I am a lawyer admitted to practice in the State of Arkansas in 1973. I was
asked by counsel for Baldwin to review a series of files that I had been provided by
counsel for Baldwin. The files had been brought to the hearing.
I clerked for the Arkansas Supreme Court after leaving law school. I then
worked for the Office of the Attorney General for two and a half years, and
thereafter beginning in 1977 entered private practice where I have done almost
exclusively criminal defense work. (BMHR 2370) I have been a member of the
Arkansas Association of Criminal Defense Lawyers, and in the mid-1980's was the
Chair of the Criminal Defense Section of the Arkansas Bar Association. I was also
the first Chair of the Criminal Defense Section of the Arkansas Trial Lawyers
Association. I served on a Supreme Court committee on model criminal jury
instructions, and am currently on the Arkansas Supreme Court’s Committee for
Criminal Practice. I have been the Bar Association representative to the Arkansas
Crime Information Center for almost 30 years. (BMHR 2371)
My practice has included a wide variety of criminal cases in State and
Federal courts. I have argued before the Arkansas Supreme Court, in the Eighth
Circuit, and before the U.S. Supreme Court twice.
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I have been involved in a wide range of trial work in both state and federal
cases, and the preparation of the defense of criminal trials during my entire career
as a criminal defense lawyer. (BMHR 2372)
I have previously qualified as an expert witness on the standards of practice
applicable to criminal defense. I have done so in Craighead County. I am familiar
with the standards of practice applicable to the criminal defense function in
Arkansas in 1993 and 1994. The basic standard for effective representation is the
one set forth in in Strickland v. Washington. (BMHR 2373) Strickland references
the ABA Standards. Back at that time, there wasn’t the kind of information easily
available to lawyers on the internet as there is now. You would obtain a sense of
what standards of practice were based on my contact with other lawyers from
around the state. (BMHR 2374)
I was also familiar with the relevant standards as applied in the early 1990's
based on my involvement in Starr v. Lockhart , a case that involved questions of
effectiveness of counsel. I was very familiar with the pertinent law at that time.
(BMHR 2374) [Whereupon the Court was asked to accept Mr. Lassister as an
expert on the standards of practice applicable to the criminal defense function in
1974–and it did. BMHR 2374]
I have reviewed attorney Paul Ford’s trial file on several occasions (BMHR
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2375). The file consisted of three boxes. In the boxes, I located a series of
files with witness names on them containing interviews of police, files pertaining
to witnesses from the crime lab and some newspaper articles. There is a large
stack of suspect interviews conducted by the police department and some
pleadings.
In reviewing the file, I found no photographs of the crime scene or of the
postmortem examination. There were no photographs in the file. (BMHR 2376)
There were no reports from any private investigators. Specific documents
from Ron Lax, investigator for Echols, were not in the Baldwin file.
There was no evidence of consultation with an independent pathologist. No
evidence of consultation with an independent serologist. No evidence of
consultation with a DNA expert. There were transcripts of interviews with Dr.
Peretti.
In my opinion it was expected, under the standards of practice at the time of
this trial, that the defense would have consulted with the State’s Medical Examiner.
The consultation would have included obtaining information about various
findings, and evidence retrieved, during the post mortem examination process.
In reviewing the file in the matter, I also read the opening and closing
statements in the case, Dr. Peretti’s testimony and affidavits of a couple of forensic
ABSTRACT 236
pathologists concerning the mutilations that had been seen.
If defense counsel had been told, in advance of trial in this case, that there
were turtle bites on one of the victims, then that counsel did not comply with
Strickland v. Washington in failing to research and consult with experts concerning
wounds to the victim, and particularly Christopher Byers. If you have a pathologist
saying that the wounds are attributable to a knife, and since the source of the
injuries is not readily apparent, as in this case, then counsel should have done
research, and consulted with a pathologist about Dr. Peretti’s findings. (BMHR
2381-82)
Having reviewed Baldwin’s Exhibit 14, a handwritten note from Paul Ford,
indicating a head hair in the ligatures on Christopher Byers, I can recall no
photographs of Lab slides of hairs in Ford’s file. In my opinion, a reasonably
effective criminal defense lawyer would have followed up on the information
contained in the note you just showed me and asked if the hair had been submitted
for further identification and analysis. Counsel should also have asked whether the
origin of the hair could be determined. (BMHR 2384)
In my review of the defense files I found a number of files containing
interviews by a State investigator. There were sometimes handwritten pieces of
paper with points that it appeared defense counsel was making with respect to the
ABSTRACT 237
witness interviews. Given the facts of the case, it was the duty of counsel,
especially given information that certain witnesses had evidence concerning
Baldwin’s whereabouts at critical times, to determine where the client was during
that period of time. If the defendant was denying his guilt, and if there were some
witnesses like his mother and brother and others available as sources of
information, then any competent lawyer would have collected contact information
and taken steps to locate and interview witnesses. You would want to nail down
the client’s whereabouts with the client as best possible–what classes he was in,
what teachers he had in class, who was in the class. Among other things, I noted
counsel would have collected school records and would have verified what
contacts the client had with teachers and the like.
