[thanks to Doll for these]

MARION, ARKANSAS, SEPTEMBER 27, 1993, AT 9:30 A.M.

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

The cameras and still photography will have to

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cease at this point. There's been an objection to the presence of the TV cameras and cameras in the courtroom so I'm going to have to ask you to leave. That may change at the time of the trial, but in the preliminary stages there's been an objection so you will have to move outside. That also means there's not going to be any tape recording of the proceedings.

For the record, the Court allowed the TV cameras into the courtroom prior to beginning any proceedings in order for them to obtain file footage and that the photography of the defendants and any objection to that was explicitly waived by the defendants.

MR. FORD: That's correct.

MR. FOGLEMAN: And over the State's objection.

THE COURT: The State objected to any. The Court felt that to allow them to obtain file footage and then be gone would benefit everyone.

The first motion the Court is going to take up is the motion with regard to payment of attorneys' fees. At least the issue as to where the responsibility for those payments lie. The Attorney General's Office is appearing, the County government is appearing, and I guess the defendant's attorneys aren't particularly interested other than you want to be paid. You're not here pro bono.

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MR. FORD: That's correct, your Honor.

MR. PRICE: That's correct, your Honor.

MR. STIDHAM: The only comment I would like to make for the record is that this is the least of my concerns. My concern is for my client.

THE COURT: I certainly understand that. But it is of interest to the County and to the State. The way I understand it the issue is fairly simple. The general rule of law is that the counties are responsible for payment of indigent's attorney's fees up to a limit prior to July or June of 1993, and there was new legislation passed after State versus Independence County and your position from the State -- at least the A.G.'s Office -- is that you accept responsibility for payments of attorney's fees up to June 30th.

MS. HARBERG: June 30th. We will be glad to go first or second.

THE COURT: Go ahead then if you're ready.

MS. HARBERG: May it please the Court, the Attorney General has entered limited entry of appearance for the State. We come forward because the deputy prosecuting attorney had expressed a conflict in representing Crittenden County. The State concedes that it's responsible for attorney's fess that are

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awarded by the Circuit Court that were for services rendered from the date of the appointments were made -- I believe that was sometime in June -- until July first, 1993. The State believes that services rendered after June 30th are the responsibility of the County and that is based on Act 1193 which contained an emergency clause which became effective as of that date.

The County may argue that the date of appointment rather than the date that the services were rendered may be the controlling factor, but the State is relying on Simmons versus Lockhart where a defense attorney had performed services both under an old federal statute and a new federal statute. Justice Arnold determined that from the time the attorney rendered services during the old act the attorney would get paid that way which was -- contained an hourly ceiling. When the new act became effective, the new attorney would get paid under that act which just said it had to be reasonable.

THE COURT: Can you tell me whether or not the new act explicitly repealed the act that was in effect in that Batesville case?

MS. HARBERG: Yes, sir, it is Section 1692 something. It was specifically repealed except for

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the fund for trial expense assistance other than attorney's fees. That is still on the books.

THE COURT: Is there still that hundred thousand dollar limitation on it or the amount that they are appropriated?

MS. HARBERG: There was an appropriation made for this biennium that we are in now, and as of August 1st there was less than fifty-five thousand dollars in the fund for the entire state to cover both fees and --

THE COURT: What is the State's position on the extraordinary costs of the trial of this nature? Do you have a position on it any different than that that was expressed in the Independence County case?

MS. HARBERG: We believe that the Supreme Court has stated in State versus Campbell -- and I don't have the cite with me -- that it's an appropriate consideration for the circuit judge to look at the amount of government funds that are available in defense of indigents along with other usual factors to consider for the reasonableness of the attorney's fee. We are prepared to present evidence and testimony today if you would like on what would be a reasonable hourly rate.

I have brought the Executive Director of the Public Defender Commission with me today, and we can

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present evidence if you would like that.

THE COURT: I hate to take up all my time on that, but limited testimony would be all right.

DEE DEE SALLINGS

having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows: