to us -- and I've spoken to other counsel and I know they've experienced the same frustration of having the stuff come to us like throwing us the haystack. "There's a few needles in there. Sift through it and find them." And I feel we are entitled to specific response discovery, and I would ask for that. THE COURT: What are you asking for? MR. FORD: I will submit to them written questions and ask that they supply written answers. MR. FOGLEMAN: That is not provided by the rules. He wants me to comply with the Rules of Criminal Procedure -- that's what he said -- but what he really wants me to do is act like this is a civil proceeding and answer discovery. We've got enough things to do. They are getting the information the same way I'm getting it. THE COURT: All right, gentlemen. You are wasting time. I will grant specific discovery if you item by item ask for what you want under Rule Seventeen. MR. FORD: I would not ask for anything other than what is provided for under Rule Seventeen, but I would ask for each -- THE COURT: I want you to tell me right now what [000906] it is you have not already gotten. MR. FORD: I guess it has the same parallel as it does in a civil case where you ask for production of documents. They can't just hand you the documents and say, "Here they are." THE COURT: What do you want them to do -- go through them and outline them and tag them and tell you, "This is what you look for in this particular situation?" MR. FORD: No. If they provide for me each and every statement of Jessie Misskelley and have them put those together because I have these pages that are so out of order that I don't know if I've got everything or not. MR. FOGLEMAN: He's wanting us to organize his file. MR. WADLEY: No, Judge. We want the file to be presented to us in an orderly manner to go through it. There is literally, your Honor, stacks and stacks of documents, and we go through them. There's stuff that's relevant. There's stuff that's not relevant. You may find two pages in a stack of stuff that's not relevant. THE COURT: How am I going to order the prosecutor to give you only organized, relevant [000907] material? I don't know how to do it. I'd have to go through it myself, and then I might not know. What is it you are asking for? I believe in -- and I think that every lawyer who knows me knows that I believe in wide-open discovery. I think it ought to go both ways. MR. FOGLEMAN: That is what we were trying to do, your Honor, by giving them everything. THE COURT: I will address the issue specifically point by point if you will bring it up. What is it you want specifically under Rule Seventeen? MR. FORD: Basically, what I would like to be able to do is to have them provide me written answers that go through A and B. In other words, give me any statements of experts made in connection with the particular case including results of physical and mental examination and scientific -- and answer that statement. "Here's the answer to that." And "Books, papers, documents and tangible objects they intend to use at any hearing." "Here that stack of evidence is." MR. FOGLEMAN: Your Honor, you have already ordered us within ten days of trial to provide them a list of documents we intend to use at trial. We've provided them all the scientific reports and tests [000908] that we have received to date. THE COURT: Have you given them names and addresses of all the people you know as witnesses? MR. FOGLEMAN: We have not given them a list. We will do that. Of course, we won't know that until we've completed our preparation for trial. THE COURT: Have you given them all written or recorded statements of any defendant or co-defendant? MR. FOGLEMAN: Yes, sir. THE COURT: Do you have that? MR. FORD: I have some. I don't know if I have them all. If they tell me I have them all, I guess I do. THE COURT: Tell me what you have got so I will know. MR. FORD: I know I have two statements by Jessie Misskelley. THE COURT: Are there any more than two? MR. FOGLEMAN: I don't know what he's talking about when he says two. There is one statement in which part of it is recorded. And then before they started recording, there's officers notes as to what he told them leading up to that. I don't know what he's talking about when he says there are two. MR. FORD: I have got one that says, "Here's [000909] another statement that was taken to clear up previous inconsistencies." MR. FOGLEMAN: That is the same time. It's just later in the tape. THE COURT: Have you given them all the lab reports? MR. FOGLEMAN: Your Honor, in fact Mr. Ford went down and told them down there that you ordered them to talk to us. MR. FORD: And he did. MR. FOGLEMAN: No, he did not. MR. FORD: Mr. Price was sitting right where Mr. Crow is the last time we were here, and he stood up and asked that the State Crime Lab people be directed to communicate with us and show us those things, and you said, "I'll enter that order." MR. FOGLEMAN: No. Your Honor, we can go back and look at the record, but what the Court -- we objected because there's no provision for ordering anybody to talk to anybody. We said we didn't have any objection to them doing it. It was up to them whether they talked to them or not. THE COURT: I said before and I'll say it again. I believe in making all the witnesses available. Now, what they say and -- but they will be available to [000910] talk. MR. FOGLEMAN: Right. And they went and talked and looked at all the stuff and took tape recorded statements and everything. THE COURT: Anything else? MR. FORD: I'm not sure I understand the Court's ruling. THE COURT: I ruled that discovery would be wide open, and I am ruling that if the State has given you the entire police file and given you everything that they have other than their own individual work product, then they have complied with Rule 17.1. MR. FORD: So the open file policy is in compliance. THE COURT: Yes. Unless you can specifically show me or have some grievance to where they have withheld evidence from you. MR. FORD: Your Honor, it is hard to establish if they withheld something from you because you don't know that you have it. THE COURT: Well, if you do, it won't be any trouble for me to rule. MR. FORD: Is the Court denying my motion for discovery depositions? THE COURT: Yes. I'm not going to order formal [000911] discovery depositions -- question and answer, court reporter and all that -- in a criminal case unless the law is changed. If the law is changed, I'll be happy to do it. I will make all persons available for you to talk to. You have got a right to do that. You can send people from your office around, investigators or yourself. MR. FORD: I also filed a motion that deals with the right to discover, inspect, examine, and test any and all physical evidence. There's been a large amount of physical evidence. Although I have been given ample opportunity for discussion with the people at the State Crime Lab who tested these items, we did not view any of the items that were tested. Some of the items are present. Some of the items have been returned to the possession of the authorities here in Crittenden County. Other evidence has been either shipped to Alabama or Georgia for examination by an outside expert that the State of Arkansas intends to call. THE COURT: What physical items of evidence are there? Is there a great deal of it? MR. FOGLEMAN: Yes. THE COURT: Mr. Gitchell, can you arrange a date [000912] and time for them to view the physical evidence? MR. GITCHELL: Yes, sir. The last conversation was that if they would tell me exactly -- we had it in a room available to them. They didn't know what they wanted to look at and I told them they could come back later if they wanted to. MR. FORD: That's not the essence of what I'm asking for. I'm trying to get there. I'm trying to lay a foundation for my request. My request is that not only we be given an opportunity to look at it but that we be given the opportunity to have it independently tested, examined and that the State of Arkansas or Crittenden County, whoever the Court will order to pay those expenses, that we be provided with expenses for our own independent experts to be retained and have these matters tested. They have submitted hair samples on all the defendants, some of which they say are going to have a microscopic comparison; others that are not. I feel if they're going to use an outside expert from the State of Alabama for this evidence, we are entitled to have funds made available to us so that we can have independent examination and meaningful cross examination as to that evidence -- hair, blood, those [000913] types of items that are going to be presented by the State -- we should be given an opportunity to test those items independently and the funds be made available for us to do so. MR. DAVIS: As far as the State is concerned, I think the defense is entitled -- the defendants are entitled to a court-appointed attorney. Whether the Court wants to go beyond that point to actually provide them with the money for every potential expert there is, I guess that is a call within the Court's discretion. As far as them being able to take physical control to have it examined, it will be within the Court's discretion as to whether the Court determines it's necessary to allow them the funds to seek out additional experts to examine it, but it is our position that we still have some tests that are being conducted on the physical evidence, and until those tests are completed, at that point in time as long as there is a proper chain of custody so that the evidence would be secure and the evidence would not be in any way diminished in its original state, then we have no objection seeing it go to other experts for independent analysis if they are able to retain them. MR. STIDHAM: Before the Court makes its ruling, [000914] I'd like to point out that we have filed a similar motion. There was one item of physical evidence that we were wanting to independently test. I've been informed that it may not ben an issue anymore. We're not going to be raising that particular issue at this time. But if it comes up in the future, we'd like to reserve the right to approach the Court at that time if that makes any sense. THE COURT: I know what you're talking about. Were you through, Mr. Ford? MR. FORD: Other than requesting that the Court make a ruling, I feel I have stated my position. THE COURT: I'm going to order that all the physical, tangible items are located in one place -- and I assume you're going to receive them back from the labs. Any of the labs have reason to hold those physical items? MR. DAVIS: I know in regard to trace