[A recess was taken from October 1 to October 2, 2009]
[At the beginning of the October 2, 2009 session, the Court was again asked
by counsel for Misskelley asked about the merging of the trial and Rule 37 records.
The Court observed: “Well, I thought we agreed early on that both of them would
be merged for Rule 37 purposes, if that’s what you’re asking ?” (BMHR 2658).
ABSTRACT 259

The State indicated no opposition and the Court replied: “All right”. (BMHR
2658) After discussing the length of time (up to 60 days) in which counsel would
have to propose their precedents, the Court also noted: “And I guess for the
record, the record in Echols and his Rule 37, all of the pleadings and documents
will also apply in this case...As well as the two original trials.” Counsel for the
State, Mr. Holt added: “...and Mr. Baldwin was at Mr. Echols’ trial, and there
were a number of reliances on Echols’ Rule 37 proceedings as well”. (BMHR
2660) Baldwin’s counsel asked that the Order pertinent to Misskelley be applied to
Baldwin, and the Court stated in pertinent part: “...yes, Sir. Sure. That’s what I
meant. It would apply to all three.” (BMHR 2661) The testimony of Dr. Peretti
then resumed beginning at BMHR 2664]
I found that Christopher Byers died of multiple injuries, though because of
the nature of the injuries, I sought to describe them more generically so as to not
release graphic information to the press. (BMHR 2665)
State Exhibit 42 is a knife that I first saw at some point at either the first or
second trial. (BMHR 2666-67) I was asked to render certain opinions about it.
Mr. Byers had been bound as well and showed signs of having been in the
water. There were some injuries to the nose, lips, and ears. Some superficial bite
marks present on the mucosal surfaces of the cheeks. I saw no signs of animal
ABSTRACT 260

predation on the eyelids. (BMHR 2668-74) There were injuries to the scalp, and
skull fractures to the base and back of the skull. (BMHR 2677)
The skin of the penis, the scrotal sac and testis were missing and there was a
large defect in the area. (BMHR 2679) There were multiple wounds in the inner
thighs. In my view all of the wounds occurred prior to death. Though I wrote that
the wounds looked post-mortem, you could see hemorrhage in the tissues.
There were some injuries to the buttocks and what I described as superficial
cutting wounds in parallel lines. There was some drying of the tissues. I don’t
know any kind of animal that would have caused this kind of pattern of wounds.
(BMHR 2683) There were a number of contusions found elsewhere on the body.
I found diffuse pallor caused by the loss of blood. He had bled out. (BMHR
2691) There were ghost cells found on the penis slides. (BMHR 2692-93)These
indicated the leaching of blood.
The serrated knife that you have here could have inflicted the pattern
wounds on the skin. (BMHR 2695) I found that the knife shown to me by the State
(State’s Exhibit 42) had patterns consistent with linear gouges on the remains of
Mr. Byers.
I characterize certain contusions in the thigh area as defensive wounds. RT
115-116.
ABSTRACT 261

Reviewing further photographs of the area of injury in the crotch area I some
appear to have been inflicted prior to death, and some after death.
There were no bite marks on the body. (BMHR 2702)
I attended a meeting held at the request of post-conviction defense counsel at
which forensic pathology consultants of the defense had indicated their view that
there had been injuries inflicted by animals on the bodies. (BMHR 2702-3) They
mentioned a number of possible animals. I requested documentation concerning
the types of injuries that the defense consultants described to me, and though I
obtained a book on penile injuries given to me by one of the experts from Canada.
I know turtles. I see them eat during the summer. Turtles have long claws
that are razor sharp and triangular jaws. Snapping turtles tend to crush the food
they eat, and then rip it. (BMHR 2705-6).
Microscopic slides of tissues taken during autopsies had been provided to
the defense. (BMHR 2708)
I recall certain injuries to Steve Branch’s face as having been described by at
least one of the defense consultants, a dentist, as being an animal bite. I was
annoyed by this, in part because I was criticized before for missing a human bite
mark, and now they were saying they were animal predation. (BMHR 2710).
The injuries to Mr. Byers, to me, are “all antemortem” (BMHR 2711),
ABSTRACT 262

