THE COURT: Anything else?

MR. FORD: It is the position of Mr. Baldwin -- Mr. Wadley and I would argue to the Court -- that the law in the State of Arkansas requires that there be reasonable cause to believe that items of contraband associated with this case are in fact located within the residence to be searched.

The testimony of Officer Ridge and the testimony of Lisa Sakevicius clearly indicate they didn't know there would be anything in there. They were just hoping to find something.

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Miss Sakevicius had obtained these fibers, and she just went in there on a random search to find something. The law in the State of Arkansas is fairly specific that you cannot do that. You must identify with particularity the items to be seized and the places to be searched. "Blue, red, green, purple fibers" is not that specific, particularly when you have no reasonable basis to believe those fibers exist therein.

Jessie Misskelley's statement and the recorded testimony of these officers in no way indicate that the black Megadeath or Metallica shirt allegedly worn by Mr. Baldwin the night these things occurred was in that trailer, that the blue jeans were in that trailer, that the boots were in the trailer, that any knife was in the trailer. There was nothing to indicate any items were located in the trailer. There's nothing to indicate that any of these fibers that we are looking for were in the trailer. There's basically a devoid of any evidence to establish a reasonable cause to believe that there would be an item of contraband or item of evidence located in his residence.

Moreover, your Honor, the Supreme Court has been quite strict on nighttime searched. There have been

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cases dealing with drugs to where an affiant said, "I was in there yesterday morning or I was in there this morning and he has got a bunch of dope in that house." And this is at night. And they go get a nighttime Search Warrant. They find it. They take it. The Supreme Court says no because there was no basis to say by that affiant that the drugs were going to disappear prior to the next morning.

What to me has never been argued or mentioned is that this search occurred thirty days after the homicide. An entire month had passed. If anything was in imminent danger of being removed, it would have already been removed.

Moreover, if it was because of these guys being in such close and constant communication, one with the other, they would have already been panicked because he had been in custody for so long. And in fact Jason Baldwin wasn't at his residence at all. He wasn't even there. He had no idea anything was even going on.

You take all those things, your Honor, and you look at that document -- that Affidavit -- and you look at the sworn testimony -- there is nothing to indicate that any of these items which they seized were there, much less the fact that items were seized

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which were not listed.

THE COURT: For example, what?

MR. FORD: They took a pair of white blue jeans. The only thing they had authorization to search for was jeans with holes in them. We didn't have any jeans with holes in them.

THE COURT: Did I understand the witness to testify that the jeans were taken because they contained fibers?

MR. FORD: Your Honor, I contend that that whole fiber search should not be upheld because they didn't know anything was in there. That merely was a fishing trip to go in there when Lisa Sakevicius says, "I was going to be surprised if we found anything at all."

That is not what the Supreme Court has said is the type of search that we allow, much less one at night. So, therefore, I believe those items of blue jeans without holes in them, the tennis shoes -- there's nothing in there mentioned about white tennis shoes. Those items should be suppressed. Any evidentiary value that flows therefrom should likewise be suppressed.

MR. PRICE: Judge, the only additional arguments we have at this time -- first of all, it is our position that based on the testimony of Detective

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Ridge, that Judge Rainey was not an independent, detached magistrate. Therefore, the Court should suppress the search because of invalid Search Warrant.

Number two, the basis of the nighttime search -- Rules of Criminal Procedure 13.2(C)(i) -- "The place is to be searched is difficult of speedy access." There's been no testimony to that factor.

Number two, "If objects to be seized are of imminent danger of removal." That was covered by Mr. Ford.

Number three, "The warrant can safely be executed only at night or under circumstances of the occurrence of which is difficult to predict with accuracy."

We submit that each of those three factors listed for specific nighttime searches did not apply in this case.

The final point, your Honor, deals with the questions I asked several of the witnesses about Jessie Misskelley Senior not signing Jessie Junior's Miranda rights form.

I'd like to cite your Honor to Arkansas Code Annotated nine, twenty-seven, three seventeen F under the Juvenile Code. "All waivers of right to counsel shall be in writing and signed by the juvenile and his parent, guardian or custodian."

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Jessie Misskelley was obviously seventeen, was a juvenile. There's no exception in the Juvenile Code to say if the State later charges a defendant as an adult that this provision does not apply. So it's our position that since Jessie Senior did not sign the rights form, that the confession is invalid, the confession which is the basis of this search is invalid, and the Search Warrant should be suppressed by your Honor.

MR. FOGLEMAN: To take the last point up first, first of all, that provision of the Juvenile Code according to the Boyd versus State decided May 17, 1993, does not apply when a juvenile is charged as an adult, number one.

Number two, Mr. Price has no standing to argue the lack of signature to the waiver of rights.

Number three, all he asked these people was, "Do you know whether or not he signed it or not?" The person who got the waiver of rights didn't have the waiver of rights here to show whether he signed it or not so we don't know whether he signed it or not.

THE COURT: Tell me. Did he?

MR. FOGLEMAN: I don't recall. Probably not. Our file indicates that Detective Allen asked Mr. Misskelley Senior if he could talk to Jessie, and it

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is my information Mr. Misskelley Senior brought Jessie Junior to the police department.

THE COURT: Was he present?

MR. FOGLEMAN: I don't believe he was present during the interview.

