STATE OF ARKANSAS PLAINTIFF
VS. CR-93-47
JESSIE LLOYD MISSKELLEY, JR. DEFENDANT
AFFIDAVIT AND DECLARATION OF COUNSEL IN
SUPPORT OF MOTION TO PRESERVE EVIDENCE
AND FOR ACCESS TO EVIDENCE FOR TESTING
I, DANIEL T. STIDHAM, state and declare under penalty of perjury as follows:
1. I served as appointed attorney of record of and for Jessie Lloyd Misskelley, Jr. in the above-entitled case.
2. In an effort to assist Mr. Misskelley in preserving his rights, and because of my knowledge of his case, I have assisted Mr. Misskelley with respect to a motion to preserve physical evidence, and for access to the evidence for testing. I have taken these steps in view of the fact that Mr. Misskelley has filed timely appeals, and a pro se petition under A.R.Cr.P. 37.
3. In an effort to further assist my trial level client, on March 27, 2002, I traveled to the West Memphis Police Department, in West Memphis, Arkansas, to inspect the evidence in the case, and in particular the several items described at pages 3 and 4 of the November, 2000, declaration of Marc Scott Taylor, a criminalistics expert who I personally took to the West Memphis Police Department in July, 2000.
4. During my most recent visit, in March, 2002, I was accompanied by
-1-
John Philipsborn, known to me as a member of the State Bar of California, who is a criminal defense lawyer with experience in the defense of homicide cases as well as in post-conviction litigation. For the purposes of our visit to the Police Department, Mr. Philipsborn was there: (1) to look at the state of packaging of the evidence; (2) to make contemporaneous notes; and (3) to take photographs.
5. During the several hours that Mr. Philipsborn and I were at the West Memphis Police Department, we were in the company of at least one police officer, who supervised us, and ensured the integrity of the evidence. That same police officer observed us at all times during our review of the evidence.
6. We reviewed a number of items including the items listed in Mr. Taylor’s declaration. Among the items we reviewed were items: E-1 through E-14 (largely clothing worn by the victims); E-53 through E-62 (large manilla envelopes containing smaller envelopes, described as containing various biological fluid samples); as well as E-23 (a knife and scabbard); E-19 (a hook and a length of rope); E-79 (a blue shirt from Damien Echols); E-119; E-129; E-134; E-178. This is not a complete list, but it gives the Court and counsel an idea of the extent of the review.
7. During our review, I personally ascertained that several evidence bags had defects, or holes in them. We attempted, as best possible, to document this fact in photographs that I intend to make available to the Court and counsel. Among the bags that had holes were: E-5; E-6; E-7; E-9; E-12; E-13; E-14; E-91; E-23.
-2-
8. In addition, a number of items have been kept in bags that have been repaired, for example the bag containing E-79.
9. In addition, in the interim between the time I was permitted to review the evidence in the company of Mr. Taylor in July, 2000 and the present, I noted that another person had also reviewed it, including, I believe, a member of the press.
10. I have been informed that the evidence bags are contained in boxes kept inside the evidence vault at the West Memphis Police Department. I was not permitted to see the boxes at issue, but did look into the evidence vault – formerly the actual vault to a bank, the premises of which are now used by the West Memphis Police Department.
11. I did not see any evidence in a refrigerated evidence room, or in laboratory settings – and thus cannot at this point explain or describe to the Court the condition of any evidence stored in laboratory settings.
12. During my recent inspection of the evidence, at all times Mr. Philipsborn and I wore gloves, changing gloves after every time an item of evidence was handled. We also ensured that any table top used for the inspection of evidence was covered by paper, which was changed after each item of evidence was opened or inspected. I do not know how others conducted themselves when they viewed the evidence at issue.
13. As is reflected in Mr. Taylor’s November 6, 2000 declaration at page
-3-
4, paragraph 18, the longer this evidence is stored without being subjected to accepted laboratory methods, the greater the chance of its being compromised. In November, 2000, Mr. Taylor was of the view that all of the evidence he described at pages 3 and 4 of his declaration may be subject to re-analysis.
14. I am concerned that the rights of my client, as well as those of Mr. Baldwin (who represents himself) and of Mr. Echols, may be compromised unless the Court issues a preservation Order forthwith, so that the evidence can be stored and preserved in a method that meets with current laboratory standards. As noted, had it not been for the fortuity of my recent visit, certain items contained in bags with holes might have become contaminated in some way, or, in the alternative, may have been lost.
15. As noted, I am prepared to submit to the Court, and prosecution, as well as to counsel for any of the other defendants, copies of the photographs taken during my March 27, 2002 review of the evidence.
16. On the basis of the information set forth here, as well as based on the fact that the prosecution has responded to my motion in a “State’s Response to Motion to Preserve Evidence and for Access to Evidence for Testing” on March 9, 2001, and has stated that it has “no objection to a Protective Order,” I believe there is good and just cause for the Court to issue the Protective Order that I have previously submitted to the Court.
17. I declare under penalty of perjury that the foregoing is true and
-4-
correct except as any matters alleged on information and belief, and as to those matters, I believe this declaration to be true and accurate.
Executed this 4 day of April, 2002 at Paragould, Arkansas.
[signed]
DANIEL T. STIDHAM
SUBSCRIBED and SWORN to before me this 4 day of April, 2002.
[signed] Resi L. (Shelton) Jester
Notary Public
My Commission Expires:
7-6-2008
[stamped with official seal]
