Copyright 1994, The Commercial Appeal
The Commercial Appeal (Memphis)
February 23, 1994, Wednesday, Final Edition
SECTION: NEWS, Pg. 1A
LENGTH: 1458 words
HEADLINE: Misskelley's talk with prosecutors valid, judge rules
BYLINE: Bartholomew Sullivan, The Commercial Appeal
DATELINE: JONESBORO, Ark.
BODY:
A judge ruled Tuesday there was no misconduct in prosecutors'
efforts to obtain another statement from Jessie Lloyd Misskelley Jr.
before the murder trial of co-defendants Charles Jason Baldwin and
Damien Wayne Echols.
Circuit Judge David Burnett also ruled that Misskelley ''may be
permitted to testify if he chooses to do so.''
Baldwin, 16, and Echols, 19, went on trial here Tuesday charged
with capital murder in the May 5 deaths of three West Memphis
8-year-olds. Misskelley, 18, was found guilty earlier this month in
Corning and is serving a life sentence plus 40 years.
Jury selection was put on hold while lawyers for both sides argued
about what prosecutors did, and Burnett appointed an attorney to talk
to Misskelley.
Defense attorneys say that prosecutors told Misskelley's father
that they would try to get the sentence reduced to 40 years in
exchange for his testimony. That would mean Misskelley eventually
would be eligible for parole.
Under his present sentence, parole is not possible unless a
governor grants clemency. Burnett would have to approve any agreement
about a reduced sentence for Misskelley.
Prosecutors declined comment on whether Misskelley will be called,
what he said over the weekend, or whether they will continue to seek
the death penalty for Echols and Baldwin.
Only 62 of the first 150 prospective jurors called to the
Craighead County Courthouse made the roll call Tuesday morning.
The first 12 called for individual questioning by lawyers were
told to go home when the issue stretched into the late afternoon.
Echols's mother and stepfather and Baldwin's mother attended most
of the proceedings Tuesday.
Of the victims' families, only Todd and Diana Moore, the parents
of Michael Moore, attended.
Prosecutors sought to speak to Misskelley on Thursday night in the
offices of Clay County Deputy Prosecutor C. Joseph Calvin after
obtaining an order from Burnett last Wednesday to have him transported
from the diagnostic unit of the Arkansas Department of Correction in
Pine Bluff.
In their motion and an accompanying brief, filed in the afternoon
after more than two hours of argument outside the presence of the news
media and public, defense attorneys said that Misskelley was asked to
testify despite repeated clear statements from his attorneys and his
father that he would not do so.
The defense attorneys argue that Misskelley's interests and
constitutional rights were violated when he was asked to testify over
the objections of his attorneys. They contend prosecutors had no right
to seek the statement when they knew he had been advised against
saying anything that could violate his Fifth Amendment right against
self-incrimination.
The defense attorneys Val P. Price and Scott Davidson for
Echols, Paul N. Ford and George Robin Wadley Jr. for Baldwin accused
Second Judicial District Prosecuting Atty. Brent Davis and Deputy
Prosecutor John Fogleman of a ''conscious, calculated and ongoing
attempt . . . to interfere with'' Misskelley's attorneys' effort to
represent their client.
A similar motion was filed in Clay County by Misskelley's
attorneys, Daniel T. Stidham and Gregory L. Crow. Misskelley's trial
took place at Corning in Clay County.
The motion filed in Jonesboro asserts that Fogleman on Feb. 16
told Misskelley's father that the the state would work to have his
son's sentence reduced to 40 years in exchange for his testimony, and
that Misskelley Sr. said his son would not take the deal. The
conversation took place one day after Stidham had advised Davis's
office that Misskelley would not testify at the second trial.
Burnett could reduce the sentence within 120 days of the Feb. 4
conviction. After that, only an Arkansas governor could reduce the
life sentence to a term of years with the possibility of parole.
One unidentified member of the Craighead County Sheriff's office
transporting Misskelley to Rector, Ark., on Thursday, ''promised to
bring Jessie Lloyd Misskelley Jr.'s girlfriend to the jail to visit
him,'' the defense asserted.
Misskelley had already begun talking with Davis and Clay County
Deputy Prosecutor Calvin by the time Stidham and Crow arrived at 7
p.m. Thursday from Paragould, the motion says. Prosecutors also talked
to Misskelley Friday, Saturday and Sunday, the motion says.
Burnett said on Saturday that he had been contacted several times
by telephone by prosecutors and defense lawyers arguing over whether
Misskelley could make a statement over the objections of his
attorneys. Burnett said he authorized the state to offer ''use
immunity,'' meaning anything Misskelley says cannot be used against
him in any future legal proceedings, including an appeal.
Misskelley's June 3 statement to West Memphis police detectives
was the centerpiece of the trial in Corning. In his statement,
Misskelley said he was present when Baldwin and Echols beat victims
Christopher Byers, Steve Branch and Michael Moore to death, and
sexually mutilated Byers.
That statement cannot be used in the second trial unless
Misskelley takes the stand. Misskelley returned to court for the first
time Tuesday since his Feb. 4 conviction on first- and second-degree
murder charges. After speaking with his attorneys, he was led out of
the courthouse through an array of reporters who shouted questions
that he did not answer.
Whether Misskelley will testify against Baldwin and Echols is
probably the single most important question still unresolved as the
case goes to trial. The joint motion by attorneys for Baldwin and
Echols said that, even if he doesn't testify, the state's actions
constitute a ''grandstand play'' calculated to affect potential
jurors.
They asked for Burnett to dismiss all charges against their
clients or, absent that, to suppress Misskelley's statement, forbid
prosecutors from making reference to his potential use as a witness,
and to hold prosecutors in contempt of court. Burnett said any
statements Misskelley made to police or prosecutors would be hearsay
in the trial of Baldwin and Echols unless he testifies.
The two defense teams also called for a special prosecutor to be
appointed to investigate their allegations, which also was denied by
Burnett.
Burnett said he appointed Jonesboro attorney Phillip Wells to make
an inquiry, which involved listening to Misskelley in the presence of
his court-appointed attorneys. Burnett declined to say what Wells was
asked to inquire into, or why. Burnett said he did not speak to
Misskelley himself, but ordered him brought to the courthouse.
Stidham asked Burnett to clarify for reporters that he and Crow
are still representing Misskelley, and Burnett did so.
Prosecutors Davis and Fogleman were evidently pleased with
Burnett's rulings, but remained officially mum.
''I'm not very fond of being accused of misconduct,'' said Davis.
''I feel somewhat vindicated.''
Said Fogleman: ''I think the judge's ruling speaks for itself.''
It rained all day in Jonesboro as jurors waited. Burnett dismissed
nine of the 62 prospective jurors who did make it to court for what he
characterized as ''extreme personal hardship,'' involving illness and
the needs of family members. He denied requests by two Arkansas State
University students who asked to return to school, saying, ''You'll
learn a lot being in here . . . Every professor thinks his lectures
are just invaluable.''
Burnett told the group, as he did in Corning a month earlier, that
the jury service should be ''an interesting and rewarding
experience.''
But he cautioned them, ''It won't be like L.A. Law . . . This is
real life, folks.''
KFIN-FM radio's Jonesboro news director, Wayne A. Hoffman, who has
covered the murders since the bodies were found May 6, was among the
first 12 potential jurors called for individual questioning. Burnett
asked if he felt he should be dismissed, and he was.
Another young man, 21-year-old Airman William W. Billingsley, said
he drove 1,004 miles from his post at the MacDill Air Force Base near
Tampa after his sister in Jonesboro forwarded his jury duty notice.
Burnett initially dismissed the airman after he said he really
lived in Hillsborough County, Fla., but Billingsley approached the
judge privately and asked to remain in the group. He also was selected
as one of the first 12 to be questioned, beginning this morning.
