A BENCH CONFERENCE OUT OF THE HEARING OF THE JURY

MR. DAVIDSON: We asked many times if the West Memphis Police Department received anything from the FBI regarding behavioral analysis, profiling or anything of that nature. We understood that what we had was everything.

MR. FOGLEMAN: It is in their files and I don't know whether I had it or not. I talked to Gitchell. He said that he thought he provided it. He said that what had been requested was whether or not a behavioral profile had been done, and that is not a behavioral profile.

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MR. DAVIDSON: I thought this was an open file policy. We thought we had everything. This is new stuff that we just got yesterday. This is the fax from the FBI and it starts on page nine. We way want to call this guy as a witness. We would like to see the first nine pages of the fax, know what those are and we may ask for a continuance at that point.

THE COURT: Do you have the other nine pages?

MR. FOGLEMAN: I don't know. I'm trying to look. (TR 2585)

MR. DAVIDSON: We'd also request a copy of the report of Lisa Sakevicius, if there is one, regarding any candle wax.

MR. FOGLEMAN: I don't know if there is one. She said that what she puts in her report are when there are matches. She said that didn't match anything.

THE COURT: Is it in the report that you have?

MR. DAVIDSON: We have never heard that until they came out today.

THE COURT: I remember something about her testimony in Corning where she started to say something about she found something else and was prevented from saying what it was or didn't say.

MR. PRICE: I think that was about the posters that were found in Mr. Baldwin's. I went through her transcript. While they're looking for that, there's one other oral motion I'd like to make at this time. Tomorrow we will be beginning the defense of Echols. We would like at this point to make an

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oral motion pursuant to A.C.A. 16-89-118(b)(1), "Conduct a View of the Crime Scene for the Jury." (TR 2586) The statute allows:

In the opinion of the Court if it is necessary the jury should view the place in which the. offenses charged have been committed or any material fact therein and may order that the jury be conducted in a body in the custody of proper off icers to the place which must be shown to them by the judge or a person appointed by the Court for that purpose. We are requesting that the Court allow the jury to be conducted to a view of the crime scene.

MR. FOGLEMAN: We don't have any objection but a cautionary instruction would need to be formulated because of the fact it doesn't look the same now as it did then because of the foliage. Also, the customary way that people go in and out, there was a trail from Blue Beacon and also there was one across the pipe. Some of those jurors I don't think need to be going across the pipe because it would not be safe for some of those jurors.

MR. DAVIDSON: They can go through the Blue Beacon way. (TR 2587)

THE COURT: There is a ten foot cyclone fence there now.

MR. FOGLEMAN: Because what I see happening is if you take them in through the field more or less the back way, you're taking them in a way that's different from what the kids went.

THE COURT: I will take that under advisement.

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MR. WADLEY: Could we have an opportunity to consult on this before we commit to the Court whether or not we object or are in favor of this view? This is the first I've heard of this, Judge.

THE COURT: One defendant wants it and one doesn't?

MR. WADLEY: I don't know.

THE COURT: Are you going to pull that stuff again?

MR. WADLEY: We are not pulling any stunt.

THE COURT: Is that what you're saying?

MR. WADLEY: I'm saying, Judge, this is the first I've heard of a view of the crime scene until right this very minute. I want to be able to talk with my co-counsel -- (TR 2588)

THE COURT: I'm taking it under advisement. I'm not making any ruling on it.

MR. WADLEY: Can we have until in the morning, Judge, to formulate our opinion?

THE COURT: You can have until tomorrow or the next day. These last nine pages of the fax are not a psychological profile prepared by the FBI. It is a behavioral analysis interview. It's a form -- (TR 2589)

MR. PRICE: -- Which was the basis of the interrogation of our client. I notice that 8 of the approximately 15 questions were asked of our client.

THE COURT: These are 12 questions that somebody recommended that you ask a witness or perpetrator or suspect.

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It even gives you samples of how to ask the question and basically why, but this is nothing more than a manual or a suggestion. It doesn't fall within what I call a psychological profile at all under any circumstances. I think the police department would be fools if they didn't call around and ask for help. I'm going to put it in evidence for a proffer of proof. I don't know what remedy you're asking for

MR. FORD: We object to it being entered into evidence.

MR. FOGLEMAN: He said he's putting it in as a proffer.

THE COURT: I don't care whether you object or not. I'm going to put it in the record as an offer of proof.

MR. DAVIDSON: Are you saying they don't have to turn over the nine pages? (TR 2590)

THE COURT: No. I'm telling them to give-you the first nine pages.

MR. FOGLEMAN : I'd like to see them, too. Let me see if I can find them.

THE COURT: You're telling me that you don't have a psychological profile prepared by any expert from the FBI.

MR. FOGLEMAN: That's correct.

THE COURT: This is a kind of check sheet. This is a, I would do this if I were you type information.

MR. DAVIDSON: It seems to me to be the basis for their questions.

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THE COURT: So what is your objection?

MR. FOGLEMAN: Someone's grandmother may have suggested question to them.

MR. DAVIDSON: Our objection is we want to see the rest of it. We may want to call this guy as a witness.

THE COURT: What would he be a witness to?

MR. DAVIDSON: A witness as to procedures.

THE COURT: Procedures for what?

MR. WADLEY: He might be a witness as to what that is.

MR. DAVIDSON: We don't know what something is until we get it, your Honor. We get something and it's the last half of it. Doesn't it make you wonder what the first half is or the first nine pages are?

THE COURT: A lot of things make me wonder. I'm sending Barbara home.

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