I am Greene County District Judge. I was in private practice as a lawyer in
the 1990's. I was a part-time Public Defender for Greene County as well. I
graduated from law school in 1987, and clerked for a lawyer before going into
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private practice, and eventually taking on Greg Crow as an associate. (BMHR
674-675). I got the public defender job in around 1992, just about when Mr. Crow
arrived. While a public defender in Greene County I handled primarily
misdemeanor cases, and juvenile cases. We handled about two hundred to two
hundred and fifty felony cases a year. I had never tried a jury trial as an indigent
accused criminal defense lawyer.
I was appointed to represent Jessie Misskelley in early June, 1993 because of
a conflict. The public defender who was originally appointed was a Christian and
could not represent someone charged with a satanic crime. I was appointed even
though I was from another county. Paul Ford and Val Price had already
approached Judge Goodson to volunteer their services. I had indicated that I would
accept any criminal appointment to help me gain experience. (BMHR 678).
At the time, I had not heard of the ABA Guidelines for the Appointment and
Performance of Counsel in a Death Penalty Case. I did not have the jury trial
experience to meet the requirements under the Guidelines. (BMHR 678-679). I
was not familiar with death penalty cases. I had never prepared an expert witness,
nor was I familiar with the presentation of experts at trial. I had not had any
training in DNA and other areas like serology, pathology, crime scene
reconstruction. I did eventually borrow Dr. Spitzer’s [sic–Dr. Spitz’s] book.
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(BMHR 679-682).
Soon after I was appointed, I contacted the Arkansas Death Penalty
Resource Center. I asked for assistance and learned that the Center was in no
position to offer it. (BMHR 684-685. I reached out to some other attorneys as
well. I didn’t think that I was qualified to handle the defense of the case. (BMHR
686).
Initially, I had acquired a copy of a local newspaper and had read about my
client’s confession. Eventually I began acquiring discovery in the form of typed
police reports and other material. It was slow in coming. They promised to start
sending the stuff over as quickly as possible. (BMHR 687). They gave us
voluminous stuff, but it was disorganized–seven or eight file boxes worth of
information. (BMHR 688).
I eventually received some profiler information that the Police Department
had received from the FBI. I recall receiving some information from the crime
laboratory and the state Medical Examiner. I do not recall obtaining any laboratory
bench notes and the like. (BMHR 690).
I was stunned when I saw some of the files that had been obtained in postconviction
litigation, including notations that some reactions obtained on samples
taken from some blue jeans were possibly bacterial in nature. That would have
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been a red flag had I seen them in preparing for trial. (BMHR 692-693). I never
saw Mr. Channel’s notes about the false positive reactions. I feel that it would have
helped me to undermine testimony that there had been semen found on the cuttings
from the blue jeans.
At one point during the pre-trial phase of the case, on September 27, 1993,
the Court had granted a request from the defense allowing the defense to receive
state crime lab reports and to view the physical evidence. However, I did nothing
to follow up on that order. (BMHR 694).
At first, because of the confession and the publicity surrounding it, I
thought that my role was to prepare my client to testify against the co-defendants.
The situation changed around September 24, 1993. I was frustrated because
Misskelley always got the story wrong. Then Misskelley told me he was innocent.
We also received word that blood on Misskelley’s shirt which I had been told was
the victim’s blood was actually Misskelley’s. Also, Misskelley’s father had been
making public statements that his son had not committed the crimes. It was
September 23 when prosecutor Fogelman told me that there had been a mistake
with the DNA Lab, and I wrote a memo the next day explaining that Misskelley
had told me that he was not guilty–which had happened three days before.
Misskelley gave a sequence of events that occurred on May 5, 1993 that included
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his whereabouts and contacts with persons. That caused me to begin to look into
interviewing alibi witnesses.
I felt from the beginning that Misskelley had not been able to run down the
facts of the case in detail, even when he was claiming to have been involved. Also,
I came to understand that Misskelley did not understand what a criminal defense
lawyer was, and that Misskelley felt that his lawyers were with the police. That’s
why he would tell his father that he was not guilty but not me. (BMHR 708).
I also had some conversations with Misskelley in which I asked him who
Satan was, and I was stunned to find out my client did not know who Satan or the
devil was, given what he had been accused of doing. He referred to “Satin”, did not
know who the President of the United States was, even though it was Bill Clinton
from Arkansas. I began to realize that I didn’t have enough experience in dealing
with a person who was mentally handicapped. (BMHR 713-714).
In retrospect, I am of the view that I had not educated myself well enough on
the issues in the case, including the scientific evidence to try to impact the jury’s
assessment of the reliability of the confession.
