Robin Wadley and I were working with the Rees law firm and were
ABSTRACT 42
appointed to the case. I had been practicing since September of 1987. (BMHR
48:11-19). My general recollection was that I was Lead Counsel in Baldwin’s trial
and Robin Wadley was my co-counsel. (BMHR 49).
As a result of case preparation and communications with Baldwin, I
determined that “... the defense would be he didn’t do it.” (BMHR 51:17).
Baldwin’s assertions of innocence were “consistent with what I was viewing as the
evidence.” (BMHR 52:10-14). “Jason always maintained his absolute innocence in
this case.” (BMHR 52:1-2). I felt that I had investigated an alibi though I cannot
recall specifically what I did to investigate. I believe I obtained some document
that showed he was in school at that time, and I may have made contacts by phone,
or maybe Wadley did. (BMHR 53-56). I met with Jason’s mother several times.
She may have provided me his school records.
At the time I undertook the defense of the case, I had defended one or two
separate capital cases, and a third that ended up being negotiated. (BMHR 57-58).
I can’t recall whether I had attended any capital case training, or was aware of the
ABA Guidelines for the Appointment and Performance of Counsel in Death
Penalty Cases at the time I undertook his defense. (BMHR 58-59).
My investigation was undertaken by my speaking to persons that I could
speak to or following up on leads that were brought to me by people through
sources like Jason’s mother or through the prosecuting attorney. (BMHR 59:9-12).
ABSTRACT 43
I did not hire an investigator. (BMHR 59:24-25). The investigators working with
co-defendant Echols was not working for me. (BMHR 60:9-11). At no time did
these investigators work with us. (BMHR 60). I never asked for any specific
information from the Lax investigators. (BMHR 64:24-25).
You are showing me some documents (Petitioner’s Ex. 1) that were
generated by investigator Lax. If they are in my file, then I would have had them at
the time of trial, and if not, I would not have had them. (BMHR 65:23-66:13).
The Echols and Misskelley defense lawyers and I shared information only
on a cordial basis. I was not comfortable with everything that other counsel were
doing and I was not using the same defense plan. (BMHR 66:18-21).
I was not following what the Echols investigators and or what the lawyers
for Misskelley and Echols were doing. Ours was a different case. Misskelley had to
deal with a confession. Echols had a more significant exposure to the death
penalty. I was concerned about getting Baldwin severed from Echols, and the
Judge and I went around about that. I didn’t want to share documents with any of
the lawyers because I was concerned about waivers of the privilege. (BMHR at
67-69). I was not concerned that other defense teams in the case had an
investigator and I did not. (BMHR 68-71). The defense was that Mr. Baldwin did
not do it. I had considered an alibi defense. (BMHR 70-71). The alibi as I recall
would have to cover the times between 3:00 p.m. and 9:00 p.m., which was the
ABSTRACT 44
time from the end of the school day and the time when the parents were concerned
that their children were missing. (BMHR 73:1-6).
I tried to verify Baldwin’s whereabouts by talking to Jason and his mother. I
recall talking about an uncle whose yard Baldwin was said to have been mowing.
(BMHR 73-74). I recall that at one point Baldwin was supposed to have been in
the company of his younger brother. I can’t remember at this point what I looked at
or what I knew exactly. Now that I am looking at Exhibit 49 from the statutory
habeas exhibits in case CR 09-60, I may have seen a statement taken by the State
indicating that Matt Baldwin, Baldwin’s brother, purported to have information
about Baldwin’s whereabouts. I don’t recall if I looked at it back then. (BMHR
78-79). I felt that if I was unable to establish an alibi, presenting an incomplete
one was more detrimental than presenting one at all. (BMHR 78). Now that you
are showing me these records, I recall some discussion about Baldwin being home
with his brother, and I specifically recall discussions with Jason and Jason’s
mother about calling home during the evening when she was at work. (BMHR
79:7-10). I don’t remember trying to get any phone records from her place of
work. You have also asked me to look at a police interview with Gayle Grinnell of
6/4/93. I can’t remember at this point whether I had seen that interview. I felt that
the mother desperately had wanted to provide assistance by telling me where
Baldwin had been, but I didn’t feel that I had reliable information from her.
ABSTRACT 45
(BMHR 80).
