ABSTRACT OF PROCEEDINGS IN RULE 37, SEPT. 24, 2008

The record of proceedings on September 24, 2008, the first day of testimony
in the combined Baldwin/Misskelley Rule 37 proceedings, begins with the
following exchanges about the Rule 37 Petitions; amendment of the Petitions;
Expansion of the Rule 37 record. The State objected that some issues are not
cognizable in a Rule 37 proceeding, and the defense responded. Misskelley and
Baldwin renewed their motions for the Court to be recused. The record below
begins at Baldwin/Misskelley Hearing Record (hereafter BMHR) at Bates Stamp
pages 000032-000033–hereafter BMHR 32-33:

MR. DAVIS: Judge, that’s the court file for the Baldwin case there,
and then I had Mr. Trail bring these court files from the Misskelley case in Clay
County, and also the docket sheets.
THE COURT: Well, I wanted to hear that here, so let’s make
whatever arrangements we need to make to have it heard here.
(Pause.)
THE COURT: All right, I’m ready to start. I’m not sure where we
are. There was a Baldwin file of Rule 37 petition years ago and then it’s
been amplified and amended at least twice since then, and I think I allowed
the expanded Rule 37 petition to be filed and the exhibits that were attached
to it.
ABSTRACT 28

It would seem, however, that most of the allegations contained in it
were also issues in the Act 1780 motion and also a habeas motion had been
filed in addition to the Rule 37, and as far as the Court is concerned, that’s
just an expansion of the Rule 37 petition.
And that’s the way I’m going to treat the habeas, as a Rule 37 petition.
Now I understand that there is some question about a number of
experts being called, and just exactly what the Court’s going to allow to be
heard in the Rule 37 petition, so who wants to start on that?
The State has objected; I think there were six major accounts in the
amended petition and the State has objected to five of those, so let me hear
the State’s position on [begin BMHR 33] the Rule 37 petition with regard to
the five points that have been objected to.
MR. DAVIS: Well, Your Honor, the original petition, or the amended
petition for relief filed under Rule 37 alleged basically six areas, or six
specific categories, basis for relief as a result of their petition.
The State’s position is that basically none of those allegations
contained in the claim for relief, then items number one through four are not
cognizable under Rule 37, for reasons set forth in our response to the
amended petition for relief.
And I hope the Court has read that but if it hasn’t...
ABSTRACT 29

THE COURT: ... I’ve read it.
MR. DAVIS: It’s set forth in there as to our reasoning and theory as to
why those items are not cognizable basic relief under Rule 37.
The other item, which is item number five in their amended petition,
which generally states ineffective assistance of counsel and then lists...[end
BMHR 33, begin BMHR 34]
THE COURT: ... sixteen points.
MR. DAVIS: A number of points. It’s the State’s position that those
points are basically conclusory in nature and don’t set forth specific facts
sufficient to make those particular claims sufficient under a Rule 37 and
request for relief under those particular provisions.
But in any event, it’s the State’s position that the items one through
four and the items six that they claim relief under are not appropriate under
Rule 37, and that if there is to be a hearing regarding the allegations or
claims for relief under Rule 37, then it be limited to the specific claims under
section five of the amended petition.
THE COURT: All right. Who’s going to respond?
MR. PHILIPSBORN: Your Honor, I am. Good morning. For the
record, John Philipsborn and Blake Hendrix on the behalf of Mr. Baldwin,
and as ordered by the Court, Mr. Baldwin is present.
ABSTRACT 30

Your Honor, a couple of things just to begin with, and I apologize
because I don’t know the Court’s procedure in this regard, but I would ask,
unless there is a basis that the Court feels require, that Mr. Baldwin be
unshackled.
THE COURT: That will be fine. [end BMHR 34, begin BMHR 35]
MR. PHILIPSBORN: Thank you, Your Honor. The other thing
before I respond specifically to the State, Your Honor, uh, there is an issue
pending that I realize may be mooted if the Court accepts the State’s
argument, but just because I know t hat it was a matter that we were going to
take up today.
The Court had ordered an attorney’s affidavit that had been lodged to
the court under seal, to be released to the parties under seal. And I think for
a while the affidavit had been misplaced or could not be located.
My understanding is that the affidavit was located and I was
wondering if the Court would permit that affidavit, at some point during the
course of these proceedings, to be released pursuant to a protective order, so
that the parties could review it?
THE COURT: Yes, I think I can do that.
MR. PHILIPSBORN: Thank you, Your Honor. So Your Honor, as to
the issues presented, we, uh, I think both parties have briefed the issue.
ABSTRACT 31