MR. STIDHAM: Your Honor, we would submit that Mr. Misskelley Senior never participated in any waiver of rights which is required under that specific statute, and we'll be arguing that on --

THE COURT: I'm going to make the same ruling I did in the Ward case when it came down to the fingerprints -- that it doesn't pertain to a juvenile charged with an adult criminal offense. The Supreme Court ruled again in the Boyd case that -- that is the Supreme Court ruling. They ruled that way in the Ward case as well.

MR. STIDHAM: I'd point out in that case there was a strong dissent. Basically it said there was no logic in ruling that way because someone who is seventeen years of age is under the jurisdiction of the Juvenile Code by its very definition.

MR. FOGLEMAN: Your Honor, we can take that up at the appropriate time.

THE COURT: I'm going to follow the Ward and Boyd rulings.

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MR. FOGLEMAN: In response to both motions to suppress, and particularly Mr. Ford's, he refers to the question about the fibers and the need for there to be some evidence showing that the -- there's going to be this evidence where you're looking for it.

I direct the Court's attention to Brink versus State where the husband cut up the wife and put her in the ice chest. In that case all that was able to be established by the Affidavits was that the remains of the wife were three weeks old. They had been identified as the wife. He had told several people he wished to kill his wife. That he was telling different stories about her whereabouts during the time she was gone and that he had told somebody else that he wanted to throw his wife over the bridge and made some comment about needing to get her down to a size he could handle.

In that case the Arkansas Supreme Court said that clearly a crime was committed, and it's logical that the fellow killed his wife, cut her up, put her torso in a cooler full of cement and tossed her body into the lake. Evidence of the crime would probably be found where he was living.

In this case you have got the fact that according to Mr. Misskelley we know the address of the two

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defendants. We know that a knife was used by both forensic evidence and by Mr. Misskelley. It was a search of the residence. It is logical to conclude that if these two defendants participated in this murder, then evidence of that crime would be found at their home in the nature of the clothing, fibers that transferred from their clothing to the victims, and we submit there's been no basis shown to suppress this search.

THE COURT: Both motions to suppress will be denied. It is the Court's opinion and ruling that Judge Rainey was on very sound ground, that the Affidavit submitted to him was in great detail, much greater detail than what you find in the ordinary case, that all constitutional prerogatives and rights of the defendants were protected, that the search was reasonable under the circumstances, and that the totality of the circumstances -- to use the buzz word Judge Rainey used -- were certainly met and the test was complied with here.

Judge Rainey made a detailed paragraph synopsis of his findings for probable cause. He indicated that Mr. Misskelley's statement was detailed, that based upon the detailed information of that statement, that he identified facts and only facts that only a person

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observing or participating in the alleged crime would have known at that time, that he detailed information with particular regard to facial cuts, injuries to the scrotum area and further that there was testimony from both the officers and Mr. Jones, the supporting Affidavit, that these three individuals were close. In fact one specific statement of Mr. Jones has indicated where you find Echols you will find -- well, on page 43 of the affidavit.

The question was, "If there is one person that would have been with Damien during something like this going on who do you think that one person would have been?"

Answer: "I think it would have been Jason Baldwin because you know they are always together."

The judge had ample testimony and ample corroborating exhibits and information before him to make a finding that probable cause existed to search the residence of both Baldwin, Echols and Misskelley.

And I think the argument has already been pointed out by Mr. Fogleman that certainly fibers, hairs, knives, clothing are articles that normally we associate with where a person lives, resides, works. It wouldn't have been unreasonable had they had automobiles to even include automobiles as avenues or

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a reasonable place to search.

So as far as the judge's finding that there was reasonable cause to believe that fibers and knives and clothing might be found in homes, I think it is common sense. It goes without even arguing.

The next issue is whether or not he was a detached magistrate. I don't think there is any question but that he was just exactly that -- a detached and independent magistrate -- from his testimony and from all the facts before the Court.

The time of the search. It was ten something in the evening when he executed the Search Warrants. I understand from the testimony before me that there were accompanying warrants for arrest being issued at the same time.

I find no problem whatsoever in view of the nature and type of items to be sought that he authorized a nighttime search. Granted, that thirty days would certainly be enough time for anyone with good sense to get rid of a weapon, but people don't always act in that fashion. So it was certainly reasonable that a weapon could have been found in their residence. It was certainly a proper subject matter for a search.

Further, the fibers and hair -- they are minute,

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easy to be lost, misplaced, cleaned up, vacuumed up, and I find that it was certainly reasonable to authorize a nighttime search, probably would have done so myself. So the motion will be denied.

(PROCEEDINGS CONCLUDED)


JONESBORO, ARKANSAS, OCTOBER 19, 1993, AT 1:30 P.M.

THE COURT: This is the State of Arkansas versus Jessie Misskelley, Jason Baldwin and Michael Damien Echols.

The first motion to take up and consider is the motion to transfer to juvenile. Mr. Wadley and Mr. Ford, that's your motion.

MR. FORD: Your Honor, as the Court is well aware, Jason Baldwin is 16 years of age. He's clearly under the age of 18. The Juvenile Code is applicable to individuals charged with criminal offenses being below the age of 18 years of age. We fell that that in and of itself raises the issue regarding whether or not this matter is properly in a Circuit Court forum as opposed to being transferred to Juvenile Court.

Your Honor, defense counsel is aware that there are enumerated crimes that do provide the prosecuting attorney discretion with respect to filing against a juvenile in Circuit Court due to both the age of Mr. Baldwin and the offense charged -- capital

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