DIRECT EXAMINATION OF JERRY DRIVER BY MR. FOGLEMAN
A BENCH CONFERENCE OUT OF THE HEARING OF THE JURY
MR. DAVIDSON: This witness is a juvenile officer, and we anticipate that his testimony may involve some statements that may have been made well before any of these incidents.
MR. FOGLEMAN: The only purpose I plan to put him on for is the same purpose as the last trial that a few months before he saw Damien, Jason and Jessie walking in Lakeshore wearing black coats and carrying staffs.
MR. WADLEY: There is no relevancy.
MR. FOGLEMAN: It puts them together about November 15, 1992. The kids died from injuries from staffs.
MR. DAVIDSON: So nothing about any juvenile record or his beliefs in Satanism.
MR. FOGLEMAN: Not unless y'all want to ask him.
MR. DAVIDSON: It has already been ruled we can't ask about his beliefs in Satanism.
THE COURT: If you want to ask him, you can. (TR 2181)
MR. WADLEY: That's what they are trying to do through the back door.
THE COURT: I do not see anything wrong with them asking this man about having seen the 3 defendants together wearing black clothes because there's other evidence from witnesses that they wore black.
MR. PRICE: Six months prior to the murders?
MR. FORD: What's the relevance of wearing black? I've got on a black suit. You have got on a black robe.
MR. FORD: What is the relevance of what happened in October and November, 1992.
MR. FOGLEMAN: It shows their acquaintanceship and relationship to each other.
MR. FORD: One time? One time?
MR. FOGLEMAN: He saw them more than that.
MR. PRICE: Do we want to stipulate that they were friends?
MR. FORD: No.
THE COURT: It puts them together. (TR 2182)
MR. PRICE: Six months before the murders?
THE COURT: Is he going to get it any closer than that?
MR. FOGLEMAN: I'm not sure about Jessie Misskelley, but I know with Jason and Damien he can.
THE COURT: If that is his testimony then it is just another piece of circumstantial evidence.
MR. FORD: We object to it.
THE COURT: What is the basis of your objection?
MR. FORD: What he saw six months prior to the homicides is irrelevant. It has no probative value, the probative value, if it is any, it weighs about a nanogram or a picogram, and the prejudice is that they are trying to create guilt by association because they were together one time six months ago
and they wearing black, carrying sticks and that is so prejudicial.
THE COURT: I do not think it is prejudicial and I think it is relevant. The fact that it's prejudicial doesn't necessarily mean anything. All evidence is prejudicial.
MR. DAVIDSON: We just want the record to reflect that we all join in this motion. (TR 2183)
(RETURN TO OPEN COURT)
I am the chief juvenile officer in Crittenden County. Since I have been in Crittenden County, I am acquainted with Echols, Baldwin, and Misskelley. On November 15, 1992, I was in Lakeshore Trailer Park. I was out there on a normal drive through and happened to stop with a car that we suspected of having a drunk driver. (TR 2184) While we were out at that car, we saw Echols, Misskelley and Baldwin walk by. They were dressed in black with long coats and had long sticks or staffs in their hands. I am pointing to Baldwin and Echols are in the courtroom. I have seen them together on several occasions since that date. (TR 2185) Between November 15th and June 3rd, 1993, I saw them maybe two or three times. Twice at Wal-Mart and once out in the trailer park. About three times I saw the three together. Several more times than that I have seen Damien and Jason together dressed in black.
CROSS EXAMINATION OF JERRY DRIVER BY MR. FORD
There is nothing wrong with a defense attorney wearing a black suit or a judge wearing a black robe. Nothing is wrong with three people together wearing black.
CROSS EXAMINATION OF JERRY DRIVER BY MR. DAVIDSON
I don't recall if I saw Echols on May 5th, 1993. (TR 2186)