DIRECT EXANINATION OF DAMIEN ECHOLS BY MR. PRICE

It [sic] talked to the police officers on May 10th 1993. I initially talked to Ridge and Sudbury at 11:54 a.m. From 11:54 until I started talking with Durham at 1:40, almost two hour period, I recall the conversation with Ridge and Sudbury; They asked me a questionnaire containing 32 questions. (TR 2223) During those questions, they were pretty nice. After I had been there a while, they starting cussing me, telling me they were going to fry my ass, so I might as well confess now. On May the 5th [sic], I was there eight hours in all beginning at 11:54. Before I talked to Durham, I was there about an hour. I do not recall anything else they said to me at that time. During the entire 8 hours I was there, I asked for an attorney 3 times. During the time I was with Ridge and Sudbury, I did not ask for an attorney. (TR 2224) After the interrogation with Ridge and Sudbury, they were angry at me. for the responses I gave. During this time I denied my involvement in these murders. Durham talked to me from 1:40 until about 3:30, almost another two hours. Prior to that the pre-test portion, during the interrogation then, I denied my involvement in these murders. During the test portion, he asked me a series of questions which I answered. (TR 2225)

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At the end of the third period of time, there was another 45 minute period of time in which I denied my involvement in these murders. During the 2 hours Durham was okay because during the past part of after the test I talked to Durham. He never threatened me. I asked for an attorney. During that 45 minutes, I asked for an attorney twice. The first time I asked for an attorney he told me I didn't need to bring him back there because he was going to cost us a lot of money, and in the end he would end up quitting anyway. (TR 2226) I told him Everett was going to be my attorney. I asked a second time for an attorney. The first time I asked it was before the test. The other two times was after the test. Each time his response was the same thing. He said he would stop the questioning and let me talk to Everett after the test. (TR 2227) He left the room and came back and said Everett was gone. During the 2 hour time period when Ridge and Sudbury were questioning me, they never tape recorded that. There was a tape recorder sitting there, but they would not turn it on. During the time that Durham talked to me they did not tape it. Durham never had a tape recorder running. Towards the end of the 45 minute period of time, I told Durham that, "I will tell you all I know if you will let me talk to my mother". At that time they allowed me to talk to my mother. once I talked with my mother, I told them I did not do it. Later Gitchell talked with me. (TR 2228)

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MR. PRICE: The State has indicated that they will not be bringing up any of the conversation with Gitchell.

CROSS EXAMINATION OF DAMIEN ECHOLS BY MR. DAVIS

When I talked with Ridge and Sudbury I never requested an attorney. They basically asked me questions and I gave them responses. There was no force, coercion or threats during that questioning. Then Durham advised me of my rights. I am an intelligent enough individual so I understood those rights. He explained some of the more complicated ones. I knew what he was talking about and understood my rights. (TR 2229) I agreed to waive those rights and talk with him. He then administered the polygraph or pre-test questionnaire. Nothing was involuntary about that. He administered a polygraph test. I signed a consent form to take a polygraph. I asked for an attorney during the third portion of Durham's interview but Durham said there's no sense in bringing him back here. I wasn' t sure if Everett, my attorney, was there yet, but I knew he was on his way. That was at 3:00 p.m. (TR 2230) My mother said he was on the way. The first time I asked the officers never prevented me from talking with my mother. The second time they brought her. At this third stage of the interview, after Sudbury finished and he began to cuss me, that I requested an attorney. That was the second time I asked for a lawyer. The first time I asked for an attorney was the beginning of the first stage with Durham. (TR 2231) When I first went in there to take the polygraph examination,

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after he started telling me he knew I was lying anyway, I asked for an attorney. That was after the test was administered. I don't know what time it was I asked for an attorney. It was either in the end of the first part or the beginning of the second part. It was in the third phase of Durham's questioning when I asked the second time. Earlier I said the first time I requested an attorney was in the third phase of the questioning by Durham but that was not accurate. I asked for it the first time earlier. (TR 2232) Durham said there was no need to bring him back there because he was going to cost me a lot of money and was going to leave. He told me there was no need to bring him back there, even though he was present at the police station. Everett was there before 5:45.

MR. PRICE: It's unrebutted that my client asked for an attorney. The State has the burden of proof on this issue. They've put on no witnesses to respond to my client's statement that he requested an attorney, so the Court should rule on our point. (TR 2233) The State had the opportunity to put on any witnesses to rebut that they wanted. They haven't done that. My client has stated -- and it's unrebutted testimony he asked for an attorney. It should be suppressed.

MR. FOGLEMAN: I asked Durham at any time did he ask for an attorney and he said no.