I agree that it might have been significant to the jury that during the course
of Detective Bryan Ridge’s interview of Gayle Grinnell that the Detective had
indicated that if Baldwin could provide information about his whereabouts he
could go free. (BMHR 83). It would have been something to ask the Detective if I
was trying to present an alibi for Baldwin. I also agree that if I could have
established through phone records that there was a call initiated in Memphis that
reached the Baldwin home at about 7:30 a night, that would have corroborated the
mother’s information. (BMHR 81-84). I have a general recollection that Gayle
Grinnell lived with a man named Dink Dent at the time of the event, and now that
you show it to me as Ex. 3, I don’t recall how I came to be in possession of a
handwritten statement from Dent describing his recollection of events. I never went
to see Dent. (BMHR 86). However, I can identify some notes from my file that I
had made about the case that mentioned Matt Baldwin and Dennis Dent as well.
(BMHR 87-88).
I also recall that I had received information from Baldwin’s uncle indicating
that Baldwin had been mowing the lawn at his uncle’s place on the afternoon that
the children had disappeared. (BMHR 88). My notes indicate an address for the
uncle of 1037 Park Drive in West Memphis. However I cannot recall ever going to
the uncle’s residence. (BMHR 88.) It also would not have surprised me if Gayle
ABSTRACT 46
Grinnell had provided the police with a time-line that included, among other
things, her son having gone to his uncle’s house in West Memphis to mow the
lawn. (BMHR 89).
I do not recall whether I received information that Baldwin had been having
phone contact with some girls on the night of May 5 when the three young boys
had disappeared. I have a hazy recollection of Jason and I discussing them. I can’t
recall if I had a police transcript of an interview of any of them, including Jennifer
Bearden. (BMHR 90) I also recall Baldwin telling me that he had a girlfriend
named Heather. If there is a Heather Cliett interview with the police that was in
my file, I would hope that either my co-counsel or I had reviewed it, and that we
discussed it. (BMHR 89-91).
Now that I am asked about it, it would have been significant if my client had
caught a school bus at 7:30 a.m. near his home after supposedly having been
involved in a homicide several miles away from his trailer park only hours before
the bus ride, and that no one noticed anything unusual about him. (BMHR 93-94)
I don’t recall right now whether I was aware of a police interview with
Echols’ girlfriend Domini Teer, who had given an explanation of where Echols and
Baldwin had been on May 5, 1993, but I generally recall that she had talked about
those things. (BMHR 94).
I also recall that there had been some conversation from Baldwin about his
ABSTRACT 47
walking to a Walmart on the day of the killings after school and playing a video
game. I don’t recall a Don Namm, or information about his having said that
Baldwin had been at Walmart, or Kenny Watkins telling the police that he had
been told that Baldwin had been by his uncle’s place that afternoon. If it was in
police reports that were in my file, then I “should have reviewed it”. (BMHR 94-
96).
The State had been changing the range of the time of death. I felt it was
better for me to try to poke holes in the State’s case and in their estimate of time of
death than to try to call alibi witnesses. (BMHR 96-97).
I believed my client at the time, and I still do. I found him to be believable.
(BMHR 97).
As I was preparing for trial, one thing that happened was that the State
produced a jailhouse statement attributed to Baldwin by Michael Carson, who had
been in the detention unit with him. Also, I had been unsuccessful in getting a
severance from Echols. I also had some understanding that Echols was going to
present some kind of affirmative defense. And shortly before he did so, I was made
aware that Echols was going to testify. (BMHR 98-99).
My strategy didn’t change because of these things. My approach was: “My
client didn’t do it and the State must prove he did it, and my job is to raise
reasonable doubt. And reasonable doubt pokes a hole in their balloon”. (BMHR
ABSTRACT 48
99: 5-8). “My strategy began to be that’s just another avenue that I need to try to
poke a pin in”. (BMHR 99).
The State was trying to show that Echols and Baldwin were friends and were
connected with one another. When we were in trial I realized that Echols’ alibi
defense was “not very, very strong...”. It was like a house of cards. (BMHR 98-
101). It did not do Baldwin any good that Echols’ defense was disintegrating. “I
don’t think [Echols’] defense did him any favors”. (BMHR 101). It also didn’t do
my client any favors, which is why I had asked for severance.
Looking back at it, there were a number of differences between Baldwin and
Echols. Baldwin went to school. There were people like teachers and other young
people from Baldwin’s school who would have known him and about him.
(BMHR 74-75). “I thought he was a mild mannered young man that did not seem
to me to fit the suit of someone who would commit the horrific crime.” (BMHR
102-103).
I don’t recall whether it had even crossed my mind to assess whether there
was evidence of Baldwin behaving in some kind of an unusual manner the day
after the killing, or whether I thought of whether there might be people who could
have testified that he acted and looked normal after the killings were reported. I
can’t tell you whether it crossed my mind that people from Baldwin’s school could
have provided a baseline about my client’s behavior and physical appearance
ABSTRACT 49
within hours of when the State said he had committed capital murders. (BMHR
103-104).
I had to deal with evidence of a knife that had been recovered that was
attempted by the State to be linked to the homicides. (BMHR 104-105). My
thought was to discredit this theory, and that this would be a way to make their
case fall apart. (BMHR 106). I had a number of discussions with the State’s
pathologist, Dr. Peretti. I tried to address matters like time of death and
mechanism of injury with him. (BMHR 105-107). I recall that at one point in one
of our discussions Peretti told me “... I believe it was the cheek of one of the young
boys may have been bitten by a turtle, or some of those were turtle bites.” (BMHR
108:10-13). He may have said ‘could have been’. (BMHR 109). But I made the
decision that I was not interested in post mortem injuries. “I was more concerned
about who the State, did the State’s evidence prove that Jason Baldwin did
anything.” (BMHR 110). I was trying to show that the State’s case didn’t add up.
I felt that the turtle bites didn’t factor in to that.
I recall that Misskelley had given a statement that said something about
sexual assault, and my recollection was that the autopsy findings were inconsistent
with that. (BMHR 113). I can’t recall doing any specific research about what kind
of evidence, like DNA, might still be present, but I thought it would have washed
away. I may have read about that, but I don’t know about DNA and what might
ABSTRACT 50
wash it away. (BMHR 115).
I remember that the State had a DNA expert. I can’t recall exactly what he
was called to testify about. I also can’t recall whether the State had tried to
establish that there was some kind of evidence of sexual activity on the victims’
pants. I didn’t do any research on how you might detect semen or other fluids on
textiles. I also didn’t do any research on whether you could identify sperm
fragments using the methods that had been offered by the State. (BMHR 117).
I can’t recall if I ever obtained all the lab bench notes, lab notebooks, and lab
test results that had been produced. If they are in my file, I had them, if not, I didn’t
get them. (BMHR 117-118). I do have a memory of talking to Kermit Channel at
the Crime Lab. He had some notebooks with him. (BMHR 120-121). I don’t have
a clear recollection of doing that with Ms. Sakevicius. I don’t recall ever seeing
any copies of hair slides, or particularly a copy of a slide of a hair taken from one
of the ligatures used to bind the victims. (BMHR 121-122). I would have been
interested in getting information about that hair “[i]f the hair spoke, so to speak, I
might have thought it was important.” (BMHR 122:14-15). It might have figured
into the cards I might have played.
I never had a criminalist in this case other than Charles Lynch who assisted
us with fiber evidence. I didn’t have a criminalist go to the Crime Lab with me.
(BMHR 123-124). I didn’t consult any pathologist other than Dr. Peretti. (BMHR
ABSTRACT 51
126). My billing records will give you some idea of what I did in this case, but I
am not the best of record keepers. Petitioner’s Ex 6 are those records. (BMHR at
124-126).
I remember being more involved in dealing with Dr. Peretti than in
preparing to deal with the jailhouse informant Carson. But I did get a call from a
counselor named Danny Williams who told me that what Carson told the
authorities was “less than accurate”. BMHR 128. “I thought he would be essential
in my defense.” (BMHR 128:24). In the end, I didn’t call him because he wanted
to cover himself, and would not agree to testify consistently with what he told me.
Williams had been working for some sort of screener for programs for juveniles.
(BMHR at 129-130). I think that Williams may have also met with prosecutor
Fogelman.
I felt that I consulted my client about the decisions we were making,
including the decision not to call Williams. (BMHR 1132-133).
Baldwin “was willing to testify” in his defense. (BMHR 133). He did not
insist on testifying, although he was only 16 years old at the time.
My co-counsel Robin Wadley had been in the area longer than I had. He
knew more people than I did. I think he talked to Joyce Cureton who supervised
the juvenile detention unit. I don’t know if he talked to anyone else. (BMHR 134-
35). I can’t recall if we made any efforts to interview other juveniles at the
ABSTRACT 52
detention unit about the jailhouse informant Carson. It is true that I was going to
be arguing the case, and I would have needed to be on top of the evidence
including Carson’s information. (BMHR 136-137).
I also was aware from Baldwin and his mother, and maybe from Echols’
defense lawyers, that Baldwin and Echols were friends. I was made aware that the
two of them were not really friends with Misskelley. (BMHR 138). I can’t
remember ever interviewing any of the youngsters who lived near Baldwin to see
what they knew about his connection with Echols. I also can’t remember
interviewing anyone about whether they had seen Baldwin getting rid of evidence
like clothing, shoes or other evidence. I didn’t interview anyone about what they
may have known about comings and goings from the Baldwin trailer near the times
that I understood were pertinent to the killings. (BMHR138-139).
