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
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
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
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
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.
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.
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
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
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
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.
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.
THE COURT: All right, what do you want to take up next -- the change of venue?
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
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
-- 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
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
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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
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.
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)
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
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
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
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
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.
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.
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
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.
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
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
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