evidence such as hair evidence, that customarily they hold it at the Crime Lab. THE COURT: I know that. That's why I'm asking. MR. FORD: Your Honor, Mrs. Sakevicius is here. She is the criminologist who conducted the tests. She indicated to us earlier that she did retain all hair and Kermit Channell who did the blood and DNA [000915] assessments that he had forwarded all those things out to a lab in North Carolina for testing. MR. DAVIS: Judge, I don't think it will be a problem to have those transferred to an expert. The truth of the matter is it will be Crime Lab personnel, and the experts that are to receive those that need to get together to make the arrangements to transport those items when that is done -- and there will also need to be some ground rules laid -- just from my past experience in trials where there is hair evidence, there are some experts like to have it remounted, and that changes the quality of it. It changes the configuration of it, and there's going to be disputes like that and once it gets in the hands of experts that the Court is going to have to address -- THE COURT: I understand that. What I was trying to figure out was how long will it be to where all of those items can be in Detective Gitchell's office or your office or somewhere where they can physically view them. MR. DAVIS: The evidence other than the hair or fiber probably -- I would think that would be within a couple of weeks, maybe even right now. I don't know that there's going to be any need for defense counsel to view the hair. I think what they need is -- [000916] MR. FORD: We are looking for -- THE COURT: What are you wanting re-examined? What bothers me is I've got three defendants and a toss-up of whether the State or County pays for it. An expert is supposed to be an expert. They don't testify for the State or for the defendant. They testify to what the scientific evidence is. If you have got some justification for questioning that expert's finding, then I'd be happy to submit it to another expert but -- MR. FORD: I have no basis to have -- I don't know anything about hair or fibers or DNA. I'm an attorney not a scientist. I don't know if there's any basis to question that or not. THE COURT: What I am going to do is when you have had an opportunity to view the physical evidence, read the report of the expert or experts that have analyzed it, look into finding and securing one expert that can testify for all three defendants, what they would cost and whether or not there's any reasonable likelihood that they could come up with an opinion that differed. If you can tell the Court that you have secured an expert that can tell you facts such and such that you need to know, then I'm going to order it done, and the mechanics of it -- of having it [000917] done -- of course, the chain of custody would have to be stipulated to and the arrangements of transferring it from expert to expert -- those are mechanical things. I don't have any problem with ordering it. MR. FORD: It is easy to say, "Retain someone to do that -- who can give me reasons to call into question her credibility." But, number one, I don't have money to get these people to talk to me. THE COURT: I told you I'd take care of that. That's not the issue. The issue is whether or not you need to have fifteen different experts look at it. MR. FORD: I want one person to look at the hair evidence, and I want someone to look at the fiber evidence. At this time the State has indicated there will not be any DNA or serological evidence to offer against my client. Now that's what they told me the other day. So the only things I know about are hair and fiber evidence. It's those two items that I'm asking -- they can be done by -- THE COURT: Read the reports from the persons that they get. Look at it and if you think you still need to have it retested, bring it up and I'm going to order it done. MR. FORD: I have already looked at the report. I have already questioned the people that did it, and [000918] I feel I need it done. THE COURT: Find somebody that can do it. Send me an order that reflects that they can do it and what the circumstances are. You waive the chain of custody, and I'll grant the order and order it paid. MR. DAVIS: Judge, just for the Court's benefit, I think most of the people who will examine hair will also examine fiber. That would eliminate the necessity of hiring two experts. MR. FORD: I'll agree that that is correct. THE COURT: Y'all are going to have to share the expert that the State or County is paying for. I don't think we need three additional experts. MR. STIDHAM: Your Honor, for the record, the one issue that we had discussed earlier is not an issue at this point? MR. FOGLEMAN: No. I will let you know. If something changes, I will let you know. MR. STIDHAM: I would like to reserve the right to argue that further if it comes up later. MR. FOGLEMAN: We don't have any objection to that. MR. FORD: I note that the individuals that the State was looking to bring here have arrived if you want to go ahead and do that now. [000919] THE COURT: Did you find any law for me? MR. DAVIS: Yes, Judge, but it was in agreement with you. THE COURT: I thought it would be. DEBBIE AUSTIN having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:

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