I don’t know of any evidence that Baldwin had ever been to Robin Hood
Woods: “I don’t believe there is any evidence that he has ever been there”.
(BMHR 139).
I also recall that certain statements attributed to Echols had allegedly been
made at a ball game that Echols and Baldwin were said to have attended. I had
asked for severance. I am not sure what was done with the witnesses to the
statements, as my co-counsel was handling them. But because I was arguing the
case, it was my responsibility to figure out what spin to put on them. (BMHR 142-
ABSTRACT 53
143). We had consulted with a child psychologist on jury issues, and we had his
suggestions about how to deal with the young ladies’ information about what the
statements made at the ball game. (BMHR 143-144).
I remember being aware that Echols was “essentially acting as an, an anchor
to weigh down Mr. Baldwin....” (BMHR 144). We talked about that a lot. You
better believe that was one of our concerns. The worse it got for Echols, the more
concerned our defense had to be.
We also knew, after jury selection that we had to be concerned that our
jurors had gotten information about the Misskelley case, which was tried before
ours.
I am not passing the buck in telling you that I relied on a jury consultant in
assessing the elephant in the room, which was the Misskelley confession and the
Misskelley conviction, and also the Echols defense, which I was concerned about.
“But it was what it was and I had to be concerned with it, just as you have
suggested, and I was”. (BMHR 146).
I tried to determine how to deal with those factors, and my concerns about
how my alibi witnesses would hold up under cross examination. I also recall that
“...Damien’s testimony hurt him significantly...and therefore, it hurt my case too.”
(BMHR 147). I was aware that the negative impression created by Echols would
effect Baldwin. I thought that even though Echols had called 7 or 8 witnesses, and
ABSTRACT 54
testified, and dealt with fiber evidence, I could rely on reasonable doubt in my
defense. (BMHR 147-48). “...I believe there was a lot of doubt in that case, and
still do.” (BMHR 148:2-3).
I would agree that we hoped that the jury would concentrate on Echols as a
major participant and view Baldwin as a minor participant. In that sense we acted
in some regard on a ‘stealth defense’. (BMHR 149).
I thought that the Echols defense alienated the jury. I had real “reservations
about some of their strategies....” (BMHR 149). I thought it was very dangerous
of them to point the finger at one of the victims’ fathers. (BMHR 149). But I felt
“confidence” in my ability and felt that if I did a good job, “he would have a good
chance of winning.” (BMHR 150). But I did think that Echols’s defense “hurt
them.” (BMHR 151-152).
The information that Baldwin’s Uncle Hubert could have supplied only
covered Baldwin to about 4:30 PM on the day the kids disappeared. The statement
from Dink Dent would have covered him to about 7:30 or 8 PM. (BMHR 152). I
agree that this evidence would have tended to indicate that Baldwin did not have
the opportunity to plan a murder that night. (BMHR 152). “[I]f you could provide
an alibi from 3 PM to 9PM...it would cover a lot of ills.” (BMHR 153:16-18).
Establishing such an alibi would have involved members of Baldwin’s household,
and the girls from the evening phone calls. (BMHR 153-154).
ABSTRACT 55
A defense based only on reasonable doubt arguments places a lot of
responsibility on the lawyer’s shoulders, since he has to argue the case and needs
to have established his credibility during the trial. I agree that you also assume the
risk, when you present no evidence in the defense, that jurors may conclude that
there is no evidence that the defendant didn’t do the crime–since he presented no
evidence in his behalf. (BMHR 155).
Looking at Exhibit 7, I recognize it as a memo from my file. It is dated
January 24, it memorializes a contact I had with counselor Danny Williams on the
21 . I also recognize a police interview of Ken Watkins by Detective st Ridge that
mentions a Walmart. Exhibit 8; (BMHR 161). These are from my file. I don’t
remember them. I also don’t remember Exhibit 9, which was a police interview
with Don Namm who purported to have contact with Baldwin on May 5, 1993. I
don’t remember interviewing either of them. I don’t know if my co-counsel did.
(BMHR 161-162). Exhibit 10 is a police report of an interview with Heather
Cliett. I kept the witness files in alphabetical order. Heather Cliett had said that she
talked to Echols on the evening the children disappeared, which is evidence that
would have exculpated Echols and benefitted Baldwin. (BMHR 164).