Our position and response to the State’s position was that in a series
of cases, including most recently Rowbottom, R-O-W-B-O-T-T-O-M, the
State Supreme Court of Arkansas has actually allowed the issues that we
alleged in our amended Rule 37 petition to be [BMHR at 35-36] addressed
in the Rule 37 setting, including fair jury claims and other claims that we’ve
made.
And so we would submit that particular, uh, we would submit our
opposition and reply to the State as the basis for asking this court to allow all
six grounds to be part of, uh, part of this hearing.
THE COURT: Were the jury issues not submitted in the direct appeal?
MR. PHILIPSBORN: Your Honor, there wasn’t a – the Court is
correct, that there were jury issues submitted on direct appeal, but at the time
the parties did not have affidavits from the jurors; the jury room notes; the
poster-size notes had not been released to the parties as of that time, so the
record has been expanded in that sense.
And so the particular claim that’s being made here addresses different
facts than were addressed on the appeal.
And it’s on that basis, Your Honor, that we are asking for, uh, the new
facts to be part of the Rule 37 proceedings.
THE COURT: Well, of course, the Court could read your pleadings
ABSTRACT 32

and make a decision based on the pleadings, and in fact, that’s customarily
done in many Rule 37 petitions. [end BMHR 36, begin BMHR 37]
However, the nature of this case and the exposure of this case is what
causes the Court to be inclined to give you a hearing on the issues that are
raised.
However, I’m of the opinion that the only issue that’s really covered
by Rule 37 is the ineffective assistance of counsel, and that’s what I’m going
to hold it to.
So the issues that we are going to hear will be issues involving the
ineffective assistance, and the others, I’m holding and it’s my ruling that
they are not cognizable by Rule 37, which your pleadings are filed and those
will go to the Court.
MR. PHILIPSBORN: Your Honor, I understand the Court’s position
and so there are just a couple of questions that I would respectfully ask of
the Court, uh, just in terms of the Court’s schedule.
I know the Court had written us a letter indicating that we would have
three days this week, two days next week for this hearing, and the
Misskelley attorneys are here.
I understand the schedule may have changed a little bit and I wanted
to ask about that.
ABSTRACT 33

THE COURT: Well, the problem I have is I have a capital murder
case scheduled for trial in Blytheville and I had to give them a pre-trial day,
so that’s why [end BMHR 37, begin BMHR 38] I removed Friday. But you
have today, tomorrow, and certainly two days next week.
And I was under the impression that we were going to try to have Mr.
Misskelley here tomorrow, is that correct? And I don’t have any problem in
having joint submissions made, if that’s what you all want to do.
MR. PHILIPSBORN: I think that’s what we were hoping, Your
Honor.
THE COURT: I’m sure the State wouldn’t object to that, necessarily,
would you? I mean, it seems to me an economy of time would suggest that.
MR. DAVIS: Your Honor, as far as saving time, the State has no
objection to that. But I think the question is as far as since the Court has
determined that the scope of the Rule 37 hearing will be defined as
ineffective assistance of counsel and since we are dealing with counsel and
representing clients in two separate trials, I’m not sure...
THE COURT: ... well, we can proceed with the Baldwin issues today
and then what’s common for the Misskelley defense could start tomorrow.
MR. DAVIS: Okay. So I’ll need to get an order to have him brought
back.
ABSTRACT 34

