having been first duly sworn to speak the truth, the whole truth and nothing but the truth, then testified as follows:
DIRECT EXAMINATION
BY MR. FOGLEMAN:
Q: Will you please state your name and occupation?
A: Bill Durham, detective and polygraph examiner for West Memphis, Arkansas Police Department.
Q: And I want to direct your attention to June third, 1993. Did you have occasion on that date to come into contact with the defendant Jessie Misskelley Junior?
A: Yes, sir.
Q: And did you advise him of his rights also?
A: Yes, sir, I did.
Q: I want to show you what's marked for identification purposes as State's Exhibit 84 and ask if you can identify that.
A: (EXAMINING) Yes, sir. This is a West Memphis Police Department rights form that I filled out which was signed, "Jessie Lloyd Misskelley, Junior" dated June third, 1993, and the time that he signed it was 11:30 A.M.
Q: How did you go over that form with him?
A: Jessie Misskelley, Junior was sitting beside my desk. I turned the form so that he could read it and as he was looking at it, I read the form to him so that he could read along with me. I explained each of his rights individually, which he initialed beside each of his rights. I then covered the waiver and he signed at the bottom.
Q: You said that he initialed each right. Did he indicate whether or not he understood those rights?
A: I asked him individually, and he did indicate that he understood each one.
Q: Did he appear to be having any trouble understanding those rights?
A: No, sir, he did not.
Q: Did you use any force, promises, threats or coercion to get him to place his initials by each right or to sign the form?
A: No, sir.
Q: Did you witness the form?
A: Yes, sir.
Q: Place your signature on it?
A: Yes, sir, I did.
Q: Did you also see him sign the form?
A: Yes, sir, I did.
MR. FOGLEMAN: Wwe would offer State's Exhibit 84.
THE COURT: It may be received. You may exhibit to the jury.
BY MR. FOGLEMAN:
Q: After advising the defendant of his rights, did you have a conversation with him?
A: Yes, sir.
Q: About how long were you with him?
A: Approximately one hour.
Q: During the course of this period of time that you were with him, did he provide you any information of substance?
A: No, sir, he did not.
Q: Did you provide him any details of anything that happened in the murders?
A: No, sir, I did not.
Q: The manner in which that you advised this defendant of his rights -- did you do that any differently than you would for anybody else?
A: No, sir.
CROSS EXAMINATION
BY MR. STIDHAM:
Q: Do you have any special training in dealing with people who are mentally handicapped?
A: No, sir.
Q: During this hour that Mr. Misskelley spent with you on June the third, did he deny any involvement in these murders the entire hour? Did he deny that throughout the whole time?
A: Yes, sir, he did.
REDIRECT EXAMINATION
BY MR. FOGLEMAN:
Q: Did you spend the entire hour asking him whether or not he was involved?
A: No, sir, I did not.
Q: Was the entire hour made up of asking questions?
A: Yes, sir.
Q: The entire hour?
A: No, sir, not the entire hour. There was other paperwork that I completed which took a degree of time and no, sir, the entire hour was not spent asking him questions.
Q: During the time when you were talking to him -- well, approximately how much time would you say was involved in actually asking him questions related to the incident?
A: Probably maybe a half that time, probably 30 minutes.
RECROSS EXAMINATION
BY MR. STIDHAM:
Q: So for 30 minutes he denied any involvement in these homicides?
A: Yes, sir, that's correct.
(THE FOLLOWING CONFERENCE WAS HELD AT THE BENCH OUT OF THE HEARING OF THE JURY)
MR. FOGLEMAN: I feel like Mr. Stidham is putting us in a bad position. On the one hand we cannot mention --
MR. STIDHAM: Your Honor, if we're going to talk about this, can we retire to chambers?
(RETURN TO OPEN COURT)
THE COURT: Ladies and Gentleman, you can have a ten minute recess with the usual admonition not to discuss the case.
(THE FOLLOWING CONFERENCE WAS HELD IN CHAMBERS)
THE COURT: Let the record reflect that this is a hearing out of the presence of the jury and the defendant is present.
MR. FOGLEMAN: Judge, the problem that is developing -- Mr. Stidham in his last question asked Detective Durham, "Did he continue to deny it for that 30 minutes," and of course the officer says, "Yes." It is creating a misrepresentation to the jury of what goes on. Obviously it is not a situation -- "Did you do it?" "No." "Did you do it?" "No." -- for 30 minutes -- I mean, that's absurd. But the jury is being left with the impression that the officer accused him and he's denying it for the entire 30 minutes when that is not what happened at all.
