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, West Memphis Arkansas Police Department.
Q. How long have you been employed in law enforcement?
A. All totaled, approximately twenty years.
Q. I want to direct your attention to June third, 1993. On that date did you have occasion to come into contact with the defendant Jessie Misskelley, Junior?
A. Yes, I did.
Q. Do you know the approximate time? (998)
A. Approximately 11:15 to 11:20 A.M.
Q. Did you have a conversation with him?
A. Yes, sir, I did.
Q. Prior to having a conversation with him, did you advise him of his rights?
A. Yes, sir, I did.
Q. How did you do that?
A. By means of an advice of rights form outlining his rights which I placed this so he could read as I read his rights to him to make certain there's no misunderstanding. I also explained what each of the rights meant. He initialed each of the rights individually and then signed the waiver of rights.
Q. When you turned it toward him, did it appear that he was reading?
A. Yes, sir.
Q. I want to show you State's Exhibit Eleven for identification purposes and ask if you can identify that?
A. Yes, sir. This is a photocopy of the rights form signed by Jessie Misskelley on June 3, 1993, at 11:30 A.M. witnessed and signed by myself.
Q. In advising him of his rights I think I understood you to say that you read them to him?
A. Yes, I did.
Q. After you read each right, did you inquire whether he understood those rights? (999)
A. Yes, sir.
Q. Did he indicate that he understood them?
A. Yes, sir, he did.
Q. How did he indicate?
A. He said he understood.
Q. Did he also place his initials?
A. Yes, sir, he did.
Q. Did you use any force, promises, threats or coercion to get him to place his initials by each of his rights?
A. No.
Q. Did you also go over the waiver of rights portion?
A. Yes, I did.
Q. Did you ask him to sign the form?
A. Yes.
Q. What was his response?
A. He indicated he understood, and he did sign his name.
Q. Were you present?
A. Yes, sir.
Q. Did you see him sign his name?
A. Yes, sir.
Q. Was there anybody else present?
A. No, sir, not at that time.
Q. Did you use force, promises, threats or coercion to get Jessie Misskelley, Junior to sign this form or to talk to you?
A. No. (1000)
MR. FOGLEMAN: We would offer State's Exhibit Eleven.
MR. STIDHAM: No objection.
THE COURT: It may be received without objection.
(STATE'S EXHIBIT ELEVEN IS RECEIVED IN EVIDENCE)
BY MR. FOGLEMAN:
Q. I also want to show you State's Exhibit Ten and ask if you can identify that?
A. It's a polygraph examination release form signed by Jessie Misskelley, Junior.
Q. What involvement did you have with the polygraph release form?
A. The consent for the polygraph with Jessie Misskelley, Senior had already been signed, given consent by his father, and witnessed by Detective Allen. When I was given this form, Jessie Misskelley, Junior was with me. I again went over this, explained some of the words I thought he might have a problem with. He said he understood. He signed it in my presence, and I witnessed his signature.
Q. Did you use any force, promises, threats or coercion to get him to sign the form or to take a polygraph examination?
A. No.
Q. Do you know approximately how long the defendant was with you?
A. He was with me approximately an hour. (1001)
Q. From approximately when to when?
A. From approximately 11:15 until 12:15, 12:20 somewhere in that area.
Q. After the last chart you ran, did you make a notation of the time?
A. Yes, sir, I made a notation at the end of that particular chart.
Q. Do you know what time that was?
A. If memory serves me correctly, it was 12:11 P.M.
Q. During the course of your involvement with the defendant, was there any force, promises, threats or coercion at all during the course of your involvement with the defendant?
A. No.
Q. After you completed your polygraph examination, what did you do then?
A. I asked Jessie Misskelley to sign his polygraph sheet, which he did. I then advised Mr. Misskelley of the test results.
Q. And did you conduct a post test or try to conduct a post test interview?
A. I attempted to and he refused to answer any questions.
Q. When you say, "he refused," what do you mean?
A. He remained silent. When I told him the test results, he slumped down in the chair, turned his head toward the opposite wall, and refused to answer my questions, made no sound or (1002) responses whatsoever.