THE COURT: Jeff, did you have something you wanted to say? [end
BMHR 38, begin BMHR 39]
MR. ROSENZWEIG: Yes, sir. You made some statements and I
think we need - “we” the Misskelley defense, need clarification.
THE COURT: Okay.
MR. ROSENZWEIG: First, I’ve been told that the current plans are to
bring Mr. Misskelley to this part of the world on Sunday.
THE COURT: Where did you get that information?
MR. WALDEN: That’s what the two sheriff’s offices indicated
yesterday, the Craighead County and Clay County.
We checked with Clay County and Clay County said they had already
made arrangements to have Misskelley brought up Sunday.
MR. DAVIS: And if I could clarify, and I emailed Michael Burt
yesterday and everybody else, uh, when at 11:45 yesterday I received the
email that referred to the Baldwin/Misskelley Rule 37 hearings, it kind of
took me by surprise because I thought that we were having the Baldwin
hearing today, tomorrow and Friday.
THE COURT: Well, that’s what we originally talked about.
MR. DAVIS: And that some time next week we would start the
Misskelley, so at that point we started [end BMHR 39, begin BMHR 40]
ABSTRACT 35

scrambling to try to figure out if we had to have Mr. Misskelley here today
or not.
And what I thought was, was that the more likelihood would be that
Mr. Misskelley would have to be here Monday, and that’s what the plans
are, that he is to be brought back Sunday and be available for Monday’s
hearing.
If he needs to be brought back earlier, well, I know Sheriff Cole in
Clay County is the one responsible for transporting him back. He’s
indicated that he would go Sunday and bring him back.
We’ll just have to, if we need to, just get an order and see what can be
done in the interim, but I’m the one responsible for kind of assuming that we
didn’t need him today.
THE COURT: Well, I think I indicated that we would sort that out
today. But I didn’t see any problem particularly in getting him here by
tomorrow.
MR. DAVIS: We may be able to.
MR. ROSENZWEIG: And Your Honor, if I could address one other
thing?
THE COURT: Sure.
MR. ROSENZWEIG: This has to do with scheduling witnesses and
ABSTRACT 36

that type of thing, as well. You made reference to the fact that, of course,
you denied the [end BMHR 40, begin BMHR 41] DNA habeas petition, uh,
and we have some issues in our case that, uh, the DNA results are relevant,
as well as ineffective counsel and we’re not seeking for the basis, of course,
we have prejudice.
Did I understand the Court as saying we will not be able to participate;
the Court was saying we will not be allowed to present the DNA evidence in
our case either, or am I misunderstanding something?
THE COURT: Well, I’m not sure exactly - you’re telling me that it
will have some relevancy on the issue of ineffective assistance?
MR. ROSENZWEIG: Yes, sir.
THE COURT: Well, in that context I probably will allow a limited
amount of it. But I’m primarily concerned with the issue of ineffective
assistance and that’s what I’m going to allow you to introduce proof on.
So if you think it’s relevant, I’ll just have to hear what you’ve got to
say at that time. I’m not sure I know exactly what you’re talking about. I
assume you’re saying that the lawyers should have recognized the
potentiality of the DNA?
MR. ROSENZWEIG: Yes, sir.
THE COURT: Okay.
ABSTRACT 37

MR. ROSENZWEIG: I had understood, or the implica- [end BMHR
41, end BMHR 42] tion of what I heard was in regard to the DNA stuff as
res judicata, essentially at this point.
THE COURT: Well, yeah, that point that I have already entered an
opinion on under the 1780 motion, yes. I think that’s been covered.
MR. ROSENZWEIG: Well, Your Honor, and for the record, the
argument that we would be making is that there is a different and lesser
standard of proof on Rule 37 prejudice than there is on a DNA habeas.
THE COURT: Well, I’ll listen to what you have got to say and then
we’ll see where we go from there.
And by the way, for the record, I have read volumes of pleadings,
boxes full of it, so I mean, I can’t promise you that I will remember
everything that has been written in this case, but I will try real hard to.
I mean, that’s just one box and I’ve got four or five in the back that I
actually have gone through.
MR. DAVIS: And I guess one thing that would be, uh, the State may
request a clarification of Your Honor, or at least request the Court look into
it, if the testimony regarding DNA, and I don’t know exactly what testimony
they may proffer, I have some idea based on the conversation with Mr. Holt
this morning, but at one point I think a lot of this was the same [end BMHR
ABSTRACT 38

