The parties discuss the review of the Misskelley defense trial file. The Court
acknowledges receipt and consideration of a brief, filed by Baldwin, on the ABA
Standards/Guidelines. BMHR 846:14-16.
CROSS EXAMINATION BY BRENT DAVIS
I may have said at the Echols Rule 37 hearing that I didn’t know the source
of the conflict that caused the public defender not to represent Misskelley. I
imagine that the information I received was hearsay. (BMHR 850). Looking back
on it, I also now recall that I had learned about Dr. Wilkins when I had worked on
a criminal case involving a juvenile. (BMHR 857-858).
When I first came into the case, I did know what the charges were. Judge
Goodson had said to me that the case would probably not go to trial. (BMHR 859-
860).
I am aware that my client had confessed. Also, I am aware that I taped
conversations with my client. I have not had custody of my file for quite a while. I
also made some notes of some of my conversations with my client. I remember
taping a conversation with him when we first got a settlement offer in August,
ABSTRACT 110
1993. I taped him again at some point after the trial, on February 8, 1994. (BMHR
874). There were other tapes made as well. Dr. Ofshe made some audio tapes of
him.
After the trial, we had conversations. I remember talking to him once when I
asked for a Bible. I recorded that conversation. On that day he was saying that he
had been involved in the crime, but his statement then was not like his original
statement about his involvement.
I also do have some recollection of the sequence of events that were related
to Mr. Misskelley Sr.’s statements to the press, which occurred after we had
approached the prosecutors in an effort to settle the matter. It was later, and after
those statements, that Misskelley then admitted involvement in the killings.
There was also a December 10 tape made that I believe th demonstrates, in
retrospect, that we had discovered that our client did not understand the Miranda
warning. The Court then received a tape recording of an interview involving Dr.
Wilkins.
Volume 4 ends at RT 899–Volume 5 begins at 929
[Continued cross-examination of Mr. Stidham; a tape of Mr. Stidham and
Misskelley is being played beginning at BMHR 931.]
ABSTRACT 111
I was asking him questions, at this point in the tape, about the sequence of
events around the time he was picked up by Mike Allen for questioning. (BMHR
946) [playing of the tape then continues, BMHR 946]
[Playing of this tape ends at BMHR 988 and is followed by a discussion
between the Court and counsel about how the evidence tape was made by
transferring the original VHS tape to a new format]
The tape we just heard was from my meeting with Dr. Wilkins and
Misskelley on December 10, 1993. We heard the circumstances that surrounded
the polygraph examination. I found Misskelley’s statements dramatically different
from the ones he had made before. We had also made up a robbery incident to ask
him about using the Gudjonsson suggestibility scale. And it was clear to me that
you could lead Misskelley to say what you wanted if you asking him leading
questions and put pressure on him. (BMHR 992).
I do recall dealing with the Misskelley statement motion and the 2.3 issue. I
didn’t intentionally prepare a precedent in the hope of avoiding the prosecution’s
re-opening their case. I thought I had preserved the issue, but I hadn’t.
Misskelley was eventually convicted of first degree murder and two counts
ABSTRACT 112
of second degree murder, which was a better result that the other two defendants
got. (BMHR 1000-1001).
I don’t recall the testimony of Deborah Sallings, who had been appointed
director of the Public Defender system, on the needs and payments of attorney
fees in the case, other than remembering that she testified against our interests on
some of those issues. I would disagree with her if she testified that she felt we did
not need investigative help on the case . (BMHR 1017-1020).
We did put on alibi witnesses. Alibi was our strategy. (BMHR 1026-1027).
We called a number of alibi witnesses. Mr. Crow and I , and to an extent Mr. Lax
interviewed the witnesses. We called at least 16 witnesses. We also called
investigator Lax, and the manager from the Bojangles restaurant. We did call
experts including Mr. Holmes.
It is my view that Misskelley deserves a new trial. (BMHR 1048). I have
spoken about the case since the trial in a number of places. [The proceedings of November 19, 2008 end and the November 20, 2008
session begins at BMHR 1055, cross-examination of Dan Stidham continues.]