though in my view they had the appearance of being postmortem. (BMHR 2712)
I agree that I previously testified that certain wounds were consistent with
the blade of the knife, and consistent with a particular knife. (BMHR 2713-13)
I disagree that there were animal caused injuries. A sharp instrument had
been used. I stated that the knife is “consistent. You can’t do it with that knife.”
(BMHR 2716) I could not opine whether the injuries to Mr. Branch were consistent
with satanic ritual I never tested the survival knife to see if it made the kind of
pattern on a grapefruit that it would have made on human flesh. Grapefruit and
skin are different in texture. (BMHR 2717)
I deny having said that the boys were sodomized. I acknowledge that I had
raised the possibility of conducting a study amassing autopsies conducted by the
Arkansas State Crime Lab that had never been followed up on. We elected not to
do it. The computer system in my office ‘back then’ was archaic. Also the
majority of bodies received at the Crime Lab would have been subject to animal
predation in land-based cases. (BMHR 2718-19)
I disagree with the text of the letter that summarized conclusion of the
experts described by Echols’ lawyer as working with the defense. (BMHR 2724-
25)
It was my further opinion that the victims were alive before they were put in
ABSTRACT 263

the water.
I would have disagreed with the defense opinions in 1993 when I did the
autopsies, and 1994 when I testified. [Volume 10 of the testimony ends at BMHR
2729. Dr. Peretti is still on direct examination. The testimony continues in Volume
11, beginning at BMHR 2731]
It is my opinion, to a reasonable degree of medical certainty that there is no
physical evidence of animal predation here. (BMHR 2733) There are no turtle
bites. I wrote a letter with Dr. Kokes dated May 30, 2008 (Exhibit 48). It explains
my viewpoint.

CROSS EXAMINATION BY JOHN PHILIPSBORN

I have been annoyed by the questioning of my opinions. I would not change
the opinions that expressed. I would not have changed what I did in connection
with the case. (BMHR 2738)
I was not successful in passing the examination for board certification, and
therefore am not board certified as a forensic pathologist. (BMHR 2741-2)
The policies in place in Arkansas require that the Medical Examiner obtain
permission from a prosecuting attorney before releasing material and information
to defense counsel. We have no problem releasing information to the defense, we
just need permission from the prosecutor.
ABSTRACT 264

Reviewing exhibits 76 A and B, I noted that the exhibits were copies of
records that I generated in this case during my contacts with Baldwin defense
counsel. The crime lab would have kept records of the defense’s contacts with the
crime lab. If a lawyer had requested a full set of autopsy photographs that would
have been documented in the file as well. (BMHR 2748-9)
The meeting that I referred to that occurred at the Arkansas Crime Lab in
May of 2007 had involved Dr. DeMaio, Dr. Souviron, Dr. Baden, and a forensic
odontologist from Canada, Dr. Wood, who had provided me with his book. Dr.
Spitz was not present at that meeting. I knew Dr. Di Maio before the 2007
meeting. He is the author of a book on pathology. I have referenced the portion of
his book that covers lividity. I had also done a little training at Miami-Dade, which
is where Dr. Souviron is from.
I did not know about Dr. Souviron’s overlays of the knife. Exhibit 77. This
exhibit shows notations that the prosecuting agency requested transparent overlays
of the knife. I didn’t. The notation on the exhibit says that the prosecutor wants to
know about the overlays. I don’t recall that. [Exhibit 77 was received at 2758] I
felt that the knife that I was shown by the prosecution matched up to the Byers’
boy’s wounds in the genital area, but I did not do the overlays. I believe it matches,
though I am aware that the Court has received some photos with an overlay of the
ABSTRACT 265

