MR. FOGLEMAN: It was one of the bigger ones that was jabbed in the water.
THE COURT: I think that it was found at the crime scene and that you can make reasonable inferences that they could have been the weapons that inflicted the injuries and that to me is relevant, and I am going to overrule your motion.
MR. DAVIS: I think that also the -- one of the fellows from the Crime Lab -- I can't remember if it's Turbyfill. Turbyfill testified in trying to test one of those sticks for prints that although he was unable to find latent prints, he did find positive reaction for a substance -- chemical, some sort of enzyme from the hands. And even though he couldn't find prints, there was a positive reaction for that chemical which indicated that it had been held in someone's hands which would be consistent.
THE COURT: Those are items seized at the crime scene and any reasonable argument that can be made to their presence there is permissible and relevant. What makes it relevant is the Medical Examiner saying that the injuries could have been inflicted by a tool of that type and that makes it a relevant, permissible argument. (TR 1179)
MR. FORD: The next motion I would like to address deals with a knife that was found sometime in October, I believe. October 30th, 1993. Or maybe it was the 31st. I believe it
[127]
people decreed that that right existed. We would like that to be a factor for the Court to consider in ultimately determining whether a severance is proper.
I would also like to mark as Defendant's Exhibit Four a copy that was provided to me in discovery that is an interview that was conducted with the defendant Echols.
The first page is the questions they were asked and the next pages reflect the answers that they gave. If you look at number six, it said, "Do you know who did this?"
Turn to the next page. Answer: "Jason Baldwin could have. L.G. Hollingsworth."
It is my contention, your Honor, that is an out-of-court statement that implicates my client that entitles me to request a severance and requires the (TR 1212) prosecutor to elect what his actions will be.
Let's move on farther to question number nine.
"How do you think they died?"
Answer: "Mutilation. All three were probably cut up but one more than the other. Heard they drowned. Probably just one person did it."
THE COURT: Is this an official interview or questionnaire by a law enforcement officer?
MR. FOGLEMAN: Your Honor, that was a -- the FBI had provided some assistance in trying to develop some kind of psychological profile and the police department is asking a large number of people these identical questions, and the
[128]
answers were supposed to indicate something somehow. I didn't quite understand it all. The only one I did understand was the question about, what would you do to them, and they say depending upon the response it may indicate some involvement.
MR. FORD: It is an actual police conducted questioning of the defendant Echols, and these are the recorded responses. The responses directly implicate my client. They also describe with striking accuracy the injuries.
And if you'll see, this interview was conducted 5-10-93. "Heard they drowned." We know what the (TR 1213) medical examiner's opinion had been as to the cause of death for two of them, multiple injuries with drowning.
I believe that this statement which implicatesJason Baldwin is made by Mr. Echols. I'm entitled to call Mr. Echols and go into this area, but I'm not if we are tried together because I cannot call him to the witness stand, or we asked earlier for the grant of use immunity and the Court declined for there to be a use immunity.
I think if you take that factor, I think you take the arguments I have made previously regarding Domini Teer and Damien Echols being seen at the crime scene and that evidence being presented by Tabitha Hollingsworth on the stand to place Damien at the scene. Then you take the statements of Damien Echols which implicate Jason Baldwin and you take these other statements that have been introduced --
THE COURT: Are you planning on using this?
[189]
MR. FOGLEMAN: We may use some of these statements. We will be glad to instruct the witness not to respond to the question about, who do you think did it, where he names Jason Baldwin.
MR. FORD: It is my contention that in light of this evidence that to require me to go to trial with (TR 1214) Damien Echols and prohibit me from discussing with him his involvement when there is a witness who places him at the scene, to discuss the fact that he implicates Jason Baldwin and the fact that his girlfriend lives close by to Jason Baldwin and that person could have been where the knife wound up in the lake.
Those are all arguments that I'm allowed to make that are reasonably concludable from the evidence. The way the prosecutor is being allowed to make those conclusions, I'm denied that conclusion. I'm denied that argument if I have to go to trial.
When you take all those things and add them together and you also factor the concern we have regarding our peremptory challenges --
THE COURT: That doesn't concern me at all. That is not an issue whether I grant a severance or not.
MR. FORD: You take the statute that gives him in my opinion the substantive right. We differ, but I have that legal argument. You take into consideration the testimony of Tabitha Hollingsworth placing Damien at the scene. You take
[130]
the statements of Damien Echols that refers to my client --
THE COURT: That can be stricken.
