I was a lawyer in 1993, affiliated with Dan Stidham. We were appointed to
represent Jessie Misskelley in June of 1993. At that point, I had done no prior
ABSTRACT 90
death penalty work. I had worked as a public defender. I had only tried one felony
case, and had tried misdemeanors, though they were always bench trials. I had
never tried a jury trial. I had tried four civil jury trials. At the time I handled the
Misskelley case I would have not tried my first felony case, and had never handled
anything like a homicide. (BMHR 515-516). I had never had to question the kind
of expert you get in a homicide case.
I had no training in death penalty litigation. After I took the case, I did not
get any training on the handling of a death penalty case. We dealt with issues as
they came up.
Because he was more experienced, Dan Stidham was Lead Counsel.
Stidham made the strategic decisions. I was the research and brief writer for the
most part.
At first we presumed Misskelley was guilty. There had been a confession.
(BMHR 520). We weren’t concerned about alibi witnesses early on. We wanted to
get the best deal possible.
We experienced difficulties with our client Jessie Misskelley, who could not
tell the same story twice. It was also evident that Mr. Misskelley had mental
issues. (BMHR 521-522).
We were trying to get a plea agreement that had a commitment in it
ABSTRACT 91
beforehand. But we never worked out a deal.
The situation changed around September of 1993. Misskelley had met with
his father and the father had called us and he was upset. As a result, we went to see
Jessie, and he said emphatically that he was not guilty. (BMHR 523-524). One of
the problems had been a bloody t-shirt that Jessie was supposed to have had and at
first it had been identified as having blood that had matched one of the victims.
(BMHR 525). But during a hearing in Marion, there was a statement made by
another lawyer that the prosecutor Fogelman had said the DNA or serology was
not going to be used, and that the blood on the t-shirt had actually matched Jessie
Misskelley. Up to that point in the case, which would have been around September
27, 1993, I had presumed Mr. Misskelley to be guilty. (BMHR 525-526).
I knew we had things to investigate, but I didn’t think that getting an
investigator was an option. At some point I recalled that Ron Lax, an investigator
working with the Echols defense, had volunteered to assist the Misskelley defense
as well.
I had taken part in interviewing third parties, alibi witnesses, and police
officers. (BMHR 531-532). I also recall that we used some experts, including
experts on confessions. Dan Stidham would have been making the decisions about
what evidence to present. We were trying to interview alibi witnesses, and given
ABSTRACT 92
them touchstones to remember.
I recall that at the time, Arkansas criminal procedure had Rule 2.3 which
required that a potential witness or potential defendant had to be told by police that
he or she was free to go at any time. In bringing the motion to suppress
Misskelley’s statement, we had not raised that issue, first because they could not
get Misskelley to tell them what had occurred, nor would any of the police officers.
At one point, review of the jailhouse statements issue had caused Stidham
and me to tell Misskelley that he had an excellent chance on appeal because of the
Rule 2.3 issue. However, the Arkansas Supreme Court indicated that the issue had
not been raised properly, and had been defaulted. There was no strategic reason
for us to have failed to raise it properly.
Also, I recall that we had to at least attempt to impeach the accuracy of the
Misskelley confession and that some of that would involve demonstrating that the
physical evidence was inconsistent with certain parts of the confession. That
would also involve expert witnesses. (BMHR 539-540).
I recall that Mr. Stidham and I had thought that we could not obtain ancillary
funding for serology or DNA experts.
I do not recall whether we had attempted to get any of the bench notes from
the crime lab. I don’t know if I had known enough at the time to interpret the notes,
ABSTRACT 93
however some of the statements in them would have required follow through, such
as some of the positive tests for DNA being bacterial in nature. (BMHR 543-545).
I don’t remember our getting, or trying to get, any assistance from a
pathologist. We had no strategic reason for not doing these things.
I was concerned that Misskelley could not assist us, and could not
understand his legal situation. I remember that we got Dr. Wilkins involved to
assess his competency and to deal with IQ. Wilkins eventually opined that he was
competent, but I really didn’t think he was competent to help us. (BMHR 552). He
was certainly not competent to be put on the stand. It was evident that Misskelley
could not say the same thing twice, and it did not look as though there was any way
“... he could even handle direct-examination, much less cross.” (BMHR 552).
I recall that something had come up during deliberations, a comment from
the Judge which made it appear as though the defense was going to lose the case. I
do not know why the Misskelley defense had not asked for a mistrial at that point.
(BMHR 556-557).
It was up to me to handle Misskelley’s penalty trial. There was compelling
evidence in mitigation. (BMHR 558). My intention if the case had gone to penalty
was to put on a psychologist. I did not plan on calling any other witnesses in
mitigation. However, I acknowledge that what I learned through Dr. Wilkin was
ABSTRACT 94
compelling mitigation. We didn’t know that there were some serious problems
with Wilkins. (BMHR 561).
I don’t agree with Paul Ford that presenting a bad alibi was worse than
presenting no alibi at all. Though the alibis weren’t perfect, we had good, strong
witnesses and I felt that we were right in trying to put on the alibi witnesses. I
would call our alibi witnesses again. (BMHR 563).
CROSS EXAMINATION BY BRENT DAVIS
The alibis had been that he was at a trailer park, and also that he had been at
a wrestling event.
I vaguely recall a meeting with the Court and prosecutors that had taken
place at the Holiday Inn. The meeting had been to discuss publicity, but during the
meeting, there had been some discussion about Misskelley testifying against the
other two young men. I vaguely remember that we had discussed aspects of the
potential testimony–but I think that may have been at another meeting. (BMHR
565-566).
After the meeting, Jessie Misskelley Sr. had given an interview in which he
had professed his son’s innocence. (BMHR 568).
I had done a fair amount of investigation on the case as had Dan Stidham. It
was me who was doing most of the alibi investigation. During the process, Ron
ABSTRACT 95
Lax had come forward to ask if he could help us. He did so.
Some of the experts that we called in Misskelley’s defense were highly
qualified, including Dr. Ofshe, and Warren Holmes. (BMHR 576-577).
In retrospect, I feel that Misskelley’s main issue on appeal would be the
Rule 2.3 issue.
REDIRECT EXAMINATION BY MICHAEL BURT
I had never known of the ABA Death Penalty Guidelines.
I indicate that the time records that I and Mr. Stidham had kept indicated that
after September 1993 we had made efforts to interview witnesses.