I don’t recall ever trying to see if we could provide an alibi for Echols in an
effort to benefit Baldwin. I didn’t think Echols’s alibi worked well. But I never
considered whether I might try to establish his whereabouts to benefit my client. I
ABSTRACT 56
never looked at the reports in the case that way. (BMHR 165-166).
I did think that I needed to assess whether Echols could provide a defense
because we made “a conscious decision...to pull our antenna in.” (BMHR167:15).
That was my strategy. It may not have been effective. I urged the co-defendant’s
counsel not to put Echols on the stand, and I was concerned about being tied to
Echols and his pulling us down. (BMHR 167-168).
Whether it was reasonable for me not to have an investigator is “for
someone else to decide.” (BMHR 169). There were many witnesses in the case.
There was a lot of work that I put in to the case. “So could I, in hindsight, have
benefitted from an investigator. Yes.” (BMHR 170:16-17). I did the best I could
at the time.
I agree that we did not present any penalty evidence in Jason’s behalf. I
agree that we assumed a risk in not presenting any evidence. (BMHR 172).
My approach to this case was that I could argue the case well enough to have
the jury give my client a light sentence. And it’s fair to say that a lot of the
approach to the defense of this case was built around my confidence in my ability
to argue persuasively to the jury. (BMHR 172). I felt that I could argue that in
“the absence of any evidence that he did it and the State’s absolutely void of
proof”, that was my evaluation. (BMHR 173).
I agree that I could not use impeaching information about Anthony
ABSTRACT 57
Hollingsworth if I never received it. (BMHR at 175). [The State reserved an agreement on whether Mr. Ford’s entire file was available
BMHR 148. Baldwin’s attorney J. Blake Hendrix represented that the Attorney
General’s Office made a copy of the entire file, and that the file was available in
the trunk of his car, as well. BMHR 176]
CROSS EXAMINATION BY BRENT DAVIS
I recall observing the Misskelley trial. The Misskelley alibi about wrestling,
or something like that, had unraveled. (BMHR 178-178).
It seemed to me that Baldwin and I had an agreement that we were doing
what we thought was best when he did not testify. He was a young man, and I
don’t want to put words in his mouth. I felt I discussed the issue of Baldwin’s
testimony with him. I arrived at the decision not to have him testify after we talked
about it, and considered it. “...[A]nd I hope that [Baldwin] doesn’t disagree with
that.” (BMHR 181:5-6). I also feel the same thing about our decision not to put on
alibi witnesses, and I hope he doesn’t disagree with that, either.
REDIRECT EXAMINATION BY JOHN PHILIPSBORN
I agree that I had a letter in my file that was in Baldwin’s hand that I looked
at and it made reference to persons who could provide an alibi for him. (BMHR
188-189). I also agree that my file contained information (Exhibit 12) indicating
that my client’s mother had attempted to funnel witness names and numbers to me.
ABSTRACT 58
(BMHR 191). I also had a set of notes from Uncle Hubert that had likely been
passed to me that showed what information he had about Baldwin’s whereabouts.
(BMHR 192-193).
I had some notes in my handwriting with the names Kenneth Watkins,
Garrett Schwarting and Don Namm. It might have been that these notes were
made when I met with Baldwin’s mother Gayle. (BMHR 193-194)
I also have a note in my handwriting that made reference to a head hair in
the ligatures on the victim Byers, indicating that someone at the Crime Lab told me
that there was a head hair in the Byers ligature. (BMHR 195-196). I don’t recall
following up on that. (BMHR 195).
I don’t recall whether I ever memorialized any of my discussions with
Baldwin, even though there are a number of notes from me in my file.
One of the bits of advice that I had received from my trial psychologist was
that when Echols testified, that would be devastating to the defense. (BMHR 198).
We were trying to keep our ship from going down after their ship had been hit.
(BMHR 198). We really didn’t pay attention to our psychologist’s views about
Echols.
I thought that Baldwin was truthful. (BMHR 198:25). And I felt that the
decision for him not to testify was made on a difficult day. I recall that an HBO
camera crew had been present at the time of the interaction between Baldwin and
ABSTRACT 59
me. I agree that if it was shown on the HBO film that I had told Baldwin that the
State had not introduced enough evidence to convict him, then that’s what I told
him.
RECROSS EXAMINATION BY KENT HOLT
I took my files to Mr. Hendrix’s office in Little Rock. I couldn’t tell you if
anything was missing from my files. (BMHR 202).
[This concluded the testimony taken on September 24, 2008]