Q. When you say, "he refused," did he say, "I refuse"?
A. No, sir. He was silent.
Q. After he was silent, what did you do?
A. When I saw he was not going to respond, I left my office, leaving Misskelley sitting there, advised Gitchell and Ridge of the polygraph test results and explained to them that Misskelley would not talk to me and perhaps someone else should try to question him.
CROSS EXAMINATION
BY MR. STIDHAM:
Q. Officer, do you know why Detective Ridge's notes reflect that the polygraph examination lasted from 10:30 to 12:30?
A. You'd have to ask Detective Ridge that question.
MR. FOGLEMAN: Where are you referring to in his notes?
MR. STIDHAM: It is the typewritten notes.
BY MR. STIDHAM:
Q. Have you seen those notes before?
A. No. To the best of my recollection, I have not.
Q. You don't have any explanation as to why these notes would reflect that?
A. Those are not my notes.
Q. You don't have any reason to know why that reflects that?
A. No, I can't answer that question. (1003)
Q. It is your testimony that you had Mr. Misskelley for about an hour?
A. Yes, sir.
Q. There were three charts done on the polygraph test?
A. That's correct.
Q. Each of these charts last approximately three minutes?
A. No, sir.
Q. That's not correct?
A. No, sir. Did you say twenty minutes?
Q. No. I said three minutes per chart.
A. Approximately each chart would last approximately two minutes. I ask a series of ten questions. I must wait a minimum of ten seconds between the subject's answer before I ask the next question. In a ten question chart that's going to make the actual end test itself per chart to be approximately two minutes long.
Q. So we've got about Six minutes of charts?
A. Correct.
Q. What happened the other 54 minutes?
A. When Mr. Misskelley first came into my office, I did an information sheet which is part of my report. I went over the advice of rights with him. I spent at least twenty minutes explaining to him how the test works, the conduct of the test, what I expected him to do as far as cooperation with the test itself, what the attachments to the instrument did and the basis (1004) for the instrument.
We talked in terms that I felt he understood -- he indicated that he did -- as far as the central nervous system, the autonomic system, and various physiological responses of the human body. I also asked him questions dealing with the matter at hand.
I formulated a test question sheet. I reviewed the questions with him twice. Once while I was formulating the questions and then again prior to the end test itself.
I explained to him that these would be the questions which are all worded so he can answer yes or no. I reviewed the questions with him in advance and explained to him that these would be the questions, that they would be asked in the same order each and every time and there would be no deviation in the manner in which the questions were asked prior to the test itself.
Q. When did you first realize you were going to conduct a polygraph exam?
A. I will have to guess probably fifteen minutes prior to Misskelley coming into my office.
Q. It would have been about --
A. I think Detective Allen had said they wanted a polygraph test on Misskelley and, of course, I can't tell you what happened with Jessie Misskelley, Junior prior to him coming into my office. (1005)
Q. Were you present at the detective's meeting?
A. I was.
Q. You remember the detectives or the group of you all discussing the fact that you had information that Jessie was at a cult meeting with Damien?
A. Of my own memory I don't recall that.
Q. Was there any mention of a polygraph test made at that meeting that morning?
A. I can't recall that. There had been many instances where they were mentioning someone taking a polygraph test, but it wasn't always possible to schedule them on the day it was brought up. Had it been mentioned that morning, which I don't vividly recollect, that is not to say I would have done it on that particular day had he not been available.
Q. (HANDING) Do you recognize that photograph?
A. This appears to be the photograph that was taken in my office while I was out with the flu last week.
Q. Does it reflect the polygraph machine?
A. It shows the polygraph instrument mounted on the polygraph desk.
Q. Do all four of those photographs depict your office and the polygraph machine?
A. They show my polygraph and also the examiner's chair.
Q. Would these photographs be a fair and accurate depiction of your office where the polygraph machine is and where the (1006) polygraph tests are administered in West Memphis?
A. Not at the present time and not at the time I did these tests.
Q. What do you mean by that?
A. I can see there is a softball bat laying in the corner. I received that bat approximately the second week of December. It was given to me by another officer. And it was not in the office on the date that I conducted this polygraph test or any of the tests related to this case. It had been there since the middle of December and it is not in my office at the present time.
Q. So you're saying that the photographs in and of themselves are representative of your office with the exception of the aluminum baseball bat propped up in the corner?