knife. (BMHR 2762)
I did testify earlier on that we did not review the cases in our office for
instances of predation because of the logistical difficulties–the computer system is
old. I admit that I am the co-author of an article entitled Incidence of Autopsy
Findings In Unexpected Deaths of Children and Adolescents in which we reported
on 439 cases between 1997 and 1999 from the Arkansas Crime Laboratory. We
had students who assisted us with that research. I did not have that kind of help on
this case. (BMHR 2765)
I acknowledge that the meeting proposed in May of 2007 was unusual. I had
never had such a meeting proposed before. I agree that competent pathologists can
disagree about a case. (BMHR 2766-67). I am aware that the case has been
reviewed by a number of experts including Drs. Demaio and Spitz, who have
authored textbooks on forensic pathology, and Dr. Baden, Dr. Ophoven, Drs.
Haddix and Souviron, Dr. Tabor. I have not talked to any other doctors about the
case, notwithstanding my view that discussions of forensic pathology issues are
common among fellow professionals.
I was not aware that during the Echols Rule 37 a pathologist from the New
York Medical Examiner’s office named Dr. Cohen, and another expert named Dr.
Davis, had testified that there appeared to be animal bite marks on the left cheek of
ABSTRACT 266

Mr. Branch. (BMHR 2771-72)
There were autopsy diagrams and notes pertinent to each of the victims
prepared during the autopsy process, thereafter, I went through the examination
and dictated my report. I obtained a rough copy of the autopsy report, and then
reviewed it to make sure it covered everything. The notes and diagrams that I
make during the autopsy are important to understanding my observations. (BMHR
2775-6)
With respect to documentation of the autopsies, I was unaware of any record
of Dr. Sturner’s presence at any one of the examinations in this case, or that of Dr.
Dugan. I can’t tell you when Dr. Sturner saw the bodies.
I would have called Dr. Dugan to an autopsy if I thought “there was a
suspicious bite mark”, and in this case because “there’s a lot of markings on
them....” (BMHR 2780)
I often went to crime scenes in Rhode Island, but in Arkansas the procedure
is different. I would have liked to have gone to this crime scene but no one asked
me to go. (BMHR 2782)
I became aware that the trace evidence section had found animal hairs in this
case, though I did not know what kind of animal. (BMHR 2783)
Now that you have read me testimony from Paul Ford saying that I told him
ABSTRACT 267

there were bites on one of the victims that could have been turtle bites from
September 24, 2008, session, I am telling you that’s a lie. (BMHR 2785)
I felt I included enough documentation in these cases, including the photos
that other pathologists could rely on them to draw independent conclusions. Also,
my notes would have been of the type that could be reviewed by a qualified and
trained professional in my field of formulated independent judgment. (BMHR
2788–notes received in evidence) I was aware that no one purported to have found
any of the skin or other tissues from the genital injury to the victim Byers. I also
acknowledged that as of 1994 I had never seen a degloving injury involving the
removal of the skin of the penis and scrotum. I also never said that this knife is the
one, I said that it could have been.

CROSS EXAMINATION BY MICHAEL BURT

People in my profession can reasonably disagree. (BMHR 2793) Forensic
pathologists can disagree on cause and manner of death, and the timing of injuries
and the like. Equally qualified forensic pathologists can disagree on visual
observation of hemorrhaging, and whether microscopic slides show hemorrhaging
as well. Disagreements among such experts are up to the jurors to decide.
I dictate the reports as I am doing the autopsies. I cannot recall exactly when
Dr. Dougan had come in, and I remember that Dr. Sturner was out of town on the
ABSTRACT 268