MR. CROW: Why don't you have him -- ask him -- were several subjects discussed and every time -- and if Dan wants to ask, "Every time you discussed the subject of the murders he denied it."
MR. STIDHAM: But he did deny it for 30 minutes --
(MR. STIDHAM AND MR. FOGLEMAN SPEAKING AT THE SAME TIME - UNINTELLIGIBLE)
MR. FOGLEMAN: -- They didn't ask him for 30 minutes, "Did you do it?"
THE COURT: Well, during that 30 minutes he denied it. That's what it amount to.
MR. FOGLEMAN: It is not as if during the entire 30 minutes -- well, you could say for a month he denied it up until the time he confessed.
THE COURT: I don't see any big deal or any impression that is made by it. Just a reasonable argument would be --
MR. FOGLEMAN: -- Well, we're prevented from explaining the circumstances, and Mr. Stidham is asking these questions when we are in an area where we cannot explain what happened. He's asking these questions that suggest to the jury that during this entire time he's asking him and he's denying it.
THE COURT: I don't see any need to explain it. The response is that he was interviewed by this officer for a period of 30 minutes and during the 30 minutes he denied involvement. Later --
MR. FOGLEMAN: -- That's not what happened.
THE COURT: Later when he was confronted with the little bite from that recording and a couple of other things, the chalk circle or whatever it was, that he changed his tune. You are just explaining that he went before two officers and then subsequently a third and fourth where he changed his tune. I don't see any big deal about it. Again, I want to emphasize that y'all are electing to waive your argument that the polygraph was a forceful inducement to cause him to change his testimony.
MR. CROW: We are waiving that, your Honor because --
THE COURT: You are waiving it because I want the record to be very clear that I am not prohibiting that argument or that evidence.
MR. CROW: We understand that. We are certainly not backing up and waiving that as a consideration in the suppression hearing. We are not going to make the argument to the jury.
THE COURT: I want the record to be very explicit that I am not excluding that tender or that testimony if you choose to follow that defense. The only thing I'm limiting are the results of the polygraph from either side.
MR. CROW: I want the record to reflect why we are doing that.
MR. STIDHAM: Your Honor, it's not logical from a defense standpoint to allow the State to say he flunked it and not allow us to say he passed it. We can't have it both ways. It's got to be one way or the other.
THE COURT: I'm not going to allow them to say that he flunked.
MR. STIDHAM: Well, the fact that he took it and they kept interrogating him for four more hours - it is kind of a red flag.
THE COURT: You can argue that is a tool of confessions, that they do it all the time and that they tell these people that they failed it whether they did or not. Sometimes they don't even give them a test. You can do all kinds of stuff.
MR. STIDHAM: If the jury is not properly schooled on the polygraph and the results that can be interpreted from them, they are going to assume that he flunked it and, therefore, he must be guilty.
THE COURT: Well, the point is I'm not excluding that tender of testimony or that argument. I'm only excluding the results which I think is consistent with Arkansas law.
MR. STIDHAM: Judge, you're not suggesting that we have waived our proffer?
THE COURT: No. Are you talking about on the Denno hearing? No. That is a matter of record. I'm saying you have elected to waive during the trial that defense. I'm not prohibiting --
MR. STIDHAM: Only because of the Court's ruling. If the Court would allow us to put our expert on, we would have gone into it here.
MR. FOGLEMAN: The judge has ruled you can put your expert on.
MR. CROW: Not about the results of the polygraph. I understand the Court's ruling. I'm not arguing about the Court's ruling.
THE COURT: I'm saying you can make your argument whether or not the results were ever admitted.
MR. CROW: We understand that, but we don't think we can make it effectively without the other part.
(RETURN TO OPEN COURT)
REDIRECT EXAMINATION
BY MR. FOGLEMAN:
Q: Detective Durham, during this 30 minutes -- Mr. Stidham has characterized him as having denying it the whole time -- were you questioning him on his involvement the entire 30 minutes?
A: No, sir.
Q: What was the main focus of your questioning of the defendant?
A: Whether or not he was an associate of another person that we were looking at as a possible suspect, whether or not he was involved in any of these alleged cults that we had heard about --
Q: Involved in what now?
A: Cults.
Q: Okay.
A: And whether or not he knew who may possibly have been responsible for this crime.