A. Let me look at them again.
Q. (HANDING)
A. There's one other change. You show a large chair. That chair was not there when I conducted any of these tests involving this matter. That chair was put there sometime later in the summer when we got a different conference table and chair in Inspector Gitchell's office and I inherited that chair because I didn't have enough seating in my office. So the chair was not there at the time I conducted the test. Neither was the softball bat. Everything else appears to be accurate.
Q. That baseball bat wasn't in there on June third when you (1007) gave the polygraph test to Mr. Misskelley?
A. No.
MR. FOGLEMAN: Subject to the limitations that Officer Durham has put on the contents of the room we don't have any objection. We do think it would be helpful for the record if it could be stated when the photographs were taken.
MR. STIDHAM: They are on the photographs themselves. January fourth, 1994.
THE COURT: Are you offering them?
MR. STIDHAM: Yes, your honor.
THE COURT: They may be received without objection.
(DEFENDANT'S EXHIBIT TWO A, B, C AND D ARE RECEIVED IN EVIDENCE)
BY MR. STIDHAM:
Q. Was there a point during the polygraph examination of Jessie Misskelley, Junior that Mr. Misskelley became angry?
A. No, sir, not in my presence.
Q. Did you ever get angry at him at any time during the test?
A. No.
Q. Why did Detective Allen have to come in the room and restrain Jessie?
A. He didn't come in my office and restrain Jessie in my presence. (1008)
Q. It didn't happen?
A. Not in my presence. I can't say it never happened. I'm saying I never saw that happen.
Q. What were the results of Jessie's polygraph test?
A. It was my opinion that he was deceptive to the relevant questions dealing with his involvement in this homicide.
Q. Those questions you asked him -- do you have those in front of you?
A. Yes.
Q. The first question was, "Have you ever taken a polygraph test before?"
A. That's correct. It is an irrelevant question.
Q. Does it matter?
A. No, it doesn't.
Q. Second question is, "In regard to the deaths of those three boys, are you going to tell the truth during this test?" Is that a relevant question?
A. It is a sympathetic relevant, weak relevant.
Q. Third question, "Have you ever been in Robin Hood Hills?"
A. Relevant question.
Q. Question four, "Do you smoke dope?"
A. That's a control question.
Q. "Have you ever took part in devil worship?"
A. That's a relevant question.
Q. Question six, "Have you ever sold any dope?" (1009)
A. That's a control question.
Q. "Have you ever attended a devil worship ceremony in the Turrell/Twist area?"
A. That's a relevant question.
Q. Eight, "Have you taken any drugs or medication today?"
A. That's an irrelevant question.
Q. Number nine, "Are you involved in the murder of those three boys?"
A. That's a relevant question.
Q. Ten, "Do you know who killed those three boys?"
A. That, too, is a relevant question.
Q. Which questions do you contend that Mr. Misskelley was being deceptive on?
A. My written report only reflects the relevant question dealing with the matter at hand, which of course would be 3, 5, 7, 9 and 10. The other questions are used for different purposes. They don't deal with the matter at hand per se.
Q. Did you ever tell Jessie Misskelley at any time that you knew he was lying because his brain was telling you that he was lying?
A. I not only did not make that statement, I have never made a statement like that.
Q. Did you explain to Jessie what a polygraph test was?
A. We covered that in the pre-test interview.
Q. So I assume you informed Jessie that he had flunked the (1010) test?
A. That's correct.
Q. Did he make any response to you?
A. At that particular point he slumped in his chair, turned to his right and faced the opposite wall and made no response.
Q. So for the record then you're saying that he was deceptive in question two?
A. I beg your pardon?
Q. Which questions was he being deceptive in your analysis? That would be questions two --
A. Mr. Counselor, questions 3, 5, 7, 9 and 10 are the relevant questions dealing with the matter at hand. The other questions are either control questions or separation questions. They are not part of the test per se other than for the sake of scoring.
Q. Are you contending then that he was being deceptive in 3, 5, 7, and 9?
A. And 10.
Q. And you didn't care about any of the other questions? Did you score them at all?
A. They are control questions. I looked at those questions. If you want to know the results, I'll certainly tell you. Yes, in my opinion that he was lying. He did not intend to tell the truth during this test and, yes, he had both smoked and sold dope, but that was not the issue at hand.