MR. FORD: If the Court "brutonizes" this interview and does not allow me to delve into that, (TR 1215) I'm denied the ability to draw all the reasonable inferences that I can from the evidence. The fact that one -
THE COURT: Why would you want to inquire into it? Would you want to inquire -
MR. FORD: Let's --
THE COURT: -- if your client was involved?
MR. FORD: Let's --
THE COURT: If I make that statement neutral as to who was involved or who may have been involved, why would you want to inquire into it?
MR. FORD: Let's say it is my trial strategy to come before the jury and say, we have Damien and Domini at the scene and we can establish that not only through Tabitha Hollingsworth but the other people who were in that automobile, all of whom are related to Domini Teer, so they would have a reason to know her over any other person they might see. That they have a desire to cover their own tracks so when Damien is interviewed he implicates Jason. And they live out there at Lakeshore. They place a knife which the State may argue is the murder weapon and they place it outside his house.
Then I'm not allowed to truly cross examine them on these
[131]
issues if I have to go to trial and can't (TR 1216) call Damien Echols to the stand to disclose a possible cover-up that those two people may have participated in to implicate my client.
MR. FOGLEMAN: He's saying that his best friend -
MR. FORD: I don't know he's his best friend. Do you?
MR. FOGLEMAN: Sure.
MR. FORD: The jury doesn't.
MR. FOGLEMAN: It will. Your Honor, there's nothing to preclude Mr. Ford from bringing this forth about Damien and Domini, from all the Hollingsworths, all eight of them or however many of them were in the car. There's nothing to preclude him from developing that. There's nothing precluding him from putting Domini on the stand and questioning her about it. I don't see what he would want to ask Damien about.
MR. FORD: Your Honor, I do. And I feel that that creates -- I think that entitles my client a severance.
THE COURT: You want to call Damien as a witness for your client.
MR. FORD: I don't have to commit myself at any time to say, I am going to call a witness, because I don't know exactly what the State's case will be, and (TR 1217) obviously my case is going to evolve as their case comes forward.
THE COURT: I'm just trying to find where there's an inconsistency in the defenses. I don't see any inconsistency
[132]
in you saying, the witnesses say that it was Damien's girlfriend.
MR. FORD: That Damien Echols is trying to implicate that my client did it.
THE COURT: I am going to strike that.
MR. FORD: I can't put that evidence on completely and fully.
THE COURT: Why would you want to put on a witness' statement that your client did it?
MR. FORD: If I can try to establish a scheme to implicate my client that was done by one of the actual perpetrators, it helps to exonerate him.
THE COURT: There's no way you can possibly want to put on testimony from an alleged co-defendant that your client did it. Now, that's absurd. I can understand your wanting to argue, it wasn't my client. It was Domini Teer because that's who the witnesses say it was. I certainly can understand that.
MR. FORD: And Damien.
THE COURT: Well, and Damien. (TR 1218)
MR. FORD: If I want to -- I think what you're telling me is I cannot have certain trial strategies because you're not going to separate these trials, and you are going to limit what my trial strategy is, what my potential ability to do on cross examination is because we have to have a joint trial.
THE COURT: I'm trying to see why it would be -- why it
[133]
would be a contrary offense to anything by Baldwin. I assume his defense is -- I mean Echols' defense is going to be, I didn't do it. I wasn't there. So what's the inconsistency?
MR. FORD: That's not the only factor that the Court can consider as to whether they have antagonistic defenses. There are other factors for the Court to consider and I'm raising those arguments as well.
THE COURT: I'm also concerned about judicial economy, where I cannot see a real reason to separate them and to have a tremendous additional cost of time and energy of the Court and the parties.
I understand that his right to a fair and impartial trial probably outweighs every other possible consideration. I'm fully aware of that.
MR. FORD: You're not aware of all of the facts that I'm aware of. You're not privy to the State's (TR 1219) discoveryfile. You're not privy to my conversations with my client.
THE COURT: You better be telling me something then if you want a severance.
MR. FORD: Your Honor, I'm trying to tell you something
THE COURT: Well, I'm listening.
MR. FORD: I have tried to tell you some of the things
I'm going to try to do. For me to be denied the ability call a person as a witness to help establish that, that says you don't have that possible defense tactic. You're saying you cannot have that one by saying I have to go to trial with