GRAPHIC: Photo; By Lisa Waddell; rry Emison (left) and state policeman
Steve Dozier, leaves Craighead County Courthouse Tuesday after
speaking with attorneys in triple-slaying case.rry Emison (left)
and state policeman Ste
The Commercial Appeal (Memphis)
February 23, 1994, Wednesday, Final Edition
SECTION: NEWS, Pg. 1A
LENGTH: 1458 words
HEADLINE: Misskelley's talk with prosecutors valid, judge rules
BYLINE: Bartholomew Sullivan, The Commercial Appeal
DATELINE: JONESBORO, Ark.
BODY:
A judge ruled Tuesday there was no misconduct in prosecutors'
efforts to obtain another statement from Jessie Lloyd Misskelley Jr.
before the murder trial of co-defendants Charles Jason Baldwin and
Damien Wayne Echols.
Circuit Judge David Burnett also ruled that Misskelley ''may be
permitted to testify if he chooses to do so.''
Baldwin, 16, and Echols, 19, went on trial here Tuesday charged
with capital murder in the May 5 deaths of three West Memphis
8-year-olds. Misskelley, 18, was found guilty earlier this month in
Corning and is serving a life sentence plus 40 years.
Jury selection was put on hold while lawyers for both sides argued
about what prosecutors did, and Burnett appointed an attorney to talk
to Misskelley.
Defense attorneys say that prosecutors told Misskelley's father
that they would try to get the sentence reduced to 40 years in
exchange for his testimony. That would mean Misskelley eventually
would be eligible for parole.
Under his present sentence, parole is not possible unless a
governor grants clemency. Burnett would have to approve any agreement
about a reduced sentence for Misskelley.
Prosecutors declined comment on whether Misskelley will be called,
what he said over the weekend, or whether they will continue to seek
the death penalty for Echols and Baldwin.
Only 62 of the first 150 prospective jurors called to the
Craighead County Courthouse made the roll call Tuesday morning.
The first 12 called for individual questioning by lawyers were
told to go home when the issue stretched into the late afternoon.
Echols's mother and stepfather and Baldwin's mother attended most
of the proceedings Tuesday.
Of the victims' families, only Todd and Diana Moore, the parents
of Michael Moore, attended.
Prosecutors sought to speak to Misskelley on Thursday night in the
offices of Clay County Deputy Prosecutor C. Joseph Calvin after
obtaining an order from Burnett last Wednesday to have him transported
from the diagnostic unit of the Arkansas Department of Correction in
Pine Bluff.
In their motion and an accompanying brief, filed in the afternoon
after more than two hours of argument outside the presence of the news
media and public, defense attorneys said that Misskelley was asked to
testify despite repeated clear statements from his attorneys and his
father that he would not do so.
The defense attorneys argue that Misskelley's interests and
constitutional rights were violated when he was asked to testify over
the objections of his attorneys. They contend prosecutors had no right
to seek the statement when they knew he had been advised against
saying anything that could violate his Fifth Amendment right against
self-incrimination.
The defense attorneys Val P. Price and Scott Davidson for
Echols, Paul N. Ford and George Robin Wadley Jr. for Baldwin accused
Second Judicial District Prosecuting Atty. Brent Davis and Deputy
Prosecutor John Fogleman of a ''conscious, calculated and ongoing
attempt . . . to interfere with'' Misskelley's attorneys' effort to
represent their client.
A similar motion was filed in Clay County by Misskelley's
attorneys, Daniel T. Stidham and Gregory L. Crow. Misskelley's trial
took place at Corning in Clay County.
The motion filed in Jonesboro asserts that Fogleman on Feb. 16
told Misskelley's father that the the state would work to have his
son's sentence reduced to 40 years in exchange for his testimony, and
that Misskelley Sr. said his son would not take the deal. The
conversation took place one day after Stidham had advised Davis's
office that Misskelley would not testify at the second trial.
Burnett could reduce the sentence within 120 days of the Feb. 4
conviction. After that, only an Arkansas governor could reduce the
life sentence to a term of years with the possibility of parole.
One unidentified member of the Craighead County Sheriff's office
transporting Misskelley to Rector, Ark., on Thursday, ''promised to
bring Jessie Lloyd Misskelley Jr.'s girlfriend to the jail to visit
him,'' the defense asserted.