Q. So he flunked every one of them? (1011)
A. No, sir.
Q. Which one did he pass?
A. The very first question.
Q. Why did you think it was important to mix drug questions with homicide questions?
A. A control question is a control question. If a person responds to it, then of course it is a good control. If there is no response to that question, then it becomes an irrelevant question to the subject at hand. If you ask relevant questions directly in a row, then you're not running a zone of comparison polygraph test. You're doing a peak of tension type test, and that is not what this was.
It doesn't matter whether the question was related. At the time I ran this test, you must understand that Jessie Misskelley, Junior was not a suspect. He was at that time, I was told, that he was most probably a reluctant witness. The purpose of the test was to basically see if he had information that might be helpful to us in the investigation of this matter and questions dealing with his involvement or knowledge were questions to determine whether he was or whether he was not involved in the murder itself.
The questions dealing with does he know who -- if he had been a reluctant witness, he may have overheard conversations. Here again is one of the situations where we are searching for information. (1012)
Question number nine dealing with involvement in the murder themselves was a cover question to -- as I had -- to determine whether or not he was involved himself or not or whether he might possible have information that would benefit us in the investigation.
Had he been a suspect at the time, I would have asked a different series of questions that would have been more specific and more direct. At the time I did the test on Jessie Misskelley, Junior, he was not a suspect.
Q. Officer Durham, you mean to tell me that you just dragged anybody and everybody off the streets of West Memphis and gave them this test and see if they were telling the truth or not?
A. I did not give everyone on the streets of West Memphis a polygraph test. Depending on the individuals and depending on what they had to say in the pretest would determine the type of questions or the wording of the questions that I would ask.
If he had said that he had been in Robin Hood Hills but hadn't been there in the last year, for instance, then I would have asked him had he been in Robin Hood Hills in the last year. But he said he had never been there, which in my opinion was not the truth.
Q. Let's assume for a minute that I'm not a lawyer and you're not a polygraph guy and the police pick you up, take you down to the station and ask you these ten questions. Would you feel like you were a suspect if you were asked these ten questions? (1013)
A. I'm glad you asked me personally because if I was a suspect in any manner -- and I have taken polygraph test myself -- I would gladly take a polygraph test at anytime for anybody at the present time if there is any question as to my honesty or integrity, Mr. Counselor.
Q. How long have you been administering polygraph tests?
A. I graduated from the Zahn Institute of Polygraph in Miami, Florida, in December of 1981. I became licensed in the state of Tennessee in early 1982 through the Memphis Police Department.
Q. Why didn't you do a peak of of tension test on Jessie Misskelley?
A. Following this test -- is that what you're asking?
Q. I mean, why didn't you do it in the first place?
A. A peak of tension test is generally a searching peak of tension. Such as an example where a person is -- is as -- I want to do it in a way that you can understand.
The last time -- this case out West where a person was linked to a crime, a murder, and he had buried the body and it was important to the investigators to find where the body was located. They had narrowed it down to a certain area and they drew the area off in certain graphs and numbered them one through seven and a question on the test was, "Is the body buried in zone one, zone two" so forth and so on, and through the unknown searching peak of tension they were able to isolate the area and later locate the body. That is the true purpose of (1014) doing a peak of tension.
As far as doing a peak of tension following this polygraph test --
Q. That's not my question. My question is, why didn't you do it to begin with?
A. Because I use a zone of comparison. I use a zone of comparison which to the best of my knowledge -- and I have read this in the AAPA journals -- is the only polygraph technique that is recognized in the American Association of Chiefs of Police.
Q. Had you determined that Mr. Misskelley had been telling the truth and was not being deceptive on the questions, you would have turned him loose, right?
A. It is not my place to turn someone loose or incarcerate them based on polygraph test results. If Mr. Misskelley had in my opinion been telling the truth, then I would have told the lead investigator that in my opinion Mr. Misskelley had told the truth in regard to the relevant questions.
Q. Do you ever yell at suspects when you're giving the polygraph test?
A. No.
Q. Do you ever yell at suspects when you're interrogating them?