first day of the autopsies, May 7. I had wanted Dr. Dugan to focus on the facial
injury on Steve Branch. I then directed Dr. Dugan to look for human bite marks.
There was no talk about looking for animal bite marks. (BMHR 2799)
I don’t know precisely what Dr. Dugan had done, or what kind of
documentation had been generated. I just directed him to look on the cheek
wounds (BMHR 2801) I didn’t direct him to look at the bite marks that I had found
inside the mouths of the kids. I don’t know that Dr. Sturner looked at all of the bite
marks in their mouths. He looked at the outside wounds. (BMHR 2804)
As to the injury to Steve Branch’s cheek, my observations were that they
were incised, gouging away wounds, looking like someone had torn away the
tissue.
I acknowledge that on May 7 (1993) I had drafted a press release because of
the relentless autopsies, and that I stated there that all three children had died of
multiple injuries. I stated that to get the press off my back.
The Moore report had been typed and finalized on May 25, the Branch
report on May 24, and the Byers report on May 28. In the Medical Examiner’s file
there was also a letter dated May 26 from Inspector Gitchell indicating that the
West Memphis Police Dept. felt that it was not getting sufficient information from
the Crime Lab. (BMHR 2812)
ABSTRACT 269

I agreed that I saw no trauma to the anal area of any of the three boys, and I
would have expected to see some form of injury in the microscopic sections I took,
but there was no evidence of injury. I was not aware that I had been tape-recorded
in a conversation with Mr. Wadley, stating that the prosecutor could not represent
in good faith that the boys were sodomized. (BMHR 2820) I don’t know what I
could do to correct a mis-impression left by the statement of a prosecutor.
I can’t a single peer-reviewed article that supports the proposition that
injuries to one or both ears plus injuries to the lips suggests sexual assault, but I
have had cases where females were gang raped and I saw those kinds of injuries,
though there were also injuries in the oral cavity. (BMHR 2827)
I had not meant to indicate that the boys had forced oral sex. Moreover, had
I been questioned based on his schematics, a defense lawyer could have
demonstrated that Michael Moore had no injuries to the left ear, which was not
consistent with my testimony that injuries to both ears might be consistent with
sexual assault. (BMHR 2830)
According to a review of my records, it appears defense counsel Stidham
had contacted me four times prior to trial. He could have pointed out that there was
a note in the file saying no evidence of sodomy. (BMHR 2833) The only time that
Mr. Stidham asked for my file was after the trial.
ABSTRACT 270

I can’t explain what happened about the transparencies that the prosecutors
wanted at trial concerning the knife. That was up to the Trace section. I don’t recall
having any conversations with the prosecutors about the knife or the
transparencies. (BMHR 2835)
I also agree that shortly after the record of a contact between me and
prosecutor Fogelman, there had been questions about the injuries to the victim and
to Steve Branch specifically which resulted in testimony that I did not know what
had caused the injuries, though it would not have been animals in my opinion.
(BMHR 2836)
You have shown me a statement I made in an article on histologic evidence
of blunt trauma, I agreethat tissue slides should be taken from injuries where you
have possible superimposed new injuries. (BMHR 2839-40)
I had begun to review the evidence presented by defense experts which I
viewed in part as a personal attack on me. I agree that nobody had previously asked
me about whether there had been animal bites and no one had challenged me on
that point at trial.
I disagree with part of Dr. Spitz’s book on differentiating pre-mortem from
postmortem injuries. I do not know why there was a difference between my
opinions and all of the defense experts on the hemorrhaging. I can’t explain it.
ABSTRACT 271

(BMHR 2845)
I have never seen the overlay prepared by Dr. Souviron, and further
indicated that I felt honored that it was taking six people to review my work and
prove him wrong. No one gave me anything to look at it.
I disagree with the statement of the National Research Council that basic
competence in forensic pathology is demonstrated by board certification. (BMHR
2854) I agree that I failed the boards.

REDIRECT EXAMINATION BY KENT HOLT

My opinion is that all of the bruising occurred prior to death. There may
have been some contusions that had a sharp force overlay. I disagree that there is
any evidence of animal predation. Paul Ford lied when he said I mentioned a
possible animal bite to him.

RECROSS EXAMINATION BY JOHN PHILIPSBORN

There were records of only two contacts between myself and Baldwin’s
defense counsel.