THE COURT: It would be the Court's ruling -- I listened to both officers and both indicated that he did not request a

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lawyer and that puts their testimony on an even keel because they are each denying that he asked for a lawyer. He's saying he did ask for a lawyer. The weight of the evidence is far on the State's side. Everett testified that he first received contact about the case at 5:45 and that he didn't arrive at West Memphis until 6:20. It is impossible for Mr. Echols to have known or believed that Mike Everett was representing him at 1:40 because he hadn't even been contacted until 5:45. I suggest that when he found out Mr. Everett might be contacted was when he talked to his mother. (TR 2234) I'm ruling that the statements were voluntarily and knowingly made and under proper advice of rights and was not denied counsel and did not request counsel.

MR. FOGLEMAN: When we were going over the photographs the other day, we'd indicated we wanted to proffer the same photographs as we had in the Misskelley trial and we didn't have them because there was only one copy. We've since had copies made, and we would proffer State's Exhibits 200 through 227 as a proffer.

THE COURT: I'm going to receive them as a proffer of proof and the reason for that is that some of those photographs were extremely distasteful and the Court wants any appellate court to have an opportunity to look at the photographs that the Court excluded from testimony. I will include those as an offer of proof to show the ones that were eliminated by the Court.

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MR. DAVIS: There was previously a motion in limine filed by one of the defense attorneys to keep out any reference to Luminol. (TR 2235) At this point and through numerous witnesses the question has been asked by defense counsel of the officers that they didn't find any evidence of blood at the scene. Based on the decision in Brenk that Luminol is a presumptive test that is normally not admissible. However when the defense, knows that there has been a test done which to some extent indicates the presence of blood at the crime scene, when they persist in asking the question, if there is any evidence of blood at the scene, they have opened the door with a cautionary instruction that this is only a presumptive test to allow Donald Smith of the Crime Lab to testify that in fact a Luminol-test was performed, and it turned up positive for areas of blood in the ditch bank area where they have questioned and asked people, wasn't it true that there wasn't any evidence of blood there. (TR 2236) In order for basic fairness, when the defense is aware that a test exists of that nature and they ask questions, is there any evidence at all of that, then they have opened the door and created a case where normally inadmissible evidence becomes admissible just to rebut the inference there was no evidence at all of blood at the crime scene.

MR. PRICE: The question that was asked of Ridge and the response that they adduced from Ridge at the Misskelley trial, was, "No blood was found at the crime scene." That was the

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same question we asked these officers at this trial. The State can't come back now and say that's an improper question. I asked the officers if there was any visible blood so I even qualified my question a little bit different than what the State said. And the State can't come back now and say we've opened the door to the Luminol test.

THE COURT: I'm going to deny the motion to present evidence of the Luminol testing. (TR 2238) If you continue, however, I might change my position that it is invited error to continue to bait the State that no test or effort was made to determine whether there was blood at the crime scene. Luminol was done as we all know. I'm going to rule that the Luminol testing is not credible scientific evidence.

MR. DAVIS: If defense counsel asks officers was there any evidence of blood, the State may feel compelled to ask them what they did at night and what evidence they found.

THE COURT: You might ask that question of the officer on your own peril but if you ask them was there any evidence of blood, that would be an inappropriate question because I think they could properly respond under those circumstances we did some testing.

MR. DAVIDSON: The proper question would be, is there any visible evidence of blood, which there was none.

MR. FOGLEMAN: It becomes visible when you put the Luminol on it.

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THE COURT: If they ask the question, was there any visible evidence of blood at the scene that doesn't invite, yes, we did testing. (TR 2238) You better ask the question right is what I'm saying because you're forewarned now that if you keep continuing to ask was there any testing done, I'm going to let them put it in.

MR. FOGLEMAN: If they ask if there is any visible evidence and the Luminol makes it visible -

THE COURT: Well, that's the very subject matter that is objectionable, the fact that Luminol brings it out latently and it is done in the dark.

MR. FORD: To clarify the record, we can ask if there was any visible evidence of blood, and that question is proper and does not invite a response of Luminol.

THE COURT: Visible evidence of blood would invoke a proper response of, no, there wasn't. If you ask if any testing was done, then you're in trouble.

MR. FORD: Before the State's witnesses begin to testify regarding statements made by Echols, the jury should be instructed that they are to consider this as evidence only against Echols and not as evidence against Baldwin and also that the State remind its witnesses of the previous ruling of the Court in Osceola with respect to the answers to that questionnaire. (TR 2239) The State had previously shown an exhibit to the jury that was prepared by George Caster, an engineer, of the crime scene and there was an indication that

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there was a fence that separated the Blue Beacon truck lot from the wooded area

THE COURT: There's been testimony about there's a fence there now and there wasn't at the time.

MR. FOGLEMAN: if there's been that testimony and the diagram reflects there wasn't a fence there. (TR 2240)

MR. FORD: The drawing is only relevant if it shows the scene at the time.

MR. FOGLEMAN: The testimony was that there was not a fence at the time.

THE COURT: You can point that out in your argument that the fence was not there.

(RETURN TO OPEN COURT)