42, begin BMHR 43] evidence that they said required, they were entitled to
have it tested because there was new scientific testing available that did not
exist at the time of trial, and if the reason for introducing it at the Rule 37 is
to say that the attorney was ineffective for failing to having secured this type
of testing, I mean, I think a large part of what was done as far as the Act
1780 DNA testing would have to be precluded, because it was done by
agreement because it was ordered that if there was new scientific testing that
was available that wasn’t available at the time of trial; therefore, it would
seem to preclude any evidence of that coming in as a claim of ineffective
assistance of counsel, since the counsel couldn’t have had it available to him
in the first place.
THE COURT: Well, I don’t want to hear proof, ,nor do I want to have
to rule again on the DNA issues that were already decided in the 1780
hearing or motion, but I will allow, if it dovetails into ineffective assistance,
as you pointed out, much of the allegation was that it was newly discovered
scientific evidence that was not available.
If that’s the case, then it can’t very well mesh with ineffective
assistance of counsel. But if some way the DNA is involved in decisions or
actions of the [end BMHR 43, begin BMHR 44] attorneys, I’ll hear it.
But if it is strictly the matters that I’ve already ruled on, I don’t need
ABSTRACT 39

to hear that again. The Court’s already got that information and any appeal,
it will be available there.
MR. PHILIPSBORN: Your Honor, one thing I wanted to address was
the scheduling issue in view of the Court’s schedule on Friday.
There’s one expert witness who is a serologist, and again, whose
testimony in our view would pertain narrowly to the issue of ineffective
assistance, and obviously, by the time we get to the end of tomorrow, the
Court will know better from having heard the testimony where we are, uh,
we have, tentatively with the Misskelley defense, scheduled that person to
come in on Friday.
It’s my understanding she can come in on Monday but I didn’t want to
take the Court by surprise at the end of our hearing; I just wanted to make
clear to the Court that we will be available to present her, if the Court
permits it, on Monday.
THE COURT: That will be fine.
MR. PHILIPSBORN: The other thing I wanted to let the Court know
is that Mr. Hendrix and I have a few questions of one of the witnesses that is
a [end BMHR 44, begin BMHR 45] principal witness for the Misskelley
team and that’s now Judge Stidham, and literally a very small amount of
questioning, and my understanding, and I’ve been in touch with him, but
ABSTRACT 40

I’ve also been in touch with Mr. Burt, is that Judge Stidham is expected to
be here on Monday.
So again, not to take the Court by surprise on that issue, but that is
what I’ve been informed.
THE COURT: If it’s all right with the State, that’s fine.
MR. PHILIPSBORN: That’s fine.
THE COURT: I don’t want it by deposition. I want him personally
here, whatever his testimony is.
MR. PHILIPSBORN: And we understood that, Your Honor. And in
view of that, there’s only one thing I wanted to do and again, we are doing it
to preserve our record, uh, and to try to be consistent on it, uh, I think both
the Misskelley and Baldwin defenses would respectfully ask the Court to
recuse itself from the proceedings in this matter, and I would like to renew
that particular, uh, motion.
THE COURT: Well, that’s been raised before and I’ve denied it
before, and I intend to hear it through to the end, if I live long enough.
MR. PHILIPSBORN: Well, we’ll try to move it [end BMHR 45, begin
BMHR 46] along, Your Honor, and our first witness is Mr. Ford, who is
present.
THE COURT: All right, all who know yourselves to be witnesses in
ABSTRACT 41

this matter, please stand and raise your right hand.
Gentlemen, I don’t know who the witnesses are; I’m sure the
attorneys are, but is he the only witness present in the courtroom?
MR. PHILIPSBORN: Your Honor, most of our witnesses are not.
There is a potential witness who is present, uh, Ms. Cureton, Joyce Cureton,
and I was actually going to make a motion for the witnesses to be excluded.
I want to supply her as a potential witness.
MR. DAVIS: Judge, before we get started with testimony, Mr.
Walden advises me that Sheriff Cole in Clay County can in fact pick up Mr.
Misskelley and have him here tomorrow.
THE COURT: Well, I’d like to have him here tomorrow morning.
MR. DAVIS: We need to get an order to Clay County to that effect.
THE COURT: Yes. Mike, are you going to fix that?
MR. WALDEN: Yes, sir. [end BMHR 46, begin BMHR 47]
THE COURT: Okay.
(Witnesses sworn; Rule invoked.)