I didn’t ask the Court to fund experts in a number of different fields of
forensic science because of a combination of factors, even though the Court did
offer to issue funding orders. My focus ended up being on the confession. I didn’t
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understand how to attack the corroborating evidence. I feel in retrospect that I had
done a cursory job with forensic science experts. (BMHR 725).
I obtained a transcript of the tape recorded phone conversation that Dr.
Peretti, the State Pathologist, had with attorney Paul Ford, during which Ford had
obtained some information indicating that there was a lack of objective evidence of
sexual assault. (BMHR 728-729). That tended to directly contradict Misskelley’s
statement to the police. I did not use the Ford transcript effectively in establishing
that there was no evidence of sexual assault, ejaculation or sodomy found–I never
actually referred to it. . The transcript of the Ford/Wadley conversation with Dr.
Peretti had the latter stating that he did not feel that a prosecutor could stand in
front of the jury and in good faith say that the boys were sodomized. (BMHR 733-
734). That would have been good impeachment, but I never used it.
I recognize from my file that I had copies of photographs from Dr. Spitz’s
book showing animal predation. The injuries to the victims looked like the photos
from the book. But then I failed to follow up with the information from the book.
It did not occur to me however to confer with a pathologist to see if any of the
injuries observed could have been caused by predation. (BMHR 735). I got that
information later, after the trial. At the time, it did not occur to me to connect the
dots.
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In 1998, after the trials, I met with Dr. Michael Baden and had shown him
some photographs, and had been told by Dr. Baden that there were injuries
depicted that were consistent with animal predation. This caused me to talk to Neil
Haskell, a well known forensic entomologist, also in 1998. (BMHR 742).
I view the approach that I had taken to the Misskelley confession as a
‘shotgun’ approach. We failed to raise a Rule 2.3 violation during the motion to
suppress, and having failed to address certain factual issues as well. In dealing
with the legal issues, I had thought I had effectively preserved claims, however the
Arkansas Supreme Court said I had not.
My client could not assist me in defending the case in a meaningful way.
And the psychologist who volunteered to assist me had problems that led to
disastrous results. ((BMHR 760:11)
I had been working with Misskelley for a number of months and found I
couldn’t communicate with him sufficiently to prepare him to testify against the
co-defendants. (BMHR 767). Even though our expert found Misskelley
competent, I didn’t think he was. I failed to consider the portions of Dr. Wilkins’
report that informed me about factors in mitigation. I failed to understand all of the
evidence that demonstrated Misskelley’s incompetence.
Also, I had failed to look into the background of my psychological expert,
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Dr. Wilkins. He had been the subject of some serious complaints. When the case
was in post- conviction litigation, I received a recommendation that I contact a
doctor with expertise in the assessment of a person with competency, and mental
retardation issues.
It was Mr. Davis who had brought to my attention, during trial, that there
was damaging information available on Dr. Wilkins. (BMHR 779-780). I found
out about the information the night before Wilkins testified. The information ended
up being discussed with the press. There had been some effort by a newspaper to
get information on Dr. Wilkins. I did not do any independent investigation of him.
(BMHR 797-799. I ended up seeing a part of the investigative file when Mr. Davis
showed it to me.
We also failed to use a statement that Misskelley had written to impeach his
statements to the police. (BMHR 806-807). I also failed to properly interpret the
Rules of Evidence when I had an opportunity to impeach the testimony of Vickie
Hutchison. We had access to a witness, Jennifer Roberts, who could have
impeached her. The impeachment indicated that Hutchison had been motivated by
the reward money. (BMHR 814-815).
Right before trial, I asked for investigator Ron Lax’s assistance. At that
point, I had come to believe that what was good for Echols was also good for us.
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But I was leery of privilege and other issues, so I didn’t just ask him to investigate
for us. I didn’t consider him to be our investigator. (BMHR 823-824).
Mr. Crow and I did next to nothing to prepare for the penalty trial. (BMHR
803).
I concede that I had been provided access to investigative and other reports
that could have helped him in the presentation of his case.
The Baldwin defense had not shared the view that the investigation
conducted for Misskelley and Echols would be useful in part because they did not
subscribe to the view that what was good for Misskelley and Echols was also good
for Baldwin. (BMHR 824).
I feel that I failed to recognize useful information that was in the discovery,
and failed to recognize the utility of previous mental health reports pertinent to the
case. [BMHR 836-837. The Baldwin defense seeks to clarify the schedule, and the
need for it to call witnesses in the hearing. The Court notes that ]:
THE COURT : I think it’s probably sufficient for you to just to
demonstrate that there were other potential alibi witnesses that they either
knew of or didn’t know of, or if they did know of them and didn’t call them,
that should be sufficient for this hearing. (BMHR 836: 17-21).
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[The September 30, 2008 proceedings concluded, and the hearing does not
resume until November 19, 2008. BMHR 842]