Misskelley had already begun talking with Davis and Clay County
Deputy Prosecutor Calvin by the time Stidham and Crow arrived at 7
p.m. Thursday from Paragould, the motion says. Prosecutors also talked
to Misskelley Friday, Saturday and Sunday, the motion says.
Burnett said on Saturday that he had been contacted several times
by telephone by prosecutors and defense lawyers arguing over whether
Misskelley could make a statement over the objections of his
attorneys. Burnett said he authorized the state to offer ''use
immunity,'' meaning anything Misskelley says cannot be used against
him in any future legal proceedings, including an appeal.
Misskelley's June 3 statement to West Memphis police detectives
was the centerpiece of the trial in Corning. In his statement,
Misskelley said he was present when Baldwin and Echols beat victims
Christopher Byers, Steve Branch and Michael Moore to death, and
sexually mutilated Byers.
That statement cannot be used in the second trial unless
Misskelley takes the stand. Misskelley returned to court for the first
time Tuesday since his Feb. 4 conviction on first- and second-degree
murder charges. After speaking with his attorneys, he was led out of
the courthouse through an array of reporters who shouted questions
that he did not answer.
Whether Misskelley will testify against Baldwin and Echols is
probably the single most important question still unresolved as the
case goes to trial. The joint motion by attorneys for Baldwin and
Echols said that, even if he doesn't testify, the state's actions
constitute a ''grandstand play'' calculated to affect potential
jurors.
They asked for Burnett to dismiss all charges against their
clients or, absent that, to suppress Misskelley's statement, forbid
prosecutors from making reference to his potential use as a witness,
and to hold prosecutors in contempt of court. Burnett said any
statements Misskelley made to police or prosecutors would be hearsay
in the trial of Baldwin and Echols unless he testifies.
The two defense teams also called for a special prosecutor to be
appointed to investigate their allegations, which also was denied by
Burnett.
Burnett said he appointed Jonesboro attorney Phillip Wells to make
an inquiry, which involved listening to Misskelley in the presence of
his court-appointed attorneys. Burnett declined to say what Wells was
asked to inquire into, or why. Burnett said he did not speak to
Misskelley himself, but ordered him brought to the courthouse.
Stidham asked Burnett to clarify for reporters that he and Crow
are still representing Misskelley, and Burnett did so.
Prosecutors Davis and Fogleman were evidently pleased with
Burnett's rulings, but remained officially mum.
''I'm not very fond of being accused of misconduct,'' said Davis.
''I feel somewhat vindicated.''
Said Fogleman: ''I think the judge's ruling speaks for itself.''
It rained all day in Jonesboro as jurors waited. Burnett dismissed
nine of the 62 prospective jurors who did make it to court for what he
characterized as ''extreme personal hardship,'' involving illness and
the needs of family members. He denied requests by two Arkansas State
University students who asked to return to school, saying, ''You'll
learn a lot being in here . . . Every professor thinks his lectures
are just invaluable.''
Burnett told the group, as he did in Corning a month earlier, that
the jury service should be ''an interesting and rewarding
experience.''
But he cautioned them, ''It won't be like L.A. Law . . . This is
real life, folks.''
KFIN-FM radio's Jonesboro news director, Wayne A. Hoffman, who has
covered the murders since the bodies were found May 6, was among the
first 12 potential jurors called for individual questioning. Burnett
asked if he felt he should be dismissed, and he was.
Another young man, 21-year-old Airman William W. Billingsley, said
he drove 1,004 miles from his post at the MacDill Air Force Base near
Tampa after his sister in Jonesboro forwarded his jury duty notice.
Burnett initially dismissed the airman after he said he really
lived in Hillsborough County, Fla., but Billingsley approached the
judge privately and asked to remain in the group. He also was selected
as one of the first 12 to be questioned, beginning this morning.
GRAPHIC: Photo; By Lisa Waddell; rry Emison (left) and state policeman
Steve Dozier, leaves Craighead County Courthouse Tuesday after
speaking with attorneys in triple-slaying case.rry Emison (left)
and state policeman Ste