I did see some information in the file about individuals who had talked to the
defendants during that period of time. It would have been within counsel’s duty to
investigate to follow up with persons who claimed to have been on the phone with
Baldwin or a co-defendant (BMHR 2388)
In the files I reviewed, I did not see defense interview notes of witnesses. I
did see a memorandum from defense counsel reflecting an interview of Baldwin’s
mother, as well as a handwritten statement from his uncle Hubert Bartoush
purporting to cover Bartoush’s contact with Baldwin on the afternoon of May 5,
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1993 between 4:30 and 6:30 PM. The statement is Plaintiff’s Exhibit 12. I believe
that there is also a police interview of Bartoush in the file. This too is information
that I would have expected counsel to follow up on. (BMHR 2389) The Bartoush
file from the Ford trial file is now Plaintiff’s 66. It contains a statement given to
Detective Ridge by Bartoush.
In addition, the file has in it a handwritten statement of Heather Cliett dated
June 8, 1993 concerning her contact with Jason Baldwin about the 5th of May. A
lawyer would have had a duty to follow up with this since it shows what the client
was telling his girlfriend about his whereabouts, and it confirms what Bartoush
said as well.
In cases involving jailhouse informants, it is the duty of criminal defense
counsel to investigate the credibility of the jailhouse informant, and to find
anything that can effect the informant’s credibility, including institutional records,
and other sources of information. This would include reviewing jail records and
the like. You need to investigate inducements. (BMHR 2394-5) You need to find
out what the correctional officers thought about the informant as an inmate. You
could pick up the phone and find out that he is deceptive and dishonest with staff.
(BMHR 2397).
In my opinion, the failure to retain or consult with an independent
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pathologist, or to conduct research on his own on the injuries observed here was a
breach of duty. (BMHR 2398)
It is my opinion that counsel breached the duty to investigate in a case like
this, particularly where the accused was claiming his innocence and there was
independent evidence of an alibi.(BMHR 2399)
DIRECT EXAMINATION BY MICHAEL BURT
It is my opinion that the failure to retain a forensic pathologist and a forensic
serologist in a case like this would be applicable to Baldwin’s lawyer or to any
other lawyer involved in the case. (BMHR 2399)
CROSS EXAMINATION BY KENT HOLT
In my opinion you need more than a license to practice law and Strickland
to effectively defend criminal cases in Arkansas.
In this case, I reviewed Paul Ford’s file; some of the transcripts including the
opening and closings; Dr. Peretti’s testimony; some affidavits. I re-read some
cases. I did not read the entire record of the case. (BMHR 2402). I did not read the
co-counsel’s file. I did not speak with Mr. Ford.
I did not review attorney Paul Ford’s testimony.
Ford’s having handled a prior capital murder trial would not affect my
opinons about his omissions to investigate the pathology issues. (BMHR 2404).
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The failure to follow up the hair evidence, if it had been delivered to the Lab would
make you inquire into the results.
There were some entries in the file indicating that Ford and his co-counsel
met with West Memphis police investigators. (BMHR 2408)
REDIRECT EXAMINATION BY JOHN PHILIPSBORN
I agree with the statement from the digest of Strickland that the
reasonableness of counsel’s actions may be substantially determined by the
defendant’s own statements. The reasonableness of engaging a pathologist or
consulting one in a case like this is also premised on the prosecution’s theory of the
case, which here was described by the Arkansas Supreme Court as part of a Satanic
ritual. (BMHR 2411).
I am aware that defense counsel could have sought to identify the source of
any hair evidence found at the scene. And where the client was in school on the
day the bodies were recovered and where the client showed no signs of changed
behavior or demeanor, or signs of injury, you would have expected follow up
interviews.
Ultimately, the decision about whether the client should testify belongs to
the client. (BMHR 2414-5)
REDIRECT EXAMINATION BY MICHAEL BURT
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If a case was tried on the theory of Satanic abuse as the motive, you would
want to do everything you could to refute the notion that there was such a motive.
(BMHR 2416)
